defendants notice to state court and adverse party of removal of civil

Cal. Super. - 1st Dist.January 5, 2021

LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 1. DEFENDANT CHECKR, INC.’S NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT 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 ROD M. FLIEGEL, Bar No. 168289 rfliegel@littler.com LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, California 94104 Telephone: 415.433.1940 Facsimile: 415.399.8490 Attorneys for Defendant CHECKR, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JOSEPH ALAN HARVILLE, as an individual, Plaintiff(s), v. CHECKR, INC., a California corporation; and JOHN DOES 1-10 inclusive, Defendant(s). Case No. CGC-20-586288 DEFENDANT CHECKR, INC.’S NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT Complaint Filed: August 21, 2020 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/30/2020 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 2. DEFENDANT CHECKR, INC.’S NOTICE TO STATE COURT AND ADVERSE PARTY OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT 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 TO THE CLERK OF THE SAN FRANCISCO COUNTY SUPERIOR COURT IN THE STATE OF CALIFORNIA, PLAINTIFF JOSEPH ALAN HARVILLE AND HIS COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on September 30, 2020, Defendant Checkr, Inc. filed a Notice of Removal of Civil Action to Federal Court pursuant to 28 U.S.C. sections 1331, 1441(a) and 1446 (“Notice of Removal”) in the United States District Court for the Northern District of California.1 A copy of the Notice of Removal as filed is attached as Exhibit 1 to this Notice. PLEASE TAKE FURTHER NOTICE that, by the filing of said Notice of Removal in the United States District Court, and by the filing of this Notice to State Court and Adverse Party of Removal, the above-entitled action has been removed from this Court to the United States District Court for the Northern District of California pursuant to 28 U.S.C. sections 1331, 1441(a) and 1446, and this Court may proceed no further unless and until the case is remanded. Dated: September 30, 2020 ROD M. FLIEGEL LITTLER MENDELSON, P.C. Attorneys for Defendant CHECKR, INC. 4815-8582-4460.1 091435.1084 1 By submitting this filing, Defendant does not concede this Court or the United States District Court for the Northern District of California has subject matter jurisdiction. Defendant reserves all arguments, objections and defenses. EXHIBIT 1 LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 1. NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANT CHECKR, INC. 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 ROD M. FLIEGEL, Bar No. 168289 rfliegel@littler.com LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, California 94104 Telephone: 415.433.1940 Facsimile: 415.399.8490 Attorneys for Defendant CHECKR, INC., UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JOSEPH ALAN HARVILLE, as an individual, Plaintiff(s), v. CHECKR, INC., a California corporation; and JOHN DOES 1-10 inclusive, Defendant(s). Case No. _________________________ NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANT CHECKR, INC. [28 U.S.C. §§ 1331, 1441 & 1446] Complaint Filed: August 21, 2020 Summons/Complaint Served: September 8, 2020 Removal from Superior Court of California, County of San Francisco, Case No. CGC-20- 586288 LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 2. NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANT CHECKR, INC. 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 TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF JOSEPH ALAN HARVILLE AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant Checkr, Inc. (“Defendant” or “Checkr”) hereby removes the above-entitled action, Case No. CGC-20-586288, from the Superior Court of the State of California, County of San Francisco, to the U.S. District Court for the Northern District of California. This Removal is based on 28 U.S.C. §§ 1331, 1441(a) and 1446. This Notice is based upon the original jurisdiction of this Court over the parties under 28 U.S.C. § 1331 and the existence of a federal question herein.1 In support of its Notice of Removal, Checkr states as follows: PLEADINGS, PROCESSES, AND ORDERS 1. On August 21, 2020, Plaintiff Joseph Alan Harville (“Plaintiff”) filed a Complaint against Checkr in the Superior Court of California, County of San Francisco, entitled Joseph Alan Harville v. Checkr, Inc., Case No. CGC-20-586288. 2. Plaintiff’s Complaint purports to allege two causes of action for relief against Checkr under Sections 1681e(b) and 1681i of the federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. Plaintiff’s Complaint does not assert any additional claims against Checkr. 3. On September 29, 2020, Checkr answered Plaintiff’s Complaint by filing a General Denial and Affirmative Defenses (“Answer”). As of the time of filing this document, Checkr has not yet received a file-stamped copy of its Answer from San Francisco Superior Court. 4. Pursuant to 28 U.S.C. § 1446(a), all process, pleadings, notices, and orders served upon or by Checkr in this action are attached as Exhibit A. TIMELINESS OF REMOVAL 5. On September 8, 2020, Plaintiff purported to serve Checkr with a copy of the Complaint. 6. This Notice of Removal is timely as it is being filed within thirty (30) days after service of the Summons and Complaint. 28 U.S.C. § 1446(b); Fed. Rule Civ. Proc. 6(a)(1)(C); see 1 By submitting this filing, Defendant does not concede this Court has subject matter jurisdiction. Defendant reserves all arguments, objections and defenses. LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 3. NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANT CHECKR, INC. 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 also Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354-56 (1999) (30-day deadline to remove commences upon service of the summons and complaint). BASIS FOR REMOVAL FEDERAL QUESTION JURISDICTION 7. 