IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NATHAN SALVATORE, : Civil No. 4:14-CV-1848

:

Plaintiff : (Judge Kane)

:

v. : (Magistrate Judge Carlson)

:

MICROBILT CORPORATION, :

:

Defendant :

REPORT AND RECOMMENDATION

I. INTRODUCTION

In this action, Nathan Salvatore has sued Microbilt Corporation, seeking 

damages, costs and attorney’s fees for Microbilt’s alleged violation of the Fair 

Credit Reporting Act, 15 U.S.C. § 1681 (“FCRA”). Specifically, the plaintiff 

alleges that in 2014, Microbilt violated the FCRA by furnishing him with a 

requested copy of his credit report without redacting the first five digits of his 

Social Security number, as he had specifically requested. The defendant has 

moved to dismiss the claims pursuant to Rule 12(b)(1) of the Federal Rules of 

Civil Procedure, arguing that regardless of whether Microbilt failed to redact the 

numbers, the plaintiff’s complaint reveals no harm that stemmed from this mistake. 

Accordingly, the defendant maintains that the plaintiff has no standing under 

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Article III of the United States Constitution to bring this action, an argument the 

defendant has supported by relying chiefly on the United States Supreme Court’s 

ruling in Spokeo, Inc. v. Robins, -- U.S. --, 136 S. Ct. 1540 (2016), which recently 

clarified the kind of injury necessary to bring suit where a plaintiff has relied on a 

statutory violation as a basis for the lawsuit. 

For the reasons that follow, the Court finds that the plaintiff has not alleged 

that he suffered the kind of concrete and particularized harm necessary to confer 

standing on him to maintain this action. The well-pleaded facts in this complaint 

describe the most ephemeral of harms. The plaintiff received a document which he 

requested. The document was accurate, albeit not fully redacted. There are no 

well-pleaded allegations of an actual, imminent, or predictable illicit disclosure of 

any confidential information. Although he has alleged technical violations of the 

FCRA, the fact that he was furnished his own credit report bearing his unredacted 

Social Security number and lacking certain notice information that caused him

actual harm, does not set forth a cognizable injury, and therefore he lacks standing 

and the case should be dismissed.

II. BACKGROUND

In 2014, the plaintiff requested a copy of his credit report from Microbilt. 

(Am. Compl. ¶ 31.) In his letter request, he asked that Microbilt redact the first 

five numbers of his Social Security number on the report. (Id. ¶ 32.) Nevertheless, 

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the plaintiff alleges that Microbilt neglected to redact the digits as requested, 

instead sending him a report that bore his entire Social Security number. (Id. ¶¶ 

41-42.) The complaint does not allege that Microbilt shared an unredacted copy of 

the credit report with any third party, or that he was the victim of identity theft, or 

that he suffered in any way from the receipt of the unredacted credit report. The 

plaintiff also intimates that Microbilt failed to include certain notices that are 

required under the FCRA when a credit reporting agency furnishes a party with a 

copy of their credit report, but he does not allege that the missing information 

injured him other than to aver in conclusory fashion that the alleged practice of 

failing to include the notices of the plaintiff’s rights under the FCRA “exact[s] 

serious consequences on consumers and interstate commerce.” (Id. ¶ 59.) 

Nevertheless, the plaintiff seeks recovery of statutory damages, fees and costs for 

what he tacitly concedes is a claim based on a statutory violation and an 

informational injury relating to a statutory notice requirement.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a 

complaint for “lack of subject matter jurisdiction.” A motion to dismiss under 

Rule 12(b)(1) thus challenges the power of the court to hear a case or consider a 

claim. Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). When faced 

with a 12(b)(1) motion, the plaintiff has the burden to “convince the court it has 

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jurisdiction.” Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 

2000); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 

1991) (“When subject matter jurisdiction is challenged under Rule 12(b)(1), the 

plaintiff must bear the burden of persuasion.”).

Motions under Rule 12(b)(1) come in two varieties. First, a “facial” attack 

“contests the sufficiency of the pleadings.” Common Cause of Pa. v. 

Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009) (quoting Taliaferro v. Darby Twp. 

