Keith v. Data Enters.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/26/2019 08:06 AM CDT
- 23 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
Brady K eith, on behalf of himself and all
others similarly situated, appellant, v.
Data Enterprises, Inc., appellee.
___ N.W.2d ___
Filed March 19, 2019. No. A-17-654.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
2. ____: ____. When reviewing an order dismissing a complaint, the appel-
late court accepts as true all facts which are well pled and the proper and
reasonable inferences of law and fact which may be drawn therefrom,
but not the plaintiff’s conclusions.
3. Limitations of Actions: Pleadings. A challenge that a pleading is
barred by the statute of limitations is a challenge that the pleading fails
to allege sufficient facts to constitute a claim upon which relief can
be granted.
4. Motions to Dismiss: Pleadings. To prevail against a motion to dis-
miss for failure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim to relief that is plausible on its face.
5. Limitations of Actions: Pleadings. If a complaint on its face shows that
the cause of action is time barred, the plaintiff must allege facts to avoid
the bar of the statute of limitations.
6. Limitations of Actions: Contracts. Generally, there is a 5-year statute
of limitations on a written contract.
7. ____: ____. An action on an oral contract can only be brought within
4 years.
8. Actions: Contracts: Time: Damages. A cause of action in contract
accrues at the time of breach or the failure to do the thing agreed to.
This is so even though the nature and extent of damages may not
be known.
9. Limitations of Actions: Negligence. The statute of limitations for neg-
ligence and negligent misrepresentation is 4 years.
10. Limitations of Actions: Negligence: Torts. In a negligence action, it
has generally been stated that a statute of limitations begins to run as
- 24 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
soon as the cause of action accrues, and an action in tort accrues as soon
as the act or omission occurs.
11. Federal Acts: Contribution. Where a third-party complaint seeks
indemnification or contribution for violation of a federal statute, federal
law applies.
12. Federal Acts: Contribution: Liability. A defendant held liable under
a federal statute has a right to indemnification or contribution from
another only if such right arises: (1) through the affirmative creation of
a right of action by Congress, either expressly or implicitly, or (2) under
the federal common law.
13. Federal Acts: Contribution. The Fair Credit Reporting Act does not
contain any language expressly providing for contribution or indemnity.
14. Federal Acts: Intent: Appeal and Error. In determining whether a
federal statute that does not expressly provide for a particular private
right of action nonetheless implicitly created that right, an appellate
court’s task is one of statutory construction. The ultimate question in
cases such as this is whether Congress intended to create the private
remedy that the plaintiff seeks to invoke. Factors relevant to this
inquiry are the language of the statute itself, its legislative history, the
underlying purpose and structure of the statutory scheme, and the like-
lihood that Congress intended to supersede or to supplement existing
state remedies.
15. Federal Acts. The Fair Credit Reporting Act has not been found to sup-
port an implied right to indemnity.
16. Courts. The U.S. Supreme Court has recognized the need and author-
ity in some limited areas to formulate what has come to be known
as federal common law. These instances are few and restricted, and
fall into essentially two categories: those in which a federal rule of
decision is necessary to protect uniquely federal interests and those
in which Congress has given the courts the power to develop substan-
tive law.
17. ____. Absent some congressional authorization to formulate substantive
rules of decision, federal common law exists only in such narrow areas
as those concerned with the rights and obligations of the United States,
interstate and international disputes implicating the conflicting rights of
states or our relations with foreign nations, and admiralty cases.
18. Courts: Contribution. The only federal interest in contribution or
indemnification is the vindication of federal statutory rights, but because
that interest does not involve the duties of the federal government, the
distribution of powers in our federal system, or matters necessarily
subject to federal control even in the absence of statutory authority, it is
insufficient to ground a federal common law cause of action.
- 25 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
19. Judgments: Appeal and Error. If a trial court arrives at the correct
result even though it uses a reason different from that expressed by an
appellate court, its judgment will still be upheld.
20. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Affirmed.
Joshua C. Dickinson, of Spencer Fane, L.L.P., for appellant.
Colin A. Mues and Emily R. Motto, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., for appellee.
R iedmann, Bishop, and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Brady Keith appeals from the decision of the district court
for Lancaster County which granted the motion to dismiss of
Data Enterprises, Inc., for failure to state a claim upon which
relief could be granted. We affirm.
