Opinion

Hernandez v. Equifax Information Services, LLC

Court
District Court, W.D. North Carolina
Filed
Aug 10, 2020
Cited by
0 cases
Authority
More cited than 24.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:20-CV-00128-RJC-DSC

JORGE ALBERTO HERNANDEZ, )

SYLWIA CIEPLINSKA and )

DJURAYEVA MUKADDAS, )

On behalf of themselves and all )

others similarly situated, )

)

Plaintiffs, )

)

v. )

)

EQUIFAX INFORMATION SERVICES )

LLC, )

)

Defendant. )

MEMORANDUM AND RECOMMENDATION AND ORDER

THIS MATTER is before the Court on Defendant’s Motion for Judgment on the

Pleadings filed June 16, 2020. Doc. 15. The Motion has been referred to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1). Having fully considered the arguments, the

record, and the applicable authority, the undersigned respectfully recommends that Defendant’s

Motion for Judgment on the Pleadings be granted.

I. PROCEDURAL AND FACTUAL BACKGROUND

This is an action seeking putative damages for violations of the Fair Credit Reporting

Act (FCRA). Plaintiff Hernandez resides in Mecklenburg County, North Carolina. Plaintiffs

Mukaddas and Cieplinska are residents of New York. Defendant Equifax is a Georgia limited

liability company with its principle place of business in Atlanta. Accepting the factual

allegations of the Complaint as true, Plaintiffs each wrote Defendant to dispute information

contained in their respective Equifax credit reports during 2019.

Defendant responded to Plaintiffs’ letters and advised them that the Social Security

Administration (SSA) reported their Social Security numbers as being associated with deceased

persons. In fact, Defendant’s algorithm had confused the Plaintiffs with other individuals.

Defendant asked Plaintiffs to contact the SSA and provide a “Report of Confidential Social

Security Benefit Information” form. When Plaintiffs contacted the SSA, the agency would not

provide the report requested.

Defendant failed to conduct a re-investigation into Plaintiffs’ disputes as required by the

FCRA. The inaccurate information remains on each named Plaintiff’s Equifax consumer report,

thus harming their ability to obtain credit. Defendant had actual notice that its algorithm

frequently combined information about different consumers, erroneously matching living

individuals with deceased persons. Equifax has refused to process these disputes as required by

Title 15, U.S. Code, Section 1681i.

On March 2, 2020, Plaintiffs filed this action in the Western District of North Carolina.

Doc. 1. They allege that “[p]ersonal jurisdiction and venue is established by the presence of Mr.

Hernandez and Equifax within the Eastern District of North Carolina [sic].” Doc. 1 at 2. On June

6, 2020 Defendant filed its Motion for Judgment on the Pleadings citing lack of personal

jurisdiction under Federal Rule of Civil Procedure 12(c). Doc. 15.

II. DISCUSSION

A. Standard of Review

Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed but

within such time as not to delay the trial, any party may move for judgment on the pleadings.”

Fed. R. Civ. P. 12(c). In resolving a motion for judgment on the pleadings, the court must accept

all of the non-movant’s factual averments as true and draw all reasonable inferences in its favor.

Bradley v. Ramsey, 329 F. Supp. 2d 617, 622 (W.D.N.C. 2004). Judgment on the pleadings is

warranted where the undisputed facts demonstrate that the moving party is entitled to judgment

as a matter of law. Id. The court may consider the complaint, answer, and any materials attached

to those pleadings or motions for judgment on the pleadings “so long as they are integral to the

complaint and authentic.” Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see

also Fed. R. Civ. P. 10(c) (stating that “an exhibit to a pleading is part of the pleading for all

purposes.”). Unlike a Rule 12(b)(6) motion, the court may consider the answer as well on a Rule

12(c) motion. Alexander v. City of Greensboro, 801 F. Supp. 2d 429, 433 (M.D.N.C. 2011).

Although a motion for judgment on the pleadings pursuant to Rule 12(c) is separate and

distinct from a motion to dismiss under Rule 12(b)(6), federal courts apply the same standard for

Rule 12(c) motions as for motions made pursuant to Rule 12(b)(6). Indep. News, Inc. v. City of

Charlotte, 568 F.3d 148, 154 (4th Cir. 2009); Burbach Broad. Co. of Del. v. Elkins Radio Corp.,

278 F.3d 401, 405-06 (4th Cir. 2002); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th

Cir.1999).

In reviewing a Rule 12(b)(6) motion, “the court should accept as true all well-pleaded

allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs.,

Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Priority Auto Grp., Inc. v. Ford Motor

Co., 757 F.3d 137, 139 (4th Cir. 2014). The plaintiff’s “[f]actual allegations must be enough to

raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing any set

of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked by a

Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to “state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

U.S. at 570); see also Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir.

2009). “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.”

Id.

