Tony Nunley v. Cardinal Logistics Management Corporation

Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 1 of 16 Page ID #:224 [3] 4 JS-6 [7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] Case No.: ED CV 22-01255-FWS-SP 11 TONY NUNLEY, individually and on behalf of all others similarly situated, 12 ORDER GRANTING PLAINTIFF’S Plaintiff, MOTION TO REMAND ACTION TO [13] STATE COURT [13] AND DENYING 14 AS MOOT DEFENDANT’S MOTION v. TO DISMISS [15] [16] CARDINAL LOGISTICS [17] MANAGEMENT CORPORATION, a 18 North Carolina corporation; and ROBERT SHEERIN, an individual; and [19] DOES 1 through 100, inclusive, [20] Defendants. [22] 23 /// 24 /// 25 /// [28] Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 2 of 16 Page ID #:225 1 Before the court is Plaintiff Tony Nunley’s (“Plaintiff”) Motion to Remand this 2 Action to State Court. (Dkt. 13 (“Motion” or “Mot.”).) Defendant Cardinal Logistics 3 Management Corporation (“Defendant”) opposes the Motion. (Dkt. 17 (“Opposition” 4 or “Opp.”).) Plaintiff filed a reply brief. (Dkt. 18 (“Reply”).) 5 The court finds this matter appropriate for resolution without oral argument. 6 See Fed. R. Civ. P. 78(b) (“By rule or order, the court may provide for submitting and 7 determining motions on briefs, without oral hearings.”); L. R. 7-15 (authorizing courts 8 to “dispense with oral argument on any motion except where an oral hearing is 9 required by statute”). Based on the state of the record, as applied to the applicable 10 law, the court GRANTS the Motion. 11 I. Relevant Background 12 In this putative class action, Plaintiff brings claims against Defendant and 13 Defendant Robert Sheerin (collectively, “Defendants”) based on (1) violations of the 14 Fair Credit Reporting Act (“FCRA”), specifically 15 U.S.C. §§ 1681b(b)(2)(A), 15 d(a)(1)(B), and m(a)(3), (Dkt. 1-1 (“Complaint” or “Compl.”) ¶¶ 26-33); (2) violations 16 of the California Investigative Consumer Reporting Agencies Act (“ICRAA”), Cal. 17 Civ. Code §§ 1786, et seq., (Compl. ¶¶ 34-46); and (3) violations of the California 18 Consumer Credit Reporting Agencies Act (“CCRAA”), Cal. Civ. Code §§ 1785.1 , et 19 seq., (Compl. ¶¶ 47-55). Plaintiff seeks to bring this action on behalf of “all current, 20 former, and prospective employees of Defendants who applied for a job with 21 Defendants and a background check was performed beginning five (5) years 22 preceding the filing of [the] [C]omplaint up until the date that final judgment is 23 entered in this action.” (Id. ¶ 16.) [28] -2Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 3 of 16 Page ID #:226 1 Plaintiff alleges Defendants employed Plaintiff “with duties that included, but 2 were not limited to, driving and delivering appliances.”1 (Id. ¶ 2.) Plaintiff “applied 3 for work with Defendants” in or around February 2021 and stopped working for them 4 in or around October 2021. (Id.) Plaintiff alleges Defendants purported to provide 5 consumer report disclosures to Plaintiff, and requested Plaintiff’s authorization to 6 procure consumer reports and background checks for purposes of employment. (Id. 7 ¶ 11.) Plaintiff also alleges that Defendants received consumer reports relating to 8 Plaintiff in July 2019 and February 2020 as part of an employment background 9 screening, but did not provide Plaintiff with the required disclosures or receive proper 10 authorization to obtain the reports. (Id. ¶ 12.) Plaintiff alleges the disclosures 11 Defendants provided were inadequate in that they included “superfluous” and 12 “extraneous” information; were “bur[ied] . . . with small font in a lengthy employment 13 package with dense text that contain[ed] extraneous information”; were not 14 accompanied by a summary of Plaintiff’s rights under 15 U.S.C. § 1681m(a)(3) or [15] Cal. Civ. Code § 1786.22 ; and included a third-party liability waiver. (Id. ¶¶ 13-15, 16 31, 41.) Plaintiff further alleges Defendants did not obtain proper authorization before 17 procuring consumer reports relating to him, did not provide adequate notice to 18 Plaintiff of the source of the reports, and “routinely acquire consumer, investigative, 19 and/or consumer credit reports . . . to conduct background checks.” (Id. ¶¶ 13, 