     Case: 13-60886      Document: 00512753836         Page: 1    Date Filed: 09/02/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 13-60886                      September 2, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
TORENO GRIFFIN,

                                                 Plaintiff-Appellant,
v.

CYNTHIA WELCH, ALFA SPECIALTY
INSURANCE COMPANY d/b/a ALFA INSURANCE,
and ALFA MUTUAL INSURANCE COMPANY

                                                 Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 4:12-CV-148


Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Plaintiff-appellant Toreno Griffin appeals from the district court’s final
judgment in which the court granted the defendants-appellees’ motion to
dismiss under FED. R. CIV. P. 12(b)(6); denied Griffin’s cross-motion for partial
summary judgment; dismissed with prejudice Griffin’s only federal claim,
under the Fair Credit Reporting Act (“FCRA”), against the defendants-
appellees, Alfa Specialty Insurance Company d/b/a Alfa Insurance and Alfa
Mutual Insurance Company (together “Alfa”), and their agent and adjuster,

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 13-60886      Document: 00512753836         Page: 2    Date Filed: 09/02/2014



                                      No. 13-60886
Cynthia Welch; and exercised its discretion to decline keeping Griffin’s
remaining state law claims, dismissing all of them without prejudice. For the
reasons set out below, we AFFIRM. 1
       We review the district court’s grant of the defendants’ motion to dismiss
under Rule 12(b)(6) de novo, “accept[ing] ‘all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.’” 2 “Thus, the court should not
dismiss [a] claim unless the plaintiff would not be entitled to relief under any
set of facts or any possible theory that [it] could prove consistent with the
allegations in the complaint.” 3 The well-pleaded facts in Griffin’s amended
complaint are as follows:
        On May 31, 2011, Griffin was in an automobile accident with a third
party, who was at fault. Griffin sustained personal injuries and entered into
settlement negotiations with the third party’s insurer, Alfa, with Welch acting
as Alfa’s adjuster. In connection with the settlement negotiations, Griffin
supplied medical information to Welch. The claim settled on July 18, 2011.
       Sometime in September or October of 2011, Welch disclosed the medical
information that Griffin had supplied during the now completed settlement
negotiations to a third party in a willful, knowing, or grossly negligent manner.
Based on this disclosure, Griffin brought this action, asserting a federal claim
under a single provision of the FCRA, 15 U.S.C. § 1681b(g)(4) (titled



1 The district court had federal question jurisdiction under 28 U.S.C. § 1331, and we have
jurisdiction over this appeal from a final judgment under 28 U.S.C. § 1291.
2Martin K. Eby Const. Co., Inc v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
3 Id. We review the district court’s denial of Griffin’s motion for partial summary judgment
under the usual Rule 56 standards, but the motions are mutually exclusive, and it appears
the district court properly granted the motion to dismiss, so we should affirm the denial of
Griffin’s motion.


                                             2
    Case: 13-60886     Document: 00512753836      Page: 3    Date Filed: 09/02/2014



                                  No. 13-60886
“Limitation on redisclosure of medical information”), as well as state law
claims. Section 1681b(g)(4) provides:
            (4) Limitation on redisclosure of medical information
            Any person that receives medical information
            pursuant to paragraph (1) or (3) shall not disclose such
            information to any other person, except as necessary
            to carry out the purpose for which the information was
            initially disclosed, or as otherwise permitted by
            statute, regulation, or order.

