United States District Court, D. Massachusetts
NICHOLAS DERBY, individually and on behalf of all others similarly situated, Plaintiff,
JOS. A. BANK CLOTHIERS, INC., Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS
F. DENNIS SAYLOR, IV, District Judge.
This is a putative class action involving alleged violations of Mass. Gen. Laws ch. 93, § 105(a). Jurisdiction is based on the Class Action Fairness Act of 2005, as codified at 28 U.S.C. § 1332(d)(2)(A).
Plaintiff Nicholas Derby filed a class-action complaint in Massachusetts Superior Court alleging that defendant Joseph A. Bank Clothiers, Inc., had violated Section 105(a) by requiring customers to provide "personal identification information"-specifically, the customer's zip code-when making a purchase with a credit card. The complaint further alleges that the conduct violates Mass. Gen. Laws ch. 93A as an "unfair and deceptive trade practice." The complaint requests both statutory damages and an injunction against defendant's conduct, along with reasonable litigation expenses and attorneys' fees.
Defendant has moved to dismiss for failure to state a claim or, in the alternative, for a more definite statement. For the reasons set forth below, the motions will be denied.
The following facts are presented as stated in the complaint.
The complaint states that plaintiff has been injured through the receipt of "unwanted marketing materials" from defendant as a result of having provided his zip code when making a credit-card purchase. It also alleges injury on the ground that defendant "misappropriated [his] economically valuable [personal identification information] without consideration." (Complaint, ¶ 41).
II. Procedural History
On May 8, 2014, plaintiff filed a class-action complaint in Massachusetts Superior Court. Plaintiff proposed to define the class as follows: "All persons from whom Jos. A. Bank requested and recorded personal identification information in conjunction with a credit card transaction occurring in Massachusetts, " but excluding "Jos. A. Bank and its subsidiaries and affiliates; all persons who make a timely election to be excluded from the [c]lass; governmental entities; and the judge to whom this case is assigned and any immediate family members thereof." (Complaint, ¶ 25).
The complaint requested both statutory damages (doubled or trebled under Mass. Gen. Laws ch. 93A) and an injunction against the complained-of conduct. It also sought a declaratory judgment that defendant's actions violated Mass. Gen. Laws ch. 93 § 105 and ch. 93A § 9.
Defendant removed the action to this Court. Defendant has moved to dismiss for failure to state a claim or, in the alternative, for a more definite statement.
III. Legal Standard
On a motion to dismiss, the Court "must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) ( citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (citations omitted). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is ...