28 U.S.C. § 1331 provides that “the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 8. Pursuant to 28 U.S.C. § 1331, this Court has original jurisdiction over the instant action based on federal question jurisdiction in that Plaintiff’s Complaint asserts two claims under the FCRA, 15 U.S.C. § 1681 et seq., a federal statute. 9. Specifically, Plaintiff asserts two claims against Checkr under the FCRA. His first claim is brought under Section 1681e(b) of the FCRA, 15 U.S.C. § 1681e(b). (Exhibit A, Complaint, ¶¶ 22-25.) His second claim is brought under Section 1681i of the FCRA, 15 U.S.C. § 1681i. (Id. at ¶¶ 26-33 (erroneously numbered ¶¶ 1-8).) Accordingly, this action presents a federal question over which this Court has original jurisdiction under 28 U.S.C. § 1331, and removal of Plaintiff’s Complaint is proper. VENUE 10. Venue lies in the U.S. District Court for the Northern District of California pursuant to 28 U.S.C. §§ 84(a), 1391, 1441(a) and 1446(a). This action was originally brought in the Superior Court of the State of California, County of San Francisco, and thus should be removed to the San Francisco or Oakland Division of this Court per Civil Local Rules 3-2(c) and (d). SERVICE OF NOTICE OF REMOVAL ON STATE COURT 11. A true and correct copy of this Notice of Removal will be promptly served on Plaintiff and filed with the Clerk of the Superior Court of the State of California in and for the County of San Francisco as required under 28 U.S.C. § 1446(d). RESERVATION OF RIGHTS 12. By filing this Notice of Removal, Checkr does not concede nor waive any defense or motion relating to this action, including that (i) Plaintiff has agreed to arbitrate the claim asserted in LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 4. NOTICE OF REMOVAL OF CIVIL ACTION BY DEFENDANT CHECKR, INC. 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 the Complaint on an individual basis; and (ii) Plaintiff lacks standing to bring this action. Checkr reserves all defenses relating to the Court’s jurisdiction and the justiciability of this action. WHEREFORE, Checkr prays that this civil action be removed from the Superior Court of California, County of San Francisco, to the United States District Court for the Northern District of California, San Francisco or Oakland Division. Dated: September 30, 2020 /s/ Rod M. Fliegel ROD M. FLIEGEL LITTLER MENDELSON, P.C. Attorneys for Defendant CHECKR, INC. 4850-1019-4123.1 091435.1084 EXHIBIT A SUM-100 SUMMONS (CITACION JUDICIAL) FOR COURT USE ONLY (SOLO PARA USO OS LA- CORTF) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): CHECKR, INC., a California Corporation; and JOHN DOES, 1-10 inclusive, YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA OEMANDANDO EL DEMANDANTE): JOSEPH ALAN HARVILLE, as an individual. NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and Segal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Hetp Center (www.courtinfo.ca.gov/setfhe/p), your county law library, or the courthouse nearest you. tf you cannot pay the filing fee. ask the court clerk for a fee waiver form, If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court, There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site ( vYww.lawhelpcalifomia.org), the California Courts Online Self-Help Center { vrww.courilnfo.ca.gov/SBlfheip), or by contacting your local court or county bar association. NOTE: The court has a statutory lien (or waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. /AVISO! Lo han demandado. Si no responds dentro da 30 diss, la code puede decidir en su contra sin escuchar su version. Lea la information a continuation. Tiene 30 DiAS DE CALENDARlO despues (to quo le enlmguen esta citaciOn y papeles legates para presentaruna respuesta porescrito en esta code y hacer que se entregue una copia al demandante. Una carta o una llamada telefOnica no lo protegen. Su respuesta por escrito tiene que estar en formalo legal correclo si desea que procesen su caso en la code. Es posible que haya un formulario que usted pueda usar para su respuesta. Puede onconlrar estos formularies de la code y mis information en el Centre de Ayuda de las Codes de California (www.sucode.ca.gov), en la bibiioteca de /eyes de su condado o en la code que le quede mOs cerca. Si no puede pagar la cuota de presentation, pida al secretario de la code que te dO un formulario de exencion de pago de cuolas. Si no presents su respuesta a tiempo, puede perder el caso por incumplimlento y la code le podrO quitar su sueldo, dinero y bienes sin mOs advertencia. Hay otros requisitos legates. Es rocomendabte que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un serviclo de remisiOn a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales graturtos de un programs de servicios legales sin fines de lucre. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services. (www.lawbelpcalifomia.org). en el Centra de Ayuda de las Codes de Califomra, (www.sucode.ca.gov) o poniOndose en contacto con la code o el colegio de abogados locales. AVISO: Por ley. la code tiene derecho a reclamar las cuotas y los cosfos exentos por imponer un gravamen sobre cualquier recuperation de $10,000 o mas de valor recibida mediante un acuerdo o una conceslin da arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la coda antes de que la code pueda desecbar el caso. The name and address of the court is: (El nombre y direccidn de la code es): Civic Center Courthouse 400 McAllister St. San Francisco, CA 94102 CASE NUMBER; (NOmero del Caso): CGC -iiO-58 6288 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombre, la direccidn y el numero de teldfono del abogado del demandante, o del demandante que no tiene abogado. es): Devin Fok, Esq., DHF Law, P.C., 16 N. Marengo Avenue, Pasadfina,_CAJ)1,1jy ,,W-p-430-9933 DATE. CLERK OF LQNJpDeputy I La ) (Adjunto) g&UG 2 8 2020 ..byAugust 20, 20 (Fecha) (Secretario) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) ~~~ ~C> (Para prueba de entrega de esta citatidn use el formulario Proof of Service of Summons, (POS-010).) BY FAX NOTICE TO THE PERSON SERVED: You are served ISEAlj ..