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Davis v. D-W Tool Inc.

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

March 17, 2017

EBONY DAVIS, individually and on behalf of all others, Plaintiffs,
v.
D-W TOOL, INC. d/b/a QPI-MO, Defendant.

          ORDER

          NANETTE K. LAUGHREY United States District Judge.

         Plaintiff 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 moot.

         I. Background[1]

         Plaintiff 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.

         In her “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 was inaccurate.

         In her 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.

         Davis 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.

         II. Discussion

         Davis 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.

         A. Spokeo and Standing

         In 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” requirement.

         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). The parties do not dispute that Davis has alleged a particularized injury, which leaves at issue only the concreteness of Davis's 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 deprivation . . . is insufficient to create Article III standing”)). Therefore, “[a plaintiff] could not, for ...


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