Answer Unlimited Fee AppliesCal. Super. - 6th Dist.May 10, 2018HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 John V. Picone III (State Bar No. 187226) C. Gideon Korrell (State Bar No. 284890) HOPKINS & CARLEY A Law Corporation The Letitia Building 70 South First Street San Jose, CA 95113-2406 mailing address: P.O. Box 1469 San Jose, CA 95109-1469 Telephone: (408) 286-9800 Facsimile: (408) 998-4790 John G. Papianou (pro hac vice motion forthcoming) jpapianou@mmwr.com Erin A. Novak (pro hac vice motion forthcoming) enovak@mmwr.com MONTGOMERY, MCCRACKEN, WALKER & RHOADS, LLP 1735 Market Street Philadelphia, PA 19103 Telephone: (215) 772-7510 Facsimile: (215) 772-7620 Attorneys for Defendant GENERAL INFORMATION SOLUTIONS LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA NICK MILETAK, Plaintiff, v. GENERAL INFORMATION SERVICES, INC., GENERAL INFORMATION SOLUTIONS LLC, Defendants. CASE NO. 18CV327962 DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S1 ANSWER TO PLAINTIFF’S COMPLAINT Judge: Hon. Theodore Zayner Action Filed: May 10, 2018 Trial Date: None 1 Plaintiff’s Complaint names Defendants “General Information Services, Inc.” and “General Information Solutions LLC.” In January 2017, General Information Services, Inc. underwent a corporate conversion and is now known as General Information Solutions LLC. General Information Services, Inc. is no longer an active corporate entity, thus, this answer is made on behalf of General Information Solutions LLC. Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/15/2018 3:02 PM Reviewed By: A. Hwang Case #18CV327962 Envelope: 1630145 18CV327962 Santa Clara - Civil A. Hwang HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant General Information Solutions LLC (“GIS”), by and through legal counsel of record generally denies all allegations of Plaintiff’s Complaint, unless specified otherwise as set forth below: I. NATURE OF THE ACTION 1. It is specifically denied that GIS engages in “widespread and systemic non- compliance with [sic] them California Civil Code § 1786.10-1786.40 et seq. Investigative Consumer Reporting Agencies Act (hereinafter “ICRAA”).” It is also denied that GIS violated ICRAA section 1786.20(b) (the only section of the ICRAA under which Plaintiff makes a claim). It is further denied that GIS made a “deliberately false accusation of extortion” against Plaintiff in an email to Plaintiff’s prospective employer. 2. It is specifically denied that GIS provided “two inaccurate reports to two employers.” GIS accurately reported the information it received from Plaintiff’s prior employers and educational institutions.2 It is also specifically denied that any of the information reported by GIS was inaccurate, especially in light of Plaintiff’s concessions in his prior litigation - about the same alleged inaccuracies - that three of the five “inaccuracies” were not patently inaccurate or materially misleading. (Attached hereto as Exhibit A, is a true and correct copy of Miletak v. General Information Services, Inc., No. 5:17-cv-07022-HRL, Northern District of California, San Jose Division, Dk. No. 45, Order Granting Motion to Dismiss, at pp. 2-3).3 It is further denied 2 Plaintiff alleges the report prepared for GEICO contained the following inaccurate information: “(i). incorrectly indicates Plaintiffs graduation date as 9/2011 (actual 10/2011). (ii). Incorrectly reported reason for leaving Sanmina employment as ‘blank’ (actual Laid off). (iii). Incorrectly states Plaintiffs employment dates with AT&T as 8/2/1999 to 4/6/2013 (actual 05/09/2008 to 4/6/2013).” (Plaintiff’s Complaint at ¶ 21). Plaintiff alleges the report prepared for Jet Blue: “(i). incorrectly indicates Plaintiffs with Sanmina in the capacity of ‘Associate’ (actual Program Administrator) (ii). Incorrectly reported that Plaintiffs’ previous working capacity with AT&T as ‘Data not provided’ (actual Supply Service Attendant.)” (Plaintiff’s Complaint at ¶ 22). 