United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT UNITED STATES DISTRICT JUDGE DATED:
matter is before the Court on the Motions to Dismiss
Plaintiffs First Amended Complaint, filed by Defendant PNC
Bank, N.A. ("PNC"), and Citizens Bank, N.A.
("Citizens"). (ECF #12, 19). Plaintiff filed an
Opposition to both motions, and Defendant, PNC Bank, NA
("PNC") filed a Reply in support of its Motion.
(ECF #18, 20, 21). The matter is now fully briefed and ripe
AND PROCEDURAL HISTORY
First Amended Complaint (ECF #9) brings claims against
Defendants PNC Bank, NA and Citizens Financial Group lnc for
negligent and willful violations of the Fair Credit Reporting
Act ("FCRA"), 15 U.S.C. §1681b(f). According
to the Complaint, Defendants are both "users" of
consumer credit and other financial information as defined
under FCRA, and are furnishers of consumer credit information
to the three national consumer reporting agencies. For
purposes of this motion, the parties do not dispute that Mr.
Duraj had one or more accounts with PNC Bank and with
Citizens or its predecessor, prior to his filing of
bankruptcy in February of 2014. Mr. Duraj alleges that his
accounts with both Defendants were discharged by the
Bankruptcy Court in May of 2014, and that both Defendants had
knowledge of the discharge. The Complaint also alleges that
following the discharge, in April of 2015, PNC requested and
obtained Mr. Duraj's consumer report from Experian
Information Solutions, Inc. ("Experian"), for
"account review" purposes, and that this request
was not authorized under the FCRA. The Complaint also alleges
that Citizens requested and obtained Mr. Duraj's consumer
report in August of 2015, for "account review"
purposes, in violation of the FCRA. At the time of the
requests, Mr. Duraj claims that he had no personal obligation
on any account with PNC or Citizens, and that he had not
requested or otherwise initiated any credit transaction or
debt obligation with either Defendant since his bankruptcy
discharge. Further, the Complaint alleges that the Defendants
have been notified of disputes by "dozens, if not
hundreds" of other consumers who have been subject to
similar illegal access to their financial and credit
information following bankruptcy discharge. Mr. Duraj claims
that these unauthorized requests for his private financial
information are a violation of his privacy and that the
intrusions have caused him emotional stress by creating a
fear of future invasions of privacy and of the possibility
that the Defendants are planning to engage in illegal
collection efforts against him.
evaluating a motion for dismissal under Rule 12(b)(6), the
district court must "consider the pleadings and
affidavits in a light most favorable to the [non-moving
party]." Jones v. City of Carlisle, Ky, 3 F.3d.
945, 947 (6th Cir. 1993) (quoting Welsh v. Gibbs,
631 F.2d 436, 439 (6th Cir. 1980)). However, though
construing the complaint in favor of the non-moving party, a
trial court will not accept conclusions of law or unwarranted
inferences cast in the form of factual allegations. See
City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp.
971, 975 (S.D. Ohio 1993). "A plaintiffs obligation to
provide the 'grounds' of his 'entitle[ment] to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Bell AtV Corp. v. Twombly, 550
U.S. 544, 555 (2007)(quoting Papasan v. Allain, 478
U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
"Factual allegations must be enough to raise a right to
relief above the speculative level." Twombly at
555. In deciding a Rule 12(b)(6) motion, this Court must
determine not whether the complaining party will prevail in
the matter but whether it is entitled to offer evidence to
support the claims made in its complaint. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
1681b of the FCRA allows a credit reporting agency to
disclose consumer information to requesters for certain
delineated purposes. Plaintiff asserts that Defendants did
not seek the requested information for any approved purpose.
Defendant claims that even if they did not seek the
information for legitimate reason, Plaintiff suffered no harm
and, therefore, has no constitutional standing to bring the
claim. Further, Defendants argue that Plaintiff did not
adequately plead a willful or negligent violation of the
establish Article IE standing, a Plaintiff must prove: (1)
that he has suffered an injury in fact; (2) that it is fairly
traceable to PNC's conduct; and, (3) that a favorable
decision will likely redress the injury. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Plaintiff bears the burden of establishing these elements.
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). An
injury in fact must be concrete and particularized, as well
as actual and imminent. Lujan, 504 U.S. at 560;
Friends of the Earth, Inc. v. Laidlaw Environmental
Services, Inc., 528 U.S. 167, 180-81 (2000). The Article
El requirement of a concrete injury applies even in the
context of a statutory violation. Spokeo, Inc. v.
Robbins, 578 U.S., 2016 WL 282447, 136 S.Ct. 1540
(2016). A "bare procedural violation divorced from any
concrete harm" does not satisfy the constitutional
standing requirements. Id. An injury, however, does
not have to be tangible to be concrete. Id. To
determine whether an intangible harm constitutes an injury in
fact, both history and the judgment of Congress play
important roles." Spokeo, 136 S.Ct. at 1549.
Mr. Duraj does not allege any harm to his credit score, he
does allege emotional harm resulting from an invasion of his
privacy and the stress of knowing that the Defendants have
and may continue to view his personal financial information
for improper purposes. Congress has expressed its judgment
that unauthorized disclosures of a consumer's private
personal and financial information creates a harm that is to
be avoided. The invasion of privacy is also a harm that is
generally recognized in the common law outside of the context
of a statutory violation. Although often intangible, an
invasion of privacy has an actual negative effect on a
plaintiff. It is not simply a bare procedural
violation. This Court and others have found, since
Spokeo, that the right to privacy is substantive and
violations of that right constitute a concrete harm
sufficient to establish Article EQ standing. See, Griffin
v. Bank of America, N.A., unreported. Case No.,
1:16-CV-1259 (N.D. Ohio December 28, 2016)(J. Nugent); In
re Nickelodeon Consumer Privacy Litig., - F.3d --, 2016
WL 3513782, at *7 (3d Cir. June 27, 2016); Thomas v. FTS
USA, LLC, Case No. 3:13-cV:825-REP (E.D. Va.
June 30, 2016). Therefore, the Complaint, which alleges
emotional distress and invasion of privacy, alleges
sufficient harm to satisfy the Article EI standing
requirements, even post-Spokeo.
Sufficiency of Pleadings
FCRA provides that a "person who willfully fails to
comply with any requirement imposed under this subchapter
with respect to any consumer" is liable for actual
damages, and potentially statutory and punitive damages. 15
U.S.C. §1681n(a). It also provides that any person who
"obtains a consumer report from a consumer reporting
agency under false pretenses or knowingly without a
permissible purpose" will be liable for actual damages
or $1000.00 statutory damages, whichever is greater. 15
First Amended Complaint alleges that PNC and Citizens both
obtained Mr. Duraj's credit report without a permissible
purpose. It lays out facts that would demonstrate why these
banks had no permissible reason to request the reports. It
also alleges that the banks had actual knowledge that they
were requesting the reports, and had actual knowledge that
they had no permissible reason to do so. Whether the alleged
activities were undertaken willfully, negligently, or not at
all, is a factual question that will be resolved at a later
stage of the litigation. For purposes of this motion,
however, the claim has ...