II. BACKGROUND
1. Basis of Case
This case arose from the printing of credit and debit card
expiration dates on the printed receipts issued to customers
of a Lincoln, Nebraska, restaurant. Showing the expiration
date on the receipt was a violation of federal law. The Fair
and Accurate Credit Transactions Act of 2003 (FACTA), Pub.
L. No. 108-159, 117 Stat. 1952, is an act to amend the Fair
Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. (2012),
“to prevent identity theft, improve resolution of consumer
disputes, improve the accuracy of consumer records, make
improvements in the use of, and consumer access to, credit
information, and for other purposes.” As relevant here, § 113
of FACTA amended 15 U.S.C. § 1681c of FCRA by adding
subsection (g). Thus, 15 U.S.C. § 1681c(g) states in part:
- 26 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
(g) Truncation of credit card and debit card numbers
(1) In general
Except as otherwise provided in this subsection, no
person that accepts credit cards or debit cards for the
transaction of business shall print more than the last 5
digits of the card number or the expiration date upon any
receipt provided to the cardholder at the point of the sale
or transaction.
(Emphasis in original.)
2. Factual Background
Because this appeal arises from the district court’s order
granting a motion to dismiss for failure to state a claim, the
facts considered are those alleged in Keith’s complaint.
Back Yard Burgers of Nebraska, Inc. (BYBN), owned
and operated several food retail locations in several cities in
Nebraska, including one on Andermatt Drive in Lincoln.
Data Enterprises is a Tennessee corporation engaged in the
business of providing services and equipment for the process-
ing of credit and debit card transactions. Data Cash Register
Co. is the predecessor to Data Enterprises. (Data Enterprises
will be referred to hereinafter as “DCR,” as it was prior to this
appeal and in the parties’ briefs on appeal.)
Because BYBN lacked the expertise to process credit and
debit card transactions, it entered into an agreement with
DCR, whereby DCR agreed to process credit card transactions
for BYBN and to issue receipts for such transactions. DCR
was “fully and solely responsible for establishing a system at
BYBN’s retail location” to process credit or debit card transac-
tions and to issue receipts for such transactions in compliance
with state and federal law.
DCR first installed systems to process credit or debit card
transactions at BYBN’s locations in June 2005. Thereafter,
BYBN entered into yearly support agreements with DCR
whereby DCR agreed to provide support and maintenance for
the systems installed by DCR. The yearly support agreements
were in effect from August 15 of a given year until August 14
- 27 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
of the following year. BYBN entered into yearly support agree-
ments with DCR every year starting on August 15, 2007, until
August 15, 2010. Thus, DCR was required to provide support
and maintenance to BYBN from August 15, 2007, until August
14, 2011.
The support and maintenance under the yearly support
agreements was provided by Merchant Link, a third party, but
BYBN contracted with DCR and made all payments to DCR,
not to Merchant Link. Merchant Link acted on behalf of DCR
in providing support under the yearly support agreements.
Between August 15, 2007, and August 14, 2011, Keith, “and
thousands of other customers, used a debit or credit card to
make purchases” at BYBN’s Andermatt location. In each pur-
chase that occurred between those dates, customers were given
a DCR-generated cash register receipt displaying the expiration
date of the customer’s card.
3. Procedural Background
(a) Federal Action
On May 25, 2011, Keith filed his “First Amended
Complaint” against BYBN in the U.S. District Court for the
District of Nebraska, “See Case 8:11-CV-00135, Doc. 15.”
The federal complaint alleged that BYBN violated FACTA
by issuing receipts displaying the last four digits of custom-
ers’ credit and debit cards, as well as the expiration date for
those cards. The federal complaint also sought to certify a
“Class” composed of “‘all persons who used either a Visa or
MasterCard debit or credit card, or American Express credit
card at the Andermatt Location, where BYBN provided an
electronically printed receipt at the point of sale or transaction
that displayed the expiration date of that person’s credit or
debit card . . . .’”
BYBN sent a demand letter to DCR on July 1, 2011, claim-
ing that DCR was required to indemnify BYBN for any liabil-
ity attributable to BYBN due to DCR’s failure to comply with
FACTA, “‘and urging DCR to participate in the negotiations
- 28 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
between BYBN and [Keith].’” DCR sent a responsive letter on
July 15 denying liability to BYBN and refusing to participate
in negotiations. (There is no allegation that any attempt was
made to bring DCR in as a party in the federal lawsuit.)
