United States District Court, D. Idaho
GLORIA MITCHELL, individually and on behalf of all others similarly situated, Plaintiff,
WINCO FOODS, LLC, a Delaware limited liability company, Defendant.
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, U.S. DISTRICT COURT JUDGE
parties concede that in light of this Court's recent
order, Plaintiff Gloria Mitchell's complaint no longer
states a claim upon which relief may be granted. The Court
will therefore grant Defendant WinCo Foods, LLC's Motion
for Judgment on the Pleadings (Dkt. 65) and deny
Plaintiff's motion to certify an interlocutory appeal
Gloria Mitchell sued WinCo in 2016, alleging that WinCo
violated the Fair Credit Reporting Act by failing to provide
certain disclosures to job applicants and employees. The
Court dismissed Mitchell's First Amended Complaint after
concluding that she failed to adequately allege
“concrete injury, ” thereby denying this Court
jurisdiction under Article III of the Constitution. Dkt. 28.
Mitchell appealed, and the Ninth Circuit affirmed with
respect to the Article III inquiry but ordered the Court to
give Mitchell an opportunity to amend her complaint. Dkt. 42.
then filed her Second Amended Complaint. Dkt. 46. Apparently
satisfied that the Second Amended Complaint adequately
alleged standing, WinCo responded with a motion to dismiss
alleging other grounds why the complaint should be dismissed
under Rule 12(b)(6). Dkt. 49. In May 2019, this Court granted
in part and denied in part the motion. Dkt. 61.
Mitchell's favor, the Court concluded that she had
plausibly alleged WinCo's disputed disclosure violated
the FCRA because it combined two different types of
disclosures. That is, WinCo's disclosure simultaneously
notified applicants that WinCo would obtain both a consumer
report and an investigative report. Section 1681b(b)(2)(A)(i)
of FCRA requires a standalone disclosure when an employer is
seeking a consumer report. See Id. at 6 (“A
disclosure that an employer is seeking a consumer report must
contain solely that information; it cannot be intermingled
with additional details, clearly written or not.”). The
Court thus denied WinCo's motion to dismiss on this
Winco's favor, the Court concluded that Mitchell had
failed to plausibly allege Winco's disclosure was a
willful violation of the FCRA. Id. at
parties now concede that once the Court entered its May 9,
2019 ruling, Mitchell's case was effectively over - at
least at the district-court level. Here's why: Plaintiff
alleged a single count for an alleged FCRA violation, and she
sought two forms of relief: (1) monetary damages; and (2) a
declaratory judgment that Winco's disclosure violates the
FCRA. See Dkt. 46 at 15. To recover monetary damages
under the FCRA, plaintiffs must plead either actual damages
based on a negligent or willful violation, or statutory
damages ranging from $100 to $1, 000 for a willful violation.
15 U.S.C. §§ 1681o(a), 1681n(a); see also
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 53 (2007).
Here, plaintiff is not pursuing actual damages; she is
pursuing statutory damages only based on an alleged willful
violation. See Safeco, 551 U.S. at 53 (if a
violation is negligent, the affected consumer is entitled to
actual damages, but if the violation is willful, the consumer
may have actual damages or statutory damages).
upshot is that plaintiff's only remaining claim before
this Court is one for declaratory relief under the FCRA. The
problem is that declaratory relief is not available to
private litigants under the FCRA. See 15 U.S.C.
§§ 1681n, § 1681o, 1681s. The Ninth Circuit
has not opined on this issue, but this Court concludes that
when Congress limited the remedies for private rights of
action under the FCRA to damages and attorneys' fees,
Congress demonstrated that it did not intend for private
litigants to obtain injunctive or declaratory relief. See
Washington v. CSC Credit Servs. Inc., 199 F.3d 263, 269
(5th Cir. 2000); DeVries v. Experian Info. Solutions,
Inc., No. 16-CV-02953-WHO, 2018 WL 1426602, at *3 n.2
(N.D. Cal. Mar. 22, 2018) (observing that district courts in
the Ninth Circuit “are generally in accord with
Washington in concluding that equitable relief is
not available to private plaintiffs under the FCRA.”).
their agreement that plaintiff's case is over in this
Court, the parties disagree on the procedural path forward.
WinCo asks the Court to dismiss the case. Plaintiff says the
more appropriate procedural move is to allow her to file an
interlocutory appeal, thus keeping this case alive at the
district-court level while she pursues an appeal.
the pleadings are closed - but early enough not to delay
trial - a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). A motion for judgment
on the pleadings should only be granted if “the moving
party clearly establishes on the face of the pleadings that
no material issue of fact remains to be resolved and that it
is entitled to judgment as a matter of law.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
896 F.2d 1542, 1550 (9th Cir. 1989). Judgment on the
pleadings is also proper when there is either a “lack
of cognizable legal theory” or the “absence of
sufficient facts alleged under a cognizable legal
theory.” Balistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1988). In reviewing a Rule 12(c)
motion, “all factual allegations in the complaint [must
be accepted] as true and construe[d] . . . in the light most
favorable to the non-moving party.” Fleming v.
Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
judgment on the pleadings is appropriate because
plaintiff's sole remaining remedy - declaratory relief
under the FCRA - is unavailable to her. In opposing
WinCo's motion for judgment on the pleadings, Mitchell
does not even discuss the standards governing such a motion,
much less argue that she continues to have a live claim
before this Court. Instead, she says only that rather than