Mix v. JPMorgan Chase Bank NA

Filing 57

ORDER granting 37 Motion for Summary Judgment; denying Plaintiff's Rule 56 (d) Motion (Doc. 42 at 9); and directing the Clerk of Court to enter judgment accordingly in favor of Defendant on all of Plaintiff's claims against it and close this matter. Signed by Judge John J Tuchi on 10/6/16.(KGM)

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1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Amanda Mix, No. CV-15-01102-PHX-JJT Plaintiff, 10 11 v. 12 ORDER JPMorgan Chase Bank, NA, 13 Defendant. 14 At issue is Defendant’s Motion for Summary Judgment (Doc. 37, Mot. Summ. J.). 15 The Court also considers Plaintiff’s Motion to Stay Action under Federal Rule of Civil 16 Procedure 56(d) (Doc. 42 at 5, 9, Mot. to Stay). Because the parties’ briefs were adequate 17 for the Court to resolve the issues arising in the parties’ Motions, the Court finds these 18 matters appropriate for decision without oral argument. See LRCiv 7.2(f). For the reasons 19 set forth below, the Court grants Defendant’s Motion for Summary Judgment and denies 20 Plaintiff’s Motion to Stay Action under Rule 56(d). 21 I. BACKGROUND 22 In January 2015, Amanda Mix (hereinafter “Plaintiff”) applied for and accepted a 23 contingent worker position at JPMorgan Chase Bank (hereinafter “Defendant”). (Doc. 38 24 ¶¶ 15–16.) During the hiring process, Defendant obtained fingerprints from Plaintiff in 25 order to obtain a Federal Bureau of Investigation (“FBI”) background check on her. 26 (Doc. 38 ¶¶ 17–18.) As a result of the outcome of the FBI’s fingerprint background 27 check, Defendant revoked Plaintiff’s offer of employment. (Doc. 1, Compl. ¶ 25.) While 28 Plaintiff alleges she “unsuccessfully attempted to obtain more information about the 1 background check process,” (Doc. 43 ¶ 19), Defendant contends that, after “receiving the 2 fingerprint results from the FBI via Fieldprint,” Plaintiff failed to provide additional 3 information needed to “determine Plaintiff’s eligibility for assignment,” (Doc. 38 ¶ 19). 4 On June 16, 2015, Plaintiff filed a Complaint bringing a putative class action 5 against Defendant under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et 6 seq. (Compl. ¶ 1.) Plaintiff alleges that Defendant “routinely obtains and uses information 7 in consumer reports to conduct background checks on prospective ‘contingent workers,’ 8 and frequently relies on such information . . . as a basis for adverse employment actions, 9 including the refusal to hire.” (Compl. ¶ 1.) After Defendant “used or obtained a 10 ‘consumer report[]’ . . . in evaluating Plaintiff for prospective employment,” Plaintiff 11 claims that Defendant willfully violated the disclosure and authorization requirements of 12 the FCRA “in violation of Plaintiff’s rights and the rights of the other members of the 13 putative class.” (Compl. ¶¶ 3–5.) Particularly, Plaintiff states that Defendant violated the 14 FCRA by failing to make “a clear and conspicuous disclosure” to Plaintiff that the 15 “consumer report may be obtained for employment purposes” and by failing to provide 16 “Plaintiff with a copy of her report or a notice of her rights under the FCRA before 17 communicating to Plaintiff that her offer had been revoked.” (Compl. ¶¶ 30, 36.) 18 On August 17, 2015, Defendant filed an Answer (Doc. 13) denying liability under 19 the FCRA. At the Scheduling Conference on December 14, 2015, the Court ordered that 20 each party file a brief “on whether phased discovery in support of the preliminary 21 determination of the threshold issue of standing is or is not appropriate.” (Doc. 31.) 22 Defendant filed a Brief in Support of Phased Discovery Regarding the Threshold 23 Standing Issue (Doc. 32, Def.’s Br. on Phased Disc.), contending that “Plaintiff’s FCRA 24 claims hinge on a narrow but dispositive issue: was the report at issue a ‘consumer 25 report’ issued by a ‘consumer reporting agency’ (‘CRA’) as those terms are defined by 26 the FCRA? If the information Chase received is not a consumer report, then this case is 27 over.” (Def.’s Br. on Phased Disc. at 1.) Accordingly, Defendant argued that “[d]iscovery 28 -2- 1 should be phased to allow an early determination of whether the report at issue is a 2 consumer report and, thus, subject to the FCRA.” (Def.’s Br. on Phased Disc. at 2.) 