Jones v. Waffle House, Inc. et al

Filing 111

ORDER denying 37 motion to dismiss; denying 41 motion to dismiss; denying 105 Motion for Leave to File. On or before Thursday, June 30, 2016, Defendants The Source for Public Data, L.P., Shadowsoft, Inc., Harlington-Straker-Studio, Inc., and Dale Bruce Stringfellow are DIRECTED to file a responsive pleading to Plaintiff's Complaint (Doc. 1). The deadline for Defendants' Opposition to Class Certification and All Supporting Evidence, previously set for July 1, 2016 (Doc. 72, p. 3), is SUSPENDED pending further order of the Court. Signed by Judge Roy B. Dalton, Jr. on 6/13/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WILLIAM JONES,
Plaintiff,
v.

Case No. 6:15-cv-1637-Orl-37DAB

WAFFLE HOUSE, INC.; WH CAPITAL,
LLC; THE SOURCE FOR PUBLIC
DATA, L.P.; SHADOWSOFT, INC;
HARLINGTON-STRAKER-STUDIO,
INC.; and DALE BRUCE
STRINGFELLOW,
Defendants.
ORDER
This cause is before the Court on the following:
1.

Motion of

the Source for Public Data, L.P., Shadowsoft, Inc.,

Harlington-Straker-Studio, Inc., and Dale Bruce Stringfellow, to Dismiss for
Lack of Standing (Doc. 37), filed December 2, 2015;
2.

Plaintiff’s Opposition to the Motion of the Source for Public Data, L.P.,
Shadowsoft, Inc., Harlington-Straker-Studio, Inc., and Dale Bruce
Stringfellow, to Dismiss for Lack of Standing (Doc. 49), filed December 16,
2015;

3.

Defendants Waffle House, Inc. and WH Capital, LLC’s Motion to Dismiss
(Doc. 41), filed December 4, 2015;

4.

Defendants Waffle House, Inc. and WH Capital, LLC’s Memorandum in

Support of Motion to Dismiss (Doc. 42), filed December 4, 2015;1
5.

Plaintiff’s Opposition to the Motion of Waffle House, Inc. and WH Capital,
LLC to Dismiss (Doc. 56), filed December 18, 2015;

6.

Defendants The Source for Public Data, L.P., Shadow Soft, Inc.,
Harlington-Straker-Studio, Inc., and Dale Bruce Stringfellow’s Motion for
Leave to File a Reply Memorandum in Support of Motion to Dismiss for
Lack of Standing (Doc. 105), filed June 3, 2016;

7.

Plaintiff’s Opposition to Public Data’s Motion for Leave to File a Reply
Brief in Support of its Motion to Dismiss for Lack of Standing (Doc. 106),
filed June 4, 2016;

8.

Defendants Waffle House, Inc. and WH Capital, LLC’s Motion to Dismiss,
or in the Alternative to Stay Proceeding, and to Compel Arbitration and
Incorporated Memorandum of Law (Doc. 81-1), filed April 1, 2016;2 and

9.

Plaintiff’s Opposition to the Motion of Waffle House, Inc. and WH Capital,
LLC to Dismiss or in the Alternative to Stay Proceedings and Compel
Arbitration (Doc. 83), filed April 15, 2016.

Waffle House, Inc. and WH Capital, LLC (collectively, “Waffle House”) filed
their motion to dismiss and a supporting memorandum of law in two separate
documents. This practice is a clear violation of Local Rule 3.01(a), which provides that a
movant shall include “a concise statement of the precise relief requested, a statement of
the basis for the request, and a memorandum of legal authority in support of the
request” in a single document not to exceed twenty-five pages. The Court advises the
movants that it will summarily strike any future filings that are noncompliant with the
Court’s Local Rules—including Local Rule 3.01(a).
2
Waffle House’s motion to compel arbitration (Doc. 81) and separate
memorandum of law (Doc. 81-1) also violates Local Rule 3.01(a). The filing at Doc. 81
is unnecessary. Waffle House should have filed the document at Doc. 81-1 as the
primary motion.
1

2

BACKGROUND
I.

