1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 DESIREE GILBERG, on behalf of ) Case No. 2:15-CV-02309-JAM-AC herself and others similarly ) 13 situated, ) ) 14 Plaintiff, ) ORDER DENYING PLAINTIFF’S ) MOTION TO REMAND 15 v. ) ) 16 CHECKSMART FINANCIAL, LLC, a ) Delaware limited liability ) 17 company, ) ) 18 Defendant. ) 19 In July 2015, Desiree Gilberg filed a suit against California 20 Check Cashing Stores, Inc. and CheckSmart Financial, LLC 21 (“CheckSmart”) in Los Angeles Superior Court. She alleged 22 violations of the federal Fair Credit Reporting Act (“FCRA”), 23 California’s Consumer Credit Reporting Agencies Act (“CCRAA”), and 24 the Investigative Consumer Reporting Agencies Act (“ICRAA”). 25 Notice of Removal, ECF No. 1-3. Defendants timely removed the case 26 to the Central District of California, invoking the court’s federal 27 question jurisdiction. Id. Ultimately, the parties transferred the 28 case to this Court. ECF No. 25. 1 In May 2017, Defendants filed a joint motion for summary 2 judgment. ECF No. 49. At the hearing, Plaintiff conceded her 3 second and fourth causes of action. Tr. of June 6, 2016 4 Proceedings (“Tr.”) 5:20-22, ECF No. 67. The Court granted 5 Defendants’ motion for summary judgment on the conceded claims and 6 on the disputed claims. Tr. 19:24-20:4. On appeal, the Ninth 7 Circuit held the Court properly granted summary judgment on 8 Gilberg’s second and fourth causes of action against CheckSmart and 9 on all of Gilberg’s claims against California Check Cashing Stores. 10 Memorandum of USCA, ECF No. 69. However, the Ninth Circuit found 11 this Court erred in granting summary judgment against Gilberg’s 12 claims that CheckSmart violated the stand-alone document 13 requirement under both federal and state law. Id. It vacated this 14 Court’s ruling accordingly. Id. 15 Gilberg now requests the Court remand her case to state court, 16 arguing she lacks standing to bring her FCRA claim in federal 17 court. Mot. to Remand (“Mot.”), ECF No. 71. CheckSmart filed an 18 opposition to Gilberg’s motion. Opp’n, ECF No. 75. Gilberg 19 replied. Reply, ECF No. 78. For the reasons discussed below, the 20 Court DENIES Gilberg’s motion.1 21 22 I. BACKGROUND 23 The parties are well-versed in the factual underpinnings of 24 this case. The Court need not reproduce a statement of the 25 allegations at issue here. 26 ///
27 1 This motion was determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 1 II. OPINION 2 A. Legal Standard 3 Generally, when a United States district court has original 4 jurisdiction over a case, defendants may remove civil actions 5 filed in state court to the district court “embracing the place 6 where [the suit] is pending.” 28 U.S.C. § 1441(a). It is not 7 enough, however, that the court have subject-matter jurisdiction 8 at the time of removal—the court must retain its authority to 9 adjudicate the case until it issues a final judgment. See 28 10 U.S.C. § 1447(c). Indeed, a federal district court must remand a 11 case to state court “[i]f at any time before final judgment it 12 appears that the [court] lacks subject matter jurisdiction.” Id. 13 A party may raise objections to a federal court’s subject- 14 matter jurisdiction “at any time.” Henderson ex rel. Henderson v. 15 Shinseki, 562 U.S. 428, 434-35(2011). Moreover, “federal courts 16 have an independent obligation to ensure that they do not exceed 17 the scope of their jurisdiction.” Id. at 434. The party claiming 18 federal jurisdiction bears the burden of proving, by a 19 preponderance of the evidence, the basis of the federal court’s 20 jurisdiction. Cohn v. Petsmart, Inc., 281 F.3d 837, 839 (9th Cir. 21 2002). 