United States District Court, E.D. Virginia, Richmond Division
ROSS A. MILLER, Plaintiff,
DISH NETWORK, L.L.C., Defendant.
E. Payne, Senior United States District Judge.
matter is before the Court on Defendant Dish Network,
L.L.C.'s MOTION TO DISMISS (ECF No. 20). For the
following reasons, the motion will be granted in part and
denied in part.
action under the Fair Credit Reporting Act
("FCRA"), Plaintiff Ross A. Miller, proceeding
pro se, sues Defendant Dish Network, L.L.C., on
grounds related to Dish Network's allegedly improper
acquisition of Miller's credit report.
initially brought this suit in the General District Court of
Richmond, Virginia on March 13, 2017. On June 9, 2017, Dish
Network removed the case to this Court. After removal, Dish
Network moved to dismiss Miller's Bill of Particulars
pursuant to Fed.R.Civ.P. 12(b) (6) . By MEMORANDUM ORDER (ECF
No. 17) dated March 29, 2018, the Court required Plaintiff to
replead his claims under Fed.R.Civ.P. 81(c) (2).
repleaded his claims on April 23, 2018. Dish Network has now
moved to dismiss Miller's First Amended Complaint
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
Relevant Factual Allegations
April 4, 2015, Miller obtained his Equifax credit report.
First Am. Compl. *3. He noticed a credit inquiry from Dish
Network. First Am. Compl. *3. He asked that Dish Network
remove the inquiry. First Am. Compl. *3. Dish Network
requested detailed information, which Miller provided. First
Am. Compl. *3. On July 7, 2015, Dish Network informed Miller
by letter that its investigation was completed and that it
had forwarded the removal request to Equifax for removal of
the inquiry within 45 days. First Am. Compl. *3. On January
10, 2017, Miller again obtained his Equifax credit report,
and the Dish Network inquiry was still present. First Am.
Compl. *3. Miller then requested that Equifax remove the
inquiry and sought to trigger a reinvestigation by Dish
Network and Equifax. First Am. Compl. *3. Equifax provided a
generic response, did not remove the inquiry, and there was
no meaningful reinvestigation. First Am. Compl. *3.
Accordingly, on January 31, 2017, Miller asked that Dish
Network remove the inquiry and pay for FCRA violations. First
Am. Compl. *3. Dish Network provided "a letter with the
same empty verbiage as their previous letter of July 7,
2015." First Am. Compl. *3. Miller followed up with a
letter demanding payment for FCRA violations. First Am.
claims that Dish Network had no permissible purpose for
obtaining his credit report. First Am. Compl. *4. He explains
that he "was simply shopping and comparing rates and
plans"; "merely requested information of
Defendant"; and "only inquired about prices,
various plans and availability of service." First Am.
Compl. *5. Miller "specifically demanded that Defendant
NOT pull his credit reports" and did not provide written
instructions to run his credit report. First. Am. Compl.
*4-5. And, he did not apply for or seek credit, employment,
insurance, government licenses or benefits, or any services
from Dish Network. First Am. Compl. *5, 7. Furthermore, no
government agencies were involved in the pull of the credit
report, and Miller was not under a court order to have his
credit report shared with Dish Network. First Am. Compl. *5.
Moreover, Miller never initiated a business transaction with
Dish Network and there has never been an account between
Miller and Dish Network. First Am. Compl. *4. Miller contends
that Dish Network "had absolutely no reason even to
believe it could obtain Plaintiff's credit report"
and "had a specific reason NOT to believe it could or to
[sic] obtain Plaintiff's credit report, because Plaintiff
clearly and unequivocally denied Defendant any permission to
obtain his credit report." First Am. Compl. *4-5.
states that Dish Network has a "usual practice of
obtaining credit reports of people who inquire about prices
and products." First Am. Compl. *6. He notes that Dish
Network "customarily certifies to the credit reporting
agency that it is requesting a credit report for the purpose
of a business transaction, when in fact Plaintiff did not
request DISH services nor initiate any business transaction
from Defendant at all." First Am. Compl. *7.
alleges that Dish Network's credit inquiry "lowered
his credit score, incorrectly signals to other creditors that
Plaintiff is seeking credit . . . and misrepresents
Plaintiff's true credit history." First Am. Compl.
