Hurt v. Ampcus, Inc. (July 8, 2026)

Case details
Full caption
John Hurt v. Ampcus, Inc.
Country
United States
Jurisdiction
Federal
Decided
July 8, 2026
Disposition
Dismissed
Majority
Bill Davis United States (J.) (unanimous Court)
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1999241Only the Westlaw citation is currently available.United States District Court, E.D. Texas, Sherman Division.JOHN HURTv.AMPCUS, INC.NO. 4:25-CV-00862-SDJ-BD|Filed 07/08/2026Editor's Note: This document contains discussion ofunverified citations, likely generated by AI tools used by aparty or counsel. These citations are not attributable to theCourt. The unverified citations have been preserved as part ofthe official record, but links are unavailable.Attorneys and Law FirmsJohn Hurt, Plano, TX, Pro Se.Todd M. Reinecker, Pro Hac Vice, Zachary S. Stinson, ProHac Vice, PilieroMazza PLLC, Washington, DC, for Ampcus,Inc.REPORT AND RECOMMENDATION OFUNITED STATES MAGISTRATE JUDGEBill Davis United States Magistrate Judge*1 Pro se plaintiff John Hurt sued Ampcus, Inc., and DISAGlobal Solutions, Inc., for alleged violations of the Fair CreditReporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and statelaw. Dkt. 27. Hurt and DISA settled, see Dkts. 128, 136,but Hurt's claims against Ampcus remain. Ampcus moved todismiss the operative complaint for failure to state a claimagainst it. Dkt. 49; see Dkts. 53 (response), 70 (reply). Themotion should be granted.BACKGROUNDI. Factual BackgroundAccording to the operative complaint, the factual allegationsin which are taken as true at this stage, Ampcus is astaffing company that uses consumer reports for employmentpurposes, acting as a middleman between potential new hiresand employers. Dkt. 27 at 2–3. In 2023, “Navy Federal CreditUnion through Ampcus” offered Hurt a job, contingent on hispassing a background check. Id. at 3. Ampcus then “initiatedthe screening, requested [Hurt's identifying information], andprocured a background report from DISA,” id., a consumerreporting agency, Dkt. 46 at 4. But DISA's report containedmultiple inaccuracies, including a dismissed criminal charge,a conviction on appeal, and a voided warrant. Dkt. 27 at3. Ampcus allegedly violated four provisions of the FCRA:(1) § 1681b(b)(3), by failing to follow pre-adverse-actionrequirements; (2) § 1681m(a), by failing to provide post-adverse-action notice; (3) § 1681s-2(b), by failing to complywith furnisher duties after receiving a notice of a dispute; and(4) § 1681b, by unlawfully procuring and using a consumerreport. Id. at 6–7.Hurt alleges that Ampcus was “a ‘user’ of a consumerreport,” id. at 1; “received and used the report for employmentpurposes,” id. at 4; and “took adverse action regarding [his]conditional offer, in whole or in part, based on the report,”id. He does not describe what adverse action Ampcus took,see id. at 1–2, 4, 6, but asserts that Ampcus did not followthe FCRA's requirements to provide him with a copy of hisconsumer report, a written description of his rights, or areasonable time to respond, id. at 4. Nor did Ampcus providepost-adverse-action notice. Id.Hurt further alleges that he disputed the inaccurateinformation in his background check but that the defendantsfailed to conduct a reasonable reinvestigation, to contact thecourts, and to obtain underlying docket records. Id. In hisview, the defendants “effectively rubber-stamped the original,inaccurate report.” Id.According to Hurt, Ampcus furnished information about himto DISA to be included in his consumer report. Id. at 7. Assuch, when Ampcus learned of his dispute, it was requiredto conduct a reasonable investigation; to review all relevantinformation; to report the results of its investigation toDISA; and to modify, delete, or stop reporting the inaccurateinformation. Id. Relatedly, by failing to comply with theFCRA, Ampcus used the report for an impermissible purpose.Id. Hurt alleges that “Ampcus's violations were willful or,alternatively, negligent.” Id.*2 Hurt also alleges that Ampcus committed the state-law torts of defamation; negligent hiring, supervision, andretention; and negligent misrepresentation. Id. at 7–9. In
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2support of those claims, he alleges that the defendantspublished false statements about his criminal history to thirdparties, including to Navy Federal. Id. at 8. He claims thatthe “[d]efendants acted with malice or, at minimum, recklessdisregard as to the truth, including ignoring [his] dispute andcontrary court records, and persisting in publication.” Id.Hurt also alleges that Ampcusowed a duty to exercise reasonablecare in selecting and supervising DISAas its background screening vendorand in maintaining FCRA-compliantadverse action procedures. Ampcusknew or should have known of DISA'saccuracy and reinves-tigation risksand failed to supervise and ensurecompliance with FCRA pre- andpost-adverse-action notice obligations,causing foreseeable harm to [him].Id. And in communicating with him, Hurt alleges thatAmpcusmade representations of present factto [him]—including that the screeningwas being handled appropriately,that issues would be reviewed, andthat the background results wouldbe re-checked—without exercisingreasonable care or competence inobtaining or communicating theinformation, and [that he] reasonablyrelied on these representations to hisdetriment.Id. at 8–9.As a result of the defendants' alleged violations of law,“[Hurt's] conditional offer was rescinded.” Id. at 4. Hurtdoes not plead in his operative complaint which entity—Navy Federal or Ampcus—rescinded the offer. See id.Cf. Dkt. 8 at 7 (amended complaint alleging that “NavyFederal rescinded [Hurt's] conditional offer, leaving himunemployed”). But he allegedly suffered “lost wages andbenefits, reputational harm, emotional distress (includinganxiety, humiliation, embarrassment, and loss of sleep), andout-of-pocket expenses spent disputing and attempting tocorrect the report.” Id.II. Procedural History and the Parties' ArgumentsAmpcus moved to dismiss the operative complaint underFederal Rule of Civil Procedure 12(b)(6). Dkt. 49. It arguesthat Hurt's federal claims fail as a matter of law because it“bore no responsibilities under the FCRA, there is no privateright of action for certain violations, and Mr. Hurt has failedto meet basic pleading standards.” Id. at 2.In particular, Ampcus contends that Hurt's conclusoryallegations do not suffice and that, because Hurt failed toplead that it intended to take adverse action against him, theFCRA's pre-adverse-action requirements do not apply. Id.at 7–8. It also notes that Hurt did not allege that Ampcus,as opposed to Navy Federal, offered him employment. Id.Specifically, it points to Hurt's allegation that his conditionaloffer came “through,” not “from,” Ampcus. Id. Based onthose allegations, Ampcus contends that Navy Federal wasthe potential employer with the power to revoke Hurt's offer.Id. at 9. And it argues that, because it did not take any adverseaction against him, Hurt has not stated a plausible claim forrelief under § 1681b(b)(3). Id.Ampcus also argues that Hurt's claims under §§ 1681m and1681s-2 must be dismissed because the former does notprovide a private right of action and the latter applies onlyto furnishers of information, which it is not. Id. at 9–11. Itasserts that transmitting a background-check report does notmake it a furnisher, id. at 10, because it did not provide Hurt'scriminal-history information to DISA, id. at 11. In its view,Hurt has pleaded only that Ampcus provided his identifyinginformation to initiate a report. Id.