22 B. Analysis 23 Gilberg argues this Court does not have subject-matter 24 jurisdiction because she lacks standing to bring her FCRA claim. 25 As an initial matter, CheckSmart’s opposition makes much of the 26 fact that Gilberg has litigated this case for four years without 27 raising doubts about her standing to litigate in federal court. 28 See Opp’n 1-7. The timing of Gilberg’s objections, of course, has 1 no bearing on this Court’s analysis. See Henderson, 562 U.S. at 2 434-35. The caselaw means what it says when it states a party 3 may, at any time, challenge subject-matter jurisdiction. Id. 4 Standing doctrine arises out of Article III’s “case or 5 controversy” requirement. Mot. at 4-5. Spokeo, Inc. v. Robins, 6 136 S. Ct. 1540, 1547 (2016). It is well-established that the 7 “irreducible constitutional minimum of standing consists of three 8 elements.” Id. (internal quotations omitted). A plaintiff must 9 have (1) suffered an injury in fact, (2) that is fairly traceable 10 to the conduct challenged, and (3) that is likely to be redressed 11 by a favorable judicial decision. Id. (citing Lujan v. Defenders 12 of Wildlife, 504 U.S. 555, 550-61 (1992)). 13 Gilberg specifically contends she has not suffered an injury 14 in fact. Mot. at 4-5. To adequately allege injury in fact, a 15 plaintiff must “show that [she] suffered an invasion of a legally 16 protected interest that is concrete and particularized.” Spokeo, 17 136 S. Ct. at 1547 (internal quotations omitted). An injury is 18 particularized when it “affect[s] the plaintiff in a personal and 19 individual way.” Id. To be concrete, an injury “must actually 20 exist” – that is, it must be “real, and not abstract.” Id. 21 (citing Black’s Law Dictionary 479 (9th ed. 2009); Webster’s Third 22 New International dictionary 472 (1971); Random House Dictionary 23 of English Language 305 (1967)). Notably, an injury can be “real” 24 even though it is intangible. Id. at 1549. Courts look to “both 25 history and the judgment of Congress” when assessing whether an 26 intangible harm is sufficiently concrete. Id. 27 In Spokeo, the Supreme Court considered the intangible harm 28 caused by a violation of the FCRA’s procedural requirements. Id. 1 at 1545-46. Spokeo declined to set forth extensive brightline 2 rules on which procedural violations give rise to concrete 3 injuries. Rather, it recognized that determining when a 4 procedural violation bears a sufficiently “close relationship to a 5 harm that has traditionally been regarded as providing a basis for 6 a lawsuit” depends upon the circumstances surrounding the 7 violation. Id. at 1549-50. Since Spokeo, the Ninth Circuit has 8 likewise adopted a case-by-case approach to deciding when a 9 procedural violation of the FCRA constitutes an injury in fact. 10 See Robins v. Spokeo, Inc., 867 F.3d 1108, 1116-17 (9th Cir. 11 2017); Syed v. M-I, LLC, 853 F.3d 492, 499-500 (9th Cir. 2017). 12 This Court proceeds in tow. 13 On the facts of this case, Gilberg has standing to adjudicate 14 her FCRA claims in federal court. The Court finds it is bound by 15 the case that Gilberg leaves unaddressed: Syed v. M-I, LLC, 853 16 F.3d 492 (9th Cir. 2017). In Syed, the plaintiff sued his former 17 employer for violating the FCRA’s stand-alone document 18 requirement. Id. at 497-98 (citing 15 U.S.C. § 1681b(b)(2)).
