Legrand v. Intellicorp Records, Inc. et al

Filing 76

Memorandum Opinion and Order granting defendants' Motion to dismiss count of the first amended complaint (Related Doc #52 ). Count One is dismissed. Consequently, plaintiff's motion for class certification in connection with this claim is denied as moot (Related Doc #56 ). (other related doc #85 ). Judge Donald C. Nugent 2/24/17(C,KA) added link 5/26/2017 (C,KA).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LEGRAND,
Plaintiffs,
v.
INTELLICORP RECORDS, INC., et al.,
Defendants.

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CASE NO.: 1:15 CV 2091

JUDGE DONALD C. NUGENT

MEMORANDUM OPINION
AND ORDER

This matter is before the Court on Defendant, The Cato Corporation’s Motion to Dismiss
Count One of Plaintiff’s First Amended Complaint For Lack of Standing. (ECF #52). Plaintiff
filed an Opposition to the motion, and Defendant, The Cato Corporation (“Cato”) filed a Reply.
(ECF # 54, 68). Both parties also filed notices of supplemental authority. (ECF #60, 67, 70, 71).
After careful consideration, the Court has determined that Defendant’s Motion to Dismiss should
be GRANTED.

FACTUAL AND PROCEDURAL OVERVIEW1
Count One of Plaintiff’s First Amended Complaint alleges that Defendant Cato
systematically and willfully violated the Fair Credit Reporting Act (“FCRA”) by failing to
provide required stand-alone disclosures prior to procuring consumer reports on applicants and
employees, as required by 15 U.S.C. §1681b(b)(2)(A)(i). (ECF #11, ¶98-103). Ms. LeGrand
does not seek actual damages, but requested statutory damages, punitive damages, attorneys’
fees, litigation expenses, costs and other available relief.
Ms. LeGrand admits to signing a document, provided by Cato, that acknowledges that
she has “read the below statements and understand same.” (ECF #11, ¶ 28). Included in the
“below statements” is a paragraph that authorizes the procurement of a consumer credit report.
(ECF #11, ¶30).2 The Complaint goes on to allege that “Cato injured Plaintiff by depriving her
of information that is required to be disclosed under the FCRA and deprived[sic] her of
information regarding her rights. Cato also invaded Plaintiff’s privacy by procuring a report on
her without obtaining legally valid informed consent.” (ECF #11, ¶37). She has never identified
any required information that was withheld or obscured from her, rather she has consistently
alleged that the information simply was not provided in a stand-alone document. She also has

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The facts as stated in this Memorandum and Order are taken from the Amended
Complaint and should not be construed as findings of this Court. In a motion to dismiss,
the Court is obligated, for the purposes of that motion, to accept as true the facts set forth
by the non-moving party, in this case, the Plaintiff. Other admissions by the Plaintiff,
made after the filing of the Amended Complaint may also be taken into account.
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The paragraph reads as follows: “I specifically understand and authorize the procurement
of an investigative consumer credit report (specifically a motor vehicle report – MVR) and
understand that it may contain information about my background, mode of living,
character, general reputation and personal characteristics.” (ECF #11, ¶30).
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never argued that she did not consent to Cato’s investigation, but rather that her consent was not
“legally valid” on the sole basis that she was not provided a stand-alone document containing the
required disclosures.
Ms. LeGrand also alleged that she suffered a “concrete injury in the form of being
deprived of a disclosure to which she was statutorily entitled as a result of Cato’s failure to
comply with the FCRA’s stand-alone disclosure requirement” and that “Cato invaded [her]
privacy by obtaining a consumer report on her without making an appropriate disclosure and
obtaining proper authorization before doing so.” (ECF #11, ¶88). Again, she does not claim that
she failed to receive a disclosure or that Cato failed to obtain authorization. She has made clear
in her arguments and filings to the Court that she simply maintains that these documents were
not “proper” because she did not receive the disclosures as a stand-alone document.
Ms. LeGrand does not allege that the authorization form she received did not fully inform
her that a consumer report would be obtained by Cato for employment purposes. She does not
allege that the authorization form did not include a clear and conspicuous notice that a consumer
report would be obtained by Cato. She does not allege that she did not see or understand the
disclosure and authorization provided. She did not allege that she was unaware that Cato would,
in actuality, be obtaining a consumer report on her. She did not allege that she did not
knowingly authorize Cato to obtain a consumer report on her. She did not allege that she would
not have authorized such an investigation had she received a stand-alone notice instead of the
notice provided. During subsequent briefing, Ms. LeGrand admitted to receiving and signing the
authorization for Cato to obtain a consumer report. (ECF #41, 41-1). She has never alleged or
argued that her authorization of the investigation was not knowing, voluntary, or that absent the

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stand-alone regulations, it would be contractually binding.