Complaint
On October 1, 2015, Plaintiff filed a putative class action complaint against

Defendants based on their practices in compiling and issuing background reports for job
applicants, which Plaintiff alleges are non-compliant with the Fair Credit Reporting Act
(“FCRA”). (See Doc. 1 (“Complaint”).) Plaintiff’s allegations stem from his application
for employment at a Waffle House restaurant in Ormond Beach, Florida, on or about
December 6, 2014. (Id. at ¶ 21; Doc. 37-2, ¶ 7.) According to the Complaint, as part of
its hiring process, Waffle House procured a background report (“Report”) on Plaintiff
through Defendant The Source for Public Data, L.P. (“Public Data”)—a paid search
website for public record information. (See Doc. 1, ¶¶ 21, 41; see also Doc. 37-1, ¶ 5.)3
Plaintiff alleges that Waffle House refused to hire him based on the content of the
Report. (Doc. 1, ¶ 47.) He also believes that the Report contained information about his
“purported criminal convictions.” (Id. ¶ 45.)
Under the FCRA, when preparing a consumer report, a consumer reporting
agency (“CRA”) is required to “follow reasonable procedures to assure maximum
possible accuracy of the information concerning the individual about whom the report

3

The Source for Public Data, L.P., Shadowsoft, Inc., Harlington-Straker-Studio,
Inc., and Dale Bruce Stringfellow filed a motion to dismiss on December 2, 2015.
(Doc. 37 (“Public Data MTD”).) On December 4, 2015, Waffle House also moved for
dismissal. (Doc. 41 (“Waffle House MTD”).) Attached to each MTD are identical
declarations of Dale Bruce Stringfellow and Waffle House employee Andrea Davidson
(See Docs. 37-1, 37-2, 42-1, 42-2.) Similarly, Plaintiff attached identical declarations in
support of his responses to each MTD. (See Docs. 49-1, 49-2, 56-1, 56-2.) Throughout
this Order, the Court will refer only to the declarations attached to the Public Data MTD
and the response thereto. Going forward, the parties are reminded that the Court’s
Case Management and Scheduling Order prohibits the filing of duplicative documents
that are already part of the record. (Doc. 72, p. 7.)

3

relates.”

Cahlin

v.

Gen.

Motors

Acceptance

Corp.,

936 F.2d 1151,

1156

(11th Cir. 1991). Furthermore,
when a CRA furnishes a consumer report for employment
purposes that contains matters of public record which are
likely to have an adverse effect on a consumer’s ability to
obtain employment[,] . . . the CRA must either notify the
consumer about the report or utilize strict procedures
designed to insure that the information in the report is
complete and up to date.
Farmer v. The Philips Agency, Inc., 285 F.R.D. 688, 695 (N.D. Ga. 2012). The FCRA
also requires that any person, who takes adverse action against a consumer that is
“based in whole or in part on any information contained in a consumer report[,] must
notify the affected consumer.” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 52
(2007). “The notice must point out the adverse action, explain how to reach the agency
that reported on the consumer’s credit, and tell the consumer that he can get a free
copy of the report and dispute its accuracy with the agency.” Id. at 53.
The FCRA creates a private right of action against CRAs for negligent and willful
violations of these statutory duties. Cahlin, 936 F.2d at 1156. The Act also provides a
private right of action against “businesses that use consumer reports but fail to comply.”
Burr, 551 U.S. at 53. In the instant action, Plaintiff claims that Public Data “maintains
absolutely no policies and procedures to ensure that reports comply with the standards
set forth in the FCRA.” (Id. ¶ 34.)4 Additionally, Plaintiff alleges that Waffle House
willfully violated the FCRA by failing to provide him with a copy of the Report either

4

Plaintiff alleges that Shadowsoft, Inc., Harlington-Straker-Studio, Inc., and Dale
Bruce Stringfellow are “alter egos” of Public Data and he intends to “pierce the
corporate veil and hold each entity liable for the misconduct of [Public Data].” (Doc. 1,
¶ 36.) Thus, following the parties’ practice, the Court will collectively refer to these
defendants as Public Data.

