Robinson v. Capital One Bank (USA), N.A.
| Decision Date | 30 September 2020 |
| Docket Number | Case No. 19-2275-DDC-KGG |
| Parties | ANTHONY T. ROBINSON, Plaintiff, v. CAPITAL ONE BANK (USA), N.A., Defendant. |
| Court | U.S. District Court — District of Kansas |
Plaintiff Anthony T. Robinson has filed a Second Amended Complaint in his class action lawsuit, alleging violations of the Fair Credit Reporting Act ("FCRA") against defendant Capital One Bank (USA), N.A. (Doc. 26). Defendant has filed a Motion to Dismiss Plaintiff's Second Amended Complaint, Dismiss Class Claims for Lack of Personal Jurisdiction, and Strike Plaintiff's Class Allegations (Doc. 28). Plaintiff responded (Doc. 37) and defendant has replied (Doc. 39). For reasons explained below, the court grants defendant's motion in part, denies it in part, and declines to reach the remaining requests in his motion because its other rulings make them moot.
The following facts come from the Second Amended Complaint (Doc. 26) and the court views them in the light most favorable to plaintiff. SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) .
In June 2009, plaintiff closed an account with HSBC Bank with a zero balance. Doc. 26 at 2 (Second Am. Compl. ¶¶ 14-15). Plaintiff always had made timely payments on the account. Id. at 3 ). In 2012, defendant purchased the account from HSBC Bank. Id. ). It became the owner and servicer of plaintiff's closed account. Id. Several years later, defendant acquired or used plaintiff's Experian credit report on 14 dates between April 2017 and February 2018. Id. ). These inquiries—called "pulls" or "credit pulls"—were not listed in plaintiff's Trans Union or Equifax consumer reports and Experian did not label them as "promotional pulls." Id. ). Plaintiff "is informed and believes" that defendant certified these Experian consumer reports for the purpose of an "account review." Id. ). At the time of these 2017 and 2018 credit pulls, plaintiff was not involved in any credit transaction with defendant. Id. at 4 ). He never consented to these credit pulls. Id. ). Plaintiff had neither applied for employment with defendant nor did he intend to "have any interaction with Defendant in connection with insurance." Id. ).
Defendant's regular practice is to acquire consumer reports from a consumer reporting agency even though the consumer has paid any alleged debt or balance to defendant. Id. ). The reviews defendant conducted on plaintiff's account indicate that defendant's process for acquiring and using consumer reports is automated. Id. ). This automated process results in a pattern and practice of defendant acquiring or using putative class members' consumer reports on a periodic basis. Id. ). Defendant's "regular practice" is to acquire or use consumer reports from a consumer reporting agency for consumers who defendant once had a consumer-creditor relationship, but no longer does. Id. at 5 ).
Defendant has moved under Fed. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(6), and 12(f) to dismiss plaintiff's Second Amended Complaint with prejudice. Doc. 28. Defendant asserts that plaintiff has failed to plead an injury-in-fact sufficient to establish standing and has failed to state a FCRA claim for which the court can grant relief. As for the class allegations, defendant asserts that the court lacks personal jurisdiction over defendant for the claims of class members residing outside Kansas, and asserts that the court should strike plaintiff's class allegations.
Article III of the Constitution demands that the court first consider the issue of subject matter jurisdiction.
Defendant seeks dismissal of plaintiff's Complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Defendant contends plaintiff's Second Amended Complaint fails to allege that he sustained a concrete injury sufficient to confer standing under Article III. Doc. 29 at 17.
The Federal Rules of Civil Procedure permit a defendant to move to dismiss for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). Federal district courts have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. §§ 1331-32. "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Basso v. Utah Power & Light Co., 495F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since federal courts are courts of limited jurisdiction, the party invoking federal jurisdiction bears the burden to show that it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Kinney v. Blue Dot Servs., 505 F. App'x 812, 814 (10th Cir. 2012) (). Standing to sue is elemental to subject matter jurisdiction. The court thus must resolve this threshold question before expressing any opinion about a case's substance. See Rivera v. IRS, 708 F. App'x 508, 513 (10th Cir. 2017) .
Article III of the United States Constitution limits federal courts' jurisdiction to "cases" and "controversies." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013). To present a case or controversy under Article III, a plaintiff must establish that he has standing to sue. Id. (citations omitted). The standing doctrine developed "to ensure that federal courts do not exceed their authority as it has been traditionally understood" and its application "limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016) (citations omitted).
Article III standing requires the plaintiff to demonstrate: (1) an "injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual orimminent, not conjectural or hypothetical[;]" (2) "a causal connection between the injury and the conduct complained of—the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court[;]" and (3) that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotations and citations omitted). At the pleading stage, general factual allegations can carry plaintiffs' burden to establish the elements of Article III standing because the court must "'presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan, 504 U.S. at 561 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990)). "Each plaintiff must have standing to seek each form of relief in each claim." Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007). "At bottom, the gist of the question of standing is whether [plaintiffs] have such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination." Massachusetts v. EPA, 549 U.S. 497, 517 (2007) (citation and internal quotation marks omitted).
At the "pleading stage, the plaintiff must 'clearly . . . allege facts demonstrating' each element" of Article III standing. Spokeo, Inc., 136 S. Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). But general factual allegations are sufficient to carry plaintiffs' burden of establishing those elements because the court must "'presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan, 504 U.S. at 561 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990)).
"To establish injury in fact, a plaintiff must show that he . . . suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560). In Spokeo, the Supreme Court considered whether a plaintiff had standing to bring a FCRA action where he alleged that defendant Spokeo had disseminated incorrect information about plaintiff via its "people search engine" and thus violated various statutory requirements that the FCRA imposes on consumer reporting agencies. Id. at 1545-46. In holding that the court below failed to consider adequately whether the alleged injury was concrete, the Supreme Court noted that a concrete injury must be a real injury that actually exists, but explained that the term "concrete" is not ...
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