15, 31, 20 41, 52.) Plaintiff alleges that, “[a]s a result of Defendants’ unlawful procurement of 21 background reports by way of [their] inadequate disclosures and authorizations,” 22 Plaintiff has “been deprived of [his] consumer rights and prevented from making [25] 1 For the purposes of the Motion, the court assumes the Complaint’s allegations are true. See Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81 , 87 (2014) 26 (“[C]ourts should apply the same liberal rules to removal allegations that are applied 27 to other matters of pleading.”) (cleaned up); Avila v. Rue21, Inc., 432 F. Supp. 3d 1175 , 1184 (E.D. Cal. 2020) (accepting “the allegations as true for purposes of 28 removal”). -3Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 4 of 16 Page ID #:227 1 informed decisions about whether to permit Defendants to obtain [his] personal 2 information.” (Id. ¶ 43.) Plaintiff “seek[s] some of the statutory remedies” available 3 under the FCRA, ICRAA, and CCRAA. (Id. ¶¶ 33, 46, 55.) 4 Plaintiff initially filed this action in California Superior Court, San Bernardino 5 County, on May 11, 2022, (see Compl.), and served Defendant on June 20, 2022, 6 (Dkt. 1-2). On July 19, 2022, Defendant timely removed the matter to this court, 7 asserting federal jurisdiction is proper based on both federal question jurisdiction, 28 8 U.S.C. § 1331 , and diversity jurisdiction as amended by the Class Action Fairness Act 9 of 2005 (“CAFA”), id. §§ 1332(d), 1453, 1711-15. (See Dkt. 1 (“Notice of Removal” 10 or “NOR”) ¶ 7.) Plaintiff then filed the Motion on August 18, 2022. (Dkt. 13.) The 11 matter is fully briefed. (See Mot.; Opp.; Reply.) 12 II. Legal Standards 13 A. Removal 14 “Only state-court actions that originally could have been filed in federal court 15 may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 16 U.S. 386 , 392 (1987); 28 U.S.C. § 1441 (a). “If at any time before final judgment it 17 appears that the district court lacks subject matter jurisdiction,” the court must remand 18 the case. 28 U.S.C. § 1447 (c). It is the removing party’s burden to establish federal 19 jurisdiction lies. Jauregui v. Roadrunner Transp. Servs., Inc., 28 F.4th 989 , 992-94 20 (9th Cir. 2022); see also Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676 , 685 21 (9th Cir. 2006) (“[H]old[ing] that under CAFA the burden of establishing removal 22 jurisdiction remains, as before, on the proponent of federal jurisdiction.”); Pool v. F. 23 Hoffman-La Roche, Ltd., 386 F. Supp. 3d 1202, 1209 (N.D. Cal. 2019) (stating “in a 24 removal situation, the defendant has the burden of proving jurisdiction, and the burden 25 of proof is preponderance of the evidence”). “[A]lthough a presumption against 26 federal jurisdiction exists in the usual diversity case, ‘no antiremoval presumption 27 attends cases invoking CAFA.’” Greene v. Harley-Davidson, Inc., 965 F.3d 767 , 772 [28] -4Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 5 of 16 Page ID #:228 1 (9th Cir. 2020) (citing Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 2 81, 87 (2014)). 3 B. Article III Standing 4 Article III standing requires: (1) a plaintiff to have “suffered an injury in fact 5 that is concrete, particularized, and actual or imminent”; (2) “that the injury was likely 6 caused by the defendant”; and (3) “that the injury would likely be redressed by 7 judicial relief.” TransUnion LLC v. Ramirez, --- U.S. ----, 141 S. Ct. 2190 , 2203 8 (2021) (citation omitted). “[T]he party invoking federal jurisdiction bears the burden 9 of establishing these elements.” See Spokeo, Inc. v. Robins (Spokeo II), 578 U.S. 330 , 10 338 (2016) (citation and internal punctuation marks omitted); Lujan v. Defs. of 11 Wildlife, 504 U.S. 555, 561 (1992). 12 “To establish injury in fact, a plaintiff must show that he or she suffered ‘an 13 invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual 14 or imminent, not conjectural or hypothetical.’” Spokeo II, 578 U.S. at 339 (quoting 15 Lujan, 504 U.S. at 560 ). Though the “‘fairly traceable’ and ‘redressability’ 16 components for standing overlap and are two facets of a single causation requirement” 17 they “are distinct in that traceability examines the connection between the alleged 18 misconduct and injury, whereas redressability analyzes the connection between the 19 alleged injury and requested relief.” Mecinas v. Hobbs, 30 F.4th 890, 899 (9th Cir. 20 2022) (citations and some internal quotation marks omitted). 