J. Berrellez v. Pontoon Solutions, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2019
• Docket: 16-56844
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

J. ROBERT BERRELLEZ, on behalf of No. 16-56844 himself, all others similarly situated, D.C. No. Plaintiff-Appellant, 2:15-cv-01898-CAS-FFM

v. MEMORANDUM* PONTOON SOLUTIONS, INC., a Delaware corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Argued and Submitted October 12, 2018 Pasadena, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON,** District Judge.

J. Robert Berrellez appeals the district court’s grant of summary judgment to

various Defendants. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. The district court properly found that Berrellez lacked Article III standing to

proceed against Defendants. In order to establish standing, Berrellez must satisfy

three elements: “First, the plaintiff must have suffered an injury in fact . . . .

Second, there must be a causal connection between the injury and the conduct

complained of—the injury has to be fairly traceable to the challenged action of the

defendant, and not the result of the independent action of some third party not

before the court. Third, it must be likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife,

504 U.S. 555, 560–61 (1992) (internal citations and punctuation omitted). Here,

Berrellez failed to meet the second element.

Berrellez alleged violations of credit reporting laws1 based on the language

in the “Background Authorization and Release” form (“Rose Release Form”)

provided by Defendant Rose International Inc. However, Berrellez did not sign the

Rose Release Form, and Rose did not procure any documents based on the form.

Instead, Berrellez offered evidence that Defendant Bank of America, N.A.

(“BANA”) procured background checks. Berrellez signed two forms authorizing

BANA’s background checks, namely a Consent Form Standard Package and an

1 Berrellez brought putative class claims under the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681b(2)(A), 1681d(a); California Consumer Credit Reporting Agencies Act (CCRAA), Cal. Civ. Code § 1785 et seq.; and the California Investigative Consumer Reporting Agencies Act (ICRAA), Cal. Civ. Code § 1786 et seq.

2 Authorization Form for Consumer Reports. Because Berrellez’s injury of

allegedly unlawfully-procured background checks is not fairly traceable to the

Rose Release Form, and his amended complaint did not allege any violation as to

the BANA forms, Berrellez failed to show causation between his injury and the

Defendants’ conduct. He therefore lacks standing.

Berrellez did not request leave to amend his complaint to challenge the

BANA forms. “[S]ummary judgment is not a procedural second chance to flesh

out inadequate pleadings.” Wasco Prod., Inc. v. Southwall Tech., Inc., 435 F.3d

989, 992 (9th Cir. 2006) (quoting Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24

(1st Cir. 1990)). The district court therefore did not err in failing to sua sponte

grant leave to amend. See 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665–

66 (9th Cir. 1999). Because the district court properly granted summary judgment

to Defendants based on Berrellez’s lack of standing, we need not address the

remaining issues raised on appeal.

AFFIRMED.