Maiteki v. Marten Transportation Ltd

Filing 197

ORDER GRANTING IN PART 124 HIRE RIGHT'S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS. HireRight's Motion is GRANTED as to the following claims: a. Plaintiff's claim for intentional infliction of emotional distress; b. Plaintiff� 39;s FCRA claim brought under 15 U.S.C. § 1681k; c. All claims arising out of any report to HireRight that occurred before 3/7/2012; and d. Plaintiff's claim for a willful violation of the CCCRA. At the time final judgment is entered, the Clerk shall enter judgment in HireRight's favor on the above-listed claims. HireRight's Motion is DENIED as to Plaintiff's substantive claims for violations of the CCCRA and Plaintiff's claim for damages related to a negligent violation of the CCCRA. By Judge William J. Martinez on 1/23/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-2021-WJM-CBS
RONALD MUKASA MAITEKI,
Plaintiff,
v.
KNIGHT TRANSPORTATION INC.,
HIRE RIGHT INC.,
MARTEN TRANSPORT LTD, and
VOYAGER EXPRESS INC.,
Defendants,

ORDER GRANTING IN PART HIRE RIGHT’S MOTION FOR
PARTIAL JUDGMENT ON THE PLEADINGS

Plaintiff Ronald Mukasa Maiteki (“Plaintiff”) brings this action against three of his
former employers, Marten Transportation LTD (“Marten”), Knight Transportation, Inc.
(“Knight”), and Voyager Express, Inc., as well as HireRight, Inc. (“HireRight”), a credit
reporting agency that collects information on commercial drivers (collectively
“Defendants”).
Before the Court is HireRight’s Motion for Partial Judgment on the Pleadings
(“Motion”). (ECF No. 124.) For the reasons set forth below, the Motion is granted in
part and denied in part.
I. LEGAL STANDARD
A motion for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) is governed by the same standards as a Rule 12(b)(6) motion to dismiss. Corder
v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-24 (10th Cir. 2009). Under

Rule 12(b)(6), a defendant may move to dismiss a claim in a complaint for “failure to
state a claim upon which relief can be granted.” In evaluating such a motion, a court
must “assume the truth of the plaintiff’s well-pleaded factual allegations and view them
in the light most favorable to the plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is
“whether the complaint contains ‘enough facts to state a claim to relief that is plausible
on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not
only to effectuate the spirit of the liberal rules of pleading but also to protect the interests
of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)
(quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable, and that a recovery
is very remote and unlikely.’” Id. (quoting Twombly, 550 U.S. at 556).
II. FACTUAL BACKGROUND
The following facts are taken from Plaintiff’s Amended Complaint and are taken
as true for purposes of the instant Motion.
HireRight is a credit reporting agency that prepares a “Drive-A-Check” report
which is relied on by commercial carriers to make hiring decisions. (Consol. Compl.
(ECF No. 157) ¶ 4.) The Drive-A-Check report contains information about a commercial
driver’s former employers, criminal background, drug and alcohol testing, and driving
record. (Id. ¶ 5.)
Plaintiff is a commercial truck driver who was formerly employed by Swift, Knight,
and Marten Transportation. (Id. ¶ 8.) Plaintiff claims that each of these employers
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falsely reported to HireRight that he was involved in accidents during his employment,
and that these accidents were placed on his Drive-A-Check record. (Id. ¶¶ 18-20, 40.)
Plaintiff alleges that, when he applied for jobs with other trucking companies, these false
accidents were included on his Drive-A-Check report, and resulted in him not obtaining
employment. (Id. ¶¶ 30, 41.)
Upon learning of the false information on his Drive-A-Check report, Plaintiff
repeatedly contacted HireRight and asked them to correct his Drive-A-Check record.
Plaintiff alleges that he filed disputes with HireRight in September 2008, May 2009, May
2010, and on March 7, 2012. (Id. ¶¶ 23, 30, 36, 42.) Though these disputes triggered a
duty to investigate the truthfulness of the information, HireRight never did any
investigation, and the false information reported by Swift, Knight, and Marten was not
removed from Plaintiff’s Drive-A-Check record. (Id. ¶¶ 25, 31, 37.) Plaintiff contends
that HireRight lacked the required procedures necessary to ensure maximum accuracy
of their reports, and that they failed to conduct a reasonable inquiry into his complaints.
(Id. ¶¶ 26-28.)
Plaintiff alleges that the false information on his Drive-A-Check record has
resulted in him repeatedly being denied employment. (Id. ¶¶ 30, 41.) Plaintiff’s inability
to obtain gainful employment has allegedly caused him significant mental and emotional
distress, and resulted in him being evicted from his apartment and his car being
repossessed. (Id. ¶¶ 32-33, 64.)
III. ANALYSIS
On the facts set forth above, Plaintiff brings claims against HireRight under the
Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (“FCRA”) and the Colorado
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Consumer Credit Reporting Act (“CCCRA”), Colo. Rev. Stat. §§ 12-14.3-101 et seq., as
well as a common law claim for intentional infliction of emotional distress. (Consol.
Compl. pp. 18-46.) HireRight moves for judgment in its favor on the intentional infliction
of emotional distress claim, all CCCRA claims, and all FCRA claims which accrued
before March 2012. (ECF No. 124.) The Court will address each of these bases for the
Motion in turn below.
A.