-_ir --_ 1. I I as an individual defendant. , 2. | | as the person sued under the fictitious name of (specify): '.KL.vi [ x | on behalf of (specify!::v & oO under: j x "| CCP 416.10 (corporation) I I CCP 416.20 (defunct corporation) 1 1 CCP 416.40 (association or partnership) [ | other (specify): I I CCP 416.60 (minor) I | CCP 416 70 (conservatee) I I CCP 416.90 (authorized person) ooP £o ,£ro «^ra, ppj 4. | | by personal delivery on (date) Page 1 of 1 Form Adopted for MarxJafofy Use Judicial Council of California SUM 100 fRev July 1. 20091 SUMMONS Code of Civti Procedure §§ 412 20. 465 htwvv. courts. C3.gov 1 Devin H. Fok, Esq. (SBN #256599) DUE Law, P.C 2 16 N. Marengo Avenue, Suite 403 Pasadena, CA 91 101 3 Phone Number: (888) 651-641 1 Fax Number: (818) 484-2023 FILED San Francisco County Superior Court AUG 2 1 2020 CLERK OF THE COURT 4 Email: clevin@devinfoklaw.conr 5 BYi.6 Attorney for Plaintiff Deputy Clerk 7 SUPERIOR COURT OF CALIFORNIA8 COUNTY OF SAN FRANCISCO9 10 11 CGC-20~58 6288 JOSEPH ALAN HARVILLE, as an individual, ) Case No. :12 ) ) COMPLAINT FOR DAMAGES and ) DEMAND FOR JURY TRIAL Plaintiffs),13 )14 vs. )15 ) CFIECKR, INC., a California Corporation: and JOHN DOES, 1-10 inclusive, )16 ) )17 i Defendant(s).18 ) )19 ) 20 21 COMPLAINT 22 Plaintiff JOSEPH ALAN HARVILLE (hereafter "Client" or "Plaintiff) hereby files his 23 Complaint for Damages and Demand for a Jury Trial against Defendants CHECKR, INC., (hereafter as "Defendant" or "Checkr," and JOHN DOES I- 10 inclusive (hereafter collectively as "Defendants"), and alleges as follows: 24 25 26 27 28 COMPLAINT FOR DAMAGES and DEMAND F< VR .H IRY TRIAL NATURE OF THE ACTIONI 1. Background check companies like Checkr are in the business of accumulating and selling data concerning a consumer's personal information such as credit history, criminal records, tenancy records, past employment, driving records etc. to readily paying subscribers such as landlords, lenders, potential employers and similar interested parties by furnishing the required consumer information through 'consumer reports " Congress enacted the Fair Credit Reporting Act in 1970 as the sole and exclusive mechanism of regulating these CRAs. The federal law has required C'RAs to implement and utilize reasonable procedures "to assure maximum possible accuracy" of the personal, private and financial information that they compile and sell about individual 2 3 4 5 6 2.7 8 9 10 11 consumers. 3. On or about 2020, The Plaintiff applied for employment with EKvood Staffing. 4. On or about January 29, 2020, EKvood Staffing procured a consumer report on Plaintiff and it was furnished by Defendant on or about February 3, 2020 (hereinafter "the Subject Report"). 5. The Subject Report stated that the Plaintiff had a "Schedule II Drugs: MFC), DEL, SELL, POSS" (hereinafter "Schedule II charge") charge on his record, dated January 14, 2014 in Sullivan County, Tennessee. A copy of the Subject Report is attached hereto as Exhibit a | » 12 13 14 15 16 17 18 19 6. However, the Schedule II charge is erroneous as it should be a Schedule IV charge instead. 20 21 7. There are serious differences between a Schedule II and a Schedule IV drug. Schedule II drugs include: » Heroine; • Morphine; • Cocaine; and. • Methamphetammes. 22 23 24 25 26 27 See Tennessee Code, §39-1 7-407. 28 COMPLAINT TOR DA MAO PS and DEMAND FOR JURY TRIAL 8. Whereas a Schedule IV drug includes marijuana which was Plaintiffs actual charge. See Tennessee Code, §39- 1 7-4 1 1 . 9. Plaintiff disputed the erroneous Schedule II charge on the Subject Report to Checkr via e-mail on February 4, 2020. Plaintiff provided Checkr with a copy of the actual charging documents which charged Plaintiff with "Poss. Over Vt oz. Marijuana for Resale, Poss. Of Drug Paraphernalia." No Schedule 11 drugs were ever involved based on the entirety of charging document and the police report contained therein. 10. Checkr conducted a reinvestigation of the disputed information and "determined that the information originally reported is accurate and complete," and refused to correct the inaccurate criminal charge. 11. Moreover, nothing in Checkr's file produced in response to Plaintiff s full file request indicated that Checkr ever consulted or referred to physical court records in conducting the reinvestigation. There is not a single court document included in Plaintiff s file except what Plaintiff provided to Checkr in connection with the dispute. Despite clear evidence of inaccuracy, Checkr somehow determined that its report was "accurate and complete." 12. As a direct result of Checkr's erroneous disclosure of the Schedule II charge on the Subject Report, Plaintiff was not hired by Elwood Staffing. 13. Plaintiff suffered and continues to suffer actual damages and emotional distress as a result of the denial of employment based on an erroneous disclosure on the consumer report provided to his potential employer. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 § 1 68 1 e(b),14. Under the Fair Credit Reporting Act ("FCRA 15 USC §1681 et seq.)21 Defendant was required to use reasonable procedures to ensure maximum possible accuracy of the information reported. Simply reporting incorrect criminal history information and then refusing to correct the inaccurate criminal charge is a clear violation of this statute. 22 23 24 25 26 27 28 C< IMPI.AINT FOR DA.MAGHS and 1)1 AtAND FOR JURY TRIM . 1 5. In addition, when disclosing criminal records for employment purposes, a background check company is further required to use strict procedures to ensure that the reported information is complete and up to date. 16. Accordingly, Plaintiff seeks recovery for his actual damages, including loss of earnings, emotional distress, and damage to his reputation. Moreover, Plaintiff seeks statutory- penalties, punitive damages, as well as attorney's fees and costs. 