Zoning Bd., 458 F.3d 187-88 (3d Cir. 2006)). Such a facial challenge “attacks the 

complaint on its face without contesting its alleged facts, is like a 12(b)(6) motion 

in requiring the court ‘to consider the allegations of the complaint as true.’” Hartig 

Drug Company, Inc. v. Senju Pharmaceutical Co., Ltd., -- F.3d --, 2016 WL 

4651381, *4 (3d Cir. Sept. 7, 2016). Thus, in ruling on such a motion, the court 

assumes the truth of the allegations in the complaint, but must analyze the 

pleadings to determine whether they state an action that comes within the court’s 

jurisdiction. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 

514 (3d Cir. 2007). A facial 12(b)(1) motion should be granted only if it appears 

certain that the assertion of subject-matter jurisdiction is improper. Kehr 

Packages, 926 F.2d at 1408-09; Empire Kosher Poultry, Inc. v. United Food & 

Commercial Workers Health & Welfare Fund of Ne. Pa., 285 F. Supp. 2d 573, 577 

(M.D. Pa. 2003).

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In contrast, a “factual” attack on subject-matter jurisdiction asserts that 

although the pleadings facially satisfy jurisdictional requirements, one or more 

allegations in the complaint is untrue, which therefore causes the action to fall 

outside the court’s jurisdiction Carpet Group, Int’l v. Oriental Rug Imps. Ass’n,

Inc., 227 F.3d 62, 69 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass’n, 

549 F.2d 884, 891 (3d Cir. 1977). In ruling on factual challenges, a court must 

consider the merits of the disputed allegations, since “the trial court’s . . . very 

power to hear the case” is in dispute. Mortensen, 549 F.2d at 891. 

In this case, Microbilt has presented the Court with a facial challenge to 

subject-matter jurisdiction by arguing that even accepting the plaintiff’s allegations 

as true, they are insufficient to demonstrate injury-in-fact, since the plaintiff has 

not suffered any concrete and particularized injury stemming from the alleged 

FCRA violations. The Court thus should accept the allegations in the plaintiff’s 

amended complaint as true, and determine whether those facts as alleged are 

sufficient to establish subject-matter jurisdiction over the claims.

IV. DISCUSSION

After this action was first filed, the Court entered an order staying further 

proceedings because the United States Supreme Court had granted certiorari in 

Spokeo and a decision in that case was expected to have relevance to the threshold 

question of whether the kinds of injuries that the plaintiff in this action has alleged 

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are sufficient to confer Article III standing to sue in federal court. After Spokeo

was issued earlier this year, the defendant moved to dismiss the plaintiff’s claims, 

arguing that the plaintiff lacked standing because he has not alleged that he 

suffered any actual injury by virtue of being provided a copy of his credit report 

bearing his Social Security number, and the alleged omission of general notice 

information required by the FCRA.

The issue of standing is one of constitutional significance, and is “an 

essential and unchanging part of the case-or-controversy requirement of Article 

III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “To establish Article III 

standing, a plaintiff must demonstrate ‘(1) an injury-in-fact, (2) a sufficient causal 

connection between the injury and the conduct complained of, and (3) a likelihood 

that the injury will be redressed by a favorable decision.’” In re Nickelodeon 

Consumer Privacy Litig., 827 F.3d 262, 272 (3d Cir. 2016) (quoting Finkelman v. 

National Football League, 810 F.3d 187, 193 (3d Cir. 2016)). In order to allege an 

injury-in-fact, “a plaintiff must claim ‘the invasion of a concrete and particularized 

legally protected interest’ resulting in harm ‘that is actual or imminent, not 

conjectural or hypothetical.’” Id. Harm is deemed to be “particularized” if it 

“affect[s] the plaintiff in a personal and individual way.” Id. An injury is 

“concrete” if it is “ ‘de facto’; that is, it must actually exist” rather than being only 

‘abstract’.” Id. (quoting Spokeo, 136 S. Ct. at 1548).

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In Spokeo, the plaintiff alleged that Spokeo, an online background check 

firm, had reported inaccurate information about him to its customers. The plaintiff 

brought suit alleging that the misreporting to third parties violated the FCRA, and 

the Ninth Circuit concluded that he had standing based upon his “personal interests 

in the handling of his credit information”, as well as because of the alleged 

“violations of his statutory rights created by the [Act].” Robins v. Spokeo, Inc.,742 

F.3d 409, 413 (9th Cir. 2014). The Supreme Court granted certiorari in Spokeo to 

address the specific question of “[w]hether Congress may confer Article III 

standing upon a plaintiff who suffers no concrete harm, and who therefore could 

not otherwise invoke the jurisdiction of a federal court, by authorizing a private 

right of action based on a bare violation of a federal statute.” Id. (quoting Supreme 

Court, No. 13-1339, Question Presented, http://www.supremecourt.gov/qp/13-

01339qp.pdf.) 