In Iqbal, the Supreme Court articulated a two-step process for determining whether a

complaint meets this plausibility standard. First, the court identifies allegations that, because they

are no more than conclusions, are not entitled to the assumption of truth. Id. “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Id. (citing Twombly, 550 U.S. at 555) (alleging that government officials adopted a challenged

policy “because of” its adverse effects on the protected group was conclusory and not assumed to

be true). Although the pleading requirements stated in “Rule 8 [of the Federal Rules of Civil

Procedure] mark [] a notable and generous departure from the hyper-technical, code-pleading

regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing

more than conclusions.” Id. at 678-79.

In Iqbal, the Court determined that Rule 8 “demands more than an unadorned, the

defendant-unlawfully-harmed-me-accusation.” Id. at 678. This “plausibility standard” requires

“more than a sheer possibility that a defendant has acted unlawfully.” Id. Thus, a complaint falls

short of the plausibility standard where a plaintiff pleads “facts that are ‘merely consistent with’

a defendant’s liability . . .” Id.; see also Eastern Shore Mkt.’s Inc. v. J.D. Assoc.’s, LLP, 213 F.3d

175, 180 (4th Cir. 2000) (explaining that while the court accepts plausible factual allegations

made in a claim as true and considers those facts in the light most favorable to plaintiff in ruling

on a motion to dismiss, a court “need not accept as true unwarranted inferences, unreasonable

conclusions, or arguments.”).

Second, to the extent there are well-pleaded factual allegations, the court should assume

their truth and then determine whether they plausibly give rise to an entitlement to relief. Iqbal at

679. “Determining whether a complaint contains sufficient facts to state a plausible claim for

relief “will ... be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. “Where the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-

‘that the pleader is entitled to relief,’” and therefore should be dismissed. Id. (quoting Fed. R.

Civ. P. 8(a)(2)).

The sufficiency of the factual allegations aside, “Rule 12(b)(6) authorizes a court to

dismiss a claim on the basis of a dispositive issue of law.” Sons of Confederate Veterans v. City

of Lexington, 722 F.3d 224, 228 (4th Cir. 2013) (quoting Neitzke v. Williams, 490 U.S. 319, 327

(1989)). Indeed, where “it is clear that no relief could be granted under any set of facts that could

be proved consistent with the allegations, a claim must be dismissed.” Neitzke, 490 U.S. at 328;

see also Stratton v. Mecklenburg Cnty. Dept. of Soc. Servs., 521 Fed. Appx. 278, 293 (4th Cir.

2013)). The court must not “accept as true a legal conclusion couched as a factual allegation.”

Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).

B. Personal Jurisdiction

The non-moving party must make a prima facie showing that the exercise of personal

jurisdiction is proper. See Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989); Vishay

Intertechnology, Inc. v. Delta International Corp., 696 F.2d 1062, 1064 (4th Cir. 1982); General

Latex and Chemical Corp. v. Phoenix Medical Technology, Inc., 765 F. Supp. 1246, 1248

(W.D.N.C. 1991). A plaintiff must prove facts sufficient for the court to find that it has personal

jurisdiction. New Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 (4th

Cir. 2005).

Plaintiffs must show that the exercise of personal jurisdiction over a defendant complies

with the forum state's long-arm statute and the constitutional requirements of due process. Ellicott

Mach. Corp. v. John Holland Party Ltd., 995 F.2d 474, 477 (4th Cir. 1993). Since “the North

Carolina long-arm statute [N.C. Gen. Stat. § 1-75.4] has been interpreted as the legislature's

attempt to allow the exercise of personal jurisdiction in all cases where such jurisdiction does not

contravene due process, [the] normal two-step inquiry merges into one.” Id. (citing Dillon v.

Numismatic Funding Corp., 231 S.E.2d 629, 630 (N.C. 1977)). See also Thomas v. Centennial

Communications Corp., No. 3:05CV495, 2006 U.S. Dist. LEXIS 92555, 2006 WL 6151153, at

*2 (W.D.N.C. December 20, 2006).

To be consistent with the limitations of due process, a defendant must have “minimum

contacts” with the forum state “such that the maintenance of the suit does not offend traditional

notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310,

316, 66 S. Ct. 154, 90 L. Ed. 95 (1945). Minimum contacts may be established by showing

“general” or “specific” jurisdiction. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S.

408, 414, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984).

A court may exercise general jurisdiction over a non-resident defendant if that defendant

has contacts with the State that are so “continuous and systematic” as to render them “essentially

at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,

919, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011).

In the absence of general jurisdiction, a court may exercise specific jurisdiction over the

defendant in a cause of action arising from that defendant's activities in the forum state. The

Fourth Circuit has “synthesized the due process requirement for asserting specific personal

jurisdiction in a three-part test . . . (1) the extent to which the defendant purposefully availed itself

of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of

those activities directed at the State; and (3) whether the exercise of personal jurisdiction would

be constitutionally reasonable.” Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273,

278 (4th Cir. 2009) (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712

(4th Cir. 2002)).

As the Fourth Circuit has explained, “our reasonableness analysis is designed to ensure

that jurisdictional rules are not exploited ‘in such a way as to make litigation so gravely difficult

and inconvenient that a party unfairly is at a “severe disadvantage” in comparison to his

opponent.’” Christian Sci. Bd. of Directors of First Church of Christ, Scientist v. Nolan, 259 F.3d

209, 217 (4th Cir. 2001) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105 S.