On July 1, 2014, Keith, “on behalf of thousands of custom-
ers that were certified as a Class,” entered into a settlement
agreement with BYBN. In the settlement agreement, BYBN
agreed to the “‘entry of a Consent Judgment’” against them
and in favor of Keith on behalf of the “‘Class’” in the amount
of $2,792,400. The settlement agreement states, in part:
“BYBN agrees to fully and unconditionally quitclaim
assign to [Keith] any claim it may have against [DCR]
based on or arising out of [Keith’s] and the Class mem-
bers’ claims against BYBN, including but not limited to
any claims it may have for contribution, indemnity, fraud,
negligence, breach of contract, any statutory claims under
federal, state or local law, and any other claims related in
any way to BYBN’s violations of FACTA as alleged by
[Keith] in this matter.”
And Keith agreed that “‘as a precondition to any efforts to
collect any monies from BYBN under this Agreement, [Keith]
shall first exhaust any and all reasonable efforts to collect the
judgment against DCR.’”
The settlement agreement, which “was the result of exten-
sive negotiations between [Keith’s] counsel, on behalf of the
Class, and BYBN” and “involved a neutral mediator,” was
“carefully . . . reviewed and approved by the United States
District Court for the District of Nebraska”; final approval was
given on February 20, 2015.
(b) Current Action
On August 31, 2016, Keith, “[o]n behalf of himself and all
others similarly situated,” filed a complaint against DCR in the
district court for Lancaster County. The complaint states the
action was brought “to enforce a judgment assigned to [Keith]
by [BYBN], meant to redress DCR’s wrongful disclosure
- 29 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
of [Keith’s] personal financial information.” The complaint
alleged breach of contract (count I), breach of contract (acts
of Merchant Link as agent for DCR) (count II), negligence
(count III), indemnity (count IV), negligent misrepresentation
(count V), and violation of Nebraska’s Uniform Deceptive
Trade Practices Act (UDTPA) (count VI). In each count, Keith
prayed for judgment against DCR “in the amount of the
Consent Judgment, $2,792,400, plus pre-judgment interest,
post-­judgment interest, for its costs incurred herein, including
reasonable attorneys’ fees,” and for such other relief as the
court deemed just and proper.
On November 4, 2016, DCR filed a motion to dismiss each
of Keith’s claims pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6),
for failure to state a claim upon which relief can be granted.
DCR specifically alleged that Keith’s claims for breach of
contract, breach of contract (acts of Merchant Link as agent
for DCR), negligence, negligent misrepresentation, and viola-
tion of UDTPA were all barred by the applicable statute of
limitations. DCR further alleged that as to all claims, “the
purported class action does not meet the commonality require-
ment or show that [Keith] can satisfy any judgment on behalf
of the class.”
A hearing on the motion to dismiss was held in January
2017. The district court subsequently filed its “Order of
Dismissal” on May 24. In its order, the district court found that
Keith’s claims for breach of contract, breach of contract (acts
of Merchant Link as agent for DCR), negligence, negligent
misrepresentation, and violation of UDTPA were all barred by
the applicable statute of limitations. The court further found
that based on the allegations, the settlement, equitable prin-
ciples, and principles of law, Keith’s claim for indemnification
failed to state a claim upon which relief could be granted, and
that such failure could not be cured by amendment. Finally, the
court found the complaint failed to state a claim on behalf of a
class. The court dismissed the complaint with prejudice.
Keith appeals.
- 30 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
III. ASSIGNMENTS OF ERROR
Keith assigns that the district court erred in (1) “determin-
ing that there was no genuine issue of material fact despite
[Keith’s] well-pleaded facts regarding indemnity in each claim
causing the court to find that the statute of limitations ran
at an earlier, dispositive date” and (2) denying his “overall
indemnity claim by making a greater factual determination
regarding the parties’ relationship that went well beyond a
court’s role in a motion to dismiss.”
IV. STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo. Tryon v. City of North Platte, 295 Neb. 706,
890 N.W.2d 784 (2017). When reviewing an order dismissing
a complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plaintiff’s
conclusions. Id.
V. ANALYSIS
1. Statute of Limitations
Keith claims that the district court erred in determining that
the statute of limitations had run on counts I, II, III, and V. He
does not challenge the district court’s determination that count
VI (violation of UDTPA) was time barred.