21 C. Subject Matter Jurisdiction 22 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life 23 Ins. Co. of Am., 511 U.S. 375, 377 (1994). “In civil cases, subject matter jurisdiction 24 is generally conferred upon federal district courts either through diversity jurisdiction, [25] 28 U.S.C. § 1332 , or federal question jurisdiction, 28 U.S.C. § 1331 .” Peralta v. 26 Hispanic Bus., Inc., 419 F.3d 1064, 1069 (9th Cir. 2005). “Under 28 U.S.C. § 1331 , 27 federal courts ‘have original jurisdiction of all civil actions arising under the 28 Constitution, laws, or treaties of the United States.’” Negrete v. City of Oakland, 46 -5Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 6 of 16 Page ID #:229 [1] F.4th 811 , 816 (9th Cir. 2022). To establish diversity jurisdiction, a plaintiff must 2 demonstrate that: (1) the suit is between citizens of different states; and (2) the amount 3 in controversy exceeds $75,000. 28 U.S.C. § 1332 ; see also Matheson v. Progressive 4 Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (“Jurisdiction founded on 28 5 U.S.C. § 1332 requires that the parties be in complete diversity and the amount in 6 controversy exceed $75,000.”). In general, “diversity jurisdiction does not exist 7 unless each defendant is a citizen of a different State from each plaintiff.” Owen 8 Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). But, absent limited 9 exceptions, CAFA permits a federal district court to exercise subject matter 10 jurisdiction over a putative class action in which: (1) the amount in controversy 11 exceeds $5,000,000; (2) the number of members of all purported classes of plaintiffs 12 totals 100 or more persons; and (3) any member of a proposed class of plaintiffs 13 differs in citizenship from any defendant. 28 U.S.C. § 1332 (d); Dart Cherokee, 574 14 U.S. at 84-85. 15 III. DISCUSSION 16 A. Article III Standing 17 Plaintiff argues this action should be remanded to state court because the 18 Complaint’s allegations do not sufficiently demonstrate more than a bare procedural 19 violation of the FCRA, and thus does not set forth a concrete and particularized injury 20 in fact required for Article III standing. (See Mot. at 7-10; Reply at 2-8.) Defendant 21 argues this action should remain in federal court because the Complaint alleges: 22 (1) violations of Plaintiff’s substantive privacy rights; (2) a total lack of certain 23 disclosures; (3) Plaintiff was “actually confused” and could not protect his legal 24 rights; and (4) Plaintiff was deprived of his consumer rights, all of which support 25 finding the Complaint demonstrates an injury in fact. (See Opp. at 9-19.) 26 “For an injury to be particularized, it must affect the plaintiff in a personal and 27 individual way.” Spokeo II, 578 U.S. at 339 . A concrete injury is one that “actually 28 exist[s],” id. at 340 (citation omitted), but the term “‘[c]oncrete’ is not, however, -6Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 7 of 16 Page ID #:230 1 necessarily synonymous with ‘tangible,’” id. Still, “‘Article III standing requires a 2 concrete injury even in the context of a statutory violation.’” TransUnion, 141 S. Ct. 3 at 2205 (quoting Spokeo II, 578 U.S. at 341 ). The Ninth Circuit “has adopted a two4 step framework to determine whether alleged violations of FCRA provisions are 5 sufficiently concrete to confer standing: ‘(1) whether the statutory provisions at issue 6 were established to protect [a plaintiff’s] concrete interests (as opposed to purely 7 procedural rights), and if so, (2) whether the specific procedural violations alleged in 8 this case actually harm, or present a material risk of harm to, such interests.’” Tailford 9 v. Experian Info. Sols., Inc., 26 F.4th 1092 , 1099 (9th Cir. 2022) (alteration in 10 original) (quoting Robins v. Spokeo, Inc. (Spokeo III), 867 F.3d 1108, 1113 (9th Cir. 11 2017)). 