ROBERTSON V. ALLIED SOLUTIONS

Filing 58

CLOSED DISMISSED - Court after considering the Plaintiff's arguments, still believes that the holding of Groshek dictates a finding that the Plaintiff lacks Article III standing and therefore the Court lacks subject matter jurisdiction over this case. Accordingly, the Plaintiff's Amended Complaint is dismissed without prejudice. ***SEE ENTRY*** Signed by Judge William T. Lawrence on 10/10/2017.(JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SHAMECA S. ROBERTSON, on behalf )
of herself and all others similarly
)
situated,
)
)
Plaintiff,
)
)
vs.
) Cause No. 1:15-cv-1364-WTL-DML
)
ALLIED SOLUTIONS, LLC,
)
)
Defendant.
)
ENTRY OF DISMISSAL
After the parties in this case moved for preliminary approval of a settlement class, the
Court directed them to brief whether the Plaintiff had alleged the type of injury-in-fact necessary
to establish that she has Article III standing. See Dkt. No. 47. The parties did so. See Dkt. Nos.
51 and 52. The Seventh Circuit subsequently decided Groshek v. Great Lakes Higher Education
Corp., 865 F.3d 884 (7th Cir. 2017), a case highly relevant to the issue of standing in this case.
The Court then ordered the Plaintiff to show cause why this case should not be dismissed for
lack of standing in light of the holding in Groshek. See Dkt. No. 55. The parties have filed
responses to the order to show cause, which the Court has considered. See Dkt. Nos. 56 and 57.
The Court, being duly advised, now finds that this case must be dismissed for lack of subject
matter jurisdiction.
As the Court noted in its order to show cause, in Groshek, the plaintiff, like the Plaintiff
in this case, alleged a violation of the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.,

(“FCRA”). Specifically, under the FCRA, a prospective employer may not obtain a consumer
report for employment purposes unless
(i) a clear and conspicuous disclosure has been made in writing to the job applicant
at any time before the report is procured, in a document that consists solely of the
disclosure, that a consumer report may be obtained for employment purposes
(commonly known as the “stand-alone disclosure requirement”); and, (ii) the job
applicant has authorized in writing the procurement of the report.
Groshek, 865 F.3d at 886 (quoting 15 U.S.C. § 1681b(b)(2)(A)(i)-(ii)). The plaintiff in Groshek
alleged that while the defendants had provided him with the disclosure, they had failed to do so
in a stand-alone document as required by the statute. Similarly, the Plaintiff in this case alleges
that the Defendant violated the FCRA in two ways. First, she alleges that the disclosure
document she was provided (“the Document”) failed to comply with 15 U.S.C. § 1681b(b)(2)(A)
because it was not a “clear and conspicuous disclosure . . . in a document that consists solely of
the disclosure, that a consumer report may be obtained for employment purposes.” Instead, the
Document contained myriad other information and disclosures. Second, she alleges that the
Defendant violated 15 U.S.C. § 1681b(b)(3)(A)(i), which provides, in relevant part, that
in using a consumer report for employment purposes, before taking any adverse
action based in whole or in part on the report, the person intending to take such
adverse action shall provide to the consumer to whom the report relates (i) a copy
of the report; and (ii) a description in writing of the rights of the consumer under
this subchapter, as prescribed by the Bureau under section 1681g(c)(3) of this title.
In determining that Groshek had failed to plead the type of concrete injury required to
establish Article III standing to sue over the statutory violation, the Seventh Circuit
acknowledged that while “‘Congress is well positioned to identify intangible harms that will give
rise to concrete injuries, which were previously inadequate in law,’” “‘Congress’ judgment that
there should be a legal remedy for the violation of a statute does not mean each statutory
violation creates an Article III injury.’” Id. at 887 (quoting Spokeo, Inc. v. Robins, 136 S. Ct.

