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Teggerdine v. Speedway, LLC

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

May 31, 2018

KARA TEGGERDINE, individually and on behalf of all others similarly situated, Plaintiff,



         BEFORE THE COURT is Plaintiffs Motion for Class Certification (Dkt. 58), which Defendants oppose (Dkt. 65). Argument was heard on April 26, 2018. Upon consideration, Plaintiffs motion is DENIED.

         I. BACKGROUND

         This purported class action arises from the implementation of a payment processing program, the Real Time Clearing program ("RTC"), at Speedway's retail gasoline convenience stores on November 16 and 17, 2016, and the preauthorization requests and holds placed on customers' accounts who purchased gasoline at the pump.[1] Plaintiffs Amended Complaint included claims of negligence, breach of implied contract, unjust enrichment, and violations of the Florida Deceptive and Unfair Trade Practices Act. (Dkt. 48). Defendants' motion for summary judgment was granted on all claims except Plaintiff s negligence claim, and the case is proceeding on that claim. (Dkt. 94).[2]

         Plaintiff moves for class certification under Rule 23(b)(3) for this class:

All persons residing in the United States who made a gasoline purchase with a Visa payment card at a Speedway station from November 16, 2016 through and including December 31, 2016, and had a $125 authorization hold placed on their personal financial account.

         Alternatively, she seeks certification under Rule 23(c)(4) on certain issues.


         "The class action is 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, ___, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). Accordingly, the burden of establishing the propriety of class certification rests with Plaintiff, the advocate of the class, who must "affirmatively demonstrate [her] compliance with [Rule 23]." Brown v. Electrolux Home Prod., Inc., 817 F.3d 1225, 1231 (11th Cir. 2016), quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1232 (11th Cir. 2009); Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003); Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975).

         A class may be certified only if (1) the class is so numerous that joinder of all members would be impracticable; (2) there are questions of fact and law common to the class; (3) the claims of the representatives are typical of the claims of the unnamed members; and (4) the named representatives will be able to represent the interests of the class adequately and fairly. Fed.R.Civ.P. 23(a). These prerequisites to class certification are referred to as "numerosity, commonality, typicality, and adequacy of representation, " and are "designed to limit class claims to those fairly encompassed by the named plaintiffs' individual claims." Prado-Steiman exrel Prado v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000).

         In addition to the requirements of Rule 23(a), at least one of the three alternative subsections of Rule 23(b) must be satisfied. Babineau v. Fed Express Corp., 576 F.3d 1183, 1190 (11th Cir. 2009). Plaintiff seeks certification under Rule 23(b)(3), which requires her to demonstrate (1) that questions of law or fact common to class members predominate over questions affecting only individual members, and (2) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Id. Failure to establish any of the required elements of Rule 23(a) or Rule 23(b)(3) precludes class certification. Valley Drug Co., 350 F.3d at 1188 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615-18, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)).

         Evidentiary proof is required to satisfy the provisions of Rule 23. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). And, Plaintiff bears the burden of showing that the proposed class satisfies Rule 23 by a preponderance of the evidence. See Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2009); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008). Even when the parties have not contested an element of Rule 23, "a court nevertheless has the responsibility of conducting its own inquiry as to whether the requirements of Rule 23 have been satisfied in a particular case." Valley Drug, 350 F.3d at 1188.


         At the outset of the hearing, Plaintiff limited the scope of her class to a liability only class, leaving the issues of causation and damages to be determined on an individualized basis by an alternative method such as a special master. And she announced that she would seek only nominal damages.

         A. Standing

         The class certification analysis begins with the issue of standing. Prado-Steiman, 221 F.3d at 1280. "'[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members."' Id. at 1279 (citations omitted). Only after determining whether the named plaintiff has standing can it be determined whether the named plaintiff has representative capacity to assert the rights of others. Id. at 1280. "[A] plaintiff must allege and show that [s]he personally suffered injury." Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). A plaintiff must demonstrate individual standing and "be part of the class and possess the same interest and suffer the same injury as the class members." Mills v. Foremost Ins. Co., 511 F.3d 1300, 1307 (11th Cir. 2008) (quoting Prado-Steiman, 221 F.3d at 1279).

         Defendants contend that Plaintiff lacks standing as a putative class representative because she did not suffer a concrete injury, cannot represent class members injured outside Florida, and her injury from the $125 preauthorization request is distinct from a credit card user's injury, as well as those customers who had more than $125 in their bank account. Plaintiff counters that she suffered the same injury as others in the proposed class, the loss of use of her money.

         Plaintiff describes her injury as the denial of use of her funds resulting from Defendants' implementation of RTC and the $ 125 preauthorization request made by Speedway, and the time and effort she spent attempting to resolve that. This description is sufficient to show a concrete injury to sustain Article III standing.[3] See Pedro v. Equifax, Inc., 868 F.3d 1275, 1280 (11th Cir. 2017) (finding a concrete injury where plaintiff '"lost time . . . attempting to resolve the credit inaccuracies'"). Plaintiff, part of the proposed class, possesses the same interest and same injury as the proposed class members. Mills, 511 F.3d at 1307. She therefore has standing to represent the class.

         B. Adequately Defined and Clearly Ascertainable

         The next step in the rigorous class certification analysis is determining whether the proposed class is '"adequately defined and clearly ascertainable.'" Carriuolo v. Gen. Motors Co., 823 F.3d 977, 984 (11th Cir. 2016) (citation omitted). The class members must be ascertained by objective criteria. See Bussey v. Macon Cty. Greyhound Park, Inc., 562 F. App'x. 782, 787 (11th Cir. 2014). And, the process should be "administratively feasible, " meaning "that identifying class members is a manageable process that does not require much, if any, individual inquiry." Id. at 787-88 (citation omitted).

         The proposed class members, individuals residing in the United States who purchased gasoline at the pump during an identified time frame and who had a $125 authorization hold placed on their accounts, are ascertainable by administratively feasible and objective criteria. Defendants identified approximately 400, 000 VISA transactions by customers who were not notified of the $ 125 preauthorization request. Worldpay's corporate representative testified that a partial card number, the issuing bank, the transaction amount, and the transaction location can be retrieved from its records. (Fengler Dep. 55:19-57:7, Dkt. 58-8). Plaintiffs expert, Charles Marr, Esq. avers, based on his review of documents produced in discovery, that his firm is able to identify class members in a manageable process. (Marr Decl., Dkt. 58-2). And while Defendants contend that the class definition is "unworkable" because it includes individuals who "experienced no impact" from RTC, that contention goes to whether questions of individual damages predominate, not whether the class is adequately defined and clearly ascertainable. Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013). Moreover, Defendants' contention is negated by Plaintiff having limited class certification to the issue of liability and seeking only nominal damages.

         Alternatively, Defendants contend that class members are not clearly ascertainable because they do not "store or maintain full payment card numbers, " (Claar Decl. ¶ 7, Dkt. 65-6), and in order to obtain the full card number, it must "reverse engineer" one card number at a time, (Fengler Decl. ¶ 7, Dkt. 65-7). Defendants, however, do not explain why a full payment card number is necessary to identify class members or why the time and expense associated with determining the full payment card number renders the class definition administratively unfeasible.[4]See Bussey v. Macon County Greyhound Park, Inc., 562 Fed.Appx. at 788 (reports generated provided sufficient data to identify class members). Indeed, Defendants have already identified the ...

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