Glorianne Mendoza v. ALDI Inc. ( 2019 )

O 1 JS-6 2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 GLORIANNE MENDOZA, et al. Case № 2:19-cv-06870-ODW (JEMx) 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. REMAND [8] and 14 ALDI INC., et al. DENYING MOTION TO DISMISS 15 Defendants. AS MOOT [25] 16 17 I. INTRODUCTION 18 Pending before the Court is Plaintiff Glorianne Mendoza’s motion to remand 19 for lack of subject matter jurisdiction (“Motion”). (Mot. to Remand (“Mot.”), ECF 20 No. 8.) For the reasons discussed below, the Court GRANTS the Motion.1 21 II. BACKGROUND 22 Mendoza was employed with Defendants ALDI INC. and AI CALIFORNIA 23 LLC (collectively “Defendants”) from approximately February 2016 to March 2019. 24 (First Am. Compl. (“FAC”) ¶ 21, ECF No. 15.) When Mendoza applied for 25 employment, Defendants performed a background investigation on her using legally 26 noncompliant disclosure and authorization forms. (FAC ¶¶ 22–23, 31, 34.) 27 28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 Mendoza initiated this putative class action against Defendants in the Superior 2 Court of California, County of Los Angeles. (See Notice of Removal (“Removal”) 3 Ex. A (“Compl.”), ECF No. 1-1.) Mendoza asserts a single cause of action for 4 violation of the Fair Credit Reporting Act (“FCRA”), specifically 15 U.S.C. 5 § 1681b(b)(2)(A). (First Am. Compl. (“FAC”) ¶¶ 24–43.2) Mendoza alleges that 6 Defendants violated the FCRA by using legally noncompliant disclosure and 7 authorization forms. (See FAC ¶¶ 31–34.) 8 Defendants removed the action to this Court on the basis of federal question 9 jurisdiction over Mendoza’s FCRA claim. (See Removal ¶ 6.) Mendoza now moves 10 to remand for lack of Article III standing and subject matter jurisdiction. (Mot. 2.) 11 III. LEGAL STANDARD 12 Federal courts have subject matter jurisdiction only as authorized by the 13 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 14 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court 15 may be removed to federal court only if the federal court would have had original 16 jurisdiction over the suit. 28 U.S.C. § 1441(a). The removal statute is strictly 17 construed against removal, and “[f]ederal jurisdiction must be rejected if there is any 18 doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 19 564, 566 (9th Cir. 1992). The party seeking removal bears the burden of establishing 20 federal jurisdiction. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th 21 Cir. 2006). “If at any time before final judgment it appears that the district court lacks 22 subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 23 IV. DISCUSSION 24 Mendoza moves for remand on the basis that her allegations of a bare 25 procedural violation are insufficient for Article III standing, which requires concrete 26 27 28 2 Mendoza asserted the same cause of action and supporting allegations in her initial Complaint. (See Compl. ¶¶ 23–44.) 1 harm. (Mot. 2–4.) Defendants oppose and urge the Court to infer concrete harm. 2 (See Opp’n to Mot. (“Opp’n”) 2, 6–8, ECF No. 14.) 3 “Standing to sue is a doctrine rooted in the traditional understanding of a case 4 or controversy.” Nayab v. Capital One Bank (USA), N.A., 942 F.3d 480, 489 (9th Cir. 5 2019) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016)). The 6 “irreducible constitutional minimum” of standing requires that: (1) the plaintiff has 7 suffered an injury in fact, i.e., “an invasion of a legally protected interest that is 8 concrete and particularized and actual or imminent, not conjectural or hypothetical”; 9 (2) the injury is “fairly traceable to the challenged conduct of the defendant”; and 10 (3) the injury is “likely to be redressed by a favorable judicial decision.” Spokeo, 136 11 S. Ct. at 1547 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)) 12 (internal quotation marks omitted). “A plaintiff who alleges a ‘bare procedural 13 violation’ of the FCRA, ‘divorced from any concrete harm,’ fails to satisfy Article 14 III’s injury-in-fact requirement.” Syed v. M-I, LLC, 853 F.3d 492, 499 (9th Cir. 2017) 15 (quoting Spokeo, 136 S. Ct. at 1549). 16 The Ninth Circuit squarely addressed this issue in Syed. 853 F.3d at 499. 