2 3 4 5 6 THE PARTIES7 8 17. Plaintiff, JOSEPH ALAN HARVILLE is an individual and resident of County of Sullivan, State of Tennessee. IB/Defendant Checkr is a Corporation headquartered at One Montgomery Street, San Francisco, California, is a background check company and also a Consumer Reporting Agency ("CRA") as defined under 15 USC § 1681(a)(1) of the FCRA because it is a "person which, for monetary fees, dues... regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purposes of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing "consumer reports " (Emphasis added). 19. Plaintiff is ignorant of the Defendants sued herein as JOHN DOES 1-10, inclusive, and therefore, sues those Defendants by such capacities when such information is ascertained through discovery. 20. Plaintiff is informed and believes and thereon alleges that each of the JOHN DOES 1-10 Defendants is responsible in some manner for the occurrences herein alleged and that Plaintiffs damages as herein alleged were proximately caused by such occurrences. 2 1 . Plaintiff is informed and believes and thereon alleges that, at all times herein mentioned, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - COMPLAINT FOR DA.MAOL.S and DEMAND F< )R JURY TRIAL Defendants JOHN DOES 1-10, were principals or agents of each other and of the named Defendants and in doing the things alleged in this complaint, were acting in the scope of such agency and with the permission and consent of Defendants. 2 3 FIRST CAUSE OF ACTION4 (Violation of FCRA 15 U.S.C. § 1681e(b) and DOES 1-5)5 22. Plaintiff hereby incorporates by reference the allegations of each and eveiy paragraph above. 6 7 23. The Plaintiff hereby alleges that Checkr violated the FCRA 15 U.S.C. § 1681e(b) because it failed to "follow reasonable procedures to assure [the] maximum possible accuracy" of its reporting on him by erroneously reporting the incorrect the Schedule 11 charge on the Subject Report and failing to correct the charge to Schedule IV when Plaintiff disputed it. 24. As a result of Defendant's violation of FCRA, Plaintiff suffered actual damages including loss of wages, emotional distress, damage to reputation, as well as inconvenience and out-of-pocket expenses as a result of Defendant's violation. Plaintiff also seeks statutory penalties, punitive damages, as well as attorney's fees and costs as allowed by §§168 In 8 9 10 11 12 13 14 15 16 and 1681o.17 25. Defendant failed to use reasonable procedures to ensure that the correct criminal record was reported in Plaintiff s consumer report. See Exhibit "1 18 19 20 SECOND CAUSE OF ACTION 21 (Under FCRA 15 U.S.C. S 1 68 1 i against DOES 6-101 22 1. The FCRA mandates that a C'RA conduct a re-investigation of the accuracy of information "if the completeness or accuracy of any item of information contained in a consumer's file" is disputed by the consumer. 1 5 U.S.C. § 1681 i(a)(l). The Act imposes a 30-day time li mitation for the completion of such an investigation. 23 24 25 26 27 28 COMPLAINT FOR DAMAGES and DEMAND FOR JURY TRIAL 2. The FCRA also provides that if a CRA conducts an investigation of disputed information and confirms that the information is, in fact, inaccurate, or is unable to verify the accuracy of the disputed information, the CRA is required to record the current status of the disputed information or delete that item of information from the consumer's file. 15 I 2 3 4 U.S.C. § 168li(a)(5)(A).5 3. Under 15 USC § 1681 i (a) (4), in conducting any reinvestigation with respect to disputed information in the file of any consumer, the consumer reporting agency shall review and consider all relevant information submitted by the consumer with respect to such disputed information. 6 7 8 9 4. The Plaintiff disputed the information contained in the Report with Checkr and requested them to reinvestigate their findings regarding the Schedule II charge, and accordingly to supplement or amend the information in the Report that they submitted to Elwood Staffing which was patently inaccurate, misleading and highly damaging to his reputation. 5. He also provided the necessary documentation in support of his request which is the Sullivan County Tennessee Court Records, which are the official court records containing details of the Schedule IV charge. 6. It can be clearly seen from the above report that the Plainti ff was NOT charged with a Schedule 11 charge. 7. By failing to conduct a reasonable re-investigation into Plaintiff s disputes in this regard, Checkr willfully violated 15 USC § 1 68 1 i(a)( I ) with respect to the dispute lodged by Plaintiff. 10 11 12 13 14 15 16 17 18 19 20 21 22 8. As a result of Defendant's violation of the FCRA, Plaintiff suffered actual damages including loss of wages, emotional distress, damage to reputation, as well as inconvenience and out-of-pocket expenses as a result of Defendant's violation. Plaintiff also seeks statutory penalties, punitive damages, as well as attorney's fees and costs as allowed by §§168 In and o. 23 24 25 26 27 28 COMPLAINT FOR DAMAOi .S and DHMAND FOR JURY TRIAL PRAYER FOR RELIEF 2 WHEREFORE, Plaintiff respectfully prays for judgement against Defendants and each of 3 them as follows: 4 a. For a declaration that Defendants' background check Report violated the statutory provisions as specified above; b. For statutory, compensatory, special, general, and punitive damages according to proof and as applicable against all Defendants; c. For interest upon such damages as permitted by law; d. For an award of reasonable attorneys' fees provided by law under all applicable 5 6 7 8 9 10 statutes; 11 e. For the costs of suit; 12 f. For injunctive relief as applicable; and g. For such other orders of the Court and further relief as the Court deems just and 13 14 proper. 