United States District Court, E.D. Wisconsin
BRIAN G. HEYER, Plaintiff,
EXPERIAN INFORMATION SOLUTIONS INC., et al., Defendants.
DECISION AND ORDER GRANTING MOTION TO
William C. Griesbach, Chief Judge.
Brian G. Heyer, who is proceeding pro se, filed a
complaint against Defendants Experian Information Solutions,
Inc. (Experian), Trans Union, LLC (Trans Union), Equifax
Information Services, LLC, and Equifax, Inc. (latter two
defendants jointly, Equifax), alleging violations of the Fair
Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et
seq. In particular, Heyer alleges that the defendants
failed to provide him with a “full consumer file
disclosure” in violation of § 1681g(a)(1). The
court has jurisdiction under 28 U.S.C. § 1331. Presently
before the court is Experian and Equifax's motion to
dismiss the complaint. For the reasons stated below, Experian
and Equifax's motion will be granted and the case will be
dismissed for lack of jurisdiction.
survive a motion to dismiss, a complaint must provide
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Fed.R.Civ.P.
12(b)(6). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. When reviewing a Rule 12(b)(6) motion to dismiss, the
court must accept all well-pleaded facts in the complaint as
true and view them in a light most favorable to the
plaintiff. Doe v. Vill. of Arlington Heights, 782
F.3d 911, 914-15 (7th Cir. 2015). “[P]ro
se complaints are to be liberally construed and not held
to the stringent standards expected of pleadings drafted by
lawyers.” McCormick v. City of Chicago, 230
F.3d 319, 325 (7th Cir. 2000). “A pleading that offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.'” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). “Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557).
OF THE COMPLAINT
claims arise out of his attempt to exercise his statutory
right under 15 U.S.C. § 1681g(a)(1), which states:
“Every consumer reporting agency shall, upon request,
and subject to section 1681h(a)(1) of this title, clearly and
accurately disclose to the consumer: (1) All information in
the consumer's file at the time of the request . . .
.” Heyer alleges that each of the defendants are or
operate as consumer reporting agencies (CRAs) subject to the
disclosure requirements of the FCRA. In September 2017, Heyer
sent each of the defendants a written request asking that
they send him “ALL INFORMATION in [his]
consumer file” pursuant to § 1681g(a)(1). Dkt. No.
1-1 at 2, 4, 6. Experian and Equifax sent Heyer credit
reports, while Trans Union sent a letter stating that Heyer
requested a “credit report” and that Heyer's
address was not in Trans Union's record.
the defendants' responses deficient, Heyer sent follow-up
requests, asking that each defendant provide him with his
“Full Consumer File
Disclosure” pursuant to §
1681g(a)(1). Id. at 11, 14, 17. In response to
Heyer's second request, Experian and Equifax again sent
credit reports and Trans Union sent another letter. Heyer
then sent a third written request to Trans Union, asking once
again for a full consumer file disclosure pursuant to §
1681g(a)(1). This time, Trans Union sent a credit report.
According to Heyer, the defendants' responses were
deficient and violated § 1681g(a)(1) because,
“[u]pon information and belief, there is substantial
information relating to the Plaintiff that is contained in
all Defendants' files that has not been disclosed to
him.” Dkt. No. 1 at ¶ 42.
particular, Heyer identifies as being omitted from the
defendants' responses “information that was
previously shown in his credit reports that is now archived
in addition to information that is provided to prospective
creditors, insurers, or employers who request information on
Plaintiff.” Id. He alleges that
“information that is not disclosed to Plaintiff may
contain negative codes or erroneous account
information” that may affect how a “prospective
creditor, insurer, or employer would view the
Plaintiff.” Id. at ¶ 43. Heyer alleges
that he “clearly is not making any claim regarding
information that HAS been provided to a
third party that he is aware of.” Id. at
¶ 47. Rather, “[t]he sole issue in this lawsuit
revolves around the fact that he has not had access to ALL
information in his full consumer file that
may have been at some time in the past provided to an unknown
third party or MIGHT be provided at some
time in the future to a third party.” Id.
alleges that, despite his multiple specific written requests
to the defendants for a full consumer file disclosure
pursuant to § 1681g(a)(1), the defendants failed to
provide the full scope of information that § 1681g(a)(1)
contemplates. Heyer has therefore brought claims under §
1681g(a)(1) against the defendants. For relief, Heyer seeks
statutory damages of $1, 000 for each violation. See
15 U.S.C. § 1681n.
and Equifax seek to dismiss Heyer's complaint on three
independently sufficient grounds: (1) Heyer fails to state a
plausible claim for relief; (2) Heyer fails to allege that
the defendants willfully violated § 1681g(a)(1); and (3)
Heyer lacks standing because he has not suffered concrete
harm. As to the first ground, Experian and Equifax argue that
Heyer's complaint does not cross the line from
possibility to plausibility because it is purely speculative.
See Twombly, 550 U.S. at 557. In response, Heyer
argues that a complaint is a notice pleading and that, at
this stage, he need not set forth evidence proving his
is correct that he need not produce evidence in his
complaint, but he must at least allege facts that
allow the court to draw the reasonable inference that the
defendants are liable for the misconduct alleged. See
Iqbal, 556 U.S. at 678. In other words, he must allege a
plausible as opposed to merely a possible right to relief.
See Twombly, 550 U.S. at 557. “Asking for
plausible grounds does not impose a probability requirement
at the pleading stage; it simply calls for enough fact to
raise a reasonable expectation that discovery will reveal
evidence . . . .” Id. at 556. “[N]aked
assertion[s]” devoid of further factual enhancement
“stop short of the line between possibility and
plausibility.” Id. at 557.
complaint does not meet this bar. Heyer claims, upon
information and belief, that the defendants' responses to
his § 1681g(a)(1) requests omitted “substantial
information, ” such as information shown in previous
credit reports “that is now archived, ”
information “provided to prospective creditors,
insurers, or employers, ” and information that
“may contain negative codes or erroneous account
information.” Dkt. No. 1 at ¶¶ 42-43. These
allegations are speculative and do not raise a reasonable
expectation that discovery will reveal evidence. See
Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at
678. A complaint that “appears to assume that some data
was withheld from [the plaintiff], without any factual
allegations in support of that assumption, ” must be
rejected. Larson v. Trans Union, LLC, No.
12-CV-05726-WHO, 2014 WL 1477705, at *4 (N.D. Cal. Apr. 14,
cannot use lawsuits as tools to test hunches. See Parker
v. Equifax Info. Servs., Inc., No. 2:15-cv-14365, 2017
WL 4003437, at *4 (E.D. Mich. Sept. 12, 2017) (“[T]he
‘doors' of discovery are not ‘unlocked'
for ‘a plaintiff armed with nothing more than
conclusions.'” (citing Iqbal, 556 U.S. at
678-79)); Densmore v. Gen. Motors Acceptance Corp.,
No. 03C1866, 2003 WL 22220177, at *2 (N.D. Ill. Sept. 25,
2003) (“[A] party may not file a lawsuit in order to
conduct a fishing expedition based on a hunch.”). But
that is what Heyer seeks to do here, as his complaint only
speculates that the defendants withheld information. Courts
faced with nearly identical allegations have held that they
are incapable of withstanding a motion to dismiss. See,
e.g., Frazier v. Experian Info. Solutions,
Inc., No. JKB-18-0067, 2018 WL 3785131, at *6 (D. Md.
Aug. 9, 2018); Scott v. Experian ...