United States District Court, D. Nevada
before the court is defendant TLC Casino Enterprises, Inc.,
d/b/a Four Queens Hotel and Casino's motion to dismiss.
(ECF No. 9). Plaintiff Valarie Williams filed a response (ECF
No. 10), to which defendant replied (ECF No. 15). Plaintiff
also filed a supplemental response to defendant's motion
to dismiss (ECF No. 16), to which defendant has not replied.
a class action brought by plaintiff and on behalf of all
similarly situated individuals. Plaintiff filed her class
action complaint with jury demand on November 7, 2017. (ECF
No. 1). In her complaint, plaintiff alleges that defendant
“routinely . . . willfully and systematically”
violated 15 U.S.C. § 1681b(b)(2)(A)(i) by procuring
consumer reports for employment purposes of plaintiff and
other putative class members without “first making
proper disclosures in the format required” by the Fair
Credit Reporting Act, 15 U.S.C. § 1681 (2011) (the
“FCRA”). Id. at 3.
plaintiff alleges that defendant obtained background reports
for prospective and current employees, including plaintiff,
in order to use the reports to make employment related
decisions. (ECF No. 1 at 2). According to plaintiff, in
violation of the FCRA, defendant failed to provide her with a
“stand-alone document of a legal disclosure”
indicating that defendant was going to conduct a background
check. 15 U.S.C. § 1681b(b)(2)(A)(i); (ECF
Nos. 1, 10, 16). Plaintiff asserts that defendant instead
provided plaintiff with a written conditional offer to hire
that included, inter alia, the following statement:
“Continuation of this position and your employment is
dependent upon your passing any Background Check or Drug
Screen that may be required for your position.” (ECF
No. 1 at 4-5). Plaintiff seeks to represent
“[t]housands of [d]efendant's prospective and
existing employees” who received similar conditional
offers of employment within the last five years. Id.
moves to dismiss plaintiff's claims for lack of standing
pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock West, Inc. v. Confederated Tribes
of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
Rule of Civil Procedure 12(b)(1) allows defendants to seek
dismissal of a claim or action for a lack of subject matter
jurisdiction. Dismissal under Rule 12(b)(1) is appropriate if
the complaint, considered in its entirety, fails to allege
facts on its face sufficient to establish subject matter
jurisdiction. In re Dynamic Random Access Memory (DRAM)
Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008).
the defendant is the moving party in a 12(b)(1) motion to
dismiss, the plaintiff is the party invoking the court's
jurisdiction. As a result, the plaintiff bears the burden of
proving that the case is properly in federal court to survive
the motion. McCauley v. Ford Motor Co., 264 F.3d
952, 957 (9th Cir. 2001) (citing McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). More
specifically, the plaintiff's pleadings must show
“the existence of whatever is essential to federal
jurisdiction, and, if [plaintiff] does not do so, the court,
on having the defect called to its attention or on
discovering the same, must dismiss the case, unless the
defect be corrected by amendment.” Smith v.
McCullough, 270 U.S. 456, 459 (1926).
moving to dismiss under Rule 12(b)(1), the challenging party
may either make a “facial attack, ” confining the
inquiry to challenges in the complaint, or a “factual
attack” challenging subject matter on a factual basis.
Savage v. Glendale Union High Sch., 343 F.3d 1036,
1039 n. 2 (9th Cir. 2003). For a facial attack, the court
assumes the truthfulness of the allegations, as in a motion
to dismiss under Rule 12(b)(6). Trentacosta v. Frontier
Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th
Cir. 1987). By contrast, when presented as a factual
challenge, a Rule 12(b)(1) motion can be supported by
affidavits or other evidence outside of the pleadings.
U.S. v. LSL Biotechs., 379 F.3d 672, 700 n. 14 (9th
Cir. 2004) (citing St. Clair v. City of Chicago, 880
F.2d 199, 201 (9th Cir. 1989)).
court grants a motion to dismiss a complaint, it must then
decide whether to grant plaintiff leave to amend.
Lucatelli v. Texas De Brazil (Las Vegas) Corp., No.
2:11-CV-01829-RCJ, 2012 WL 1681394, at *2 (D. Nev., May 11,
2012). The court should “freely give” leave to
amend where there is no “undue delay, bad faith or
dilatory motive on the part of the movant . . . undue
prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of the amendment.”
Fed.R.Civ.P. 15(a)(2); Foman v. Davis, 371 U.S. 178,
182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Generally,
leave to amend is only denied when it is clear that the
deficiencies of the complaint cannot be cured by amendment.
See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d
655, 658 (9th Cir. 1992).
nexus of defendant's motion to dismiss centers around two
theories. (ECF Nos. 9, 15). As a threshold matter, defendant
asserts that plaintiff lacks Article III standing because,
even if defendant failed to provide plaintiff with a
“stand-alone document of a legal disclosure, ” at
most, this amounted to a “bare procedural
violation” of the FCRA, rather than a substantive
issue. 15 U.S.C. § 1681b(b)(2)(A)(i); (ECF Nos. 1, 10,
16). Defendant also asserts that, even if defendant's
conditional offer of employment violated the FCRA (which
defendant does not admit), plaintiff's claim still fails
because plaintiff does not plausibly plead any concrete harm
to herself. (ECF No. 9 at 2).
responds that defendant's alleged violation of the FCRA
regarding stand-alone documents for legal disclosures
proffers standing to plaintiff and the putative class members
because deprivation of the right to information and the right
to privacy guaranteed ...