Mitchell v. BancFirst Corporation et al
MEMORANDUM AND ORDER denying 11 Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Carlos Murguia on 1/9/18. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 17-2036
MEMORANDUM & ORDER
This matter is before the court on defendant BancFirst’s Motion to Dismiss for Lack of
Jurisdiction (Doc. 11). Plaintiff Ryan Mitchell brings this action against defendant for violations of the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. Defendant argues the claim should be
dismissed for lack of personal jurisdiction. For the following reasons, the court denies defendant’s
In August 2010, plaintiff, an Oklahoma resident, entered into a financing agreement with
defendant, an Oklahoma banking corporation, in which defendant loaned plaintiff $29,566 for the
purchase of a 2010 Ford F-150. Defendant then began reporting information about the loan to the
three major consumer reporting agencies, including Trans Union. Plaintiff obtained a copy of his
credit report in 2015 and alleges defendant had been reporting inaccurate information regarding the car
loan, including reports that plaintiff was late making seven payments in 2015.
contacting the credit reporting agencies to correct the alleged misinformation. Trans Union responded,
stating it had verified the information with defendant and did not change plaintiff’s credit report.
Despite plaintiff’s repeated attempts to dispute the alleged inaccurate information, defendant and Trans
Union have not corrected plaintiff’s credit report. Plaintiff initiated this lawsuit alleging violations of
the FCRA. Specifically, plaintiff claims defendant violated its duty to investigate disputes initiated
from consumers to the credit reporting agencies as to the accuracy of information reported by the
furnisher as required by 15 U.S.C. § 1681s-2(b)(1). Plaintiff states that he contacted the credit
reporting agencies to dispute the accuracy of the information being reported by defendant, and
defendant failed to investigate these disputes. Plaintiff also alleges he directly contacted defendant
regarding the inaccurate report, and defendant responded by letter stating he had no late payments on
Defendant moved to dismiss the case under Rule 12(b)(2) of the Federal Rules of Civil
Procedure, arguing plaintiff has failed to establish personal jurisdiction in Kansas. Defendant states it
is an Oklahoma corporation headquartered in Oklahoma City, OK and that all of its offices and
branches are located within Oklahoma. Defendant states it has no employees or physical facilities in
Kansas, it does not advertise or solicit customers in Kansas, and it is not registered to do business in
Kansas. Less than one percent of its customers have a Kansas address. Plaintiff was an Oklahoma
resident when he entered into the financing agreement with defendant, but plaintiff now lives in
Kansas. Defendant argues that it does not have any continuous or systematic contacts with Kansas and
has not purposefully directed any of its activities at Kansas. The only connection defendant claims to
have with the forum in regard to this litigation is the fact that plaintiff currently lives in Kansas.
Plaintiff argues he has established personal jurisdiction because defendant purposefully
directed its activities at the state of Kansas by inaccurately reporting credit information to Trans Union,
which injured his reputation while he resided in Kansas.
In order for a court to exercise personal jurisdiction, a defendant must have “minimum
contacts” with the forum state, “such that having to defend a lawsuit there would not ‘offend
traditional notions of fair play and substantial justice.’” Dudnikov v. Chalk & Vermillion Fine Arts,
Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (citing Int’l Shoe v. Washington, 326 U.S. 310, 316 (1945)).
Plaintiff bears the burden of establishing personal jurisdiction. Id. Nonresident defendants may
possess the necessary minimum contacts with a forum in one of two ways: general jurisdiction or
specific jurisdiction. General jurisdiction is “based on an out-of-state defendant’s ‘continuous and
systematic’ contacts with the forum state.”
Id. at 1078.
As plaintiff has not alleged general
jurisdiction over defendant, the court will focus its analysis solely on specific jurisdiction.
