United States District Court, M.D. Florida, Jacksonville Division
LASHANNDA JONES, on behalf of herself and on behalf of all others similarly situated, Plaintiff,
THE SALVATION ARMY, Defendant.
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE
Fair Credit Reporting Act class action, the Court must
determine whether a prospective employer's background
check disclosure was compliant with statutory requirements,
and if not, whether such violation, without more, constitutes
an injury in fact for Article III standing. Before the Court
are the parties' Joint Motion for Preliminary Approval of
Class Action Settlement, (Doc. 26); the parties'
memorandums on standing, (Docs. 28, 29); Defendant The
Salvation Army's Motion to Dismiss, (Doc. 10), Plaintiff
LaShannda Jones's Response, (Doc. 37); and The Salvation
Army's Motion to Strike, (Doc. 38), and Jones's
Response (Doc. 39). On March 25, 2019, the Court held a
hearing, the record of which is incorporated herein. (Docs.
Class Representative's Claims
approximately January 31, 2018, Jones applied for and was
hired as an assistant store manager at The Salvation Army.
Complaint, Doc. 9 ¶ 14. As part of the application
process, The Salvation Army gave Jones “several
documents related to the [Fair Credit Reporting Act of 1970
(“FCRA”)], all of which [were] presented
simultaneously . . . .” (Id. ¶ 36). On
February 23, 2018, The Salvation Army fired Jones without
notice. (Id. ¶ 15). Confused about why she was
fired, Jones called The Salvation Army's Georgia office,
which informed her that she was fired because of credit
issues identified in her background report. (Id.
¶ 17). Although Jones does not contest the accuracy of
the report, she wanted to explain the circumstances that
caused her credit issues before being terminated.
(Id. ¶ 18).
contends that The Salvation Army routinely violated the FCRA
in its hiring process by providing confusing, noncompliant
disclosures. (Id. ¶¶ 38- 39, 47). Further,
Jones asserts that the authorization she gave The Salvation
Army to obtain a consumer report was invalid because
“[o]ne cannot meaningfully authorize her employer to
take an action if she does not grasp what the action
entails.” (Id. ¶ 89). Jones also claims
that The Salvation Army violated the FCRA when it fired her
based on information contained in her credit report without
first providing her with a copy of the report. (Id.
filed a class action complaint in Florida's Fourth
Judicial Circuit, claiming that The Salvation Army's FCRA
violations harmed two classes: a Pre-Adverse Action Class and
a Background Check Class. (Doc. 9 ¶¶ 62-63). The
Salvation Army removed this action, (Doc. 1), and moved to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(1) for lack of standing and under Rule 12(b)(6) for
failure to state a claim. (Doc. 5). The Salvation Army argued
that Jones lacked standing because her injury was a
“bare procedural violation that, without more, cannot
rise to the level of concrete injury needed for Article III
standing.” (Doc. 5 at 19).
then filed an Amended Class Action Complaint,  which contends
that The Salvation Army violated the FCRA by failing to
provide Jones a copy of her consumer report before taking an
adverse employment action (First Class Claim for
Relief-“pre-adverse action” claim), failing to
make a proper disclosure of Jones's rights regarding the
background check (Second Class Claim for
Relief-“disclosure” claim), and failing to obtain
proper authorization to conduct the background check (Third
Class Claim for Relief - “authorization” claim).
(Doc. 9). Additionally, Jones alleges various injuries she
suffered as a result of The Salvation Army's alleged FCRA
violations. (Doc. 9 ¶¶ 54-61). The Salvation Army
moved to dismiss again under 12(b)(1) and 12(b)(6). (Doc.
10). In response, Jones moved to remand, arguing that The
Salvation Army has the burden of establishing jurisdiction
and thus, the Court should remand if The Salvation Army
believes that Jones lacks Article III standing. (Doc. 11).