4

before or after taking adverse action against him and that such violations are
“systematic and uniform and affected all job applicants and employees in the same
way.” (Doc. 1, ¶¶ 21–26.)
II.

Motion to Dismiss for Lack of Standing
In response, Public Data and Waffle House (collectively, “Defendants”) each

moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1).
(Docs. 37, 41.) Specifically, Defendants contend that Plaintiff lacks standing to bring a
claim under the FCRA because there is no evidence that Waffle House ran a search
query on Plaintiff using Public Data’s database and, therefore, Plaintiff cannot prove the
existence of an injury-in-fact, causation, or redressability. (Doc. 37, p. 1–2; see also
Docs. 41, 42.) Plaintiff timely responded to each MTD. (Docs. 49, 56.)
III.

Motion to Compel Arbitration
Since the initiation of this suit, the facts have continued to evolve. According to

Waffle House, in February 2016, Plaintiff applied, and was hired, for a position with a
Waffle House restaurant in Kansas City, Missouri.5 (Doc. 81-1, pp. 2, 3, 4.) As a
condition of employment, Plaintiff signed an arbitration agreement (“Arbitration
Agreement”) on February 4, 2016, pursuant to which he agreed to arbitrate:
all claims and controversies . . . past, present, or future, arising out of any
aspect of or pertaining in any way to [his] employment, and specifically
including, but not limited to, termination from employment, that [he] may
have against Waffle House or against its officers, directors, employees or
agents in their capacity as such or otherwise, or that Waffle House may
have against [him].
(Doc. 81-2, p. 15.)
Importantly, the Arbitration Agreement contains a delegation provision, which
5

Plaintiff no longer works at this Waffle House location. (Doc. 81-1, p. 3.)

5

commits to the arbitrator “any dispute relating to the interpretation, applicability,
enforceability or formation of [the] Agreement, including but not limited to any claim that
all or any part of [the] Agreement is void or voidable” (“Delegation Provision”).
(Doc. 81-2, p. 15.) Consequently, Waffle House has moved to compel arbitration of
Plaintiff’s claims in this suit (“Motion to Compel”). (Doc. 81-1.) Plaintiff timely
responded. (Doc. 83.)
The parties’ respective MTDs and the Motion to Compel are ripe for the Court’s
determination.
STANDARDS
I.

Standing
“Standing to bring and maintain a lawsuit is fundamental to invoking a federal

court’s subject matter jurisdiction.” Sierra Club, Inc. v. St. Johns River Water Mgmt.
Dist., No. 6:14-cv-1877-Orl-40DAB, 2015 WL 6814566, at *4 (M.D. Fla. Nov. 6, 2015)
(citing DaimlerChrsyler Corp. v. Cuno, 547 U.S. 332, 340–42 (2006)). For a plaintiff to
have standing, he must demonstrate: (1) a concrete, actual injury-in-fact; (2) a causal
connection between the injury and the defendant’s conduct; and (3) a likelihood that the
injury can be redressed. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
The amount of proof required to establish standing varies with the progression of the
litigation. See id. at 561 (“Since [the standing elements] are not mere pleading
requirements but rather an indispensable part of the plaintiff’s case, each element must
be supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the successive
stages of the litigation.”).

6

II.

Rule 12(b)(1)
“Because standing is jurisdictional, a dismissal for lack of standing has the same

effect as a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1).” Stalley
ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232
(11th Cir. 2008). Attacks on subject matter jurisdiction under Rule 12(b)(1) come in two
forms: facial attacks and factual attacks. Lawrence v. Dunbar, 919 F.2d 1525, 1528–29
(11th Cir. 1990). “‘Facial attacks on the complaint require the court merely to look and
see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the
allegations in his complaint are taken as true for the purposes of the motion.” Id.
at 1529. “Factual attacks, on the other hand, challenge the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such
as testimony and affidavits, are considered.” Id. “Challenges to a party’s standing is a
factual attack on the district court’s subject matter jurisdiction that requires the court to
look beyond the four corners of the complaint.” Sierra Club, 2015 WL 6814566, at *4
(citing Garcia v. Copenhaver, Bell & Assocs., M.D.’S, P.A., 104 F.3d 1256, 1260–61
(11th Cir. 1997)).
A.

