                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0449n.06

                                      Nos. 17-5992/17-5998

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 KEVIN THOMPSON, on behalf of himself and all    )
 others similarly situated,                      )
                                                 )
                                                                               FILED
                                                                         Aug 29, 2018
       Plaintiff-Appellant,                      )
                                                                     DEBORAH S. HUNT, Clerk
                                                 )
 v.                                              )
                                                 )
 LOVE’S TRAVEL STOPS & COUNTRY STORES, )
 INC.,                                           )
                                                 )
                                                              ON APPEAL FROM THE
       Defendant-Appellee.                       )
                                                              UNITED STATES DISTRICT
                                                 )
                                                              COURT FOR THE EASTERN
                                                 )
                                                              DISTRICT OF TENNESSEE
 NOLAN C. DARBY; LAURIE ANDERSON;                )
 CHASE MOSELY; DORENE IVY,                       )
                                                              OPINION
                                                 )
       Plaintiffs-Appellants,                    )
                                                 )
 v.                                              )
                                                 )
 PILOT CORPORATION; PILOT TRAVEL                 )
 CENTERS, LLC, doing business as Pilot Flying J, )
                                                 )
       Defendants-Appellees.                     )



       Before: GIBBONS, BUSH, and LARSEN, Circuit Judges.

       JOHN K. BUSH, Circuit Judge. Time was, just about anywhere you drove, you could

pump your gas first (or even have it pumped for you) and then pay for it afterwards. Time was,

gas cost less than a buck a gallon.

       Times changed. Nowadays, to stave off fuel theft, pay-at-the-pump devices commonly ask

customers either to prepay inside or to insert a payment card before pumping, allowing the gas
Nos. 17-5992/17-5998, Thompson v. Love’s Travel Stops & Country Stores, Inc., et al.


station to validate the card and to obtain preauthorization from the card issuer to charge the

customer for the forthcoming transaction. When a pay-at-the-pump customer uses a credit card,

this preauthorization process holds a fixed amount of available credit before the pump dispenses

any fuel. The hold is released at some time after the transaction is completed, when the actual

amount of the transaction posts as a settled charge to the customer’s account.

         Plaintiffs in this pair of putative class-action lawsuits allege that Defendants (operators of

convenience stores and gas stations) preauthorize too much (up to $125 per transaction for

passenger vehicles) for too long (several days) and without adequate notice. But Plaintiffs have

alleged only the abstract injury of the loss of their available credit pending release of the

preauthorization holds. No Plaintiff has alleged any concrete injury arising from that temporary

loss of available credit. Plaintiffs therefore lack standing to assert their claims, so we affirm the

district court’s order dismissing their actions. Because this dismissal is for want of jurisdiction,

however, we remand for the district court to enter its order without rather than with prejudice.

                                                            I

         The proposed class representatives are citizens of various states who allege that they made

purchases from Defendants in amounts ranging from $14.75 to $47.99 but were subjected to

preauthorization holds of up to $125 on their credit-card accounts.1 Plaintiffs assert claims for

breach of implied-in-fact contract, unjust enrichment, fraudulent concealment, and violations of

various state statutes. “We review de novo the district court’s dismissal for lack of standing, we

accept as true all the material allegations in the Plaintiffs’ complaints, and we construe Plaintiffs’


         1
           Plaintiffs assert that “a debit card is the functional equivalent of a credit card,” Thompson’s Br. 14 (citation
omitted), and that Defendants have violated a Tennessee statute requiring disclosure of certain preauthorization holds
for debit-card transactions, Tenn. Code Ann. § 47-18-128. Debit cards are not credit cards, however, and the named
Plaintiffs who purchased fuel in Tennessee (Anderson, Mosely, and Thompson) all pleaded in Plaintiffs’ complaints
that they used a credit card and not a debit card for their purchases. Because the Tennessee statute in question does
not even arguably apply to any of these Plaintiffs’ transactions, we decline to consider further whether Plaintiffs have
pleaded a cognizable injury arising from Defendants’ alleged violation of that statute.

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Nos. 17-5992/17-5998, Thompson v. Love’s Travel Stops & Country Stores, Inc., et al.


complaints in Plaintiffs’ favor.” Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 457 (6th Cir.

