United States District Court, M.D. Florida, Tampa Division
KARA TEGGERDINE, individually and on behalf of all others similarly situated, Plaintiffs,
SPEEDWAY LLC, Defendant.
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE
THE COURT is Defendant Speedway LLC s Motion to Dismiss (Dkt.
9), which Plaintiff opposes (Dkt. 20). Upon consideration,
the Motion (Dkt. 9) is DENIED.
class action stems from Speedway LLC s implementation of a
debit/credit card program at its retail gasoline convenience
stores on November 16 and 17, 2016, and the alleged
authorization holds placed on customers' accounts who
purchased gasoline at the pump with debit cards. Kara
Teggerdine visited a Speedway store on November 17, 2016 to
purchase gasoline for her vehicle. She alleges that she
purchased $5.01 worth of gasoline at the pump using her debit
card, and unbeknownst to her, Speedway placed a hold of
$125.00 on her bank account pending approval of the
transaction. The hold "wiped out the $59.70 in her bank
account, leaving her with a zero balance." (Dkt. 1
¶ 14). Later in the day, her check card was declined for
insufficient funds, and she did not have the funds to pay her
rent. (Dkt. 1 ¶¶ 14, 18). The hold on her account
was not released for approximately forty-eight hours. (Dkt. 1
¶ 17). She alleges that the hold resulted from
Speedway's implementation of the "Real Time Clearing
Program" which increased the authorization hold from $
1.00 to $ 125.00 for customers using debit cards to purchase
gasoline from the pump. She brings this class action on
behalf of herself and as a representative of the putative
class alleging negligence, breach of implied contract, unjust
enrichment, and violation of Florida's Deceptive and
Unfair Trade Practice Act, Fla. Stat. § 501.201, et
seq., ("FDUTPA"). Speedway moves pursuant to Rule
12(b)(6) to dismiss her FDUTPA claim. (Dkt. 9).
Rule of Civil Procedure 8(a)(2) requires a pleading contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief." A plaintiff must
allege "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). In evaluating a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6), the
relevant question is whether the allegations are sufficient
to allow the plaintiff to conduct discovery in an attempt to
prove the allegations, not whether the plaintiff will
ultimately prevail. See Jackam v. Hosp. Corp. of Am.
Mideast, Ltd., 800 F.2d 1577, 1579-80 (11th Cir. 1986).
complaint must be dismissed pursuant to Rule 12(b)(6) if the
complaint does not plead "enough facts to state a claim
to relief that is plausible on its face."
Twombly, 550 U.S. at 547. "[W]hen the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged, " a claim is plausible. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). For the purposes of
a motion to dismiss, all of the factual allegations contained
in the complaint must be accepted as true. Id. But,
this tenet is "inapplicable to legal conclusions."
Id. "While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations." Id. at 679.
IV - Violation of Fla. Stat. § 501.204
contends that because Plaintiff regained access to her funds
that were subject to the authorization hold, she did not
suffer actual damages as required to state a FDTJTPA claim.
Plaintiff counters that her allegations are sufficient to
state a claim.
enacting FDUTPA, "the Florida Legislature intended to
create a simplified statutory cause of action... [for]
citizens of this state to recover economic damages related to
products or services purchased in a transaction infected with
unfair or deceptive trade practices or acts." PNR,
Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d 773, 776
(Fla. 2003). "The act is intended to protect a consumer
from unfair or deceptive acts or practices which diminish the
value or worth of the goods or services purchased by the
consumer." Urling v. Helms Exterminators, Inc.,
468 So.2d 451, 454 (Fla. 1 st DCA 1985). And, the elements
required to establish a FDUTPA claim for damages are: "
1) a deceptive act or unfair practice; 2) causation; and 3)
actual damages." KC Leisure, Inc. v. Haber, 972
So.2d 1069, 1073 (Fla. 5th DCA 2008).
damages are "the difference in the market value of the
product or service in the condition in which it was delivered
and its market value in the condition in which it should have
been delivered according to the contract of the
parties." Smith v. 2001 S. Dixie Highway, Inc.,
872 So.2d 992, 994 (Fla. 4th DCA 2004) (citation and internal
quotation marks omitted). Actual damages "do not
include 'actual consequential' damages",
id, "nominal damages, speculative losses, or
compensation for subjective feelings of disappointment.
" Rollins, Inc. v. Butland, 951
So.2d 860, 873 (Fla. 2d DCA 2006).
alleges that she purchased $5.01 worth of gasoline from
Speedway, and $59.70 was held from her account. (Dkt. 1
¶¶ 13-14). In other words, Speedway initially held
$59.70 for $5.01 worth of gasoline. Granted, the additional
$54.69 was released shortly thereafter. (Dkt. 1 ¶ 17).
Still, for forty-eight hours, she alleges that she was
wrongfully denied the use of her personal
funds. (Dkt. 1 ¶ 71). At this stage, her