*7. He asserts that the inquiry was on Miller's
"credit report for nearly a year," and each month
served as "a separate harm to his credit scores and
credit history." First Am. Compl. *8. Miller also
maintains that he has expended time and money writing to
credit reporting agencies and to Dish Network; "spent
money on paper, envelopes, ink and postage"; "paid
court filing fees"; and "spent money on parking and
gas driving to court." First Am. Compl. *8-9.
Additionally, Miller has suffered increased blood pressure
"over the months this has been going on and other
pre-existing medical conditions have been aggravated, because
of the considerable length of time this matter has
spanned." First Am. Compl. *9. And, he has had a
"diabetic flare-up" and needed to take additional
blood pressure medication. First Am. Compl. *9. Furthermore,
Miller has "suffered numerous negative emotions"
due to Dish Network's "in-actions,
misrepresentations, and deception," including
"aggravation, irritation, loss of happiness and loss of
enjoyment of old age, fear, worry, anger, tumult,
frustration, vexation and emotional distress." First Am.
Compl. *9. Finally, Miller contends that his privacy has been
invaded by Dish Network. First Am. Compl. *9., 
STANDARDS GOVERNING MOTIONS TO DISMISS UNDER FED. R. CIV. P.
12(b) (1) & 12(b) (6)
Network has moved to dismiss Miller's First Amended
Complaint pursuant to Fed.R.Civ.P. 12(b)(1), on the ground
that Miller does not have standing, and pursuant to
Fed.R.Civ.P. 12(b) (6), on the ground that Miller has failed
to state a cognizable legal claim. See Def.'s
principles governing Fed.R.Civ.P. 12(b)(1) are well
We have heretofore recognized that a defendant may challenge
subject matter jurisdiction in one of two ways. First, the
defendant may contend "that a complaint simply fails to
allege facts upon which subject matter jurisdiction can be
based." When a defendant makes a facial challenge to
subject matter jurisdiction, "the plaintiff, in effect,
is afforded the same procedural protection as he would
receive under a Rule 12(b)(6) consideration." In that
situation, the facts alleged in the complaint are taken as
true, and the motion must be denied if the complaint alleges
sufficient facts to invoke subject matter jurisdiction.
In the alternative, the defendant can contend-as the
Government does here-"that the jurisdictional
allegations of the complaint [are] not true." The
plaintiff in this latter situation is afforded less
procedural protection: If the defendant challenges the
factual predicate of subject matter jurisdiction, "[a]
trial court may then go beyond the allegations of the
complaint and in an evidentiary hearing determine if there
are facts to support the jurisdictional allegations,"
without converting the motion to a summary judgment
Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009) (citations omitted). Challenges to a complaint based on
standing are governed by Fed.R.Civ.P. 12(b)(1). See,
e.q, Benham v. City of Charlotte, 635 F.3d 129,
136 n.5 (4th Cir. 2011); Pagliara v. Fed. Home Loan
Mortg. Corp., 203 F.Supp.3d 678, 683 (E.D. Va.
2016). "When a complaint is evaluated at the pleading
stage . . . 'general factual allegations of injury
resulting from the defendant's conduct may suffice, for
on a motion to dismiss we presume that general allegations
embrace those specific facts that are necessary to support
the claim.'" Hutton v. Nat'l Bd. of
Examiners in Optometry, Inc., 892 F.3d 613, 620
(4th Cir. 2017) (citations omitted).
