1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Lydia B ultemeyer, ) No. CV-14-02530-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) CenturyLink Incorporated, ) 12 ) 13 Defendant. ) ) 14 )
15 Before the Court is Defendant CenturyLink Incorporated’s Renewed Motion for 16 Judgment as a Matter of Law (“JMOL”) (Doc. 267) and Supporting Memorandum (Doc. 17 268), as well as Plaintiff’s Response (Doc. 279). The Court now rules as follows. 18 I. BACKGROUND 19 On November 14, 2014, Plaintiff Lydia Bultemeyer filed this lawsuit alleging that 20 Defendant CenturyLink, Inc. violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. 21 § 1681b, by obtaining her credit report, and those of putative class members, without a 22 permissible purpose. (Doc. 1). On February 2, 2023, the Court certified this matter as a 23 class action pursuant to Federal Rule of Civil Procedure 23(b)(3) on behalf of: 24 [E]very individual in the United States about whom Defendant 25 CenturyLink obtained a consumer credit report using the personal information the individual entered into CenturyLink’s 26 ecommerce website from November 14, 2012 through 27 November 14, 2014 and who did not sign an arbitration agreement or class action waiver with CenturyLink. 28 1 (Doc. 178 at 10). 2 On September 16, 2024, following a jury trial, judgment was entered in favor of 3 Plaintiff. (Doc. 251). The jury verdict found that Defendant violated the FCRA and 4 awarded Plaintiff damages in the amount of $500.00 in statutory damages and $2,000.00 5 in punitive damages per class member. (Id.; Doc. 287). 6 On October 15, 2024, Defendant filed its Renewed Motion for Judgment as a Matter 7 of Law, arguing that no reasonable juror could find in favor of Plaintiff because (1) Plaintiff 8 did not provide sufficient evidence at trial that Defendant obtained the credit reports each 9 class member; and (2) Plaintiff did not present sufficient evidence that Defendant willfully 10 violated the FCRA. (Doc. 268 at 5, 10). 11 II. LEGAL STANDARD 12 A party may renew a motion for JMOL no later than 28 days after the entry of 13 judgment in a jury trial. Fed. R. Civ. P. 50(b). “The test [on a Rule 50(b) motion] is whether 14 the evidence, construed in the light most favorable to the nonmoving party, permits only 15 one reasonable conclusion, and that conclusion is contrary to that of the jury.” Est. of Diaz 16 v. City of Anaheim, 840 F.3d 592, 604 (9th Cir. 2016) (quotations and citation omitted). 17 Mere disagreement with the jury’s outcome is insufficient, as JMOL is appropriate only if 18 a “reasonable jury would not have a legally sufficient evidentiary basis to find for the party 19 on that issue.” Fed. R. Civ. P. 50(a). Where there is sufficient conflicting evidence, or if 20 reasonable minds could differ over the verdict, JMOL is improper. Harper v. City of L.A., 21 533 F.3d 1010, 1021–22 (9th Cir. 2008). 22 III. DISCUSSION 23 First, Defendant argues that the jury’s verdict was not supported by legally sufficient 24 evidence because Plaintiff failed to introduce evidence that CenturyLink obtained every 25 class member’s credit report. (Doc. 268 at 5). Defendant further argues that “Plaintiff’s 26 failure to prove at trial that CenturyLink obtained credit reports about class members also 27 demonstrates that there is no proof that class members have Article III standing.” (Id. at 8). 28 As the Court stated in its December 5, 2024 Order (Doc. 295), to require Plaintiff 1 to submit evidence on behalf of all class members “misunderstands the entire purpose 2 behind a Rule 23 class action.” (Id. at 4). The commonality requirement of class action 3 certification requires the plaintiff to show that “there are questions of law or fact common 4 to the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). In other words, 5 the class members’ claims “must depend on a common contention” that is “capable of 6 classwide resolution—which means that determination of its truth or falsity will resolve an 7 issue that is central to the validity of each one of the claims in one stroke.” Id. at 350 8 (emphasis added). In certifying the class in this case, the Court found that there was a 9 common question of law or fact present that was capable of classwide resolution in one 10 stroke, rather than requiring resolution by thousands of individualized strokes. (Doc. 178 11 at 5). Indeed, this Court has repeatedly held that the issue of identifying class members and 12 determining which individuals Defendant pulled the credit reports of is “not truly a 13 ‘question[] of law or fact’ to be adjudicated but rather an administrative issue.” (Doc. 178 14 at 7; see also Doc. 295 at 4). Thus, to the extent that Defendant argues that reasonable 15 minds could not find a verdict for Plaintiff because Plaintiff did not provide evidence on 16 behalf of every class member, the Court rejects Defendant’s argument. 