Implication of the Merits

“On a factual attack of subject matter jurisdiction, a court’s power to make
findings of fact and to weigh the evidence depends on whether the factual attack on
jurisdiction also implicates the merits of plaintiff’s cause of action.” Garcia,
104 F.3d at 1261. When the merits are not implicated, “no presumptive truthfulness
attaches to the allegations of the plaintiff’s case, and the existence of disputed facts

7

material to subject matter jurisdiction does not preclude the Court from evaluating the
merits

of

the

jurisdictional

claim

for

itself.”

Simmons

v.

United

States,

No. 300CV1316J99MMH, 2005 WL 1243760, at *5 (M.D. Fla. May 25, 2005).
Conversely, “[w]here the defendant’s attack on subject matter jurisdiction does implicate
an element of the plaintiff’s underlying claim, the Court is not permitted to weigh facts
for itself and must resolve disputed factual issues in favor of the plaintiff, as
non-movant.” Id., n.13 (citing Garcia, 104 F.3d at 1261). In the latter situation, “[t]he
proper course of action for the district court is to find that jurisdiction exists and deal with
the objection as a direct attack on the merits of the plaintiff’s case.” Lawrence,
919 F.2d at 1529.
Thus, as a general rule, “federal claims should not be dismissed on a motion for
lack of subject matter jurisdiction when that determination is intermeshed with the merits
of the claim and when there is a dispute as to a material fact.” Lawrence, 919 F.2d
at 1531. “The exceptions to this rule are narrowly drawn[] and are intended to allow
jurisdictional dismissals only in those cases where the federal claim is clearly immaterial
or insubstantial.” Williamson v. Tucker, 645 F.2d 404, 416 (5th Cir. 1981)6; accord
Garcia, 104 F.3d at 1261; Lawrence, 919 F.2d at 1529. For this reason, “it is extremely
difficult to dismiss a claim for lack of subject matter jurisdiction.” Garcia,
104 F.3d at 1260.
III.

Rule 56

6

Decisions of the Fifth Circuit rendered on or before September 30, 1981, are
binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981). The Williamson opinion was rendered on May 20, 1981; therefore,
it is binding precedent in this Circuit.

8

“When the jurisdictional basis of a claim is intertwined with the merits, the district
court should apply a Rule 56 summary judgment standard when ruling on a motion to
dismiss which asserts a factual attack on subject matter jurisdiction.” Lawrence,
919 F.2d at 1530. Summary judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A movant carries its burden by
demonstrating that there is an absence of evidence supporting the non-movant’s case.
Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001). The burden then shifts
to the non-movant, who must go beyond the pleadings and present affirmative evidence
to show that a genuine issue of material fact exists. Porter v. Ray, 461 F.3d 1315, 1320
(11th Cir. 2006).
A genuine dispute of material fact exists if “the evidence is such that a
reasonable jury could return a verdict” for the non-movant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Which facts are material depends on the underlying
substantive law. Id. The Court must view the evidence and all reasonable inferences
drawn from the evidence in the light most favorable to the non-movant. See Battle v. Bd.
of Regents for Ga., 468 F.3d 755, 759 (11th Cir. 2006). However, the Court should not
deny summary judgment “when the inferences that are drawn from the evidence, and
upon which the non-movant relies, are ‘implausible.’” Mize v. Jefferson City Bd. of
Educ., 93 F.3d 739, 743 (11th Cir. 1996).
IV.

Arbitration
Under the FAA, “courts must rigorously enforce arbitration agreements according

to their terms.” Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2309 (2013).