Intentional Infliction of Emotional Distress
HireRight moves for judgment on the pleadings as to the claim for intentional

infliction of emotional distress on the basis that Plaintiff has failed to allege sufficient
facts to show that its conduct was extreme and outrageous. (ECF No. 124 at 8-10.)
To state a claim for intentional infliction of emotional distress (which is also
known as outrageous conduct), a plaintiff must allege sufficient facts to show: “(1) the
defendant engaged in extreme and outrageous conduct; (2) recklessly or with the intent
of causing the plaintiff severe emotional distress; (3) causing the plaintiff to suffer
severe emotional distress.” Han Ye Lee v. Colo. Times, Inc., 222 P.3d 957, 966-67
(Colo. App. 2009). In Colorado, “[t]he tort of outrageous conduct was designed to
create liability for a very narrow type of conduct.” Green v. Qwest Servs. Corp., 155
P.3d 383, 385 (Colo. App. 2006). Consequently,
the level of outrageousness required to create liability is
extremely high. Mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities are
insufficient. Only conduct that is so outrageous in character,
and so extreme in degree, as to go beyond all possible
bounds of decency and be regarded as atrocious and utterly
intolerable in a civilized community, will suffice.
Pearson v. Kancilia, 70 P.3d 594, 597 (Colo. App. 2003); see also Churchey v. Adolph
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Coors Co., 759 P.2d 1336, 1350 (Colo. 1988) (facts must so arouse resentment against
the defendant in average members of the community as to lead them to exclaim,
“Outrageous!”).
In this case, Plaintiff claims that HireRight engaged in extreme and outrageous
conduct by repeatedly “parroting” the false information provided by Plaintiff’s former
employers without conducting any investigation into the accuracy of such information.
(Consol. Compl. ¶¶ 26, 43, 199-201.) In an earlier order, the Court held that Plaintiff
failed to state a claim for intentional infliction of emotional distress against his former
employers because no reasonable person could find that providing false information
about Plaintiff’s driving record constituted extreme and outrageous conduct. (ECF No.
85 at 12-13.) If providing false information is not outrageous conduct, the Court fails to
see how simply repeating such information could meet this standard. Thus, the Court
has little difficulty concluding that no reasonable person could believe that HireRight’s
actions in this case constituted extreme and outrageous conduct. See Coors Brewing
Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (claim that employer coerced employee
into conducting an illegal undercover narcotics investigation and laundering money to
fund such investigation, and then firing employee for such investigation was not
outrageous conduct); Green, 155 P.3d at 386-87 (allegations that employer sent
untrained and under-qualified workers to perform dangerous acts was not sufficient to
state a claim for outrageous conduct).
Accordingly, HireRight’s Motion is granted as to Plaintiff’s claim for intentional
infliction of emotional distress and judgment shall be entered in favor of HireRight on
this claim.
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B.