Ct. 2174, 85 L. Ed. 2d 528 (1985)). As the Fourth Circuit stated in the final analysis, “[f]airness

is the touchstone of the jurisdictional inquiry.” Tire Eng'g. & Distribution, LLC v. Shandong

Linglong Rubber Co., Ltd., 682 F.3d 292, 301 (4th Cir. 2012), cert. denied, 568 U.S. 1087, 133

S. Ct. 846, 184 L. Ed. 2d 655 (2013).

In Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), consumers

brought a mass tort action against a prescription drug company in California state court. Id. at

1777. The Supreme Court held that the California state court did not have specific jurisdiction

over the non-resident unnamed plaintiffs. Id. Bristol-Myers establishes that “the mere fact that

other plaintiffs” have established personal jurisdiction “does not allow the State to assert specific

jurisdiction over the nonresidents’ claims.” Id. at 1776. However, the Court added that “since our

decision concerns the due process limits on the exercise of specific jurisdiction by a State, we

leave open the question whether the Fifth Amendment imposes the same restrictions on the

exercise of personal jurisdiction by a federal court.” Id. at 1783-84.

The Seventh Circuit addressed the issue left open by the Supreme Court in Mussat v.

IQVIA, Inc., 953 F.3d 441 (2020). Mussat concluded “that the principles announced in Bristol-

Myers do not apply to the case of a nationwide class action filed in federal court under a federal

statute.” Id. at 443. But Mussat concerned a class action where personal jurisdiction was

challenged for the unnamed plaintiffs’ claims. In fact, Mussat clarifies, “the named

representatives must be able to demonstrate either general or specific personal jurisdiction.” Id.

at 447. “If the court has personal jurisdiction over the defendant with respect to the class

representative’s claim, the case may proceed.” Id. at 448.

Here, Plaintiffs failed to allege sufficient facts to establish personal jurisdiction over

Defendant. In the Complaint, Plaintiffs state “[p]ersonal jurisdiction and venue is established by

the presence of Mr. Hernandez and Equifax within the Eastern District of North Carolina [sic].”

Doc. 1 at 2. That is insufficient to establish personal jurisdiction over Defendant as to the non-

resident named Plaintiffs’ claims.

Defendant is subject to general personal jurisdiction in Georgia, where its principle place

of business is located and it is registered as a limited liability company. Defendant has a registered

agent in North Carolina and regularly conducts business here. But “there is nothing that would

distinguish [Equifax’s] relationship with [North] Carolina from its relationship with any of the

other states where it does business but where it is not [registered as a limited liability company]

or headquartered.” Fidrych v. Marriot, Int’l Inc., 952 F.3d 124, 134 (4th Cir. 2020). Therefore,

Plaintiffs have failed to allege sufficient facts to establish general personal jurisdiction over

Defendant in North Carolina.

The named non-resident Plaintiffs do not claim to have suffered harm in North Carolina.

The correspondence between the named non-resident Plaintiffs and Defendant took place

between Georgia and New York. There is not a single allegation in the Complaint tying the events

or circumstances underlying the named non-resident Plaintiffs’ claims to North Carolina.

Therefore, they have failed to allege sufficient facts to establish specific personal jurisdiction over

Defendant in North Carolina.

The named non-resident Plaintiffs’ personal jurisdiction arguments are based entirely

upon: (1) Defendant’s general business activity in North Carolina that has no connection to their

claims; and (2) the fact that the Court has personal jurisdiction over Defendant with respect to

Plaintiff Hernandez’s claims. Those facts fail to establish either general or specific personal

jurisdiction as a matter of law.

III. ORDER

Plaintiffs’ Motions for jurisdictional discovery and to transfer venue are denied.

IV. RECOMMENDATION

FOR THE FOREGOING REASONS, the undersigned respectfully recommends that

“Defendant Equifax Information Services LLC’s Motion for Judgment on the Pleadings,” Doc.

15, be GRANTED without prejudice.

V. NOTICE OF APPEAL RIGHTS

The parties are hereby advised that, pursuant to 28 U.S.C. § 636(b)(1)(c), written

objections to the proposed findings of fact and conclusions of law and the recommendation

contained in this Memorandum must be filed within fourteen days after service of same. Failure

to file objections to this Memorandum with the District Court constitutes a waiver of the right

to de novo review by the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th

Cir. 2005); Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour, 889

F.2d 1363, 1365 (4th Cir. 1989). Moreover, failure to file timely objections will also preclude

the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147 (1985);

Diamond, 416 F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells, 109 F.3d

at 201; Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v. Schronce, 727

F.2d 91 (4th Cir. 1984).

The Clerk is directed to send copies of this Memorandum and Recommendation and

Order to counsel for the parties and to the Honorable Robert J. Conrad, Jr.

SO RECOMMENDED AND ORDERED.

Signed: August 10, 2020

r4c ee

David S. Cayer

United States Magistrate Judge ee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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