9

Upon the motion of any party to a valid arbitration agreement, courts must stay litigation
of all claims that fall within the agreement’s scope and compel arbitration according to
the agreement’s terms. See 9 U.S.C. §§ 3–4. Arbitration agreements are presumptively
valid and enforceable. See id. § 2.
However, arbitration under the FAA is ultimately “a matter of consent, not
coercion,” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468,
479 (1989). Parties opposing arbitration can challenge the formation and validity of a
contract containing an arbitration clause. Specifically, the Eleventh Circuit recognizes
“three distinct types of challenges to a contract containing an arbitration clause”:
(1) challenges to the formation, or “the very existence,” of the contract; (2) challenges
“to the validity of the arbitration clause standing alone”; and (3) challenges “to the
validity of the contract as a whole.” Wiand v. Schneiderman, 778 F.3d 917, 924 (11th
Cir. 2015).
Nonetheless, under a delegation provision “parties may agree to commit even
threshold determinations to an arbitrator, such as whether an arbitration agreement is
enforceable.” Parnell v. CashCall, Inc., 804 F.3d 1142, 1146 (11th Cir. 2015). “When an
arbitration agreement contains a delegation provision and the plaintiff raises a challenge
to the contract as a whole, the federal courts may not review his claim because it has
been committed to the power of the arbitrator.” Id. “[A]bsent a challenge to the
delegation provision itself, the federal courts must treat the delegation provision as valid
. . . and must enforce it . . . , leaving any challenge to the validity of the [a]greement as
a whole for the arbitrator.” Id. at 1146–47.

10

DISCUSSION
I.

MTDs
Plaintiff has sued Defendants under multiple provisions of the FCRA. (See

Doc. 1.) As Waffle House points out, “[t]hese provisions all have at least one thread in
common—they are never triggered unless a ‘consumer report’ is at issue.” (Doc. 42,
p. 8.) Thus, Defendants assert that, absent evidence that Waffle House procured a
consumer report through Public Data, Plaintiff has not sustained an injury-in-fact
necessary to bring suit under the FCRA.7 (See Doc. 37, p. 3; Doc. 42, p. 2.) Indeed,
Defendants contend that the Report—which forms the basis for Plaintiff’s claims—does
not exist. (Doc. 37, p. 7; see also Doc. 42, p. 2.)
In this action, as it was in Williamson, “it is clear that the jurisdictional issue
reaches the merits of the plaintiff’s case.” 645 F.2d at 416. Jurisdiction becomes
“inextricably intertwined with the merits of the lawsuit” where “a decision on one would
effectively decide the other.” Lawrence, 919 F.2d at 1529. Here, whether a consumer
report was issued is dispositive of both Plaintiff’s substantive claims and the
jurisdictional issue of standing. Thus, to be properly dismissed for lack of subject matter
jurisdiction, this action “must fall within the exception to the [U.S. Supreme Court’s]
general prohibition of jurisdictional dismissals that implicate the merits of the plaintiffs’
case.” Williamson, 645 F.2d at 416 (discussing Bell v. Hood, 327 U.S. 678 (1945)).
“That is, the plaintiffs’ claim must ‘clearly appear to be immaterial and made solely for
the purpose of obtaining jurisdiction,’ or must be ‘wholly insubstantial or frivolous.’” Id.

Public Data has reserved—until “the appropriate time”—its arguments as to
whether it is a CRA that issues consumer reports within the definition of the FCRA.
(Doc. 37, p. 6.)
7

