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