United States District Court, N.D. California
For Harold Meyer, Phyllis Meyer, Plaintiffs: Andrew J. Ogilvie, LEAD ATTORNEY, Andrew J. Ogilvie, Anderson, Ogilvie & Brewer, San Francisco, CA; Carol McLean Brewer, LEAD ATTORNEY, Anderson, Ogilvie & Brewer LLP, San Francisco, CA; David A. Searles, LEAD ATTORNEY, Francis & Mailman, Philadelphia, PA; Erin Amanda Novak, LEAD ATTORNEY, Philadelphia, PA; James A. Francis, John Soumilas, LEAD ATTORNEYS, Francis and Mailman, P.C., Philadelphia, PA.
For National Tenant Network, Inc., Defendant: Pamela Madeliene Ferguson, LEAD ATTORNEY, Lewis Brisbois Bisgaard & Smith LLP, San Francisco, CA; Shahram Nassi, Lewis Brisbois Bisgaard & Smith, San Francisco, CA.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE.
In this Fair Credit Reporting Act (" FCRA" ) case, Plaintiffs Harold and Phyllis Meyer bring suit against Defendant National Tenant Network, Inc. following the revelation of an inaccurate consumer report that informed Plaintiffs' prospective employer and landlord that Plaintiff Harold Meyer was a violent sex offender. Now pending before the Court is Defendant's motion to dismiss Plaintiffs' First Amended Complaint (" FAC" ). (Dkt. No. 21.) After carefully considering the parties' submissions, and having had the benefit of oral argument on January 16, 2014, the motion is GRANTED in part and DENIED in part.
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
In September 2012, Plaintiffs sought to work, and live, at Shorewood RV Park (" Shorewood" ). Plaintiffs were subsequently hired as assistant resident managers, pending a background check. Shorewood purchased consumer reports concerning Plaintiffs from Defendant, which " were at least in part for employment purposes." (Dkt. No. 18 ¶ 30.)
Plaintiff Harold Meyer's consumer report inaccurately reported three criminal sex offense records, which were listed as: " VIOLENT SEX OFFENDER FAIL TO REGISTER; " " SEXUAL BATTERY; " and " AGGRAVATED ORAL SEXUAL BATTERY." ( Id. at ¶ 33.) Plaintiff is not a sex offender. These inaccuracies appear to be caused by Defendant mixing Plaintiff Harold Charles Meyer's consumer report with that of Charles Otis Meyer and several other individuals with similar names.
Plaintiffs were denied employment and residence at Shorewood. " Plaintiffs were specifically told that a substantial factor for the denial, and the reason they would not be able to work or live at Shorewood, was that Mr. Meyer was identified as a 'pedophile' in the NTN background check." ( Id. at ¶ 40.)
Plaintiffs called Defendant and orally requested copies of their files in late September or early October 2012, soon after they were denied by Shorewood. Plaintiffs separately requested their files from Defendant in early December 2012. " Defendant never provided Plaintiffs with copies of their files in response to any of these requests." (Dkt. No. 18 ¶ 41.)
Later in December 2012, Plaintiffs' attorney made a written request for their files from Defendant. In response, Defendant included two pages of Mr. Meyer's background report and informed Plaintiffs that " [t]o access the actual credit report the applicant may go directly to Experian at http://www.experian.com/." ( Id. at ¶ 43.) The response, however, included no information about the sex offender criminal records or the credit history records that Defendant had earlier furnished to Shorewood.
Plaintiffs turned to Shorewood in an attempt to get copies of the inaccurate consumer report. Shorewood, however, denied Plaintiffs' request, stating that Plaintiffs had executed a standard Applicant Screening Authorization Form, required by Defendant, that prohibited
Shorewood from providing the background reports to Plaintiffs.
Nonetheless, " upon further inquiry by their attorney," Plaintiffs were eventually provided a copy of their background reports from Sherwood, though Plaintiffs " never received complete copies of their consumer files or reports from [Defendant]." ( Id. at ¶ 48.)
A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A facial plausibility standard is not a " probability requirement" but mandates " more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations and citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court " accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). " [D]ismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotations and ...