11

Based on the current record, the Court does not find that Plaintiff’s claims are patently
insubstantial or frivolous. Thus, the Court will apply the summary judgment standard in
assessing whether Plaintiff’s claims are foreclosed by the absence of evidence as to the
existence of the Report. Lawrence, 919 F.2d at 1530.
In support of their MTDs, Defendants each submitted declarations from Waffle
House employee Andrea Davidson (“Davidson”) and Defendant Dale Bruce
Stringfellow (“Stringfellow”). (See Docs. 37-2, 37-1.) Davidson served as Security
Administrator for Waffle House’s Security Department from September 2009 to
April 2015. (Doc. 37-2, ¶ 4.) As Security Administrator, Davidson’s responsibilities
included assisting in processing background investigations for job applicants at Waffle
House—specifically, applicants for hourly employment. (Id. ¶ 5.) According to Davidson,
Waffle House exclusively conducts public record searches on its applicants through
Public Data, with the exception of its North Carolina applicants.8 (Id. ¶ 6.) On
December 8, 2014, Davidson updated Waffle House’s computer system to reflect that
Plaintiff passed his background check (“Report Status”). (Id. ¶ 9; see also id. at 7
(indicating a “BC Passed” status on Plaintiff’s Hourly Background Associate Call Data
Entry sheet). Nonetheless, Davidson contends that: (1) “Waffle House does not have
any specific record of ever actually running a public record search” on Plaintiff;
(2) “[b]ecause [Plaintiff] applied to Waffle House during the busy holiday season, and
because Waffle House receives a high volume of applicants during that time, it is
possible that no such public record search was ever conducted”; and (3) she does not
“have any specific recollection of performing a public record search on [Plaintiff].”
8

As Plaintiff applied for a position in Ormond Beach, Florida, his application does
not fall within this exception. (See Doc. 37-2, ¶ 7.)

12

(Doc. 37-2, ¶¶ 11, 13, 15.)
Stringfellow is the president of Defendant Harlington-Straker Studio, Inc., the
general partner of Public Data. (Doc. 37-1, ¶ 1.) Stringfellow is also the president of
Shadowsoft, Inc., a corporation that collects and maintains a database of public
governmental records and leases such information to Public Data. (Id. ¶¶ 3, 4.)
According to Stringfellow, Public Data regularly keeps records of all searches that have
been conducted by its customers. (Id. ¶ 8.) Such searches are conducted through
password-protected accounts linked to specific user identification codes (“ID Codes”).
(Id. ¶ 7.) As such, Stringfellow first identified all searches under the Waffle House ID
Code that: (1) included a combination of the terms “William,” “Gerard” and “Jones”—
Plaintiff’s first, middle, and last name; and (2) were conducted between December 1
and December 15, 2014. (Id. ¶ 9.) Stringfellow then reviewed all searches conducted
between December 2014 and October 2015 using: (1) the Waffle House ID Code; and
(2) the Internet Protocol address associated with Waffle House’s prior searches on
Public Data. (See id. ¶¶ 9–11.) However, Stringfellow was “unable to locate any
searches run by [Waffle House] that could reasonably relate to the events described in
the Complaint.” (Id. ¶ 12.) According to Stringfellow, “Public Data has no record of
Waffle House ever having done a search on [Plaintiff]”—or any variation of his name.
(Id.)
In response, Plaintiff submitted his own declaration, as well as a declaration from
attorney Anthony J. Orshansky (“Orshansky”). (Docs. 49-1, 49-2.) Plaintiff declares
that, after he submitted his application, he had successive interviews with the restaurant
manager and a supervisor named Diane. (Doc. 49-1, ¶¶ 3, 4.) Three days after his