3 Not to be confused with Plaintiff’s other prior lawsuits. Nick Miletak v. AT&T Services, Inc., 15-cv-17017 (9th Cir. Oct. 8, 2015); Nick Miletak v. Bank Of America, 5:06-cv-06660 (N.D. Ca. Oct 26, 2006); Miletak v. Harrah's Entertainment, Inc., 5:07-cv-04398 (N.D. Ca. Aug. 27, 2007); Miletak v. Adecco Employment Services, Inc. et al. 5:09-cv-00957 (N.D. Ca. March 6, 2009); Miletak v. Santa Clara County Sheriff's Department California, 5:04-cv- 02667 (N.D. Ca. July 2, 2004); Miletak v. AT&T Services, Inc., 3:12-cv-05326 (N.D. Ca. Oct. 16, 2012); Miletak v. Communication Workers of America (CWA), et al. 3:13-cv-04865 (N.D. Ca. Oct. 18, 2013); Miletak v. Avis Budget Group, Inc., 5:15-cv-00070 (N.D. Ca. Jan. 7, 2015); Miletak v. Sterling Infosystems, Inc., 5:15-cv-04181 (N.D. Ca. Sept. 11, 2015); Miletak v. AT&T Services, Inc., 3:17-cv-00767 (N.D. Ca. Feb. 16, 2017); Miletak v. Compass Airlines LLC, et al, 3:17-cv-05052 (N.D. Ca. Aug. 30, 2017); Miletak v. Davi, No. H033753, 2009 WL 4023677 (Cal. Ct. App. Nov. 23, 2009); Miletak v. TaskRabbit, Inc., No. 16-CV-2929281 (Cal. Super. Ct. Mar. 21, 2016); and Miletak v. Postmates, Inc., No. 16-cv-291543 (Santa Clara County, Superior Court). HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 2 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that GIS “failed to follow reasonable procedures” or that it is legally required to “compare the two reports.” In fact, Cal. Civ. Code 1786.30 specifically prohibits GIS from including adverse information in a report that had been previously reported unless that information has been verified within the previous three months. Thus, if this information is adverse, as Plaintiff alleges, GIS was required to re-verify it, not simply carry it over from a previous report. 3. Admitted in part, denied in part. It is only admitted that an email was sent by GIS on November 29, 2017, to a representative of Jet Blue. GIS denies all remaining allegations of paragraph 3 of the Plaintiff’s Complaint, including allegations that Plaintiff was defamed or accused of the “criminal act of extortion.” 4. Denied. It is also specifically denied that the Consent Order has anything to do with Plaintiff’s allegations that GIS reported inaccurate information about his employment history (i.e. an allegedly incorrect start date of employment and an incorrect job title). Indeed, the Consent Order deals exclusively with the reporting of public records on background reports and the implementation of policies to ensure compliance with the Federal Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (“FCRA”). It has nothing to do with employment records, which are the sole basis of Plaintiff’s inaccuracy claim in this matter and nothing to do with the ICRAA, the sole “credit reporting” claim at issue. See In the Matter of General Information Services, Inc., No. 2015-CFPB-0028 (October 29, 2015). 5. Plaintiff’s allegations related to the ICRAA are denied, as they seek in part, to summarize and/or characterize its terms, which speak for themselves. It is also denied that GIS engaged in any “unlawful practices that appear to place its business interests about the rights of the consumer.” 6. Plaintiff’s allegations as they relate to the ICRAA are denied, as they seek in part, to summarize and/or characterize its terms, which speak for themselves. II. JURISDICTION 7. GIS denies that any response is required to paragraph 7. / / / / / / HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 3 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. GIS denies that any response is required to paragraph 8. However, to the extent a response is required, GIS denies that is “has sufficient minimum contacts in California, or otherwise intentionally avails itself of the California market” or that such a standard is appropriate for conferring jurisdiction. III. VENUE 9. GIS denies that any response is required to paragraph 9. However, to the extent a response is required, GIS denies that it “reside(s), transacts business, or [has] offices in this county” or that such a standard is appropriate for determining proper venue. IV. PARTIES 10. GIS lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 10 and they are therefore denied. 11. GIS denies that any response is required to paragraph 11. However, to the extent a response is required, it is denied that GIS is a corporation, it is denied that GIS is incorporated and it is denied that GIS was incorporated in Delaware. 12. GIS denies that any response is required to paragraph 12. However, to the extent a response is required; it is denied that GIS is a corporation, it is denied that GIS is incorporated and it is denied that GIS was incorporated in Delaware. V. STATEMENT OF FACTS 13. Admitted, however, there are no claims under the FCRA at issue here. 14. Admitted in part, denied in part. It is admitted that “GIS enters into contracts with various vendors and companies” to conduct its business. GIS denies all remaining allegations of paragraph 14 of the Plaintiff’s Complaint. 