17 The Court declines to address Defendant’s standing argument (Doc. 268 at 8), as 18 Defendant did not make the argument in its oral pre-verdict motion for judgment as a matter 19 of law. (See Doc. 249 at 576–81); E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 20 (9th Cir. 2009) (“Thus, a party cannot properly raise arguments in its post-trial motion for 21 judgment as a matter of law under Rule 50(b) that it did not raise in its preverdict Rule 22 50(a) motion.”) (internal quotation marks omitted). 23 Additionally, Defendant argues that JMOL is warranted because Plaintiff failed to 24 present evidence that Defendant willfully violated the FCRA. (Doc. 268 at 10). The parties 25 agree that the question of whether Defendant willfully violated the FCRA turns on whether 26 Defendant obtained the credit reports of Plaintiff and the class members without a 27 permissible purpose. (Docs. 268 at 12; 279 at 11). Under the statute, a party has a 28 permissible purpose for obtaining credit reports if it has “a legitimate business need for the 1 information in connection with a business transaction . . . initiated by the consumer.” 15 2 U.S.C. § 1681b(a)(3)(F)(i). If Defendant’s interpretation that Plaintiff and the class 3 members “initiated” a business transaction when they completed the first four steps of the 4 order process before abandoning their carts was objectively unreasonable, then 5 Defendant’s credit pulls were willful violations. (Docs. 268 at 11–16; 279 at 10–16). 6 Defendant argues that Plaintiff offered no evidence at trial that Defendant’s position was 7 objectively unreasonable. (Doc. 268 at 11). 8 In her Response (Doc. 279), Plaintiff argues that the evidence at trial demonstrates 9 that Defendant had no reasonable justification for its position that Plaintiff and class 10 members initiated a business transaction with CenturyLink, and therefore, the jury could 11 reasonably conclude that Defendant willfully obtained the class members’ credit reports. 12 (Id. at 16).
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Lydia B ultemeyer, ) No. CV-14-02530-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) CenturyLink Incorporated, ) 12 ) 13 Defendant. ) ) 14 )
15 Before the Court is Defendant CenturyLink Incorporated’s Renewed Motion for 16 Judgment as a Matter of Law (“JMOL”) (Doc. 267) and Supporting Memorandum (Doc. 17 268), as well as Plaintiff’s Response (Doc. 279). The Court now rules as follows. 18 I. BACKGROUND 19 On November 14, 2014, Plaintiff Lydia Bultemeyer filed this lawsuit alleging that 20 Defendant CenturyLink, Inc. violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. 21 § 1681b, by obtaining her credit report, and those of putative class members, without a 22 permissible purpose. (Doc. 1). On February 2, 2023, the Court certified this matter as a 23 class action pursuant to Federal Rule of Civil Procedure 23(b)(3) on behalf of: 24 [E]very individual in the United States about whom Defendant 25 CenturyLink obtained a consumer credit report using the personal information the individual entered into CenturyLink’s 26 ecommerce website from November 14, 2012 through 27 November 14, 2014 and who did not sign an arbitration agreement or class action waiver with CenturyLink. 28 1 (Doc. 178 at 10). 2 On September 16, 2024, following a jury trial, judgment was entered in favor of 3 Plaintiff. (Doc. 251). The jury verdict found that Defendant violated the FCRA and 4 awarded Plaintiff damages in the amount of $500.00 in statutory damages and $2,000.00 5 in punitive damages per class member. (Id.; Doc. 287). 6 On October 15, 2024, Defendant filed its Renewed Motion for Judgment as a Matter 7 of Law, arguing that no reasonable juror could find in favor of Plaintiff because (1) Plaintiff 8 did not provide sufficient evidence at trial that Defendant obtained the credit reports each 9 class member; and (2) Plaintiff did not present sufficient evidence that Defendant willfully 10 violated the FCRA. (Doc. 268 at 5, 10). 11 II. LEGAL STANDARD 12 A party may renew a motion for JMOL no later than 28 days after the entry of 13 judgment in a jury trial. Fed. R. Civ. P. 50(b). “The test [on a Rule 50(b) motion] is whether 14 the evidence, construed in the light most favorable to the nonmoving party, permits only 15 one reasonable conclusion, and that conclusion is contrary to that of the jury.” Est. of Diaz 16 v. City of Anaheim, 840 F.3d 592, 604 (9th Cir. 2016) (quotations and citation omitted). 17 Mere disagreement with the jury’s outcome is insufficient, as JMOL is appropriate only if 18 a “reasonable jury would not have a legally sufficient evidentiary basis to find for the party 19 on that issue.” Fed. R. Civ. P. 50(a). Where there is sufficient conflicting evidence, or if 20 reasonable minds could differ over the verdict, JMOL is improper. Harper v. City of L.A., 21 533 F.3d 1010, 1021–22 (9th Cir. 2008). 22 III. DISCUSSION 23 First, Defendant argues that the jury’s verdict was not supported by legally sufficient 24 evidence because Plaintiff failed to introduce evidence that CenturyLink obtained every 25 class member’s credit report. (Doc. 268 at 5). Defendant further argues that “Plaintiff’s 26 failure to prove at trial that CenturyLink obtained credit reports about class members also 27 demonstrates that there is no proof that class members have Article III standing.” (Id. at 8). 