2017); see also Jenkins v. McKeithen, 395 U.S. 411, 421–22 (1969).

                                                 II

        Federal courts have constitutional authority to decide only “cases” and “controversies.”

U.S. Const. Art. III § 2; Muskrat v. United States, 219 U.S. 346, 357 (1911). The requirement of

standing is “rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1547 (2016). To bring suit, Plaintiffs must have “alleged such a personal

stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the

presentation of issues” before the court. Baker v. Carr, 369 U.S. 186, 204 (1962).

       Each Plaintiff has the burden “clearly to allege facts demonstrating that he is a proper party

to invoke judicial resolution of the dispute.” Warth v. Seldin, 422 U.S. 490, 518 (1975). “Standing

cannot be ‘inferred argumentatively from averments in the pleadings,’” FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 231 (1990) (quoting Grace v. Am. Cent. Ins. Co., 109 U.S. 278, 284 (1883)),

“but rather ‘must affirmatively appear in the record.’” Id. at 232 (quoting Mansfield C. & L.M.R.

Co. v. Swan, 111 U.S. 379, 392 (1884)). The Supreme Court has “always insisted on strict

compliance with this jurisdictional standing requirement,” Raines v. Byrd, 521 U.S. 811, 819

(1997), and so must we.

                                                 A

       At a minimum, Article III standing requires that for each claim, each plaintiff must assert

an actual or imminent injury that is traceable to the defendant and redressable by the court. Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560–62 (1992); Crawford, 868 F.3d at 452. The injury must be

an “injury in fact,” meaning “an invasion of a legally protected interest which is (a) concrete and




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Nos. 17-5992/17-5998, Thompson v. Love’s Travel Stops & Country Stores, Inc., et al.


particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at

560 (internal quotation marks omitted).

       The requirement that an injury be “concrete and particularized” has two discrete parts:

concreteness, which is the requirement that the injury be “real,” and not “abstract,” Spokeo, 136

S. Ct. at 1548, and particularization, which is the requirement that the plaintiff “personally [have]

suffered some actual or threatened injury.” Valley Forge Christian Coll. v. Ams. United for

Separation of Church and State, Inc., 454 U.S. 464, 472 (1982) (emphasis added) (quoting

Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979). The hurdle that Plaintiffs fail to

clear is concreteness. “Abstract, intellectual problems,” FEC v. Akins, 524 U.S. 11, 20 (1998),

and “abstract concern,” Diamond v. Charles, 476 U.S. 54, 67 (1986), are not concrete injuries. An

injury doesn’t have to be tangible to be concrete, of course, but “it must actually exist.” Spokeo,

136 S. Ct. at 1548.

                                                 B

       As the district court aptly recognized, Plaintiffs’ allegations in their complaints are

conclusory, and, to the extent that they purport to state a concrete injury, circular. For example:

   ▪   “The excessive holds, in effect, resulted in losses of credit, depriving Plaintiff and
       Class members of access to their otherwise available credit funds for several days.
       They proximately caused Plaintiff . . . to suffer demonstrable, ascertainable, and
       measurable damages, i.e., not merely losses of credit, but tangible, pecuniary, and
       actual harm, as their available credit disappeared for several days. These damages
       reflect the opportunity cost of the credit card holds placed in excess of the actual
       purchases made. That is, the difference between the amount of the credit card hold
       placed and the actual purchase represents spending power denied to Plaintiff and
       proposed Class members by Love’s.” Thompson’s Amended Compl. ¶ 6.

   ▪   “Plaintiffs . . . allege much more than a temporary diminution in their available
       credit. They have suffered a demonstrable loss of credit, which was proximately
       caused by Pilot. This loss of credit resulted in actual harm. Thus, they suffered
       concrete and tangible injuries and real-world harm as a result of Pilot’s acts and
       omissions.” Darby’s Amended Compl. ¶ 71.



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Nos. 17-5992/17-5998, Thompson v. Love’s Travel Stops & Country Stores, Inc., et al.


