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Heyer v. Experian Information Solutions Inc.

United States District Court, E.D. Wisconsin

July 2, 2019

BRIAN G. HEYER, Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS INC., et al., Defendants.

          DECISION AND ORDER GRANTING MOTION TO DISMISS

          William C. Griesbach, Chief Judge.

         Plaintiff 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.

         LEGAL STANDARD

         To 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).

         ALLEGATIONS OF THE COMPLAINT

         Heyer's 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.

         Finding 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.

         In 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.

         Heyer 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.

         ANALYSIS

         Experian 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 claims.

         Heyer 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.

         Heyer's 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, 2014).

         Plaintiffs 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 ...


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