Ultimately, the Supreme Court did not specifically answer that question, but 

instead vacated the judgment of the Ninth Circuit Court of Appeals and remanded 

the case for further proceedings, including to determine whether the plaintiff had 

standing in light of the instruction and guidance set forth in the Supreme Court’s 

opinion. The Court found that the Ninth Circuit had erred because it focused 

exclusively on whether the plaintiff had alleged a “particularized” injury, without 

also considering whether the injury was “concrete.” Spokeo, 136 S. Ct. at 1550 

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(“Because the Ninth Circuit failed to fully appreciate the distinction between 

concreteness and particularization, its standing was incomplete.”). The Supreme 

Court also made clear, however, that “Congress cannot erase Article III’s standing 

requirements by statutorily granting the right to sue to a plaintiff who would not 

otherwise have standing.” Id. at 1547-48. The Court went further:

Congress’ role in identifying and elevating intangible 

harms does not mean that a plaintiff automatically 

satisfies the injury-in-fact requirement whenever a statute 

grants a person a statutory right and purports to authorize 

that person to sue to vindicate that right. Article III 

standing requires a concrete injury even in the context of 

a statutory violation. For that reason, [the plaintiff] could 

not, for example, allege a bar procedural violation, 

divorced from any concrete harm, and satisfy the injuryin-fact requirement of Article III.

Id. at 1549 (citation omitted); see also id. at 1550 (“A violation of one of the 

FCRA’s procedural requirements may result in no harm.”). The Court explained 

that if a consumer reporting agency failed to provide required notices to a user of 

the agency’s consumer information, like an incorrect zip code, that allegation alone 

might be insufficient to confer standing on a plaintiff because it is “difficult to 

imagine how the dissemination of an incorrect zip code, without more, could work 

any concrete harm.” Id. at 1550. Furthermore, the Court emphasized that for an 

injury to be “concrete” it cannot be wholly abstract or conjectural; the injury must 

“actually exist.” Id. at 1548.

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The Court also recognized that intangible harms can sometimes be sufficient 

to create Article III standing, since “concrete” is not necessarily the same as 

“tangible.” Id. at 1549. In considering whether intangible injuries are sufficiently 

concrete to give rise to standing, the Supreme Court instructed that courts should 

look to “both the history and the judgment of Congress,” id., noting that with 

respect to history, “it is instructive to consider whether an alleged intangible harm 

has a close relationship to a harm that has traditionally been regarded as providing 

a basis for a lawsuit in English or American courts.” Id. The Court recognized 

that although Congress cannot elevate all intangible harms so that they satisfy the 

injury-in-fact requirement of Article III standing, in some cases “the violation of a 

procedural right granted by statute can be sufficient . . . to constitute injury in fact, 

and that in those cases a plaintiff “need not allege any additional harm beyond the 

one Congress has identified.” Id. Nevertheless, it is clear after Spokeo that for a 

procedural violation to satisfy the injury-in-fact requirement, the procedural 

violation must constitute a “concrete” harm. Id.

Since Spokeo, the Third Circuit Court of Appeals has had occasion to apply 

its holding in cases where challenges to standing were made. For example, in the 

Nickelodeon Consumer Privacy Litigation appeal the plaintiffs were a class of 

children who alleged that an online website improperly tracked their usage and 

shared the information with other entities in violation of federal law, including the 

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Video Privacy Protection Act, the Wiretap Act, and the Stored Communications 

Act. The defendant argued that the children had not suffered any injury, relying on 

Spokeo. The Third Circuit disagreed:

None of [Spokeo’s] pronouncements call into question 

whether the plaintiffs in this case have Article III 

standing. The purported injury here is clearly 

particularized, as each plaintiff complains about the 

disclosure of information relating to his or her online 

behavior. While perhaps “intangible,” the harm is also 

concrete in the sense that it involves a clear de facto 

injury, i.e., the unlawful disclosure of legally protected 

information. Insofar as Spokeo directs us to consider 

whether an alleged injury-in-fact “has traditionally been 

regarded as providing a basis for a lawsuit,” [In re 

Google Inc. Cookie Placement Consumer Privacy Litig., 

806 F.3d 125 (3d Cir. 2015)] noted that Congress has 

long provided plaintiffs with the right to seek redress for 

unauthorized disclosures of information that, in 

Congress’s judgment, ought to remain private.