       The language of Plaintiffs’ complaints clearly reflects Plaintiffs’ recognition of the Article

III standing requirement. But equally clear is Plaintiffs’ failure to plead facts that would satisfy

that requirement. Nevertheless, on appeal, Plaintiffs have doubled down on their assertions that

their conclusory claims in their complaints suffice to show standing:

   ▪   “The District Court either mis-comprehended [sic] Plaintiff’s standing allegations or it was
       simply wrong in its analysis. The alleged temporary loss of credit and spending power was
       not ‘merely a description of the effect of lost credit.’ Rather, the temporary seizure of
       Plaintiff’s credit and diminishment of his spending power was an invasion of Plaintiff’s
       credit, a legally-protected interest. This is all that is required. Spokeo, 136 S. Ct. at 1548.
       What is more, the harm alleged was not something Plaintiff feared might happen or which
       put him at risk. To the contrary, this loss of credit and spending power happened and
       existed. Thus, it was real, not conjectural or hypothetical.” Thompson’s Br. 23–24.

   ▪   “If granted leave to amend, Plaintiffs would augment their complaint with a host of
       additional facts to more fully allege the requirements of Article III standing. For example,
       although they did not believe it necessary to do so, in view of the District Court’s rulings,
       Plaintiffs could have amended their complaint to allege emotional distress or by adding
       one or more additional Plaintiffs who had actually attempted to make purchases during the
       ‘hold’ period but had their credit cards declined because of the holds.” Darby’s Br. 34
       (emphasis added).

       Nowhere in Plaintiffs’ pleadings or briefs do Plaintiffs articulate what is “real” about the

harm arising from Defendants’ temporary preauthorization holds. Indeed, Plaintiffs state in their

amended complaints that “Plaintiff has not specifically alleged that [Defendant’s] grossly

excessive credit holds have deprived him and other Class members of basic needs, insufficient

funds to cover expenses, or overdraft charges, but it is likely – and even probable – that the loss of

credit occasioned by such holds has indeed resulted in such deprivations for other unnamed Class

members.” Thompson’s Amended Compl. ¶ 39. Whether it is “likely” (or “probable,” same

difference) that some unnamed person has suffered a concrete injury on account of Defendants’

preauthorization practice is irrelevant to our inquiry, for “[a] potential class representative must

demonstrate individual standing.” Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir.




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1998). This individual standing “must affirmatively appear in the record.” FW/PBS, 493 U.S. at

232 (citation omitted). And here it does not.2

        Plaintiffs rely on a Tennessee Supreme Court decision that, Plaintiffs claim, “recognize[s]

that state and federal courts alike implicitly recognize that loss of credit is an economic injury.”

Darby’s Br. 24 n.12 (citing Discover Bank v. Morgan, 363 S.W.3d 479, 497 (Tenn. 2012)). But

Morgan does not even purport to address Article III standing.

        Moreover, Morgan uses “loss of credit” to mean injury to one’s credit rating, not temporary

loss of available credit on a credit-card account. See Morgan, 363 S.W.3d at 497–98. And equally

damaging to Plaintiffs’ reliance on Morgan is that, even if Plaintiffs could show a “loss of credit”

as contemplated in Morgan, “the loss of credit must have caused actual harm to the aggrieved

party, such as lost profits or added costs.” Id. at 497. Plaintiffs have pleaded no such harm.

Plaintiffs essentially ask us to hold that any intrusion upon one’s credit limit, no matter how

temporary or factually harmless, is legally actionable. But Plaintiffs provide neither relevant

authorities nor persuasive principles to support their position, nor can we find any. Whatever

interest an individual has in his credit limit, it is not so legally protected that every occupation of

available credit is per se a cognizable injury.

        The district court was therefore correct to dismiss Plaintiffs’ actions for want of standing.

A pair of analogies supports this conclusion. As in Lujan, for example, in which the Supreme

Court held that environmental organizations’ members had not suffered concrete harm from the

endangering of wild animals in Sri Lanka when they did not even have plans to go see the animals

in Sri Lanka and they thus lacked standing to challenge the Secretary of the Interior’s interpretation


         2
           We do not (and, indeed, may not) answer the theoretical question whether Plaintiffs would have had
standing if they had alleged, for example, that a preauthorization hold precipitated a subsequent denial of another
attempted charge, resulted in a fee, impaired a credit rating, or otherwise caused some injury beyond the temporary
occupation of Plaintiffs’ unused credit, which is the only harm alleged in Plaintiffs’ complaints.