*3 As to Hurt's final federal claim, Ampcus asserts a lackof fair notice because Hurt failed to specify the applicablesubpart of Section 1681b. Id. at 12. Alternatively, it arguesthat the claim cannot survive its motion to dismiss becauseHurt does not allege that Ampcus failed to provide thenecessary disclosure, that he never consented to a backgroundcheck, or that Ampcus did not comply with the certificationrequirements in Section 1681e. Id. at 12–13. Ampcus assertsthat, by obtaining the background check for a potentialemployer, it obtained the report for a proper purpose. Id.And as to the third potentially applicable § 1681b subpart,
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3Ampcus points out that Hurt has not alleged that it procuredhis medical information. Id. at 13.Ampcus also seeks dismissal of Hurt's state-law claims,arguing that the FCRA preempts them. Id. at 13–18. It assertsthat Hurt failed to adequately plead malice, a prerequisite toavoiding FRCA preemption, by not alleging facts that suggestAmpcus knew that the report was inaccurate when providedto Navy Federal. Id. at 14. It also asserts that Hurt could neverplead malice or reckless disregard because he did not notifyAmpcus of the alleged inaccuracies until after it providedthe report to Navy Federal. Id. at 14–15. That deficiency, itcontends, is another reason Hurt's negligence claims fail as amatter of law. Id. at 15–16. And all of Hurt's state-law claimsfail, in Ampcus's view, because Ampcus did not owe Hurt aduty in hiring DISA and supervising its process. Id. at 17–21 (also noting that Hurt failed to plead facts supporting theelements of negligent misrepresentation).In response, Hurt contends that Ampcus reads his allegationstoo narrowly and that its legal arguments are incorrect. Dkt. 53at 1. He asserts that his right to bring a § 1681m claim vestedin 2023 and that a subsequent judicial decision interpretingthat provision does not apply retroactively. Id. at 2 (citing Doev. Charter Commc'ns, L.L.C., 131 F.4th 323 (5th Cir. 2025),which Ampcus relied on in its motions to dismiss, Dkt. 49 at9). Next, he argues that Ampcus was his employer because itcontrolled his assignment eligibility and compensation—and,as such, was the entity that took adverse action against him.Id. at 3–4.Hurt goes on to argue that he sufficiently pleaded hisremaining FCRA claims and that his state-law claims are notpreempted. Id. at 5–6. He asserts that, by using a consumerreport for employment purposes and failing to follow pre-and post-adverse-action protocols, Ampcus used the reportfor an impermissible purpose. Id. at 5. He also argues thathis allegations regarding Ampcus's status as a furnisher aresufficient because a court should not resolve that issue atthe motion-to-dismiss stage. Hurt goes on to argue that hismalice allegations defeat preemption; that issues of duty andbreach should not be resolved at this stage, either; and that hiscomplaint stated a claim for negligent misrepresentation. Id.at 5–6. He requests leave to amend his complaint, should thecourt identify deficiencies. Id. at 6.In reply, Ampcus reiterates that, despite Hurt's erroneouscontention that a controlling judicial decision does not applyretroactively, § 1681m does not provide a private right ofaction. Dkt. 70 at 2. It also notes that, in his response to themotion to dismiss, Hurt attempted to rely on facts outsideof his complaint and nonexistent quotations. Id. at 3–5. Itexplains that Hurt attributes language to Goode v. LexisNexisRisk & Information Analytics Group, Inc., 848 F. Supp. 2d532 (E.D. Pa. 2012), and Moore v. Rite Aid Hdqtrs Corp., 33F. Supp. 3d 569 (E.D. Pa. 2014), that does not appear in thosecases.According to Ampcus, the complaint alleges that only NavyFederal could take employment action against Hurt. Id. at 3. Itnotes that Hurt's assertion that Ampcus was his employer wasraised for the first time in his response to its motion to dismissand that Hurt relies on purported staffing-industry practiceswithout supporting citations. Id. at 4.*4 Ampcus further argues that Hurt did not meaningfullyrespond to its contentions that it is not a furnisher under theFCRA and that he failed to plead facts showing malice. Id.at 5–6. In its view, Hurt just recited the statutory definitionof furnisher and generically alleged malice without allegingsupporting facts. Id. at 6–7.Ampcus also asserts that Hurt conceded several of itsarguments—that Hurt's § 1681b claim does not provideAmpcus with fair notice, that Hurt failed to plead eithermalice or that Ampcus owed him a duty, and that Hurt did notadequately plead the elements of negligent misrepresentation—by failing to address them. Id. at 8–10. It acknowledgesthat the response indicates that Hurt intended to assert a §1681b(b)(2) claim but argues that the operative complaint didnot plead sufficient facts to state a claim under that provision.Id. at 9. Finally, Ampcus notes that Hurt has amended hiscomplaint numerous times and that his repeated failures tocure the pleading deficiencies it has identified entitles it todismissal with prejudice. Id. at 11.LAWI. Rule 12(b)(6) Dismissal Standard and Scope of ReviewFederal Rule of Civil Procedure 12(b)(6) authorizes a motionto dismiss for “failure to state a claim upon which relief canbe granted.” When considering such a motion, the court mustidentify and exclude legal conclusions that “are not entitled tothe assumption of truth,” then consider the remaining “well-pleaded factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662,679 (2009). The court must accept as true all well-pleadedfacts and view them in the light most favorable to the plaintiff.