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 DESIREE GILBERG, on behalf of ) Case No. 2:15-CV-02309-JAM-AC herself and others similarly ) 13 situated, ) ) 14 Plaintiff, ) ORDER DENYING PLAINTIFF’S ) MOTION TO REMAND 15 v. ) ) 16 CHECKSMART FINANCIAL, LLC, a ) Delaware limited liability ) 17 company, ) ) 18 Defendant. ) 19 In July 2015, Desiree Gilberg filed a suit against California 20 Check Cashing Stores, Inc. and CheckSmart Financial, LLC 21 (“CheckSmart”) in Los Angeles Superior Court. She alleged 22 violations of the federal Fair Credit Reporting Act (“FCRA”), 23 California’s Consumer Credit Reporting Agencies Act (“CCRAA”), and 24 the Investigative Consumer Reporting Agencies Act (“ICRAA”). 25 Notice of Removal, ECF No. 1-3. Defendants timely removed the case 26 to the Central District of California, invoking the court’s federal 27 question jurisdiction. Id. Ultimately, the parties transferred the 28 case to this Court. ECF No. 25. 1 In May 2017, Defendants filed a joint motion for summary 2 judgment. ECF No. 49. At the hearing, Plaintiff conceded her 3 second and fourth causes of action. Tr. of June 6, 2016 4 Proceedings (“Tr.”) 5:20-22, ECF No. 67. The Court granted 5 Defendants’ motion for summary judgment on the conceded claims and 6 on the disputed claims. Tr. 19:24-20:4. On appeal, the Ninth 7 Circuit held the Court properly granted summary judgment on 8 Gilberg’s second and fourth causes of action against CheckSmart and 9 on all of Gilberg’s claims against California Check Cashing Stores. 10 Memorandum of USCA, ECF No. 69. However, the Ninth Circuit found 11 this Court erred in granting summary judgment against Gilberg’s 12 claims that CheckSmart violated the stand-alone document 13 requirement under both federal and state law. Id. It vacated this 14 Court’s ruling accordingly. Id. 15 Gilberg now requests the Court remand her case to state court, 16 arguing she lacks standing to bring her FCRA claim in federal 17 court. Mot. to Remand (“Mot.”), ECF No. 71. CheckSmart filed an 18 opposition to Gilberg’s motion. Opp’n, ECF No. 75. Gilberg 19 replied. Reply, ECF No. 78. For the reasons discussed below, the 20 Court DENIES Gilberg’s motion.1 21 22 I. BACKGROUND 23 The parties are well-versed in the factual underpinnings of 24 this case. The Court need not reproduce a statement of the 25 allegations at issue here. 26 ///
27 1 This motion was determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 1 II. OPINION 2 A. Legal Standard 3 Generally, when a United States district court has original 4 jurisdiction over a case, defendants may remove civil actions 5 filed in state court to the district court “embracing the place 6 where [the suit] is pending.” 28 U.S.C. § 1441(a). It is not 7 enough, however, that the court have subject-matter jurisdiction 8 at the time of removal—the court must retain its authority to 9 adjudicate the case until it issues a final judgment. See 28 10 U.S.C. § 1447(c). Indeed, a federal district court must remand a 11 case to state court “[i]f at any time before final judgment it 12 appears that the [court] lacks subject matter jurisdiction.” Id. 13 A party may raise objections to a federal court’s subject- 14 matter jurisdiction “at any time.” Henderson ex rel. Henderson v. 15 Shinseki, 562 U.S. 428, 434-35(2011). Moreover, “federal courts 16 have an independent obligation to ensure that they do not exceed 17 the scope of their jurisdiction.” Id. at 434. The party claiming 18 federal jurisdiction bears the burden of proving, by a 19 preponderance of the evidence, the basis of the federal court’s 20 jurisdiction. Cohn v. Petsmart, Inc., 281 F.3d 837, 839 (9th Cir. 21 2002). 22 B. Analysis 23 Gilberg argues this Court does not have subject-matter 24 jurisdiction because she lacks standing to bring her FCRA claim. 25 As an initial matter, CheckSmart’s opposition makes much of the 26 fact that Gilberg has litigated this case for four years without 27 raising doubts about her standing to litigate in federal court. 