ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT is Plaintiff's Motion for Class Certification (Dkt. 58), which Defendants oppose (Dkt. 65). Argument was heard on April 26, 2018. Upon consideration, Plaintiff's motion is DENIED.

I. BACKGROUND

This purported class action arises from the implementation of a payment processing program, the Real Time Clearing program ("RTC"), at Speedway's retail gasoline convenience stores on November 16 and 17, 2016, and the preauthorization requests and holds placed on customers' accounts who purchased gasoline at the pump.1 Plaintiff's Amended Complaint included claims of negligence, breach of implied contract, unjust enrichment, and violations of the Florida Deceptive and Unfair Trade Practices Act. (Dkt. 48). Defendants' motion for summary judgment was granted on all claims except Plaintiff's negligence claim, and the case is proceeding on that claim. (Dkt. 94).2

Plaintiff moves for class certification under Rule 23(b)(3) for this class:

Alternatively, she seeks certification under Rule 23(c)(4) on certain issues.

II. CLASS CERTIFICATION STANDARD

"The class action is `an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, ___, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). Accordingly, the burden of establishing the propriety of class certification rests with Plaintiff, the advocate of the class, who must "affirmatively demonstrate [her] compliance with [Rule 23]." Brown v. Electrolux Home Prod., Inc., 817 F.3d 1225, 1231 (11th Cir. 2016), quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1232 (11th Cir. 2009); Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003); Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir. 1975).

A class may be certified only if (1) the class is so numerous that joinder of all members would be impracticable; (2) there are questions of fact and law common to the class; (3) the claims of the representatives are typical of the claims of the unnamed members; and (4) the named representatives will be able to represent the interests of the class adequately and fairly. Fed. R. Civ. P. 23(a). These prerequisites to class certification are referred to as "numerosity, commonality, typicality, and adequacy of representation," and are "designed to limit class claims to those fairly encompassed by the named plaintiffs' individual claims." Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000).

In addition to the requirements of Rule 23(a), at least one of the three alternative subsections of Rule 23(b) must be satisfied. Babineau v. Fed. Express Corp., 576 F.3d 1183, 1190 (11th Cir. 2009). Plaintiff seeks certification under Rule 23(b)(3), which requires her to demonstrate (1) that questions of law or fact common to class members predominate over questions affecting only individual members, and (2) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Id. Failure to establish any of the required elements of Rule 23(a) or Rule 23(b)(3) precludes class certification. Valley Drug Co., 350 F.3d at 1188 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615-18, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)).

Evidentiary proof is required to satisfy the provisions of Rule 23. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). And, Plaintiff bears the burden of showing that the proposed class satisfies Rule 23 by a preponderance of the evidence. See Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 811 (7th Cir. 2012); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2009); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008). Even when the parties have not contested an element of Rule 23, "a court nevertheless has the responsibility of conducting its own inquiry as to whether the requirements of Rule 23 have been satisfied in a particular case." Valley Drug, 350 F.3d at 1188.

III. DISCUSSION

At the outset of the hearing, Plaintiff limited the scope of her class to a liability only class, leaving the issues of causation and damages to be determined on an individualized basis by an alternative method such as a special master. And she announced that she would seek only nominal damages.

A. Standing

The class certification analysis begins with the issue of standing. Prado-Steiman, 221 F.3d at 1280. "`[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.'" Id. at 1279 (citations omitted). Only after determining whether the named plaintiff has standing can it be determined whether the named plaintiff has representative capacity to assert the rights of others. Id. at 1280. "[A] plaintiff must allege and show that [s]he personally suffered injury." Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987). A plaintiff must demonstrate individual standing and "be part of the class and possess the same interest and suffer the same injury as the class members." Mills v. Foremost Ins. Co., 511 F.3d 1300, 1307 (11th Cir. 2008) (quoting Prado-Steiman, 221 F.3d at 1279).

Defendants contend that Plaintiff lacks standing as a putative class representative because she did not suffer a concrete injury, cannot represent class members injured outside Florida, and her injury from the $125 preauthorization request is distinct from a credit card user's injury, as well as those customers who had more than $125 in their bank account. Plaintiff counters that she suffered the same injury as others in the proposed class, the loss of use of her money.

Plaintiff describes her injury as the denial of use of her funds resulting from Defendants' implementation of RTC and the $125 preauthorization request made by Speedway, and the time and effort she spent attempting to resolve that. This description is sufficient to show a concrete injury to sustain Article III standing.3 See Pedro v. Equifax, Inc., 868 F.3d 1275, 1280 (11th Cir. 2017) (finding a concrete injury where plaintiff "`lost time . . . attempting to resolve the credit inaccuracies'"). Plaintiff, part of the proposed class, possesses the same interest and same injury as the proposed class members. Mills, 511 F.3d at 1307. She therefore has standing to represent the class.

