United States District Court, D. New Jersey
DEAN BOONE, individually and on behalf of all others similarly situated, Plaintiff,
T-MOBILE USA INC., Defendant.
McNULTY UNITED STATES DISTRICT JUDGE
Dean Boone ("Boone") alleges that defendant
T-Mobile USA Inc. ("T-Mobile") obtained his credit
report through a "hard" credit inquiry without his
consent. He brings a class action on behalf of himself and
all others similarly situated for purported violations of the
Fair Credit Reporting Act, 15 U.S.C. § 1681, et
seq. ("FCRA") and the New Jersey Fair Credit
Reporting Act, N.J. Stat. Ann. 56:11-28, et seq.
("NJ FCRA"). T-Mobile seeks to dismiss Boone's
second amended complaint. (ECF no. 33). Boone opposes this
motion and seeks leave to submit a third amended complaint.
(ECF no. 36). T-Mobile opposes Boone's motion to amend,
(ECF no. 39).
Boone resides in Mahwah, New Jersey. (2AC ¶ 5). T-Mobile
is a corporation that provides telephone and data services
throughout the country. (2AC ¶ 6). Boone seeks to
certify nationwide and New Jersey classes based on
T-Mobile's purported violations of the FCRA and N.J.
about April 21, 2016, Boone went to a T-Mobile store in
Paramus, New Jersey, and asked a T-Mobile employee about
available cell phone plans and rates. (2AC ¶ 11). Boone
made it clear that he did not want his credit report accessed
if a "hard" credit inquiry would be required. (2AC
¶ 12). According to Boone, "hard" inquiries
result in the disclosure of unauthorized personal information
to T-Mobile and also lower the prospective customers'
credit scores; "soft" inquiries, by contrast,
involve less disclosure of information and do not affect
credit scores. (2AC ¶ 21). The employee confirmed that
T-Mobile would conduct a soft inquiry and not a hard inquiry.
(2AC ¶ 15). Boone did not sign any agreement, did not
agree to any services, and did not provide written consent
for a hard inquiry. (2AC ¶¶ 16-17). Nonetheless,
T-Mobile obtained his credit report through a hard credit
inquiry. (2AC ¶ 17).
has "routinely and systematically" obtained such
hard inquiries on prospective customers without a permissible
purpose or written consent. (2AC f 20). Those prospective
customers form the putative classes.
Putative Class Action
seeks to represent classes of prospective T-Mobile customers
who, like him, were allegedly subject to improper hard credit
inquiries. In his second amended complaint, Boone defines two
putative classes of putative customers for whom T-Mobile
conducted hard inquiries on "false pretenses":
■ FCRA False Pretense Class: All
persons within the United States who had a hard credit
inquiry performed on his or her credit by [T-Mobile] who had
not previously authorized a hard inquiry within the five
years prior to the filing of the Complaint until the date of
final judgment in this action. (2AC ¶ 27).
■ NJ False Pretense Class: All persons
within New Jersey who had a hard credit inquiry performed on
his or her credit by [T-Mobile] who had not previously
authorized a hard inquiry within the five years prior to the
filing of the Complaint until the date of final judgment in
this action. (2AC ¶ 28).
proposed third amended complaint, Boone proposes two
additional classes of prospective customers for whom T-Mobile
sought hard inquiry credit reports for an "impermissible
■ FCRA Impermissible Purpose Class:
All persons within the United States who had a hard credit
inquiry performed on his or her credit by [T-Mobile, ] who
had not authorized a hard inquiry, thereby obtaining a
persons' credit report without any permissible purpose,
within the five years prior to the filing of the Complaint
until the date of final judgment in this action. (3AC ¶
■ NJ FCRA Impermissible Purpose Class:
All persons within New Jersey who had a hard credit inquiry
performed on his or her credit by [T-Mobile], who had not
authorized a hard inquiry, thereby obtaining a persons'
credit report without any permissible purpose, within the
five years prior to the filing of the Complaint until the
date of final judgment in this action. (3AC ¶
titles suggest, any FCRA class would seek relief under the
federal FCRA, while any N.J. FCRA class would seek relief
under the N.J. FCRA. (2AC ¶¶ 38-51; 3AC
January 19, 2017, Boone filed a complaint against T-Mobile in
this Court. (ECF no. 1). T-Mobile moved to dismiss the
complaint on February 27, 2017. (ECF no 10). On March 17,
2017, Boone filed an amended complaint. (ECF no. 13).
