1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAKE JORDAN, Case No. 21-cv-01338-HSG
8 Plaintiff, ORDER GRANTING MOTION TO REMAND AND DENYING MOTION 9 v. TO DISMISS
10 VICEROY HOTEL MANAGEMENT, Re: Dkt. Nos. 13, 14 LLC, et al., 11 Defendants. 12 13 Plaintiff Jake Jordan brought suit against Defendants Viceroy Hotel Management, LLC, 14 Viceroy Hotels, LLC, and VHG Beverly Hills, LLC (collectively “Defendants”) in San Francisco 15 County Superior Court. Dkt. No. 1-2 (“Compl.”). Plaintiff alleges violations of the Fair Credit 16 Reporting Act (“FCRA”). Id. at ¶¶ 26–60. Defendants removed the action to federal court based 17 on federal question jurisdiction. See Dkt. No. 1. Pending before the Court are Plaintiff’s motion 18 to remand, see Dkt. Nos. 13 (“Mot.”), (“Opp.”), (“Reply”), and Defendants’ amended motion to 19 dismiss, see Dkt. Nos. 14, 20, 25. After carefully considering the parties’ arguments, the Court 20 GRANTS Plaintiff’s motion to remand and DENIES Defendants’ motion to dismiss as moot.1 21 I. LEGAL STANDARD 22 A defendant may remove any civil action to federal court where the district court would 23 have original jurisdiction over the action. 28 U.S.C. § 1441; see also Caterpillar, Inc. v. Williams, 24 482 U.S. 386, 392 (1987). To do so, a party seeking removal must file a notice of removal within 25 30 days of receiving the initial pleading or within 30 days of receiving “an amended pleading, 26 motion, order or other paper from which it may first be ascertained that the case is one which is or 27 1 has become removable.” 28 U.S.C. § 1446(b)(1), (b)(3). The notice must contain a “short and 2 plain statement of the grounds for removal.” Id. § 1446(a); see also Ibarra v. Manheim Invs., Inc., 3 775 F.3d 1193, 1197 (9th Cir. 2015). 4 The removing party bears the burden of establishing removal jurisdiction. Abrego Abrego 5 v. The Dow Chem. Co., 443 F.3d 676, 683–85 (9th Cir. 2006); see also Gaus v. Miles, Inc., 980 6 F.2d 564, 566 (9th Cir. 1992) (noting that there is a “ ‘strong presumption’ against removal 7 jurisdiction,” and the removing party “always has the burden of establishing that removal is 8 proper”). A plaintiff may seek to remand a case to the state court from which it was removed if 9 the district court lacks jurisdiction or if there was a defect in the removal procedure. 28 U.S.C. 10 § 1447(c). “[F]ederal jurisdiction must be rejected if there is any doubt as to the right of removal 11 in the first instance.” Gaus, 980 F.2d at 566. 12 II. DISCUSSION 13 Plaintiff argues that the Court lacks jurisdiction because he alleges only procedural 14 violations of the FCRA and does not assert that he suffered any concrete injury as required to 15 establish Article III standing. See Mot. at 3–6; Reply at 3–8. Before filing its amended motion to 16 dismiss, Defendants initially moved to dismiss on the ground that Plaintiff lacked standing, 17 contending that Plaintiff “allege[d] bare procedural violations” and alleged no “facts to 18 demonstrate the existence of his concrete and particularized injury, let alone how the injury 19 affected him in a personal and individual way.” Dkt. No. 6-1 at 8. Reversing course entirely, 20 Defendants now argue that “Plaintiff plead sufficient facts” to make “an injury-in-fact at least 21 plausible.” Opp. at 2. 22 Article III of the Constitution limits federal jurisdiction to “cases and controversies.” See 23 Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). Standing is an essential element for a court 24 to have federal subject matter jurisdiction over a “case or controversy.” Id. To establish Article 25 III standing, a plaintiff must have: “(1) suffered an injury in fact, (2) that is fairly traceable to the 26 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial 27 decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “To establish injury in fact, a 1 ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 2 1548 (quoting Lujan, 504 U.S. at 560). Although one of the FCRA’s purposes is to “decrease 3 th[e] risk” of reporting false information, “a violation of one of the FCRA’s procedural 4 requirements may result in no harm.” Id. at 1550. Generally, a plaintiff cannot satisfy the injury 5 in fact requirement with a bare allegation of a procedural violation of the FCRA. See id. at 1549– 6 50. 