13

interview with Diane, Plaintiff called the restaurant to inquire as to the status of his
application. (Id. ¶ 5.) At that time, the restaurant manager informed Plaintiff that Waffle
House had run a background check and that Diane would contact him regarding the
hiring decision. (Id.) Ultimately, Plaintiff was not hired. (Id. ¶ 6.)
For his part, Orshansky states that he sent a pre-suit letter to Waffle House on
Plaintiff’s behalf on March 5, 2015, in which he outlined Plaintiff’s FCRA claims (“Initial
Letter”). (Doc. 49-2, ¶ 2.) In response to the Initial Letter, John C. Lynch (“Mr. Lynch”),
Waffle House’s defense counsel, represented that Waffle House had conducted a
background check on Plaintiff, and Plaintiff had passed it; however, Mr. Lynch offered
no explanation as to why Plaintiff was not hired. (Id. ¶ 3; see also id. at 4–5 (providing a
copy of the correspondence from Mr. Lynch to Orshansky dated March 23, 2015).) In
response to a second letter, Mr. Lynch stated that Waffle House had been unable to
locate any records on Plaintiff. (Id., ¶ 5; see also id. at 13 (providing a copy of the
correspondence dated April 22, 2015).)
Based on this evidence, Plaintiff argues that a jury must decide whether Waffle
House obtained a consumer report on him through Public Data. (Doc. 49, p. 12.) The
Court agrees.9 Plaintiff has produced evidence demonstrating that the restaurant
manager and Mr. Lynch confirmed that Waffle House completed a background check on
Plaintiff in connection with his application for employment. This evidence is corroborated
by Waffle House’s own paper work, as the Report Status indicates that Plaintiff passed

Additionally, Plaintiff contends that Davidson’s testimony that she did not
perform a background check on Jones is not credible. (Doc. 49, p. 10.) This is also a
question for the jury. See Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1160
(“[C]redibility determinations are for the fact finder.”).
9

14

his background check.10 Simply put, this is direct evidence that Waffle House ran a
background check on Plaintiff.
Viewing the facts in the light most favorable to Plaintiff, a reasonable juror could
plausibly conclude that Waffle House performed a background check on Plaintiff using
Public Data’s systems. The Defendants’ attempt to prove that they now have no
recollection or record of such a search is insufficient to defeat Plaintiff’s evidence on a
summary judgment standard where there is a material factual dispute as to whether a
background check was performed on Plaintiff. Indeed, where, as here, the question of
jurisdiction is intertwined with a question that implicates a substantive element of
plaintiff’s claim, “the resolution of the question must be made by the fact finder deciding
the merits of the claim.” Garcia, 104 F.3d at 1264; see also, e.g., id. at 1263 (“[T]he
ultimate conclusion reached by our holding that whether or not one is an ‘employer’ is
an element of an ADEA claim, is the belief that the jury, rather than the judge, should
decide the disputed question.”). Consequently, the MTDs are due to be denied in their
10

Curiously, Plaintiff argues that because he was ultimately rejected for
employment with Waffle House, his status as having passed the background check is of
little relevance, as he believes that he was rejected based on the contents of the
Report, which may have contained inaccurate information. (See Doc. 56, p. 4, n.2.)
Plaintiff contends that because his name—“William Jones”—is common, his criminal
record often contains inaccuracies. (Doc. 49-1, ¶ 9.) To illustrate this, Plaintiff discusses
that, around the same time he submitted his application to Waffle House, he also
submitted an application to lease an apartment, and the consumer report generated
included criminal records for other persons also named “William Jones.” (Id.) As such,
Plaintiff argues that there is a “likelihood that persons responsible for processing the
consumer report for Plaintiff entered incorrect personal identifying information, possibly
using the first or last name from someone else’s job application, when obtaining the
consumer report.” (Doc. 49, p. 12.) Importantly, Plaintiff asserts that Waffle house has
failed to identify any other reason why, as an experienced server, Waffle House would
deny him a job during the busy holiday season. (Doc. 49, p. 10, n.2.) Though
convoluted and counterintuitive, the Court finds that Plaintiff is entitled to pursue this
theory through discovery.

