Mitchell v. Winco Foods LLC

Filing 34

MEMORANDUM DECISION AND ORDER It is hereby ORDERED Mitchell's Motion to Reconsider Memorandum Decision and Order of March 7, 2017 Dismissing the Case (Dkt. 30 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GLORIA MITCHELL,
Case No. 1:16-cv-00076-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
WINCO FOODS, LLC,
Defendant.

INTRODUCTION
The Court has before it Mitchell’s Motion to Reconsider Memorandum Decision
and Order of March 7, 2017 Dismissing the Case (Dkt. 30).
BACKGROUND
Mitchell applied for a job at Winco in April 2015 using Winco’s online
application. The online application provided her with an FCRA disclosure informing her
that WinCo would conduct a background check in connection with her application for
employment.
Mitchell alleges that she was presented another form entitled “Authorization for
Background Check” at the same time she reviewed the disclosure. She was subsequently

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hired by Winco, but she alleges, on behalf of herself and a class, that the disclosure
violated the FCRA because Winco failed to provide a “stand-alone” disclosure regarding
the background check.
Winco filed a motion to dismiss the claims based upon lack of standing. The Court
granted that motion after interpreting and applying the Supreme Court’s recent decision
on FCRA standing, Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). Mitchell now asks the
Court to reconsider its decision.
LEGAL STANDARD
A motion to reconsider an interlocutory ruling requires an analysis of two
important principles: (1) Error must be corrected; and (2) Judicial efficiency demands
forward progress. The former principle has led courts to hold that a denial of a motion to
dismiss or for summary judgment may be reconsidered at any time before final judgment.
Preaseau v. Prudential Insurance Co., 591 F.2d 74, 79-80 (9th Cir. 1979). While even
an interlocutory decision becomes the “law of the case,” it is not necessarily carved in
stone. Justice Oliver Wendell Holmes concluded that the “law of the case” doctrine
“merely expresses the practice of courts generally to refuse to reopen what has been
decided, not a limit to their power.” Messinger v. Anderson, 225 U.S. 436, 444 (1912).
“The only sensible thing for a trial court to do is to set itself right as soon as possible
when convinced that the law of the case is erroneous. There is no need to await
reversal.” In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568, 572 (N.D.Cal.
1981)(Schwartzer, J.).

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The need to be right, however, must co-exist with the need for forward progress. A
court’s opinions “are not intended as mere first drafts, subject to revision and
reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc.,
123 F.R.D. 282, 288 (N.D.Ill.1988).
Reconsideration of a court’s prior ruling under Federal Rule of Civil Procedure
59(e) is appropriate “if (1) the district court is presented with newly discovered evidence,
(2) the district court committed clear error or made an initial decision that was manifestly
unjust, or (3) there is an intervening change in controlling law.” S.E.C. v. Platforms
Wireless Int’l Corp., 617 F.3d 1072, 1100 (9th Cir. 2010) (citation omitted). If the
motion to reconsider does not fall within one of these three categories, it must be denied.
Here, Plaintiff suggests the Court committed clear error.
The Court is often presented with motions to reconsider based upon an argument
that the Court committed clear error. Most of those motions simply restate arguments the
Court has already addressed, and ask the Court to rethink its decision. This is one of those
motions. The Court has already addressed Plaintiff’s arguments in its earlier decision and
nothing in the motion to reconsider causes the Court to change its mind. Accordingly, the
Court will deny the motion.
ANALYSIS
Mitchell argues that Syed v. M-I, LLC, 846 F.3d 492 (9th Cir. 2017) is an
intervening change in controlling law. Syed is similar to this case in that it addresses the
FCRA’s requirement that an FCRA disclosure regarding a background check be a stand-

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alone disclosure. The majority of the opinion focuses on whether defendant M-I violated
the FCRA by including a liability waiver on the same document as its FCRA disclosure.
The Ninth Circuit specifically noted that “[n]either the Supreme Court nor any circuit
court of appeals has addressed whether a prospective employer may satisfy 15 U.S.C.
§ 1681b(b)(2)(A) by providing a disclosure on a document that also includes a liability
waiver” Syed, 846 F.3d at 499. Syed was issued after Spokeo.
But although Syed also addressed the plaintiff’s standing in that case, the Ninth
Circuit only addressed it in two short paragraphs before moving on to the big question of
whether the disclosure could include a liability waiver. The Ninth Circuit simply gave
some general background information on standing, and then concluded that Syed’s
allegation was “sufficient to infer that Syed was deprived of the right to information and
the right to privacy guaranteed by Section 1681b(b)(2)(A)(I)–(ii) because it indicates that
Syed was not aware that he was signing a waiver authorizing the credit check when he
signed it.” Id. The Ninth Circuit concluded that “[d]rawing all reasonable inferences in
favor of the nonmoving party, we can fairly infer that Syed was confused by the inclusion
of the liability waiver with the disclosure and would not have signed it had it contained a
sufficiently clear disclosure, as required in the statute.” Id. at 499-500. Thus, the Ninth
Circuit concluded that Syed had alleged a concrete injury and had standing. Id. at 500.
This case does not involve an accusation that a liability form was included with
the disclosure. And the inferences and conclusions drawn by the court in Syed cannot be
drawn in this case based upon the Amended Complaint. The facts in Syed are

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distinguishable from the facts of this case, or at least not developed enough for this Court
to make a comparison. The Court cannot make the same inference that Mitchell, like
Syed, was not aware she signed the waiver, was confused by the inclusion of a liability
waiver with the disclosure, and would not have signed it had it contained a sufficiently
clear disclosure.
The Ninth Circuit in Syed did not create a change in the controlling law on
standing set forth in Spokeo. The Ninth Circuit did not address Justice Alito’s example of
a bare procedural violation that does not create Article III standing when a consumer
reporting agency fails to provide the required notice to a user of the agency’s consumer
information, but the information is entirely accurate. Spokeo 136 S.Ct. at 1550. Nor did it
address his statement that not all inaccuracies cause harm or present any material risk of
harm, such as an incorrect zip code in a disclosure. Based on the allegations of the
Amended Complaint, this case fits squarely within the “entirely accurate” or “no material
risk of harm” categories identified by Justice Alito as not constituting the type of harm
which provides Article III standing. As the Court explained in its earlier opinion, the
problem for Mitchell is that consideration of the specific facts of this case, coupled with
Justice Alito’s conclusions in the last two paragraphs of Spokeo, Inc. v. Robins, 136 S.Ct.
1540 (2016), leave her without a concrete injury. Justice Alito plainly stated that a
plaintiff cannot satisfy the demands of Article III by alleging a bare procedural violation
because “a violation of one of the FCRA’s procedural requirements may result in no
harm.” Id. Accordingly, the motion for reconsideration will be denied.

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ORDER
IT IS HEREBY ORDERED:
1. Mitchell’s Motion to Reconsider Memorandum Decision and Order of March
7, 2017 Dismissing the Case (Dkt. 30) is DENIED.

DATED: November 13, 2017
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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