15 DEMAND FOR JURY TRIAL 16 Plaintiff hereby requests and demands a jury trial on all issues tnable by jury. 17 18 DATED: August 20, 2020 19 20 iy iy Jy21 22 DEVIN H. FOK, ESQ. 23 DBF LAW, P.C. 24 Attorney for Plaintiff 25 26 27 28 COMPLAINT FOR DAMAGHS and DEMAND FOR JURY TRIAL Checkr Report completed on Feb 3, 2020 7:36 PM U i C Consumer Report for Joseph Alan Harville Requestor Company Elwood Staffing Status Consider California Candidates/Employees Only: The report does not guarantee the accuracy or truthfulness of the information as to the subject of the investigation, but only that it is accurately copied from public records, and information generated as a result of identity theft, including evidence of criminal activity, may be inaccurately associated with the consumer who is the subject of the report. An investigative consumer reporting agency shall provide a consumer seeking to obtain a copy of a report or making a request to review a file, a written notice in simple, plain English and Spanish setting forth the terms and conditions of his or her right to receive all disclosures, as provided in Section 1786.26. Solo para los Candidatos/Empleados de California: En el informe no se garantiza la exactitud o veracidad de la informacion en cuanto al tema de la investigacion, sino solo que se ha copiado exactamente de los registros publicos, y la informacion generada como resultado del robo de identidad, incluyendo las pruebas de una actividad delictiva, podna estar incorrectamente asociada con el consumidor que sea el sujeto del informe. Una agencia investigadora de informes de credito debera suministrarle a un consumidor que trate de obtener una copia de un informe o solicite revisar un archivo una notificacion por escrito en ingles y espanol lisos y llanos, en la que se establezcan los terminos y las condiciones de su derecho a recibir toda la informacion, como se dispone en la Seccion 1786.26. Report Summary mmSSN Trace im W, 2020 ; ll'BiSex Offender Search jan 29. 2020 ,20 isiei-r. ipiGlobal Watchlist Search jan :2Si 2Q20 pmmmNational Search feis f 2ma iciderCounty Searches a Report information Date of MittiMiddle name tastname liarville I first name Joseph Alan Social Security #2ljjc0iJe ErnailPhone mm smmss I Driver license Previous cim/er iieert&gs Custom ® 3169795 f5eo& : * .gevteefj ai Feb 12,2020 4:54 PM Completed at Feb 3, 2020 7:36 PM ! Greater! at Jan 29, 2020 2:04 PM UTC t UTC UTC L. SSM Trace Sex Offender: Search -Sfohal Watchlist Search Mationai- Search County Searches Washington, IN 3: Jul 22, 2012RECKLESS FNDANGFRMFNT - NO WFAPON INVO | Case Number File Date Court jurisdiction } County State I Full Name 90GS1 -201 2-CR-7506 Jul 23, 2012 WASHINGTON GENERAL SESSIONS WASHINGTON JOSEPH A HARVILLE DOB H RECKLESS ENDANGERMENT - NO WEAPON INVO MISDEMEANOR Jul 22, 2012 GUILTY PLEA Dec 13,2012 1 1 MONTHS AND 29 DAYS, SUPERVISED Charge Charge Type Offense Date Disposition Disposition Date Sentenced to Probation Time Sentenced tojail Time 1 1 MONTHS AND 29 DAYS SUSPENDED SIMPLE POSS/CASUAL EXCHANGE MISDEMEANOR Jul 22, 2012 GUILTY PLEA AS CHARGED Dec 13, 2012 1 1 MONTHS AND 29 DAYS, SIJPFRVISFD | Charge Charge Type | Offense Date | Disposition : Disposition Date ! Sentenced to | Probation Time Sentenced tojail Time i Other Sentencing Info 1 1 MONTHS AND 29 DAYS SUSPENDED other: SEE COUNT 1 FOR FINES Sullivan, IN Mar 4,2014FAILURE TO APPEAR FELONY Case Number File Date Court jurisdiction County State Full Name DOB 82CC1 -201 4-CR-754 Jun 17, 2014 SULLIVAN CIRCUIT COURT SULLIVAN JOSEPH A HARVILLE | Charge i Charge Type Offense Date | Disposition : Disposition Date Sentenced to : Probation Time j Other Sentencing I Info FAILURE TO APPEAR FELONY FELONY Mar 4, 2014 GUILTY PLEA-AS CHARGED Jun 21, 2017 UNSPECIFIED other: FAILURE TO APPEAR ON CASE #568 WHICH WAS BOUND OVER TO CASE #742, NO FURTHER SENTENCING INFORMATION AVAILABLE Jan 14, 2014SCHEDULE II DRUGS: MFG, DEL, SELL, POSS Case Number File Date Court jurisdiction County State 82CC1 -201 4-CR-742 Jun 17, 2014 SULLIVAN CIRCUIT COURT SULLIVAN Full Name JOSEPH ALAN HARVILLE DOB Charge Charge Type Offense Date Disposition Disposition Date Sentenced to Probation Time Other Sentencing Info SCHEDULE II DRUGS: MFG, DEL, SELL, POSS FELONY Jan 14, 2014 GUILTY PLEA-AS CHARGED Jun 21, 2017 UNSPECIFIED other: NO FURTHER SENTENCING INFORMATION AVAILABLE **BALANCE DUE $3,184.00 j Charge I Charge Type ; Offense Date | Disposition ! Disposition Date Other Sentencing Info POSS UNLAW DRUG PARAPHERNALIA - ATTEMPT MISDEMEANOR jan 14, 2014 GUILTY PLEA-AS CHARGED Jun 21,2017 other: NO SENTENCING INFORMATION AVAILABLE Mar 4, 2014FAILURE TO APPEAR ON CITATION Case Number File Date Court jurisdiction | County | State I Full Name 82GS4-201 4-RR-3079 I Mar 12,2014 SULLIVAN GENERAL SESSIONS SULLIVAN JOSEPH ALAN HARVILLE DOB i Charge Charge Type Offense Date [ Disposition : Other Sentencing info FAILURE TO APPEAR ON CITATION MISDEMEANOR Mar 4, 2014 WARRANT other: **03/12/2014 ARREST WARRANT ISSUED ; Jefferson, CO Carter, TN Oea; Crockett, TN Douglas, CO Adams, CO Clear wmmHenderson, TN Checkr One Montgomery Street, Suite 2400, San Francisco, CA 94104 candidate.checkr.com - (844) 824-3257 CM-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (Hume, SIst® ternumbut, and kMtvss): KrH COURT USE ONLY Devin H. fok (S8N (t 256599) DHF Law, P.C. 16 N, Marengo Ave., Suite 403 Pasadena, CA 91101 EJLIlP oFAX NO. (Optonal): (818) 484-2023telephone no.: (310)430-9933attorney for (Nam*) Joseph Harville uperior Court SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO STREET ADORESS, 400 McAllister St. mailing address 400 McAllister St. city and zip cooe: San Francisco, CA 94102 branch name. Civic Center Courthouse AUG 9 1 2m 9F pOURT BYiCASE NAME: Harville v. Checkr Deputy Clerk CASE NUMBER: Complex Case Designation | j Counter | | Joinder Filed with first appearance by defendant (Cal. Rules of Court, rule 3.402) CIVIL CASE COVER SHEET I I Limited (Amount demanded is $25,000) ifiS? ""20" 58 6^88m Unlimited(Amount demanded exceeds $25,000) DEPT.: Items 1-6 below must be completed (see instructions on page 2). 