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Miletak v. General Information Services, Inc.

United States District Court, N.D. California, San Jose Division

May 2, 2018

NICK MILETAK, Plaintiff,
v.
GENERAL INFORMATION SERVICES, INC., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT WITH LEAVE TO AMEND, Re: Dkt., No. 36

          HOWARD R. LLOYD United States Magistrate Judge

         Pro se plaintiff Nick Miletak sues for alleged credit reporting violations under federal and state law, as well as for defamation/libel, and intentional infliction of emotional distress. According to the complaint, defendant General Information Solutions, LLC (GIS)[1] prepared two background reports about plaintiff in connection with his potential employment with Geico and Jet Blue. The complaint alleges that the two reports contained a total of five inaccuracies:

• A report prepared around June 13, 2017 for Geico reportedly contained three errors: (1) “incorrectly indicates Plaintiff[‘s] graduation date as 9/2011 (actual 10/2011)”; (2) “incorrectly reported reason for leaving Sanmina employment as ‘blank' (actual Laid off)”; and (3) “incorrectly states Plaintiff[‘s] employment dates with AT&T as 8/2/1999 to 4/6/2013 (actual 05/09/2008 to 4/6/2013).” (Dkt. 1, Complaint ¶ 16).
• A report prepared around October 11, 2017 for Jet Blue allegedly contained two errors: (1) “incorrectly indicates Plaintiff[‘s] [position] with Sanmina in the capacity of ‘Associate' (actual Program Administrator and verified in the previous Geico report)”; and (2) “[i]ncorrectly reported that Plaintiff[‘s] previous working capacity with AT&T as ‘Data not provided' (actual Supply Service Attendant and verified in the previous Geico report.” (Id. ¶ 17).

         The complaint goes on to allege that on November 29, 2017, Stephanie Morgan (GIS's Deputy General Counsel) replied to an email plaintiff sent to Jet Blue. Morgan's email reportedly was sent to both plaintiff and Frank Ayala (Jet Blue's Human Resources Manager) and “contained an accusation of criminal extortion committed by the Plaintiff against both GIS and Jet Blue.” (Complaint ¶ 18). Morgan's email allegedly also stated: “Frank: feel free to call me to discuss if you'd like.” (Id.). Miletak claims that the alleged accusation of extortion was made even though the reports prepared by GIS showed that he had no criminal history. (Id.).

         Based on these allegations, the complaint asserts five claims for relief: (1) violation of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681e(b); (2) violation of FCRA § 1681(b)(3); (3) violation of California Investigative Consumer Reporting Agency Act (ICRAA), Cal. Civ. Code § 1786.10-1786.40, et seq.; (4) defamation of character-libel; and (5) intentional infliction of emotional distress.

         Following the entry of GIS's default earlier this year, the court denied plaintiffs motion for default judgment and granted GIS's motion to set aside the default.

         Pursuant to Fed.R.Civ.P. 12(b)(1), GIS now moves to dismiss the FCRA claims for lack of subject matter jurisdiction, arguing that plaintiff has not sufficiently alleged his standing to pursue those claims. Defendant also moves to dismiss all claims under Fed.R.Civ.P. 12(b)(6) on the ground that the complaint fails to state a claim for relief. Plaintiff opposes the motion. However, in his opposition, he acknowledges that three of the five alleged errors in the subject reports are negligible and not patently inaccurate or materially misleading.[2]

         That leaves Miletak's allegations that the report for Geico indicated that his employment with AT&T was about 10 years longer than it actually was and that the report for Jet Blue said that his position with Sanmina was “Associate, ” rather than “Program Administrator.”

         All parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by the undersigned. 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. Upon consideration of the moving and responding papers, [3] as well as the oral arguments presented, the court grants defendant's Fed.R.Civ.P. 12(b)(1) motion to dismiss and does not reach GIS's Fed.R.Civ.P. 12(b)(6) motion.

         DISCUSSION

         The complaint alleges that GIS violated two provisions of the FCRA. Claim 1 is for alleged violation of FCRA § 1681e(b), which provides: “Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” Claim 2 is for alleged violation of FRCA § 1681b(b)(3), which sets conditions on the use of a consumer report and provides, in relevant part:

in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall ...

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