17 There, Syed alleged a violation of the same FCRA provision as Mendoza does here, 18 Section 1681b(b)(2)(A). Id. That section creates “a right to information by requiring 19 prospective employers to inform job applicants that they intend to procure their 20 consumer reports as part of the employment application process.” Id. It also “creates 21 a right to privacy by enabling applicants to withhold permission . . . and a concrete 22 injury when applicants are deprived of their ability to meaningfully authorize the 23 credit check.” Id. Syed alleged that he discovered the defendant had procured a 24 consumer report on him only after he obtained and reviewed his personnel file. Id. 25 From this allegation, the court inferred that Syed was not aware at the time that he was 26 signing an authorization for a credit check, and that he was confused or would have 27 declined to authorize the report had it been FCRA-compliant. Id. at 499–500. On the 28 1 basis of that confusion and lack of awareness, the court found that Syed had alleged a 2 concrete injury sufficient for Article III standing. Id. at 500. 3 In contrast, Mendoza alleges that Defendants used a disclosure and 4 authorization form that is legally non-compliant because it includes additional matter 5 beyond the disclosure. (FAC ¶¶ 31, 34.) She does not allege subsequent discovery, 6 confusion from the form, or that she would not have signed the authorization had it 7 been presented in a FCRA-compliant format. (See generally FAC.) Under Syed, 8 Mendoza’s allegations fail to reach beyond a bare procedural violation of the FCRA 9 and thus do not satisfy Article III standing. See Arzaga v. MemorialCare Med. Grp., 10 No. 2:19-CV-00889-SVW (AGRx), 2019 WL 1557446, at *1 (C.D. Cal. Apr. 10, 11 2019) (discussing that Syed requires “an allegation of some kind of discovery of the 12 violation, or other confusion or lack of awareness regarding the forms being signed” 13 to allow the inference of more than a barebones procedural violation); see also Nayab, 14 942 F.3d at 490–91 (discussing Syed and distinguishing violation of a substantive 15 FCRA provision from a bare procedural violation). 16 Defendants urge the Court to infer Mendoza’s confusion because, “[a]lthough 17 [Mendoza] does not say so in her Complaint,” she discovered the reports after the fact 18 by reviewing her personnel file. (Opp’n 7–8.) Yet Defendants only bolster 19 Mendoza’s point: Mendoza does not allege such a subsequent discovery. Nor can it 20 be inferred that she was confused or would not have signed the authorization had it 21 been FCRA-compliant. Further, the mere “reference to invaded ‘privacy and statutory 22 rights’ [is] insufficient to describe a concrete and particularized harm.” Moore v. 23 United Parcel Serv., Inc., No. 18-CV-07600-VC, 2019 WL 2172706, at *1 (N.D. Cal. 24 May 13, 2019). 25 Mendoza’s allegations constitute a bare procedural violation of the FCRA and 26 do not amount to concrete harm sufficient for Article III standing. See Spokeo, 136 S. 27 Ct. at 1549; Williams v. Nichols Demos, Inc., No. 5:17-cv-07101-EJD, 2018 WL 28 3046507, at *4–5 (N.D. Cal. June 20, 2018) (collecting cases) (finding the plaintiff’s FCRA claim for non-compliant disclosure was deficient to establish Article II standing under Syed and Spokeo because the plaintiffs allegations lacked any 3 | indication of confusion or lack of awareness regarding the forms). In the absence of a 4} concrete injury, Defendants have not met their heavy burden on removal to show that 5 | Mendoza has Article III standing. Consequently, the Court must remand. 6 Defendants argue the Court must dismiss rather than remand because remand 7 would be futile. (Opp’n 9-10 (citing Bell v. City of Kellogg, 922 F.2d 1418, 1424 (9th 8} Cir. 1991)).) However, “the literal words of [28 U.S.C.] § 1447(c) ... on their face, 9 | give no discretion to dismiss rather than remand an action.” Polo v. Innoventions 10 || Int], LLC, 833 F.3d 1193, 1198 (9th Cir. 2016) (quoting Int’/ Primate Prot. League v. 11 | Admin. of Tulane Educ. Fund, 500 U.S. 72, 88-89 (1991)). Further, as Defendants 12 || acknowledge, the futility doctrine on which they rely has been questioned, see id., and 13 | even if it remains good law, it does not apply here: “[t]he constraints of Article III do 14] not apply to state courts,” so remand would not necessarily be futile. ASARCO Inc. v. 15 | Kadish, 490 U.S. 605, 617 (1989). 16 V. CONCLUSION 17 For the reasons discussed above, the Court GRANTS Mendoza’s Motion to Remand (ECF No. 8) and REMANDS this action to the Superior Court, County of 19 | Los Angeles, Case No. 19STCV21190, 111 North Hill Street, Los Angeles, California 20} 90012. Defendants’ Motion to Dismiss is DENIED AS MOOT. (ECF No. 25.) The 21 | Clerk of the Court shall close the case. 22 23 IT IS SO ORDERED. 24 25 December 27, 2019 26 , we 3g OTIS D. WRIG HT, I UNITED STATES DISTRICT JUDGE