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Espinosa v. Bluemercury, Inc.

United States District Court, N.D. California

March 22, 2017

BLUEMERCURY, INC., et al., Defendants.


          JON S. TIGAR United States District Judge

         Before the Court is Defendants' Motion to Dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). ECF No. 9. The Court will grant the motion in part and deny it in part.


         Plaintiff filed this purported class action on December 16, 2016, bringing claims against Bluemercury, Inc., Macy's, Inc., and Does 1-100, inclusively (collectively, “Defendants”), for violations of 15 U.S.C. §§ 1681b(b)(2)(A) (Fair Credit Reporting Act (“FCRA”)), 15 U.S.C. §§ 1681d(a)(1) and 1681g(c) (Fair Credit Reporting Act), California Civil Code § 1786 et seq. (Investigative Consumer Reporting Agencies Act), California Civil Code § 1785 et seq. (Consumer Credit Reporting Agencies Act), failure to pay hourly wages under Labor Code §§ 223, 510, 1194, 1194.2, 1197, 1997.1, and 1198, failure to provide accurate written wage statements under Labor Code § 226(a), failure to timely pay all final wages under Labor Code §§ 201-203, unfair competition under Business and Professions Code §§ 17200, et seq., and failure to pay employees for all hours worked under 29 U.S.C. § 201, et seq. ECF No. 1.

         “Plaintiff alleges that Defendants routinely acquire consumer, investigative consumer and/or consumer credit reports (‘credit and background reports') to conduct background checks on Plaintiff and other prospective, current and former employees and use information from credit and background reports in connection with their hiring process” in violation of the various statutes described above. ECF No. 1 ¶ 2. Plaintiff also alleges that “Defendants failed to pay [the purported class] the correct regular rate of pay . . . [and] the correct overtime rate of pay, failed to provide them with accurate written wage statements, and failed to timely pay them all of their final wages following separation of employment.” Id. ¶ 3. The Complaint seeks “unpaid wages, restitution, and related relief.” Id.

         “Plaintiff was employed by Defendant as an hourly, non-exempt employee working in the State of California from approximately August 2016 to September 2016.” ECF No. 1 ¶ 5. Plaintiff alleges that when she “applied for employment with Defendants, Defendants required her to fill out and sign a two page Document entitled “Employment Application.” Id. ¶ 27. “In pertinent part, ” the document stated:

I hereby authorize Bluemercury to thoroughly investigate my background, references, employment record and other matters related to my suitability for employment. I authorize persons, schools, my current employer (if applicable), and previous employers and organizations contacted by Bluemercury to provide any relevant information regarding my current and/or previous employment and I release all persons schools, employers of any and all claims for providing such information. I understand that misrepresentation or omission of facts may result in rejection of this application, or if hired, discipline up to and including dismissal. I understand that nothing contained in this application, or conveyed during any interview which may be granted, is intended to create an employment contract. I understand that filling out this form does not indicate that there is a position open and does not obligate Bluemercury to hire me. (U.S. APPLICANTS ONLY: I understand and agree that my employment is at will, which means that it is for no specific period and may be terminated by me or Bluemercury at any time without prior notice for any reason. MARYLAND APPICANTS ONLY: Under Maryland law, an employer may not require or demand, as a condition of employment, prospective employment, or continued employment, that an individual submit to or take, a lie detector or similar test. An employer who violates this law is guilty of [a] misdemeanor and is subject to a fine not exceeding $100. MASSACHUSETTS APPLICANTS ONLY: It is unlawful in Massachusetts to require or administer a lie detector test as a condition of employment or continued employment. An employer who violates this law shall be subject to criminal penalties and civil liability. CALIFORNIA APPLICANTS ONLY: Applicant may not omit any convictions for possession of marijuana (except for convictions for the possession of marijuana on school grounds or possession of concentrated cannabis) that are more than 2 years old, and any information concerning a referral to, and participation in, any pretrial or post trial diversion program.”

ECF No. 1 ¶ 28. On January 9, 2017, Defendants filed a motion to dismiss Espinosa's Complaint, which motion the Court now considers. ECF No. 9.


         Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” While a complaint need not contain detailed factual allegations, facts pleaded by a plaintiff must be “enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter that, when accepted as true, states a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While this standard is not a probability requirement, “where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). In determining whether a plaintiff has met this plausibility standard, the Court must accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

         III. DISCUSSION [1]

         Defendants argue that Espinosa's First through Fourth, Seventh, and Ninth causes of action must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, that Espinosa's complaint fails in its entirety because it is a shotgun pleading, and that Espinosa lacks standing to pursue injunctive or declaratory relief. See ECF No. 9.

         A. Espinosa's First Cause of Action

         Espinosa's First Cause of Action alleges that Defendants violated 15 U.S.C. § 1681b(b)(2)(A) by “procur[ing] or [caus[ing] to be prepared credit and background reports” without providing “a clear and conspicuous disclosure” “in a document ...

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