In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 274 (3d Cir. 2016)

(emphasis added). The Third Circuit followed Spokeo’s admonition that courts 

consider also the “history and judgment of Congress” to see if the alleged injury 

was sufficiently concrete, Spokeo, 136 S. Ct. at 1549, and found that this factor 

supported the conclusion that the alleged injuries suffered – namely, the unlawful 

disclosure of legally protected information – was sufficiently concrete to confer 

standing. Id.

In a recent decision, Judge Caputo of this Court found that a plaintiff had 

adequately pleaded facts to establish standing where the plaintiff alleged that the 

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defendant violated the Fair Debt Collection Practices Act by sending a collection 

notice that revealed the plaintiff’s personal information through the envelope’s 

glassine window. Daubert v. NRA Group, LLC, Civ. A. No. 3:15-cv-00718, 2016 

U.S. Dist LEXIS 105909, 2016 WL 4245560 (M.D. Pa. Aug. 11, 2016). Judge 

Caputo relied on Nickelodeon’s guidance in finding that the claim before the Court 

– which was grounded in the unlawful disclosure of legally protected information 

by causing the contents of the mailer to be visible through the envelope itself – was 

sufficiently particularized and concrete under Spokeo to confer standing on the 

plaintiff. However, in Daubert the Court’s conclusion regarding standing was 

based upon a real, concrete, identifiable risk of harm which flowed directly from 

the defendant’s alleged handling of confidential information, the ability of third 

parties to illicitly access confidential personal information.

Other courts addressing other claims on slightly different facts have come 

out the other way. For example, in Jamison v. Bank of Am., N.A., No. 2:160422, --

F. Supp. 3d --, 2016 U.S. Dist. LEXIS 88326, 2016 WL, *3-*5 3653456 (E.D. Cal. 

July 6, 2016), the court concluded that a plaintiff lacked standing to sue for 

violations of the Truth in Lending Act where mortgage payments sent to the 

plaintiff himself contained inaccurate information. In Gubala v. Time Warner 

Cable, Inc., No. 15-1078, 2016 U.S. Dist. LEXIS 79820, 2016 WL 3390415, at *3-

*5 (E.D. Wis. June 17, 2016), the district court found that a plaintiff lacked 

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standing to sue under the Cable Communications Privacy Act where the plaintiff 

alleged speculative harms, including that the defendant failed to destroy the 

plaintiff’s personal information after he had terminated his cable service, since the 

bare possibility that the plaintiff’s information could be disclosed to third parties 

was too speculative and insufficient to establish a concrete injury. 

In Smith v. Ohio State University, -- F. Supp. 3d --, 2016 U.S. Dist. LEXIS 

74612, 2016 WL 3182675 (S.D. Ohio June 8, 2016), the plaintiffs had applied to 

work at The Ohio State University, and alleged that the university had violated the 

FCRA during the hiring process when it asked for consent to pull their credit 

reports to do background checks. The plaintiffs alleged that the university violated 

their rights after providing a disclosure and authorization form to the plaintiffs that 

included extraneous information such as a liability release. The plaintiffs 

eventually were hired by the university, but claimed that they suffered injury in the 

application process by having their privacy and statutory rights violated. Relying 

on Spokeo and other cases, the university moved to dismiss for lack of jurisdiction, 

and the district court agreed:

In determining whether Congress has elevated FCRA 

breaches to the status of legally cognizable injuries, the 

Supreme Court held that [a] violation of one of the 

FCRA’s procedural requirements may result in no harm.” 

In this case, plaintiffs allege they suffered harm when 

their “privacy was invaded and they were misled as to 

their rights under the FCRA.” However, plaintiffs 

admitted that they did not suffer a concrete consequential 

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damage as a result of OSU’s alleged breach of the FCRA. 

Without a concrete and particularized injury-in-fact, there 

is no Article III standing in this Court.