Civ. P. 12(b)(6) motions are evaluated under the following
Federal Rule of Civil Procedure 8(a)(2) requires only "a
short and plain statement of the claim showing that the
pleader is entitled to relief." When ruling on a motion
to dismiss [pursuant to Fed.R.Civ.P. 12(b)(6)], courts must
accept as true all of the factual allegations contained in
the complaint and draw all reasonable inferences in favor of
To survive a motion to dismiss, Plaintiffs' factual
allegations, taken as true, must "state a claim to
relief that is plausible on its face." The plausibility
standard is not a probability requirement, but "asks for
more than a sheer possibility that a defendant has acted
unlawfully." Although it is true that "the
complaint must contain sufficient facts to state a claim that
is plausible on its face, it nevertheless need only give the
defendant fair notice of what the claim is and the grounds on
which it rests." Thus, we have emphasized that "a
complaint is to be construed liberally so as to do
Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir.
2017) (citations omitted) .
Fed.R.Civ.P. 12(b)(1) and 12(b)(6), courts construe pro
se complaints liberally. See Willner v. Dimon,
849 F.3d 93, 103 (4th Cir. 2017); Kerr v. Marshall Univ.
Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016). As
the Supreme Court has instructed, "[a] document filed
pro se is 'to be liberally construed,' and
'a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.'" Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations
Dish Network's Fed.R.Civ.P. 12(b)(1) Motion
Network's first ground for seeking to dismiss the First
Amended Complaint is that Miller lacks constitutional
standing. Def.'s Br. 6-8. For the reasons set out below,
Miller has standing except as to the claim under the
Electronic Funds Transfer Act ("EFTA"), 15 U.S.C.
§ 1693 et seq.
Article III Standing
Fourth Circuit has explained the basic standards governing
the doctrine of standing as follows:
Article III of the U.S. Constitution limits the jurisdiction
of federal courts to "Cases" and
"Controversies." "One element of the
case-or-controversy requirement is that plaintiffs must
establish that they have standing to sue." To invoke
federal jurisdiction, a plaintiff bears the burden of
establishing the three "irreducible minimum
requirements" of Article III standing:
(1) an injury-in-fact (i.e., a concrete and particularized
invasion of a legally protected interest); (2) causation
(i.e., a fairly traceable connection between the alleged
injury in fact and the alleged conduct of the defendant); and
(3) redressability (i.e., it is likely and not merely
speculative that the plaintiff's injury will be remedied
by the relief plaintiff seeks in bringing suit).
Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017)
Supreme Court has defined the "injury-in-fact"
element as follows:
To establish injury in fact, a plaintiff must show that he or
she suffered "an invasion of a legally protected
interest" that is "concrete and
particularized" and "actual or imminent, not
conjectural or hypothetical." . . .
For an injury to be "particularized," it "must
affect the plaintiff in a personal and individual way."
Particularization is necessary to establish injury in fact,
but it is not sufficient. An injury in fact must also be
"concrete." . . .
A "concrete" injury must be "de
facto"; that is, it must actually exist. When we
have used the adjective "concrete," we have meant
to convey the usual meaning of the term-"real," and
not "abstract." Concreteness, therefore, is quite
different from particularization.
"Concrete" is not, however, necessarily synonymous
with "tangible." Although tangible injuries are
perhaps easier to recognize, we have confirmed in many of our
previous cases that intangible injuries can nevertheless be
In determining whether an intangible harm constitutes injury
in fact, both history and the judgment of Congress play
important roles. Because the doctrine of standing derives
from the case-or-controversy requirement, and because that
requirement in turn is grounded in historical practice, it is
instructive to 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. In addition, because Congress is well
positioned to identify intangible harms that meet minimum
Article III requirements, its judgment is also instructive
and important. Thus, we said in Lujan that Congress
may "elevat[e] to the status of legally cognizable
injuries concrete, de facto injuries that were
previously inadequate in law." Similarly, Justice
Kennedy's concurrence in that case explained that
"Congress has the power to define injuries and
articulate chains of causation that will give rise to a case
or controversy where none existed before."