A court may exercise specific jurisdiction over a defendant if the defendant has “‘purposefully
directed’ his activities at residents of the forum, and the litigation results from alleged injuries that
‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)
(internal citations omitted). The Tenth Circuit has delineated three factors that indicate purposeful
direction: “(a) an intentional action . . . that was (b) expressly aimed at the forum state . . . with (c)
knowledge that the brunt of the injury would be felt in the forum state.” Dudnikov, 514 F.3d at 1072
(citing Calder v. Jones, 465 U.S. 783 (1984)).
When analyzing whether a forum may assert specific jurisdiction over a nonresident defendant,
courts must focus on the relationship between “the defendant, the forum, and the litigation.” Walden v.
Fiore, 134 S. Ct. 1115, 1121 (2014). Therefore, the inquiry depends on whether the defendant’s “suitrelated conduct” creates a “substantial connection with the forum state.” Id.
These contacts must
arise out of contacts the “defendant himself” creates with the forum state, and cannot depend on the
defendant’s contacts with persons who reside in the forum state. Id. at 1122. Plaintiff’s contacts with
the forum state cannot be the decisive factor. Id. (citing Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 417 (1984) (“[The] unilateral activity of another party or a third person is not an
appropriate consideration when determining whether a defendant has sufficient contacts with a forum
State to justify an assertion of jurisdiction.”)). And a plaintiff cannot be the only link between the
defendant and the forum; “[r]ather, it is the defendant’s conduct that must form the necessary
connection with the forum State that is the basis for its jurisdiction over him.” Id.
Plaintiff relies solely on the United States Supreme Court’s decision in Calder to support his
argument that this court may exercise personal jurisdiction over defendant. In Calder, a television
actress brought a libel suit in California against a reporter and editor of the National Enquirer who both
worked at the publication’s Florida headquarters. 465 U.S. at 785–86. The Court found that although
defendants were residents of Florida, they had knowingly caused injury to the plaintiff in California
and California was the “focal point” of the story and of the harm suffered. Id. at 789–90. The Court
noted that the story—which was drawn from California sources—was about the “California activities
of a California resident,” and the injury to the plaintiff’s reputation and her emotional distress were
suffered in California. Id. at 788–89.
Plaintiff argues his case is analogous to Calder because he has suffered reputational damage as
a result of defendant’s actions. Plaintiff accurately notes that Congress intended the FCRA to serve as
a replacement for state law claims related to libel and invasion of privacy. See, e.g., Zamora v. Valley
Fed. Sav. & Loan Ass’n, 811 F.2d 1368, 1370 (10th Cir. 1987) (“By enacting the FCRA, Congress
intended to prevent invasions of consumers’ privacy); Virginia G. Maurer, Common Law Defamation
and the Fair Credit Reporting Act, 72 Geo. L.J. 95, 97 (1983) (“Prior to the FCRA, injuries that
resulted from the dissemination of erroneous information by credit reporting agencies could be
redressed through the common law action of defamation. The FCRA introduced a new means for
consumers to redress such injuries.”). In fact, this court found it had personal jurisdiction over a
nonresident defendant who had obtained a plaintiff’s credit report without permission or cause in
violation of the FCRA. See Cole v. Am. Family Mut. Ins. Co., 333 F. Supp. 2d 1038, 1048 (D. Kan,
2004). This court noted that in enacting the FCRA, Congress intended to prevent invasions of
consumers’ privacy, and that in invasion of privacy actions, the “resulting injury is the mental distress
from having been exposed to public view and that injury necessarily occurs in the forum where the
plaintiff was injured.”
Id. (internal citation omitted).
Because the defendant had obtained the
plaintiff’s credit report without authorization and while knowing that the plaintiff resided in Kansas,
the defendant “purposefully direct[ed] his actions at Kansas and caus[ed] injury to plaintiff in Kansas.”
Plaintiff argues that much like a libel or invasion of privacy action, defendant’s violations of
the FCRA connected it to Kansas because that is where his injury took place.
Rather than rely on plaintiff’s comparisons to Calder, the court is more inclined to review the
personal jurisdiction issue considering Cole and FCRA cases from other jurisdictions.