1 . Check one box below for the case type that best describes this case: Auto Tort I j Auto (22) I j Uninsured motorist (46) Other PI/PO/WD (Personal Injury/Property Damage/Wrongful Death) Tort | | Asbestos (04) I j Product liability (24) | j Medical malpractice (45) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3,400-3,403) | | Antitrust/Trade regulation (03) | I Construction detect (10) I I Mass tort (40) | | Securities litigation (28) | | Environmental/Toxic tort (30) | [ Insurance coverage claims arising from the above listed provisionally complex case types (41) Enforcement of Judgment I | Enforcement of judgment (20) Miscellaneous Civil Complaint I | RICO (27) 3 Other complaint (not specified above) (42) Miscellaneous Civil Petition | Partnership and corporate governance (21 ) I j Other petition (not specified above) (43) Contract I I Breach of contract/warranty (06) I I Rule 3.740 collections (09) | | Other collections (09) I I Insurance coverage (18) I | Other contract (37) Real Property | 1 Eminent domain/Inverse condemnation (14) i I Wrongful eviction (33) I | Business tort/unfair business practice (07) I I Other real properly (26) Unlawful Detainer I ! Commercial (31 ) I I Residential (32) I I Drugs (38) Judicial Review j j Asset forfeiture (05) I | Petition re: arbitration award (11) ) I Writ of mandate (02) I I Other judicial review (39) | | Other Pi/PD/WO (23) Non-Pl/PD/WD (Other) Tort | | Civil rights (08) j | Defamation (13) f ) Fraud (16) I | Intellectual property (19) I | Professional negligence (25) I ~1 Other non-Pl/PD/WD tort (35) Employment I I Wrongful termination (36) I x I Other employment (15) ! 2. This case i I is I » i is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: a. I j Large number of separately represented parties d. I I Large number of witnesses b. I I Extensive motion practice raising difficult or novel e. | | Coordination with rela^^acLonAoertdjaa in qoe < ,Mr coaRtffes, ilin ioj issues that will be time-consuming to resolve courts in other counties. iral nf ruJi f. I I Substantias postjudgment judicial supervision" « 3. Remedies sought (check all that apply): a, I x | monetary b. I x | nonmonetary; dedaratof^Srinjunctive relief c. j x j punitive 4. Number of causes of action (specify): (2) 5. This case I I is I » I is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: August 20th, 2020 Devin H, Fok c. I I Substantial amount of documentary evidence (Signature qf paRTyjjm t(TYPE OR PRINT NAME) ATTORNEY FOR PARTY) NOTICE • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. • File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. • Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. Pag* 1 ol I Form Adopted tor Mandatory Us* Judicial Council at California CM~GIQ [Rev. Jufy 1, 20C7] Cat. Run* of Coon, rufc* 2.30, 3.220, 3.400-3.403. 3.740; Cal. Standards of Judical Administration, std. 3.10CIVIL CASE COVER SHEET www. courts, ca.gov CM-010 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1. you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1 , check the more specific one. If the case has multiple causes of action, check the box that best Indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3 740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not inciutSe an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading, A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. Auto Tort CASE TYPES AND EXAMPLES Contract Breach of Contract/Warranty (06) Breach of Rental/Lease Contract (not unlawful detainer or wrongful eviction) Contract/Warranty Breach-Seller Plaintiff (not fraud or negligence) Negligent Breach of Contract/ Warranty Other Breach of Contract/Warranty Collections (e.g., money owed, open book accounts) (09) Collection Case-Seller Plaintiff Other Promissory Note/Collections Case Insurance Coverage (not provisionally complex) (18) Auto Subrogation Other Coverage Other Contract (37) Contractual Fraud Provisionally Complex Civil Litigation (Cal. Rules of Court Rules 3.400-3.403) Antitrust/Trade Regulation (03) Construction Defect (10) Claims Involving Mass Tort (40) Securities Litigation (28) Environmental/Toxic Tort (30) Insurance Coverage Claims (arising from provisionally complex case type listed above) (41 ) Enforcement of Judgment Enforcement of Judgment (20) Abstract of Judgment (Out of County) Confession of Judgment (non- domestic relations) Sister State Judgment Administrative Agency Award (not unpaid taxes) Petition/Certification of Entry of Judgment on Unpaid Taxes Other Enforcement of Judgment Case Miscellaneous Civil Complaint RICO (27) Other Complaint (not specified above) (42) Declaratory Relief Only Injunctive Relief Only (non- harassment) Mechanics Lien Other Commercial Complaint Case (non-tort/non-complex) Other Civil Complaint (non-tort/non-complex) Miscellaneous Civil Petition Partnership and Corporate Governance (21) Other Petition (not specified above) (43) Civil Harassment Workplace Violence Elder/Dependent Adult Abose Election Contest Petition for Name Change Petition for Relief From Late Claim Other Civil Petition Auto (22)-Personal Injury/Property Damage/Wrongful Death Uninsured Motorist (46) (if the case involves an uninsured motorist claim subject to arbitration, check this item instead of Auto) Other PI/PD/WD (Personal Injury/ Property Damage/Wrongful Death) Tort Asbestos (04) Asbestos Property Damage Asbestos Personal Injury/ Wrongful Death Product Liability (not asbestos or toxic/environmental) (24) Medical Malpractice (45) Medical Malpractice- Physicians & Surgeons Other Professional Health Care Malpractice Other PI/PD/WD (23) Premises Liability (e.g., slip and fail) Intenlionai Bodily injury/PD/WD (eg , assault, vandalism) Intentional Infliction of Emotional Distress Negligent Infliction of Emotional Distress Other PI/PD/WD Non-PI/PO/WD (Other) Tort Business Tort/Unfair Business Practice (07) Civil Rights (e.g.. discrimination, false arrest) (not civil harassment) (08) Defamation (e.g.. siander. libel) Other Contract Dispute Real Property Eminent Domain/Inverse Condemnation (14) Wrongful Eviction (33) Other Real Property (e.g., quiet title) (26) Writ of Possession of Real Property Mortgage Foreclosure Quiet Title Other Real Property (not eminent domain, landlord/tenant, or foreclosure) Unlawful Detainer Commercial (31) Residential (32) Drugs (38) (if the case involves illegal drugs, chock tnis item; otherwise, report as Commercial or Residential) Judicial Review Asset Forfeiture (05) Petition Re: Arbitration Award (11) Writ of Mandate (02) Writ-Administrative Mandamus Writ-Mandamus on Limited Court Case Matter Writ-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals (13) Fraud (16) Intellectual Property (19) Professional Negligence (25) Legal Malpractice Other Professional Malpractice (not medical or legal) Other Non-Pl/PD/WD Tort (35) Employment Wrongful Termination (36) Other Employment (15) CSMU0 {Rev. July V 2007{ Page 2 of 2CIVIL CASE COVER SHEET CASE NUMBER: CGC-20-586288 JOSEPH ALAN HARVILLE VS. CHECKR, INC. ET AL NOTICE TO PLAINTIFF A Case Management Conference is set for: DATE: JAN-20-2021 TIME: 10:30AM PLACE: Department 610 400 McAllister Street San Francisco, CA 94102-3680 All parties must appear and comply with Local Rule 3. CRC 3.725 requires the filing and service of a case management statement form CM-110 no later than 15 days before the case management conference. However, it would facilitate the issuance of a case management order without an appearance at the case management conference if the case management statement is filed and served twenty-five days before the case management conference. Plaintiff must serve a copy of this notice upon each party to this action with the summons and complaint. Proof of service subsequently filed with this court shall so state. This case is eligible for electronic filing and service per Local Rule 2.11. For more information, please visit the Court's website at www.sfsuperiorcourt.org under Online Services. [DEFENDANTS: Attending the Case Management Conference does not take the place of filing a written response to the complaint. You must file a written response with the court within the time limit required by law. See Summons.] ALTERNATIVE DISPUTE RESOLUTION REQUIREMENTS IT IS THE POLICY OF THE SUPERIOR COURT THAT EVERY CIVIL CASE SHOULD PARTICIPATE IN MEDIATION, ARBITRATION, NEUTRAL EVALUATION, AN EARLY SETTLEMENT CONFERENCE, OR OTHER APPROPRIATE FORM OF ALTERNATIVE DISPUTE RESOLUTION PRIOR TO A TRIAL. (SEE LOCAL RULE 4) Plaintiff must serve a copy of the Alternative Dispute Resolution (ADR) Information Package on each defendant along with the complaint. (CRC 3.221.) The ADR package may be accessed at www.sfsuperiorcourt.org/divisions/civil/dispute-resolution or you may request a paper copy from the filing clerk. All counsel must discuss ADR with clients and opposing counsel and provide clients with a copy of the ADR Information Package prior to filing the Case Management Statement. Superior Court Alternative Dispute Resolution Administrator 400 McAllister Street, Room 103-A San Francisco, CA 94102 (415) 551-3869 See Local Rules 3.3, 6.0 C and 10 B re stipulation to judge pro tem. LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 1. Case No. CGC-20-586288 DEFENDANT CHECKR, INC.’S ANSWER TO 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 ROD M. FLIEGEL, Bar No. 168289 rfliegel@littler.com LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, California 94104 Telephone: 415.433.1940 Facsimile: 415.399.8490 Attorneys for Defendant CHECKR, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JOSEPH ALAN HARVILLE, as an individual, Plaintiff(s), v. CHECKR, INC., a California corporation and JOHN DOES, 1-10 inclusive, Defendant(s). Case No. CGC-20-586288 DEFENDANT CHECKR, INC.’S ANSWER TO COMPLAINT Complaint Filed: August 21, 2020 LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 2. Case No. CGC-20-586288 DEFENDANT CHECKR, INC.’S ANSWER TO 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 Checkr, Inc. (“Defendant” or “Checkr”), through its undersigned counsel, answers the unverified Complaint of Plaintiff Joseph Alan Harville (“Plaintiff”).1 GENERAL DENIAL 1. Pursuant to section 431.30(d) of the California Code of Civil Procedure, Defendant hereby answers Plaintiff’s unverified Complaint by generally denying each and every allegation contained therein, by denying that Plaintiff has been damaged or has sustained any damages as a result of the conduct alleged therein, and by asserting the following separate and distinct additional defenses. ADDITIONAL DEFENSES Without admitting any of the allegations of the Complaint and without admitting or acknowledging that Defendant bears any burden of proof as to any of them, Defendant asserts the following additional defenses. Defendant intends to rely upon any additional defenses that become available or apparent during pretrial proceedings and discovery in this action, and hereby reserves the right to amend this Answer to assert all such further defenses. FIRST DEFENSE 1. Plaintiff’s Complaint fails to state a claim upon which relief may be granted. SECOND DEFENSE 2. Plaintiff’s Complaint, and each and every cause of action contained therein, are barred in whole or in part because, at all material times, Defendant acted reasonably, in good faith and without malice based upon all relevant facts and circumstances known by Defendant at the time, and did not at any time willfully or negligently fail to comply with the federal Fair Credit Reporting Act (“FCRA”). THIRD DEFENSE 3. Plaintiff's claims for statutory damages and punitive damages violate the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of state law because: (a) the punitive damages claimed are vastly 1 By submitting this filing, Defendant does not concede this Court has subject matter jurisdiction. Defendant reserves all arguments, objections and