United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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)).
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.
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.
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.
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.
than rely on plaintiff's comparisons to Calder,
the court is more inclined to review the personal
jurisdiction issue considering Co ...