28 See Opp’n 1-7. The timing of Gilberg’s objections, of course, has 1 no bearing on this Court’s analysis. See Henderson, 562 U.S. at 2 434-35. The caselaw means what it says when it states a party 3 may, at any time, challenge subject-matter jurisdiction. Id. 4 Standing doctrine arises out of Article III’s “case or 5 controversy” requirement. Mot. at 4-5. Spokeo, Inc. v. Robins, 6 136 S. Ct. 1540, 1547 (2016). It is well-established that the 7 “irreducible constitutional minimum of standing consists of three 8 elements.” Id. (internal quotations omitted). A plaintiff must 9 have (1) suffered an injury in fact, (2) that is fairly traceable 10 to the conduct challenged, and (3) that is likely to be redressed 11 by a favorable judicial decision. Id. (citing Lujan v. Defenders 12 of Wildlife, 504 U.S. 555, 550-61 (1992)). 13 Gilberg specifically contends she has not suffered an injury 14 in fact. Mot. at 4-5. To adequately allege injury in fact, a 15 plaintiff must “show that [she] suffered an invasion of a legally 16 protected interest that is concrete and particularized.” Spokeo, 17 136 S. Ct. at 1547 (internal quotations omitted). An injury is 18 particularized when it “affect[s] the plaintiff in a personal and 19 individual way.” Id. To be concrete, an injury “must actually 20 exist” – that is, it must be “real, and not abstract.” Id. 21 (citing Black’s Law Dictionary 479 (9th ed. 2009); Webster’s Third 22 New International dictionary 472 (1971); Random House Dictionary 23 of English Language 305 (1967)). Notably, an injury can be “real” 24 even though it is intangible. Id. at 1549. Courts look to “both 25 history and the judgment of Congress” when assessing whether an 26 intangible harm is sufficiently concrete. Id. 27 In Spokeo, the Supreme Court considered the intangible harm 28 caused by a violation of the FCRA’s procedural requirements. Id. 1 at 1545-46. Spokeo declined to set forth extensive brightline 2 rules on which procedural violations give rise to concrete 3 injuries. Rather, it recognized that determining when a 4 procedural violation bears a sufficiently “close relationship to a 5 harm that has traditionally been regarded as providing a basis for 6 a lawsuit” depends upon the circumstances surrounding the 7 violation. Id. at 1549-50. Since Spokeo, the Ninth Circuit has 8 likewise adopted a case-by-case approach to deciding when a 9 procedural violation of the FCRA constitutes an injury in fact. 10 See Robins v. Spokeo, Inc., 867 F.3d 1108, 1116-17 (9th Cir. 11 2017); Syed v. M-I, LLC, 853 F.3d 492, 499-500 (9th Cir. 2017). 12 This Court proceeds in tow. 13 On the facts of this case, Gilberg has standing to adjudicate 14 her FCRA claims in federal court. The Court finds it is bound by 15 the case that Gilberg leaves unaddressed: Syed v. M-I, LLC, 853 16 F.3d 492 (9th Cir. 2017). In Syed, the plaintiff sued his former 17 employer for violating the FCRA’s stand-alone document 18 requirement. Id. at 497-98 (citing 15 U.S.C. § 1681b(b)(2)). 19 Section 1681b(b)(2)(A)(i) provides that before a consumer report 20 may be procured for employment purposes, the person procuring it 21 or causing it to be procured must make a “clear and conspicuous” 22 disclosure to the consumer in a written document “that consists 23 solely of the disclosure.” Syed argued that his employer violated 24 this procedural requirement by including a liability waiver in its 25 disclosure. Syed, 853 F.3d at 499-500. Before resolving the 26 merits, the Ninth Circuit addressed whether the plaintiff suffered 27 an injury in fact. Id. In doing so, the Court of Appeals found 28 that the two subsections of Section 1681b(b)(2)(A) work in tandem 1 to create a right to information and a right to privacy. Id. at 2 499. It also found that when a defendant violates Section 3 1681b(b)(2)(A)’s procedural requirements