3 In its brief opposing phased discovery (Doc. 33, Pl.’s Br. on Phased Disc.), 4 Plaintiff claimed that “whether the FCRA applies to this action at all” is not “a 5 ‘threshold’ question.” (Pl.’s Br. on Phased Disc. at 1.) “Under the plain language of the 6 FCRA, Fieldprint is a [CRA] under § 1681a(f)” and “the information it furnished to 7 Chase about [Plaintiff] constitutes a ‘consumer report’ under § 1681a(d).” (Pl.’s Br. on 8 Phased Disc. at 1.) As a result, Plaintiff asked that the Court reject Defendant’s “request 9 that discovery be limited.” (Pl.’s Br. on Phased Disc. at 4.) After considering the parties’ 10 briefs, the Court ordered on May 12, 2016 that “the parties may conduct discovery 11 limited to the question of whether, in the context posed by Plaintiff, Fieldprint acts as a 12 [CRA] furnishing consumer reports under the FCRA.” (Doc. 35.) The parties were to 13 complete discovery on this issue by June 17, 2016. (Doc. 35.) 14 15 16 17 18 19 20 21 22 On July 1, 2016, after the close of discovery, Defendant filed a Motion for Summary Judgment, contending as follows: [T]he FBI is not a [CRA] regulated by the FCRA. Moreover, the method by which [Defendant] obtains the information on applicants—through use of an FBI-authorized ‘channeler’ of data—is not governed by the FCRA. [Defendant’s] FBI channeler, Fieldprint, Inc., does not act as a CRA when it transmits unadulterated information it obtains from the FBI directly to [Defendant]. The necessary conclusion is that the FBI information [Defendant] receives through Fieldprint’s channeling services is not subject to the FCRA. Thus, Plaintiff’s argument . . . is devoid of merit, and summary judgment is appropriate. (Mot. Summ. J. at 2.) 23 On July 28, 2016, Plaintiff filed a Response to Defendant’s Motion for Summary 24 Judgment that included, in the alternative, a Motion to Stay Action under Rule 56(d). 25 Plaintiff claims that Defendant “asks the Court to commit a serious error of law in finding 26 that its background check company, Fieldprint, is not a [CRA]” because “the definition of 27 CRA is not case-dependent.” (Resp. at 1–2.) “Because Fieldprint ‘regularly engages’ in 28 the practice of assembling and evaluating consumer information to be sold to third parties -3- 1 as consumer reports, . . . the information it transmitted to [Defendant] constitutes a 2 consumer report.” (Resp. at 2.) 3 On July 29, 2016, Defendant filed a Reply Brief (Doc. 46, Reply) in support of its 4 Motion for Summary Judgment. To the extent that Plaintiff’s Response claims that fitness 5 determination or Criminal History Record Information (“CHRI”) adjudication services 6 encompass “evaluating consumer credit information” as that term is used in the definition 7 of a CRA under 15 U.S.C. § 1681a(f), (Resp. at 4–5), Defendant contends that “Fieldprint 8 does not perform fitness determination or CHRI adjudication services” in general, 9 including not for Defendant, (Reply at 3–4). 10 On August 8, 2016, Plaintiff filed a Motion to Strike Affidavit Attached in 11 Support of Chase’s Reply or, in the Alternative, Request for Leave to File a Surreply 12 (Doc. 48), arguing that Defendant included an argument for the first time in its Reply and 13 supported it with a new affidavit. On August 25, 2016, Defendant filed a Brief in 14 Opposition to Plaintiff’s Motion to Strike Affidavit (Doc. 49). The Court entered an 15 Order regarding these Motions on August 31, 2016: 16 23 Underlying Plaintiff’s request is her position that the Fair Credit Reporting Act (FCRA) applies to any entity that assembles or evaluates information about consumers, whether or not the entity did so in the transaction at issue. (See Doc. 42 at 7.) [Defendant] argues that the requirements of the FCRA do not apply to an entity that did not assemble or evaluate consumer information in the transaction at issue, even if the entity may have done so in other transactions. (See Doc. 46 at 4–5.) If the Court agrees with [Defendant’s] position on this point, a Sur-Reply will not likely be relevant to the Court’s resolution of the pending Motion for Summary Judgment. However, because the Court has not yet resolved the issue presented by the parties, the Court will allow Plaintiff to file a Sur-Reply to Defendant’s Reply, if she so desires. 