Robert C. Keller, et al v. Macon County Greyhound Park, Inc., No. 11-12376 (11th Cir. 2012)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS No. 11-12376 ________________________ ELEVENTH CIRCUIT 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. at 56 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
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