12 In this case, the court finds Plaintiff has not alleged a “concrete injury” 13 necessary to confer Article III standing. As discussed above, Plaintiff alleges: 14 (1) disclosures provided by Defendants were inadequate in that they (a) included 15 “superfluous” and “extraneous” information, and (b) were “bur[ied] . . . with small 16 font in a lengthy employment package with dense text that contain[ed] extraneous 17 information”; (2) the disclosures were not accompanied by a summary of Plaintiff’s 18 rights under 15 U.S.C. § 1681m(a)(3) or Cal. Civ. Code § 1786.22 ; (3) the disclosures 19 included a third-party liability waiver; (4) Defendants did not obtain proper 20 authorization before procuring consumer reports; (5) Defendants did not provide 21 adequate notice to Plaintiff of the source of the reports, despite the fact that 22 Defendants “routinely acquire consumer, investigative, and/or consumer credit 23 reports . . . to conduct background checks”; and (6) that, “[a]s a result of Defendants’ 24 unlawful procurement of background reports by way of [their] inadequate disclosures 25 and authorizations,” Plaintiff has “been deprived of [his] consumer rights and 26 prevented from making informed decisions about whether to permit Defendants to 27 obtain [his] personal information.” (Id. ¶¶ 13-15, 31, 41, 43.) [28] -7Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 8 of 16 Page ID #:231 1 The court finds the Complaint fails to demonstrate Plaintiff sustained a 2 “concrete harm” independent of asserted procedural violations because it does not 3 allege that plaintiff suffered any actual confusion resulting from the purportedly 4 noncompliant disclosures or that plaintiff would have taken any action if Defendants 5 had complied with the FCRA. Numerous courts have found that alleged violations of 6 the FCRA’s disclosure and/or authorization provisions are “bare procedural 7 violations” lacking a “concrete” injury in fact necessary to sustain Article III standing 8 when unaccompanied by allegations that a plaintiff was confused or would have acted 9 differently as a result of those violations. See, e.g., Mendoza v. Aldi Inc., 2019 WL 10 7284940, at *2 (C.D. Cal. Dec. 27, 2019) (finding allegations “fail[ed] to reach 11 beyond a bare procedural violation of the FCRA and thus [did] not satisfy Article III 12 standing” where plaintiff did not allege “subsequent discovery, confusion from the 13 form, or that she would not have signed the authorization had it been presented in a 14 FCRA-compliant format”); Mayorga v. Carter’s Inc., 2022 WL 1190350 , at *3 (C.D. 15 Cal. Apr. 21, 2022) (finding complaint was “devoid of any indication of concrete 16 harm” where it lacked allegations that plaintiff “was actually confused or deceived by 17 the ‘extraneous information,’ authorized the consumer report unknowingly, or would 18 not have authorized it had the disclosure been presented properly”); Grabner v. 19 Experian Info. Sols., Inc., 2022 WL 1223636 , at *2 (C.D. Cal. Apr. 22, 2022) (finding 20 allegations of “[d]efendant’s failure to apprise them ‘that States may enforce the 21 FCRA, that many states have their own consumer reporting laws, that the consumer 22 may have more rights under State law, and that the consumer may wish to contact a 23 State or local consumer protection agency or State attorney general for more 24 information’” insufficient to demonstrate Article III standing because plaintiffs “d[id] 25 not allege any concrete action [d]efendant’s statutory violation prevented them from 26 taking” and the alleged omitted information “include[d] generalized statements 27 regarding the availability of legal aid and redress at the state level” which was “not the 28 type of information that would obviously spark action from its recipient and -8Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 9 of 16 Page ID #:232 1 [p]laintiffs [did] not allege that they had some need to contact state authorities that 2 [d]efendant’s non-disclosure prevented or hindered them from fulfilling”); Masuda v. 3 Lucile Salter Packard Children’s Hosp. at Stanford, 2021 WL 4305979 , at *3-*4 4 (N.D. Cal. Sept. 22, 2021) (finding plaintiff’s allegations did “not resemble the kind 5 which the Ninth Circuit has found confers Article III standing” where “[p]laintiff [did] 6 not allege that she was confused by the forms, that she later discovered that a 7 consumer report had been generated when she had not expected it, or that she suffered 8 any other harm from the noncompliant forms”). 