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Shurland v. Bacci Café & Pizzeria on Ogden

September 24, 2010


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Christopher D. Shurland claims that on August 11, 2007, Defendant Bacci Café & Pizzeria on Ogden ("Bacci") violated federal law by issuing a credit card receipt that revealed all of the digits of his credit card number, and its expiration date. On behalf of a class of Bacci customers, Shurland has filed a complaint seeking statutory damages for the alleged violation of the Fair and Accurate Credit Transactions Act of 2003 ("FACTA"), which provides that a person accepting a credit card may print no more than the last five digits of the credit card number.

Bacci has filed a third-party complaint against National Translink Corporation ("Translink"). Bacci alleges that any FACTA violation was the result of Translink's failure to meet its obligations to Bacci under the terms of a "Merchant Processing Agreement," ("MPA" or "Agreement") in which Translink agreed to provide Bacci with credit card processing services and with service and repair of Bacci's credit card processing terminal. The court has previously dismissed Bacci's contribution claim against Translink. Translink now moves for judgment on the pleadings on Bacci's claims for breach of contract and breach of implied warranties. For the reasons explained here, the motion is granted.


Like a motion to dismiss, a motion for judgment on the pleadings calls on the court to presume the truth of all of the well-pleaded allegations of the complaint and view those allegations in the light most favorable to the party who filed it--here, Bacci. Bernard v. Union Tp. High School Dist. No. 30, 5 F.3d 1090, 1091 (7th Cir. 1993). This statement of facts is taken from Bacci's First Amended Third-Party Complaint.

On May 11, 2004, Bacci entered into a Merchant Processing Agreement with Translink and Provident Bank in which Bacci paid a fee in exchange for the provision of credit card payment services. (1st Am. Compl. ¶¶ 15, 16.) Bacci also agreed to pay a monthly fee in exchange for status as a member of the "Merchant Club," entitling Bacci to certain enhanced services. (Id.) Specifically, the Merchant Processing Agreement explains that "[i]f Merchant has opted for Merchant Club Services, BANK shall provide MERCHANT with a terminal/printer replacement service, described below, and a maximum quantity of (2) rolls of paper per quarter and (1) printer ribbon per six (6) months." (MPA § 2.6.)

Congress enacted FACTA, an amendment to the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq, on December 4, 2003. FACTA requires truncation of all electronically printed receipts no later than December 5, 2006.*fn1 15 U.S.C. § 1681c(g)(3)(A). Bacci's relationship with Translink continued during and after this date. Thus, during July 2006, Bacci requested a replacement terminal from Translink. (1st Am. Compl. ¶ 21.) Translink sent Bacci a replacement credit card processing terminal pursuant to Bacci's membership in the "Merchant Club" on July 14, 2006. (Id. ¶ 22.)

On August 11, 2007, Bacci issued a credit card receipt to Christopher D. Shurland that allegedly violated the requirements of FACTA because it did not truncate Shurland's credit card number on his receipt and because it failed to omit the expiration date of the credit card. (1st Am. Compl. ¶ 10.) On March 21, 2008, Shurland filed this class action lawsuit against Bacci, alleging a willful violation of FACTA and seeking statutory damages of between $100 and $1,000 per occurrence. Shurland alleged that Bacci issued 6,359 receipts in violation of FACTA between December 5, 2006 and October 31, 2007.*fn2

In its third-party action, Bacci alleges that Translink was under a contractual obligation to provide a credit card processing terminal to Bacci that was compliant with FACTA. (Id. ¶ ¶ 17-20, 26, 28.) Bacci also alleges that Translink breached an implied warranty of merchantability and an implied warranty of fitness for a particular purpose by failing to "repair and furnish replacement of its credit card terminal in a manner that was generally suitable for Bacci's use at its restaurant location and in compliance with industry standards and federal and state rules, regulations and statutes, including but not limited to FACTA." (Id. ¶ 47.)


National Translink Corporation has moved for judgment on the pleadings on Bacci's breach of contract and breach of implied warranties claims pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. As noted, a Rule 12(c) motion is evaluated using the same standard applicable to Rule 12(b)(6) motions to dismiss for failure to state a claim. Guise v. BWM Mortgage, LLC, 377 F.3d 795, 798 (7th Cir. 2004). Under that standard, a motion for judgment on the pleadings should be granted "only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief. In evaluating the motion, [the court] accept[s] all well-pleaded allegations in the complaint as true, drawing all reasonable inferences in favor of the plaintiff." Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir. 2004), quoting Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).

In ruling on a 12(c) motion, the court may consider documents attached to the pleadings. "The pleadings include the complaint, the answer, and any written instruments attached as exhibits." Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998). In this case, the Merchant Processing Agreement attached to the pleadings will be considered as part of the pleadings. Bacci contends that Translink has breached obligations to Bacci under that Agreement and has breached implied warranties. The court addresses these arguments in turn.

A. Breach of Contract

Bacci alleges, first, that Translink breached its contract by not providing Bacci with a credit card processing terminal that meets the requirements of FACTA. Bacci contends the terms of the Merchant Processing Agreement imposed on Translink a ...

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