Verkuilen v. Business Information Group Inc et al

Filing 63

ORDER signed by Chief Judge William C Griesbach on 12-7-15 denying 36 Motion for Judgment on the Pleadings. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MAXWELL VERKUILEN,
Plaintiff,
v.

Case No. 14-C-400

BUSINESS INFORMATION GROUP, INC., et al.,
Defendants.

DECISION AND ORDER

Defendant Business Information Group, Inc. (“BIG”) has moved for partial judgment on the
pleadings, asserting that the claims alleged in the Plaintiff’s complaint are barred by the applicable
two-year statute of limitations. For the reasons given below, the motion will be denied.
BIG is engaged in the business of assembling and providing consumer reports, which
businesses use in evaluating potential hires. According to the complaint, Plaintiff applied to be an
agent at a number of insurance companies, many or all of which relied partly on a report provided
by BIG. Some of the information on Plaintiff’s report was inaccurate. Specifically, the complaint
alleges that the report included criminal charges that had been dismissed, as well as arrest records
older than seven years. As a result of this information, Plaintiff alleges he failed to obtain
employment. The complaint alleges that the Defendants failed to comply with their obligations
under the Fair Credit Reporting Act, 15 U.S.C. § 1681e(b), by failing to follow reasonable
procedures to assure accuracy, and by violating 15 U.S.C. § 1681k by failing to provide notice to
the Plaintiff that it was reporting information about him to third parties. The complaint also alleges

BIG failed to comply with its obligations under 15 U.S.C. § 1681i by negligently reinvestigating
or correcting the information after Plaintiff disputed it. Finally, Plaintiff alleges BIG failed to timely
provide him an adequate Notice of Results of Reinvestigation, as required by 15 U.S.C. §
1681i(a)(6).
BIG argues that these claims are time-barred because this lawsuit was not filed until April
7, 2014, long after the violations were discovered. The FCRA contains a two-year statute of
limitations, which begins running on “the date of discovery by the plaintiff of the violation that is
the basis of such liability.” 15 U.S.C. § 1681p. BIG notes that the Plaintiff himself emailed BIG
on two occasions, in August and September 2011, to dispute his background reports, and the emails
indicate that he possessed copies of those reports as well. Because he delayed filing this lawsuit
until April 7, 2014, any claims based on the 2011 reports are time-barred. Similarly, any claims
based on how BIG handled his disputes in 2011 are also barred.
The Defendant has relied on materials outside of the complaint to support its motion for
partial judgment on the pleadings. In particular, the Defendant cites the emails the Plaintiff sent it
in August and September 2011, which the Defendant believes conclusively show the time the
Plaintiff discovered the basis for any FCRA claims. Although the emails were not attached to the
complaint, the complaint indicates that the Plaintiff “disputed the inaccurate information with each
defendant after the insurance companies declined his employment.” (ECF No 1 at ¶ 25.) Thus,
because the complaint refers to the dispute emails, the Defendant believes they are fairly considered
in a motion for judgment on the pleadings.
The allegations of a complaint are normally all that a court may consider in ruling on a
motion to dismiss or for judgment on the pleadings. An exception exists if a plaintiff pleads himself
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out of a claim or if “‘documents attached to a motion to dismiss are considered part of the pleadings
if they are referred to in the plaintiff's complaint and are central to his claim.’ ” 188 LLC v. Trinity
Indus., Inc., 300 F.3d 730, 735 (7th Cir.2002) (quoting Wright v. Assoc. Ins. Cos., 29 F.3d 1244,
1248 (7th Cir.1994)). Here, the emails are not referred to in the complaint, except for the single
reference to the fact that the Plaintiff disputed inaccurate information. Although arguably the
complaint contains an oblique “reference” to the emails, they certainly are not “central to his claim.”
Id. They might be central to the defense the Defendant is presenting, but the substance and timing
of any emails he sent to the Defendant are not inherently important to any elements of his claims.
In addition, the statute of limitations is traditionally an affirmative defense not appropriately
resolved through motion practice based solely on the pleadings. “Dismissal under Rule 12(b)(6)
was irregular, for the statute of limitations is an affirmative defense. . . . Resolving defenses comes
after the complaint stage.” United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir. 2004).
Accordingly, the motion for judgment on the pleadings is DENIED. The clerk will set the case on
the calendar for a telephonic scheduling conference.

Dated this 7th day of December, 2015.

/s William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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