Customer Data SEC. Breach Litig. Melissa Alleruzzo v. Supervalu, Inc. (In Re Supervalu, Inc.)
Opinion
In 2014, hackers accessed customer financial information from hundreds of retail grocery stores operated by SuperValu, Inc., AB Acquisition, LLC, and New Albertsons, Inc. A group of customers sued the stores. We previously affirmed dismissal of all but one of the suit's named plaintiffs for lack of standing.
See
In re SuperValu, Inc.
,
*960 motion for leave to amend their complaint. We affirm both rulings.
I
Our prior opinion summarizes the facts alleged in the consolidated amended complaint, which we accept as true.
See
Plaintiffs filed multiple putative class actions against the stores, which were consolidated. Defendants moved to dismiss, asserting that the court lacked subject-matter jurisdiction because plaintiffs lacked standing, see Fed. R. Civ. P. 12(b)(1), and that plaintiffs failed to state a claim upon which relief could be granted, see Fed. R. Civ. P. 12(b)(6). The district court granted defendants' motion under Rule 12(b)(1) and dismissed the complaint without prejudice. It concluded that none of the plaintiffs had alleged an injury in fact because the complaint's allegations were insufficient to plausibly suggest that plaintiffs were likely to suffer future identity theft. The court did not address defendants' alternative motion under Rule 12(b)(6).
Plaintiffs then filed a motion to alter or amend the judgment under Rule 59(e). Plaintiffs attached three declarations from officers of financial institutions who averred that some payment cards issued by their respective institutions incurred fraudulent charges following the data breaches. Plaintiffs' motion included a request for leave to file an amended complaint but did not attach a proposed amended pleading. The district court denied plaintiffs' Rule 59(e) motion for failing to meet the standard for newly discovered evidence. It also denied the motion for leave to amend because plaintiffs had not submitted a proposed amended complaint, as required by the court's local rules. Plaintiffs appealed the district court's dismissal for lack of subject-matter jurisdiction but did not appeal the denial of their Rule 59(e) motion.
On appeal, we affirmed the district court's dismissal of all of the named plaintiffs for lack of standing, except for David Holmes. We concluded that no plaintiff had alleged a prospective injury in fact because, as pleaded, the likelihood of future identity theft was purely speculative.
In re SuperValu
,
On remand, defendants renewed their motion to dismiss. A week later, plaintiffs filed a second motion for leave to amend. This time, plaintiffs included a proposed amended complaint that added general allegations about the likelihood of identity theft following a data breach. Many of these allegations were based on the same three affidavits plaintiffs had attached to their earlier Rule 59(e) motion. The district court denied plaintiffs' motion, reasoning that futility and undue delay compelled denial of leave to amend under Rule 15(a)(2). The court then dismissed all claims against AB Acquisition and New Albertsons because Holmes did not shop at an Albertsons store. It also found that Holmes's negligence, consumer protection, implied contract, and unjust enrichment claims all failed as a matter of law and therefore granted SuperValu's motion to dismiss in full.
II
We first address the district court's denial of plaintiffs' second motion for leave to amend. As an initial matter, the parties dispute which rules govern this motion. Defendants argue that, because the district court initially dismissed the complaint and entered judgment on January 7, 2016, plaintiffs cannot seek leave to amend their complaint unless that judgment is first set aside or vacated under Rule 59(e) or Rule 60(b). Plaintiffs contend that they need not satisfy the requirements of those rules because the court's initial dismissal was without prejudice. The district court declined to opine on whether the motion was properly construed as a postjudgment motion because, even under the more lenient standards applicable to prejudgment motions, futility and undue delay counseled against granting leave to amend under Rule 15(a)(2).
We have repeatedly explained that "[a] motion for leave to amend after dismissal is subject to different considerations than a motion prior to dismissal."
Mountain Home Flight Serv., Inc. v. Baxter Cty.
,
The district court's original dismissal constituted a final, appealable order dismissing the entire action. Plaintiffs acknowledged as much by styling their initial motion to amend as a motion under Rule 59(e) and by appealing the district court's judgment of dismissal to this court. We reversed that judgment with regard to Holmes, but we affirmed it as to every other named plaintiff. To revive those
*962
plaintiffs' claims, the original judgment must be set aside under Rule 59 or 60 before amendment can be permitted under Rule 15(a)(2).
See generally
6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure
§ 1489, at 814-24 (3d ed. 2010). Plaintiffs' proposed amendments relate only to the claims of the previously-dismissed plaintiffs; they do not contain any new allegations specific to Holmes. Thus, the motion must be treated as a postjudgment motion. We review its denial for an abuse of discretion.
Middleton v. McDonald
,
The district court did not abuse its discretion because plaintiffs' postjudgment motion is untimely. Plaintiffs filed their motion on November 7, 2017, a year and ten months after the district court's original judgment. This puts the motion well outside the 28-day limitation in Rule 59(e). See Fed. R. Civ. P. 59(e). The motion is also untimely if it is construed as a motion for relief from judgment under Rule 60(b), which must be filed within a "reasonable time" and generally within a year of the original judgment. See Fed. R. Civ. P. 60(c)(1). Accordingly, we affirm the denial of plaintiffs' motion for leave to amend.
III
We review a district court's dismissal for failure to state a claim under Rule 12(b)(6) de novo.
United States ex rel. Ambrosecchia v. Paddock Labs., LLC
,
A complaint's factual allegations do not need to be "detailed," but they must be "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action."