15. Denied. 16. Plaintiff’s allegations as they relate to the ICRAA are denied, as they seek in part, to summarize and/or characterize its terms, which speak for themselves. By way of further response, Plaintiff does not allege that GIS reported any public records about him, inaccurate or otherwise. / / / HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 4 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. Plaintiff’s allegations as they relate to the ICRAA are denied, as they seek in part, to summarize and/or characterize its terms, which speak for themselves. By way of further response, Plaintiff does not allege that GIS reported any public records about him, inaccurate or otherwise. 18. GIS lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 18, and they are therefore denied. The URL cited by Plaintiff is inactive. 19. Denied. Plaintiff does not allege that GIS sold a report that contained any public records or criminal information pertaining to him or any other individual. 20. Admitted in part, denied in part. It is admitted that Plaintiff sent GIS at least nine (9) emails and made numerous calls to GIS in 2017 alleging that GIS used an impermissibly small font in its consumer disclosures. It is denied that the emails were “made to prepare for good faith litigation,” as GIS sent Plaintiff evidence that it had not used an impermissibly small font for its consumer disclosures and, nonetheless, Plaintiff demanded $10,000 from GIS for the resolution of the matter on three occasions. GIS denies all remaining allegations of paragraph 20 of the Plaintiff’s Complaint. 21. Admitted in part, denied in part. GIS admits that it prepared a consumer report about Plaintiff on or around June 13, 2017 for GEICO. GIS denies all remaining allegations of paragraph 21 of the Plaintiff’s Complaint. 22. Admitted in part, denied in part. GIS admits that it prepared a consumer report about Plaintiff on or around October 30, 2017 for Jet Blue. GIS denies all remaining allegations of paragraph 22 of the Plaintiff’s Complaint. 23. Admitted in part, denied in part. It is admitted that Plaintiff sent GIS at least nine (9) emails and made numerous calls to GIS in 2017 alleging that GIS used an impermissibly small font in its consumer disclosures and demanded $10,000 from GIS for the resolution of the matter. GIS denies all remaining allegations of paragraph 23 of the Plaintiff’s Complaint, as they seek in part, to summarize and/or characterize the email’s terms, which speak for themselves. / / / HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 5 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. Denied. GIS did not violate any section of the ICRAA and sent Plaintiff evidence that it had not used an impermissibly small font for its consumer disclosures. 25. Denied. GIS did not violate any section of the ICRAA and sent Plaintiff evidence that it had not used an impermissibly small font for its consumer disclosures. GIS lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 25, and they are therefore denied. 26. Admitted in part, denied in part. GIS admits that it received an email on November 13, 2017 from Plaintiff. GIS denies all remaining allegations of paragraph 26 of the Plaintiff’s Complaint, as they seek in part, to summarize and/or characterize the email’s terms, which speak for themselves. 27. Admitted in part, denied in part. GIS admits that it received an email on November 29, 2017 from Plaintiff. GIS denies all remaining allegations of paragraph 27 of the Plaintiff’s Complaint, as they seek in part, to summarize and/or characterize the email’s terms, which speak for themselves. 28. Admitted in part, denied in part. GIS admits that it sent an email to Plaintiff on November 29, 2017. GIS specifically denies that it made a “false accusation of criminal extortion.” GIS further denies all remaining allegations of paragraph 28 of the Plaintiff’s Complaint, as they seek in part, to summarize and/or characterize the email’s terms, which speak for themselves. 29. Denied. GIS did not falsely accuse Plaintiff of criminal extortion. It is further denied that Plaintiff has abated his monetary demands. 