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Teggerdine v. Speedway, LLC

United States District Court, M.D. Florida, Tampa Division

May 12, 2017

KARA TEGGERDINE, individually and on behalf of all others similarly situated, Plaintiffs,
v.
SPEEDWAY LLC, Defendant.

          ORDER

          JAMES D. WHITTEMORE, UNITED STATES DISTRICT JUDGE

         BEFORE 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.

         Background

         This 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").[1] Speedway moves pursuant to Rule 12(b)(6) to dismiss her FDUTPA claim. (Dkt. 9).

         Standard

         Federal 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).

         A 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.

         Count IV - Violation of Fla. Stat. § 501.204

         A. Actual Damages

         Speedway 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.

         In 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).

         Actual 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. "[2] Rollins, Inc. v. Butland, 951 So.2d 860, 873 (Fla. 2d DCA 2006).

         Plaintiff 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.[3] (Dkt. 1 ΒΆ 71). At this stage, her ...


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