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Boergert v. Kelly Services, Inc.

United States District Court, W.D. Missouri, Central Division

November 14, 2016

SCOTT BOERGERT, individually and on behalf of all others, Plaintiffs,



         Defendant 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 granted.

         I. Background[1]

         Kelly 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.

         Plaintiff 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.

         Boergert 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 inaccurate.

         II. Discussion

         Kelly 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.

         A. Spokeo and Standing

         In 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 fact.

         To 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.

         The 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 in judgment)).

         The 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 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.

         At the 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 ...

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