30. Denied. GIS did not falsely accuse Plaintiff of criminal extortion. It is further denied that any correspondence from GIS made it “impossible for him to work for Jet Blue in any capacity.” In fact, Mr. Miletak was offered, and accepted, an Airport Operations Crew PT position in January 2018. GIS denies all remaining allegations of paragraph 30 of the Plaintiff’s Complaint. 31. Denied. / / / HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 6 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAUSES OF ACTION COUNT 1 CALIFORNIA CIVIL CODE § 1786.20(b) 32. GIS incorporates the foregoing averments as if fully set forth herein. 33. Denied as a conclusion of law to which no response is required. 34. Denied as a conclusion of law to which no response is required. 35. Denied as a conclusion of law to which no response is required. 36. Denied as a conclusion of law to which no response is required. 37. Denied as a conclusion of law to which no response is required. 38. Denied. 39. Denied as a conclusion of law to which no response is required. WHEREFORE GIS demands judgment in its favor on Count I of the Complaint, and specifically responds to Plaintiff’s prayer: A. Denied. B. Denied. C. Denied. D. Denied. E. Denied. COUNT II DEFAMATION OF CHARACTER - LIBEL 40. GIS incorporates the foregoing averments as if fully set forth herein. 41. Denied as a conclusion of law to which no response is required. 42. Denied as a conclusion of law to which no response is required. 43. Denied as a conclusion of law to which no response is required. 44. Denied as a conclusion of law to which no response is required. 45. Denied as a conclusion of law to which no response is required. / / / / / / HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 7 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46. Denied. 47. Denied. 48. Denied as a conclusion of law to which no response is required. 49. Denied as a conclusion of law to which no response is required. WHEREFORE GIS demands judgment in its favor on Count II of the Complaint, and specifically responds to Plaintiff’s prayer: A. Denied. B. Denied. C. Denied. D. Denied. E. Denied. COUNT III INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) 50. GIS incorporates the foregoing averments as if fully set forth herein. 51. Denied as a conclusion of law to which no response is required. 52. Denied as a conclusion of law to which no response is required. 53. Denied as a conclusion of law to which no response is required. 54. Denied. 55. Denied. 56. Denied as a conclusion of law to which no response is required. 57. Denied as a conclusion of law to which no response is required. WHEREFORE GIS demands judgment in its favor on Count III of the Complaint, and specifically responds to Plaintiff’s prayer: A. Denied. B. Denied. C. Denied. / / / / / / HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 8 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Denied. E. Denied. COUNT IV INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE (“IIPEA”) 58. GIS incorporates the foregoing averments as if fully set forth herein. 59. Denied as a conclusion of law to which no response is required. 60. Denied as a conclusion of law to which no response is required. 61. Denied as a conclusion of law to which no response is required. 62. Denied. 63. Denied. The URL cited by Plaintiff cannot be accessed. 64. Denied. 65. It is denied that Plaintiff is entitled to recover lost wages - or any damages - as a result of his failure to mitigate his damages and get a job. All other allegations of paragraph 65 of Plaintiff’s Complaint are denied. 66. It is denied that Plaintiff is entitled to recover lost wages - or any damages - as a result of his failure to mitigate his damages and get a job. All other allegations of paragraph 66 of Plaintiff’s Complaint are denied. WHEREFORE GIS demands judgment in its favor on Count IV of the Complaint, and specifically responds to Plaintiff’s prayer: A. Denied. B. Denied. C. Denied. D. Denied. E. Denied. / / / / / / / / / / / / HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 9 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE AND OTHER DEFENSES GIS asserts the following affirmative and other defenses to Plaintiff’s Complaint. GIS reserves the right to assert additional defenses that become available or apparent during the discovery period, as well as its right to amend its Answer. 1. Plaintiff’s ICRAA claim is barred to the extent that GIS acted without negligence, without recklessness, and without willful intent to injure Plaintiff. 