United States District Court, D. Arizona
HONORABLE DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE
Amanda Nelson (“Nelson”) and Louis Fisher
“Plaintiffs”) have filed a one-count, punitive
class action lawsuit against Defendant Pacwest Energy, LLC
dba Jacksons Car Wash (“Jacksons”). Plaintiffs
seek injunctive relief and actual and statutory damages
resulting from Jacksons' violation of the Electronic Fund
Transfer Act (“EFTA”), 15 U.S.C. § 1693
et seq. The particular provision of the EFTA at
issue here states that “A preauthorized electronic fund
transfer from a consumer's account may be authorized by
the consumer only in writing, and a copy of such
authorization shall be provided to the consumer when
made.” 15 U.S.C § 1693e(a) (emphasis added).
Plaintiffs contend they were not provided a copy of their
authorization as required by the statute. (Doc. 19 at ¶
27). The EFTA allows for consumers to bring suit for
money-damages when a violation of its provisions occur, and
further authorizes consumers to obtain attorney's fees if
they are successful. See § 1693m(a).
before the Court is Jacksons' Motion to Dismiss the First
Amended Complaint (“FAC”). (Doc. 23). Jacksons
argues that Plaintiffs lack standing to bring a claim under
the EFTA. Jacksons contends that Plaintiffs did not suffer a
concrete injury as a result of Jacksons' failure to
provide Plaintiffs a copy of their written authorization at
the time Fisher purchased a monthly car wash plan. Jacksons
further argues that any such injury in fact cannot be
attributed to Jacksons.
Court originally scheduled oral argument on the matter. After
a thorough review of the parties' arguments and evidence,
however, the Court determined that additional argument would
not aid in the Court's decision. See
Fed.R.Civ.P. 78(b) (court may decide motions without oral
hearings); LRCiv 7.2(f) (same). Accordingly, the Court
vacated the hearing scheduled for July 19, 2018. For the
following reasons, the Court will now grant Jacksons'
filed their original complaint on September 22, 2017. (Doc.
1). That complaint alleged two violations of 15 U.S.C. §
1693e(a). (Id.) Specifically, Plaintiffs alleged
that Jacksons initiated preauthorized electronic fund
transfers out of their bank account without providing
Plaintiffs (1) written authorization or its equivalent to do
so; and (2) a copy of their signed, written authorization.
(Doc. 1). On November 17, 2017, Jacksons moved to dismiss
that complaint pursuant to Fed.R.Civ.P. 8(a), 12(b)(1), and
12(b)(6), or alternatively to strike Plaintiffs' class
action allegations under Rule 12(f), 23(c)(1)(A), and
23(d)(1)(D). (Doc. 14). Jacksons also requested that the
Court take judicial notice of the Automatic Recharge
Authorization Agreement signed by Plaintiff Louis Fisher (the
“Authorization”) (Doc. 15-1) attached to the
Declaration of Jacksons' Vice President Sean Storer
(“Storer”) (Doc. 15). (Doc. 16). Instead of
responding to Jacksons' motion to dismiss or the request
for judicial notice, Plaintiffs thereafter amended their
complaint. (FAC, Doc. 19). The FAC removed the claim that Jacksons
failed to obtain Fisher's written authorization to
electronically debit Plaintiffs' account, but maintained
the claim that Jacksons failed to provide Plaintiffs with a
copy of Fisher's Authorization as required by the EFTA.
(Doc. 19). Jacksons thereafter filed this Motion to Dismiss
the FAC (Doc. 23). Jacksons contends that Plaintiffs lack
standing to sue under the EFTA and as a result, this Court
lacks subject matter jurisdiction over Plaintiffs' claim.
FAC alleges that in November 2016, Fisher took his vehicle to
get a car wash at one of Jacksons' car wash locations.
(Doc. 19 ¶ 16). While there, a Jacksons employee told
Fisher that he could get a month of unlimited carwashes for
$25.00. (Id. ¶ 18). When Fisher agreed to the
purchase, the employee gave Fisher a ticket titled
“Automatic Recharge Authorization” and told him
to take it to the checkout register located within the lobby
of Jacksons' store.
Authorization provided to Fisher states in part, “I
authorize Jacksons Car Wash #8107 to charge my credit card
account $40 on a monthly basis for the Unl. VIP Sld plan. I
understand this Automatic Recharge Authorization shall remain
in force until I cancel by giving 15 days written
notice.” (Doc. 15-1). Fisher's signature is below
this language. (Id.) The Authorization also states,
“Please complete and verify your information on this
receipt and take it to the Car Wash lobby cashier to complete
your plan enrollment and receive your FAST PASS tag. Your
plan is NOT active until then.” (Id.)
instructed, Fisher took the ticket to another Jacksons
employee and paid for his purchase using a debit card owned
by Fisher and Nelson. Although he no longer contends that he
did not provide written Authorization to the transfers,
Fisher alleges that he was not provided a copy of the
Authorization at the time he made the purchase. (Doc. 19
accordance with the Authorization terms, Jacksons began to
debit a bank account owned by Fisher and Nelson on a monthly
basis in December 2016. Plaintiffs say they discovered the
monthly debits in June 2017, nearly six months later. (Doc.