[3-5] DCR raised the statute of limitations issue within its
motion to dismiss pursuant to § 6-1112(b)(6) of Nebraska’s
pleading rules. A challenge that a pleading is barred by the
statute of limitations is a challenge that the pleading fails to
allege sufficient facts to constitute a claim upon which relief
can be granted. Anthony K. v. Nebraska Dept. of Health &
Human Servs., 289 Neb. 540, 855 N.W.2d 788 (2014). To pre-
vail against a motion to dismiss for failure to state a claim, a
plaintiff must allege sufficient facts, accepted as true, to state
a claim to relief that is plausible on its face. Id. As such, if a
complaint on its face shows that the cause of action is time
- 31 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
barred, the plaintiff must allege facts to avoid the bar of the
statute of limitations. Id.
(a) Breach of Contract—Counts I and II
In count I of his complaint, Keith alleged that DCR breached
its contract with BYBN
for installation of the point of sale system by failing to
program the point of sale terminals so that BYBN was
not in violation of any federal, state or local law, includ-
ing that any customer receipt would mask the expiration
dates for credit and debit card receipts in order to not
violate FACTA.
His complaint alleged that DCR first installed systems to proc­
ess credit or debit card transactions in June 2005.
In count II of his complaint, Keith alleged that DCR
breached the yearly support agreements with BYBN by failing
to provide the compliance service offered by Merchant Link
(as agent of DCR), which resulted in FACTA violations. His
complaint alleged that the FACTA violations occurred between
August 15, 2007, and August 14, 2011.
[6-8] Generally, there is a 5-year statute of limitations on
a written contract. See Neb. Rev. Stat. § 25-205(1) (Reissue
2016). An action on an oral contract can only be brought
within 4 years. See Neb. Rev. Stat. § 25-206 (Reissue 2016). A
cause of action in contract accrues at the time of breach or the
failure to do the thing agreed to. Irving F. Jensen Co. v. State,
272 Neb. 162, 719 N.W.2d 716 (2006). This is so even though
the nature and extent of damages may not be known. Id.
The district court found that based on the allegations in the
complaint, the latest point a breach of contract could have
occurred was on August 14, 2011, which means that the 5-year
statute of limitations would have run on August 14, 2016.
Keith did not file his complaint against DCR until August 31,
which was more than 5 years after any alleged breach. The
district court noted that the complaint did not include any
allegations that the applicable statute of limitations should be
tolled. Accordingly, the district court found that counts I and II
- 32 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
were time barred by § 25-205 and failed to state a claim upon
which relief could be granted.
(b) Negligence and Negligent
Misrepresentation—Counts III and V
In count III of his complaint, Keith alleged that DCR
was negligent when it installed the point-of-sale systems for
BYBN, which resulted in “the issuance of customer receipts
for debit and/or credit card transactions” that were in violation
of FACTA. He also alleged that DCR was negligent when it
provided deficient support through Merchant Link that resulted
in “the issuance of customer receipts for debit and/or credit
card transactions” that were in violation of FACTA. And as
noted previously, his complaint alleged that DCR first installed
systems to process credit or debit card transactions in June
2005 and that the FACTA violations occurred between August
15, 2007, and August 14, 2011.
In count V of his complaint, Keith alleged that DCR neg-
ligently misrepresented to BYBN that DCR possessed the
knowledge and expertise to install point-of-sale systems for
the processing of credit and debit card transactions that would
ensure compliance with state and federal laws. Keith further
alleged that DCR negligently misrepresented to BYBN that
DCR and Merchant Link, its agent, possessed the knowl-
edge and expertise to provide support maintenance that would
ensure compliance with state and federal laws. Keith alleged
DCR’s representations were not true because DCR’s instal-
lation of the point-of-sale systems and subsequent support
maintenance of the systems did not result in compliance with
FACTA. Again, his complaint alleged that DCR first installed
systems to process credit or debit card transactions in June
2005 and that the FACTA violations occurred between August
15, 2007, and August 14, 2011.
[9,10] The statute of limitations for negligence and negligent
misrepresentation is 4 years. See Neb. Rev. Stat. § 25-207(3)
(Reissue 2016). In a negligence action, it has generally been
stated that a statute of limitations begins to run as soon as the
- 33 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
cause of action accrues, and an action in tort accrues as soon
as the act or omission occurs. Shlien v. Board of Regents, 263
Neb. 465, 640 N.W.2d 643 (2002).
