United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. Krask, United States Magistrate Judge
order of reference dated September 15, 2016, ECF No. 10, this
case was referred to the undersigned United States Magistrate
Judge for a report and recommendation on defendant RentGrow,
Inc.'s motion to dismiss, ECF No. 6, pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule
72(b) of the Federal Rules of Civil Procedure.
reasons stated herein, the Court RECOMMENDS that
defendant's motion to dismiss be DENIED.
8, 2016, plaintiff Walter Green, III ("Green"),
filed a complaint against defendants RentGrow, Inc.
("RentGrow") and Trans Union, LLC ("Trans
Union"), seeking relief for violations of the Fair
Credit Reporting Act ("FCRA"), 15 U.S.C. §
1681 et seq. Compl., ECF No. 1. The complaint
alleges that RentGrow "obtain[ed] and us[ed] the
Plaintiffs consumer reports without a permissible purpose to
do so, " in violation of 15 U.S.C. § 1681b(f)
(count one). Compl. ¶ 14. Green claims to have
suffered "actual damages, including a diminished credit
score, " as a result of RentGrow's conduct. Compl.
¶ 15. The complaint further alleges that RentGrow's
conduct was willful, and seeks punitive damages pursuant to
15 U.S.C. § 1681n. Compl. ¶ 15. Green also argues
in the alternative that RentGrow was negligent, entitling him
to recover under 15 U.S.C. § 1681 o. Compl. ¶ 16.
August 23, 2016, RentGrow moved to dismiss the complaint for
lack of subject-matter jurisdiction pursuant to Rule 12(b)(1)
of the Federal Rules of Civil Procedure. Mot. Dismiss, ECF No
6. RentGrow argues that Green lacks standing to pursue the
claim. Id. Green filed a memorandum in opposition to
the motion to dismiss, ECF No. 8, and RentGrow replied
thereto, ECF No. 9. The motion to dismiss is now ripe for
complaint alleges the following facts, among others. Green
resides in Virginia and, at all times relevant to the
complaint, was a "consumer" as defined by section
1681a(c) of the FCRA. Compl. ¶ 3. RentGrow is a foreign
corporation doing business in Virginia and, at all times
relevant to the complaint, was a "user" as defined
by the FCRA. Compl. ¶ 6. In April 2016, Green's
credit-monitoring service alerted him that, on or around
September 25, 2015, RentGrow received a copy of his Trans
Union credit report. Compl. ¶ 7. Green "immediately
became extremely concerned" that identity thieves had
accessed his personal information. Compl. ¶ 8. Green
learned, upon investigation, that RentGrow accessed his
credit report in relation to "a rental application for
an apartment complex located in Wisconsin." Compl.
¶ 9. The complaint states that Green did not apply for
an apartment in Wisconsin, and that he does not live in
Wisconsin. Compl. ¶ 10. Further, Green asserts that he
"never gave Defendant RentGrow permission to access his
credit report, nor did Defendant RentGrow have a permissible
purpose under the FCRA to obtain the Plaintiffs credit
reports in conjunction with this access of his credit
report." Compl. ¶ 11.
1681b of the FCRA lists the circumstances under which a
consumer reporting agency may furnish a consumer report. 15
U.S.C. § 1681b(a). The same section also prohibits a
person from "us[ing] or obtain[ing] a consumer report
unless ... the consumer report is obtained for a purpose for
which the consumer report is authorized to be furnished under
this section" and the prospective user appropriately
certifies the purpose. 15 U.S.C. § 1681b(f).
Rule of Civil Procedure 12(b)(1) permits a defendant to move
for dismissal of a claim based on a court's lack of
subject-matter jurisdiction. A.W. ex rel Wilson v.
Fairfax Cty. Sch. Bd, 548 F.Supp.2d 219, 221 (E.D. Va.
2008). As provided by Article III of the Constitution,
federal courts have subject-matter jurisdiction over
justiciable cases or controversies. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 559-60 (1992). The doctrine of
standing is one component of justiciability, "serv[ing]
to identify those disputes which are appropriately resolved
through the judicial process." Id. at 560
(citing Whitmore v. Arkansas, 495 U.S. 149, 155
(1990)). The standing issue - that is, "whether the
plaintiff has 'alleged such a personal stake in the
outcome of the controversy' as to warrant his invocation
of federal-court jurisdiction and to justify exercise of the
court's remedial powers on his behalf, " Warth
v. Seldin, 422 U.S. 490, 498-99 (1975) (quoting
Baker v. Carr, 369 U.S. 186, 204 (1962)), presents
"a threshold question in every federal case."
Id. at 498.
In order to satisfy the standing requirements of Article III
of the Constitution, a plaintiff must demonstrate that: (1)
[he] has suffered an injury in fact; (2) the asserted injury
in fact is fairly traceable to, or caused by, the challenged
action of the defendant; and (3) it is likely rather than
just conjectural that the asserted injury in fact will be
redressed by a decision in the plaintiffs favor.
Taubman Realty Grp. Ltd P'ship v. Mineta, 320
F.3d 475, 480 (4th Cir. 2003) (citing Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.
167, 180-81 (2000)).
Supreme Court has defined the first element of standing - an
"injury in fact" - as "an invasion of a
legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical." Lujan, 504 U.S. at 560
(citations and internal quotations omitted). In a recent
decision addressing FCRA claims, the Court further explained
the contours of the injury-in-fact requirement. See
Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016).
Spokeo, the plaintiff, Robins, brought a
class-action suit against the operator of a website that
allows users to search for personal information about other
individuals. Id. In response to an inquiry from a
user, the website searches multiple databases and generates a
profile of the inquiry's subject. Id. at 1546.
The profile can contain information about an individual's
"address, phone number, marital status, approximate age,
occupation, hobbies, finances, shopping habits, and musical
preferences." Id. Robins discovered that his
profile contained inaccurate information about his age,
marital status, education, and employment, among other
things. Id. Robins alleged that the website operator
willfully failed to comply with several FCRA provisions
relating to the use of consumer reports. Id. The
district court dismissed Robins's complaint, finding that
he failed to properly plead an injury in fact for purposes of
standing. Id. The Ninth Circuit reversed, concluding
that Robins did sufficiently allege such an injury.
Id. The Supreme Court vacated and remanded.
Court emphasized that "an injury in fact must be both
concrete and particularized." Id. at
1548. In order for an injury to be "concrete, " the
injury "must actually exist." Id. Both
tangible and intangible injuries can be concrete.
Id. at 1549. When determining whether an intangible
harm constitutes injury in fact, 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. (citing Vermont Agency of Nat.
Res. v. United States ex rel Stevens,529 U.S. 765,
775-77 (2000)). The judgment of Congress is also
"instructive and important, " as Congress "may
'elevat[e] to the status of legally cognizable injuries
concrete, de facto injuries that were previously
inadequate in law.'" Id. (quoting
Lujan, 504 U.S. at 578). A plaintiff, however, does
not automatically satisfy the injury-in-fact requirement
whenever Congress has granted a statutory right, because
"Article III standing requires a concrete injury even in
the context of a statutory violation." Id.
Accordingly, a plaintiff cannot satisfy the injury-in-fact
requirement by "alleg[ing] a bare procedural violation,
divorced from any concrete harm." Id. Still,
"the violation of a procedural right granted by statute
can be sufficient in some ...