Public Records Claim
Plaintiff brings claims against HireRight under multiple provisions of the FCRA,

including § 1681k(a)(1) which governs the obligations imposed on consumer reporting
agencies when they obtain information from public records. (Consol. Compl. ¶¶ 108110.) Specifically, § 1681k requires that a credit reporting agency furnishing information
that is a matter of public record and which is likely to have an adverse impact on the
applicant, must either (1) notify the applicant of the fact that public record information is
being reported along with the name and address of the person who requested the
report, or (2) maintain “strict procedures” designed to ensure that any such reported
information is “complete and up to date.” 15 U.S.C. § 1681k.
The Court finds that judgment in HireRight’s favor is appropriate on this claim
because Plaintiff has not alleged that his Drive-A-Check record contained any
information gleaned from public records that would be likely to have an adverse impact
on his employment. Rather, the record shows that the only public record information in
the Drive-A-Check record was Plaintiff’s criminal record, which showed that Plaintiff had
no prior criminal incidents. (ECF No. 132-2.) Because reporting that Plaintiff did not
have any criminal history was not likely to have a negative effect on his employability,
Plaintiff has failed to allege sufficient facts to show that HireRight’s obligations under
§ 1681k were triggered. See Adams v. Nat’l Eng’g Serv. Corp., 620 F. Supp. 2d 319,
331 (D. Conn. 2009) (“To fall within [§ 1681k], the consumer report in question must
contain matters of public record that are likely to have an adverse effect upon a
consumer’s ability to obtain employment.”).
Accordingly, HireRight’s Motion is granted as to Plaintiff’s claim under § 1681k.
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C.

Statute of Limitations
HireRight moves for judgment on all claims that accrued before March 7, 2012

based on the statute of limitations. (ECF No. 124 at 11-12.) The parties agree that the
FCRA has a two year statute of limitations, and that HireRight was first named in this
action on March 7, 2014.
Plaintiff alleges that he notified HireRight that his Drive-A-Check record contained
false information in September 2008, May 2009, May 2010, and on March 7, 2012. (Id.
¶¶ 23, 30, 36, 42.) HireRight argues that all complaints other than the March 7, 2012
complaint are barred by the statute of limitations as they occurred more than two years
before this action was brought against it. (ECF No. 124 at 12.) In response, Plaintiff
argues only that his March 7, 2012 complaint—and any subsequent complaints to
HireRight—were timely; he makes no effort to show that the limitations period should be
tolled for any complaint that pre-dated March 7, 2012, or that any other exception
applies. (ECF No. 132 at 11-12.) As HireRight moves for judgment only on those
complaints that occurred before March 7, 2012, the Court finds that Plaintiff has utterly
failed to make any argument in opposition to the Motion.
Accordingly, HireRight’s Motion is granted in so far as it seeks judgment on all
complaints which occurred prior to March 7, 2012.
D.

Preemption of Remaining Claims
HireRight moves for judgment on all of Plaintiff’s remaining claims under the