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020).The complaint will survive the motion to dismiss if it alleges“enough facts to state a claim to relief that is plausible onits face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007). Detailed factual allegations are not required, but acomplaint must nonetheless provide more than labels andconclusions; a “formulaic recitation of the elements of a causeof action will not do.” Id. at 555. “[C]onclusory allegationsor legal conclusions masquerading as factual conclusionswill not suffice to prevent a motion to dismiss” from beinggranted. Taylor v. Books A Million, Inc., 296 F.3d 376, 378(5th Cir. 2002) (quotation marks omitted). The court's scopeof review under Rule 12(b)(6) is limited to “the complaint,any documents attached to the complaint, and any documentsattached to the motion to dismiss that are central to the claimand referenced by the complaint.” Allen v. Vertafore, Inc., 28F.4th 613, 616 (5th Cir. 2022).A pro se plaintiff's complaint should be liberally construed.Erickson v. Pardus, 551 U.S. 89, 94 (2007). But to avoiddismissal, it must still “set forth facts giving rise to a claimon which relief may be granted.” Johnson v. Atkins, 999 F.2d99, 100 (5th Cir. 1993).II. Leave to AmendFederal Rule of Civil Procedure 15(a)(2) requires the court to“freely give leave [to amend] when justice so requires.” Thecourt may deny leave to amend when any of five factors ispresent: (1) undue delay, (2) bad faith or dilatory motive onthe part of the movant, (3) repeated failure to cure deficienciesby amendments previously allowed, (4) undue prejudice tothe opposing party by allowing the amendment, and (5)futility of amendment. Jack v. Evonik Corp., 79 F.4th 547,564–65 (5th Cir. 2023). Whether to permit amendment iswithin the sound discretion of the court. Lyn-Lea Travel Corp.v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002).DISCUSSIONI. Failure to State a Claim*5 The background-check report at the center of this casequalifies as a “consumer report” under the FCRA. 15 U.S.C.§ 1681a(d)(1); Rose v. Homer Plessy Cmty. Sch., No. 2:25-cv-114, 2026 WL 251720, at *8 (E.D. La. Jan. 30, 2026). Thestatute generally defines that term to includeany written, oral, or othercommunication of any informationby a consumer reporting agencybearing on a consumer's creditworthiness, credit standing, creditcapacity, character, general reputation,personal characteristics, or mode ofliving which is used or expected to beused or collected in whole or in partfor the purpose of serving as a factor inestablishing the consumer's eligibilityfor ... (B) employment purposes.15 U.S.C. § 1681a(d)(1).Although the statute goes on to exclude certain reports,communications, authorizations, and approvals from thatgeneral definition, id. § 1681a(d)(2), a pre-employmentbackground-check report is not among them unless itwas “obtained through personal interviews with neighbors,friends, or associates of the consumer reported on or withothers with whom he is acquainted or who may haveknowledge concerning any such items of information,” id. §1681a(e) (definition of “investigative consumer report”); seeid. § 1681a(d)(2)(D) (referencing § 1681a(o) and excludingfrom the definition of a consumer report a communicationthat “would be an investigative consumer report”). Nothingin the complaint, motion to dismiss, or responses suggeststhat DISA's report was obtained through personal interviews,see Dkts. 27, 49, 53, 70, so the exclusion does not apply,see Luna v. Hansen & Adkins Auto Transp., Inc., No. 8:17-cv-0990-DOC-KES, 2017 WL 8292447, at *4–5 (C.D. Cal.Aug. 14, 2017) (explaining that reports based on online pre-employment background checks did not qualify as excludedcommunications under § 1681a(o) because they were not“created by conducting personal interviews”); Adams v. Nat'lEng'g Serv. Corp., 620 F. Supp. 2d 319, 328 (D. Conn. 2009)(finding that § 1681a(o)'s exclusion did not apply because“[t]here [was] nothing in the record suggesting that either [theemployer] or [staffing agency] obtained any information on[the potential employee] through personal interviews”).As noted, Hurt alleges that Ampcus failed to provide himwith either pre-adverse-action information, see 15 U.S.C.§ 1681b(b)(3), or post-adverse-action notice, see id. §1681m(a), failed to follow post-dispute furnisher duties, see
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.5id. § 1681s-2(b), and did not obtain his consumer reportfor a permissible purpose, see id. § 1681b. He also allegesthat Ampcus defamed him; negligently hired, supervised, andretained DISA; and negligently misrepresented its role in thebackground-screening process.Ampcus is entitled to dismissal of all of those claims because(A) Hurt does not allege that it took an adverse action basedon the contents of the report, (B) § 1681m does not providea private right of action, (C) Hurt does not allege that it isa furnisher, (D) it did not obtain Hurt's consumer report foran impermissible purpose, and (E) Hurt's state-law claims arepreempted and fail as a matter of law.A. Absence of an adverse action by Ampcus*6 With exceptions not implicated here, § 1681b(b)(3)(A)provides that, “before taking any adverse action based inwhole or in part on [a consumer] report, the person intendingto take such adverse action shall provide to the consumer ...(i) a copy of the report; and (ii) a description in writing ofthe rights of the consumer under” the FCRA. See 15 U.S.C. §1681a(b) (defining “person” expansively). In the employmentcontext, an adverse action means “a denial of employment orany other decision for employment purposes that adverselyaffects any current or prospective employee.” Id. § 1681a(k)(1)(B)(ii). Section 1681b(b)(3) therefore applies only to theperson intending to deny Hurt's employment or to make adecision affecting his prospective employment.Hurt alleges that Ampcus violated § 1681b(b)(3) by taking“adverse action against [him] based in whole or in part on[DISA's] report.” Dkt. 27 at 6; accord id. at 1–2, 4. But hedoes not allege what that adverse action was or explain howAmpcus made it “based ... on,” 15 U.S.C. § 1681b(b)(3)(A),the report.In his response to the motion to dismiss, Hurt asserts forthe first time in this action that, in the consulting-and-staffing context, Ampcus “was the employer of record forcompensation and assignment purposes.” Dkt. 53 at 3–4.He goes on to quote two cases, Goode, 848 F. Supp. 2dat 537–38, and Moore, 33 F. Supp. 3d at 574, in supportof his assertion that “[f]ederal courts recognize that staffingagencies and employment intermediaries that procure or relyon background reports for employment purposes are ‘users’under the FCRA and may be liable for adverse action,” Dkt.53 at 3. But as Ampcus points out, the purported quotationsdo not exist. Dkt. 70 at 4–5.The court has already admonished Hurt for suspected useof generative artificial intelligence (“AI”), Minute Entry forDec. 19, 2025, and imposed an AI certification requirementon both parties, Dkt. 134. At the time of the filing in question,however, the court had not yet voiced those concerns. Itnow reiterates its warning that “[i]f [it] has good cause tobelieve that an attorney or pro se litigant has relied on AIin violation of [a court] order or any applicable rule, thecourt may impose appropriate sanctions, including striking afiling, dismissing a claim or defense, dismissing a case, andordering monetary sanctions.” Dkt. 134 at 2; see McCormickv. Texakoma Fin., Inc., No. 4:25-CV-773, 2026 WL 1746259,at *1 (E.D. Tex. June 11, 2026) (recent order sanctioning anattorney for misuse of AI).But even if the quotations were accurate, they would not helpHurt because he did not allege that Ampcus was his employeror had the power to deny his employment. He instead allegedthat he “received a conditional offer of employment withNavy Federal Credit Union through Ampcus.” Dkt. 27 at 3.And when describing the harm he suffered, he stated thathis “conditional offer was rescinded” without alleging thatAmpcus took that action. Id. at 4.Hurt has not pleaded any facts suggesting that Ampcuscontrolled his assignment eligibility or would pay him forhis services. The operative complaint says nothing aboutpractices in the consulting and staffing industry, and as noted,Hurt did not claim that Ampcus was his employer untilhe responded to the motion to dismiss. He cannot remedydeficiencies in his complaint through assertions in a responseto a motion to dismiss. See Stanfield v. Collier, No. 6:24-CV-172, 2025 WL 1063313, at *5 (E.D. Tex. Feb. 18, 2025),report and recommendation adopted, 2025 WL 734008 (E.D.Tex. Mar. 7, 2025); McDavid v. Houston ISD, No. CVH-21-993, 2021 WL 4555241, at *4 (S.D. Tex. Oct. 5, 2021).*7 Nor can judicial notice save his claims. See Fed. R. Evid.201(b) (providing that a “court may judicially notice a factthat is not subject to reasonable dispute because it: (1) isgenerally known within the trial court's territorial jurisdiction;or (2) can be accurately and readily determined fromsources whose accuracy cannot reasonably be questioned”);Kovalchuk v. Wilmington Sav. Fund Soc'y, FSB a Tr. of UplandMortg. Loan Tr. A, 528 F. Supp. 3d 647, 658 (E.D. Tex.2021), aff'd, No. 21-40281, 2021 WL 5119705 (5th Cir. Nov.3, 2021); Meador v. First Sec. Nat'l Bank, 100 F. Supp.2d 433, 435 (E.D. Tex. 2000). In a separate suit againstAmpcus, Hurt alleged that Ampcus was his employer. Hurt v.