The district court found that based on the allegations in
the complaint, the latest point in which negligence by DCR
could have occurred was on August 14, 2011, which means
that the 4-year statute of limitations would have run on August
14, 2015. Keith did not file his complaint against DCR until
August 31, 2016, which was more than 4 years after any
alleged negligence. The district court noted that the complaint
did not include any allegations that the applicable statute of
limitations should be tolled. Accordingly, the district court
found that counts III and V were time barred by § 25-207 and
failed to state a claim upon which relief could be granted.
(c) Counts I, II, III, and V
Barred by Statute of Limitations
We agree with the district court that counts I, II, III, and
V are barred by their applicable statute of limitations. Keith
acknowledges that “the [district] court was correct in its
determination of the length of the statute of limitations for
breach of contract and tort claims in Counts I, II, III and V,”
but contends that the district court “did not take into consid-
eration the basis of these Counts are indemnification claims,
which control when the statute runs.” Brief for appellant at
3. And “‘Nebraska has long held that a claim for indemnity
accrues at the time the indemnity claimant suffers loss or
damage.’” Id. at 4 (quoting Dutton-Lainson Co. v. Continental
Ins. Co., 271 Neb. 810, 716 N.W.2d 87 (2006)). “The statute
of limitations for indemnification claims is extended since
indemnity claims are an ‘inchoate right which do not arise
until one tort feasor has paid more than his share of the dam-
ages or judgment.’” Brief for appellant at 4 (quoting City of
Wood River v. Geer-Melkus Constr. Co., 233 Neb. 179, 444
N.W.2d 305 (1989)).
Although the holding in City of Wood River supports a
claim for indemnification filed after the applicable statute of
- 34 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
limitations for the underlying claim, it does not support the
preservation of the separate claims alleged here. In City of
Wood River, the city brought a breach of contract action against
the contractor of a wastewater treatment facility after the facil-
ity’s aeration system broke down and could not be repaired.
The contractor filed a third-party complaint against the manu-
facturer and supplier of an aeration system for the facility. The
district court found that the third-party complaint was barred
by the statute of limitations. On appeal, the Nebraska Supreme
Court said that before it could determine whether the statute of
limitations barred the contractor’s third-party claim, the court
needed to determine whether the contractor sought damages on
a breach of warranty or sought indemnification. It determined
that even though the third-party claim did not specifically ask
for indemnity, and instead asked for damages for breach of
warranty, it was evident from the pleading that if the contrac-
tor suffered damages because of the manufacturer’s failure to
fulfill its contractual obligation, it would look to the manufac-
turer for payment of their loss; thus, the third-party complaint
raised an indemnification cause of action. The Supreme Court
noted, “A duty to indemnify will always arise out of another
more basic obligation whether it arises on contract or tort.” Id.
at 184, 444 N.W.2d at 309.
Keith cannot save any separate causes of action for contract
and tort against DCR by trying to retitle them as indemnity
claims; the district court properly concluded that these claims
were barred by the statute of limitations. However, Keith pled
a separate count of indemnity, and his indemnity claim will be
addressed in its own right. Notably, the district court did not
find that Keith’s indemnity claim was time barred.
2. Indemnification—Count IV
In count IV of his complaint, specifically referred to as
“indemnity,” Keith alleged in relevant part:
83. Under the terms of the Consent Judgment, BYBN
is legally obligated to pay damages to the Class in the
amount of $2,792,400.
- 35 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
84. DCR’s breach of contract, negligent and/or reck-
less acts by itself and through its agent Merchant Link
were the cause of BYBN’s FACTA violations because
DCR agreed to assure FACTA compliant receipts for
transactions between BYBN and its customers both in
installing the point of sale system and through the Yearly
Support Agreements.
85. BYBN was unaware that it was not in compliance
with FACTA because it relied on the assurance of DCR
and DCR’s agent.
86. DCR owes a legal duty to indemnify BYBN for
any violations of state or federal law.
87. DCR’s failure to indemnify BYBN would be unjust.
Keith contends he “alleged two separate bases in Count IV
for DCR’s duty to indemnify BYBN under Nebraska law: (1)
that DCR had an implied contractual duty to indemnify BYBN
under its Yearly Support Agreement with BYBN, and (2) DCR
had an implied-at-law duty to indemnify BYBN.” Brief for
appellant at 5. For various reasons, the district court found that
Keith failed to state a claim for indemnity upon which relief
could be granted.