7 The Court finds that Plaintiff has not alleged any concrete injury. Plaintiff alleges that 8 Defendants violated the FCRA by failing to provide (1) proper disclosure in violation of 9 § 1681b(b)(2)(A); and (2) a summary of rights notice in violation of §§ 1681d(a)(1) and 1681g(c). 10 Compl. at ¶¶ 26–60. Defendants contend that Plaintiff plausibly alleges an “informational injury” 11 based on the failure to provide proper disclosures, and points to references to the invasion of 12 “privacy and statutory rights.” See, e.g., Compl. at ¶¶ 44, 58. This Court, among others, has 13 found “such unexplained passing references insufficient to serve as the sort of concrete and 14 particularized harm necessary for Article III standing.” See, e.g., Mansapit v. Deluxe Corp., No. 15 19-CV-00790-HSG, 2019 WL 2423423, at *1 (N.D. Cal. June 10, 2019). 16 Defendants rely heavily on Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017), to argue that 17 the alleged violations support a plausible concrete injury to Plaintiff’s right to privacy and 18 information. Opp. at 10–11. But unlike Plaintiff, the Syed plaintiff alleged that he “discovered 19 [defendant’s] violation(s) within the last two years when he obtained and reviewed his personnel 20 file from [defendant] and discovered that [defendant] had procured and/or caused to be procured a 21 ‘consumer report’ regarding him for employment purposes based on the illegal disclosure and 22 authorization form.” Syed, 853 F.3d at 499. The Syed court found this allegation “sufficient to 23 infer that [plaintiff] was deprived of the right to information and the right to privacy guaranteed by 24 Section 1681b(b)(2)(A)(I)–(ii) because it indicates that [plaintiff] was not aware that he was 25 signing a waiver authorizing the credit check when he signed it.” Id. It held that it could “fairly 26 infer that [plaintiff] was confused by the inclusion of the liability waiver with the disclosure and 27 would not have signed it had it contained a sufficiently clear disclosure.” Id. at 499–500. 1 Plaintiff was confused. See Goto v. Whelan Sec. of California, Inc., No. 20-CV-01114-HSG, 2020 2 || WL 4590596, at *3 (N.D. Cal. Aug. 11, 2020) (distinguishing Syed because the plaintiff made no 3 allegations of confusion or “anything about his state of mind at all”). Plaintiff also makes no 4 allegations of late discovery, error, or other harm from the alleged violations which might give rise 5 to standing. See Mansapit, 2019 WL 2423423, at *1. And the Court does not change its 6 || conclusion based on Defendants’ reliance on Plaintiff's general request for various forms of relief. 7 || See Compl. at 12 (“Prayer for Relief”).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAKE JORDAN, Case No. 21-cv-01338-HSG
8 Plaintiff, ORDER GRANTING MOTION TO REMAND AND DENYING MOTION 9 v. TO DISMISS
10 VICEROY HOTEL MANAGEMENT, Re: Dkt. Nos. 13, 14 LLC, et al., 11 Defendants. 12 13 Plaintiff Jake Jordan brought suit against Defendants Viceroy Hotel Management, LLC, 14 Viceroy Hotels, LLC, and VHG Beverly Hills, LLC (collectively “Defendants”) in San Francisco 15 County Superior Court. Dkt. No. 1-2 (“Compl.”). Plaintiff alleges violations of the Fair Credit 16 Reporting Act (“FCRA”). Id. at ¶¶ 26–60. Defendants removed the action to federal court based 17 on federal question jurisdiction. See Dkt. No. 1. Pending before the Court are Plaintiff’s motion 18 to remand, see Dkt. Nos. 13 (“Mot.”), (“Opp.”), (“Reply”), and Defendants’ amended motion to 19 dismiss, see Dkt. Nos. 14, 20, 25. After carefully considering the parties’ arguments, the Court 20 GRANTS Plaintiff’s motion to remand and DENIES Defendants’ motion to dismiss as moot.1 21 I. LEGAL STANDARD 22 A defendant may remove any civil action to federal court where the district court would 23 have original jurisdiction over the action. 