Congress' role in identifying and elevating intangible
harms does not mean that a plaintiff automatically satisfies
the injury-in-fact requirement whenever a statute grants a
person a statutory right and purports to authorize that
person to sue to vindicate that right. Article III standing
requires a concrete injury even in the context of a statutory
violation. For that reason, Robins could not, for example,
allege a bare procedural violation, divorced from any
concrete harm, and satisfy the injury-in-fact requirement of
Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1548-49
(2016) (citations omitted) .
"causation" element "is satisfied where a
causal connection between the injury and the conduct
complained of ... is 'fairly traceable,' and not
'the result of the independent action of some third party
not before the court.''" Cooksey v.
Futrell, 721 F.3d 226, 238 (4th Cir. 2013) (citations
omitted). The "standard is not equivalent to a
requirement of tort causation." Hutton, 892 F.3d at 623
explaining the "redressability" element, the Fourth
Circuit has held that "[a]n injury is redressable if it
is 'likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.'"
Doe v. Va. Dep't of State Police, 713 F.3d 745,
755 (4th Cir. 2013) (citations omitted).
"[t]he Supreme Court has also cautioned that the
'absence of a valid . . . cause of action' does not
implicate the court's 'power to adjudicate the
case.'" Beyond Sys., Inc. v. Kraft Foods,
Inc., 777 F.3d 712, 716 (4th Cir. 2015) (citations
omitted). It is thus important to "take care not to
conflate a standing inquiry with a merits inquiry."
See id.; see also Covenant Media of SC, LLC v.
City of North Charleston, 493 F.3d 421, 428-29 (4th Cir.
Dish Network's Arguments & Analysis
Network's standing argument can be distilled to the
following: (1) most of the damages Miller alleges "are
not recoverable under the FCRA"; and (2) "those
that are lack any causal connection with Defendant's
alleged violation." See Def.'s Br. 6.
Network's first argument fails, as an initial matter,
because "the 'absence of a valid . . . cause of
action' does not implicate the court's 'power to
adjudicate the case.'" Beyond Sys., 777
F.3d at 716 (citations omitted). Dish Network "conflates
two separate issues: (1) the merits, whether [Miller] has
sufficiently stated a claim; and (2) jurisdiction, whether
the court has the power to reach the merits of [Miller's]
claim." See Green v. RentGrow, Inc.,
2:16-cv-421, 2016 WL 7018564, at *7 (E.D. Va. Nov. 10, 2016),
adopted, 2016 WL 7031287, at *1 (E.D. Va. Nov. 30,
apart from whether Miller's alleged damages are actually
recoverable under the FCRA, it is clear that these damages
are sufficient to provide Article III standing. Miller has
alleged, inter alia, that Dish Network obtained
Miller's credit report in violation of the FCRA, which
reduced his credit score, and Miller had to spend time and
money writing letters to credit reporting agencies and to
Dish Network to attempt to remove the improper inquiry.
See First Am. Compl. *3-4, 7-9. It is clear that a
reduction in credit score constitutes an injury in fact, and
numerous courts have taken that view. See, e.g.,
Crabtree v. Experian Info. Solutions, Inc.,
16-cv-10706, 2018 WL 1872112, at *4 (N.D. 111. Apr. 17,
2018), appeal docketed, No. 18-2191 (7th Cir. May
29, 2018); Boone v. T-Mobile USA Inc.,
17-378, 2018 WL 588927, at *8 (D.N.J. Jan. 29, 2018);
Duraj v. PNC Bank, N.A., l:17-cv-775, 2017 WL
5508380, at *2 (N.D. Ohio Nov. 15, 2017); Hickman v. Pa.
Higher Educ. Assistance, l:17-cv-388, 2017 WL 8186732,
at *4 (N.D.Ga. Sept. 27, 2017) (citing Pedro v. Equifax,
Inc., 868 F.3d 1275, 1280 (11th Cir. 2017)),
adopted, 2017 WL 821914 6, at *1 (N.D.Ga. Oct. 30,
2017); Kruckow v. Merchants Bank, 16-2418, 2017 WL
3084391, *3 n.4 (D. Minn. July 19, 2017); Ruk v. Crown
Asset Mgmt., LLC, 1:16-CV-3444, 2017 WL 3085282, at *6
(N.D.Ga. Mar. 22, 2017), adopted, 2017 WL 3085686,
at *3-4, 8 (N.D.Ga. June 8, 2017); Bultemeyer v. Century
Link, Inc., 14-02530, 2017 WL 634516, at *2 (D. Ariz.