9 Defendant’s arguments that Plaintiff’s allegations state: (1) his “substantive” 10 privacy rights were violated; and (2) that certain disclosures were never provided to 11 him both are independently sufficient to confer Article III standing, without additional 12 allegations of concrete harm, are not persuasive. (See Opp. at 11-16.) As noted 13 above, the “two-step framework” employed by courts in the Ninth Circuit requires 14 both a showing that the provisions of the FCRA that were allegedly violated were 15 established to protect a plaintiff’s concrete interests beyond their purely procedural 16 rights and that the specific procedural violations alleged by the plaintiff actually harm, 17 or present a material risk of harm to, those concrete interests. Tailford, 26 F.4th at 18 1099; Spokeo III, 867 F.3d at 1113 . As set forth above, Plaintiff does not set forth 19 sufficient facts in the Complaint demonstrating a concrete harm beyond procedural 20 violations and formatting errors. See TransUnion, 141 S. Ct. at 2214 ; Spokeo II, 578 21 U.S. at 341. 22 Defendant relies heavily on Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017) and 23 its progeny to support its position, but these cases are distinguishable. In Syed, the 24 Ninth Circuit “infer[red] that Syed was deprived of the right to information and the 25 right to privacy guaranteed by Section 1681b(b)(2)(A)(I)-(ii)” based on allegations 26 Syed “discovered Defendant M-I’s violation(s) within the last two years when he 27 obtained and reviewed his personnel file from Defendant M-I and discovered that 28 Defendant M-I had procured and/or caused to be procured a ‘consumer report’ -9Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 10 of 16 Page ID #:233 1 regarding him for employment purposes based on the illegal disclosure and 2 authorization form” and thus “was confused by the inclusion of the liability waiver 3 with the disclosure and would not have signed it had it contained a sufficiently clear 4 disclosure, as required in the statute.” 853 F.3d at 499-500 . Here, unlike in Syed, 5 Plaintiff “does not claim that he was confused, misled, or otherwise negatively 6 affected by the alleged statutory violations.” Ellsworth v. Schneider Nat’l Carriers, 7 Inc., 2021 WL 6102514 , at *4 (C.D. Cal. Oct. 28, 2021); see Ruiz v. Shamrock Foods 8 Co., 804 F. App’x 657 , 659 (9th Cir. 2020) (“We held that the plaintiff in Syed had 9 adequately alleged such an injury because we inferred that he ‘was confused by the 10 inclusion of [a] liability waiver with the disclosure and would not have signed [the 11 authorization for the credit check] had it contained a sufficiently clear disclosure.’”) 12 (alterations in original) (citation omitted). 13 Likewise, Nayab v. Cap. One Bank (USA), N.A., 942 F.3d 480, 491 (9th Cir. 14 2019) is distinguishable. Nayab concerned § 1681(f)(1), a provision of the FCRA not 15 at issue in the Complaint. 942 F.3d at 496 ; see Kelley v. Applus Techs., 2022 WL 16 2357294, at *3 (C.D. Cal. June 30, 2022) (reasoning Nayab “pertained to section 17 1681(f)(1), not b(b)(2)(A)” and did “not bear on the question of whether a violation of 18 FCRA’s stand-alone disclosure requirement, section 1681b(b)(2)(A), confers 19 standing”); accord Winters v. Douglas Emmett, Inc., 547 F. Supp. 3d 901 , 906 (C.D. 20 Cal. 2021 ). And, though Defendant does not cite it, so is Tailford. In Tailford, the 21 plaintiffs alleged the defendant violated 15 U.S.C. § 1681g by, among other things, 22 not disclosing inquiries made to third parties and the identities of the third parties that 23 obtained the plaintiffs’ information, preventing them from opting out of these 24 disclosures and harming their privacy interests. See 26 F.4th at 1097, 1098-1101. 