28 U.S.C. § 1441; see also Caterpillar, Inc. v. Williams, 24 482 U.S. 386, 392 (1987). To do so, a party seeking removal must file a notice of removal within 25 30 days of receiving the initial pleading or within 30 days of receiving “an amended pleading, 26 motion, order or other paper from which it may first be ascertained that the case is one which is or 27 1 has become removable.” 28 U.S.C. § 1446(b)(1), (b)(3). The notice must contain a “short and 2 plain statement of the grounds for removal.” Id. § 1446(a); see also Ibarra v. Manheim Invs., Inc., 3 775 F.3d 1193, 1197 (9th Cir. 2015). 4 The removing party bears the burden of establishing removal jurisdiction. Abrego Abrego 5 v. The Dow Chem. Co., 443 F.3d 676, 683–85 (9th Cir. 2006); see also Gaus v. Miles, Inc., 980 6 F.2d 564, 566 (9th Cir. 1992) (noting that there is a “ ‘strong presumption’ against removal 7 jurisdiction,” and the removing party “always has the burden of establishing that removal is 8 proper”). A plaintiff may seek to remand a case to the state court from which it was removed if 9 the district court lacks jurisdiction or if there was a defect in the removal procedure. 28 U.S.C. 10 § 1447(c). “[F]ederal jurisdiction must be rejected if there is any doubt as to the right of removal 11 in the first instance.” Gaus, 980 F.2d at 566. 12 II. DISCUSSION 13 Plaintiff argues that the Court lacks jurisdiction because he alleges only procedural 14 violations of the FCRA and does not assert that he suffered any concrete injury as required to 15 establish Article III standing. See Mot. at 3–6; Reply at 3–8. Before filing its amended motion to 16 dismiss, Defendants initially moved to dismiss on the ground that Plaintiff lacked standing, 17 contending that Plaintiff “allege[d] bare procedural violations” and alleged no “facts to 18 demonstrate the existence of his concrete and particularized injury, let alone how the injury 19 affected him in a personal and individual way.” Dkt. No. 6-1 at 8. Reversing course entirely, 20 Defendants now argue that “Plaintiff plead sufficient facts” to make “an injury-in-fact at least 21 plausible.” Opp. at 2. 22 Article III of the Constitution limits federal jurisdiction to “cases and controversies.” See 23 Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). Standing is an essential element for a court 24 to have federal subject matter jurisdiction over a “case or controversy.” Id. To establish Article 25 III standing, a plaintiff must have: “(1) suffered an injury in fact, (2) that is fairly traceable to the 26 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial 27 decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “To establish injury in fact, a 1 ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 2 1548 (quoting Lujan, 504 U.S. at 560). Although one of the FCRA’s purposes is to “decrease 3 th[e] risk” of reporting false information, “a violation of one of the FCRA’s procedural 4 requirements may result in no harm.” Id. at 1550. Generally, a plaintiff cannot satisfy the injury 5 in fact requirement with a bare allegation of a procedural violation of the FCRA. See id. at 1549– 6 50. 7 The Court finds that Plaintiff has not alleged any concrete injury. Plaintiff alleges that 8 Defendants violated the FCRA by failing to provide (1) proper disclosure in violation of 9 § 1681b(b)(2)(A); and (2) a summary of rights notice in violation of §§ 1681d(a)(1) and 1681g(c). 