2. Plaintiff’s claims are barred to the extent that GIS does not owe Plaintiff a duty of care. 3. Plaintiff’s claims are barred to the extent that GIS’s actions or omissions did not cause, proximately or otherwise, the injury or damages Plaintiff alleges to have suffered. 4. Plaintiff’s claims are barred to the extent that Plaintiff has suffered no actual damages, and an award of statutory and/or punitive damages to him would violate GIS’s due process rights as they are disproportionate to the harm alleged and suffered. 5. Plaintiff’s claims are barred to the extent that he failed to mitigate his alleged damages. 6. Plaintiff’s claims are barred to the extent that GIS acted at all times in accordance with the ICRAA. 7. Plaintiff’s claims are barred to the extent that the injuries and damages he sustained, if any, are the direct result of the contributory or comparative negligence of Plaintiff, and as such, any recovery upon the claims asserted by the Plaintiff are barred or proportionately reduced pursuant to Plaintiff’s contributory or comparative negligence. 8. Plaintiff’s claims are barred to the extent that GIS’s conduct was based upon a mistake of fact or law. 9. Plaintiff’s defamation claim is barred to the extent that the alleged defamatory statement was not false. 10. Plaintiff’s defamation claim is barred to the extent that the alleged defamatory statement was opinion. / / / HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 10 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. Plaintiff’s defamation claim is barred to the extent that the alleged defamatory statement was privileged. 12. Plaintiff’s defamation claim is barred to the extent that the alleged defamatory statement was not as a result of intentional publication of a false fact. 13. Plaintiff’s defamation claim is barred to the extent that the alleged defamatory statement did not have a natural tendency to injure or cause special damages. 14. Plaintiff’s IIED claim is barred to the extent that the alleged conduct by GIS was not outrageous. 15. Plaintiff’s IIED claim is barred to the extent that GIS did not intend to cause emotional distress. 16. Plaintiff’s IIED claim is barred to the extent that GIS’s conduct was not in reckless disregard of the probability of causing emotional distress. 17. Plaintiff’s IIED claim is barred to the extent that GIS’s conduct did not cause Plaintiff severe emotional suffering. 18. Plaintiff’s IIED claim is barred to the extent that GIS’s conduct was not the actual or proximate cause of Plaintiff’s purported emotional distress. 19. Plaintiff’s claims are barred to the extent that GIS’s conduct was not malicious. 20. Plaintiff’s IIPEA claim is barred to the extent that Plaintiff did not have an economic relationship with Jet Blue. 21. Plaintiff’s IIPEA claim is barred to the extent that Plaintiff did not have an economic relationship with Jet Blue that had some probability of future economic benefit to Plaintiff. 22. Plaintiff’s IIPEA claim is barred to the extent that GIS did not act intentionally to disrupt Plaintiff’s purported relationship with Jet Blue or GEICO. / / / / / / / / / / / / HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 - 11 - DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23. Plaintiff’s IIPEA claim is barred to the extent that GIS’s alleged actions did not actually disrupt Plaintiff’s purported relationship with Jet Blue or GEICO. 24. Plaintiff’s IIPEA claim is barred to the extent that GIS’s alleged actions did not proximately cause Plaintiff any economic harm. Respectfully submitted, Dated: June 15, 2018 HOPKINS & CARLEY A Law Corporation By: John V. Picone III Attorneys for Defendant GENERAL INFORMATION SOLUTIONS LLC EXHIBIT A United States District Coun Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:17-cv-07022-HRL Document 45 Filed 05/02/18 Page l of 6 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NICK MILETAK, Case No.5:17-cv-07022-HRL Plaintiff, ORDER GRANTING DEFENDANT’S V' MOTION TO DISMISS COMPLAINT WITH LEAVE TO AMEND GENERAL INFORMATION SERVICES, INC, Re: Dkt. No. 36 Defendant. 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 (GlS)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: n A report prepared around June 13, 2017 for Geico reportedly contained three errors: (1) “incorrectly indicates Plaintiffl‘s] graduation date as 9/2011 (actual 10/201 1)”; (2) “incorrectly reported reason for leaving Sanmina employment as ‘blank’ (actual Laid off)”; and (3) “incorrectly states Plaintiff[‘s] employment dates l Although named in the complaint as “General Information Services, Inc.,” GIS says that entity is no longer active and that the company is now General Information Solutions, LLC. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U n it ed S ta te s D is tr ic t C o u rt N o rt h er n D is tr ic t o f C al if o rn ia 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 plaintiff’s 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 Case 5:17-cv-07022-HRL Document 45 Filed 05/02/18 Page 2 of 6 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U n it ed S ta te s D is tr ic t C o u rt N o rt h er n D is tr ic t o f C al if o rn ia 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 provide to the consumer to whom the report relates-- 2 Those three alleged errors include the following two in the Geico report: (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 the following alleged error in the Jet Blue report: “[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.” 3 Plaintiff’s opposition papers were filed 9 days late. That filing deadline is not extended for service by mail. Civ. L.R. 7-3(a) (“Fed. R. Civ. P. 6(d), which extends deadlines that are tied to service (as opposed to filing), does not apply and thus does not extend this deadline.”). Also, for the second time in these proceedings, Miletak filed an unauthorized sur-reply, without seeking leave of court---despite this court’s prior admonition against filing such documents. (Dkt. 34 at 2, n.2). Plaintiff’s pro se status does not excuse him from complying with rules and court orders that all litigants are expected to follow. The court has read plaintiff’s papers submitted in connection with the present motion, but does not condone his tardy and unauthorized filings and again warns him against future non-compliance. Case 5:17-cv-07022-HRL Document 45 Filed 05/02/18 Page 3 of 6 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U n it ed S ta te s D is tr ic t C o u rt N o rt h er n D is tr ic t o f C al if o rn ia (i) a copy of the report; and (ii) a description in writing of the rights of the consumer under this subchapter . . .. 15 U.S.C. § 1681b(b)(3)(A). Miletak claims that GIS failed to follow reasonable procedures to assure maximum possible accuracy of the reported information and that an adverse action notification in a November 16, 2017 letter from GIS failed to comply with the FCRA. Pursuant to Fed. R. Civ. P. 12(b)(1), GIS moves to dismiss the FCRA claims, arguing that Miletak has no standing to pursue them. Defendant contends that the complaint is devoid of allegations of “concrete and particularized” harm that plausibly can be connected to the two remaining alleged inaccuracies, i.e., that the Geico report states that plaintiff’s employment with AT&T was about 10 years longer than it actually was, and that the Jet Blue report incorrectly indicates that plaintiff was an “Associate” with Sanmina, rather than “Program Administrator.” Under Article III of the United States Constitution, federal courts have jurisdiction to decide only actual cases or controversies, and persons have standing to sue if (1) they have suffered an “injury-in-fact” that is both “actual and imminent, not conjectural or hypothetical” and “concrete and particularized”; (2) the injury is “fairly traceable” to the defendant's conduct; and (3) a favorable decision by the court will likely redress the alleged injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560 n.1). “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Id. (citing Black’s Law Dictionary 479 (9th ed. 2009)). “When we have used the adjective ‘concrete,’ we have meant to convey the usual meaning of the term---‘real,’ and not ‘abstract.’” Id. “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. Thus, a plaintiff cannot simply “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. “‘Concrete’ is not, however, necessarily synonymous with ‘tangible.’” Id. Thus, “the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure.” Id. Case 5:17-cv-07022-HRL Document 45 Filed 05/02/18 Page 4 of 6 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U n it ed S ta te s D is tr ic t C o u rt N o rt h er n D is tr ic t o f C al if o rn ia Here, the complaint alleges that as a result of GIS’s alleged FCRA violations, plaintiff “suffered