We need not address the parties’ arguments or the district
court’s analysis on indemnity, because such arguments and
analysis were based on state law remedies, and we find that
federal law is applicable and dispositive. Although not raised
by the parties or by the district court, we conclude federal law
does not provide Keith, standing in the place of BYBN, a right
of indemnity against DCR under FACTA.
[11,12] Where a third-party complaint seeks indemnifica-
tion or contribution for violation of a federal statute, federal
law applies. McMillan v. Equifax Credit Information Services,
153 F. Supp. 2d 129 (D. Conn. 2001). “A defendant held liable
under a federal statute has a right to indemnification or contri-
bution from another only if such right arises: (1) through the
affirmative creation of a right of action by Congress, either
expressly or implicitly, or (2) under the federal common law.”
- 36 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
Doherty v. Wireless Broad. Sys. of Sacramento, 151 F.3d 1129,
1130-31 (9th Cir. 1998). See, also, Green v. United States
Dept. of Labor, 775 F.2d 964, 971 (8th Cir. 1985) (“a defend­
ant held liable under a federal statute has no standing to sue
others who have also violated the statute unless (1) the federal
statute expressly or implicitly provides for such an action, (2)
Congress empowered federal courts to develop substantive law
under the statute, or (3) a right of contribution or indemnity is
necessary to protect a uniquely federal interest”).
[13,14] “FCRA [does not] contain any language expressly
providing for contribution or indemnity.” McSherry v. Capital
One FSB, 236 F.R.D. 516, 520 (W.D. Wash. 2006). See, also,
In re Ameriquest Mortgage Co. v. Mortg. Lending, 589 F. Supp.
2d 987, 993 (N.D. Ill. 2008) (“[l]ike FCRA, TILA [Truth in
Lending Act] does not expressly authorize Ameriquest to seek
indemnification or contribution from Third-Party Defendants”).
Thus, the next question is whether Congress implicitly created
a right to indemnification in FCRA cases. “In determining
whether a federal statute that does not expressly provide for a
particular private right of action nonetheless implicitly created
that right, our task is one of statutory construction.” Northwest
Airlines, Inc. v. Transport Workers, 451 U.S. 77, 91, 101 S. Ct.
1571, 67 L. Ed. 2d 750 (1981). The ultimate question in cases
such as this is whether Congress intended to create the private
remedy that the plaintiff seeks to invoke. Id. Factors relevant
to this inquiry are the language of the statute itself (e.g., does
the language of the statute indicate it was enacted for the
special benefit of a class of which petitioner is a member);
its legislative history; the underlying purpose and structure of
the statutory scheme (comprehensive character of the remedial
scheme expressly fashioned by Congress strongly evidences an
intent not to authorize additional remedies); and the likelihood
that Congress intended to supersede or to supplement existing
state remedies. See id.
[15] FCRA has not been found to support an implied right
to indemnity. See Conner v. Howe, 344 F. Supp. 2d 1164, 1171
- 37 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
(S.D. Ind. 2004) (“neither the FDCPA [Fair Debt Collection
Practices Act] nor its sister act, [FCRA], has been found to
support an express or implied right to indemnity or contribu-
tion”). Congress’ intent in enacting FCRA was to protect con-
sumers. McSherry v. Capital One FSB, supra. And as relevant
to the case before us, § 113 of FACTA amended 15 U.S.C.
§ 1681c of FCRA by adding subsection (g) to help prevent
identity theft of credit and debit cardholders by requiring the
truncation of credit and debit card numbers and the elimination
of the card’s expiration date on electronically printed receipts
provided at the point of the sale or transaction; thus, it is clear
it was enacted to protect cardholders. BYBN is not the card-
holder here; rather, BYBN, the party seeking indemnification
(remembering that Keith has stepped into the shoes of BYBN),
is a member of the class of entities whose behaviors Congress
sought to regulate to protect cardholders. Therefore, it cannot
be said that BYBN is a member of the class for whose benefit
FACTA was enacted. See, generally, McSherry v. Capital One
FSB, supra. Courts have also held that indemnity actions are
not appropriate under FCRA because the comprehensive statu-
tory scheme provided by FCRA demonstrates that Congress did
not intend to provide an indemnification remedy. See McSherry
v. Capital One FSB, supra.
[16,17] Because Congress neither expressly nor implicitly
intended to create a right to indemnification, if any right
to indemnification exists, its source must be federal com-
mon law.
