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Boergert v. Kelly Services, Inc.

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

February 1, 2017

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


          NANETTE K. LAUGHREY United States District Judge.

         Plaintiff 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 other respects.

         I. Background

         Boergert 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 employment.

         In 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 inaccurate.

         On 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).

         Boergert 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.

         II. Discussion

         A 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).

         A. Pleading inferences and requirements

         Boergert 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.

         1. Count II - Disclosure Claim

         The 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.

         In his 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, ΒΆ 48. He further argues that he had no ...

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