STANDARD OF REVIEW
On a motion brought under Fed. R. Civ. P. 12(b)(6), this Court’s inquiry is limited to the
content of the complaint, although matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint may also be taken into account. See Chester
County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). The Sixth
Circuit has also held that a reviewing court may consider “exhibits attached to the defendant’s
motion to dismiss so long as they are referred to in the Complaint and are central to the claims
contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
In 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)).
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 plaintiff's
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 Atl’
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

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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).

ANALYSIS
Cato argues that under the recently decided United States Supreme Court case Spokeo v.
Robins, 136 S. Ct. 1540 (2016) the claims against it in Count One of the Amended Complaint must
be dismissed for lack of standing. Taking into account the allegations in the First Amended
Complaint (excluding conclusions of law or unwarranted inferences cast in the form of factual
allegations) and the items appearing in the record of this case, it appears clear that Ms. LeGrand’s
first Claim alleges nothing more than a procedural violation devoid of any actual harm. Although
her Amended Complaint, and her Opposition to this Motion to Dismiss both state that she suffered
an invasion of privacy and deprivation of information, these are conclusory statements void of any
factual basis asserted in the Complaint or in any of the subsequent briefing submitted in this case.
She has never alleged that she did not receive statutorily required information, that she was
unaware that Cato would obtain a consumer background report or that she did not authorize their
investigation. In fact, she has admitted that she received an authorization form disclosing Cato’s
intent and that she signed the authorization. She also alleged no injury at the hands of Cato as a
consequence of the information disclosed by the report.
Spokeo clarified the standing requirement of a concrete and particularized injury as it relates
to statutorily created procedural requirements. The Spokeo Court found that a plaintiff “cannot
satisfy the demands of Article III by alleging a bare procedural violation.” Spokeo, 136 S. Ct. At

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1544. Although there are times when a procedural violation may give rise to a concrete or actual
injury, no such injury has been alleged in this case. A violation of privacy would require evidence
that a disclosure or exposure of information occurred without authorization, yet Ms. LeGrand does
not allege that any such disclosure or review of private information occurred without her
authorization.

An injury based on a deprivation of information would require evidence that she

was deprived of some necessary or required information. She does not allege that any such
information was withheld.
The majority of courts who have reviewed this type of claim, post-Spokeo have found that
plaintiffs alleging a procedural violation of the stand-alone disclosure requirement under the FCRA,
without more, lack standing to pursue their claims. See, e.g., In Re Michael’s Stores, Inc., Fair
Credit Reporting Act Litigation, Case No.: 2:14-cv-07563; MDL No. 2615 (D.N.J. January 24,
2017); Groshek v. Great Lakes Higher Educ. Corp., No. 15-cv-143, 2016 U.S. Dist. LEXIS 144867
(W.D. Wis. Oct. 4, 2016); Noori v. Vivint, Inc., 2016 U.S. Dist. LEXIS 12093 (C.D. Cal. Sept. 6,
2016); Woods v. Caremark, Case No.” 4;15-cv-0535 (W.D. Missouri July 28, 2016). Although
Plaintiff has cited several cases finding standing in a FCRA procedural violation case, those cases
are generally distinguishable . In many of those instances, the courts found that there had either
been no disclosure of required information, or no authorization by the consumer/employee for a
background investigation. Neither of those scenarios exists in this case. Ms. LeGrand does not
allege that she was deprived of any actual information, required or otherwise, and does not allege
that the investigation by Cato was done without her knowing authorization.
Based on the specific allegations and facts of this case, and taking into account the
clarification provided by the Spokeo Court, this Court finds that Ms. LeGrand has not alleged an

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injury sufficient to satisfy the requirements for standing under Article III of the United States
Constitution.

CONCLUSION
For the reasons set forth above Defendants’ Motion to Dismiss Count One of the First
Amended Complaint, (ECF #52), is GRANTED.

Count One is hereby, DISMISSED.

Consequently, Plaintiff’s Motion for Class Certification in connection with this claim (ECF #56) is
DENIED as MOOT. IT IS SO ORDERED.

/s/ Donald C. Nugent
DONALD C. NUGENT
United States District Judge

DATED:

February 24, 2017

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