Robert C. Keller v. Macon County Greyhound Park, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12376 MARCH 20, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:07-cv-01098-WKW-TFM
ROBERT C. KELLER,
individually and as representative of all
other persons similarly situated,
FRANK RUSSO,
llllllllllllllllllllllllllllllllllllllll Plaintiffs-Appellants,
versus
MACON COUNTY GREYHOUND PARK, INC.,
d.b.a. Victoryland,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee,
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(March 20, 2012)
Before BARKETT, HULL, Circuit Judges, and Hinkle,* District Judge.
PER CURIAM:
Plaintiff class representative Robert C. Keller and plaintiff Frank Russo1
(the “plaintiffs”) appeal the district court’s grant of summary judgment to the
defendant Macon County Greyhound Park (“MCGP”) on the plaintiffs’ claim that
MCGP willfully violated the Fair and Accurate Credit Transactions Act
(“FACTA”). FACTA prohibits merchants from printing more than the last five
digits of a customer’s credit or debit card number on a customer’s receipt. 15
U.S.C. § 1681c(g). Under 15 U.S.C. § 1681n(a), “[a]ny person who willfully fails
to comply with [this] requirement . . . with respect to any consumer is liable to that
consumer.” In Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 56–57, 127 S. Ct.
2201, 2208–09 (2007), the Supreme Court construed “willfully” in § 1681n(a) as
including both “knowing” and “reckless” violations of FACTA. Recklessness
entails “an unjustifiably high risk of harm that is either known or so obvious that it
should be known.” Safeco, 551 U.S. at 68, 127 S. Ct. at 2215 (quotation marks
omitted).
*
Robert L. Hinkle, United States District Judge for the Northern District of Florida,
sitting by designation.
1
The district court excluded Plaintiff Russo from the Keller class because Russo’s claim
was not typical of the class.
2
In December 2007, the plaintiffs filed a single count complaint alleging that
MCGP willfully violated FACTA between October and December 2007 by issuing
receipts to the plaintiffs and other MCGP customers showing customers’ full
credit and debit card numbers. The district court granted summary judgment to
MCGP because the evidence created no issue of material fact as to whether MCGP
“willfully” violated FACTA; the evidence, if anything, showed that MCGP’s
FACTA violations were neither “knowing” nor “reckless.” See Burr, 551 U.S. at56–57, 127 S. Ct. at 2208–09.
After oral argument and review of the record, we conclude that the district
court properly granted summary judgment to MCGP.2
AFFIRMED.
2
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). We review the district court’s grant of summary judgment de novo. Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007).
3