Jones further contends:
If Defendant wants to be in this Court and is willing to show
a jurisdictional basis to be here, Plaintiff has no
objection. But Defendant has shown itself unwilling to carry
that burden: by moving to have this case dismissed for lack
of subject matter jurisdiction, Defendant denies the very
federal court jurisdiction it invoked upon removal.
several motions for extensions of time, the parties moved to
stay the case while they attempted early mediation, (Doc.
17), which the Court granted, (Doc. 18). The parties settled
at mediation, (Doc. 23), and then filed a Joint Motion for
Preliminary Approval of Class Action Settlement, (Doc. 26).
The motion states that the parties have agreed to a
settlement and seek the Court's preliminary and,
ultimately, final approval. (Doc. 26). The settlement
consists of The Salvation Army contributing $500, 000 to a
fund that would be distributed to two separate classes: The
Disclosure and Authorization Class, which consists of
approximately 25, 579 members; and the Pre-Adverse Action
Class, which has approximately 1, 537 members, all of whom
also belong to the Disclosure and Authorization Class. (Doc.
26 at 7-9).
reviewing the Motion for Preliminary Approval, the Court,
concerned about its jurisdiction, directed each party to file
a memorandum discussing whether Jones, the class
representative, has Article III standing. (Doc. 27). The
parties filed their respective briefs, (Docs. 28, 29), and
the Court held a hearing on the motion, the record of which
is incorporated herein, (Doc. 30). Following the hearing, the
Court deferred ruling on the Motion for Preliminary Approval
and directed Jones to respond to The Salvation Army's
motion to dismiss. (Doc. 34). Jones filed her response,
arguing that the parties want to settle, she has standing,
and the complaint states claims for relief. (Doc. 37). The
Salvation Army then moved to strike portions of Jones's
response that referenced settlement discussions, (Doc. 38),
to which Jones responded in opposition, (Doc. 39).
The Fair Credit Reporting Act of 1970, 15 U.S.C. § 1681
procuring a consumer report on an applicant, the FCRA
requires employers to provide the applicant with “a
clear and conspicuous disclosure . . . in writing . . .
in a document that consists solely of the
disclosure, ” that informs the applicant that a
consumer report may be obtained. 15 U.S.C. §
1681b(b)(2)(A) (2018) (emphasis added). An employer may not
obtain the consumer report unless the applicant provides
written authorization, which may be obtained on the
disclosure. Id. Further, the FCRA requires that an
employer provide the employee with a copy of the report and a
written description of the employee's rights under the
FCRA before taking adverse action based on information in a
consumer report. Id. § 1681b(b)(3)(A).
person who negligently fails to comply with the FCRA is
liable for actual damages sustained, attorneys' fees, and
costs. Id. § 1681o(a). Any person who willfully
fails to comply with the FCRA is liable for actual damages or
statutory damages of $100 to $1, 000 per violation,
attorneys' fees and costs, and possibly punitive damages.
Id. § 1681n(a). Jones has alleged willful
violations. (Doc. 9 ¶¶ 75, 77, 83, 84, 89, 91).
Article III Standing
the parties have settled the case, the Court must ensure it
has jurisdiction to provide the requested relief. Frank
v. Gaos, 139 S.Ct. 1041, 1046 (2019) (“A court is
powerless to approve a proposed class settlement if it lacks
jurisdiction over the dispute, and federal courts lack
jurisdiction if no named plaintiff has standing.”);
see A&M Gerber Chiropractic LLC v. GEICO Gen. Ins.
Co., 925 F.3d 1205, 1210 (11th Cir. 2019)
(“Standing cannot be waived or conceded by the parties,
and it may be raised (even by the court sua sponte)
at any stage of the case.”). If Jones lacks standing,
then the Court cannot certify the two classes and approve the
preliminary settlement. See Church v. Accretive
Health, Inc., 654 Fed.Appx. 990, 995 (11th Cir. 2016)
(“[S]tanding is a jurisdictional threshold question
which must be addressed prior to and independent of the
merits of a party's claims.” (quotation marks
omitted) (quoting DiMaio v. Democratic Nat'l
Comm., 520 F.3d 1299, 1301 (11th Cir. 2008))).
