Landrum v. Blackbird Enterprises, LLC
Landrum v. Blackbird Enterprises, LLC
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Plaintiff, Jeffrey K. Landrum, filed this putative class action complaint against defendants Blackbird Enterprises, LLC d/b/a Allegiance Ambulance d/b/a Allegiance Mobile Health; Bluebird Medical Enterprises, LLC d/b/a Allegiance Ambulance d/b/a Allegiance Mobile Health; DPAR Roadrunner, LLC d/b/a Allegiance Ambulance d/b/a Allegiance Mobile Health; and, Lonestar Ambulance 1, LLC d/b/a Allegiance Ambulance d/b/a Allegiance Mobile Health (collectively, “Allegiance Ambulance” or “Defendants”) for alleged violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681, et seq.
I. Factual and Procedural Background
Landrum’s claim arises from an application for employment submitted to Allegiance Ambulance on or around September 21, 2014.
After completing and submitting his application, Landrum interviewed for a position at Allegiance Ambulance with Scott Brown, a District Manager.
Landrum alleges as his sole claim for relief Defendants’ failure to provide a stand-alone disclosure of their intent to seek a consumer report on him as required by statute.
II. Analysis
A. Applicable Law
1. Jurisdiction and Standing
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court’s subject-matter jurisdiction. “A case is properly-dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006, 1010 (5th Cir. 1998). The court may make its subject-matter determination by looking at “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Barrett Computer Services, Inc. v. PDA, Inc., 884 F.2d 214, 220 (5th Cir. 1989) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)).
“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Spokeo. Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 2317, 138 L.Ed.2d 849 (1997)). One element of the case-or-controversy requirement is that a plaintiff must establish, on the basis of the complaint, standing to sue. Raines, 117 S.Ct. at 2317 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2136-2137, 119 L.Ed.2d 351 (1992)). To have standing, “ [a] plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (citing Lujan, 112 S.Ct. at 2136). ‘Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly ... allege facts demonstrating’ each element.” Spokeo, 136 S.Ct. at 1547 (citing Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975)).
At issue in the present case is the “injury in fact” requirement for standing. “Injury in fact is a constitutional requirement, and ‘[i]t is settled that Congress cannot erase Article Ill’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.’” Spokeo, 136 S.Ct. at 1547-48 (citations omitted). “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 hu
2. The “Concrete Injury” Requirement
Landrum’s standing in this ease turns on whether he suffered a concrete injury. “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Spokeo, 136 S.Ct. at 1548 (citing Black’s Law Dictionary 479 (9th ed. 2009)). An injury-need not be tangible, but it cannot be merely abstract or hypothetical. Id. at 1548-49. “[T]he violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact.” Id. at 1549 (emphasis added). “But deprivation of a procedural right without some concrete interest that is affected by the deprivation — a procedural right in va-cuo — is insufficient to create Article III standing.” Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1151, 173 L.Ed.2d 1 (2009).
A recent Supreme Court decision involving standing to sue under the FCRA is directly applicable here. In Spokeo, — U.S. -, 136 S.Ct. 1540, 194 L.Ed.2d 635, the plaintiff-appellee became aware of inaccuracies regarding his personal information on the defendant-appellant’s website. Id. at 1546. The plaintiff sued, alleging various violations of the FCRA. Id. The trial court dismissed the suit for lack of subject-matter jurisdiction on the basis that the plaintiff lacked standing. Id The Ninth Circuit reversed after it determined that the alleged violations were sufficiently particularized to the plaintiff to establish standing. Id.
The Supreme Court reversed the Ninth Circuit because of its failure to determine whether the violations led to a concrete injury. Id. at 1550. The Court’s reasoning is instructive:
A violation of one of the FCRA’s procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.
Id. Although the Court ultimately left it to the circuit court to determine whether a concrete injury occurred, one thing is apparent from the Court’s holding: a bare procedural violation of the FCRA is not, by itself, a concrete injury. Id As the Fifth Circuit stated in a recent opinion considering the impact of Spokeo:
Put differently, the deprivation of a right created by statute must be accompanied by “some concrete interest that is affected by the deprivation.” Id. (quoting Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)). Thus, Spokeo recognizes that at minimum, a “epncrete” intangible injury based on a statutory violation must constitute a “risk of real harm” to the plaintiff. Id-
Lee v. Verizon Communications, Inc., 837 F.3d 523, 529, 2016 WL 4926159, at *1 (5th Cir. 2016).
The failure to provide information in accordance with a statute could constitute a concrete injury. Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 1118-20, 71 L.Ed.2d 214 (1982). For example, in Havens Realty, a case principally relied upon by Landrum, discriminatory misrepresentations about the availability of housing were sufficiently injurious to establish standing. Id. This was so even though the inquiries were made by “testers” who were not actually
B. Application
Defendants challenge this court’s jurisdiction on the basis of Plaintiffs failure to allege a concrete injury in fact.