10 Compl. at ¶¶ 26–60. Defendants contend that Plaintiff plausibly alleges an “informational injury” 11 based on the failure to provide proper disclosures, and points to references to the invasion of 12 “privacy and statutory rights.” See, e.g., Compl. at ¶¶ 44, 58. This Court, among others, has 13 found “such unexplained passing references insufficient to serve as the sort of concrete and 14 particularized harm necessary for Article III standing.” See, e.g., Mansapit v. Deluxe Corp., No. 15 19-CV-00790-HSG, 2019 WL 2423423, at *1 (N.D. Cal. June 10, 2019). 16 Defendants rely heavily on Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017), to argue that 17 the alleged violations support a plausible concrete injury to Plaintiff’s right to privacy and 18 information. Opp. at 10–11. But unlike Plaintiff, the Syed plaintiff alleged that he “discovered 19 [defendant’s] violation(s) within the last two years when he obtained and reviewed his personnel 20 file from [defendant] and discovered that [defendant] had procured and/or caused to be procured a 21 ‘consumer report’ regarding him for employment purposes based on the illegal disclosure and 22 authorization form.” Syed, 853 F.3d at 499. The Syed court found this allegation “sufficient to 23 infer that [plaintiff] was deprived of the right to information and the right to privacy guaranteed by 24 Section 1681b(b)(2)(A)(I)–(ii) because it indicates that [plaintiff] was not aware that he was 25 signing a waiver authorizing the credit check when he signed it.” Id. It held that it could “fairly 26 infer that [plaintiff] was confused by the inclusion of the liability waiver with the disclosure and 27 would not have signed it had it contained a sufficiently clear disclosure.” Id. at 499–500. 1 Plaintiff was confused. See Goto v. Whelan Sec. of California, Inc., No. 20-CV-01114-HSG, 2020 2 || WL 4590596, at *3 (N.D. Cal. Aug. 11, 2020) (distinguishing Syed because the plaintiff made no 3 allegations of confusion or “anything about his state of mind at all”). Plaintiff also makes no 4 allegations of late discovery, error, or other harm from the alleged violations which might give rise 5 to standing. See Mansapit, 2019 WL 2423423, at *1. And the Court does not change its 6 || conclusion based on Defendants’ reliance on Plaintiff's general request for various forms of relief. 7 || See Compl. at 12 (“Prayer for Relief”). The complaint effectively limits its allegations to the 8 facial legality of the required disclosure and summary of rights employers are required to provide 9 || in the application process. Because Plaintiff alleges procedural violations that resulted in no 10 || concrete harm, he does not have Article III standing and the Court lacks jurisdiction over his 11 claims. 12 Lastly, Defendants contend that remand would be futile because Plaintiff’s claims are 13 time-barred. Opp. at 11. Defendants rely on Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir. 14 1991), for the proposition that the Court may dismiss a removed case without remanding it back to 3 15 state court if remand would be “futile.” Importantly, “the Bell rule has been questioned, and may a 16 || no longer be good law.” Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1197 (9th Cir. 2016).
17 And in any event, the Court cannot say that there is an “‘absolute certainty’ that a state court 18 would ‘simply dismiss[ ] the action on remand.’ ” /d. (citation omitted). Accordingly, the Court 19 || GRANTS Plaintiffs motion to remand. 20 || I. CONCLUSION 21 Because the Court lacks jurisdiction, the Court GRANTS Plaintiff's motion to remand and 22 || DENIES Defendants’ motion to dismiss as moot. The Clerk is DIRECTED to remand this case 23 to the San Francisco County Superior Court and close the file. 24 25 IT IS SO ORDERED. 26 || Dated: 6/11/2021 27 Alaupued 3 sbl_|p HAYWOOD S. GILLIAM, JR. 28 United States District Judge