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.
Scott Boergert moves for reconsideration of the Court's
order of dismissal, Doc. 87. Boergert's Motion, Doc. 89,
is granted in part. The Court will permit Boergert's
Disclosure Claim (Count II) to proceed. Because the Court
lacks subject matter jurisdiction over the Adverse Action
Claim (Count I), it will be remanded to the state court from
which it was removed. Boergert's Motion is denied in all
filed this putative class action under the Fair Credit
Reporting Act (FCRA) in state court and Defendant Kelly
Services, Inc. removed it. Boergert alleged that he 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. Kelly Services then
fired him, telling him it was because of information in his
consumer report that made him no longer eligible for
Count I of his complaint, Boergert alleges an Adverse Action
Claim based on Kelly Services' failure to give him a copy
of his consumer report at least three days before he was
terminated. 15 U.S.C. §1681b(b)(3)(A)(i). In Count II,
he alleges a Disclosure Claim, because Kelly Services did not
give him a stand-alone document that consisted solely of a
disclosure that a consumer report may be obtained for
employment purposes. The document given to Boergert contained
that information, but also other false and misleading
information. 15 U.S.C. §1681b(b)(2)(A)(i). Finally, he
alleged that Kelly Services' “multiple violations
of the FCRA combined with its knowledge of the requirement of
the FCRA” demonstrate its “violations were
willful.” Doc. 1-1, p. 26 of 35. Boergert did not
allege that the information in the consumer report was
November 14, 2016, the Court granted Kelly Services'
motion to dismiss finding that Boergert had not alleged a
concrete injury sufficient to give the Court subject matter
jurisdiction. While Boergert had alleged violations of the
FRCA, they were technical, procedural requirements that were
insufficient to show concrete harm in light of Spokeo,
Inc. v. Robins, 136 S.Ct. 1540 (2016).
now asks the Court to set aside its order because it contains
errors of law and fact. He seeks relief under Fed.R.Civ.P.
59(e) or 60(b). Specifically, Boergert reiterates his
argument that a violation of the FRCA's stand-alone
document requirement is enough to show concrete harm, as is a
violation of the requirement of a three day notice and an
opportunity to respond to a consumer report being relied on
to terminate an employee. He also argues that the Court did
not give his complaint all reasonable inferences and added
other pleading requirements that do not exist. He further
claims that the Court misapplied Braitberg v. Charter
Communications, Inc., 836 F.3d 925 (8th Cir.
2016), American Farm Bureau Federation v. U.S.
Environmental Protection Agency, 836 F.3d 963
(8th Cir. 2016), and Federal Election
Comm'n v. Akins, 524 U.S. 11, 20-25 (1998). Finally,
if the Court still finds that it lacks subject matter
jurisdiction, he requests the case be remanded to state court
rather than being dismissed.
district court has broad discretion in determining whether to
grant Rule 59(e) and Rule 60(b) motions. In re Levaquin
Products Liab. Litig., 739 F.3d 401, 404 (8th
Cir. 2014), and Innovative Home Health Care, Inc. v.
P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284,
1286 (8th Cir. 1998). However, a motion to
reconsider generally “serve[s] a limited function: to
correct manifest errors of law or fact or to present newly
discovered evidence.” Arnold v. Sec. Servs.,
Inc., 627 F.3d 716, 721 (8th Cir. 2010).
Pleading inferences and requirements
continues to imply that Kelly Services' violations of the
FCRA are enough to show that he was concretely harmed,
without anything further being required. The Court
respectfully disagrees. The Court has spent extensive time
researching and considering the issue and is not convinced
that it is wrong on this seminal point. Boergert's motion
for reconsideration on this point is rejected as to both
Count I (Adverse Action) and Count II (Disclosure). The Court
will address below additional arguments made by Boergert
concerning the dismissal of Count I and II.
Count II - Disclosure Claim
Court does find some merit in Boergert's argument that
the Court did not give him all reasonable inferences in favor
of his Disclosure Claim (Count II). In its order of
dismissal, the Court acknowledged that Boergert does have a
substantive right to keep his consumer report private but
found he signed a consent form authorizing the release of his
consumer report to Kelly Services. Boergert tried to
invalidate his consent by arguing it was not in the form
mandated by Congress because the consent form contained
incorrect information and extraneous information. The Court
rejected this argument because “he [did] not allege
that he or a reasonable person would be confused by the
extraneous information. Nor [did] he allege that he would not
have signed it had he known some information was
inaccurate." Doc. 87, p. 6. Instead, the Court held, the
crux of his complaint was that the consent form did not
technically comply with the requirements of the FCRA.
motion to reconsider, Boergert argues that he did plead
confusion because in paragraph 48 of the complaint, he used
the word “misleading, ” i.e., he alleged
that the “[d]isclosure form contain[ed] inaccurate and
misleading statements in violation of the FCRA.”
See Doc. 1-1, p. 23 of 35, ¶ 48. He further
argues that he had no ...