United States District Court, W.D. Missouri, Central Division
SCOTT BOERGERT, individually and on behalf of all others, Plaintiffs,
KELLY SERVICES, INC., Defendant.
NANETTE K. LAUGHREY, UNITED STATES DISTRICT JUDGE
Kelly Services, Inc. moves under Fed.R.Civ.P. 12(b)(1) to
dismiss this Fair Credit Reporting Act case in its entirety
for lack of subject matter jurisdiction, based on the United
States Supreme Court's recent decision in Spokeo v.
Robins, 136 S.Ct. 1540 (2016). Doc. 40. The motion is
Services routinely obtains information contained in consumer
reports to conduct background checks on prospective and
current employees, and uses the information in the reports as
the basis for adverse employment action against such persons,
such as refusing to hire them or deciding to fire them.
Scott Boergert applied to work for Kelly Services. During the
hiring process, he signed a form, which Kelly Services then
used to obtain his consumer report from another company.
Kelly Services hired him and assigned him to work at Kraft.
But then Kelly Services fired him, telling him it was because
of information in his consumer report and that he was no
longer eligible for employment with Kelly Services.
alleges that Kelly Services' disclosure form violated the
FCRA because the form did not contain “clear and
conspicuous disclosure in writing in a document that
consisted solely of the disclosure that a consumer report may
be obtained for employment purposes, ” and because it
“contained extraneous [and inaccurate] information in
violation of the FCRA.” Doc. 1-1, p. 19 of 35; see
also Id. at pp. 31-32 of 35 (Count II). Boergert alleges
that Kelly Services further violated the FCRA by failing to
give him a copy of the consumer report, and notice and
opportunity to correct any inaccuracy in it, before firing
him. Id. at pp. 29-31 of 35 (Count I). He also
alleges that Kelly Services' “multiple violations
of the FCRA combined with its knowledge of the requirement of
the FCRA” demonstrate its “violations were
willful.” Id. at p. 26 of 35. Boergert does
not claim that the information in the consumer report was
Services argues that Boergert has no standing to pursue an
improper disclosure claim or an adverse action claim because
he merely alleges bare procedural or technical violations of
his statutory rights, divorced from any concrete harm.
Boergert responds that Spokeo did not alter
constitutional requirements for standing, and that he has
alleged two concrete injuries: violation of his right to
privacy and an informational injury.
Spokeo and Standing
Spokeo, the Supreme Court reaffirmed that to have
Article III standing, a plaintiff must have “(1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision.” 136 S.Ct. at 1547 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Here, it is undisputed that the alleged statutory violations
are traceable to Kelly Services' conduct, and that the
alleged violations are redressable by statutory damages.
Accordingly, the remainder of the discussion on the standing
issue is addressed solely to the requirement of injury in
establish injury in fact, a plaintiff must have suffered
“‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent, not conjectural or
hypothetical.'” Id. at 1548 (citing
Lujan, 504 U.S. at 560). To be
“particularized, ” an injury “‘must
affect the plaintiff in a personal and individual
way[.]'” Id. (citing Lujan, 504
U.S. at 560 n.1). Here, it is undisputed that Boergert has
alleged a particularized injury.
Supreme Court in Spokeo distilled several
“general principles” from its prior cases with
respect to concreteness. Id. at 1549-50. A concrete
injury is one that is “‘real, ' and not
‘abstract.'” Id. at 1548 (citing
Webster's Third New International Dictionary 472 (1971),
and Random House Dictionary of the English Language 305
(1967)). Tangible injuries plainly satisfy this requirement.
Id. at 1549. “[N]evertheless, ”
intangible injuries may also “be concrete.”
Id. In evaluating whether an intangible injury
satisfies the “concreteness” requirement, the
Spokeo Court identified two important
considerations: (1) “whether an alleged intangible harm
has a close relationship to a harm that has traditionally
been regarded as providing a basis for a lawsuit in English
or American courts[;]” and (2) the judgment of
Congress, which “‘has the power to define
injuries and articulate chains of causation that will give
rise to a case or controversy where none existed
before.'” Id. (quoting Lujan, 504
U.S. at 580 (Kennedy, J., concurring in part and concurring
Supreme Court then elaborated on the connection between
statutory standing and concrete injury. First, the Court
explained that “Article III standing requires a
concrete injury even in the context of a statutory
violation[.]” Id. (citing Summers v. Earth
Island Institute, 555 U.S. 488, 496 (2009)
(“[D]eprivation of a procedural right without some
concrete interest that is affected by the deprivation...is
insufficient to create Article III standing”)).
Therefore, “[a plaintiff] could not, for example,
allege a bare procedural violation, divorced from any
concrete harm, and satisfy the injury-in-fact requirement of
Article III.” Id.
same time, the Court observed, in cases where “harms
may be difficult to prove or measure[, ]” “the
violation of a procedural right granted by statute can be
sufficient... [and] a plaintiff in such a case need not
allege any additional harm beyond the one Congress has
identified.” Id. at 1549 (citing Federal
Election Comm'n v. Akins, 524 U.S. 11, 20-25 (1998),
and Public Citizen v. Department of Justice, 491
U.S. 440, 449 (1989)). The Supreme Court noted that although
one of the FCRA's ...