*1 Plaintiff Cynthia M. Fullwood brings this putative class action against Wolfgang’s Steakhouse, Inc. (“Wolfgang’s”) and ZMF Restaurants LLC (collectively, “Defendants”), for violations of the Fair and Accurate Credit Transactions Act of 2003, 15 U.S.C. §§1681-1681x (“FACTA”). Defendants have — for the fourth time — moved to dismiss the action. In 2014, Defendants moved to dismiss Plaintiff’s Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff did not adequately plead a willful violation of FACTA. The Court denied that motion in light of Plaintiff’s proposed amendments, which were subsequently filed as the Second Amended Complaint in this matter. Fullwood v. Wolfgang’s Steakhouse, Inc., No. 13 Civ. 7174 (KPF), 2014 WL 6076733 (S.D.N.Y. Nov. 14, 2014) (“Fullwood I”). In 2015, Defendants moved to dismiss the Second Amended Complaint under Rule 12(b)(6). The Court denied that motion, finding that Plaintiff had plausibly alleged a willful violation of FACTA. Fullwood v. Wolfgang’s*2
Steakhouse, Inc., No. 13 Civ. 7174 (KPF), 2015 WL 4486311 (S.D.N.Y. July 23, 2015) (“Fullwood II”).In 2016, Defendants moved to dismiss the Second Amended Complaint, this time under Federal Rule of Civil Procedure 12(b)(1) for a lack of standing in light of the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). This time, the Court granted that motion. Fullwood v. Wolfgang’s Steakhouse, Inc., No. 13 Civ. 7174 (KPF), 2017 WL 377931 (S.D.N.Y. Jan. 26, 2017) (“Fullwood III”). However, because the Second Amended Complaint had been filed pre-Spokeo, the Court granted leave to amend and instructed Plaintiff to plead facts showing she suffered a “concrete and particularized injury.” Fullwood III, 2017 WL 377931, at *7. Plaintiff filed her Third Amended Complaint (the “TAC”) on February 14, 2017.Defendants now move to dismiss the TAC under Federal Rule of Civil Procedure 12(b)(1) for a lack of standing. And they will receive now the repose they have so long sought. Plaintiff’s amendments to her pleading are no match for the rising tide of binding precedent holding that a bare procedural violation of FACTA, without more, does not confer Article III standing. For the reasons stated below, Defendants’ motion to dismiss is granted and Plaintiff’s request for leave to amend is denied.