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.6Ampcus, Inc., No. 4:23-cv-00895-SDJ-BD, Dkt. 1-2 at 5–6.But when a court takes judicial notice of a document, it takesas true that the document exists, not that its contents are true.Hoskins v. City of San Diego, No. 24-cv-01488-AJB-DTF,2025 WL 1994677, at *12 (S.D. Cal. July 17, 2025); Fairv. Esserman, No. 3:15-cv-681 (SRU), 2015 WL 7451154, at*4 (D. Conn. Nov. 23, 2015); Magnusson v. Ocwen LoanServicing, LLC, No. 2:14-cv-00161, 2014 WL 3881626, at *3(D. Utah Aug. 7, 2014); see Ng v. Bd. of Regents of Univ.of Minn., 64 F.4th 992, 994 n.2 (8th Cir. 2023) (declining totake judicial notice of a public record because its contents “arenot generally known nor determinable from unquestionablesources but argumentative”). By not pleading facts indicatingthat Ampcus was his employer or at a minimum had the powerto control his assignments, Hurt has not plausibly alleged thatAmpcus was responsible for rescinding his job offer.Liberally construing Hurt's complaint, the only possibleadverse action that Ampcus took against him was transferringDISA's allegedly inaccurate background-check report toNavy Federal. See Adams, 620 F. Supp. 2d at 332–33. ButAmpcus's act of transferring the report would presumably notbe an “action based in whole or in part on the report.” 15U.S.C. § 1681b(b)(3)(A); see Safeco Ins. Co. of Am. v. Burr,551 U.S. 47, 63–64 (2007) (noting that § 1681m(a), whichcontains language similar to what appears in § 1681b(b)(3)(A), “does not explicitly call for notice when a business actsadversely merely after consulting a report” and concludingthat “conditioning [§ 1681m(a)'s] requirement on action‘based ... on’ a report suggests that the duty to report arisesfrom some practical consequence of reading the report, notmerely some subsequent adverse occurrence that would havehappened anyway”). In any event, Hurt does not allege that itwas. He does not allege that Ampcus even reviewed the reportbefore sending it to Navy Federal. Nor does he plead factssuggesting how the report factored into Ampcus's decision-making. Indeed, based on the alleged facts, it seems likelythat Ampcus would have sent the report to Navy Federalregardless of its content. Given the complaint's allegations,the court would have to speculate about whether Ampcus tookan adverse action against Hurt “based ... on the report.” 15U.S.C. § 1681b(b)(3)(A). That is insufficient. See Twombly,550 U.S. at 555.B. Lack of a private right of actionTitled “Enforcement,” the final paragraph of § 1681m states:(A) No civil actionsSections 1681n and 1681o of this title shall not apply to anyfailure by any person to comply with this section.(B) Administrative enforcementThis section shall be enforced exclusively under section1681s of this title by the Federal agencies and officialsidentified in that section.15 U.S.C. § 1681m(h)(8); see id. § 1681n (authorizing suits byconsumers); 1681o (same); 1681s (authorizing enforcementby federal agencies). In other words, § 1681m does notprovide a private right of action. Charter Commc'ns, 131F.4th at 330 (agreeing with several other circuits that “section1681m(h)(8) bars private enforcement of section 1681m in itsentirety”); accord, e.g., Perry v. First Nat'l Bank, 459 F.3d816, 820–23 (7th Cir. 2006).*8 Citing Landgraf v. USI Film Products, 511 U.S.244 (1994), Hurt contends that the “presumption againstretroactivity” means that Charter Communications cannotretroactively apply to bar his § 1681m claim, Dkt. 53 at 2(boldface removed). He argues that because the Fifth Circuitdecided Charter Communications two years after his claimsaccrued, that decision cannot extinguish his vested cause ofaction. Id.He is mistaken. Landgraf held that a statute enacted while acase was on appeal did not apply retroactively and explainedthe presumption against retroactivity that applies in thestatutory context. 511 U.S. at 247; see id. at 265–68. Thatpresumption does not apply, however, to judicial decisions,which do apply retroactively. DIRECTV, Inc. v. Imburgia,577 U.S. 47, 56 (2015) (citing Rivers v. Roadway Exp.,Inc., 511 U.S. 298, 312–13 (1994)); Harper v. Va. Dep'tof Taxation, 509 U.S. 86, 90, 94–99 (1993); Griffith v.Kentucky, 479 U.S. 314, 317, 328 (1987); see Landgraf,511 U.S. at 278 n.32 (noting that, “[w]hile it was accuratein 1974 to say that a new rule announced in a judicialdecision was only presumptively applicable to pending cases,”the Supreme Court has “since established a firm rule ofretroactivity” (citing Harper and Griffith)); United Statesv. Sec. Indus. Bank, 459 U.S. 70, 79 (1982) (stating that“[t]he principle that statutes operate only prospectively, whilejudicial decisions operate retrospectively, is familiar to everylaw student”).Congress added § 1681m(h) in 2003, Fair and Accurate CreditTransactions Act of 2003, Pub. L. No. 108-159, 117 Stat. 1952
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.7(2003), long before Hurt's claims accrued in 2023, see Dkts.27 at 3, 53 at 2. In Charter Communications, the court justgave force to the provision's plain language. 131 F.4th at 330.That language forecloses Hurt's effort to sue under § 1681m.C. Failure to show furnisher status“The FCRA imposes obligations on three types of entities:consumer reporting agencies, users of consumer reports andfurnishers of information to consumer reporting agencies.”Jarrett v. Bank of Am., 421 F. Supp. 2d 1350, 1353 (D.Kan. 2006). Neither party argues that Ampcus is a consumerreporting agency. See Dkts. 27, 49, 53, 70. And throughout hiscomplaint, Hurt classifies Ampcus as a “user” of consumerreports. See Dkt. 27 at 1–2, 6. But in connection with oneof his causes of action, Hurt alleges that Ampcus was also a“furnisher” required to comply with § 1681s-2(b). Id. at 7;see 15 U.S.C. § 1681s-2 (outlining the “[r]esponsibilities offurnishers of information to consumer reporting agencies”).Despite Hurt's assertion that whether a defendant is a“furnisher” is a fact-intensive inquiry “not suitable fordismissal,” Dkt. 53 at 5, he must still plead enough facts tosurvive the motion to dismiss. He did not.Section 1681s-2(a)(1) imposes a duty on furnishers ofinformation to provide accurate information to consumerreporting agencies. See Shaunfield v. Experian Info. Sols.,Inc., 991 F. Supp. 2d 786, 794 (N.D. Tex. 2014) (Ramirez,J.). Although “[t]he FCRA does not define ‘furnisher ofinformation[,]’ [c]ourts in the Fifth Circuit have defined theterm broadly to mean an entity that transmits informationconcerning a particular debt owed by a consumer to aconsumer reporting agency.” Id. at 794 n.7 (quotation marksand brackets omitted); see also 16 C.F.R. § 660.2(c) (defininga “furnisher” as “an entity that furnishes information relatingto consumers to one or more consumer reporting agenciesfor inclusion in a consumer report”); accord 12 C.F.R.§ 1022.41(c). For purposes of the first regulation justcited, “[a]n entity is not a furnisher when it ... [p]rovidesinformation to a consumer reporting agency solely to obtaina consumer report in accordance with sections 604(a) and(f) of the [FCRA].” 16 C.F.R. § 660.2(c)(1); accord 12C.F.R. § 1022.41(c)(1); see Steed v. Equifax Info. Servs.,LLC, No. 1:14-cv-00437-SCJ-CMS, 2016 WL 7888040, at*2 (N.D. Ga. July 15, 2026) (explaining that, “[a]lthough theuniverse of data furnishers and users of consumer reportsmay at times overlap, the regulations make a distinctionbetween a furnisher of information and an entity or userthat merely provides identifying information regarding aparticular consumer in order to obtain a consumer report”),report and recommendation adopted, 2016 WL 7888039(N.D. Ga. Aug. 31, 2016).