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Nos. 17-5992/17-5998, Thompson v. Love’s Travel Stops & Country Stores, Inc., et al.


of the Endangered Species Act as it affected those animals, similarly, Plaintiffs here lack standing

to challenge the temporary holds on their credit when they do not even allege any intent to use that

credit had it been available. See Lujan, 504 U.S. at 560–62. This case is also analogous to

Crawford, which we decided last year. There, plaintiffs (mostly Americans living abroad)

complained, inter alia, that certain foreign-account tax-compliance laws caused them difficulties

in their dealings with foreign banks. See Crawford, 868 F.3d at 443, 450–52. We held that the

plaintiffs lacked standing, concluding as to some plaintiffs that though they may have alleged

having foreign bank accounts to which the challenged laws could theoretically apply, they had not

alleged any concrete injury such as the closure of an account or the actual or even impending

imposition of a tax or penalty for noncompliance. See id. at 458–61. Likewise here: Plaintiffs

may have alleged a practice by Defendants that could theoretically produce a concrete injury, but

they have not alleged any arguably concrete injury such as the denial of an opportunity to use their

credit, the rejection of an attempted charge, an impairment to a credit rating or credit report, or a

fee.

       In short, Plaintiffs lack standing to sue, so we affirm the dismissal of their actions.

                                                 III

       Without providing any reasoning as to why it did so, the district court dismissed Plaintiffs’

actions with prejudice rather than without prejudice. A dismissal labeled “with prejudice” signals

a final judgment on the merits with preclusive effect. See Gooch v. Presbyterian Home Hosp., 239

F. 828, 830 (6th Cir. 1917) (“[T]he defendants moved the court to dismiss the action with

prejudice, which no doubt means to dismiss it absolutely and on the merits.”); cf. Warfield v.

AlliedSignal TBS Holdings, Inc., 267 F.3d 538, 542 (6th Cir. 2001) (“A voluntary dismissal with




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prejudice operates as a final adjudication on the merits and has a res judicata effect.” (citation

omitted)).

       But Article III standing is jurisdictional, and a federal court lacking subject-matter

jurisdiction is powerless to render a judgment on the merits. See Capron v. Van Noorden, 6 U.S.

(2 Cranch) 126, 127 (1804); Gaff v. Fed. Deposit Ins. Corp., 814 F.2d 311, 319 (6th Cir. 1987)

(holding that “[i]n order to have dismissed [supplemental state-law] claims with prejudice, the

district court had to have exercised [subject-matter] jurisdiction over the claims”). Consistent with

this, our court has stated on several occasions that dismissal for lack of subject matter jurisdiction

should normally be without prejudice. See, e.g., Pratt v. Ventas, Inc., 365 F.3d 514, 522 (6th Cir.

2004) (“[A] dismissal for lack of subject matter jurisdiction does not operate as an adjudication on

the merits for preclusive purposes.” (quoting Holloway v. Brush, 220 F.3d 767, 778 (6th Cir.

2000))); Revere v. Wilmington Fin., 406 F. App’x 936, 937 (6th Cir. 2011) (“Dismissal for lack of

subject-matter jurisdiction should normally be without prejudice, since by definition the court

lacks power to reach the merits of the case.” (citing Ernst v. Rising, 427 F.3d 351, 366 (6th Cir.

2005))).

       Defendants do not argue that any extraordinary circumstances exist in this case that would

justify a dismissal with prejudice as an exception to the general rule that a dismissal for lack of

standing is without prejudice. And Defendants’ cited cases, which all concern dismissals for

failure to state a claim, are inapposite because such dismissals are properly entered with prejudice.

See Pratt, 365 F.3d at 522 (“A dismissal for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6) is a judgment on the merits, and is therefore done with prejudice.” (internal

quotation marks omitted)). We therefore conclude that it was improper for the district court to

purport to order a dismissal with prejudice. See Attias v. Carefirst, Inc., 865 F.3d 620, 624 (D.C.



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Cir. 2017) (“Jurisdiction is the power to declare the law, and when it ceases to exist, the only

function remaining to the court is that of announcing the fact and dismissing the cause.” (quoting

Steel Co., 523 U.S. at 94)).

                                               IV

       In sum, we AFFIRM the district court’s dismissal of Plaintiffs’ actions for want of

standing, but we REMAND these actions for entry of orders dismissing them without prejudice.




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