The opinion of the court was delivered by: Robert W. Gettleman United States District Judge
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Plaintiff Wallace Stilz III filed a putative class action complaint against defendant Global Cash Network, Inc., alleging that defendant failed to post the automated teller machine ("ATM") fee notices required under the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et seq. ("EFTA") and its implementing Regulation E, 12 C.F.R. § 205.1 et seq. Defendant has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons discussed below, defendant's motion to dismiss is granted.
The EFTA requires ATM operators to provide customers with notice of any fees to be imposed on their ATM transactions, 15 U.S.C. § 1693b(d)(3)(D),*fn1 and prohibits ATM operators from imposing fees in connection with transactions that fail to comply with its notice requirement, § 1693b(d)(3)(C). To satisfy the EFTA's notice requirement, ATM operators must,
(1) post the fee "in a prominent and conspicuous location on or at the automated teller machine," and (2) either display the fee "on the screen of the automated teller machine" or provide it on paper "before the consumer is committed to paying a fee." 12 C.F.R. § 205.16(b). The EFTA provides for both actual and statutory damages, and allows for the recovery of costs and attorneys' fees in successful actions. § 1693m(a).
Plaintiff made cash withdrawals from four of defendant's ATMs (two on March 25, 2010, and two more on March 27, 2010), which charged plaintiff transaction fees ($3.95, $3.95, $3.00, and $3.00). At the time plaintiff withdrew money from defendant's ATMs, defendant had not posted the transaction fee on those four machines, as the EFTA requires.
On May 19, 2010, plaintiff filed a putative class action complaint. Defendant filed an amended offer of judgment, pursuant to Federal Rule of Civil Procedure 68, on July 21, 2010, which offered plaintiff $1,000 "representing statutory damages pursuant to 15 U.S.C. Sec. 1693(m)," and reasonable attorneys' fees and costs. On August 11, 2010, defendant filed the instant motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction. Plaintiff moved for class certification, pursuant to Federal Rule of Civil Procedure 23, on August 16, 2010, 26 days after defendant's amended offer of judgment.
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a court must dismiss any action over which it lacks subject matter jurisdiction. Rule 12(b)(1) motions to dismiss are premised as either facial or factual attacks on jurisdiction. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003). A factual challenge exists when "the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction." Id. In the instant case, defendant disputes the factual basis underlying plaintiff's assertion of subject matter jurisdiction.
In assessing a factual challenge to jurisdiction, "[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009), quoting Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008) (internal quotation marks and citations omitted). In a factual Rule 12(b)(1) motion, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. The party invoking jurisdiction has the burden of supporting the allegations of jurisdictional facts by competent proof. Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987).
II. Defendant's Motion to Dismiss
Defendant moves to dismiss for lack of subject matter jurisdiction, arguing that its offer of judgment, for $1,000 in statutory damages and reasonable attorneys' fees and costs, mooted plaintiff's claim by satisfying his entire demand. The EFTA's damages provisions provide for statutory damages in "an amount not less than $100 nor greater than $1,000" in an individual action, along with costs and reasonable attorneys' fees "in the case of any successful action." §§ 1693m(a)(1)(A), (a)(3). As a general rule, a plaintiff's case becomes moot "[o]nce the defendant offers to satisfy the plaintiff's entire demand." Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991) (citations omitted). At that point, "there is no dispute over which to litigate and a plaintiff who refuses to acknowledge this loses outright, under Fed. R. Civ. P. 12(b)(1), because he ...