Feb. 15, 2017), appeal docketed, No. 17-15858 (9th
Cir. Apr. 27, 2017); Adams v. Fifth Third Bank,
3:16-cv-218, 2017 WL 561336, at *3-4 (W.D. Ky. Feb. 10,
2017); Green, 2016 WL 7018564, at
the Fourth Circuit recently suggested, strongly, that a
reduced credit score (and out of pocket costs to correct it)
would suffice to establish an injury in fact. In Hutton, the
Fourth Circuit held, in a case alleging several state law
causes of action, that the plaintiffs had suffered a
non-speculative injury in fact where a data breach allowed
"fraudsters [to] use [ ]-and attempt [ ] to use-the
Plaintiffs' personal information to open Chase Amazon
Visa credit card accounts without their knowledge or
approval." See Hutton, 892 F.3d at 616, 622.
The Court of Appeals went on to state:
By way of example, the Hutton Complaint specifies that Hutton
received an unsolicited Chase Amazon Visa credit card that
was applied for using her social security number and her
maiden name .... Around the same time, Kaeochinda learned
that someone had applied for a Chase credit card using her
social security number and former married name. Mizrahi
also actually received an alert that her credit score had
decreased eleven points due to a credit application that was
fraudulently filed with Chase, using her address, social
security number, and mothers maiden name. She had to spend
time and resources to repair her credit. The Plaintiffs
do not allege that they suffered fraudulent charges on their
unsolicited Chase Amazon Visa credit cards, but the Supreme
Court long ago made clear that "[i]n interpreting injury
in fact . . . standing [is] not confined to those who [can]
show economic harm."
Id. at 622 (emphasis added) (citations omitted).
short, the Fourth Circuit determined that a data breach
resulting in actual identity theft constitutes an injury in
fact, and that it especially does so where it reduces a
party's credit score and requires that party to
spend time and resources to repair her credit.
In so holding, moreover, the Fourth Circuit necessarily
rejected the district court's view "that the
Plaintiffs had failed to sufficiently allege that they
suffered an injury-in-fact because . . . the Plaintiffs had
'incurred no fraudulent charges' and 'had not
been denied credit or been required to pay a higher
interest rate for credit they received.'"
See Hutton, 892 F.3d at 619 (emphasis added)
(citations omitted). Thus, the Fourth Circuit took the view
that a reduction in credit score (without a resulting denial
of credit or higher interest rate) could serve as an injury
in fact, and the Court can discern no reason why that view
would not apply in the FCRA context. Indeed, the Court of
Appeals in Hutton did not distinguish, in its
standing analysis, among the several causes of action raised.
See id. at 616.
Network's first argument also fails because Miller
alleges that Dish Network's actions resulted in
"aggravation, irritation, loss of happiness and loss of
enjoyment of old age, fear, worry, anger, tumult,
frustration, vexation and emotional distress." First Am.