19 ¶ 25). In their FAC, Plaintiffs allege that they were
unaware that Jacksons would be taking money from their bank
account on a monthly basis. (Doc. 19 ¶ 28). They also
allege that they were confused and claim they had to
“incur the time, expense, and disutility associated
with discovering why [Jacksons] had done so.”
(Id. ¶ 29). They allege that they were forced
to obtain counsel to investigate the matter and that the
failure to provide them with a copy of Fisher's signed,
written authorization exposed them to an “increased
risk of fraud.” (Id. ¶¶ 30 &
now moves to dismiss Plaintiffs' one-count Amended
Complaint under Federal Rule of Civil Procedure 12(b)(1).
Jacksons specifically argues that the Plaintiffs have failed
to establish that they have standing to sue under the EFTA.
Subject Matter Jurisdiction
challenges the factual basis for this Court's subject
matter jurisdiction. (See Doc. 23 at 6-7). When a
party makes a factual, as opposed to facial, attack on the
district court's subject matter jurisdiction under Rule
12(b)(1), as Jacksons has, the court “need not presume
the truthfulness of the plaintiffs' allegations.”
White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
Moreover, “unlike a Rule 12(b)(6) motion, in a Rule
12(b)(1) motion, the district court is not confined by the
facts contained in the four corners of the
complaint…” Americopters, LLC v. FAA,
441 F.3d 726, 732 n. 4 (9th Cir. 2006). Instead, a factual
attack contests the truth of the plaintiff's factual
allegations, “usually by introducing evidence outside
the pleadings.” NewGen, LLC v. Safe Cig, LLC,
840 F.3d 606, 614 (9th Cir. 2016) (quoting Leite v. Crane
Co., 749 F.3d 1117, 112 (9th Cir. 2014)). Unlike a
facial attack, a factual attack imposes upon the plaintiff
“an affirmative obligation to support jurisdictional
allegations with proof.” Id; see also St.
Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.
1989) (party opposing 12(b)(1) motion must “present
affidavits or any other evidence necessary to satisfy its
burden of establishing that the court, in fact, possesses
subject matter jurisdiction”) (citation omitted);
accord Savage v. Glendale Union High School, Dist. No.
205, 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003), cert.
denied, 541 U.S. 1009 (2004) (“Once the moving
party has converted the motion to dismiss into a factual
motion by presenting affidavits or other evidence properly
brought before the court, the party opposing the motion must
furnish affidavits or other evidence necessary to satisfy its
burden of establishing subject matter jurisdiction”).
Specifically, “[t]he plaintiff bears the burden of
proving by a preponderance of the evidence that each of the
requirements for subject-matter jurisdiction has been
met.” Leite, 749 F.3d at 1121; A.D. by
Carter v. Washburn, 2017 WL 1019685, at *4 (D. Ariz.
Mar. 16, 2017) (factual attacks to a plaintiff's standing
“requires the plaintiff to support its jurisdictional
allegations with competent proof, under the same evidentiary
standard applied on summary judgment”). The existence
of disputed material facts does not preclude the trial court
from evaluating the merits of jurisdictional claims, unless
those material disputed facts are intertwined with the merits
of a plaintiff's claim. White, 227 F.3d at 1242;
Leite, 749 F.3d at 1122 n.3.
support of its motion to dismiss, Jacksons furnished a
declaration from its Vice President and a copy of the
Authorization provided to Fisher. Plaintiffs do not dispute
the facts asserted therein or the authenticity of the
evidence presented by Jacksons. Instead, in support of their
opposition, Plaintiffs furnished two electronically-signed
declarations from the named Plaintiffs, Nelson and Fisher.
(Docs. 27-1 and 27-2). Jacksons objects to the Court's
consideration of these declarations on the grounds that they
are electronically signed and thus are inadmissible. (Doc. 30
argues that the Court lacks subject matter jurisdiction
because Plaintiffs have failed to establish they have
standing to sue under the EFTA. Article III provides that
federal courts may only exercise judicial power in the
context of “cases” and
“controversies.” U.S. Const. art. III, § 2,
cl. 1; Lujan, 504 U.S. at 559. For there to be a
case or controversy, the plaintiff must have standing to sue.
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)
(“Spokeo II”). See id. at n.6
(noting that even plaintiff who seek to “represent a
class must allege and show that they personally have been
injured”) (internal quotations omitted). Whether a