NOT RECOMMENDED FOR PUBLICATION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,

Plaintiff-Appellant,

v.

LOVE’S TRAVEL STOPS & COUNTRY STORES, 

INC.,

Defendant-Appellee.

NOLAN C. DARBY; LAURIE ANDERSON; 

CHASE MOSELY; DORENE IVY,

Plaintiffs-Appellants,

v.

PILOT CORPORATION; PILOT TRAVEL 

CENTERS, LLC, doing business as Pilot Flying J,

Defendants-Appellees.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF TENNESSEE

OPINION

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.

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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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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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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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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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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.