There is, of course, “no federal general common law.”
. . . Nevertheless, the Court has recognized the need
and authority in some limited areas to formulate what
has come to be known as “federal common law.” . . .
These instances are “few and restricted,” . . . and fall
into essentially two categories: those in which a federal
rule of decision is “necessary to protect uniquely federal
interests,” . . . and those in which Congress has given the
courts the power to develop substantive law . . . .
- 38 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630,
640, 101 S. Ct. 2061, 68 L. Ed. 2d 500 (1981) (citations omit-
ted) (antitrust laws case involving rights of contribution).
[A]bsent some congressional authorization to formulate
substantive rules of decision, federal common law exists
only in such narrow areas as those concerned with the
rights and obligations of the United States, interstate and
international disputes implicating the conflicting rights
of States or our relations with foreign nations, and admi-
ralty cases.
Id., 451 U.S. at 641.
Admittedly, there is a federal interest in the sense that vin-
dication of rights arising out of these congressional enact-
ments [of antitrust laws] supplements federal enforce-
ment and fulfills the objects of the statutory scheme.
Notwithstanding that nexus, contribution among antitrust
wrongdoers does not involve the duties of the Federal
Government, the distribution of powers in our federal
system, or matters necessarily subject to federal control
even in the absence of statutory authority. . . . In short,
contribution does not implicate “uniquely federal inter-
ests” of the kind that oblige courts to formulate federal
common law.
Id., 451 U.S. at 642.
[18] The reasoning of Texas Industries, Inc. v. Radcliff
Materials, Inc., supra, also applies to indemnification. See
Meyers v. Freedom Credit Union, No. CIV.A. 05-3526, 2007
WL 2753172 at *8 (E.D. Pa. Sept. 21, 2007) (“[m]uch as in
Texas Industries, the only federal interest in contribution or
indemnification is the vindication of federal statutory rights,
but because that interest ‘does not involve the duties of the
Federal Government, the distribution of powers in our fed-
eral system, or matters necessarily subject to federal control
even in the absence of statutory authority,’ it is insufficient to
ground a federal common law cause of action. . . . Similarly,
FCRA contains no delegation to the courts of the power to
- 39 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
create additional or supplementary liabilities”). See, also, In
re Ameriquest Mortgage Co. v. Mortg. Lending, 589 F. Supp.
2d 987, 994, 994 n.11 (N.D. Ill. 2008) (“[a]s with FCRA, we
find no such compelling reason to extend federal common
law to allow a claim for equitable indemnity or contribution
for alleged TILA violations” and “‘[a]lthough the decision in
Texas Industries only addressed the right of contribution, the
legal framework established . . . has been extended to indem-
nification.’ Kudlicki v. MDMA, Inc., No. 05-2589, 2006 WL
1308617, at *3 (N.D.Ill. May 10, 2006)”).
[19] In sum, Keith, standing in the place of BYBN, does
not have a right to indemnification from DCR under FACTA
because such right was neither expressly or implicitly cre-
ated by Congress, nor was the right one of federal common
law. Although our reasoning differs from that of the district
court, we agree that Keith failed to state a claim for indemnity
upon which relief could be granted. If a trial court arrives at
the correct result even though it uses a reason different from
that expressed by this court, its judgment will still be upheld.
Logan Ranch v. Farm Credit Bank, 238 Neb. 814, 472 N.W.2d
704 (1991).
Although Keith, standing in the place of BYBN, did not
have a right to indemnification from DCR, federal law does
not prohibit a separate breach of contract claim or a separate
tort claim, and Keith did in fact bring such claims against
DCR. However, as discussed previously in this opinion, Keith
did not file his separate contract and tort claims within the
applicable statute of limitations.
3. Class Action
[20] Keith’s final argument relates to the finding by the dis-
trict court that the complaint failed to state a claim on behalf
of a class. However, because we have already determined that
Keith has failed to state a claim for relief as to all counts in
his complaint, we need not determine whether Keith needed to
plead this state court case as a class action. An appellate court
- 40 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
KEITH v. DATA ENTERS.
Cite as 27 Neb. Ct. App. 23
is not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it. Weatherly v.
Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018).
VI. CONCLUSION
For the reasons stated above, we find that Keith has failed to
state a claim upon which relief can be granted and we therefore
affirm the district court’s order dismissing Keith’s complaint
with prejudice.
A ffirmed.