United States District Court, S.D. California
PERRY JOHNSON and LAYNE BUTLER, on behalf of a class of similarly situated individuals and themselves individually, Plaintiffs,
ASHLEY FURNITURE INDUSTRIES, INC., a Wisconsin Corporation; and DOES 1 through 25, inclusive, Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS & DENYING MOTION TO STRIKE
BARRY TED MOSKOWITZ, District Judge.
Defendant Ashley Furniture Industries, Inc. ("Defendant") has filed a Motion to Dismiss (Doc. 5) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure as well as a Motion to Strike immaterial references pursuant to Rule 12(f). For the reasons set forth herein, the Court GRANTS Defendant's Motion to Dismiss, and DENIES Defendant's Motion to Strike.
Ashley Furniture Industries, Inc. is a Wisconsin corporation that maintains retail furniture stores and conducts business across the country. ¶ 8. In March 2013, Plaintiff Perry Johnson visited the Ashley Furniture store located in San Marcos, California, where he purchased products from Defendant. ¶ 14. In October 2013, Plaintiff Layne Butler visited the Ashley Furniture store located in Syracuse, New York, where he purchased products from Defendant. ¶ 14. Plaintiffs entered the respective Ashley Furniture stores and chose to pay for their selected merchandise using their credit card or debit card. ¶ 15. Upon presenting their credit or debit card as payment, Defendant's employee asked each plaintiff for personal identification information in the form of their telephone number, address, or zip code. ¶ 15. Believing they were required to provide the requested information to complete the transaction, Plaintiffs provided the requested information. ¶ 15. Defendant's employee then recorded Plaintiffs' personal identification information in their point of sale system and completed the transaction. ¶ 15.
Representative and individual Plaintiffs Perry Johnson, a resident of Orange County, California, and Layne Butler, a resident of Onondaga County, New York, brought this putative class action on behalf of all persons in California and New York from whom Defendant requested, obtained, and recorded personal identification information in conjunction with credit card and debit card transactions. ¶ 6. Plaintiffs assert claims under the Song-Beverly Credit Card Act (Civil Code 1747.08, et seq. ) and N.Y. GEN. BUS. LAW § 520-a(3).
Plaintiffs allege two subclasses: 1) a California subclass, consisting of all individuals who reside in the State of California from whom Defendant obtained and recorded personal identification information in conjunction with a credit card or debit card transaction during the one year time period preceding the filing of this lawsuit, and 2) a New York subclass, consisting of all individuals who reside in the State of New York from whom Defendant obtained and recorded personal identification information in conjunction with a credit card or debit card transaction during the one year time period preceding the filing of this lawsuit. ¶ 19.
A. Requests For Judicial Notice
As a preliminary matter, Plaintiffs ask the Court to take judicial notice of seven exhibits. (Doc. 11.) Exhibits 1 through 3 are purportedly class action complaints filed in federal district courts asserting rights under similar consumer protection statutes. Rule 201(b) of the Federal Rules of Evidence provides an avenue for the Court to take judicial notice of reasonably indisputable adjudicative facts. It is not typically a mechanism for acknowledging the content of filings in other proceedings, however. M/V American Queen v. San Diego Marine Constr. Corp. , 708 F.2d 1483, 1491 (9th Cir. 1983) ("As a general rule, a court may not take judicial notice of proceedings or records in another cause so as to supply, without formal introduction of evidence, facts essential to support a contention in a cause then before it."). Since Plaintiffs have not established a direct relationship between those proceedings and this one, the Court declines to take notice of these exhibits.
Exhibits 4 through 7 are Congressional Research Service reports. The Court takes notice of these publications, but makes no findings as to assertions therein. See e.g., Experian Information Solutions, Inc. v. Lifelock, Inc. , 633 F.Supp.2d 1104 (C.D. Cal. 2009) (taking notice of Congressional report).
B. Motion to Dismiss Plaintiffs' New York Claim
N.Y. GEN. BUS. LAW § 520-a prohibits retailers from acquiring the personal identification information of customers who use a credit or debit card during a business transaction. The statute provides, in pertinent part:
(3) No... corporation which accepts credit or debit cards for the transaction of business shall require the credit or debit card holder to write on the credit or debit card transaction form, nor shall it write or cause to be written on such form or on any attachment thereto, any personal identification information, including but not limited to the credit or debit card holder's address or telephone number, that is not required by the credit or debit card issuer to complete the credit or debit card transaction[.]
(5) A violation of subdivision two, three or four of this section, if such violation constitutes the first offense by such person shall be punishable by a civil fine not to exceed two hundred fifty dollars. The second offense and any offense committed thereafter ...