*9 Hurt does not sufficiently allege Ampcus's furnisherstatus. Indeed, except for one ambivalent sentence presentedin support of his § 1681s-2(b) cause of action, Dkt. 27at 7 (asserting that “Ampcus furnished information toDISA and/or otherwise communicated information about[his] background for inclusion in the consumer report thatDISA prepared and supplied for employment purposes”), hiscomplaint consistently describes Ampcus as a user, id. at 1–2, 6. And the complaint does not allege what information,if any, Ampcus provided DISA aside from Hurt's personalidentifying information, which was required to initiate thereport. Id. at 1–3, 6.Ampcus correctly asserts that “[s]imply transmitting abackground check report prepared by DISA to Navy Federaldoes not make Ampcus a ‘furnisher’ under the FCRA.”Dkt. 49 at 10. Because Hurt bases his claims on allegedinaccuracies in his criminal history, Ampcus would have hadto provide his criminal-history information to DISA whenit compiled the background check in order to qualify asa “furnisher” for purposes of Hurt's § 1681s-2(b) claim.Id. at 11. But Hurt does not allege that Ampcus providedany criminal-history information to DISA, see Dkt. 27, andhis conclusory allegation that Ampcus may have “furnishedinformation to DISA” does not suffice, Taylor, 296 F.3d at378.Hurt's other allegations bolster the point. Hurt alleged thatAmpcus “initiated,” “received,” “procured,” and “used” thereport. Dkt. 27 at 1–4, 6; see Dkt. 49 at 11. And he alleged nofacts that would support a reasonable inference that Ampcusprovided anything more than his identifying information toDISA or that it participated in the report's preparation.In his response to the motion to dismiss, Hurt cites two cases—Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147 (9thCir. 2009), and Hinkle v. Midland Credit Management, Inc.,827 F.3d 1295 (11th Cir. 2016)—for the proposition whethera defendant is a furnisher is a “fact-intensive” questionthat is “not suitable for dismissal.” Dkt. 53 at 5. But thefact-intensive inquiry in each of those cases concerned thereasonableness of a furnisher's investigation, not whether anentity was a furnisher, see Hinkle, 827 F.3d at 1301–07;Gorman, 584 F.3d at 1155–61, so neither case supports Hurt'sargument.
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.8D. Absence of an impermissible purpose to obtainHurt's consumer reportAfter incorporating earlier paragraphs by reference, count VIof the operative complaint reads, in its entirety: “Ampcusobtained and used [Hurt's] consumer report for employmentpurposes without complying with the FCRA's prerequisites,including the pre-adverse action notice, copy of the report,Summary of Rights, and adverse action protocols, therebyusing the report in a manner not authorized by § 1681b andrelated provisions.” Dkt. 27 at 7. That sentence does notprovide fair notice of a claim, Ampcus contends, becauseit does not specify which of three components of § 1681b—paragraph (b)(2), subsection (f), or paragraph (g)(2)—Hurt relies on. Dkt. 49 at 12–13; see Koons Buick PontiacGMC, Inc. v. Nigh, 543 U.S. 50, 60–61 (2004) (citingcongressional drafting manuals reflecting that § 1681b(f) isproperly described as a “subsection” and that § 1681b(b)(2)and § 1681b(g)(2) are properly described as “paragraphs”). Italso argues that Hurt fails to state a claim for relief under anyof those components.Federal Rule of Civil Procedure 8 requires a complaint tocontain “a short and plain statement of the claim showing thatthe [plaintiff] is entitled to relief.” The imperative behind thatrule is “fair notice [to the defendant] of what the ... claim isand the grounds upon which it rests.” Twombly, 550 U.S. at555. Although a complaint need not contain detailed factualallegations, the “showing” contemplated by Rule 8 requiresthe plaintiff to do more than just recite legal conclusions orthe elements of a cause of action. Id. To satisfy that standard, acomplaint must “do more than name laws that may have beenviolated by the defendant.” Anderson v. U.S. Dep't of Housing& Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008). A complaintthat is devoid of facts that would put the defendant on noticeas to what conduct supports the claims fails to satisfy thefederal pleading requirements. Id. at 528–29.*10 As Ampcus notes, the complaint could be read tosuggest three possible § 1681b violations. And althoughHurt states in his response to the motion to dismiss that heintended to bring a § 1681b(b) claim, the complaint itselflacks that clarity. Compare Dkt. 27 at 7 with Dkt. 53 at 5.Again, Hurt cannot fill gaps in his complaint through hisresponse to the motion to dismiss. See Stanfield, 2025 WL1063313, at *5. His conclusory allegation does not providethe fair notice that Rule 8 requires. See Cunningham v.Nationwide Security Sols., Inc., No. 3:17-CV-00337-M, 2017WL 10486988, at *4–5 (N.D. Tex. Nov. 2, 2017) (finding theallegation that “[a]t no time had the plaintiff given consentfor [the defendant] to obtain Plaintiff's credit report, nordid [the defendant] have any permissible purpose to obtainthe Plaintiff's credit report” as too conclusory to support animpermissible-purpose claim).In its reply, Ampcus argues that, by failing to address itsnotice argument, Hurt conceded that his complaint does notprovide fair notice. Dkt. 70 at 8. It acknowledges that Hurtalludes to the elements of § 1681b(b)(3), not § 1681b(b)(2),but contends that his attempt was insufficient. Id. at 8–9. Inits view, by failing to explain which facts support his claim,Hurt has forfeited any argument that his complaint supports awrongful-procurement claim. Id.The court will give Hurt the benefit of the doubt and assumethat he did not mean to forfeit his § 1681b claim. But Ampcusis correct that count VI fails to state a claim under paragraph(b)(2), subsection (f), or paragraph (g)(2) of that provision.Titled “Disclosure to consumer,” paragraph (b)(2) beginswith the following general provision:Except as provided in subparagraph (B), a person may notprocure a consumer report, or cause a consumer report tobe procured, for employment purposes with respect to anyconsumer, unless—(i) a clear and conspicuous disclosure has been made inwriting to the consumer at any time before the report isprocured or caused to be procured, in a document thatconsists solely of the disclosure, that a consumer reportmay be obtained for employment purposes; and(ii) the consumer has authorized in writing (whichauthorization may be made on the document referredto in clause (i)) the procurement of the report by thatperson.15 U.S.C. § 1681b(b)(2)(A). Neither party suggests that§ 1681b(b)(2)(B) applies, so neither that subparagraphnor subparagraph (C), which limits subparagraph (B)'sapplicability, is relevant here.Hurt does not allege that Ampcus failed to provide a clearand conspicuous disclosure to him or that he did not authorizeAmpcus to procure his report. See Dkt. 27. And his complaintstates several times that Ampcus “requested” his personalidentifying information. Id. at 1–3, 6. The complaint'sallegations imply that Ampcus asked Hurt if DISA could runthe report. And DISA's production of the report implies that
