Slade v. Empire Today, LLC

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 JEUL SLADE, Case No. 20-cv-9301-YGR

9 Plaintiff, ORDER GRANTING MOTION TO REMAND; v. DENYING RENEWED MOTION TO COMPEL 10

ARBITRATION AS MOOT; VACATING 11 EMPIRE TODAY , et al., H EARING Defendants. Dkt. No. 20, 21 12

13 Plaintiff Jeul Slade filed his motion to remand this action to state court on March 10, 2021. 14 (Dkt. No. 20.) Nine days later, defendant Empire Today, LLC filed its renewed motion to compel 15 plaintiff to arbitrate claims and to dismiss action with prejudice. (Dkt. No. 21.)1 16 Having carefully considered the papers submitted and the pleadings in this action, and for 17 the reasons set forth below, the Court GRANTS the Motion to Remand and DENIES the Renewed 18 Motion to Compel as Moot.2 19 Defendant removed this action alleging violations of the federal Fair Credit Reporting Act, 20 15 U.S:C. §§ 1681b(b)(2)(A)(i)-(ii), 1681d(a)(1) and 1681g(c), from the Superior Court of 21 California, County of Alameda on grounds of federal question jurisdiction under 28 U.S.C. section 22 1331. (Dkt. No. 1, Notice of Removal.) In an ordinary removal case, “[i]f at any time before final 23

24 1 The Court previously denied Empire’s motion to compel arbitration without prejudice and granted the parties leave to take limited discovery on the issue of contract formation based on 25 the disputed material facts appearing in the record as to plaintiff’s assent to the arbitration agreement at issue. (Dkt. No. 18.) Defendants were given leave to file a renewed motion to 26 compel as late as May 28, 2021, given the request for discovery on this issue. (Id.) 27 2 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds this motion appropriate for decision without oral argument. Accordingly, the Court 1 judgment it appears that the district court lacks subject matter jurisdiction, the case shall be 2 remanded.” 28 U.S.C. § 1447(c); see also Polo v. Innoventions International, LLC, 833 F.3d 1193 3 (9th Cir. 2016). Here, plaintiff contends that the Court lacks subject matter jurisdiction over the 4 claims in the complaint because plaintiff has not alleged an injury-in-fact sufficient to establish 5 Article III standing. To establish federal jurisdiction under Article III, the injury alleged must be 6 both “‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” 7 Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016). An FCRA claimant “cannot satisfy the 8 demands of Article III by alleging a bare procedural violation” since a violation of the statute’s 9 procedural requirements may result in no concrete harm. Id. at 1550. (“For example, even if a 10 consumer reporting agency fails to provide the required notice to a user of the agency's consumer 11 information, that information regardless may be entirely accurate. In addition, not all inaccuracies 12 cause harm or present any material risk of harm. An example that comes readily to mind is an 13 incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, 14 without more, could work any concrete harm.”) 15 Plaintiff’s complaint alleges that defendants acquired credit and background reports on 16 plaintiff and others in connection with their hiring process without providing proper disclosures or 17 obtaining proper authorization in compliance with FCRA. The complaint alleges that the 18 disclosures do not meet the statutory requirements to provide a written, standalone disclosure and 19 are embedded with extraneous information in violation of section 1681b(b)(2)(A). (See NOR Exh 20 A [“Complaint”] at ¶¶ 28-32, 34.) It further alleges that defendants did not include a statement 21 informing plaintiff of his right to request additional disclosures and a summary of his rights under 22 statute, as required by sections 1681d(a)(1) and 1681(g(c). (Id. at ¶¶ 47-56.) Further, it alleges 23 that these statutory violations caused plaintiff and others to be injured by “having their privacy and 24 statutory rights invaded in violation of the FCRA.” (Id. ¶¶ 43, 57.) 25 These allegations do not state a concrete injury beyond a bare procedural violation. 26 Moreover, plaintiff disclaims economic injury in his briefing on the motion. (See Reply at 1:13-15 27 [“Plaintiff asserts only procedural violations and does not assert that he incurred any economic or ] 11 [“Plaintiff does not assert any economic or other concrete injury.”]) Thus, plaintiffs judicial 2 || admissions make it clear that no economic injury is at issue here. 3 Defendant’s citation to the Ninth Circuit’s decision Syed is unavailing. Syed concerned 4 || allegations that went beyond a mere procedural violation of the FCRA, alleging facts giving rise to 5 an inference that plaintiff was confused by the inclusion of the liability waiver in the background 6 || check form and would not have signed it had the disclosures been clear and compliant with the 7 || statute. Syed v. M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017). As numerous courts have found, 8 || mere allegation of an “invasion of privacy and statutory rights” without more is insufficient to 9 || state a concrete, particularized harm that satisfies Article III’s requirements. See, e.g., Moore v. 10 United Parcel Serv., Inc., No. 18-CV-07600-VC, 2019 WL 2172706, at *1 (N.D. Cal. May 13, 1] 2019); Williams v. Nichols Demos, Inc., 2018 WL 3046507, at *5 (N.D. Cal. June 20, 2018). 12 || Here, as in Moore and others, the complaint’s “reference to invaded ‘privacy and statutory rights’ . 13 . . [is] insufficient to describe a concrete and particularized harm” and the complaint is “devoid of 14 || allegations of confusion, error, or other harm from the alleged violations that might give rise to 3 15 standing” Moore, 2019 WL 2172706, at *1 (N.D. Cal. May 13, 2019) (citing Williams, 2018 WL 2 16 |} 3046507 at *5). i 17 Therefore, plaintiffs motion to remand is GRANTED and the renewed motion to compel Zz 18 arbitration is DENIED AS MooT. The Clerk is directed to remand this action to the Superior Court 19 || for the State of California, County of Alameda. 20 This terminates Docket Nos. 20 and 21. 21 IT Is SO ORDERED. 22 || Dated: April 22, 2021

4 UNITED STATES DISTRICT JUDGE 25 26 27 28