28 As the Court stated in its December 5, 2024 Order (Doc. 295), to require Plaintiff 1 to submit evidence on behalf of all class members “misunderstands the entire purpose 2 behind a Rule 23 class action.” (Id. at 4). The commonality requirement of class action 3 certification requires the plaintiff to show that “there are questions of law or fact common 4 to the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). In other words, 5 the class members’ claims “must depend on a common contention” that is “capable of 6 classwide resolution—which means that determination of its truth or falsity will resolve an 7 issue that is central to the validity of each one of the claims in one stroke.” Id. at 350 8 (emphasis added). In certifying the class in this case, the Court found that there was a 9 common question of law or fact present that was capable of classwide resolution in one 10 stroke, rather than requiring resolution by thousands of individualized strokes. (Doc. 178 11 at 5). Indeed, this Court has repeatedly held that the issue of identifying class members and 12 determining which individuals Defendant pulled the credit reports of is “not truly a 13 ‘question[] of law or fact’ to be adjudicated but rather an administrative issue.” (Doc. 178 14 at 7; see also Doc. 295 at 4). Thus, to the extent that Defendant argues that reasonable 15 minds could not find a verdict for Plaintiff because Plaintiff did not provide evidence on 16 behalf of every class member, the Court rejects Defendant’s argument. 17 The Court declines to address Defendant’s standing argument (Doc. 268 at 8), as 18 Defendant did not make the argument in its oral pre-verdict motion for judgment as a matter 19 of law. (See Doc. 249 at 576–81); E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 20 (9th Cir. 2009) (“Thus, a party cannot properly raise arguments in its post-trial motion for 21 judgment as a matter of law under Rule 50(b) that it did not raise in its preverdict Rule 22 50(a) motion.”) (internal quotation marks omitted). 23 Additionally, Defendant argues that JMOL is warranted because Plaintiff failed to 24 present evidence that Defendant willfully violated the FCRA. (Doc. 268 at 10). The parties 25 agree that the question of whether Defendant willfully violated the FCRA turns on whether 26 Defendant obtained the credit reports of Plaintiff and the class members without a 27 permissible purpose. (Docs. 268 at 12; 279 at 11). Under the statute, a party has a 28 permissible purpose for obtaining credit reports if it has “a legitimate business need for the 1 information in connection with a business transaction . . . initiated by the consumer.” 15 2 U.S.C. § 1681b(a)(3)(F)(i). If Defendant’s interpretation that Plaintiff and the class 3 members “initiated” a business transaction when they completed the first four steps of the 4 order process before abandoning their carts was objectively unreasonable, then 5 Defendant’s credit pulls were willful violations. (Docs. 268 at 11–16; 279 at 10–16). 6 Defendant argues that Plaintiff offered no evidence at trial that Defendant’s position was 7 objectively unreasonable. (Doc. 268 at 11). 8 In her Response (Doc. 279), Plaintiff argues that the evidence at trial demonstrates 9 that Defendant had no reasonable justification for its position that Plaintiff and class 10 members initiated a business transaction with CenturyLink, and therefore, the jury could 11 reasonably conclude that Defendant willfully obtained the class members’ credit reports. 12 (Id. at 16). In particular, Plaintiff proffered expert witness testimony about a Federal Trade 13 Commission letter relaying that a consumer must affirmatively be purchasing something 14 requiring credit in order to be initiating a transaction. (Doc. 249 at 536–38). Defendant 15 admits that authoritative guidance from the FTC is a key consideration in determining 16 whether a defendant’s position was objectively unreasonable. (Doc. 268 at 12). 17 Additionally, Plaintiff points to evidence that the ordinary meaning—and Plaintiff’s 18 understanding—of the term “business transaction” requires an exchange or transfer of 19 services, which never happened for the class members who abandoned their carts. (Docs. 20 279 at 12; 245 at 162). 21 The Court maintains that reasonable minds could differ the regarding the evidence 22 supporting the verdict, and thus JMOL is inappropriate here. For example, it was the jury’s 23 decision alone to weigh the credibility of Plaintiff’s and Plaintiff’s expert Evan Hendricks’ 24 testimony regarding whether Defendant had a reasonable justification for obtaining the 25 credit reports. As such, the Court will deny Defendant’s Motion for JMOL. 26 Accordingly, 27 /// 28 /// 1 IT IS ORDERED that Defendant CenturyLink Incorporated’s Renewed Motion for 2| Judgment as a Matter of Law (Doc. 267) is denied. 3 Dated this 30th day of January, 2025. 4 5 6 Leenks 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28