actual damages including but not limited to: loss of employment income and benefits, damage to reputation, embarrassment, humiliation and other mental, physical and emotional distress.” (Complaint ¶¶ 25, 33). At the hearing, however, Miletak acknowledged that he did not suffer harm to his hiring status and that he received a job offer from Jet Blue. Further, he stated that his damages are based on emotional distress. Although it does not concede that the reported items at issue are incorrect, GIS maintains that Miletak’s complaint alleges nothing more than de minimis violations and that his claimed emotional distress is merely conjectural, especially since plaintiff also acknowledges that the alleged error in reporting a longer period of employment with AT&T works in his favor. Miletak claims more than a procedural violation of the FCRA. He alleges that the reports GIS prepared contained items that are inaccurate. Ninth Circuit “precedent suggests that, at the very least, information that is inaccurate ‘on its face’ is ‘patently incorrect.’” Drew v. Equifax, 690 F.3d 1100, 1108 (9th Cir. 2012) (observing that the District of Columbia Circuit has “suggest[ed] that under [FCRA] § 1681e, a [consumer reporting agency] is liable for reporting information that is ‘technically untrue,’ as well as in various other circumstances.”). Additionally, plaintiff correctly notes that “[t]he FCRA permits ‘recovery for emotional distress and humiliation.’” Drew, 690 F.3d at 1109 (quoting Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995)). Nevertheless, the court finds that the complaint as currently drafted, does not contain sufficient allegations of an injury-in-fact that is more than conjectural and that is fairly traceable to GIS’s alleged conduct. Plaintiff now states that his employment with Jet Blue was delayed by two months and that he received an adverse action notification from GIS referencing that delay. He believes that the delay was due, at least in part, to the allegedly incorrect background report GIS prepared. It remains to be seen whether plaintiff will succeed in proving his allegations. But, if true, such facts may well establish injury-in-fact sufficient to confer standing. None of these assertions, however, appear in the complaint. Accordingly, GIS’s Fed. R. Civ. P. 12(b)(1) motion to dismiss the FCRA claims is granted. However, plaintiff will be given leave to amend, if he truthfully can do so consistent with Fed. R. Case 5:17-cv-07022-HRL Document 45 Filed 05/02/18 Page 5 of 6 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U n it ed S ta te s D is tr ic t C o u rt N o rt h er n D is tr ic t o f C al if o rn ia Civ. P. 11. The amended pleading presumably will not include the three alleged errors that plaintiff confirmed in writing and at the hearing that he is no longer pursuing. Because the FCRA claims are the sole asserted basis for federal subject matter jurisdiction), the court does not reach GIS’s Fed. R. Civ. P. 12(b)(6) motion or any of the remaining claims. If plaintiff chooses to amend his complaint, his amended pleading shall be filed by May 18, 2018. Leave to amend is limited to those claims pled in the complaint and consistent with the rulings above. To the extent plaintiff intends to assert new or different claims for relief or add new parties, he must make an appropriate application pursuant to Fed. R. Civ. P. 15. Failure to comply with this order may result in sanctions. SO ORDERED. Dated: May 2, 2018 HOWARD R. LLOYD United States Magistrate Judge Case 5:17-cv-07022-HRL Document 45 Filed 05/02/18 Page 6 of 6 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE PALO ALTO 614\3010388.1 PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY MAIL I am a citizen of the United States and employed in Santa Clara County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is The Letitia Building, 70 South First Street, San Jose, California 95113-2406. I am readily familiar with this firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service. On June 15, 2018, I placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document: DEFENDANT GENERAL INFORMATION SOLUTIONS LLC’S ANSWER TO PLAINTIFF’S COMPLAINT in a sealed envelope, postage fully paid, addressed as follows: Nick Miletak - In Pro Se 14745 Conway Avenue San Jose CA 95124 Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 15, 2018, at San Jose, California. Diana L. Hodges