Twombly
,
Determining whether Holmes's well-pleaded allegations are sufficient to state a plausible claim for relief requires examination of the specific causes of action that he has asserted. Holmes brings four types of claims under Illinois law: negligence, consumer protection, implied contract, and unjust enrichment. We conclude that Holmes's allegations fall short of stating a claim for relief under each of these four theories.
A
To state a claim for negligence under Illinois law, a complaint must allege
*963
"facts that establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach."
Marshall v. Burger King Corp.
,
The parties agree that the Illinois Supreme Court has not yet addressed whether a retailer has a qualifying special relationship with its customers such that it is obligated to protect their financial information from hackers. In these circumstances, our role is to predict how that court would rule if faced with the issue.
Blankenship v. USA Truck, Inc.
,
In the alternative, Holmes argues that his negligence claim is premised on a duty imposed by federal statute, specifically the Federal Trade Commission Act (FTCA). The FTCA gives the Federal Trade Commission the authority to, among other things, enforce against "unfair or deceptive acts or practices in or affecting commerce."
Illinois courts have held that statutes "designed to protect human life or property" can establish the "standard of conduct required of a reasonable person" and therefore "fix the measure of legal duty" in a negligence action.
Noyola v. Bd. of Educ.
,
Several of these conditions are absent here. Congress empowered the Commission-and the Commission alone-to
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enforce the FTCA. Implying a cause of action would be inconsistent with Congress's anticipated enforcement scheme. Holmes points to nothing suggesting that the Commission's enforcement efforts have been inadequate to redress violations of the statute in this area. At least one court has expressly rejected the proposition that § 45(a) creates a duty enforceable through an Illinois negligence action.
See
Cmty. Bank of Trenton v. Schnuck Mkts., Inc.
,
B
The district court also dismissed Holmes's consumer-protection claims brought under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), the Illinois Personal Information Protection Act (PIPA), and the Illinois Uniform Deceptive Trade Practices Act (UDTPA). The only way to pursue a claim under PIPA is by satisfying ICFA's requirements because PIPA does not create a separate cause of action.
See
815 Ill. Comp. Stat. 530/20 ;
Best v. Malec
, No.
A claim under ICFA requires the plaintiff to have suffered "actual damage" as a result of the defendant's conduct. 815 Ill. Comp. Stat. 505/10a(a) ;
see
Avery v. State Farm Mut. Auto. Ins. Co.
,
Holmes's alleged injuries-the expenditure of time monitoring his account, the single fraudulent charge to his credit card, and the effort expended replacing his card-do not constitute actual damage. The time Holmes spent protecting himself against the threat of future identity theft does not amount to an out-of-pocket loss. We previously held that the risk of future identity theft was too speculative to create standing in this case.
In re SuperValu
,
Holmes does not directly allege that the fraudulent charge to his credit card resulted in any pecuniary loss. Instead, he asserts that we must presume that he was required to pay the fraudulent charge even though he has not directly alleged that fact. As the nonmovant, Holmes is entitled to the benefit of all reasonable inferences that may be drawn from the complaint's allegations.
Martin v. Iowa
,
We also reject Holmes's argument that the collateral source doctrine saves his ICFA claim's failure to allege pecuniary loss. "Under the collateral source rule, benefits received by the injured party from a source wholly independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor."
Wills v. Foster
,
Holmes cites no case applying the doctrine to an ICFA claim and we are skeptical that the Illinois Supreme Court would find it applicable to these circumstances. If Holmes was indemnified from any liability arising from the suspicious charge, it was through operation of federal law and his contract with the financial institution that issued his card. That contract is connected to SuperValu through a network of other agreements.
See generally
Schnuck Mkts.
,
We conclude that Holmes's UDTPA claim also fails. The only remedy available for a UDTPA claim is injunctive relief.
See
Glazewski v. Coronet Ins. Co.
,
C
The district court properly dismissed Holmes's claim for breach of an implied contract. We previously held that "the
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complaint does not sufficiently allege that plaintiffs were party to [an implied] contract" with SuperValu,
D
Holmes's remaining claim is for unjust enrichment. To state a claim of unjust enrichment in Illinois, "a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff's detriment, and that defendant's retention of the benefit violates the fundamental principles of justice, equity, and good conscience."
HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc.
,
Common sense counsels against the viability of Holmes's theory of unjust enrichment. Holmes paid for groceries, the price of which would have been the same whether he paid with cash or a credit card. He did not pay a premium "for a side order of data security and protection."
Irwin v. Jimmy John's Franchise, LLC
,
IV
The district court properly denied plaintiffs' motion for leave to amend their complaint and properly dismissed Holmes's claims under Rule 12(b)(6). The judgment of the district court is affirmed.
The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota.
Reference
- Full Case Name
- In RE: SUPERVALU, INC., Customer Data Security Breach Litigation Melissa Alleruzzo; Heidi Bell; Rifet Bosnjak; John Gross; Kenneth Hanff; David Holmes; Steve McPeak; Gary Mertz; Katherin Murray; Christopher Nelson; Carol Puckett; Alyssa Rocke; Timothy Roldan; Ivanka Soldan ; Melissa Thompkins; Darla Young, Plaintiffs - Appellants v. SuperValu, Inc.; AB Acquisition, LLC; New Albertsons, Inc., Defendants - Appellees
- Cited By
- 86 cases
- Status
- Published