25 Again, the Complaint pleads no violation of § 1681g; and, importantly, does not set 26 forth facts indicating Plaintiff’s information was shared with any third parties, or any 27 facts “‘present[ing] a material risk of harm’” to Plaintiff’s interest in his consumer 28 privacy. See id. at 1100; Muha v. Experian Info. Sols., Inc., 2022 WL 1223635 , at *3 -10Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 11 of 16 Page ID #:234 1 (C.D. Cal. Apr. 25, 2022) (“Unlike in Tailford, neither Plaintiff’s right to privacy nor 2 her right to have her information accurately reported, which the Ninth Circuit 3 identified as the core purposes of the FCRA.”) (citation omitted).2 4 Defendant also urges the court to follow Syed and find that the Complaint’s 5 allegations sustain a “reasonable inference” that Plaintiff suffered a concrete injury. 6 (Opp. at 16-18.) While Plaintiff alleges violations of § 1681b(b)(2)(A) similar to 7 those at issue in Syed, the Ninth Circuit in Syed held it could “fairly infer” that Syed 8 was not aware he was signing a waiver authorizing the credit check based on his late 9 discovery of the report and “was confused by the inclusion of the liability waiver with 10 the disclosure and would not have signed it had it contained a sufficiently clear [12] 13 2 Defendant argues Gilberg v. Cal. Check Cashing Stores, LLC, 913 F.3d 1169, 1176 (9th Cir. 2019); Walker v. Fred Meyer, Inc., 953 F.3d 1082 , 1088-91 & n.2 (9th Cir. [14] 2020); and Luna v. Hansen & Adkins Auto Transp., Inc., 956 F.3d 1151, 1153 (9th 15 Cir. 2020) support its position, noting that the “Ninth Circuit has impliedly found Article III standing” in the latter two cases “by exercising jurisdiction.” (Opp. at 12 [16] n.1.) The court disagrees. As relevant to all three cases, “[a]n assumption is not a 17 holding.” Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (quoting United States v. Booker, 375 F.3d 508, 514 (7th Cir. 2004)). The Ninth Circuit in [18] Gilberg, Luna, and Fred Meyer did not discuss Article III standing; each concerned 19 the scope of the FCRA’s standalone disclosure requirement. See Luna, 956 F.3d at 1152-54 (analyzing whether providing a standalone FCRA disclosure [20] contemporaneously with other employment documents violates the FCRA’s 21 disclosure requirements); Gilberg, 913 F.3d at 1175-76 (delineating scope of the FCRA’s standalone disclosure requirement to include any extraneous and irrelevant [22] information); Fred Meyer, 953 F.3d at 1088-89 (holding that “beyond a plain 23 statement disclosing ‘that a consumer report may be obtained for employment purposes,’ some concise explanation of what that phrase means may be included as [24] part of the ‘disclosure’ required by § 1681b(b)(2)(A)(i)”); see also Orpilla v. 25 Schenker, Inc., 2020 WL 2395002 , at *5 (N.D. Cal. May 12, 2020) (distinguishing Gilberg and Fred Meyer on these bases); id. (observing “Gilberg is distinguishable for [26] one more reason” because “when the plaintiff in Gilberg filed her appeal to the Ninth 27 Circuit, she expressly conceded that the district court had subject matter jurisdiction over the case, and that the Ninth Circuit had jurisdiction over the appeal”) (citation [28] and internal quotation marks omitted). -11Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 12 of 16 Page ID #:235 1 disclosure, as required in the statute.” Syed, 853 F.3d at 499-500 . Contrary to 2 Defendant’s argument, here, “Plaintiff has made no allegations of confusion, late 3 discovery of Defendant’s violation of the FCRA, or any other allegation from which 4 the [c]ourt may infer that [he] was confused or that [he] would not have signed the 5 document if [he] had received clear disclosures.” See Orpilla v. Schenker, Inc., 2020 6 WL 2395002 , at *4 (N.D. Cal. May 12, 2020) (distinguishing Syed on this basis); 7 Williams v. Nichols Demos, Inc., 2018 WL 3046507 , at *4 (N.D. Cal. June 20, 2018) 8 (collecting cases in which district courts found plaintiffs alleged bare procedural 9 violations of the FCRA insufficient to confer Article III standing where claims were 10 based on alleged violations of the statute’s standalone disclosure requirement). 