Class action plaintiff Ashley Peach, who sued retailers Wal-Mart, Kmart and Fashion Bug in Madison County for not returning change left on gift card balances, has for the second time in two months been given more time to oppose a defendant's motion to dismiss.
On March 11, Wal-Mart filed a motion to dismiss the class action case brought by Peach over a $1.39 remaining balance left on gift cards she used in May 2004.
Circuit Judge Nicholas Byron granted Peach another 21 days to file a brief in opposition to the Wal-Mart's motion.
He granted Peach 30 days to respond on April 22, but the hearing was not set until June 17.
In her complaint, Peach alleges that sometime after Mother’s Day in 2004 she purchased shampoo, conditioner, and other toiletries from the Granite City Wal-Mart, using two separate $10 gift cards to pay for the purchase that totaled $18.61. She demanded the $1.39 change but the cashier refused to give it back to her.
Wal-Mart, represented by Jennifer Kingston of Bryan Cave in St. Louis, wrote in her motion to dismiss that gift cards state that they may not be redeemed for cash, and use of the card constituted acceptance of those terms.
Kingston also noted that Peach’s complaint fails as a matter of law because she cannot prove she suffered any actual damages, and a claim is only actionable if the damages alleged are real and present.
Byron has not set a new hearing date on Wal-Mart’s motion.
Peach's suit against Fashion Bug was dismissed. Her suit against Kmart also is pending a motion to dismiss. Byron has granted her more time to respond.
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