24 (Doc. 50 at 1–2.) Plaintiff field a Sur-Reply (Doc. 52) on September 9, 2016, which the 25 Court has considered along with all of the parties’ other briefs. 26 .... 27 .... 28 .... 17 18 19 20 21 22 -4- 1 II. MOTION FOR SUMMARY JUDGMENT 2 A. 3 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 4 appropriate when: (1) the movant shows that there is no genuine dispute as to any 5 material fact; and (2) after viewing the evidence most favorably to the non-moving party, 6 the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. 7 Catrett, 477 U.S. 317, 322–23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 8 1288–89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect 9 the outcome of the suit under governing [substantive] law will properly preclude the 10 entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 11 A “genuine issue” of material fact arises only “if the evidence is such that a reasonable 12 jury could return a verdict for the non-moving party.” Id. Legal Standard 13 In considering a motion for summary judgment, the court must regard as true the 14 non-moving party’s evidence if it is supported by affidavits or other evidentiary material. 15 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The non-moving party may not 16 merely rest on its pleadings; it must produce some significant probative evidence tending 17 to contradict the moving party’s allegations, thereby creating a question of material fact. 18 Anderson, 477 U.S. at 256–57 (holding that the plaintiff must present affirmative 19 evidence in order to defeat a properly supported motion for summary judgment); First 20 Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 21 “A summary judgment motion cannot be defeated by relying solely on conclusory 22 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 23 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 24 sufficient to establish the existence of an element essential to that party’s case, and on 25 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 26 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 27 .... 28 .... -5- 1 B. 2 At issue is whether there remains a genuine dispute of material fact as to whether 3 Fieldprint is a CRA furnishing consumer reports under the FCRA, 15 U.S.C. § 1681 et 4 seq. The FCRA defines a CRA as: 5 6 7 8 9 10 Analysis any person which, for monetary fees . . . regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f) (emphasis added). Under the FCRA, a “consumer report” is: 14 any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for . . . employment purposes. 15 Id. § 1681a(d)(1) (emphasis added). The parties disagree as to whether Fieldprint 16 “regularly assembles or evaluates information about consumers.” See id. § 1681a(f). As 17 the moving party, Defendant has the burden to demonstrate an absence of a genuine 18 dispute of material fact. See Celotex, 477 U.S. at 323. 11 12 13 19 Defendant contends Fieldprint is not a CRA because Fieldprint is an “FBI- 20 authorized ‘channeler’ of data” that merely “transmits unadulterated information it 21 obtains from the FBI directly to [Defendant].” (Mot. Summ. J. at 2.) Because “Fieldprint 22 does not ‘assemble’ or ‘evaluate’ consumer information that it transmits from the FBI to 23 [Defendant] within the meaning of the FCRA,” Defendant alleges that the “information 24 provided via Fieldprint’s channeling service is not a consumer report.” (Mot. Summ. J. at 25 5, 7.) While not conceding that Fieldprint regularly—or even ever—assembles or 26 evaluates consumer information, Defendant argues that “Fieldprint’s status as a CRA is 27 determined by the transaction at issue.” (Reply at 4.) 28 -6- 1 The Court finds that Defendant successfully meets its burden to establish an 2 absence of any genuine issue of material fact. First, Defendant provided evidence 3 indicating that Fieldprint acts as a conduit rather than a CRA. Specifically, Defendant 4 submitted the Declaration of James Figliuolo (Doc. 38-1 at 1–3, Figliuolo Decl.), the 5 Declaration of Morris Gargiule (Doc. 38-2 at 1–3, Gargiule Decl.), and a copy of the 6 National Crime Prevention and Privacy Compact that Defendant entered into with the 7 FBI (Doc. 38-1 at 4–5, Compact). Pursuant to this Compact, Defendant “is granted 8 permission to utilize Fieldprint to perform ‘Channeler’ functions” requiring access to 9 CHRI “when necessary[] to promote or maintain the security of the banking institution.” 