CCCRA on the grounds that these claims are pre-empted by the FCRA. (ECF No. 124
at 12.)
The FCRA is a comprehensive statutory scheme designed to regulate the
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consumer reporting industry. 15 U.S.C. § 1681(a). Congress recognized both the “vital
role” of credit reporting agencies like HireRight, and the “need to insure that consumer
reporting agencies exercise their grave responsibilities with fairness, impartiality, and a
respect for the consumer's right to privacy.” Id. These agencies provide a critical
economic service by collecting and transmitting consumer credit information. See
Cushman v. Trans Union Corp., 115 F.3d 220, 223 (3d Cir. 1997). But these agencies
can make mistakes by reporting inaccurate credit information, and such errors are
detrimental to the consumer, the creditor, and the economy as a whole. See id.
Given these considerations, Congress determined that while credit reporting
agencies must be allowed to perform their function, a regulatory framework was
necessary to prevent errors in credit reporting and remedy those that do occur. In 1970,
Congress accommodated both of these interests by enacting the FCRA, a
“comprehensive series of restrictions on the disclosure and use of credit information
assembled by consumer reporting agencies.” FTC v. Manager, Retail Credit Co., 515
F.2d 988, 989 (D.C. Cir. 1975). The FCRA “has been drawn with extreme care,
reflecting the tug of the competing interests,” and courts must respect the balance
struck by Congress when interpreting its provisions. Nelson v. Chase Manhattan Mortg.
Corp., 282 F.3d 1057, 1060 (9th Cir. 2002).
As originally enacted, the FCRA generally permitted state regulation of the
consumer reporting industry. With but few exceptions, the original preemption
provision, 15 U.S.C. § 1681t(a), preempted state laws only “to the extent that those laws
are inconsistent with any provision of [the FCRA].” As part of the ongoing process of
fine-tuning this statutory scheme, Congress amended the FCRA with the Consumer
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Credit Reporting Reform Act of 1996 (“CCRRA”), which added a strong preemption
provision, 15 U.S.C. § 1681t(b), to this comprehensive legislative framework. Pub. L.
No. 104–208, 110 Stat. 3009, 3009-426 to -455. The purpose of this new subsection
was, in part, to avoid a “patchwork system of conflicting regulations.” Michael Epshteyn,
Note, The Fair and Accurate Credit Transactions Act of 2003: Will Preemption of State
Credit Reporting Laws Harm Consumers?, 93 Geo. L.J. 1143, 1154 (2005).
Included within the new subsection added by the CCRRA is 15 U.S.C.
§ 1681t(b)(1)(B), the preemption provision at issue in this case, which states:
No requirement or prohibition may be imposed under the
laws of any State (1) with respect to any subject matter
regulated under . . . (B) section 1681i of this title, relating to
the time by which a consumer reporting agency must take
any action, including the provision of notification to a
consumer or other person, in any procedure related to the
disputed accuracy of information in a consumer’s file, except
that this subparagraph shall not apply to any State law in
effect on September 30, 1996.
Thus, the FCRA preempts state consumer reporting statutes when: (1) the subject
matter of the state statute concerns matters regulated under § 1681i; and (2) the state
law took effect after September 30, 1996. 15 U.S.C. § 1681t(b)(1)(B). The Court
agrees with HireRight that § 1681i covers the same subject matter as Colo. Rev. Stat. §
12-14.3-106, and therefore the first element is satisfied.
With regard to the second element of preemption, HireRight argues that the
relevant CCCRA provision—Colo. Rev. Stat. § 12-14.3-106—took effect in 2002. (ECF
No. 124 at 14.) In support of this contention, it cites a decision from this Court in Simon
v. DirectTV, in which the plaintiff’s CCCRA claim was dismissed on preemption grounds.
(Case No. 1:09-cv-852, ECF No. 36.) However, Simon involved Colo. Rev. Stat. § 129