11 Defendant’s attempts to support this inference with the FCRA’s statutory period and 12 the Complaint’s allegations that disclosures were “buried” or provided in an 13 improperly condensed format are too attenuated to militate finding otherwise. (See 14 Opp. at 17.) Stated differently, Defendant’s argument that the Complaint’s allegations 15 “impl[y] [Plaintiff] never saw the disclosures at the time of his application” and 16 “entail actual confusion,” (Opp. at 17, 18), only “bolster [Plaintiff’s] point: [Plaintiff] 17 does not allege such [facts],” see Mendoza, 2019 WL 7284940 , at *2. Additionally, 18 Syed was decided on a motion to dismiss, in which the court draws all reasonable 19 inferences in favor of the nonmoving party. See Syed, 853 F.3d at 499 . Although “no 20 antiremoval presumption attends” the Motion, see Dart Cherokee, 574 U.S. at 87, it is 21 still Defendant’s burden to establish the propriety of removal jurisdiction, see 22 Jauregui, 28 F.4th at 992-94 ; Abrego Abrego, 443 F.3d at 685 . Based on the state of 23 the record, as applied to the applicable law, the court concludes Defendant has not met 24 its burden. 25 Finally, Defendant seizes upon the Complaint’s allegations that Plaintiff has 26 “been deprived of [his] consumer rights and prevented from making informed 27 decisions about whether to permit Defendants to obtain [his] personal information,” to 28 argue this sentence alone is sufficient to demonstrate Article III standing. (See Opp. at -12Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 13 of 16 Page ID #:236 1 18-19.) But, as relevant here, “a reference to invaded ‘privacy and statutory rights,’ 2 an unexplained reference to ‘lost money or property,’ and [even] a request for 3 ‘restitution’ – are insufficient to describe a concrete and particularized harm.” See 4 Moore v. United Parcel Serv., Inc., 2019 WL 2172706 , at *1 (N.D. Cal. May 13, 5 2019). Further, to construe the allegation that Defendants prevented Plaintiff from 6 “making informed decisions about whether to permit Defendants to obtain [his] 7 personal information” as an allegation of actual confusion resulting from Defendant’s 8 purported FCRA violations, is temporally implausible. The plain reading of this 9 allegation is that Plaintiff was “prevented” from making an “informed decision about 10 whether to permit Defendants” to obtain a credit report because Defendants obtained 11 the report without first obtaining his authorization. After Defendants obtained the 12 report, there was no “informed decision” that they could “prevent” or confound: as 13 alleged, Defendants had already divested Plaintiff of his ability to provide adequate 14 consent. Accordingly, alleging Plaintiff was “prevented from making informed 15 decisions about whether to permit Defendants to obtain [his] personal information” is 16 merely another way of asserting Defendants simply obtained a credit report relating to 17 Plaintiff without his prior authorization, and fails to demonstrate a concrete injury for 18 the same reasons discussed above. 19 In sum, the crux of the Complaint is that Defendants did not comply with the 20 technical authorization and disclosure requirements of the FCRA. This is the kind of 21 “bare procedural injury” of the FCRA contemplated by TransUnion and Spokeo II. 22 See Spokeo II, 578 U.S. 330, 341 (2016) (“bare procedural violation[s], divorced from 23 any concrete harm” are insufficient to “satisfy the injury-in-fact requirement of Article 24 III”); TransUnion, 141 S. Ct. at 2214 (holding allegations were insufficient to confer 25 Article III standing where “plaintiffs did not allege that they failed to receive any 26 required information” but “argued only that they received it in the wrong format”). 27 The Complaint does not allege, nor fairly permit the inference that, Plaintiff would 28 have taken any action, or avoided any nonspeculative harm, if Defendant had -13Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 14 of 16 Page ID #:237 1 complied with the FCRA’s requirements. Accordingly, it does not demonstrate 2 Article III standing, and the court must remand this action. See Orpilla, 2020 WL 3 2395002, at *4-*6 (N.D. Cal. May 12, 2020) (finding employer’s alleged 4 noncompliance with FCRA’s disclosure and authorization requirements were “mere 5 procedural violation[s]” because plaintiff did not allege she was unaware of the 6 noncompliance or she would have acted differently and remanding case to state court 7 for lack of Article III standing); Grabner, 2022 WL 1223636 , at *3 (remanding action 8 to state court for lack of Article III standing because court could not, “without 9 speculating, discern from Plaintiffs’ complaint any action they would have taken or 10 harm they would have avoided” if defendant had complied with the FCRA’s 11 disclosure requirements). 