in a way that deprives 4 consumers of their ability to “meaningfully authorize” consumer 5 reports, that violation results in an injury that is “real” and 6 “concrete.” See id. Applying these principles to Syed, the Ninth 7 Circuit held that the allegations “indicate[d] that Syed was not 8 aware that he was . . . authorizing the credit check when he 9 signed it.” Id. Indeed, drawing reasonable inferences in favor 10 of the nonmoving party, the Court inferred that “Syed was 11 confused . . . and would not have signed [the Pre-employment 12 Disclosure Release] had it contained a sufficiently clear 13 disclosure, as required by the [FCRA].” Id. at 499-500. 14 Until her most-recent motion, Gilberg, like Syed, maintained 15 that CheckSmart’s noncompliance with Section 1681b(b)(2)(A) 16 prevented her from understanding the company’s disclosure and 17 authorization form. As CheckSmart argues, Gilberg testified in 18 her deposition that (1) “she may not have understood that a credit 19 check could be performed” when she signed the release; (2) she 20 “fe[lt] like [her] personal life ha[d] been violated without [her] 21 knowledge”; and (3) she would not have signed the release when she 22 did had she understood that she was authorizing Defendant to 23 obtain a background report. See Opp’n at 9-10 (citing Exh. 1 to 24 Snider Decl. (“Plf. Depo.”) 20:24, 20:3, 23:1-4, ECF No. 75-1). 25 Gilberg does not refute the similarities between this case 26 and Syed identified in CheckSmart’s opposition. Rather, she 27 suggests the Court should disregard her deposition testimony 28 because a plaintiff cannot concede standing or otherwise waive 1 subject-matter jurisdiction. Reply at 3. To be sure, no party 2 may waive Article III’s requirements as a matter of law. But this 3 reality does not grant parties carte blanche to renege on 4 representations that once served as the factual basis for the 5 Court’s jurisdiction. Gilberg’s deposition testimony is not 6 tantamount to a conclusively-binding judicial admission. See Snapp 7 v. United Transportation Union, 889 F.3d 1088, 1104 (9th Cir. 8 2018). But it is nonetheless evidence that aids CheckSmart in 9 satisfying its burden of proof at this stage. See id. 10 The cases Gilberg cites in support of remand either predate 11 or meaningfully differ from Syed. See Mot. at 4-5 (citing inter 12 alia Williams v. Nichols Demos, Inc., No. 5:17-cv-07101-EJD, 2018 13 WL 3046507 (N.D. Cal. 2018); Lee v. Hertz Corp., No. 15-cv-04562- 14 BLF, 2016 WL 7034060 (N.D. Cal. Dec. 2, 2016); Larroque v. First 15 Advantage LNS Screening Sols, Inc., No. 15-cv-04684-JSC, 2016 WL 16 4577257 (N.D. Cal. Jan. 4, 2016)). In Williams, for example, the 17 Northern District of California remanded an FCRA claim to state 18 court after finding the plaintiff failed to allege injury in fact. 19 2018 WL 3046507, at *5. In arriving at that decision, however, 20 the Court specifically distinguished the plaintiff’s allegations 21 from those in Syed, finding she had neither alleged that “she was 22 ‘confused’ by the disclosure” nor that “she would not have signed 23 the authorization had it been presented separately from the 24 waiver.” Id. Indeed, the harm in Williams embodied the very type 25 of “procedural violation divorced from a concrete harm” that 26 Spokeo disavowed. See Spokeo, 136 S. Ct. at 1549. The 27 concreteness of Gilberg’s injury, on the other hand, is supported 28 by her own deposition testimony. With this evidence in mind, the —e——e EE EI IIE IIE SII EEN IE Ime EE EE EID II ES
1 |/Court finds CheckSmart proved by a preponderance of the evidence 2 |ithat Gilberg has standing to sue. It therefore DENIES Gilberg’s 3 |J/motion to remand. 4 5 Til. ORDER 6 For the reasons set forth above, the Court DENIES Gilberg’s 7 |[motion to remand. 8 IT IS SO ORDERED. 9 1}Dated: December 11, 2019 10 kA 1 teiren staves odermacr 7008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28