14.3-105.3, the relevant portion of which became effective in 2002. (Id.) The relevant
provision in this case is Colo. Rev. Stat. § 12-14.3-106, which took effect on January 1,
1996. See 1995 Colo. Legis. Serv. S.B. 95-122. As the CCCRA’s provision at issue
here took effect before the deadline in § 1681t(b)(1)(B), the Court finds that HireRight
has failed to show that the second element of preemption is satisfied, and as a
consequence its Motion is denied in this regard.
HireRight also argues that Plaintiff’s claims under the willfulness and negligence
provisions of the CCCRA are preempted because they are inconsistent with the
wilfullness and negligence provisions of the FCRA and are therefore preempted under §
1681t(a). (ECF No. 124 at 14.) Conflict preemption occurs “where Congress has not
completely displaced state regulation in a specific area” and where “state law is nullified
to the extent that it actually conflicts with federal law.” Fidelity Fed. Sav. & Loan Ass’n
v. de la Cuesta, 458 U.S. 141, 153 (1982). The damages provisions of a state statute
can be preempted as well as substantive law. New Mexico v. Gen. Elec. Co., 467 F.3d
1223, 1247 (10th Cir. 2006) (acknowledging that preemption of state law remedies in a
CERCLA case may occur where such remedies conflict with congressional objectives);
see also Int’l Paper Co. v. Ouellette, 479 U.S. 481, 498-99 n.19 (1987).
If a plaintiff proves a willful violation of the FCRA, he is entitled to recover his
actual damages or a statutory penalty between $100 and $1000, punitive damages as
the court allows, and attorney’s fees. 15 U.S.C. § 1681n. Under the CCCRA, a plaintiff
who proves a willful violation is entitled to three times the amount of actual damages,
reasonable attorney’s fees, and costs. Colo. Rev. Stat. § 12-14.3-108(1). This Court
has previously held that this inconsistency meant that the FCRA’s willful damages
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provision preempted the CCCRA in this regard. Eller v. Trans Union LLC, 2012 WL
786283, at *3 (D. Colo. March 9, 2012). The Court adopts the analysis in that prior
ruling and incorporates it here. The Court therefore finds that Plaintiff’s claim for willful
damages under the CCCRA is preempted by the FCRA.
HireRight argues that this same analysis applies to Plaintiff’s claim for negligent
damages under the CCCRA. If a plaintiff proves a negligent violation of the FCRA, he is
entitled to recover his actual damages plus attorney’s fees. 15 U.S.C. § 1681o.
HireRight contends that the CCCRA’s negligence provision is more generous, and
allows Plaintiff to recover either actual damages or statutory damages of $1,000. (ECF
No. 124 at 15 (citing Colo. Rev. Stat. § 12-14.3-108(2).) While the CCCRA does permit
statutory damages for negligent violations of certain provisions, those provisions are not
implicated here. See Colo. Rev. Stat. § 12-14.3-108(2) (permitting a plaintiff to recover
$1,000 in statutory damages for a negligent violation of §§ 12-14.3-106.5 & 106.6).
Thus, it appears that there is no conflict between the amount of damages that Plaintiff
will be allowed to recover under the FCRA or the CCCRA if he proves a negligent
violation of either. As there is no conflict between the damages provisions of the
statutes at issue here, the Court finds that HireRight has not shown that Plaintiff’s claim
for negligent damages under the CCCRA is preempted.
Accordingly, HireRight’s Motion is granted in so far as it seeks judgment on
Plaintiff’s claim for willful damages under the CCCRA, but denied as to Plaintiff’s
damages claim for a negligent violation of the CCCRA.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
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1.

HireRight’s Motion for Partial Judgment on the Pleadings (ECF No. 124) is
GRANTED IN PART and DENIED IN PART;

2.

HireRight’s Motion is GRANTED as to the following claims:
a.

Plaintiff’s claim for intentional infliction of emotional distress;

b.

Plaintiff’s FCRA claim brought under 15 U.S.C. § 1681k;

c.

All claims arising out of any report to HireRight that occurred before March
7, 2012; and

d.

Plaintiff’s claim for a willful violation of the CCCRA.

At the time final judgment is entered, the Clerk shall enter judgment in
HireRight’s favor on the above-listed claims;
3.

HireRight’s Motion is DENIED as to Plaintiff’s substantive claims for violations of
the CCCRA and Plaintiff’s claim for damages related to a negligent violation of
the CCCRA.
Dated this 23rd day of January, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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