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Mitchell v. Bancfirst

United States District Court, D. Kansas

January 9, 2018

BANCFIRST, Defendant.



         This matter is before the court on defendant BancFirst's Motion to Dismiss for Lack of Jurisdiction (Doc. 11). Plaintiff Ryan Mitchell brings this action against defendant for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. Defendant argues the claim should be dismissed for lack of personal jurisdiction. For the following reasons, the court denies defendant's motion.

         I. Background

         In August 2010, plaintiff, an Oklahoma resident, entered into a financing agreement with defendant, an Oklahoma banking corporation, in which defendant loaned plaintiff $29, 566 for the purchase of a 2010 Ford F-150. Defendant then began reporting information about the loan to the three major consumer reporting agencies, including Trans Union. Plaintiff obtained a copy of his credit report in 2015 and alleges defendant had been reporting inaccurate information regarding the car loan, including reports that plaintiff was late making seven payments in 2015. Plaintiff began contacting the credit reporting agencies to correct the alleged misinformation. Trans Union responded, stating it had verified the information with defendant and did not change plaintiff's credit report. Despite plaintiff's repeated attempts to dispute the alleged inaccurate information, defendant and Trans Union have not corrected plaintiff's credit report. Plaintiff initiated this lawsuit alleging violations of the FCRA. Specifically, plaintiff claims defendant violated its duty to investigate disputes initiated from consumers to the credit reporting agencies as to the accuracy of information reported by the furnisher as required by 15 U.S.C. § 1681s-2(b)(1). Plaintiff states that he contacted the credit reporting agencies to dispute the accuracy of the information being reported by defendant, and defendant failed to investigate these disputes. Plaintiff also alleges he directly contacted defendant regarding the inaccurate report, and defendant responded by letter stating he had no late payments on his account.

         II. Analysis

         Defendant moved to dismiss the case under Rule 12(b)(2) of the Federal Rules of Civil Procedure, arguing plaintiff has failed to establish personal jurisdiction in Kansas. Defendant states it is an Oklahoma corporation headquartered in Oklahoma City, OK and that all of its offices and branches are located within Oklahoma. Defendant states it has no employees or physical facilities in Kansas, it does not advertise or solicit customers in Kansas, and it is not registered to do business in Kansas. Less than one percent of its customers have a Kansas address. Plaintiff was an Oklahoma resident when he entered into the financing agreement with defendant, but plaintiff now lives in Kansas. Defendant argues that it does not have any continuous or systematic contacts with Kansas and has not purposefully directed any of its activities at Kansas. The only connection defendant claims to have with the forum in regard to this litigation is the fact that plaintiff currently lives in Kansas.

         Plaintiff argues he has established personal jurisdiction because defendant purposefully directed its activities at the state of Kansas by inaccurately reporting credit information to Trans Union, which injured his reputation while he resided in Kansas.

         In order for a court to exercise personal jurisdiction, a defendant must have “minimum contacts” with the forum state, “such that having to defend a lawsuit there would not ‘offend traditional notions of fair play and substantial justice.'” Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (citing Int'l Shoe v. Washington, 326 U.S. 310, 316 (1945)). Plaintiff bears the burden of establishing personal jurisdiction. Id. Nonresident defendants may possess the necessary minimum contacts with a forum in one of two ways: general jurisdiction or specific jurisdiction. General jurisdiction is “based on an out-of-state defendant's ‘continuous and systematic' contacts with the forum state.” Id. at 1078. As plaintiff has not alleged general jurisdiction over defendant, the court will focus its analysis solely on specific jurisdiction.

         A court may exercise specific jurisdiction over a defendant if the defendant has “‘purposefully directed' his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to' those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal citations omitted). The Tenth Circuit has delineated three factors that indicate purposeful direction: “(a) an intentional action . . . that was (b) expressly aimed at the forum state . . . with (c) knowledge that the brunt of the injury would be felt in the forum state.” Dudnikov, 514 F.3d at 1072 (citing Calder v. Jones, 465 U.S. 783 (1984)).

         When analyzing whether a forum may assert specific jurisdiction over a nonresident defendant, courts must focus on the relationship between “the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014). Therefore, the inquiry depends on whether the defendant's “suit-related conduct” creates a “substantial connection with the forum state.” Id. These contacts must arise out of contacts the “defendant himself” creates with the forum state, and cannot depend on the defendant's contacts with persons who reside in the forum state. Id. at 1122. Plaintiff's contacts with the forum state cannot be the decisive factor. Id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984) (“[The] unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.”)). And a plaintiff cannot be the only link between the defendant and the forum; “[r]ather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him.” Id.

         Plaintiff relies solely on the United States Supreme Court's decision in Calder to support his argument that this court may exercise personal jurisdiction over defendant. In Calder, a television actress brought a libel suit in California against a reporter and editor of the National Enquirer who both worked at the publication's Florida headquarters. 465 U.S. at 785-86. The Court found that although defendants were residents of Florida, they had knowingly caused injury to the plaintiff in California and California was the “focal point” of the story and of the harm suffered. Id. at 789-90. The Court noted that the story-which was drawn from California sources-was about the “California activities of a California resident, ” and the injury to the plaintiff's reputation and her emotional distress were suffered in California. Id. at 788-89.

         Plaintiff argues his case is analogous to Calder because he has suffered reputational damage as a result of defendant's actions. Plaintiff accurately notes that Congress intended the FCRA to serve as a replacement for state law claims related to libel and invasion of privacy. See, e.g., Zamora v. Valley Fed. Sav. & Loan Ass'n, 811 F.2d 1368, 1370 (10th Cir. 1987) (“By enacting the FCRA, Congress intended to prevent invasions of consumers' privacy); Virginia G. Maurer, Common Law Defamation and the Fair Credit Reporting Act, 72 Geo. L.J. 95, 97 (1983) (“Prior to the FCRA, injuries that resulted from the dissemination of erroneous information by credit reporting agencies could be redressed through the common law action of defamation. The FCRA introduced a new means for consumers to redress such injuries.”). In fact, this court found it had personal jurisdiction over a nonresident defendant who had obtained a plaintiff's credit report without permission or cause in violation of the FCRA. See Cole v. Am. Family Mut. Ins. Co., 333 F.Supp.2d 1038, 1048 (D. Kan, 2004). This court noted that in enacting the FCRA, Congress intended to prevent invasions of consumers' privacy, and that in invasion of privacy actions, the “resulting injury is the mental distress from having been exposed to public view and that injury necessarily occurs in the forum where the plaintiff was injured.” Id. (internal citation omitted). Because the defendant had obtained the plaintiff's credit report without authorization and while knowing that the plaintiff resided in Kansas, the defendant “purposefully direct[ed] his actions at Kansas and caus[ed] injury to plaintiff in Kansas.” Id.

         Plaintiff argues that much like a libel or invasion of privacy action, defendant's violations of the FCRA connected it to Kansas because that is where his injury took place.

         Rather than rely on plaintiff's comparisons to Calder, the court is more inclined to review the personal jurisdiction issue considering Co ...

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