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1540, 1548 (2016), and Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724, 727 (7th Cir.
2016)).
For instance, a plaintiff cannot satisfy the injury-in-fact element by alleging a “bare
procedural violation” that is “divorced from any concrete harm.” Spokeo, 136 S.
Ct. at 1549. Instead, the plaintiff must show that the statutory violation presented
an “appreciable risk of harm” to the underlying concrete interest that Congress
sought to protect by enacting the statute. Meyers, 843 F.3d at 727; see also Spokeo,
136 S. Ct. at 1549-50.
Id. The court determined that the stand-alone disclosure provision in the FCRA “is clearly
designed to decrease the risk of a job applicant unknowingly providing consent to the
dissemination of his or her private information. Section 1681b(b)(2)(A)(ii), the authorization
requirement, further protects consumer privacy by providing the job applicant the ability to
prevent a prospective employer from procuring a consumer report, i.e., by withholding consent.”
Id. (citing S. Rep. No. 104-185 at 35 (1995)). The court then held:
Here, Groshek did not allege that Appellees failed to provide him with a disclosure
that informed him that a consumer report may be obtained for employment
purposes. His complaint contained no allegation that any of the additional
information caused him to not understand the consent he was giving; no allegation
that he would not have provided consent but for the extraneous information on the
form; no allegation that additional information caused him to be confused; and, no
allegation that he was unaware that a consumer report would be procured. Instead,
he simply alleged that Appellees’ disclosure form contained extraneous
information. We conclude that Groshek has alleged a statutory violation
completely removed from any concrete harm or appreciable risk of harm.
Id.
Similarly in this case, the Plaintiff alleges that the Defendant failed to comply with the
requirements of the FCRA, but like Groshek, the Plaintiff does not allege that the failure affected
her in any way. She does not allege that she misunderstood or was misled in any way by the
Document. She does not allege that but for the alleged deficiencies of the Document she would
not have authorized the Defendant to access her consumer report. She does not allege that there

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was any explanation or information she could have given the Defendant about the information in
her consumer report that could have altered the Defendant’s decision to revoke her employment
offer. As in Groshek, the statutory violation at issue could have caused harm, and in Congress’s
estimation there was enough theoretical risk of harm to enact the statutory requirement to protect
individuals from it, but here there is no allegation that there was any harm or appreciable risk of
harm to the Plaintiff.
In her supplemental jurisdictional filings, the Plaintiff cites the Ninth Circuit’s opinion in
Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017), in support of her argument that she has Article
III standing in this case. However, the Seventh Circuit found Syed to be inapposite in Groshek,
noting that in Syed, “[t]he court, drawing all reasonable inferences in plaintiff’s favor determined
that the plaintiff was ‘confused by the inclusion of the liability waiver with the disclosure and
would not have signed it had it contained a sufficiently clear disclosure, as required by the
statute,’” while Groshek “present[ed] no factual allegations plausibly suggesting that he was
confused by the disclosure form or the form’s inclusion of a liability release, or that he would not
have signed it had the disclosure complied with 15 U.S.C. § 1681b(b)(2)(A)(i).” Groshek, 865
F.3d at 889 (quoting Syed, 853 F.3d at 499-500). The Plaintiff in this case also has made no such
factual allegations.
The Plaintiff argues that her case is distinguishable from Groshek because her “additional
claim under § 1681b(b)(3) is substantive in nature, and easily tied to a particularized and
concrete injury – the loss of a job.” Dkt. No. 56 at 2. However, while the Plaintiff did, in fact,
lose her job, there is no allegation that her job loss was caused in any way by the FCRA
violations she alleges. In other words, the facts as alleged by the Plaintiff demonstrate that she
lost her job because of information contained in the report obtained by the Defendant, not

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because that information may have been obtained and used in a way that violated the procedural
requirements of the FCRA. Thus, her case is readily distinguishable from the case she cites,
Tyus v. United States Postal Serv., 2017 WL 2656181 (E.D. Wis. June 20, 2017), in which the
plaintiff alleged that the report considered by the defendant contained “multiple inaccuracies”
and that had he been given time to “dispute and explain” the information in the report as required
by the FCRA, his injury—the denial of a security clearance—would have been avoided. The
Plaintiff in this case makes no such allegation and points to no explanation she was prevented
from giving because of the alleged FCRA violations.
For the reasons set forth above, the Court, after considering the Plaintiff’s arguments, still
believes that the holding of Groshek dictates a finding that the Plaintiff lacks Article III standing
and therefore the Court lacks subject matter jurisdiction over this case. Accordingly, the
Plaintiff’s Amended Complaint is dismissed without prejudice.
In her response to the Order to Show Cause, the Plaintiff argues that “the Court should
order at most, that Robertson amend her pleading to allege facts sufficient to establish Article III
jurisdiction under both Spokeo and Groshek.” The Plaintiff does not cite to any authority for the
proposition that once a complaint is dismissed for lack of subject matter jurisdiction—as
opposed to for failure to state a claim—it is appropriate to hold the case open for the filing of an
amended complaint. The Plaintiff also does not indicate what facts she would allege in an
amended complaint that would give this Court jurisdiction over this case or explain why, if such
facts exist, she did not include them in her response to the order to show cause. Cf. Farnik v.
F.D.I.C., 707 F.3d 717, 721 (7th Cir. 2013) (“To determine whether jurisdiction exists, we look
beyond the jurisdictional allegations of the complaint and consider any evidence submitted on
the issue.”) (citing Alicea–Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 701 (7th Cir.

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2003)). Accordingly, the Court declines the Plaintiff’s request for leave to file a second
amended complaint and will enter judgment dismissing this case without prejudice for lack of
subject matter jurisdiction.
SO ORDERED: 10/10/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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