Like Cole, other courts have exercised personal jurisdiction over nonresident defendants in
cases involving unauthorized viewing of credit reports. See, e.g., Myers v. Bennett Law Offices, 238 F.
3d 1068, 1074–75 (9th Cir. 2001) (finding defendant purposefully availed himself to the jurisdiction of
Nevada because he knew plaintiffs lived in Nevada when he improperly accessed their credit report).
The consensus from these cases is that when a defendant improperly accesses a credit report, he
does so with the knowledge that he is invading the plaintiff’s privacy in the state where the plaintiff
resides. See Cole 333 F. Supp. 2d at 1048; Myers, 238 F.3d at 1074 (“That mental distress [from
having been exposed to public view] can only be felt where Plaintiffs’ ‘sensibilities’ reside—that is,
Nevada.”). Personal jurisdiction is therefore appropriate in the forum where the plaintiff lives because
the defendant purposefully directed its actions at that state. Knowledge of the plaintiff’s state of
residence, therefore, is a key factor. See Cole, 333 F. Supp. 2d at 1048 (“From the information
required to access a credit report . . . Adler was aware that plaintiff resided in Kansas. Accordingly,
Adler’s actions were ‘expressly aimed’ a plaintiff, a Kansas resident.”).
In other FCRA cases, courts have exercised personal jurisdiction over defendants when the
plaintiff can show defendant had knowledge of his residence. In Gordon v. DTE Energy, 680 F. Supp.
2d 1282 (W.D. Wash. 2010), the plaintiff sued a Michigan-based utility company for violations of the
FCRA, alleging the defendant had not removed a fraudulent charge that appeared on her credit report.
The court found it had personal jurisdiction over the nonresident defendant using the Calder test: 1) an
intentional act, 2) expressly aimed at the forum state, 3) which causes harm that the defendant knows is
likely to be suffered in the forum state. Id. at 1285.1 The court noted that under the “express-aiming”
element, “[k]nowledge of the plaintiff’s residence is the crucial element.” Id. Because the defendant
had sent the plaintiff a fraud affidavit at her Washington address—after the plaintiff had contacted the
defendant about the fraudulent charge—the court found that the defendant knew the plaintiff lived in
Washington, and therefore it had expressly aimed its conduct at the state. Id. at 1285–86. The court
further found that the defendant knew the harm would be suffered in Washington because, “harm due
to violations of the FCRA occurs where the plaintiff feels the consequences, not where the event
complained of occurred.” Id. at 1286 (citing Meyers, 238 F.3d at 1074).
Similarly, in Rivera v. Bank One, 145 F.R.D. 614 (D.P.R. 1993), the plaintiff sued a bank for
failing to correct false information on a credit report concerning a delinquent credit card payment. The
court found personal jurisdiction in Puerto Rico, noting “the record contains ample evidence of
communication between plaintiff and defendant which tend to establish that defendant was aware that
its continued refusal to correct plaintiff’s credit report was causing plaintiff injury in Puerto Rico.” Id.
As mentioned earlier, the Tenth Circuit also uses the Calder factors in analyzing whether a defendant purposefully
directed its activities to a forum state. See Dudnikov, 514 F. 3d at 1072.
at 624. Because the defendant knew the plaintiff lived in Puerto Rico and continued to refuse to
correct the credit report, the court found the defendant “could reasonably anticipate being hauled into
court here to answer for its actions.” Id. at 624–25.
Using a similar analysis, other courts have declined to exercise personal jurisdiction when there
was no evidence to establish the defendant’s knowledge of the plaintiff’s residence. See Screen v.
Equifax Info. Sys., 303 F. Supp. 2d 685 (D. Md. 2004) (finding the Alabama-based defendant had not
purposefully established contacts with Maryland because the defendant had never directly contacted
the plaintiff in Maryland and had only sent a consumer dispute verification form regarding the plaintiff
to the credit reporting agency); Cisneros v. Trans Union, LLC, 293 F. Supp. 2d 1156, 1166 (D. Haw.