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.9Hurt provided the necessary information and consented tothe report's creation. No factual allegations in the complaintsuggest otherwise.Instead, Hurt appears to rely on his allegations that, by failingto follow adverse-action protocols and provide him with pre-adverse-action notice, a copy of his consumer report, and acopy of a summary of rights, Ampcus unlawfully procuredhis report. Id. at 7. But absent any allegations about Ampcus'sdisclosure or his lack of authorization, he has failed to pleada paragraph (b)(2) claim. See Johnson v. AT&T Corp., No.4:14–CV–453 JAR, 2014 WL 3579886, at *2–3 (E.D. Mo.July 21, 2014) (finding a § 1681b(b) claim insufficientlypleaded because “the Complaint [was] devoid of any factswhatsoever ... that the disclosure” was improper). Cf. Tatev. Dallas ISD, No. 3:21-CV-0895-B-BH, 2022 WL 272711,at *12 (N.D. Tex. Jan. 10, 2022) (Ramirez, J.) (finding thatthe plaintiff sufficiently pleaded a § 1681b(b)(2) claim basedon more specific allegations), report and recommendationadopted, 2022 WL 270859 (N.D. Tex. Jan. 28, 2022).*11 Hurt has also failed to plead a subsection (f)claim. Titled “Certain use or obtaining of informationprohibited,” that component of § 1681b states:A person shall not use or obtain a consumer report for anypurpose unless—(1) the consumer report is obtained for a purpose forwhich the consumer report is authorized to be furnishedunder this section; and(2) the purpose is certified in accordance with section1681e of this title by a prospective user of the reportthrough a general or specific certification.See 15 U.S.C. § 1681e(e)(2)(A) (requiring “[a] person whoprocures a consumer report for purposes of reselling thereport” to “establish and comply with reasonable procedures”that include “requiring that each person to which the report(or information) is resold and that resells or provides thereport (or information) to any other person ... (ii) certifieseach purpose for which the report (or information) will beused”). Hurt does not allege either that employment is not anauthorized purpose of furnishing a consumer report, see 15U.S.C. § 1681b(f)(1), or that the purpose was not certifiedin accordance with section 1681e, see id. § 1681b(f)(2).So if he meant to bring a § 1681b(f) claim, it should bedismissed. See Carson v. Hernandez, No. 3:17-CV-1493-L-BK, 2018 WL 5624198, at *3–4 (N.D. Tex. July 26, 2018),report and recommendation adopted, 2018 WL 5620513(N.D. Tex. Oct. 30, 2018); Fjeld v. JPMorgan Chase Bank,N.A., No. H-13-1746, 2014 WL 12599403, at *3 (S.D. Tex.Feb. 11, 2014) (liberally construing the plaintiff's complaintas bringing a § 1681b(f) claim and dismissing it becausethe “[p]laintiff ha[d] not alleged a specific provision of theFCRA identifying an impermissible purpose for which [thedefendant] obtained his credit report”).The same is true of any claim that Hurt may have broughtunder § 1681b(g)(2). Titled “Limitation on creditors,” thatparagraph states that, with certain exceptions, “a creditorshall not obtain or use medical information (other thanmedical information treated in the manner required undersection 1681c(a)(6) of this title) pertaining to a consumerin connection with any determination of the consumer'seligibility, or continued eligibility, for credit.” Hurt does notallege that Ampcus is a creditor or that it obtained or usedhis medical information to determine his eligibility for credit.See 15 U.S.C. § 1681a(r)(5) (borrowing the definition of“creditor” from 15 U.S.C. § 1691a); id. § 1691a(e) (defininga “creditor” as “any person who regularly extends, renews, orcontinues credit; any person who regularly arranges for theextension, renewal, or continuation of credit; or any assigneeof an original creditor who participates in the decision toextend, renew, or continue credit”).E. Inability to proceed on state-law claimsHurt's state-law claims are preempted by the FCRA. But evenif they were not, they would not survive the motion to dismiss.1. PreemptionSection 1681h(e) provides that, with exceptions notapplicable here,no consumer may bring any actionor proceeding in the nature ofdefamation, invasion of privacy,or negligence with respect to thereporting of information againstany consumer reporting agency, anyuser of information, or any personwho furnishes information to aconsumer reporting agency, basedon information disclosed pursuant to
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.10section 1681g, 1681h, or 1681m of thistitle, or based on information disclosedby a user of a consumer report to or fora consumer against whom the user hastaken adverse action, based in whole orin part on the report except as to falseinformation furnished with malice orwillful intent to injure such consumer.*12 15 U.S.C. § 1681h(e) (footnote omitted); see id.§§ 1681g (mandating certain disclosures to consumers),1681h (addressing the conditions and form of consumerdisclosures), 1681m (imposing requirements on users ofconsumer reports). In other words, “[t]he FCRA preemptsstate law defamation or negligent reporting claims unless theplaintiff consumer proves malice or willful intent to injurehim.” Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631,638 (5th Cir. 2002) (quotation marks omitted).Although the FCRA does not define “malice,” the FifthCircuit applies the common-law standard, Shaunfield, 991F. Supp. 2d at 802 (citing Morris v. Equifax Info. Servs.,LLC, 457 F.3d 460, 470–71 (5th Cir. 2006)), which requires aplaintiff raising a defamation claim to plead “[a] statement ...made with knowledge that it was false or with recklessdisregard of whether it was false,” Hamaker v. ChaseManhattan Mortg. Corp., No. 4:12-CV-773, 2013 WL1195886, at *3 (E.D. Tex. Jan. 30, 2013), report andrecommendation adopted, 2013 WL 1196570 (E.D. Tex. Mar.22, 2013). “To show ‘reckless disregard,’ ” the plaintiff “mustpresent ‘sufficient evidence to permit the conclusion that thedefendant in fact entertained serious doubts as to the truth ofhis publication.’ ” Morris, 457 F.3d at 471 (quoting St. Amantv. Thompson, 390 U.S. 727, 731 (1968)).Mere “[n]egligence, lack of investigation, or failure to act asa reasonably prudent person are insufficient to show actualmalice.” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308,313 (5th Cir. 1995). And “ ‘willful’ in this context hasbeen interpreted to require that a defendant knowingly andintentionally commit an act in conscious disregard to therights of others.” Hernandez v. Servis One, Inc., No. 4:15-CV-596, 2017 WL 2643968, at *2 (E.D. Tex. June 20, 2017)(quoting Rivera v. Countrywide Fin. Corp., No. 1:04-CV-103,2006 WL 2431391, at *4 (S.D. Miss. Aug. 21, 2006)).Hurt alleges that Ampcus and DISA published falsestatements about his criminal history by sharing an inaccuratereport with Navy Federal. Dkt. 27 at 8. He further allegesthat Ampcus “acted with malice, reckless disregard forthe truth, and conscious indifference to [his] rights” by“ignoring [his] dispute and contrary court records, andpersisting in publication.” Id. According to Hurt, “[those]allegations satisfy the malice/willfulness threshold to avoidFCRA preemption under § 1681h(e).” Id. In support ofhis negligent hiring, supervision, and retention claim, healleges that “Ampcus knew or should have known of DISA'saccuracy and reinvestigation risks.” Id. And as for hisnegligent misrepresentation claim, he alleges that Ampcusmisrepresented to him that his background report would behandled properly, that any issues would be reviewed, and thatthe report would be re-checked. Id.Ampcus argues that the complaint's “pleaded facts underminethe allegation that Ampcus knew Mr. Hurt's criminal historywas not correct” because Hurt did not dispute the accuracyof his background check until after his conditional offer ofemployment was revoked. Dkt. 49 at 14 (citing Dkt. 27at 4). The complaint, however, does not make clear whenHurt disputed his background check. Nevertheless, Hurt hasnot alleged facts that plausibly show that Ampcus knew thereport was inaccurate when it was sent to Navy Federal,see Hamaker, 2013 WL 1195886, at *3, or that Ampcusacted with reckless disregard by entertaining doubts about thereport's inaccuracy, see Morris, 457 F.3d at 471.