Bazile v. Fin. Sys. of Green Bay, Inc.

Decision Date15 December 2020
Docket NumberNo. 19-1298,19-1298
Citation983 F.3d 274
Parties Sandra BAZILE, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. FINANCE SYSTEM OF GREEN BAY, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Philip D. Stern, Attorney, Andrew T. Thomasson, Attorney, Stern Thomasson LLP, Springfield, NJ, Katelyn Busby, Attorney, Busby Law, PLLC, Monticello, AR, for Plaintiff-Appellant

Jessica Lee Prom Klander, Attorney, Michael A. Klutho, Attorney, Bassford Remele, Minneapolis, MN, for Defendant-Appellee

Before Easterbrook, Kanne, and Wood, Circuit Judges.

Kanne, Circuit Judge.

This appeal centers on Article III standing to sue for an alleged violation of the Fair Debt Collection Practices Act ("FDCPA"). The district court was satisfied of the plaintiff's standing based on the court's reasoning in a similar case, Larkin v. Finance System of Green Bay Inc. , No. 18-C-496, 2018 WL 5840769 (E.D. Wis. Nov. 8, 2018). We have since reversed the district court's decision with respect to standing in Larkin because the plaintiff in that case failed to allege any injury. See Larkin v. Fin. Sys. of Green Bay, Inc. , Nos. 18-3582 & 19-1557, 982 F.3d 1060, 1066–67 (7th Cir. 2020).

Here, the plaintiff's complaint may survive dismissal as a matter of pleading. But that's not enough for the district court to decide the merits of the action; the truthfulness of the facts necessary for standing have been called into doubt, requiring further inquiry into whether the court has subject-matter jurisdiction.

At this stage in the litigation, the appropriate mechanism to resolve factual disputes about standing is an evidentiary hearing on the defendant's motion to dismiss under Rule 12(b)(1). In that setting, the district court may receive evidence, outside the complaint, on whether the plaintiff meets the standing requirements of Article III. We are not positioned to make the necessary findings of fact, so we remand for the district court to do so.


According to Sandra Bazile's complaint, Finance System of Green Bay sent her a letter seeking to collect medical debts she had incurred. The dunning letter stated the date (September 19, 2017) and the total balance of the debt ($92.23), without indicating whether that amount may increase with the accrual of interest. Bazile filed a complaint against the debt collector. She alleged that the letter's exclusion of information concerning the accrual of interest was a violation of the FDCPA because the letter was misleading and did not provide "the amount of the debt." 15 U.S.C. § 1692g(a)(1) ; see id. § 1692e.

The collector moved to dismiss the complaint on two grounds: Bazile lacked standing to sue; and she failed to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6).

The district court determined that its reasoning in Larkin applied: Bazile had sufficiently demonstrated standing because, like in Larkin , the violation she alleged amounted to a concrete injury by itself. The court agreed with the collector on the merits, however, and dismissed the complaint under Rule 12(b)(6). Bazile appealed.1


We are presented with one question about subject-matter jurisdiction (whether Bazile has Article III standing to sue), and one question about the merits of the parties’ dispute (whether Bazile's complaint states a claim upon which relief can be granted). We don't reach the merits, though, because jurisdiction is a threshold matter that needs to be further assessed on remand. See Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

Standing is a threshold requirement because it derives from the Constitution's limit on federal courts’ authority to resolve "cases" and "controversies." U.S. Const. art. III, § 2, cl. 1 ; see Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 101–02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The plaintiff, as the party invoking the court's jurisdiction, must establish the elements of standing: she must prove that she has suffered a concrete and particularized injury that is both fairly traceable to the challenged conduct and likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Whether the plaintiff has satisfied these criteria is a matter we review de novo . See Lewert v. P.F. Chang's China Bistro, Inc. , 819 F.3d 963, 966 (7th Cir. 2016).

Because standing is an essential ingredient of subject-matter jurisdiction, it must be secured at each stage of the litigation. Lujan , 504 U.S. at 561, 112 S.Ct. 2130. At the pleading stage, "general factual allegations of injury resulting from the defendant's conduct may suffice." Id. That's because "we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim,’ " id. (alteration in original) (quoting Lujan v. Nat'l Wildlife Fed. , 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ), and the allegations of fact—though they must be clearly alleged, Spokeo , 136 S. Ct. at 1547 —need only "plausibly suggest" each element of standing, with the court drawing all reasonable inferences in the plaintiff's favor, Silha v. ACT, Inc. , 807 F.3d 169, 173–74 (7th Cir. 2015).