T-Mobile moved to dismiss the amended complaint on April 14,
2017. (ECF no. 19).
15, 2017, Boone and T-Mobile attended a scheduling conference
before the Honorable Michael A. Hammer. (PL Br. 4). At the
scheduling conference, T-Mobile consented to Boone's
filing a second amended complaint. (PL Br. 4).
filed that second amended complaint on June 28, 2017. (ECF
no. 31). On July 26, 2017, T-Mobile filed this motion to
dismiss the second amended complaint for failure to state a
claim and for lack of standing. (ECF no. 33), On August 24,
2017, Boone sought leave to file a third amended complaint.
(ECF no. 36). T-Mobile, which this time did not consent (PL
Br. 4), opposes that motion. (ECF no. 39).
12(b)(1) Motion to Dismiss for Lack of Jurisdiction
to dismiss for lack of subject matter jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(1) may be raised at
any time. Iwanowa v. Ford Motor Co., 67 F.Supp.2d
424, 437-38 (D.N.J. 1999). "[B]ecause subject matter
jurisdiction is non-waivable, courts have an independent
obligation to satisfy themselves of jurisdiction if it is in
doubt. See ML Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 278 (1977). A necessary corollary
is that the court can raise sua sponte subject-matter
jurisdiction concerns." Nesbit v. Gears Unlimited,
Inc., 347 F.3d 72, 76-77 (3d Cir. 2003).
12(b)(1) challenges may be either facial or factual attacks.
See 2 Moore's Federal Practice § 12.30
(3d ed. 2007); Mortensen v. First Fed. Sav. &
LoanAss'n, 549 F.2d 884, 891 (3d Cir. 1977). A
facial challenge asserts that the complaint does not allege
sufficient grounds to establish subject matter jurisdiction.
Iwanowa, 67 F.Supp.2d at 438. A court considering
such a facial challenge assumes that the allegations in the
complaint are true. Cardio-Med. Assoc, Ltd. v.
Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir.
1983); Iwanowa, 67 F.Supp.2d at 438. It
"review[s] only whether the allegations on the face of
the complaint, taken as true, allege facts sufficient to
invoke the jurisdiction of the district court."
Common Cause of Penn. v. Pennsylvania, 558 F.3d 249,
257 (3d Cir. 2009) (quoting Taliaferro v. Darby Twp.
Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006)).
factual attack, on the other hand, permits the Court to
consider evidence extrinsic to the pleadings. Gould
Elecs. Inc. v. United States, 220 F, 3d 169, 178 (3d
Cir. 2000), holding modified on other grounds by Simon v.
United States, 341 F.3d 193 (3d Cir. 2003). Such a
factual attack "does not provide plaintiffs the
procedural safeguards of Rule 12(b)(6), such as assuming the
truth of the plaintiffs allegations." CNA v. United
States, 535 F.3d 132, 144 (3d Cir. 2008).
The burden of establishing federal jurisdiction rests with
the party asserting its existence, [citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3
(2006).] "Challenges to subject matter jurisdiction
under Rule 12(b)(1) may be facial or factual." [citing
Common Cause of Pa. v. Pennsylvania, 558 F.3d 249,
257 (3d Cir. 2009) (quoting Taliaferro v. Darby Twp.
Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006)).] A facial
attack "concerns 'an alleged pleading
deficiency' whereas a factual attack concerns 'the
actual failure of [a plaintiffs] claims to comport
[factually] with the jurisdictional
prerequisites.m [citing CNA v. United
States, 535 F.3d 132, 139 (3d Cir, 2008) (alterations in
original) (quoting United States ex ret Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.2007)).]