15

entirety.
Moreover, the Court rejects Public Data’s request to file a reply memorandum in
support of its MTD (Doc. 105 (“Reply Motion”)). Public Data’s Reply Motion—filed on
June 3, 2016—is based on two grounds: (1) a recent Supreme Court decision involving
standing under the FCRA, Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016); and (2) that,
to date, Plaintiff has failed to discover any facts to support his claim that Waffle House
procured a Report on Plaintiff through Public Data. (Doc. 105, p. 1.) First, the Court has
considered Spokeo and finds that it is inapposite to the resolution of the MTDs. In
Spokeo, the Supreme Court held that by failing to distinguish between the requirements
that an injury-in-fact be “concrete” and “particularized,” the lower court failed to properly
apply the standing elements in resolving a facial challenge. 136 S. Ct. at 1544–45,
1550. Here, the Court considers a factual challenge that is inextricably intertwined with
the merits of Plaintiff’s suit and, thus, requires jury determination.
Secondly, at this stage of the litigation, seven months remain until the close of
discovery. (See Doc. 72, p. 3.) Therefore, Plaintiff is entitled to full discovery to establish
whether a consumer report was produced and whether it caused him to be adversely
affected in his quest for employment with Waffle House. See Williamson, 645 F.2d
at 414 (recognizing that before making “factual determinations decisive of a motion to
dismiss for lack of jurisdiction,” “the district court must give the plaintiff an opportunity for
discovery”). Indeed, as Plaintiff points out, “Defendants are solely in possession of
information and documents that would prove Plaintiff’s allegations of injury.” (Doc. 49,
p. 2.) 11

11

Additionally, Plaintiff argues that “to the extent the Court wishes to resolve

16

II.

Motion to Compel
As a final matter, the Motion to Compel has been set for a hearing on

July 1, 2016, at 9:30 a.m. (Doc. 110.) The Court’s review is necessarily limited to
Plaintiff’s direct challenges to the Delegation Provision in the Arbitration Agreement.
See

Parnell,

804 F.3d

at

1144

(citing

Rent-A-Center,

West,

Inc.

v.

Jackson, 561 U.S. 63, 72 (2010).) The Court will, therefore, permit the parties to present
oral argument only on Plaintiff’s challenges to the Delegation Provision as set forth in
his response to the Motion to Compel (Doc. 83, pp. 18–19)—including whether the
circumstances surrounding the execution of the Arbitration Agreement were improper,
thereby implicating the Court’s managerial authority to govern the conduct of counsel
and parties in class actions. See, e.g., Billingsley v. Citi Trends, Inc., 560 F. App’x 914
(11th Cir. 2014); Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193 (11th Cir. 1985). In
the interim, the Court will suspend the briefing deadline for Defendants’ response to
Plaintiff’s class certification motion (Doc. 108).
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Motion of

the Source for Public Data, L.P., Shadowsoft,

Inc.,

Harlington-Straker-Studio, Inc., and Dale Bruce Stringfellow, to Dismiss for
Lack of Standing (Doc. 37) is DENIED.
2.

Defendants Waffle House, Inc. and WH Capital, LLC’s Motion to Dismiss

[any] factual dispute, [he] respectfully requests an evidentiary hearing to occur after the
parties have had the opportunity to conduct discovery.” (Doc. 49, p. 15.) Whether a jury
question remains at the close of discovery will be a determination best made on a timely
motion for summary judgment. As such, Plaintiff’s request for an evidentiary hearing is
denied.

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(Doc. 41) is DENIED.
3.

Defendants The Source for Public Data, L.P., Shadowsoft, Inc.,
Harlington-Straker-Studio, Inc., and Dale Bruce Stringfellow’s Motion for
Leave to File Reply Memorandum in Support of Motion to Dismiss for Lack
of Standing (Doc. 105) is DENIED.

4.

Pursuant to Federal Rule of Civil Procedure 12(a)(4), on or before
Thursday, June 30, 2016, Defendants The Source for Public Data, L.P.,
Shadowsoft, Inc., Harlington-Straker-Studio, Inc., and Dale Bruce
Stringfellow are DIRECTED to file a responsive pleading to Plaintiff’s
Complaint (Doc. 1). In light of the pending Motion to Compel (Doc. 81),
Defendants Waffle House, Inc. and WH Capital, LLC are not required to
file a responsive pleading at this time.

5.

The deadline for Defendants’ Opposition to Class Certification and All
Supporting Evidence, previously set for July 1, 2016 (Doc. 72, p. 3), is
SUSPENDED pending further order of the Court.

DONE AND ORDERED in Chambers in Orlando, Florida, on June 13, 2016.

Copies:
Counsel of Record

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