defenses. LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 3. Case No. CGC-20-586288 DEFENDANT CHECKR, INC.’S ANSWER TO 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 disproportionate to the statutory and/or actual damages claimed or available; (b) the award of punitive and/or statutory damages would constitute an arbitrary and capricious taking of Defendant’s property which is unjustified by any rational governmental interest; and/or (c) the award of punitive damages with wholly standardless discretion is inconsistent with due process. FOURTH DEFENSE 4. Plaintiff’s claims are barred in whole or in part because Plaintiff did not suffer any cognizable injury or other harm as a proximate result of any alleged act or omission of Defendant or its agents or employees. FIFTH DEFENSE 5. Defendant alleges that Section 616 of the FCRA (15 U.S.C. § 1681n) is unconstitutionally vague and ambiguous and unjustifiably arbitrary. SIXTH DEFENSE 6. This Court lacks subject matter jurisdiction over Plaintiff’s claims, if any, to the extent he has in any way agreed to submit his disputes to arbitration. SEVENTH DEFENSE 7. Defendant alleges that it has maintained reasonable procedures to comply with applicable law at all times relevant to Plaintiff’s Complaint, it complied with the FCRA in the handling of Plaintiff’s reports and disputes, and is therefore entitled to each and every defense stated in and available under the FCRA and to all limitations of liability. EIGHTH DEFENSE 8. Plaintiff’s claims are excluded from coverage by Section 607 of the FCRA (15 U.S.C. § 1681e) to the extent that Defendant prepared any background reports in connection with an investigation of compliance with federal, state or local laws and regulations or any of Defendant’s customers’ pre-existing policies (15 U.S.C. § 1681a(y)). NINTH DEFENSE 9. Assuming Plaintiff suffered or sustained any loss, damage or injury, which Defendant specifically denies, such loss, damage or injury was proximately caused or contributed to by the negligence or wrongful conduct of other parties, persons or entities, and that their negligence or LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 4. Case No. CGC-20-586288 DEFENDANT CHECKR, INC.’S ANSWER TO 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 wrongful conduct was an intervening and superseding cause of the purported loss, damage or injury of which Plaintiff complains. Plaintiff’s damages, if any, as against Defendant, must therefore be reduced by the proportion of fault attributable to such third parties, and to the extent that this is necessary, Defendant may be entitled to partial indemnity from such third parties on a comparative fault basis. TENTH DEFENSE 10. All of the damages allegedly sustained by Plaintiff could have been avoided by the principles of mitigation and the doctrine of avoidable consequences and all similar and equivalent doctrines. ELEVENTH DEFENSE 11. Defendant alleges that Plaintiff’s Complaint is barred in whole or in part to the extent Plaintiff failed to comply fully or at all with procedures available and/or required under the FCRA to address Plaintiff’s concerns and/or otherwise failed to take reasonable steps to avoid harm. TWELFTH DEFENSE 12. Plaintiff’s claims are barred, in whole, or in part, by the equitable theories of estoppel, waiver, and laches. Defendant’s investigation is continuing, and it reserves the right to amend its Answer and to raise additional defenses that may arise during the course of the litigation. WHEREFORE, Defendant prays for judgment in its favor and against Plaintiff as follows: 1. That the Complaint be dismissed with prejudice; 2. That Plaintiff takes nothing by way of the Complaint; 3. That Defendant recover its attorney’s fees, costs and disbursements in this action; and 4. For such other and further relief as the Court deems just and proper. Dated: September 29, 2020 ROD M. FLIEGEL LITTLER MENDELSON, P.C. Attorneys for Defendant CHECKR, INC. 4832-8179-3740.1 091435.1084 American LegalNet, Inc. www.FormsWorkFlow.com Page 1 of 1 Form Approved for Optional Use Judicial Council of California POS-050/EFS-050 [Rev. February 1, 2017] PROOF OF ELECTRONIC SERVICE (Proof of Service/Electronic Filing and Service) Cal. Rules of Court, rule 2.251 www.courts.ca.gov POS-050/EFS-050 ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO: FOR COURT USE ONLY NAME ROD M. FLIEGEL, Bar No. 168289 FIRM NAME: LITTLER MENDELSON, P.C. STREET ADDRESS: 333 Bush Street, 34th Floor CITY: San Francisco STATE: CA ZIP CODE:94104 TELEPHONE NO.: 415.433.1940 FAX NO.: 415.399.8490 E-MAIL ADDRESS: rfliegel@littler.com ATTORNEY FOR (name): Defendant CHECKR, INC. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO STREET ADDRESS: MAILING ADDRESS: 400 McAllister CITY AND ZIP CODE: San Francisco, CA 94102 BRANCH NAME: CASE NUMBER: CGC-20-586288 PLAINTIFF/PETITIONER: JOSEPH ALAN HARVILLE DEFENDANT/RESPONDENT: CHECKR, INC. JUDICIAL OFFICER: PROOF OF ELECTRONIC SERVICE DEPARTMENT: 1. I am at least 18 years old. a. My residence or business address is (specify): 333 Bush Street, 34th Floor, San Francisco, CA 94104 b. My electronic service address is (specify): akawase@littler.com 2. I electronically served the following documents (exact titles): DEFENDANT’S ANSWER TO COMPLAINT The documents served are listed in an attachment. (Form POS-050(D)/EFS-050(D) may be used for this purpose.) 3. I electronically served the documents listed in 2 as follows: a. Name of person served: Devin H. Fok On behalf of (name or names of parties represented, if person served is an attorney): Plaintiff b. Electronic service address of person served : devin@devinfoklaw.com c. On (date): September 29, 2020 The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment. (Form POS-050(P)/EFS-050(P) may be used for this purpose.) Date: September 29, 2020 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Anne Kawase  (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) 4816-3251-5276.1 091435.1084