12 Accordingly, the court finds the Complaint does not adequately plead a 13 “concrete” injury in fact for purposes of Article III standing. 14 B. Subject Matter Jurisdiction 15 The parties devote some of their attention to arguments regarding the court’s 16 subject matter jurisdiction apart from Article III standing. Plaintiff argues that, even if 17 Plaintiff has Article III standing, Defendant is unable to establish subject matter 18 jurisdiction under CAFA, because Defendant’s calculations of the amount in 19 controversy in this action are flawed. (See Mot. at 10-12.) Plaintiff also contends 20 Defendant’s argument in the Notice of Removal that Defendant Robert Sheerin was 21 fraudulently joined to destroy diversity jurisdiction is irrelevant for purposes of CAFA 22 jurisdiction, which requires only minimal diversity. (See id. at 12-13 ; NOR ¶ 18.) 23 Defendant disputes Plaintiff’s assertions on their merits, and also notes that the court 24 has federal question jurisdiction over this matter because the Complaint pleads 25 violations of the Fair Credit Reporting Act, a federal statute. (See Opp. at 19-30.) In 26 Reply, Plaintiff does not substantively address Defendant’s assertion that federal 27 question jurisdiction exists. (See Reply at 8-10.) [28] -14Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page 15 of 16 Page ID #:238 1 Because the Complaint alleges Defendants violated a federal law—the FCRA— 2 the court would ordinarily find it has subject matter jurisdiction arising under federal 3 question jurisdiction, based on the purported violations of the FCRA pleaded in the 4 Complaint. 28 U.S.C. §§ 1331 ; 1441; see 28 USC § 1367 (a) (absent certain 5 exceptions, “in any civil action of which the district courts have original jurisdiction, 6 the district courts shall have supplemental jurisdiction over all other claims that are so 7 related to claims in the action within such original jurisdiction that they form part of 8 the same case or controversy under Article III of the United States Constitution”). But 9 Plaintiff lacks Article III standing, and therefore, the court lacks subject matter 10 jurisdiction over this matter regardless.3 See, e.g., Polo v. Innoventions Int’l, LLC, [11] 833 F.3d 1193, 1196 (9th Cir. 2016) (“The rule that a removed case in which the 12 plaintiff lacks Article III standing must be remanded to state court under [28 U.S.C.] 13 § 1447(c) applies as well to a case removed pursuant to CAFA as to any other type of 14 removed case.”). 15 /// 16 /// 17 /// [21] 22 3 Plaintiff raises evidentiary challenges to Defendant’s calculations of the asserted 23 amount in controversy based on two paragraphs in the Declaration of Defendant’s Vice President of Human Resources, Holly Hardie, submitted in support of the 24 Motion. (Compare Dkt. 17-1 with Dkt. 18-1; see also Dkt. 19-1 (Defendant’s 25 Response).) Because addressing the parties’ arguments regarding Defendant’s computation of the amount in controversy is unnecessary given Plaintiff’s lack of 26 Article III standing—much less the apparent existence of federal question jurisdiction 27 under 28 U.S.C. § 1331—the court need not consider the challenged evidence presented in the Hardie Declaration, (Dkt. 17-1), and accordingly DENIES AS 28 MOOT Plaintiff’s evidentiary objections thereto, (Dkt. 18-1). -15Case 5:22-cv-01255-FWS-SP Document 21 Filed 10/05/22 Page16o0f16 Page ID #:239 1 | IV. DISPOSITION 2 For the foregoing reasons, the court GRANTS the Motion. Defendant’s 3 || Motion to Dismiss set for hearing on November 3, 2022, at 10:00 a.m., (Dkt. 15), is 4 | DENIED AS MOOT and the case is REMANDED to California Superior Court, San 5 | Bernardino County. [7] 8 IT IS SO ORDERED. [10] 11 | DATED: October 5, 2022 Lo bS/-—~ 12 Hon. Fred W. Slaughter B UNITED STATES DISTRICT JUDGE [28] -16-