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Banga v. Kohl's Department Stores, Inc.

United States District Court, Ninth Circuit

December 20, 2013

KAMLESH BANGA, Plaintiff,
v.
KOHL'S DEPARTMENT STORES, INC., EXPERIAN INFORMATION SOLUTIONS, INC. AND DOES 1 THROUGH 10 INCLUSIVE, Defendants.

ORDER DENYING MOTION FOR AN ORDER TO SHOW CAUSE; GRANTING MOTION TO DISMISS IN PART; AND DISMISSING PENDENT STATE LAW CLAIMS Docket 14, 29.

SAUNDRA BROWN ARMSTRONG, District Judge.

The parties are presently before the Court on Plaintiff Kamlesh Banga's ("Plaintiff") motion for an order to show cause why Defendant Kohl's Department Stores, Inc. ("Kohl's") should not be held in contempt of court and sanctioned for violating protective orders issued in the related action Banga v. Experian Information Solutions, C 08-4147-SBA. Dkt. 14. Also before the Court is Kohl's motion to dismiss the first amended complaint ("FAC") under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 29. Having read and considered the papers filed in connection with these matters and being fully informed, the Court hereby DENIES Plaintiff's motion for an order to show cause, and GRANTS IN PART Kohl's motion to dismiss. The Court DISMISSES Plaintiff's federal claim without leave to amend and declines to assert supplemental jurisdiction over Plaintiff's remaining state law claims, which are DISMISSED WITHOUT PREJUDICE to the refiling of said claims in a state court action. The Court, in its discretion, finds these matters suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

I. BACKGROUND

The instant action arises from Kohl's and Experian Information Solutions, Inc.'s ("Experian") (collectively, "Defendants") alleged violation of two protective orders issued in the related action Banga v. Experian Information Solutions, C 08-4147-SBA. See FAC, Dkt. 6. In that case, Plaintiff asserted claims for violations of the Fair Credit Reporting Act, the California Consumer Credit Reporting Agencies Act, and California's Unfair Competition Law. See C 08-4147-SBA, Dkt. 4. On May 26, 2009, the parties entered into a stipulated protective order concerning Plaintiff's deposition ("Deposition Protective Order"). FAC ¶ 8. Pursuant to this order, Plaintiff produced four of her consumer credit reports at the "outset" of her deposition. Id . ¶ 9. The order states that plaintiff's "deposition transcript and video recording shall be used only for purposes of this litigation, " and "shall only be accessed by the parties to the action and their attorneys." See Deposition Protective Order, C 08-4147-SBA, Dkt. 65. According to Plaintiff, the terms of the Deposition Protective Order required Defendants to file her consumer reports under seal during the litigation because the reports contained "detailed personal identifying information, " including her social security number, date of birth, current address, past addresses, credit card numbers, and bank account number. FAC ¶¶ 9, 22-24.

On May 27, 2009, the parties entered into a second protective order ("Protective Order"), which provided that "a Party may not file in the public record in this action any Protected material. A party that seeks to file under seal any Protected Material must comply with Civil Code Rule 79-5." FAC ¶ 10. According to Plaintiff, the terms of this order required Kohl's and Experian to file her credit reports under seal with the Court. Id.

In the instant action, Plaintiff alleges that Experian breached the terms of the protective orders by filing two of her credit reports "without seal" on July 8, 2009 in Banga v. Experian Information Solutions, C 08-4147-SBA. FAC ¶ 11. Plaintiff further alleges that on July 9, 2009 she asked Experian to remove her credit reports from the Court's docket but Experian refused, stating that Plaintiff had not designated the reports as confidential. Id.

On March 18, 2010, the Court issued an order granting summary judgment in favor of Kohl's and Experian. FAC ¶ 12. Plaintiff subsequently appealed that order. Id . On February 11, 2011, Kohl's filed an answering brief with the Ninth Circuit and "Supplemental Excerpts of Record, " which included two of Plaintiff's credit reports filed "without seal." FAC ¶ 12.

On February 28, 2011 and November 15, 2011, Plaintiff asked Kohl's to remove her credit reports from the Ninth Circuit docket but Kohl's refused to do so. FAC ¶ 13. On May 24, 2012, the Ninth Circuit issued an order affirming this Court's summary judgment order. See C 08-4147-SBA, Dkt. 325. On August 20, 2012, Plaintiff informed Defendants that her credit reports should be removed from the district court and the Ninth Circuit dockets. FAC ¶ 14. According to Plaintiff, "[b]y posting [her] credit reports without seal with the District Court and the Ninth Circuit, Defendants ha[ve] breached the [terms of the Deposition Protective Order] of May 26, 2009 and [the Protective Order] of May 27, 2009." Id . ¶ 15.

On January 18, 2013, Plaintiff commenced the instant action against Kohl's. Compl., Dkt. 1. On April 2, 2013, Plaintiff filed a FAC adding Experian as a Defendant. See FAC. The FAC alleges six claims for relief: (1) "Claim for Breach of Stipulated Protective Agreement of May 26, 2009"; (2) "Claim for Breach of Stipulated Protective Order of May 27, 2009"; (3) "Claim for Violation of California Civil Code § 1798.85"; (4) "Claim for Violation of FACTA California Civil Code § 1798.83 and § 1798.50"; (5) "California Constitution Art. 1, § 1"; and (6) "Common Law Invasion of Privacy." See id.

II. DISCUSSION

A. Motion for an Order to Show Cause

Plaintiff moves for an order to show cause why Kohl's should not be held in contempt of Court and sanctioned for "plainly and blatantly" violating the terms of the protective orders issued in the earlier related case, i.e., Banga v. Experian Information Solutions, C 08-4147-SBA. Dkt. 29. Plaintiff contends that such an order is warranted because Kohl's filed two of her consumer credit reports "without seal" in the Ninth Circuit in that case on February 11, 2011. Id . Rule Pursuant to Rule 37 of the Federal Rules of Civil Procedure, Plaintiff seeks civil contempt sanctions against Kohl's in the form of a default judgment. Id.[1]

Rule 37 grants courts the authority to impose sanctions where a party has violated a discovery order, including a protective order. See United States v. Nat'l Med. Enters., Inc. , 792 F.2d 906, 910 (9th Cir. 1986); Westinghouse Elec. v. Newman & Holtzinger, P.C. , 992 F.2d 932, 935 (9th Cir. 1993); see also On Command Video Corp. v. LodgeNet Entertainment Corp. , 976 F.Supp. 917, 921 n. 2 (N.D. Cal. 1997) (Armstrong, J.) ("A protective order is a discovery order subject to the provisions of Rule 37"). "The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the [non-moving party] violated a specific and definite order of the court." FTC v. Affordable Media, LLC , 179 F.3d 1228, 1239 (9th Cir. 1999). The contempt "need not be willful, and there is no good faith exception to the requirement of obedience to a court order." In re Dual-Deck Video Cassette Recorder Antitrust Litig. , 10 F.3d 693, 695 (9th Cir. 1993). "But a person should not be held in contempt if his action appears to be based on a good faith and reasonable interpretation of the court's order." Id . (internal formatting and quotation marks omitted). "Substantial compliance' with the court order is a defense to civil contempt, and is not vitiated by a few technical violations' where every reasonable effort has been made to comply." Id.

"The district court's authority to issue the sanctions is subject to certain limitations: (1) the sanction must be just; and (2) the sanction must specifically relate to the particular claim at issue in the order. Furthermore, a compensatory award is limited to the actual losses sustained as a result ...


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