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Witt v. Corelogic Saferent, LLC

United States District Court, E.D. Virginia, Richmond Division

August 18, 2016

CAROLYN WITT, et al., Plaintiffs,
v.
CORELOGIC SAFERENT, LLC, et al., Defendants.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         This matter is before the Court on DEFENDANTS' MOTION FOR RECONSIDERATION (ECF No. 60). For the reasons set forth herein, the motion will be granted in part and denied in part.

         BACKGROUND

         On February 2, 2016, Plaintiffs Carolyn Witt ("Witt"), Alphonso Robertson ("Robertson"), Christopher Allen ("Allen"), Eric Gonzalez ("Gonzalez"), Jourdin Edwards ("Edwards"), Lewis Hackett II ("Hackett"), Tony White ("White"), Shondel Roberts ("Roberts"), Willie Stanley, Jr. ("Stanley"), and David Holmes ("Holmes") (collectively, "Plaintiffs") filed a Second Amended Complaint ("SAC, " ECF No. 50) on behalf of themselves and all others similarly situated. In the SAC, Plaintiffs allege that defendants, CoreLogic SafeRent, LLC ("SafeRent") and its sister company CoreLogic National Background Data, LLC ("NBD") (collectively, "Defendants"), violated the Fair Credit Reporting Act ("FCRA") . The SAC alleges three Counts[1] under the FCRA. Count I, brought against SafeRent on behalf of a putative nationwide class, alleges that SafeRent violated 15 U.S.C. § 1681k(a), which requires consumer reporting agencies that sell certain types of public records for employment purposes to either (1) notify the consumer "at the time" the records are furnished; or (2) "maintain strict procedures'' to ensure that the public record information is "complete and up-to-date." 15 U.S.C. § 1681k(a).

         The class alleged in Count I is:

All natural persons residing in the United States (a) who were the subject of a report sold by Defendant SafeRent; (b) where Defendant SafeRent's database indicates that the report was furnished for an employment purpose; (c) Defendant SafeRent's database showed that the report contained at least one adverse criminal record "hit;" (d) within the five period preceding the filing of this action and during pendency.
Excluded from the class definition are any employees, officers, directors of Defendant SafeRent, any attorney appearing in this case, and any judge assigned to hear this action.

SAC ¶ 58.

         There is also an alternate sub-class alleged in Count I:

All natural persons residing in the United States (a) who were the subject of a report sold by Defendant SafeRent; (b) where Defendant SafeRent's database indicates that it was furnished for an employment purpose; (c) where Defendant SafeRent's database showed that the report contained at least one adverse criminal "hit" from a jurisdiction form which Defendant SafeRent does not obtain at least four digits of an associated social security number; (d) within the five year period preceding the filing date of this Complaint and during its pendency.
Excluded from the class definition are any employees, officers, directors of Defendant SafeRent, any attorney appearing in this case, and any judge assigned to hear this Action.

Id. ¶ 59.

         Count II, pled against both Defendants, alleges that, should the Court find that the background reports provided by Defendants were not for "employment purposes, " then Defendants furnished consumer reports without a permissible purpose in violation of 15 U.S.C. § 1681b. The asserted class consists of:

All natural persons residing in the United States who were the subject of a report sold by SafeRent to NBD and/or NBD to any third party within the five year period preceding the filing of this action and during its pendency.
Excluded from the class definition are any employees, officers, directors of Defendants, any attorney appearing in this case, and any judge assigned to hear this action.

SAC ¶ 73.

         Count IV is an individual claim, brought by Witt against SafeRent pursuant to 15 U.S.C. § 1681e(b). That section requires that:

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.

15 U.S.C. § 1681e(b). Witt alleges that SafeRent "failed to establish or to follow reasonable procedures to assure maximum possible accuracy in the preparation of the consumer report it furnished regarding Plaintiff Witt." SAC ¶ 102. Count IV is not implicated by Defendants' motion.

         The SAC alleges that both Defendants committed all of the above violations willfully, and therefore the SAC seeks statutory and punitive damages on all counts. Witt also seeks actual damages on Count IV.