But even when a plaintiff's allegations sufficiently demonstrate standing at the outset of the action, they don't show standing for long. Once the allegations supporting standing are questioned as a factual matter—either by a party or by the court—the plaintiff must support each controverted element of standing with "competent proof," McNutt v. Gen. Motors Acceptance Corp. of Ind. , 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936), which we've understood as "a showing by a preponderance of the evidence, or proof to a reasonable probability, that standing exists," Retired Chi. Police Ass'n v. City of Chicago , 76 F.3d 856, 862 (7th Cir. 1996).

Importantly, even if a party does not challenge the court's subject-matter jurisdiction, "federal courts are obliged to police the constitutional ... limitations on their jurisdiction." Kanzelberger v. Kanzelberger , 782 F.2d 774, 777 (7th Cir. 1986). Thus, when a court is put on notice that an allegation integral to standing is probably false or if the complaint "fairly shriek[s] that there is no federal jurisdiction, the district judge must conduct whatever supplementary factual proceedings are necessary to resolve the doubt."2 Id.

Here, Bazile alleged that the dunning letter did not "disclose that the amount of the debt may increase due to the accrual of interest" and that it failed "to disclose the amount of the debt as required by the FDCPA."

The collector responded to these allegations by moving to dismiss the complaint for failure to state a claim under Rule 12(b)(6). At the same time, the collector argued that Bazile lacked Article III standing. Although the collector did not identify its standing argument as a defense under Rule 12(b)(1), that is how we understand it and how the collector recognizes it on appeal.

Rule 12(b)(1) is the means by which a defendant raises a defense that the court lacks subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). This defense can take the form of a facial or a factual attack on the plaintiff's allegations. See Apex Dig., Inc. v. Sears, Roebuck & Co. , 572 F.3d 440, 443–44 (7th Cir. 2009). A facial attack tests whether the allegations, taken as true, support an inference that the elements of standing exist. See id. In this way, a facial attack does not challenge the alleged facts themselves. But a factual attack does, testing the existence of jurisdictional facts underlying the allegations. See id. at 444. Accordingly, a plaintiff undergoing only a facial attack enjoys treatment of her allegations as true, but that benefit does not carry into the context of a factual challenge. See id. (quoting Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977) ). In that context, the court may consider and weigh evidence outside the pleadings to determine whether it has power to adjudicate the action. See Venezuela v. Helmerich & Payne Int'l Drilling Co. , ––– U.S. ––––, 137 S. Ct. 1312, 1316, 197 L.Ed.2d 663 (2017) ; Craftwood II, Inc. v. Generac Power Sys., Inc. , 920 F.3d 479, 481 (7th Cir. 2019).

When the collector here moved to dismiss the complaint, it did not declare whether it was launching a facial or factual attack on Bazile's allegations. Most of the collector's assertions are facial in form; they point out how Bazile failed to allege certain injuries that she might have sustained. But the collector also made a factual assertion that conflicts with an inference one could reasonably draw from Bazile's complaint: while Bazile's allegations support an inference that interest was accruing on the debt, the collector asserted that interest was not accruing. The collector emphasized this factual contention on appeal, and also questioned whether the letter's omission of information about interest affected Bazile's response to the correspondence or to the debt. The collector did not press the district court on these factual challenges or ask the district court for an evidentiary hearing on them. And the district court did not address the factual dispute. It instead decided the jurisdictional matter on the pleadings, alone, based on its reasoning in Larkin .

The district court in Larkin concluded that an alleged violation under § 1692e or § 1692f of the FDCPA by itself amounts to a concrete injury. But we held on appeal that "[i]t's not enough for an FDCPA plaintiff to simply allege a statutory violation; he must allege (and later establish) that the statutory violation harmed him ‘or "presented an appreciable risk of harm to the underlying concrete interest that Congress sought to protect." "...

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2 firm's commentaries
  • Seventh Circuit Reverses And Remands FDCPA Claim For Lack Of Standing
    • United States
    • Mondaq United States
    • 24 de setembro de 2021
    ...'ability to use [that information] for a substantive purpose that the statute envisioned.'" See Bazile v. Fin. Sys. of Green Bay, Inc., 983 F.3d 274, 280 (7th Cir. 2020) (quoting Robertson v. Allied Sols., LLC, 902 F.3d 690, 694 (7th Cir. 2018)). The Court held that Wadsworth's injuries, wh......
  • Seventh Circuit Reverses And Remands FDCPA Claim For Lack Of Standing
    • United States
    • Mondaq United States
    • 24 de setembro de 2021
    ...'ability to use [that information] for a substantive purpose that the statute envisioned.'" See Bazile v. Fin. Sys. of Green Bay, Inc., 983 F.3d 274, 280 (7th Cir. 2020) (quoting Robertson v. Allied Sols., LLC, 902 F.3d 690, 694 (7th Cir. 2018)). The Court held that Wadsworth's injuries, wh......

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