The standard for reviewing a complaint for lack of
district court may dismiss a complaint for lack of
subject-matter jurisdiction based on: (1) the complaint
alone; (2) the complaint plus undisputed facts evidenced in
the record; or (3) the complaint plus undisputed facts plus
the court's resolution of disputed facts.”
Butler v. Morgan, 562 Fed.Appx. 832, 834 (11th Cir.
2014) (per curiam) (unpublished) (citing Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. May 1981)). Here,
the Court relies on only the Amended Complaint and undisputed
facts in the record, and therefore it need not hold an
evidentiary hearing. Cf. Bischoff v. Osceola Cty., 222
F.3d 874, 881 (11th Cir. 2000) (requiring an evidentiary
hearing in cases “where the evidence relating to
standing is squarely in contradiction as to central matters
and requires credibility findings . . . .”).
a court is generally required to accept the factual
allegations of the complaint as true, Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), it “does not
accept as true unwarranted deductions of fact.”
Almanza v. United Airlines, Inc., 851 F.3d 1060,
1071 (11th Cir. 2017). And, a court is not required to accept
as true conclusory allegations and mere legal conclusions.
Iqbal, 556 U.S. at 678. The Court's “duty
to accept the facts in the complaint as true does not require
[it] to ignore specific factual details of the pleading in
favor of general or conclusory allegations. Indeed, when the
exhibits contradict the general and conclusory allegations of
the pleading, the exhibits govern.” Griffin Indus.,
Inc. v. Irvin, 496 F.3d 1189, 1205-06 (11th Cir. 2007).
party asserting federal jurisdiction when it is challenged
has the burden of establishing it.” DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). As the
removing party, The Salvation Army had the initial burden of
demonstrating federal jurisdiction. See id. However,
after The Salvation Army moved to dismiss for a lack of
standing, Jones filed an amended complaint that added
allegations of injury to combat The Salvation Army's
standing argument, (Doc. 9 ¶¶ 54-61), and she has
argued in her supplemental memorandum on standing, at oral
argument, and in response to The Salvation Army's motion
to dismiss that she has standing, (Docs. 28, 35, 37). Thus,
Jones is now the party asserting jurisdiction, giving her the
burden of demonstrating standing. See Cuno, 547 U.S.
at 341-42 (finding that the plaintiff, who had originally
sought to remand the case based on concerns for lack of
standing, was the party asserting federal jurisdiction
because it had argued it had standing in its briefs to the
plaintiff must demonstrate standing for each claim [s]he
seeks to press. . . .” Town of Chester v. Laroe
Estates, Inc., 137 S.Ct. 1645, 1650 (2017) (quotation
marks omitted) (quoting Davis v. Fed. Election
Comm'n, 554 U.S. 724, 734 (2008)). And, “[i]t
is well-settled that ‘if none of the named plaintiffs
purporting to represent a class establishes the requisite of
a case or controversy with the defendants, none may seek
relief on behalf of himself or any other member of the
class.'” Gerber Chiropractic, 925 F.3d at
1211 (quoting O'Shea v. Littleton, 414 U.S. 488,
494 (1974)). Thus, as class representative, Jones must
demonstrate standing for all of her claims. Laroe
Estates, 137 S.Ct. at 1650.
Injury in fact under Article III.
satisfy the “‘irreducible constitutional
minimum' of standing, ” the “plaintiff must
have (1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). “To establish
injury in fact, a plaintiff must show that he or she suffered
‘an invasion of a legally protected interest' that
is ‘concrete and particularized' and ‘actual
or imminent, not conjectural or hypothetical.'”
Id. at 1548 (quoting Lujan, 504 U.S. at
the injury in fact element is at issue here, and more
specifically, whether Jones alleges a concrete
injury. When determining whether a plaintiff has
alleged a concrete injury, courts must look at the
“allegations in light of the statute, [Eleventh