         PROCEDURAL HISTORY

         The original Complaint in this action was filed on June 26, 2015. (ECF No. 1). SafeRent filed its first motion to dismiss (ECF No. 9) on August 31, 2015, on the grounds that: (1) the claims of Plaintiffs Tyrone Henderson and James 0. Hines, Jr. were time-barred; (2) SafeRent was not subject to personal jurisdiction in Virginia with respect to the claims of Plaintiff John Moore; and (3) upon dismissal of the claims of Henderson, Hines, and Moore, Plaintiff Witt's claims should also be dismissed for improper venue. (ECF No. 10). Less than 24 hours later, in an apparent attempt to circumvent the issues raised in SafeRent's motion to dismiss, Plaintiffs filed an Amended Complaint, which was largely identical to the original Complaint except for the addition of brief and vague allegations pertaining to fourteen newly proposed Named Plaintiffs. (ECF No. 12).

         Both SafeRent and NBD again moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (ECF Nos. 26, 37). On January 12, 2016, the Court granted Defendants' motions in part and dismissed the claims of Plaintiffs Henderson, Hines, and Moore with prejudice. (ECF No. 49) . The Court also found that the claims of the fourteen so-called "Newly Named Plaintiffs" lacked any factual support, and therefore those plaintiffs had failed to plausibly allege any FCRA violations. Accordingly, the Court dismissed the Newly Named Plaintiffs' claims without prejudice, but with leave to amend. Id. Defendants' motion to dismiss the Amended Complaint was therefore denied as moot as to Witt. Id.

         The SAC attempted to cure the defects of the Amended Complaint by adding additional details concerning nine of the fourteen Newly Named Plaintiffs (the other five Newly Named Plaintiffs do not appear in the SAC). Defendants again moved to dismiss on the ground that the SAC failed to satisfy the requirements of Fed.R.Civ.P. 8(a) and 12(b)(6). The Court granted the motion as to Plaintiffs Robertson, Holmes, and Gonzalez, and denied the motion as to the remaining plaintiffs. (ECF No. 56).

         On May 17, 2016, the day after the Supreme Court issued its opinion in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), Defendants moved the Court to reconsider its Memorandum Opinion ("Mem. Op.") granting in part and denying in part Defendants' second motion to dismiss. (ECF No. 60). The motion is based in part on the Spokeo decision, but also goes well beyond that limited topic. That motion is now ripe for review.

         DISCUSSION

         A. Legal Standard

         It is within the discretion of the Court to grant a motion for reconsideration of an interlocutory order. Moses H. Cone Mem'1 Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983); Saint Annes Dev. Co. v. Trabich, 443 Fed.Appx. 829, 832 (4th Cir. 2011). The "heightened standards" applicable to motions for reconsideration of final orders do not apply to reconsideration of interlocutory orders. Id. (quoting Am. Canoe Assoc, v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003)). The Court has "plenary power" to afford such relief "as justice requires." Fayetteville Inv. v. Commercial Builders, 936 F.2d 1462, 1473 (4th Cir. 1991).

         However, a motion to reconsider may not be used to "'reargue the facts and law originally argued in the parties' briefs.'" Projects Mgmt. Co. v. DynCorp Intern., LLC, 17 F.Supp.3d 539 (E.D. Va. 2014) (quoting United States v. Smithfield Foods, Inc., 969 F.Supp. 975, 977 (E.D. Va. 1997)).

It is only appropriate for the court to review a previous decision where, for example, it "has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should be equally rare."

Smithfield Foods, 969 F.Supp. at 977 (internal quotations and citations omitted).

         B. Analysis

         Defendants offer two grounds that, according to them, necessitate reconsideration. First, Defendants assert that the Court must reconsider its decision because the Memorandum Opinion "reli[ed] on alleged facts that do not appear in the Complaint" in reaching its conclusions. (Defendants' Memorandum in Support of Motion for Reconsideration ("Def. Mem., " ECF No. 61) at 3) . Second, Defendants contend that Plaintiffs have failed to adequately allege that they have suffered any concrete and particularized injury-in-fact and therefore lack standing based on the Supreme Court's May 16, 2016 decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016).[2] Id. at 5-14. Although typically standing must be addressed before other issues because it implicates the Court's subject matter jurisdiction, here, the resolution of Defendants' first contention informs the resolution of the second; therefore, Defendants' arguments are addressed in order.

         1. The Memorandum Opinion did not Rely on Facts Outside the Record.

         Defendants take issue with the statement in the Memorandum Opinion that public records sold by SafeRent and NBD " 'often contain only limited identifying information'" and "'sometimes do not contain identifying data such as middle names or addresses[.]'" (Def. Mem. at 3) (citing Mem. Op. at 7). Defendants argue that those facts were not in the SAC and that they improperly "guided the Court's analysis of whether Plaintiffs pleaded that the records returned by ...


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