Compl. *9. Emotional distress has been found to constitute an
injury in fact under the FCRA. See Adan v. Insight
Investigation, Inc., 16-cv-2807, 2018 WL 467897, at *6
(S.D. Cal. Jan. 18, 2018); Lovess v. Embrace Home Loans,
Inc., 17-2212, 2017 WL 4745452, at *2 (D. Md. Oct. 20,
2017); Ricketson v. Experian Info. Solutions, Inc.,
266 F.Supp.3d 1083, 1090-91 (W.D. Mich. 2017). And, the
Fourth Circuit has determined (in unpublished decisions) that
emotional damages can support an injury in fact under the
Fair Debt Collection Practices Act ("FDCPA"), using
generalized reasoning applicable to other contexts. See
Moore v. Blibaum & Assocs., P.A., 693 Fed.Appx. 205,
206 (4th Cir. 2017) (per curiam) ("This was not a case
where the plaintiff simply alleged ya
bare procedural violation [of the FDCPA], divorced from any
concrete harm.' Indeed, Moore alleged in her complaint
that as a consequence of B & A's alleged violations
of the FDCPA's proscribed practices, she 'suffered
and continues to suffer' from 'emotional distress,
anger, and frustration.' Moore therefore established the
existence of an injury in fact[.]" (citations omitted));
Ben-Davies v. Blibaum & Assocs., P.A., 695
Fed.Appx. 674, 676-77 (4th Cir. 2017) (per curiam) (similar).
This Court has reached the same conclusion in the FDCPA
context, likewise employing a generally applicable
characterization. See Brown v. R & B Corp. of
Va., 267 F.Supp.3d 691, 697 (E.D. Va. 2017) ("When
a plaintiff alleges an actual intangible injury such as
emotional distress, a plaintiff has sufficiently alleged a
concrete intangible injury."). Furthermore, emotional
distress is cognizable as actual damages under the FCRA.
See Robinson v. Equifax Info. Servs., LLC, 560 F.3d
235, 239 (4th Cir. 2009); see also Alston v. Freedom
Plus/Cross River, 17-0033, 2018 WL 770384, at *6 (D. Md.
Feb. 7, 2018). Thus, at minimum, emotional distress is a
concrete, intangible injury that Congress has identified as
"meet[ing] minimum Article III requirements."
See Spokeo, 136 S.Ct. at 1543.
Miller has alleged damages that are sufficient to establish
an injury in fact, and Dish Network's assertion that
those damages are not cognizable in no way defeats that
Network's second argument, i.e., that
Miller's claimed damages do not satisfy the
"causation" element of standing, also fails. Miller
directly asserts that "Defendant's credit inquiry on
Plaintiff's credit report lowered his credit score."
First Am. Compl. *7. And, Miller claims that his emotional
harms were the "result of Defendant's actions,
in-actions, misrepresentations, and deception." First
Am. Compl. *9. Construing Miller's First Amended
Complaint liberally, it is fairly inferable that those harms
stemmed from Dish Network's alleged violations of the
FCRA. In short, it is impossible to conclude that there is
not "a fairly traceable connection between the alleged
injury in fact and the alleged conduct of the
defendant." See Beck, 848 F.3d at 269
(citations omitted); see also Cooksey, 721 F.3d at
238.' Hence, the Court will deny Dish
Network's motion to dismiss on standing grounds as to
Miller's FCRA claims.
Electronic Funds Transfer Act Violations
asks the Court to refer Dish Network to the proper
authorities for its alleged violations of the EFTA. First Am.
Compl. *9-10. Miller has no standing to seek that relief,
however, because a favorable decree would not redress his
injuries without (speculative) third-party intervention.
See Doe, 713 F.3d at 755-57. Although Dish Network
only touches on this issue in passing, see
Def.'s Br. 1, "[w]hen a requirement goes to
subject-matter jurisdiction, courts are obligated to consider
sua sponte issues that the parties have disclaimed
or have not presented," United States v.
Wilson, 699 F.3d 789, 793 (4th Cir. 2012) (citations
omitted). Consequently, the Court will grant Dish
Network's motion to dismiss as to Miller's requested
relief for violations of the EFTA.
Dish Network's Fed.R.Civ.P. 12(b)(6) Motion
Network's alternative ground for seeking to dismiss the
First Amended Complaint is that Miller fails to state a claim
under 15 U.S.C. §§ 1681b(f) and 1681n(b).
Def.'s Br. 8-12. The Court disagrees with Dish
Network's arguments as to 15 U.S.C. § 1681b(f) but
will dismiss any claims under 15 U.S.C. § 1681n(b).
The 15 U.S.C. § 1681b(f) Claim 1. ...