*13 Further, in reply, Ampcus argues that Hurt did notmeaningfully respond to its argument that he failed to pleadmalice. Dkt. 70 at 6–7. It notes that Federal Rule of CivilProcedure 9(b) allows “[m]alice, intent, knowledge, and otherconditions of a person's mind [to] be alleged generally,” butthat Rule 8 requires Hurt to “plead facts showing malice, notsimply allege malice,” Dkt. 70 at 7. Again, under Rule 8, Hurtwas required to provide “a short and plain statement of theclaim showing that [he] is entitled to relief.”That means Hurt had to allege facts, not just generalconclusions, substantiating his claims. See Twombly, 550 U.S.at 570; see Iqbal, 556 U.S. at 686–87 (explaining that Rule9 “does not give [a plaintiff] license to evade the less rigid—though still operative—strictures of Rule 8,” which “doesnot empower [a plaintiff] to plead the bare elements of hiscause of action, affix the label ‘general allegation,’ and expecthis complaint to survive a motion to dismiss”). And contraryto Hurt's assertion, see Dkt. 53 at 6, Thorton v. Equifax,Inc. does not stand for the proposition that a complaint maygenerally plead malice and survive a motion to dismiss. 619
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.11F.2d 700, 703 (8th Cir. 1980) (in discussing § 1681h(e),stating that “no defamation or like actions are allowed underthe Act unless malice or willful intent is alleged” but notdiscussing how malice or willful intent are properly alleged).Hurt's conclusory statements that Ampcus acted with malice,without any facts detailing how it did so, are insufficient toavoid the preemptive effect of § 1681h(e). See Walters v.Tenant Background Search, No. 1:16-CV-1092-DAE, 2019WL 4087623, at *3 (W.D. Tex. June 27, 2019), report andrecommendation adopted, 2019 WL 4980450 (W.D. Tex.Aug. 1, 2019).Ampcus also contends that Hurt conceded that hisclaims for negligent hiring, supervision, retention, andmisrepresentation do not survive preemption by not includingany mention of malice or willful intent to injure in hiscomplaint or his response to the motion to dismiss. Dkt. 70at 9. Whether properly viewed as a concession or not, Hurt'sfailure to allege facts showing or supporting an inference ofmalice or willfulness means that his negligence claims arepreempted. See Strohmeyer v. Chase Bank USA, N.A., No.3:17-cv-443, 2018 WL 2669991, at *6 (E.D. Tenn. June 4,2018) (negligent hiring and supervision); Fagan v. LawrenceNathan Assocs., Inc., 957 F. Supp. 2d 784, 800 (E.D.La. 2013) (negligent misrepresentation); Brown v. SterlingInfosystems, Inc., No. 3:10CV697, 2010 WL 3057844, at *5(N.D. Ohio Aug. 2, 2010) (same).2. Failure as a matter of law“To state a defamation claim” under Texas law, “a plaintiffmust show (1) the publication of a false statement of fact to athird party, (2) that was defamatory concerning the plaintiff,(3) with the requisite degree of fault, at least amountingto negligence, and (4) damages, in some cases.” InnovativeBlock of S. Tex., Ltd. v. Valley Builders Supply, Inc., 603S.W.3d 409, 417 (Tex. 2020). In the FCRA context, therequisite intent is “malice or willful intent to injure.” Young,294 F.3d at 638. Hurt failed to allege that element, see supraPart I.E.1, so his defamation claim cannot proceed.“Negligent hiring, training, supervision, and retention claimsare ‘simple negligence causes of action based on anemployer's direct negligence rather than on vicariousliability.’ ” Black v. Smith Protective Servs., Inc., No.01-14-00969-CV, 2016 WL 5400565, at *3 (Tex. App.—Houston [1st Dist.] Sept. 23, 2016, no pet.) (mem. op.)(quoting Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex.App.—Fort Worth 2008, no pet.)). “To assert direct liabilitybased on a negligence claim, the plaintiff must prove theexistence of a legal duty, breach of that duty, and damagesproximately resulting from the breach.” Doe v. YUM! Brands,Inc., 639 S.W.3d 214, 225 (Tex. App.—Houston [1st Dist.]2021, no pet.) (citing Greater Hous. Transp. Co. v. Phillips,801 S.W.2d 523, 525 (Tex. 1990)); see also Werner Enters.,Inc. v. Blake, 719 S.W.3d 525, 540 (Tex. 2025) (noting thatthe Supreme Court of Texas “ha[s] not recognized negligenttraining or supervision as an independent theory of tortliability” but nevertheless stating that, “[a]ssuming [such]claims ... have independent viability apart from an employer'susual respondeat superior liability, [they] would be subjectto the same requirement [that the court has] applied tonegligent hiring claims”); id. at 542 (Young, J., concurring)(merely “[a]ssuming that claims like negligent entrustment,training, hiring, and supervision are proper in the first place”);Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 142 n.4(Tex. 2022) (noting that the Supreme Court of Texas “ha[s]not ruled definitively on the existence, elements, and scope oftorts such as negligent training”).*14 To the extent such a claim exists under Texas law,Ampcus argues that it did not owe Hurt a legal duty toinvestigate DISA's background-check process and superviseit. Dkt. 49 at 17. It asserts that it cannot find “any casewhere a Texas court has held that someone who hires abackground check company owes a duty to the subject of thebackground check to verify the background check company'scompliance with the FCRA and supervise the company'sFCRA compliance efforts.” Id. at 17–18. In response, Hurtstates that “[he] allege[d] Ampcus owed and breached aduty to exercise reasonable care in selecting and supervisingits background screening vendor and in maintaining FCRA-compliant adverse action procedures, despite known accuracyand reinvestigation risks. These duty and breach issues arefact-intensive and inappropriate for resolution on a motionto dismiss.” Dkt. 53 at 6. But Hurt provides no authorityfor those contentions, and the Texas Supreme Court hasexplained that the existence of a duty is a question of lawthat depends on considerations beyond the facts of any onecase. Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503–04 (2017). Having failed to show a duty, Hurt cannot state aclaim for negligent hiring, supervision, and retention againstAmpcus.Finally, Hurt brings a claim for negligent misrepresentation.To plead such a claim under Texas law, a plaintiff must allege:
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12(1) defendant's representation to aplaintiff in the course of defendant'sbusiness or in a transaction inwhich the defendant had an interest;(2) defendant's providing falseinformation for the guidance of others;(3) defendant's failure to exercisereasonable care or competencein obtaining or communicatinginformation; (4) plaintiff's justifiablereliance on defendant's representation;and (5) defendant's negligentmisrepresentation proximatelycausing the plaintiff's injury.Willis v. Marshall, 401 S.W.3d 689, 698 (Tex. App.—ElPaso 2013, no pet.). Ampcus contends that Hurt does notstate a plausible negligent-misrepresentation claim becausehe does not allege a misstatement of existing fact, show thathe justifiably relied on any such misstatement, or show thatany misrepresentation proximately caused him harm. Dkt. 49at 19–20 (citing AKB Hendrick, LP v. Musgrave Enters., Inc.,380 S.W.3d 221, 237–38 (Tex. App.—Dallas 2012, no pet.)(explaining that “false information” requires a “misstatementof existing fact, not a promise of future conduct”)).In response, Hurt states that “[he] allege[d] that Ampcusmade statements of present fact concerning how the screeningwas being handled, that issues would be reviewed, andthat results would be re-checked; that Ampcus failed touse reasonable care; and that [he] reasonably relied to hisdetriment.” Dkt. 53 at 6. In support of his contention thatthose allegations suffice, Hurt cites two cases—Federal LandBank Association of Tyler v. Sloane, 825 S.W.2d 439, 442(Tex. 1991), and McCamish, Martin, Brown & Loefler v.F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999)—neither of which addressed background checks or support hiscontention. Hurt's mere recital of the claim's elements is notenough to avoid dismissal. Taylor, 296 F.3d at 378.II. Opportunity to AmendAs noted, a pro se plaintiff is usually entitled to an opportunityto amend a defective complaint. Bazrowx v. Scott, 136 F.3d1053, 1054 (5th Cir. 1998) (per curiam). But he is not entitledto multiple opportunities to amend, e.g., Kolacek v. Lewis, 974F.2d 1342, 1992 WL 212154, at *1 (9th Cir. 1992), at leastwhen he has already pleaded his best case, Reyna v. Block,Inc., No. 25-50966, 2026 WL 1388721, at *3 (5th Cir. May18, 2026) (citing Brewster v. Dretke, 587 F.3d 764, 767–68(5th Cir. 2009)); Jones v. Greninger, 188 F.3d 322, 327 (5thCir. 1999).In support of his request for leave to amend, Hurt arguesthat he “has refined and narrowed his claims in good faithin response to the Court's guidance and Defendants' motions,as [Federal Rule of Civil Procedure] 15 contemplates.” Dkt.53 at 6. He does not offer any additional basis for grantingleave or address how another amended complaint would fixthe problems apparent from his operative complaint.*15 Ampcus urges the court to deny Hurt's request for leaveto amend. Dkt. 70 at 11. It emphasizes that, in the course ofprosecuting two separate cases against it, Hurt has already hadfour chances to plead his best case. Id. It notes that the courtis not responsible for re-writing Hurt's complaint and assertsthat granting leave to amend would have that effect. Id.Ampcus has the better argument. Based largely on the sameset of facts at issue here, Hurt sued it in 2023 for breachof contract, alleging that it violated its agreement with himby withdrawing an offer to work on behalf of Navy Federalwithout providing pre-adverse action notice. Hurt v. Ampcus,Inc., No. 4:23-cv-00895-SDJ-BD, Dkt. 1-2 at 6 (Oct. 6, 2023).In that case, which Ampcus removed to this court fromstate court, id., Dkt. 1, the court granted Ampcus's motionto dismiss but afforded Hurt an opportunity to amend hiscomplaint, id., Dkt. 27. In the report recommending thatdisposition, the court recognized that Hurt referenced possibleFCRA violations but declined to infer FCRA claims notexplicitly raised. Id., Dkt. 23 at 2, 13. It stated that, “[b]ecausethe gravamen of [Hurt's operative pleading was] Ampcus'spurported violations of the FCRA,” Hurt “should be givenan opportunity to raise these claims in an amended pleading,and that any such claims should not be lost due to ‘inartful’pleading.” Id. at 15. But the court warned Hurt that, if he failedto amend his complaint, it would dismiss his case withoutprejudice. Id., Dkt. 28. Hurt did not amend, and the courtdismissed the case. Id., Dkts. 30, 31.Five months later, Hurt filed the present lawsuit against bothAmpcus and DISA, focusing primarily on FCRA claims. Dkt.1. He amended his complaint once as a matter of course,Dkt. 8, and once more after the court granted him leave todo so, giving him the opportunity to address the deficiencies
JOHN HURT v. AMPCUS, INC., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.13Ampcus identified in his first amended complaint, Dkt. 35;see Dkts. 24 (Ampcus's first motion to dismiss asserting,among other things, that Hurt failed to allege an adverseaction or that Ampcus was his employer), 27 (operativesecond amended complaint). So this is now Ampcus's thirdrequest for dismissal of Hurt's case against it. Dkts. 24, 49;Hurt v. Ampcus, Inc., No. 4:23-cv-00895-SDJ-BD, Dkt. 7.Rule 15(a)(2) requires the court to “freely give leave [toamend] when justice so requires.” But justice is not a one-waystreet. Allowing multiple inadequate pleadings wastes boththe parties' and the court's time. Ampcus is entitled to a case-dispositive ruling on its motion to dismiss Hurt's operativecomplaint—which, when considered alongside his petition inthe earlier case, is his fourth effort to allege his “best case”against Ampcus.That effort fails for the reasons stated in this report. Ampcusshould not have to chase dismissal yet again. See Jack, 79F.4th at 564–65 (explaining that a court may properly denyleave to amend based on several factors present here: repeatedfailure to cure deficiencies, undue prejudice to the opposingparty, and futility of amendment); Alderson v. Concordia Par.Corr. Facility, 848 F.3d 415, 423 (5th Cir. 2017) (noting that“a district court may dismiss [a complaint] with prejudice ifthe plaintiff has been given adequate opportunity to cure theinadequacies in his pleading or if the pleadings demonstratethat the plaintiff has pleaded his best case” (quotation marksand emphasis removed)); Lozano v. Ocwen Fed. Bank, FSB,489 F.3d 636, 644 (5th Cir. 2007) (observing that, in theexercise of its sound discretion, reversible only for abuse, a“district court may consider that the moving party failed totake advantage of earlier opportunities to amend”); ModernGrp. Ltd. v. Pinnacle Cos., No. 1-12-cv 43, 2013 WL12139155, at *2 (E.D. Tex. Mar. 14, 2013) (denying leave toamend because the plaintiff had been aware of the relevantfacts “since the inception of the case”).RECOMMENDATION*16 It is RECOMMENDED that Ampcus's motion todismiss, Dkt. 49, be GRANTED and that Hurt's claims beDISMISSED WITH PREJUDICE.* * *Within 14 days after service of this report, any partymay serve and file written objections to the findings andrecommendations of the magistrate judge. 28 U.S.C. § 636(b)(1).A party is entitled to a de novo review by the district courtof the findings and conclusions contained in this reportonly if specific objections are made. Id. § 636(b)(1). Failureto timely file written objections to any proposed findings,conclusions, and recommendations contained in this reportwill bar an aggrieved party from appellate review of thosefactual findings and legal conclusions accepted by the districtcourt, except on grounds of plain error, provided that the partyhas been served with notice that such consequences will resultfrom a failure to object. Id.; Thomas v. Arn, 474 U.S. 140,155 (1985); Douglass v. United Servs. Auto Ass'n, 79 F.3d1415, 1417 (5th Cir. 1996) (en banc), superseded by statuteon other grounds, 28 U.S.C. § 636(b)(1) (extending the timeto file objections from 10 to 14 days).So ORDERED and SIGNED this 8th day of July, 2026.All CitationsSlip Copy, 2026 WL 1999241End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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