Before us is a Motion pursuant to Fed. R. Civ. P. 12(b)(6) filed by defendant Laboratory Specialists Inc. (LSI).

Plaintiff was employed by defendant Texaco USA until December 5 1988. On that date Texaco terminated plaintiff because plaintiff had failed a drug test. Previously on November 1 1988 Texaco ordered plaintiff to submit to a drug test. At the request of Texaco Mobile Health Test Services Ltd. obtained a urine sample from the plaintiff. Plaintiff alleges that Mobile used supplies techniques and procedures prescribed for the collection of urine samples by LSI. The urine sample was then turned over to LSI for analysis. LSI reported to Texaco a positive test for marijuana use. However approximately three hours after plaintiff supplied Mobile Health with his urine sample plaintiff had a private test conducted by his personal physician. This test was negative. Plaintiff requested that Texaco conduct a second test. This request was refused. Plaintiff also asked for the name and address of Texaco's testing company (LSI). This request was also refused.

Plaintiff has now sued Texaco and LSI under the provisions of the Fair Credit Reporting Act 15 U.S.C. SEC.1681 et seq. Plaintiff's complaint alleges that he is a "consumer" within the meaning of section 1681a(c) that LSI is a "consumer reporting agency" within the meaning of section 1681a(f) that the test report prepared by LSI for Texaco's use is a "consumer report" within the meaning of section 1681a(c) and that Texaco is a "user of consumer reports" within the meaning of section 1681m. Plaintiff further alleges that LSI violated section 1681e(b) in that LSI failed to follow reasonable procedures to ensure accuracy and also violated section 1681g(a) because LSI failed to give proper disclosure to plaintiff of the information in its files regarding the sources of the information and the recipients of the test report. Finally plaintiff alleges that Texaco violated section 1681m(a) because Texaco failed to supply plaintiff with name and address of LSI. *fn1

LSI argues that it is not a "consumer reporting agency" because it is not engaged "in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties." 15 U.S.C. 1681a(f). LSI also argues that it did not prepare a "consumer report" because section 1681a(d) of the Act specifically excludes any report containing information solely as to transactions or experiences between the consumer and the alleged consumer reporting agency.

To prevail on a motion under federal rule 12(b)(6) the movant must show that from the face of the complaint it is clear that the plaintiff cannot prove any set of facts that would entitle him to relief. Madison v. United States 752 F.2d 607 (11th Cir. 1985). Unlike a motion for summary judgment which is designed to test whether there is a genuine issue of material fact a Rule 12(b)(6) motion tests only whether the claim has been adequately stated in the complaint. Wright & Miller Federal Practice and Procedure SEC.1356 at 592 (1969 & Supp. 1989). The complaint is construed in the light most favorable to the plaintiff and its allegations are taken as true except for those which make unsupported conclusions unwarranted inferences or deductions or sweeping legal conclusions in the form of factual allegations. Id. SEC.1357 at 594-96. Essentially our inquiry is limited to "whether the allegations constitute a statement of a claim under Rule 8(a)." Id. at 594.

Plaintiff argues that the report in question here is not excluded by section 1681a(d) because plaintiff's "transaction or experience" occurred between himself and Mobile Health rather than directly with LSI. To determine whether LSI did or did not have a direct transaction with the plaintiff is a matter which can be decided only with appropriate evidence. Similarly whether LSI is a consumer reporting agency is an issue which requires additional evidence before it can be decided. In both instances we find it conceivable that plaintiff could prevail. At the present time LSI has not submitted any evidence which would force us to decide otherwise. Therefore we are satisfied that plaintiff's allegations constitute a statement of a claim under Rule 8(a). See Wright & Miller SEC. 1357 at 594.

Accordingly we DENY the Motion to Dismiss. *fn2

DONE AND SIGNED at Alexandria Louisiana this 24th day of January 1990.