2003) (finding that because defendants did not directly correspond with the plaintiff and there was no
indication they were aware that the plaintiff resided in Hawaii or that any injury would occur in
Hawaii, the “notions of fair play and substantial justice would not be served if these Defendants were
found to avail themselves to personal jurisdiction in every state each time it reports information as
requested by a credit reporting agency.”), Chyba v. TXU Energy, No. 12-CV-0837 BEN NLS, 2012
WL 6608618, at *3 (S.D. Cal. Dec. 17, 2012) (finding no personal jurisdiction over a nonresident
defendant in an FCRA case involving inaccurate credit reporting when the plaintiff failed to establish
the defendant made any contact with California; rather, the plaintiff made unilateral, and unanswered,
contact with the defendant.).
Here, plaintiff alleges he contacted the consumer reporting agencies on at least four occasions
to dispute the accuracy of information being reported by defendant.
Pursuant to 15 U.S.C. §
1681i(a)(2), defendant should have received notice of plaintiff’s disputes from the consumer reporting
Plaintiff claims defendant knew he was a Kansas resident, as it frequently sent
correspondence to his Kansas addresses, including statements, advertisements, and other
correspondence related to plaintiff’s relationship with defendant. (Doc. 18-1.) Specifically, in regards
to this litigation, plaintiff directly contacted defendant after multiple attempts to correct the alleged
inaccurate information on his credit report. He claims defendant responded to his inquiry in a letter
sent to his Kansas address. (Id.) Comparing the facts of this case to other similar FCRA cases, the
court finds plaintiff has established a prima facie case of personal jurisdiction over defendant.
Although minimal, defendant’s contacts with plaintiff—establishing its awareness of plaintiff’s Kansas
Defendant knew that plaintiff was attempting to dispute information it
provided to the consumer reporting agencies. Defendant allegedly continued to reverify the disputed
information so that plaintiff’s credit report remained incorrect. And defendant communicated directly
with plaintiff by sending to plaintiff’s Kansas address a letter in which it confirmed he had no late
payments on his account. Yet plaintiff’s credit report continued to reflect these inaccuracies. Much
like Gordon and Rivera, defendant expressly aimed its activity at Kansas by contacting plaintiff in
Kansas regarding the inaccuracies, while still failing to correct the misinformation which, therefore,
caused injury to plaintiff in Kansas. By knowing that it was injuring plaintiff in Kansas, defendant
could have reasonably anticipated being hauled into court here.
Despite having the necessary minimum contacts, the court must still determine whether
exercising personal jurisdiction would “offend traditional notions of fair play and substantial justice.”
Int’l Shoe, 326 U.S. at 316. In deciding whether the exercise of jurisdiction is reasonable, the court
must consider “(1) the burden on the defendant, (2) the forum state’s interest in resolving the dispute,
(3) the plaintiff’s interest in receiving convenient and effective relief, (4) the interstate judicial
system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest
of the several states in furthering fundamental substantive social policies.” OMI Holdings, Inc. v.
Royal Ins. Co. of Canada, 149 F.3d 1086, 1095 (10th Cir. 1998). As defendant is an Oklahoma
banking corporation headquartered in Oklahoma, the court finds the burden to litigate in Kansas is not
so burdensome as to make the exercise of personal jurisdiction unreasonable. See Cont’l Am. Corp. v.
Camera Controls Corp., 692 F.2d 1309, 1314 (10th Cir. 1982) (“[d]efending a suit in a foreign
jurisdiction is not as burdensome in the past.”). The remainder of the factors weigh in favor of Kansas
exercising personal jurisdiction over defendant. The court, therefore, finds it has personal jurisdiction
over defendant and denies its motion.
IT IS THEREFORE ORDERED that Motion to Dismiss for Lack of Jurisdiction (Doc. 11) is
Dated January 9, 2018, at Kansas City, Kansas.
s/ Carlos Murguia
United States District Judge
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