      The defendants filed a motion to dismiss under Rule 12(b)(6) arguing
that section 1681b(g)(4) does not apply to all potential medical information,
only medical information which is provided in connection with a “consumer
report” as defined under the FCRA. Because the medical information here was
not provided in connection with a consumer report (and Griffin has never even
claimed it was), the defendants argued that Griffin failed to state a claim under
the FRCA. Griffin filed a cross-motion for partial summary judgment arguing
that section 1681b(g)(4)’s scope was broad enough to include the medical
information Welch disclosed.
      In a well-reasoned memorandum opinion and order, 4 the district court
concluded that Griffin failed to state a claim under section 1681b(g)(4). As the
district court noted, the statutory provisions relevant to the analysis come from
two sections of the FCRA, 15 U.S.C. §§ 1681a and 1681b, and courts construe
them together. “Under the foregoing statutory scheme, section 1681b has two
functions: it adds to section 1681a(d)’s definition of a consumer report, as well
as delineates the permissible uses for those ‘communications of information’




4 See Griffin v. Welch, No. 4:12-CV-148, 2013 WL 5423804 (S.D. Miss. Sept. 26, 2013)
(“District Court Order”).


                                         3
       Case: 13-60886       Document: 00512753836         Page: 4    Date Filed: 09/02/2014



                                        No. 13-60886
already falling within the definition of a ‘consumer report.’” 5 “[T]he courts
have recognized the preeminence of § 1681a and conformed the breadth of §
1681b to its bounds.” 6 “‘Not to do this would render unnecessarily meaningless
the § 1681a restrictive language . . .’ while ‘[c]onforming § 1681b to 1681a
preserves the integrity of both sections, while promoting the underlying
purpose of the entire subchapter.’” 7
         In short, the district court concluded that Griffin failed to construe
section 1681b(g)(4) in light of the FCRA framework as a whole and failed to
supply any authority for his expansive reading of the term “medical
information.” On its face, section 1681b(g)(4) applies only to the receipt of
information pursuant to section 1681b(g)(1) or (3), and Griffin’s claim falls
under neither provision. First, section 1681b(g)(1) applies to the sharing of “a
consumer report that contains medical information” by a “consumer reporting
agency,” but the defendants indisputably are not consumer reporting agencies,
so that provision cannot apply.
         Second, section 1681b(g)(3) provides, “Section 1681a(d)(3) of this title
shall not be construed so as to treat information or any communication of
information as a consumer report if the information or communication is
disclosed” under certain circumstances. Thus, the district court noted, “In
order for a person to have received medical information pursuant to
[section 1681a(d)(3)], the medical information must meet the general definition
of ‘consumer report,’ and it must have been shared between affiliates.” 8 The


5   Yang v. Gov't Employees Ins. Co., 146 F.3d 1320, 1324 (11th Cir. 1998).
6Hovater v. Equifax, Inc., 823 F.2d 413, 419 (11th Cir.), cert. denied, 484 U.S. 977, 108 S. Ct.
490, 98 L. Ed. 2d 488 (1987).
7   Id. (quoting Cochran v. Metropolitan Life Ins. Co., 472 F. Supp. 827, 831 (N.D.Ga. 1979)).
8   See District Court Order at *5.


                                                4
     Case: 13-60886      Document: 00512753836        Page: 5     Date Filed: 09/02/2014



                                     No. 13-60886
medical information here does not qualify as a “consumer report,” and it was
not received by the defendants through an “affiliate” under the FCRA, so it
also does not fall under section 1681b(g)(3).
      Because the medical information at issue does not fall under either
section 1681b(g)(1) or (3), the district court concluded that Griffin failed to
state a claim upon which relief can be granted under section 1681b(g)(4) and
therefore granted the defendants’ motion to dismiss under Rule 12(b)(6). We
agree, essentially for the same reasons set out by the district court. At a more
general level, because the medical information here is not connected to any
consumer report, section 1681b(g)(4) cannot apply. 9
      Because we conclude that the district court correctly granted the
defendants’ motion to dismiss, we also conclude that it properly denied Griffin’s
cross-motion for partial summary judgment.
       For the reasons set out above, we AFFIRM.




9 See Garnett v. Millennium Med. Mgmt. Res., Inc., No. 10 C 3317, 2010 WL 5140055, *2
(N.D. Ill. Dec. 9, 2010) (“Instead, the FCRA places restrictions on reporting medical
information that might be included in a consumer report because credit information pertains
to bills for medical services. See 15 U.S.C. § 1681b(g).”).


                                            5
