Blumenfeld v. Regions Bank
| Decision Date | 18 March 2019 |
| Docket Number | 4:16-cv-01652-ACA |
| Citation | 374 F.Supp.3d 1165 |
| Parties | Terry BLUMENFELD, Plaintiff, v. REGIONS BANK, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
John G. Watts, M. Stan Herring, Jr., Watts and Herring LLC, Birmingham, AL, for Plaintiff.
Mark David Foley, Jr., John David Collins, Stephen J. Bumgarner, Maynard Cooper & Gale PC, Birmingham, AL, for Defendant.
This matter comes before the court on Defendant Regions Bank's motion to dismiss the amended complaint for lack of standing (doc. 55) and motion to exclude evidence (doc. 60). In this case, Plaintiff Terry Blumenfeld asserts that Regions Bank violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. , and Alabama law by pulling her consumer report and sharing that report with her mother, all without Ms. Blumenfeld's consent.
Regions Bank contends that Ms. Blumenfeld lacks standing because she has asserted nothing more than a bare procedural violation of the FCRA for which she has not shown a concrete injury. In response, Ms. Blumenfeld submitted an affidavit in which she attests that she spent $ 40 to $ 50 on a lock box so that she could secure the consumer report that Regions Bank disclosed to her mother. This affidavit prompted Regions Bank to move to exclude that evidence for failing to timely disclose it during discovery.
The court DENIES the motion to dismiss because Ms. Blumenfeld has presented sufficient evidence to establish standing. The court DENIES the motion to exclude the evidence because Ms. Blumenfeld's failure to disclose the information is harmless.
The court described in detail the facts underlying this case in a previous memorandum opinion (see doc. 44), and will not now repeat all of those facts. Of relevance to the motions currently before the court, taken in the light most favorable to Ms. Blumenfeld, she has presented evidence that Regions Bank pulled her consumer report and shared that report with her mother, all while knowing it did not have her consent. (See id. at 4–6).
Ms. Blumenfeld testified that she has not experienced any issues with identity theft as a result of Regions Bank accessing or sharing her consumer report, and she is not aware of a decrease in her credit score.
(Doc. 30-1 at 145–46). She also testified that she did not have any out of pocket damages as a result of the violation. (Id. at 164). But she testified that she was very angry, embarrassed, and stressed about the disclosure of her consumer report to her mother. (Id. at 115).
Now, after the close of discovery, Ms. Blumenfeld has submitted an affidavit in which she attests that she also spent $ 40 to $ 50 on a lock box in order to secure the consumer report. (Doc. 56-3 at 4 ¶ 13). The affidavit does not explain why she never before disclosed the purchase of the lock box. (See generally id. ). After Regions Bank moved to exclude that part of the affidavit, Ms. Blumenfeld submitted another affidavit in which she states that "until [she] provided the affidavit to my lawyer ..., [she] did not at the time understand the $ 40 or $ 50 dollars I spent for the lock box to be the type of out of pocket damages defendant was asking about." (Doc. 63-1 at 2). Instead, she believed out of pocket damages meant "medical bills for seeing a doctor or a psychiatrist or psychologist or lost time from work." (Id. at 3).
Regions Bank has moved to dismiss the case and to exclude Ms. Blumenfeld's evidence that she spent money on a lock box. (Docs. 55, 60). The court will address the motion to dismiss first, followed by the motion to exclude. But before that, the court will briefly set out the statutory background.
Id. § 1681a(d)(1). Section 1681b(f) of the FCRA permits a user to obtain a consumer report only for those purposes for which an agency is authorized to furnish the report. Id. § 1681b(f)(1).
When enacting the FCRA, Congress found that "[t]here is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy." 15 U.S.C. § 1681(a)(4). Congress stated that the purpose of the FCRA was "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce ... in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information." Id. § 1681(b) ; see also Safeco Ins. Co. of Am. v. Burr , 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (). Congress later amended the FCRA to add requirements for users of consumer reports as well as the consumer reporting agencies themselves. See 15 U.S.C. § 1681b(f) ().
Regions Bank moves to dismiss the amended complaint for lack of standing, under Federal Rule of Civil Procedure 12(b)(1), on the basis that Ms. Blumenfeld has not presented any evidence that she suffered a concrete injury based on the bank's violation of the FCRA. (Doc. 55). Rule 12(b)(1) permits a party to move to dismiss a claim for "lack of subject-matter jurisdiction."
Under Article III of the United States Constitution, federal courts have subject matter jurisdiction only over "cases" or "controversies." U.S. Const. art. III, § 2; Muransky v. Godiva Chocolatier, Inc. , 905 F.3d 1200, 1207 (11th Cir. 2018). "Standing is one of the essential components of Article III's case or controversy requirement." Muransky , 905 F.3d at 1207. The plaintiff bears the burden of establishing standing by showing that she "(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." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). The only question is this case is whether Ms. Blumenfeld has established an injury in fact; the parties do not dispute traceability or redressability and the court finds that she has satisfied her burden on those elements.
Injury in fact requires a showing that the plaintiff "suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Spokeo , 136 S.Ct. at 1548 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Again, the parties do not dispute that Ms. Blumenfeld has adequately established an actual invasion of a legally protected interest, nor do they dispute that Ms. Blumenfeld's injury is particularized. See id. () (quotation marks omitted). The court finds that she has satisfied her burden on those points as well. The only dispute is whether Ms. Blumenfeld has shown that her injury is "concrete." (Doc. 55 at 3–4).
The United States Supreme Court has explained that to be concrete, any injury "must be ‘de facto ’; that is, it must actually exist." Spokeo , 136 S.Ct. at 1548. The injury may not be "abstract." Id. And "Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing." Id. at 1547–48.
But concrete does not necessarily mean tangible. Spokeo , 136 S.Ct. at 1549. In some cases, "the violation of a procedural right granted by statute can be sufficient ... to constitute injury in fact." Id. ; see also Havens Realty Corp v. Coleman , 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) () (quotation marks omitted). In those cases, "a plaintiff ... need not allege any additional harm beyond the one Congress has identified." Spokeo , 136 S.Ct. at 1549. To determine whether an intangible harm is concrete, courts should "consider 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." Id.
In Spokeo itself, the Supreme Court declined to express a view about whether a violation of the FCRA could, by itself, establish a concrete injury that would confer standing on a plaintiff. See Spokeo , 136 S.Ct. at 1550 (). But the Eleventh Circuit has addressed whether a statutory violation can confer standing on a few occasions.
Of the Eleventh Circuit decisions on this question, the court finds Perry v. Cable News Network, Inc. , 854 F.3d 1336 (11th Cir. 2017)...
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