B. Adequately Defined and Clearly Ascertainable

The next step in the rigorous class certification analysis is determining whether the proposed class is "`adequately defined and clearly ascertainable.'" Carriuolo v. Gen. Motors Co., 823 F.3d 977, 984 (11th Cir. 2016) (citation omitted). The class members must be ascertained by objective criteria. See Bussey v. Macon Cty. Greyhound Park, Inc., 562 F. App'x. 782, 787 (11th Cir. 2014). And, the process should be "administratively feasible," meaning "that identifying class members is a manageable process that does not require much, if any, individual inquiry." Id. at 787-88 (citation omitted).

The proposed class members, individuals residing in the United States who purchased gasoline at the pump during an identified time frame and who had a $125 authorization hold placed on their accounts, are ascertainable by administratively feasible and objective criteria. Defendants identified approximately 400,000 VISA transactions by customers who were not notified of the $125 preauthorization request. Worldpay's corporate representative testified that a partial card number, the issuing bank, the transaction amount, and the transaction location can be retrieved from its records. (Fengler Dep. 55:19-57:7, Dkt. 58-8). Plaintiff's expert, Charles Marr, Esq. avers, based on his review of documents produced in discovery, that his firm is able to identify class members in a manageable process. (Marr Decl., Dkt. 58-2). And while Defendants contend that the class definition is "unworkable" because it includes individuals who "experienced no impact" from RTC, that contention goes to whether questions of individual damages predominate, not whether the class is adequately defined and clearly ascertainable. Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013). Moreover, Defendants' contention is negated by Plaintiff having limited class certification to the issue of liability and seeking only nominal damages.

Alternatively, Defendants contend that class members are not clearly ascertainable because they do not "store or maintain full payment card numbers," (Claar Decl. ¶ 7, Dkt. 65-6), and in order to obtain the full card number, it must "reverse engineer" one card number at a time, (Fengler Decl. ¶ 7, Dkt. 65-7). Defendants, however, do not explain why a full payment card number is necessary to identify class members or why the time and expense associated with determining the full payment card number renders the class definition administratively unfeasible.4 See Bussey v. Macon County Greyhound Park, Inc., 562 F. App'x at 788 (reports generated provided sufficient data to identify class members). Indeed, Defendants have already identified the relevant transactions for the proposed class.5 Cf. Karhu v. Vital Pharm., Inc., 621 F. App'x 945, 946 (11th Cir. 2015) (defendant's data identified third-parties, not class members).

C. Rule 23(a)

The preliminary factors for class certification having been satisfied, the inquiry turns to whether Plaintiff has met the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). While Defendants do not meaningfully oppose these requirements, the record shows that Plaintiff has satisfied them. Valley Drug, 350 F.3d at 1188.

1. Numerosity

The requirement of numerosity is met when "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). Plaintiff submits evidence that over 400,000 transactions were processed on November 16 and 17. (Beth Hunter Dep. 36:9-21, Dkt. 58-1). And, approximately 56,000 were processed when RTC was not operating as intended. (Hunter Dep. 89:20-25, Dkt. 58-1). The numerosity requirement is therefore met. Vega, 564 F.3d at 1266-67.

2. Commonality

Commonality requires that there be "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Because the only remaining claim is negligence, there must be common questions of law or fact among the class relating to this substantive claim. Vega, 564 F.3d at 1270. In attempting to meet the commonality requirement, Plaintiff focuses on Defendants' conduct in requesting the preauthorization hold, contending that the conduct is common to and effected all class members, and that the following issues are common to all class members and therefore susceptible to class wide proof:

(Dkt. 58 at 8).

These issues are common to the Class on the theory of negligence. Plaintiff has therefore met her "relatively light" burden of establishing commonality under Rule 23. Vega, 564 F.3d at 1268.

3. Typicality

Likewise, Plaintiff's claim is typical of the class because "`the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.'" Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009) (citation omitted). Plaintiff's claim arises out of the same course of conduct, the implementation of RTC, that is typical of the class claim. She therefore meets the typicality requirement.

4. Adequacy of Representation

Finally, Rule 23(a) requires that the Plaintiff fairly and adequately protect the interests of the class which "`encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.'" Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir. 2008) (citation omitted). No substantial conflicts have been identified. See (K. Teggerdine Declaration, Dkt. 58-5). Plaintiff has dutifully prosecuted this action with qualified and competent counsel. Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001); (Yanchunis Decl., Dkt. 58-3); (Martin Decl., Dkt. 58-4); (Teggerdine Decl., Dkt. 58-5). Plaintiff meets the adequacy of representation requirement.

D. Rule 23(b)(3)

In addition to satisfying Rule 23(a), Plaintiff must satisfy one of the alternative requirements in Rule 23(b). Piazza, 273 F.3d at 1346. In attempting to meet this burden, Plaintiff seeks certification under Rule 23(b)(3). Class certification is appropriate under Rule 23(b)(3) if Plaintiff demonstrates by a preponderance of the evidence that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3); Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). It is not required that all questions of fact or law be common, "only that some questions are common and that they predominate over individual questions." Klay v. Humana, Inc., 382 F.3d 1241, 1254 (11th Cir. 2004), abrogated in part on other grounds, by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008); see Dickens v. GC Servs. Ltd. P'ship, 706 F. App'x 529, 537 (11th Cir. 2017).

