Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Derby v. Jos. A. Bank Clothiers, Inc.

United States District Court, D. Massachusetts

December 23, 2014

NICHOLAS DERBY, individually and on behalf of all others similarly situated, Plaintiff,
v.
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.

I. Background

The following facts are presented as stated in the complaint.

On April 23, 2013, plaintiff Nicholas Derby purchased items at a Jos. A. Bank retail store in Boston, Massachusetts. He used his credit card to pay for the items. As a condition of using his credit card, he was required by defendant to enter "personal identification information associated with the credit card, including his full and complete [z]ip [c]ode." (Complaint, ¶ 13). Defendant then recorded plaintiff's zip code "into an electronic credit card transaction form." (Complaint, ¶ 15). According to the complaint, defendant "continues to store [p]laintiff's personal identification information, including [p]laintiff's name, [z]ip [c]ode, and credit card number, in its databases." ( Id. ). The complaint cites defendant's online privacy policy as stating, "[W]e may share the personal data you provide to us with our service providers; [sic] with our affiliated companies." (Complaint, ¶ 17).

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.[1] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.