Whether a violation of a statutorily created right confers standing turns on whether the right is substantive or merely procedural. Black’s Law Dictionary defines a “procedural right” as “[a] right that derives from legal or administrative procedure; a right that helps in the protection or enforcement of a substantive right. Cf. substantive right.” (10th ed. 2014) (emphasis added). A “substantive right,” on the other hand, is “[a] right that can be protected or enforced by law; a right of substance rather than form.” Id. To the extent that a violation of the procedural right has no effect on the substantive right, the bare procedural violation does not cause an injury of the sort that, alone, would support standing. Confusion understandably arises when the procedure is closely intertwined with the substantive right.
In this case the procedure, a specified manner for disseminating information, protects the underlying right to receive that information. The distinction is a subtle one, and an analogy may prove helpful. Consider a hypothetical statute requiring building managers to notify occupants in the event of a fire in a timely manner via a loudspeaker using specific language. Now imagine that, during a fire, a manager effectively communicates a warning to an occupant in a timely manner but does so in person, after which the occupant escapes unharmed. The occupant was subjected to a bare, procedural violation. If, however, another occupant was never warned but smelled smoke and safely exited the building, the latter occupant was subject to a substantive violation of his right to be timely notified, albeit without independent, “tangible” harm. In the latter case, a statutory remedy would be appropriate. In the former case, only the manner in which the warning was to be delivered (i.e., the procedure) failed to meet statutory guidelines. The underlying right, the right to be timely notified in the event of a fire, was honored.
The FCRA protects a consumer’s substantive right to be notified of the procurement and use of a consumer report for employment purposes. However, the requirement that the notice be in the form of a stand-alone disclosure is a procedural protection of that substantive right. Put yet another way, a statutory right to information is substantive. A statutory right to receive that information in a particular format is procedural.
Landrum has pled only a bare procedural violation. Notably absent from his stated “concrete” injuries is any mention that Defendants’ documents actually failed to inform him that Defendants intended to perform a background check. Landrum does not allege that the disclosure in his, application was substantively inadequate to
Landrum’s invasion-of-privacy claim fares no better. He claims Defendants invaded his privacy by “procurement of a consumer report without proper written authorization.”
Landrum does not allege that his purported authorization was ineffective, only that Defendants lacked “proper” written authorization because of the incorrectly formatted disclosure.
III. Conclusions and Order
For the reasons explained above, the court concludes that it lacks jurisdiction
FINAL JUDGMENT
In accordance with the court’s Memorandum Opinion and Order granting Defendants’ Motion to Dismiss, this action is DISMISSED FOR LACK OF JURISDICTION.
Costs are taxed against the plaintiff.
This is a FINAL JUDGMENT.
. Original Class Action Complaint ("Complaint”), Docket Entiy No. 1, p. 1.
. Id. at 6 ¶ 22.
. Id. at 7 ¶ 23; see also Exhibit 1 to Complaint ("Employment Application”), Docket Entry No. 1-1, p. 4.
. "Personal History Information,” Employment Application, Exhibit 1 to Complaint, Docket Entry No. 1-1, p. 2.
. Complaint, p. 7 ¶ 24.
. Id. ¶ 25; see also Exhibit 2 to Complaint (“E-mail Exchange”), Docket Entry No. 1-2.
. Id. ¶ 26.
. Id. Plaintiff did not provide the court with these documents, but for the purposes of the motion before the court the allegations are accepted as true.
. Id. ¶¶ 27-28.
. Id. at 18-19 ¶¶ 65-72.
. Id. at 15 ¶¶ 55-56.
. Motion to Dismiss, Docket Entry No. 12, pp. 1-2.
.In fact, it told him that, by electronically initialing the authorization, he “authorize[d] investigation into all statements and references contained in [the] application. Said investigation may include credit, driving, criminal background, references and other background checks.” Landrum also electronically signed a statement acknowledging that he had "read and understood” the above authorization. Employment Application, Exhibit 1 to Complaint, Docket Entry No. 1-1, p. 4.
. Complaint, Docket Entry No. 1, p. 15 V 55 (emphasis added).
. Id. ¶ 56.
. Id.
. Motion to Dismiss, Docket Entry No. 12, p. 2 n.l.
.Id.
. The court acknowledges Plaintiffs numerous supplemental authorities. To the extent that such authorities address the denial of. information rather than merely improper formatting (e.g., Church v. Accretive Health, Inc., 654 Fed.Appx. 990, 2016 WL 3611543 (11th Cir. July 6, 2016) (per curiam) (holding that the failure to provide a disclosure resulted in an informational injury sufficient to support standing), they are distinguishable. To the extent that those authorities fail to account for the Court's guidance in Spokeo (e.g., Robrinzine v. Big Lots Stores, Inc., 156 F.Supp.3d 920, 922 (N.D. Ill. 2016) (decided months before Spokeo)), they are inapposite.
Reference
- Full Case Name
- Jeffrey K. LANDRUM, For Himself and On Behalf of All Others Similarly Situated v. BLACKBIRD ENTERPRISES, LLC d/b/a Allegiance Ambulance d/b/a Allegiance Mobile Health Bluebird Medical Enterprises, LLC d/b/a Allegiance Ambulance d/b/a Allegiance Mobile Health DPAR Roadrunner, LLC d/b/a Allegiance Ambulance d/b/a Allegiance Mobile Health and Lonestar Ambulance 1, LLC d/b/a Allegiance Ambulance d/b/a Allegiance Mobile Health
- Cited By
- 11 cases
- Status
- Published