"In reviewing a facial attack, the court must only
consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff." [citing Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).] By contrast, in reviewing a factual attack, "the
court must permit the plaintiff to respond with rebuttal
evidence in support of jurisdiction, and the court then
decides the jurisdictional issue by weighing the evidence. If
there is a dispute of a material fact, the court must conduct
a plenary hearing on the contested issues prior to
determining jurisdiction." [citing McCann v. Newman
Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006)
Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99,
105 (3d Cir. 2015) (footnotes omitted; case citations in
footnotes inserted in text).
T-Mobile does not challenge the validity of any of
Boone's factual claims as part of its motion, it brings a
facial challenge. It argues that the allegations in the
operative version of the complaint, even accepted as true,
are insufficient to establish Boone's Article III
standing, an FCRA claim, or a N.J. FCRA claim. In reviewing
facial challenges to standing, Courts "apply the same
standard as on review of a motion to dismiss under Rule
12(b)(6)." Id.; see In re Horizon Healthcare Servs.
Inc. Data Breach Litig., 846 F.3d 625, 632-33 (3d Cir.
2017); Petruska v. Gannon Univ., 462 F.3d 294, 299
n.l (3d Cir. 2006).
12(b)(6) Motion to Dismiss for Failure to State a
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, if it fails to state a
claim upon which relief can be granted. The moving party
bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005). In deciding a motion to dismiss under Rule 12(b)(6), a
court must take all allegations in the complaint as true and
view them in the light most favorable to the plaintiff.
See Warth v. Seldin, 422 U.S. 490, 501 (1975);
Trump Hotels & Casino Resorts, Inc. v.
Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998);
see also Phillips v. County of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008).
Rule of Civil Procedure 8(a) does not require that a
complaint contain detailed factual allegations. Nevertheless,
"a plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires
more than labels and conclusions, and formulaic recitation of
the elements of a cause of action will not do."
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The factual allegations must be sufficient to raise a
plaintiffs right to relief above a speculative level, such
that it is "plausible on its face." See
Id. at 570; see also Umland v. PLANCO Fin. Serv.,
Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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) (citing Twombly, 550 U.S. at 556). While
"[t]he plausibility standard is not akin to a
'probability requirement'... it asks for more than a
sheer possibility." Iqbal, 556 U.S. at 678.
United States Court of Appeals for the Third Circuit has
explicated the Twombly/Iqbal standard on several
occasions. See, e.g., Argueta v. U.S. Immigration &
Customs Enforcement, 643 F.3d 60, 70-73 (3d Cir. 2011);
Santiago v. Warminster Twp., 629 F.3d 121, 129-30
(3d Cir. 2010). In doing so, it has provided a three-step
process for evaluating a Rule 12(b)(6) motion:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the
elements a plaintiff must plead to a state a claim for
relief. See [Iqbal, 556 U.S.] at 675;
Argueta, 643 F.3d at 73. Next, we peel away those
allegations that are no more than conclusions and thus not
entitled to the assumption of truth. See Iqbal, 556
U.S. at 679; Argueta, 643 F, 3d at 73. Finally, we
look for well-pled factual allegations, assume their
veracity, and then "determine whether they plausibly
give rise to an entitlement to relief." Iqbal,
556 U.S. at 679; Argueta, 643 F.3d at 73. This last
step is "a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense." Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
deciding a Rule 12(b)(6) motion, a court must consider only
the complaint, exhibits attached to the complaint, matters of
the public record, as well as undisputedly authentic
documents if the complainant's claims are based upon
these documents." Mayer v. Belichick, 605 F.3d
223, 230 (3d Cir. 2010); see also In re Asbestos Prods.