10 (Compact at 4.) The only “channeler” functions Fieldprint is authorized to perform 11 include 12 applicants/employees” and “the concomitant dissemination of national fingerprint-based 13 criminal history record check results to only the authorized officials of JPMorgan Chase 14 who are involved in the human resources decisions.” (Compact at 5.) Therefore, 15 Fieldprint electronically submits fingerprints to—and later receives CHRI from—the FBI 16 on behalf of Defendant. (Figliuolo Decl. at 2.) “fingerprint submissions of authorized JPMorgan Chase Bank 17 Notably, the Compact does not explicitly specify that Fieldprint’s actions as a 18 channeler will be monitored through the FCRA. (See Compact at 4–5.) Rather, according 19 to the Outsourcing Standard for Channelers, Defendant “is responsible for the actions of 20 the contractor and shall monitor the contractor’s compliance to the terms and conditions 21 of the Outsourcing Standard for Channelers.” (Compact at 5.) Further, through the 22 Outsourcing Standard for Channelers, “the FBI will perform limited auditing functions on 23 behalf of [Defendant].” (Compact at 5.) This suggests that Fieldprint’s role as a channeler 24 is akin to an agent acting at the behest of its principals—Defendant and the FBI; 25 therefore, as an agent without control over its principals’ employment decisions, 26 Fieldprint is not a CRA. See Mattiaccio v. DHA Grp., Inc., 21 F. Supp. 3d 15, 23–25 27 (D.D.C. 2014) (finding that “attorney with a clear fiduciary and agency relationship to the 28 employer-client at whose behest the attorney-defendant conducted a background -7- 1 investigation” and who was not shown to have “made the decision to terminate Plaintiff” 2 was not a CRA); Weidman v. Fed. Home Loan Mortg. Corp., 338 F. Supp. 2d 571, 575– 3 77 (E.D. Pa. 2004) (finding that defendant who merely requested “credit reports on behalf 4 of a contracting lender” in order to assist lenders in deciding whether to offer credit, acted 5 as lenders’ agent and, therefore, was not a CRA because it acted “at the behest of 6 principals with primary control over the process of obtaining consumer reports and 7 making credit decisions”). 8 The Declaration of Morris Gargiule, Vice President of Operations at Fieldprint, 9 also supports Defendant’s contention that Fieldprint is a mere channeler of unadulterated 10 information. According to this Declaration, Fieldprint personnel cannot access, view, 11 analyze, manipulate, alter, or evaluate the CHRI transmitted by the FBI to Defendant. 12 (Gargiule Decl. at 2.) Rather, Fieldprint “provides a technical conduit or connection 13 whereby the FBI can transmit CHRI” to Defendant. (Gargiule Decl. at 2.) According to 14 the Federal Trade Commission’s report, 40 Years of Experience with the Fair Credit 15 Reporting Act: 16 17 18 19 20 An entity that performs only mechanical tasks in connection with transmitting consumer information is not a CRA because it does not assemble or evaluate information. For example, a business that delivers records, without knowing their content or retaining any information from them, is not acting as a CRA even if the recipient uses the records to evaluate the consumer’s eligibility for insurance or another permissible purpose. 21 F.T.C., 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report 22 with Summary of Interpretations, 2011 WL 3020575, at *22 (July 2011). 