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Groshek v. Time Warner Cable, Inc.

United States District Court, E.D. Wisconsin

August 9, 2016

CORY GROSHEK, and all others similarly situated, Plaintiff,
TIME WARNER CABLE, Inc. Defendant.


          HON. PAMELA PEPPER United States District Judge.

         On March 29, 2016, the Honorable Rudolph T. Randa stayed the proceedings in this case pending a ruling from the Supreme Court in Spokeo, Inc. v. Robins (Dkt. No. 53); the Supreme Court issued its decision just short of two months later, on May 16. Spokeo, Inc. v. Robins, 134 S.Ct. 1540 (2016). Days later, the plaintiffs moved to lift the stay. Dkt. No. 54. At around the same time, the defendant moved to dismiss the complaint for lack of standing in light of Spokeo. Dkt. No. 55.

         The named plaintiff also has asked the court to seal certain documents. Dkt. No. 61. The defendant opposed that motion, Dkt. No. 62, the plaintiff filed a reply, Dkt. No. 65, and on July 19, 2016, the defendant filed a motion requesting leave to file a sur-reply, Dkt. No. 66.

         On August 2, the case was reassigned to this court.

         A. Plaintiff’s Motion to Lift Stay (Dkt. No. 54)

         The plaintiffs’ May 24, 2016 motion to lift the stay simply noted that the Supreme Court had decided Spokeo, and thus that there was no longer any reason to delay moving forward. Dkt. No. 54. The defendant objected, arguing that the court ought to keep the stay in place until it could decide the defendant’s May 27, 2016 motion to dismiss. Dkt. No. 58. The defendant argued that the motion to dismiss was based on the argument that the court does not have subject matter jurisdiction; if that turned out to be true, the court would not have jurisdiction to allow the parties to proceed with discovery or anything else. Id. at 58.

         The court notes with interest that, despite the fact there was-and arguably until this order, continued to be-a stay in place, the defendant filed a motion to dismiss; the plaintiff filed a motion to seal; the defendant filed a motion to file a sur-reply; and the parties briefed all of these motions. A “stay” generally means that the parties should file nothing further in the litigation as long as the stay is in effect. The fact that a stay was in place does not appear to have prevented the parties from filing numerous documents while the stay was in place.

         Bowing to the inevitable, the court will grant the motion to lift the stay, nunc pro tunc to May 25, 2016. Dkt. No. 54.

         B. Defendant’s Motion to Dismiss (Dkt. No. 55)

         Federal Rule of Civil Procedure 12(b)(1) provides for a party to bring a motion to dismiss for lack of standing. In considering such a motion, the court must “accept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff’s favor.” Lee v. City of Chi., 330 F.3d 456, 468 (7th Cir. 2003). The plaintiff, however, “as the party invoking federal jurisdiction, bears the burden of establishing the required elements of standing, ” including (i) injury in fact, (ii) causation, and (iii) redressability. Id. On a factual challenge to subject matter jurisdiction, district courts “may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008).

         To establish injury in fact, a plaintiff must show that he or she suffered an “invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In Spokeo, the Court emphasized the distinction between concreteness and particularization. The latter is “necessary to establish injury in fact, but it is not sufficient. . . . We have made it clear time and again that an injury in fact must be both concrete and particularized.” Spokeo, 136 S.Ct. at 1548 (emphasis in original). A concrete injury must be “‘de facto’; that is, it must actually exist. When we have used the adjective ‘concrete, ’ we have meant to convey the usual meaning of the term - ‘real, ’ and not ‘abstract.’ Concreteness, therefore, is quite different from particularization.” Id.

         The Spokeo Court went on to clarify that concrete is not “necessarily synonymous with ‘tangible.’ Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.” Id. at 1549. In this context, the judgment of Congress is “important, ” but “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. A “bare procedural violation, divorced from any concrete harm, [cannot] satisfy the injury-in-fact requirement of Article III.” Id.

         The named plaintiff alleges that he applied for employment with the defendant, and that in the course of considering his application, the defendant obtained a consumer report on him “without first providing [him] a clear and conspicuous written disclosure, in a document consisting solely of the disclosure, that a consumer report may be obtained for employment purposes.” Dkt. No. 1 at 4. He alleges that this failure to disclose violated §1681(b)(2)(A)(i) of the Fair Credit Reporting Act. Id. While the complaint alleges, in several places, that the defendant’s action violated the Fair Credit Reporting Act, it makes no mention of any concrete harm the plaintiff (or any putative class members) suffered as a result of the alleged violation.

         In his response to the defendant’s motion to dismiss, the plaintiff argues that the defendant’s alleged violation of the FDCPA-obtaining consumer information about him without giving him a separate document warning him that it was going to do so-“invaded [the plaintiff’s] privacy-a clear form of concrete harm that [the defendant] simply ignores in its motion.” Dkt. No. 60 at 10. He also argued that the defendant unlawfully “sought to obtain his private information, and then it obtained his personal information as a result of the unlawful permission it received.” Id. at ...

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