Focusing on "Defendants' uniform course of conduct directed at Plaintiff and the Class," and relying on her premise that every purported class member was harmed in the same way by the preauthorization hold requests, Plaintiff contends that common questions of law and fact predominate. Defendants counter that individual issues predominate and that the proposed class action is unmanageable. Defendants' contentions are persuasive.

Instructive to a resolution of the parties' competing contentions is this passage:

Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1170 (11th Cir. 2010).

During the hearing, Plaintiff argued that by certifying the class for liability purposes only, common issues would predominate over individual issues. Pointing out that Plaintiff's negligence claim is a matter of state common law, Defendants countered that the law of negligence varies among the twenty-one states in which the transactions occurred and therefore individual issues regarding liability for negligence predominate.

The determination of whether common issues predominate over individual issues begins with the elements of the underlying claim. Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011); Brown, 817 F.3d at 1234.6 At first glance, the elements of a generic negligence claim would seem to be common, that being duty, breach, causation, and damages. But as noted by the 7th Circuit, the law of negligence among the states is not homogenous:7

Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d at 1300, 1301 (7th Cir. 1995), superseded by Fed. R. Civ. P. 23(f) on other grounds, (internal citations and quotation marks omitted). Indeed, variations in state law must be given their effect, no matter how minor or nuanced. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). And Plaintiff shoulders the burden of demonstrating the homogeneity of the different states' laws, or at least showing that any variations between the states is manageable. Klay, 382 F.3d at 1262.

While Plaintiff is correct that Defendants' implementation of RTC and the preauthorization hold requests is common to all purported class members, she is wrong to suggest that "[n]o individual inquiry will be required to establish any of Plaintiff's claims because the factual and legal issues surrounding Defendants' liability are common among Class members." (Dkt. 58 at p. 12). While the factual issue may be common, the liability issue under the various state laws of negligence has not been shown to be common among class members.

As noted, more than 400,000 VISA transactions on November 16 and 17 triggered preauthorization hold requests in twenty-one states. As Defendants correctly point out, Plaintiff fails to identify those twenty-one states, thereby preventing a meaningful analysis to determine if the law of negligence in those states is common, as she maintains. Castano v. Am. Tobacco Co., 84 F.3d 734, 741 (5th Cir. 1996) ("A district court's duty to determine whether the plaintiff has borne its burden on class certification requires that a court consider variations in state law when a class action involves multiple jurisdictions.").8

During argument, Defendants suggested several potential issues involving the law of negligence among the various states that could predominate over the common issue of their conduct, including varying sources of the standard of care, application of the economic loss rule in the various states which could bar recovery in the absence of physical injury or property damage, and distinctions between comparative or contributory fault among the states.9 See e.g. Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d at 1300-01 (citing cases comparing differing states nuanced interpretation of negligence). Affirmative defenses remain relevant to the question of predominance, and can defeat predominance where they apply to a majority of class members and raise individual questions. See Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir. 2000) (affirmative defenses should be considered in making class certification decisions); Sacred Heart Health System, Inc, 601 F.3d at 1177-83.

These state law questions must be analyzed and answered to "identify the overall mix of individual versus common questions for purpose of predominance." Brown, 817 F.3d at 1238. That inquiry "requires an understanding of the relevant claims, defenses, facts, and substantive law presented in the case." Allison v. Citgo Petroleum Corp., 151 F.3d 402, 419 (5th Cir. 1998). Without an analysis of the law of negligence in the various states, Plaintiff fails to show that common issues of fact and law will "ha[ve] a direct impact on every class member's effort to establish liability[.]" Klay, 382 F.3d at 1255 (alteration in original).10

It follows that she also fails to demonstrate that a class action is a superior method for managing the litigation of the various state law negligence claims. Fed. R. Civ. P. 23(b)(3). The difficulty likely to be encountered in managing the proposed class based on various iterations of the law of negligence among tenty-one states is self evident. See In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1018 (7th Cir. 2002) ("Because these claims must be adjudicated under the law of so many jurisdictions, a single nationwide class is not manageable."); Allison, 151 F.3d at 419 ("The predominance of individual-specific issues relating to the plaintiffs' claims for compensatory and punitive damages in turn detracts from the superiority of the class action device in resolving these claims."). Plaintiff's motion to certify the class under Rule 23(b)(3) will therefore be denied.

E. Rule 23(c)(4)

Alternatively, Plaintiff moves to certify particular issues under Rule 23(c)(4).11 But that subsection assumes that the action as a whole satisfies the predominance requirement of Rule 23(b)(3). Castano, 84 F.3d at 745 n.21 ("A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.").12

Plaintiff has not satisfied the predominance requirement of Rule 23(b)(3) and therefore Rule 23(c)(4) is not available to her. Her alternative motion to certify particular issues under Rule 23(c)(4) will be denied.

DONE AND ORDERED.