23 Similarly, Fieldprint is not a CRA within the meaning of the FCRA because it 24 “does not ‘assemble’ or ‘evaluate’ [the] consumer information that it transmits from the 25 FBI” to Defendant. (Mot. Summ. J. at 5); see McCalmont v. Fed. Nat. Mortg. Ass’n, 26 No. 2:13-CV-2107-HRH, 2014 WL 3571700, at *4 (D. Ariz. July 21, 2014) (“Because 27 Fannie Mae is not actively involved in the compilation of the consumer information, it is 28 not regularly assembling and evaluating consumer information and thus it cannot be a -8- 1 ‘consumer reporting agency.’”); Smith v. Busch Entm’t Corp., No. CV-3:08-772-HEH, 2 2009 WL 1608858, at *3 (E.D. Va. June 3, 2009) (holding that the VA State Police 3 Central Criminal Records Exchange is not a CRA merely because it “provides employers 4 [with] criminal conviction data on employees or prospective employees”); Ori v. Fifth 5 Third Bank, & Fiserv, Inc., 603 F. Supp. 2d 1171, 1175 (E.D. Wisc. 2009) (“Obtaining 6 and forwarding information does not make an entity a CRA.”) (citing DiGianni v. 7 Stern’s, 26 F.3d 346, 349 (2d Cir. 1994) (holding that “a creditor who merely passes 8 along information concerning particular debts owed to it” is not a CRA)); D’Angelo v. 9 Wilmington Med. Ctr., Inc., 515 F. Supp. 1250, 1253 (D. Del. 1981) (stating that the 10 FCRA’s assembling or evaluating requirement “implies a function which involves more 11 than receipt and retransmission of information”). Furthermore, “the duties imposed on 12 consumer reporting agencies by the Act are such that it is unlikely that Congress intended 13 them to apply to persons or entities remote from the one making the relevant credit or 14 employment decision.” D’Angelo, 515 F. Supp. at 1253.1 15 Next, Defendant demonstrates that Fieldprint does not “regularly engage[] in 16 whole or in part in the practice of assembling or evaluating” information for any third 17 party, see 15 U.S.C. § 1681a(f) (emphasis added), through the second Declaration of 18 19 20 21 22 23 24 25 26 27 28 1 Defendant contends Plaintiff, “[i]n an effort to avoid the FCRA’s plain language, . . . resorts to policy arguments that the FBI CHRI data should be governed by the FCRA.”(Reply at 7 n.5). Specifically, Plaintiff states that the “potential for inaccurate or incomplete information” still exists in the FBI’s CHRI data, so “[c]onsumers are entitled to see what the employer is seeing before the employer takes adverse action against them.” (Resp. at 6). Although Plaintiff claims that “the legislative purpose of the FCRA’s provisions concerning the use of consumer reports for employment purposes” supports the conclusion that Fieldprint is a CRA under the FCRA’s plain language, (Resp. at 3–4), the Court is not convinced. The primary purpose of the FCRA is “to protect consumers against inaccurate and incomplete credit reporting.” Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1060 (9th Cir. 2002). “Congress enacted the Fair Credit Reporting Act . . . in 1970 ‘to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.’” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009) (internal citation omitted). Furthermore, the Court agrees with Defendant that “[i]f Congress had been concerned about the accuracy of the information provided by the FBI, then it could have made the FCRA applicable to federal agencies.” (Reply at 7 n.5); see Ollestad v. Kelley, 573 F.2d 1109, 1111 (9th Cir. 1978) (“[T]he lack of express reference to federal agencies in the act or in the legislative history is some indication that Congress did not intend to place federal agencies within the purview of the FCRA.”) (citations omitted). -9- 1 Morris Gargiule, (Doc. 46-1 at 1–2, Gargiule Decl. 2).2 In this Declaration, Gargiule 2 confirms that “Fieldprint does not perform any fitness determination or CHRI 3 adjudication services for any private employer.” (Gargiule Decl. 2 at 1) (emphasis 4 added). Rather, Fieldprint’s affiliate, Business Information Group (“BIG”)—a CRA and a 5 separate legal entity—performs these services if they are required. (Gargiule Decl. at 2.) 