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Miller v. Dish Network, L.L.C.

United States District Court, E.D. Virginia, Richmond Division

July 31, 2018

ROSS A. MILLER, Plaintiff,
DISH NETWORK, L.L.C., Defendant.


          Robert E. Payne, Senior United States District Judge.

         This 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.


         I. Procedural Context

         In this 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.

         Miller 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).

         Miller 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).

         II. Relevant Factual Allegations

         On 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. Compl. *3.

         Miller 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.

         Miller 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.

         Miller 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.[1], [2]


         Dish 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 Br. 1-2.

         The principles governing Fed.R.Civ.P. 12(b)(1) are well established:

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 proceeding.

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citations omitted).[3] 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).

         Fed. R. Civ. P. 12(b)(6) motions are evaluated under the following standards:

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 the plaintiff.
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 substantial justice."

Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017) (citations omitted) .

         Under 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 omitted).


         I. Dish Network's Fed.R.Civ.P. 12(b)(1) Motion

         Dish 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.

         A. Article III Standing

         The 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) (citations omitted).

         The 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 concrete.
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 Article III.

Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1548-49 (2016) (citations omitted) .

         The "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 (citations omitted).

         In 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).

         Finally, "[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. 2007).

         B. Dish Network's Arguments & Analysis

         Dish 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.

         Dish 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, 2016).

         Wholly 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 *7-8.[4]

         Indeed, 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).

         In 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.[5]

         Dish 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).[6] 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.[7]

         In sum, 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 conclusion.[8]

         Dish 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.[9]'[10] Hence, the Court will deny Dish Network's motion to dismiss on standing grounds as to Miller's FCRA claims.

         C. Electronic Funds Transfer Act Violations

         Miller 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.

         II. Dish Network's Fed.R.Civ.P. 12(b)(6) Motion

         Dish 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).

         A. The 15 U.S.C. § 1681b(f) Claim 1. ...

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