Id. 2016 WL 3182675, at *4 (citations omitted). Other courts have reached similar 

conclusions, where plaintiffs have attempted to predicate standing upon a bare 

procedural violation without alleging any actual concrete injury resulting from that 

violation. See, e.g., Dolan v. Select Portfolio Servicing, Civ. A. No. 03-CV-3285, 

2016 U.S. Dist. LEXIS 101201, 2016 WL 4099109 (E.D.N.Y. Aug. 2, 2016).

The case at bar is distinguishable from the Nickelodeon litigation and the 

Daubert case before Judge Caputo, both of which involved allegations that the 

defendants had disseminated or unlawfully disclosed legally protected information 

– conduct that the courts found not only to be procedural and statutory violations, 

but violations that were alleged to have caused actual concrete injury to the 

plaintiffs. In this case, by way of contrast, the plaintiff has alleged only that 

Microbilt violated the terms of the FCRA by furnishing him with a copy of his

credit report that did not redact the first five letters of his Social Security number. 

There is no allegation that this private identifying information was shared with 

third parties, and no explanation as to how the receipt of a true and correct credit 

report bearing the plaintiff’s own Social Security number could be construed as a

concrete injury. The plaintiff instead is relying on the fact of the procedural 

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violation alone to establish standing, which Spokeo has instructed is insufficient in 

cases just like this.

The plaintiff’s claim that Microbilt violated the FCRA by failing to include 

certain legal notices in the credit report fares no better. The plaintiff, apparently 

relying on the Supreme Court’s decisions in Federal Election Commission v. 

Akins, 524 U.S. 11 (1998) and Public Citizen v. Department of Justice, 491 U.S. 

440 (1989), seems to be asserting that any time a credit reporting agency fails to 

include certain information required by statute, an affected plaintiff has sufficient 

injury to maintain standing to sue. Akins and Public Citizen “involved statutory 

rights intended to protect and promote public interests that, by their nature, are 

intangible and diffuse, and would be rendered wholly unenforceable were 

intangible injury, or bare procedural violations, categorically insufficient to confer 

standing.” Dolan, 2016 WL 4099109, at *4. In this case, by contrast, the 

information that the plaintiff claims not to have received in his credit report was 

readily available to him, as the defendant has noted. 

But more importantly, the plaintiff has not alleged any harm from the 

absence of the form notice in the disclosure package Microbilt sent, placing this 

case on different footing that Akins or Public Citizen, which concerned injuries to 

citizens who were unable to obtain information about a political committee and its 

members and funding under the Federal Election Campaign Act (Akins), and 

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information about judicial nominees under the Federal Advisory Committee Act 

(Public Citizen). In this case, the notice of information that the plaintiff 

complained of is hardly the same as the political information sought in Akins and 

Public Citizen, and is admittedly available to him. As such, the Court does not 

find that the plaintiff has articulated facts showing a particularized and concrete 

injury, but has instead based his claim exclusively on a procedural violation that 

after Spokeo is not sufficient, on its own, to establish standing.

While the plaintiff has not articulated sufficient facts to give rise to standing, 

and this complaint should be dismissed, we recognize that Spokeo is an intervening 

legal development which clarifies the nature of the constitutional standing 

requirement in this setting. Therefore the district court may wish to consider 

dismissing the complaint without prejudice to one final effort by the plaintiff to 

articulate further well-pleaded facts giving rise to standing in light of Spokeo.

V. RECOMMENDATION

Considering the facts set forth in the amended complaint as true, and guided 

by the Supreme Court’s instruction in Spokeo as applied to those facts, the Court 

concludes that the plaintiff has not pleaded facts to show that he suffered a 

concrete injury as a result of Microbilt’s alleged procedural violations of the 

FCRA. Accordingly, IT IS RECOMMENDED that the defendant’s motion to 

dismiss, (Doc. 21.), be GRANTED.

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The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within 

fourteen (14) days after being served with a copy thereof. Such party 

shall file with the clerk of court, and serve on the magistrate judge and 

all parties, written objections which shall specifically identify the 

portions of the proposed findings, recommendations or report to 

which objection is made and the basis for such objections. The 

briefing requirements set forth in Local Rule 72.2 shall apply. A 

judge shall make a de novo determination of those portions of the 

report or specified proposed findings or recommendations to which 

objection is made and may accept, reject, or modify, in whole or in 

part, the findings or recommendations made by the magistrate judge. 

The judge, however, need conduct a new hearing only in his or her 

discretion or where required by law, and may consider the record 

developed before the magistrate judge, making his or her own 

determination on the basis of that record. The judge may also receive 

further evidence, recall witnesses or recommit the matter to the 

magistrate judge with instructions.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

Dated: October 3, 2016

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