6 To the extent these fitness determinations or CHRI adjudication services could constitute 7 “assembling or evaluating” information, it is significant that Fieldprint never performs 8 these services itself. Consequently, Fieldprint cannot be said to be “regularly” involved in 9 the assembly or evaluation of information for any third party, and is thus not a CRA. 10 Although not necessary to resolve the present Motion, if the Court were to accept 11 Defendant’s alternative argument that the inquiry is limited to whether Defendant 12 13 14 15 16 17 18 2 Although the term “regularly” is not defined in the FCRA, at least two Federal District Courts have looked to the Fair Debt Collection Practices Act (“FDCPA”) for guidance due to the similarities in language between the two statutes. See Lewis v. Ohio Prof’l Elec. Network LLC, 190 F. Supp. 2d 1049, 1056–57 (S.D. Ohio 2002); Johnson v. Fed. Express Corp., 147 F. Supp. 2d 1268, 1275 (M.D. Ala. 2001). In Johnson, the court looked to the court’s opinion in Schroyer v. Frankel, which noted that a debt collector under the FDCPA—defined as “any person . . . who regularly collects or attempts to collect” debts owed to others—“must have more than an ‘occasional’ involvement with debt collection activities.” Johnson, 147 F. Supp. 2d at 1275 (quoting Schroyer v. Frankel, 197 F.3d 1170, 1173–74 (6th Cir. 1999)). Finding Schroyer’s analysis persuasive, Johnson stated: 19 20 21 22 23 By regulating only those consumer reporting agencies who ‘regularly engage’ in reporting, Congress opted for incomplete coverage of the industry. Therefore, the court holds that a consumer reporter must provide consumer reports as part of his usual, customary, and general course of business if he is to qualify as a ‘consumer reporting agency’ under the FCRA. . . . Only those agencies that ‘regularly engage’ in consumer reporting play a ‘vital role in assembling and evaluating consumer credit and other information on consumers.’ 15 U.S.C. § 1681(a)(3). 24 Id. 25 Similarly, the Fifth Circuit noted that “[t]he requirement that a consumer reporting agency engage regularly in the collection of information was obviously intended to protect individuals . . . who engage in activities that might fall within the definition of the FCRA on a casual, one-time basis. Hodge v. Texaco, Inc., 975 F.2d 1093, 1097 (5th Cir. 1992). Other guidelines suggest asking “whether the collection or evaluation of information on consumers is a normal part of the entity’s activities and that, whenever the occasion presents itself, the entity disseminates the information.” 1 Fed. Reg. Real Estate & Mortgage Lending § 9:6 (4th ed.). 26 27 28 - 10 - 1 regularly assembles or evaluates information in the context raised by Plaintiff—that is, 2 under the Compact with the FBI—Gargiule’s second Declaration affirms that “neither 3 Fieldprint nor any of its affiliates, including BIG, performed a CHRI fitness 4 determination or adjudication on Plaintiff Amanda Mix.” (Gargiule Decl. 2 at 2.) Rather 5 than assembling and evaluating consumer information, Defendant asserts “Fieldprint’s 6 only function was to serve as a technical connection between [Defendant] and the FBI” 7 by processing “Plaintiff’s fingerprints and FBI background check.” (Reply at 5.) 8 Defendant argues that, because it has demonstrated that Fieldprint did not assemble or 9 evaluate information on Plaintiff in the transaction at issue, Defendant successfully 10 established that it was not a CRA and thus “no consumer report [is] at issue.” (Reply at 11 3.) A defendant may satisfy its initial burden at summary judgment if it “establishes that 12 there is an absence of any genuine issue of material fact regarding whether it was acting 13 as a consumer reporting agency in the alleged transactions.” Liberi v. Taitz, No. SACV- 14 11-0485-AG-AJWX, 2012 WL 10919114, at *5 (C.D. Cal. Mar. 16, 2012). “[The 15 defendant] does not need to show that it never operated as a consumer credit reporting 16 agency, only that it did not operate as a consumer credit reporting agency regarding the 17 transactions at issue here.” Id. (citation omitted); see also Marricone v. Experian Info. 18 Sols., Inc., No. 09-CV-1123, 2009 WL 3245417, at *1 (E.D. Pa. Oct. 6, 2009) 19 (“[W]hether an entity is acting as a consumer reporting agency in a particular situation is 20 a fact-specific inquiry. . . . Thus factual discovery will help determine whether 21 Defendants acted as CRAs in this case.” (emphasis added)). Defendant has demonstrated 22 the absence of a genuine dispute as to whether it is a CRA in its normal activities as well 23 as in the transaction at issue. 