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Soto v. Great America LLC

United States District Court, N.D. Illinois, Eastern Division

May 24, 2018

HUGO SOTO and SHARON SOTO, individually and on behalf of similarly situated persons, Plaintiffs,


          Robert M. Dow, Jr. United States District Judge

         This matter is before the Court on Plaintiffs' motion [7] to remand this case to state court. For the reasons stated below, Plaintiffs' motion [7] is granted. The Clerk is directed to remand this case to the Circuit Court of the Nineteenth Judicial Circuit, Lake County for further proceedings. Plaintiffs' request for attorneys' fees pursuant to 28 U.S.C. § 1447(c) is denied.[1]

         I. Background

         On August 5, 2017, Plaintiffs Hugo and Sharon Soto each used their debit cards to purchase food five separate times at Defendant's Six Flags theme park. [4, Ex. B (Compl.), ¶ 4.] For each of these transactions, Plaintiffs were provided an electronically printed receipt that included the first eight digits of their debit card numbers in addition to the last four digits. [Id.]

         Several days later, Plaintiffs filed a putative class action in Illinois state court alleging that Defendant's provision of these receipts constitutes a willful violation of 15 U.S.C. § 1681c(g)(1), a provision of the Fair Credit Reporting Act (“FCRA”), as amended by the Fair and Accurate Transactions Act of 2003 (“FACTA”). [Id., ¶¶ 39-59.] The FACTA prohibits printing more than the last five digits of a credit or debit card number on an electronically printed receipt. 15 U.S.C. § 1681c(g)(1). Plaintiffs define their proposed class as: “All persons whom at a Six Flags location within the United States were provided an electronically printed receipt at the point of sale that contained more than the last five digits of their payment card's account number, from a time period beginning two years prior to the filing of this lawsuit until Six Flags stopped printing such receipts.” [4, Ex. B (Compl.), ¶ 60.]

         Regarding the harm suffered from Defendant's alleged FACTA violation, Plaintiffs claim that they retained their August 5, 2017 receipts but that they have made food purchases from Six Flags in the past and thrown those receipts away, increasing the risk that their payment card information could be compromised. Plaintiffs also allege that they lost time reviewing receipts to determine whether Defendant was in compliance with FACTA's truncation requirements. [Id., ¶¶ 5-8, 48-50.] Plaintiffs do not allege that their debit card information, or the personal information of any putative class member, has actually been compromised by Defendant's actions.

         After Plaintiffs filed their class action complaint in state court, Defendant timely removed the case to federal court on the basis of federal question jurisdiction and Class Action Fairness Act jurisdiction.[2] [See 4.] Plaintiffs responded by filed a motion to remand the case to state court on the ground that they lack Article III standing to proceed in federal court. [See 7.] Plaintiffs' motion also requests attorneys' fees pursuant to 28 U.S.C. § 1447(c).

         II. Legal Standard

         “The federal removal statute permits a defendant to remove a civil action from state court when a district court has original jurisdiction over the action.” Micrometl Corp. v. Tranzact Techs., Inc., 656 F.3d 467, 470 (7th Cir. 2011) (citing 28 U.S.C. § 1441(a)). The party invoking federal jurisdiction has the burden of establishing that it exists. See Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 404 (7th Cir. 2004) (a removing defendant must demonstrate “reasonable probability” that subject-matter jurisdiction exists). In evaluating whether to remand a case, a plaintiff's choice of forum is presumed valid, and the Court must resolve any doubts about jurisdiction in favor of remand. See, e.g., Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (“Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.”); Schmude v. Sheahan, 198 F.Supp.2d 964, 966 (N.D. Ill. 2002) (“Generally, the removal statute is strictly construed, with an eye towards limiting federal jurisdiction.”).

         III. Analysis

         Defendant makes three arguments in opposition to Plaintiffs' motion. Defendant first argues that the Court should defer determination of the motion until the Judicial Panel on Multidistrict Litigation (“JPML”) decides its motion to consolidate this action with two other similar federal lawsuits for coordinated pretrial proceedings. [18, at 4-6.] This argument has been rendered moot because the JPML denied Defendant's motion in February 2018. [See 21.]

         Defendant also argues that dismissal, not remand, is appropriate here if the Court agrees that Plaintiffs lack standing, because remand to state court would be futile. [See 18, at 6-11.] Finally, Defendant argues that if the motion to remand is granted, Plaintiffs are not entitled to an award of attorneys' fees. [Id., at 11-12.]

         A. Plaintiffs' Standing

         Neither party disputes that federal jurisdiction is lacking in this case because Plaintiffs do not have Article III standing to assert their claims. “Standing is a threshold question in every federal case because if the litigants do not have standing to raise their claims the court is without authority to consider the merits of the action.” Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724, 726 (7th Cir. 2016) (quoting Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988)); see also Groshek v. Time Warner Cable, Inc., 865 F.3d 884, 886 (7th Cir. 2017) ...

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