Liability Litig. (No. VI), 822 F.3d 125, 134 & n.7
(3d Cir. 2016); Buck v. Hampton Twp. Sch. Dist, 452
F.3d 256, 260 (3d Cir. 2006) ("In evaluating a motion to
dismiss, we may consider documents that are attached to or
submitted with the complaint, and any matters incorporated by
reference or integral to the claim, items subject to judicial
notice, matters of public record, orders, and items appearing
in the record of the case.").
argues that (A) Boone lacks Article III standing, (B) Boone
fails to state a claim under the FCRA or the N.J. FCRA, and
(C) Boone's request to submit a third amended complaint
should be denied.
Article III Standing
Constitution confers limited authority on each branch of the
Federal Government." Spokeo, Inc. v. Robins,
136 S.Ct. 1540, 1546 (2016). Under Article III, the federal
courts are endowed with "[t]he judicial Power of the
United States, " which is limited to "Cases"
and "Controversies." U.S. Const, art. Ill.
§§1, 2; see Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559 (1992). Courts ensure that
Article III standing exists in order to maintain the proper
separation of powers. Lujan, 504 U.S. at 559-60. In
fact, "[n]o principle is more fundamental to the
judiciary's proper role in our system of government than
the constitutional limitation of federal-court jurisdiction
to actual cases or controversies." Spokeo, 136
S.Ct. at 1547 (citing Raines v. Byrd, 521 U.S. 811,
"serves to identify those disputes which are
appropriately resolved through the judicial process."
Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990).
While some of the elements of standing embody prudential
considerations, "the core component of standing is an
essential and unchanging part of the case-or-controversy
requirement of Article III." Lujan, 504 U.S. at
560 (citing Allen v. Wright, 468 U.S. 737, 751
are three elements of Article III standing: (1) First, a
plaintiff must have an "injury in fact"-i.e., an
"invasion of a legally protected interest" that is
"concrete, " "particularized, " and
"actual or imminent, not 'conjectural' or
'hypothetical."' Lujan, 504 U.S. at
560. (2) Second, a plaintiff must show a "causal
connection between the injury and the conduct complained of
such that the injury is "fairly trace[able] to the
challenged action of the defendant, and not... th[e] result
[of] the independent action of some third party not before
the court." Id. (citations omitted). (3) Third,
there must be a likelihood "that the injury will be
'redressed by a favorable decision.'''
Id. at 561 (citation omitted). These requirements
are known as injury in fact, causation, and redressability.
requirements for standing do not change in the class action
context." In re Horizon Healthcare Servs. Inc. Data
Breach Litig., 846 F.3d 625, 634 (3d Cir. 2017). The
named plaintiff must allege and show Article III standing in
order to maintain a putative class action. Id.
"[I]f none of the named plaintiffs purporting to
represent a class establishes the requisite of a case or
controversy with the defendants, none may seek relief on
behalf of himself or any other member of the class."
O'Shea v. Littleton, 414 U.S. 488, 494 (1974);
see Horizon, 846 F.3d at 634. However, the named
plaintiff does not have to show that unidentified members of
the putative class members have suffered an injury in order
to proceed. See Horizon, 846 F.3d at 634; see
also Lewis v. Casey, 518 U.S. 343, 357 (1996); Warth
v. Seldin, 422 U.S. 490, 502 (1975).
an injury in fact, a plaintiff must allege an "invasion
of a legally protected interest" that is (a)
"concrete, " (b) "particularized,
" and (c) "actual or imminent, not
'conjectural' or 'hypothetical."'
Lujan, 504 U.S. at 560. I will address these
following reasons, I conclude that Boone's injury as
alleged is concrete.
injury to be "concrete, " it must be
"'de facto'; that is, it must actually
exist." Spokeo, 136 S.Ct. at 1548 (citing
Black's Law Dictionary 479 (9th ed. 2009)). It must be
"real, " but does not necessarily need to be
"tangible." Id. at 1548-49; see, e.g.,
Pleasant Grove City v. Summum,555 U.S. 460 (2009) (free
speech); Church of Lukumi ...