24 On the other hand, Plaintiff fails to demonstrate a genuine issue of fact regarding 25 whether Fieldprint acted as a CRA. Plaintiff only offers speculation, based on broad 26 statements from Fieldprint’s website that Fieldprint acted as a CRA in the alleged 27 transaction. (See Doc. 43 at 4–6.) However, “[a] summary judgment motion cannot be 28 - 11 - 1 defeated by relying solely on conclusory allegations unsupported by factual data.” 2 Taylor, 880 F.2d at 1045. 3 Plaintiff claims that “[w]hether Fieldprint adjudicated Plaintiff’s report or made a 4 fitness determination with respect to Plaintiff is irrelevant” because the “statute deems a 5 person a CRA . . . based on whether it ‘regularly assembles or evaluates’ such 6 information.” (Resp. at 7.) According to Plaintiff, “the definition of CRA is not case- 7 dependent.” (Resp. at 2.) Even if the Court agrees with Plaintiff on this point, Plaintiff 8 has failed to provide the Court with sufficient evidence to show Fieldprint regularly 9 assembles or evaluates consumer credit information at all. The only “evidence” Plaintiff 10 provides on this point is statements Plaintiff pulled from Fieldprint’s website that 11 purportedly indicate that all of Fieldprint’s activities are governed by the FCRA. (See 12 Doc. 43 at 4–6.) Plaintiff’s characterization of this evidence is misleading. Plaintiff does 13 not mention another statement from Fieldprint’s website—which Defendant provides as 14 evidence—indicating that Fieldprint’s affiliates actually perform any required fitness 15 determination and CHRI adjudication services. (See Gargiule Decl. 2 at 1.) That 16 Fieldprint’s affiliates may perform these services—rather than Fieldprint—is significant; 17 Fieldprint and its affiliates are “distinct entities at all times relevant to this litigation.” See 18 Liberi, 2012 WL 10919114, at *7. Just because Fieldprint’s affiliates may offer “some 19 services governed by the FCRA does not mean that all of [Fieldprint’s] services are so 20 governed.” Id.; see also Zabriskie v. Federal Nat’l Morg. Assoc., 109 F. Supp. 3d 1178, 21 1183 n.6 (D. Ariz. 2014) (finding that Fannie Mae acts as a CRA when it licenses its 22 software to lenders, but emphasizing “the limited scope of this finding” because “[t]he 23 Court does not find that Fannie Mae is at all times acting as a [CRA].” (emphasis 24 added)). 25 Plaintiff’s affidavits and evidence fail to contravene Defendant’s evidentiary 26 material, which demonstrates that Fieldprint is not a CRA within the meaning of the 27 FCRA. As a result, the Court concludes Defendant is entitled to judgment as a matter of 28 - 12 - 1 law on Plaintiff’s claims under the FCRA and therefore grants Defendant’s Motion for 2 Summary Judgment. 3 III. RULE 56(d) MOTION 4 A. 5 Federal Rule of Civil Procedure 56(d) “offers relief to a litigant who, faced with a 6 summary judgment motion, shows the court by affidavit or declaration that ‘it cannot 7 present facts essential to justify its opposition.’” Michelman v. Lincoln Nat. Life Ins. Co., 8 685 F.3d 887, 899 (9th Cir. 2012) (quoting Fed. R. Civ. P. 56(d)). Accordingly, the Court 9 may “(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or 10 declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. 11 P. 56(d). Rule 56(d) only applies “where the non-moving party has not had the 12 opportunity to discover information that is essential to its opposition.” Roberts v. McAfee, 13 Inc., 660 F.3d 1156, 1169 (9th Cir. 2011) (citations omitted). When faced with a Rule 14 56(d) motion, “the Court should consider whether denying or deferring the motion for 15 summary judgment would promote greater justice.” Roosevelt Irrigation Dist. v. Salt 16 River Project Agric. Improvement & Power Dist., No. 2:10-CV-290-DAE-BGM, 2016 17 WL 3613278, at *1 (D. Ariz. Feb. 22, 2016). The party requesting the motion to stay 18 under Rule 56(d) must make “[a] good faith showing that a continuance is needed” by 19 demonstrating, via “affidavit or declaration, the specific facts she hopes to elicit from 20 further discovery, that the facts sought exist, and that these facts are essential to resist the 21 summary judgment motion.” Smith v. Barrow Neurological Inst. of St. Joseph’s Hosp. & 22 Med. Ctr., No. CV 10-01632-PHX-FJM, 2012 WL 3108811, at *2 (D. Ariz. July 31, 23 2012) (citing Cal. ex rel. Cal. Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 24 772, 779 (9th Cir. 1998)). “[A] party cannot successfully oppose a summary judgment 25 motion by simply claiming that further discovery may yield unspecified facts that could 26 plausibly defeat summary judgment.” Id. (citation omitted). 27 .... 28 .... Legal Standard - 13 - 1 B. 2 In the Motion to Stay Action under Rule 56(d), Plaintiff states that “the Court’s 3 order did not permit enough time to conduct meaningful discovery” on the issue of 4 whether the information Fieldprint assembles is only obtained from the FBI. (Mot. to 5 Stay at 5 n.2.) “To the extent the definition of ‘assembly’ requires obtaining information 6 from more than one source—it does not—Plaintiff requests a stay under Rule 56(d).” 7 (Mot. to Stay at 5 n.2.) Plaintiff continues: “[s]hould the Court feel inclined to grant 8 [Defendant’s] motion for summary judgment, Plaintiff requests a stay of its ruling to 9 obtain discovery” in order to “see what [Defendant] received about her.” (Mot. to Stay at 10 11 9.) Defendant correctly notes: 12 The Court entered an Order on May 12, 2016 permitting limited discovery on the issue of “whether in the context posed by Plaintiff, Fieldprint operates as a [consumer] reporting agency.” (Dkt. No. 35). The Order required discovery to be “completed” by June 17, 2016. Id. Plaintiff did not serve any written discovery on [Defendant] until June 11, 2016. Plaintiff noticed no deposition of [Defendant] and served no deposition subpoenas or subpoenas duces tecum on any third parties, including Fieldprint. Nor did Plaintiff alert [Defendant] or the Court that she would be unable to complete discovery within the specified timeframe. Now, in Opposition to [Defendant’s] Summary Judgment Motion, Plaintiff claims that she has inadequate information to dispute the facts upon which [Defendant’s] Summary Judgment Motion is based. 13 14 15 16 17 18 19 20 Analysis (Reply at 2–3 n.1.) 21 Plaintiff did not meet her burden to show that she diligently worked on discovery 22 within the allotted time period, nor did she make a “good faith showing that a 23 continuance is needed.” See Smith, 2012 WL 3108811, at *2. Plaintiff should have timely 24 notified the Court if she felt she did not have enough time to conduct discovery on the 25 issue in question by the Court’s discovery cut-off deadline of June 17, 2016, explaining 26 therein any good faith efforts to comply with the Court’s Order.3 Rule 56(d) only applies 27 3 28 In the Affidavit submitted in support of Plaintiff’s Response and Motion to Stay, counsel states he “was not prepared to serve and complete discovery” by the deadline set by the Court. (Doc. 44 ¶ 17.) However, Plaintiff did not file a proposed discovery - 14 - 1 where the party opposing summary judgment has not had the opportunity to discover 2 information it believes it needs. See Roberts, 660 F.3d at 1169. Here, Plaintiff cannot 3 now be heard to complain when she had the opportunity to discover material information, 4 but did not do so diligently and never asked the Court for more time. In other words, it 5 would hardly be just to re-open discovery after Plaintiff disregarded the initial discovery 6 deadline. Furthermore, Plaintiff has “failed to ‘proffer sufficient facts to show that the 7 evidence sought exist[s], and that it would have prevented summary judgment.’” Roberts, 8 660 F.3d at 1169 (quoting Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th 9 Cir. 2009)). Due to her lack of diligence during the discovery period and failure to meet 10 the Rule 56(d) burden, Plaintiff’s request to stay this action under Rule 56(d) is 11 unavailable. 12 13 IT IS THEREFORE ORDERED granting Defendant’s Motion for Summary Judgment (Doc. 37). 14 15 IT IS FURTHER ORDERED denying Plaintiff’s Rule 56(d) Motion (Doc. 42 at 9). 16 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 17 accordingly in favor of Defendant on all of Plaintiff’s claims against it and close this 18 matter. 19 Dated this 6th day of October, 2016. 20 21 22 Honorable John J. Tuchi United States District Judge 23 24 25 26 27 28 schedule in her initial brief (Doc. 33) and never filed a motion to extend the discovery deadline set in the Court’s Order (Doc. 35). - 15 -

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