United States District Court, E.D. Virginia, Norfolk Division
JEFFREY SCOTT RIDENOUR, on behalf of himself and others similarly situated, Plaintiff,
MULTI-COLOR CORPORATION, and STERLING INFOSYSTEMS, INC., Defendants
Jeffrey Ridenour, Individually and on behalf of all others
similarly situated, Plaintiff: Leonard Anthony Bennett, Susan
Mary Rotkis, LEAD ATTORNEYS, Consumer Litigation Associates,
Newport News, VA; David Anthony Searles, James Arthur
Francis, PRO HAC VICE, Francis & Mailman PC, Philadelphia,
Multi-Color Corporation, Defendant: Edmund M O'Toole,
Hillary Profita, PRO HAC VICE, Venable LLP (NY-NA), New York,
NY; Kishka-Kamari Ford McClain, Venable LLP (Vienna), Tysons
Sterling Infosystems, Inc., Defendant: Ahmed Jamal Davis,
LEAD ATTORNEY, Fish & Richardson PC (DC), Washington, DC.
Davis, UNITED STATES DISTRICT JUDGE.
matter is before the Court on a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), filed by defendant
Sterling Infosystems, Inc. (" Sterling" ). ECF No.
21. Sterling's motion asserts that the civil complaint,
filed by Jeffery Scott Ridenour (" Ridenour" or
" Plaintiff" ), fails to state a claim against
Sterling for a violation of the Fair Credit Reporting Act
(" FCRA" ). As set forth below, the pending motion
to dismiss is GRANTED in part, and DENIED in part.
complaint asserts that, in December of 2012, Ridenour applied
for full-time employment with defendant Multi-Color
Corporation (" MCC" ). Compl. ¶ ¶ 31-32,
ECF No. 1. As part of the application process, Plaintiff was
required to undergo a background check. Id.
Sterling, a consumer reporting agency (" CRA" ),
was hired by MCC to produce a background report on Ridenour,
to include his criminal record. Id. ¶ 32.
Sterling provided such report to MCC; however, Ridenour
asserts that Sterling misclassified a prior conviction for a
traffic offense as a criminal offense. Id. ¶
¶ 36, 42. Plaintiff further alleges that Sterling's
report was both incomplete and misleading to the point of
inaccuracy, as it was " impossible to determine the
date, nature, disposition or other information about the
so-called crime - which was, in fact, a misdemeanor traffic
offense." Id. ¶ ¶ 11, 55.
ultimately refused to hire Ridenour as a result of the
background report provided by Sterling. Id. 51 48.
Ridenour thereafter filed the instant action asserting that
Sterling and MCC committed violations of the FCRA associated
with both the creation of the background report and the
failure to timely notify Ridenour of the reliance on such
information. Sterling subsequently filed the instant motion
party's briefing calls into question the well-established
12(b)(6) standard of review, which permits dismissal of a
complaint, or a claim within a complaint, based on a
plaintiff's " failure to state a claim upon which
relief can be granted." Fed.R.Civ.P. 12(b)(6). A motion
to dismiss must be read in conjunction with Rule 8(a), which
requires only " a short and plain statement of the claim
showing that the pleader is entitled to relief,"
Fed.R.Civ.P. 8(a)(2), so as to " 'give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests,'" Bell A. Corp. v. Twombly,
550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(omission in original) (quoting Conley v. Gibson,
355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). While
Twombly held that a complaint must include enough facts for a
claim to be " plausible on its face" and thereby
" raise a right to relief above the speculative
level," district courts are required to assume that all
well-pled factual allegations " are true (even if
doubtful in fact)." Id. at 555, 570 (internal
citations omitted). District courts must also "
'draw all reasonable inferences in favor of the
plaintiff,'" taking care to avoid any invitation to
resolve factual disputes at the pleading stage.
Kensington Volunteer Fire Dep't v. Montgomery
County, 684 F.3d 462, 467 (4th Cir. 2012) (internal
quotation marks and citation omitted). Applying the above,
the ultimate determination as to whether a complaint states a
plausible claim is a " context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense." Ashcroft v.
Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d
Counts One and Two - 15 U.S.C. § 1681b(b)(3)
seeks dismissal of Counts One and Two of the complaint on the
ground that Plaintiff failed to allege that Sterling, as a
CRA that created Ridenour's background report, also
" use[d]" such report to take an " adverse
[employment] action" against Ridenour. 15 U.S.C. §
1681b(b)(3). After conducting a case-specific analysis, the
Court finds that Plaintiff has stated a plausible claim
against Sterling in Counts One and Two.
the Court rejects Sterling's contention that dismissal is
warranted because the allegations in the complaint are
factually inaccurate. This Court is required to analyze the
pending motion without resolving factual disputes, and the
Court is thus prohibited from granting Sterling's motion
based on the Court's " 'disbelief of [the]
complaint's factual allegations.'"
Iqbal, 556 U.S. at 696 (quoting
Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct.
1827, 104 L.Ed.2d 338 (1989)). Although Sterling's
12(b)(6) briefing strongly contests the accuracy of
Ridenour's claim that Sterling played an active role in
MCC's employment decisions, Sterling's facts must
play no part in the decisional process at this stage of the
the Court rejects Sterling's motion to the extent it
seeks dismissal because Ridenour bases some of his
allegations on " information and belief." A
plaintiff is generally permitted to plead facts based on
" information and belief" if such plaintiff is in a
position of uncertainty because the necessary evidence is
controlled by the defendant. See Raub v. Bowen, 960
F.Supp.2d 602, 615 (E.D. Va. 2013) (noting that although
" information and belief" pleadings are "
tenuous at best," such practice is permitted under Rule
8(a) when relying " on second-hand information to make a
good-faith allegation of fact" ); Arista Records,
LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) ("
The Twombly plausibility standard . . . does not prevent a
plaintiff from pleading facts alleged 'upon information
and belief' where the facts are peculiarly within the
possession and control of the defendant" ) (internal
quotation marks and citation omitted); 2-8 Moore's
Federal Practice § 8.04 (3d ed.) (" Nothing in
the Twombly plausibility standard prevents a plaintiff from
pleading on information and belief." ). A plaintiff is
also permitted to plead claims in the alternative, and claims
may be pled without regard to consistency. Fed.R.Civ.P. 8(d);
see C. Wright & A. Miller, 5 Federal Practice and Procedure
Civil § 1285 (3d ed.) (explaining that the Federal Rules
permit a plaintiff to allege alternative factual allegations,
but indicating that a plaintiff should do so only if "
after a reasonable inquiry, the pleader legitimately is in
doubt about the factual background . . . or is otherwise
justified in pleading in this fashion" (emphasis
added)). Critically, a district court must take care at the
12(b)(6) stage to avoid conflating the question of whether
the asserted facts state a plausible claim with the question
of whether such facts are accurate and/or pled in
viewing the well-pled factual matters in Plaintiff's
favor, Ridenour asserts that Sterling produced a background
report containing incomplete and/or inaccurate information
and that either MCC, Sterling, or both, used such report to
reject Ridenour's employment application. While other
allegations in the complaint plainly suggest that MCC is the
party that actually " use[d]" Sterling's report
to take an " adverse action" against Ridenour,
Plaintiff's " information and belief"
allegations against Sterling are not prohibited because the
current record suggests that the details of the relationship
between Sterling and MCC are known only to defendants.
Although Ridenour's allegations would undoubtedly be more
compelling if the complaint detailed the evidence supporting
the claimed " belief" that Sterling took an active
role in the employment decision process, " the facts on
which the pleader's belief is founded" are not
required to be alleged in a complaint governed by Rule 8(a),
as requiring such factual detail appears to be "
inconsistent with the philosophy of the federal pleading
rules." Wright & Miller, 5 Fed. Prac. & Proc. Civ.
drawing on this Court's " judicial experience and
common sense," Iqbal, 556 U.S.
at 679, and considering the factual allegations located
throughout the complaint, the Court finds that Counts One and
Two survive Sterling's 12(b)(6) motion even though the
allegations against Sterling are strongly contested. Subsumed
within such finding, the Court rejects Sterling's
separate contention that, under any set of facts, Sterling
cannot have " use[d]" the report to take an adverse
employment action because Sterling is the CRA that created
such report. See Goode v. LexisNexis Risk & Info.
Analytics Grp., Inc.,848 F.Supp.2d 532, 542 (E.D. Pa.
2012) (finding that a CRA could qualify as a "
person" that uses a consumer report to take an adverse
employment action as contemplated by § 1681b(b)(3));
Henderson v. Infomart Inc., No. 1:14cv1609, slip op.
at 19-30 (N.D.Ga. Aug. 15, 2014) (R& R subsequently adopted
without change by the district judge reaching the same
conclusion); see also Kingery v. Quicken Loans,