United States District Court, W.D. Missouri, Central Division
EBONY DAVIS, individually and on behalf of all others, Plaintiffs,
D-W TOOL, INC. d/b/a QPI-MO, Defendant.
NANETTE K. LAUGHREY United States District Judge.
Ebony Davis moves under Fed.R.Civ.P. 12(b)(1) to remand 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. 35]. Defendant D-W
Tool, Inc. moves for partial dismissal of Plaintiff's
Complaint under Fed.R.Civ.P. 12(b)(6). [Doc. 22]. For the
following reasons, Plaintiff's motion to remand is
granted, and Defendant's motion to dismiss is denied as
Ebony Davis worked for SMX Staffing at Procter & Gamble.
In December 2015, Davis was informed that Defendant D-W Tool,
Inc. would be taking over and that if she wanted to work for
D-W Tool, she would need to apply. Davis completed an
employment application for D-W Tool while still working for
SMX Staffing, and D-W Tool gave Davis a start date of January
17, 2016. D-W Tool instructed Davis to have a urinalysis
before her start date and paid a fee to another company to
obtain a consumer report on Davis. After D-W Tool obtained a
consumer report on Davis, D-W Tool instructed her that the
urinalysis was no longer necessary because it was revoking
her job offer due to information in her consumer report.
“FCRA violations” count, Davis alleges that D-W
Tool violated the FCRA by failing to give her a copy of the
consumer report and by failing to give her time to review and
respond to the consumer report before terminating her. Davis
alleges that D-W Tool's actions constitute an adverse
action in violation of the FCRA, which caused her to lose
wages that she would have continued to earn while she was
given time to review and respond to her consumer report.
Davis further alleges that she lost “employment and
opportunities” as a result of D-W Tool's FCRA
violation. Finally, she contends that D-W Tool's
violations were willful because D-W Tool had access to legal
advice and committed multiple such FCRA violations. Davis
does not claim that the information in the consumer report
state law breach of contract count, Davis alleges that D-W
Tool entered into an agreement with the consumer reporting
agency to procure private information about potential
employees and that these agreements contained promises
requiring D-W Tool to abide by the FCRA protections in 15
U.S.C. § 1681b(b)(2) and b(b)(3). Specifically, Davis
contends that as part of D-W Tool's implied contract with
this company, D-W Tool agreed to provide a copy of the
consumer report and a copy of the FCRA Summary of Rights to
applicants before any adverse action would be taken, based in
whole or in part, on information obtained in the consumer
report. Davis alleges that she is a third party beneficiary
of this contract between D-W Tool and the company.
filed suit in the Circuit Court of Cole County, Missouri on
October 7, 2016. D-W Tool subsequently removed the case to
this Court in November 2016. On December, 12, 2016, Davis
filed an Amended Complaint, Doc. 16, adding the third party
beneficiary theory to her state law breach of contract claim.
argues that this matter should be remanded back to Cole
County because this Court lacks subject matter jurisdiction.
Specifically, Davis contends that she has not alleged a
sufficiently concrete injury to impart Article III standing.
D-W Tool responds that Davis's Complaint alleges a
significant injury with her adverse action claim, which is
sufficient to confer standing. D-W Tool also moves this Court
to dismiss Davis's breach of contract claim under Rule
12(b)(6) for failure to state a claim. Because subject matter
jurisdiction is a threshold inquiry, the Court must first
consider Davis's motion to remand.
Spokeo and Standing
Spokeo v. Robins, 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)).
Davis and D-W Tool do not dispute that the alleged statutory
violations are traceable to D-W Tool's conduct, and that
the alleged violations are redressable by statutory damages.
Accordingly, the remainder of the discussion on the standing
issue solely concerns the “injury in fact”
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). The parties do not dispute that Davis has
alleged a particularized injury, which leaves at issue only
the concreteness of Davis's 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 ...