United States District Court, M.D. Florida, Tampa Division
WILLIAM FOSBRINK, on behalf of himself and on behalf of all others similarly situated, Plaintiff,
AREA WIDE PROTECTIVE, INC., Defendant.
S. MOODY. JR. UNITED STATES DISTRICT JUDGE.
is suing his former employer for alleged violations of the
Fair Credit Reporting Act (“FCRA”) related to
employment background checks. The claims are brought on
behalf of Plaintiff and classes of similarly situated
persons. Defendant asks the Court to dismiss the Amended
Complaint and strike the class allegations. But because the
Amended Complaint states a claim and a determination of
whether to certify the proposed class is premature, the Court
concludes the Motion should be denied.
applied to work as a traffic control specialist for Defendant
in February 2016. (Doc. 17, ¶ 34). As a condition of his
employment, Defendant made Plaintiff sign a form authorizing
Defendant to receive periodic background checks on him. (Doc.
17, ¶ 55). While employed, Plaintiff alleges Defendant
did obtain a background check on him. (Doc. 17, ¶ 36).
Defendant allegedly terminated Plaintiff in March 2017
because “something came up on his background
check.” (Doc. 17, ¶ 35).
on the above, Plaintiff alleges Defendant's actions
violated the FCRA in the following three ways: (1) the form
Defendant required Plaintiff to sign authorizing the
background checks violated 15 U.S.C. § 1681b(b)(2)(A)(i)
because the form was not a stand-alone FCRA disclosure (Count
I); (2) Defendant violated 15 U.S.C. §
1681b(b)(2)(A)(ii) by conducting a background check on
Plaintiff without receiving proper authorization (Count II);
and (3) Plaintiff violated 15 U.S.C. § 1681b(b)(3)(A) by
failing to provide Plaintiff with a copy of the background
check before Defendant relied on it to take an adverse
employment action against Plaintiff (Count III).
brings these claims on behalf of himself and two classes of
similarly situated persons. Specifically, as to Counts I and
II, Plaintiff brings the claims on behalf of the following:
All Area Wide Protective, Inc. employees and job applicants
in the United States who were the subject of a consumer
report that was procured by Area Wide within five years of
the filing of this complaint through the date of final
judgment in this action as required by 15 U.S.C. §
(Doc. 17, ¶ 10). As to Count III, he brings the claim on
behalf of the following:
All Area Wide Protective, Inc. employees and prospective
employees in the United States against whom adverse
employment action was taken by Area Wide, based, in whole or
in part, on information contained in a consumer report
obtained within five years of the filing of this complaint
through the date of final judgment in this action, and who
were not provided the proper pre-adverse notice as required
under 15 U.S.C. §1681b(b)(3)(A).
(Doc. 17, ¶ 11).
Defendant moves to dismiss the Amended Complaint (Doc. 17) or
strike the class action allegations.
preliminary matter, Defendant's “Motion to Dismiss
Amended Complaint and Renewed Motion to Strike Class
Allegations” (Doc. 20) is not a motion to dismiss.
Defendant never argues that the Amended Complaint (Doc. 17)
fails to state a claim under Federal Rule Civil Procedure
12(b)(6). Having reviewed the Amended Complaint, the Court
concludes it sufficiently states a claim for violations of
the FCRA and denies the Motion to the extent Defendant
alleges it fails to state a claim.
gist of Defendant's Motion is that the Court should
strike the class allegations because Plaintiff cannot satisfy
rule 23. Defendant argues the proposed classes (1) are
inadequately defined, (2) are incapable of being certified
because the class depends on the individual's state of
mind, (3) are incapable of being certified because liability
must be determined before the class members can be