Sanchez v. Launch Technical Workforce Solutions, LLC

297 F.Supp.3d 1360

David SANCHEZ, on behalf of himself and all others similarly situated, Plaintiff,

v.LAUNCH TECHNICAL WORKFORCE SOLUTIONS, LLC, Defendant.

1:17–CV–01904–ELR

United States District Court, N.D. Georgia, Atlanta Division.

Signed February 14, 2018

Andrew Weiner, Jeffrey Sand, The Weiner Law Firm, LLC, Atlanta, GA, Matthew Wessler, Gupta Wessler, PLLC, Washington, DC, for Plaintiff.

Laura M. Davis, Scott M. Paler, DeWitt, Ross & Stevens, S.C., Madison, WI, John R. Hunt, Stokes Wagner, ALC, Brenton Sewell Bean, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendant.

ORDER

Eleanor L. Ross, United States District Judge

This case is before the Court on Magistrate Judge Alan J. Baverman's Non–Final Report and Recommendation ("R & R"). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3). No objections to the Magistrate Judge's R & R have been filed, and therefore, the Court has reviewed the R & R for clear error. See Thomas v. Arn , 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Macort v. Prem, Inc. , 208 Fed.Appx. 781, 784 (11th Cir. 2006) ; Tauber v. Barnhart , 438 F.Supp.2d 1366, 1373 (N.D. Ga. 2006). The Court finds no error in the R & R.

Accordingly, the Court ADOPTSthe R & R [Doc. 41] as the opinion of this Court. For the reasons stated in the R & R, the Court DENIESDefendant's Partial Motion to Dismiss as to Non–Resident Class Members [Doc. 16].

SO ORDERED,this 14^th day of February, 2018.

UNITED STATES MAGISTRATE JUDGE'S NON–FINAL REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE

This matter is presently before the Court on a partial motion to dismiss the complaint as to non-resident class members, [Doc. 16], filed by Defendant Launch Technical Workforce Solutions, LLC ("Launch"), pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. For the reasons set forth below, the undersigned RECOMMENDS that the motion, [Doc. 16], be DENIED .

I. Background

In the complaint, Plaintiff, on behalf of himself and all others similarly situated, asserts a claim against Launch for violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq. [Doc. 1 at ¶¶ 1, 106–10 (Fourth Claim for Relief) ]. He alleges that Launch made him a conditional offer of employment, pending the successful completion of a background check; ordered a consumer report in conjunction with the background check; received a consumer report falsely stating that Plaintiff had a criminal record; and, without providing Plaintiff a copy of the report or a written description of his FCRA rights, withdrew the offer of employment. [Id. ¶¶ 6, 9, 25–69, 106–10]. He contends that "Launch typically does not provide job applicants or employees with a copy of their consumer report or a copy of their rights under the FCRA before taking adverse employment action against them based on information in such reports," [id. ¶ 65], and he therefore seeks to assert a claim under 15 U.S.C. § 1681b(b)(3)¹ on his own behalf and on behalf of

All employees or prospective employees of Launch in the United States (including all territories and political subdivisions of the United States) who were the subject of a consumer report procured by Launch (or that Launch caused to be procured), which contained any negative (derogatory) information about them, and for whom Launch failed to provide that employee or prospective employee with a copy of their consumer report and/or FCRA summary of rights before Launch took adverse employment action against them, within the period prescribed by the FCRA, 15 U.S.C. § 1681p, prior to filing this action.

[Id. ¶ 70].

On August 7, 2017, Launch filed a partial motion to dismiss the complaint as to the members of the plaintiff class that are not Georgia residents, arguing that the Court cannot exercise personal jurisdiction over non-resident claims.² [Doc. 16]. On September 5, 2017, Plaintiff filed a response brief in opposition to the partial motion to dismiss, [Doc. 29], and on September 27, 2017, Launch filed a reply brief in support of its motion, [Doc. 34]. On October 30, 2017, and December 21, 2017, Plaintiff filed notices of supplemental authority in support of his opposition to Launch's partial motion to dismiss, [Docs. 38, 40].³ With briefing complete, the undersigned now considers the motion.

II. Discussion

Launch moves to dismiss the claims of the non-Georgia class members, arguing that Bristol–Myers Squibb Co. v. Superior Court of Cal., San Francisco Cnty. , ––– U.S. ––––, 137 S.Ct. 1773, 198 L.Ed.2d 395 (2017), bars their claims. [Doc. 16 at 1–2]. Plaintiff argues that Bristol–Myers does not apply to bar the claims because Bristol–Myers concerned a mass action asserting state claims in state court and is therefore inapposite to the federal class-action claims asserted here in federal court. [Doc. 29 at 2–3]. In reply, Launch concedes that Bristol–Myers is not on all fours with this case and does not dictate the outcome of its motion, but it contends that under the logic of Bristol–Myers , principles of due process preclude the assertion of a nationwide class action in any state other than a state where Launch is subject to general personal jurisdiction. [Doc. 34 at 1, 2, 11].

Bristol–Myers concerned a Fourteenth Amendment due-process challenge to claims asserted by non-Californian plaintiffs in a mass civil action filed against Bristol–Myers Squibb Company in a California state court for injuries allegedly caused by a drug called Plavix. Bristol–Myers Squibb Co. , 137 S.Ct. at 1777–79, 1787, 1789. Bristol–Myers Squibb, a citizen of Delaware and New York, challenged the California Supreme Court's application of a "sliding scale approach to specific jurisdiction"⁴ under which it held that although general jurisdiction was lacking in California; Bristol–Myers Squibb did not develop Plavix in California, create a marketing strategy for Plavix in California, manufacture, label, or package Plavix in California, or work on the regulatory approval of Plavix in California; and the non-resident plaintiffs did not allege that they obtained Plavix through California physicians or other California sources, were injured by Plavix in California, or were treated for their injuries in California, the California state court could nevertheless exercise personal jurisdiction over Bristol–Myers Squibb as to the claims of the non-resident plaintiffs as well as the resident plaintiffs because the company's " ‘extensive contacts with California’ permitted the exercise of specific jurisdiction ‘based on a less direct connection between [Bristol–Myers Squibb's] forum activities and plaintiffs' claims than might otherwise be required.’ " Id. at 1778–79 (quoting Bristol–Myers Squibb Co. v. Superior Court of Cal., San Francisco Cnty. , 1 Cal.5th 783, 803–06, 206 Cal.Rptr.3d 636, 377 P.3d 874, 887–89 (2016) ). The United States Supreme Court found that the California approach amounted to a "loose and spurious form of general jurisdiction" and held that because the California approach had allowed for claims to proceed against Bristol–Myers despite the lack of a connection between the forum and the specific claims at issue, the approach did not comport with "settled principles of personal jurisdiction" and exceeded the due process limits of the Fourteenth Amendment to the United States Constitution. Bristol–Myers Squibb Co. , 137 S.Ct. at 1781–83. The Supreme Court stated, however, that "since [its] decision concern[ed] the due process limits on the exercise of specific jurisdiction by a State, [it] le[ft] open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court." Id. at 1783–84 (citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co. , 484 U.S. 97, 102 n.5, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) ).

Here, the parties do not dispute that the Court may not exercise general personal jurisdiction over Launch but that the Court may exercise specific personal jurisdiction over Launch in adjudicating the claims of the named plaintiff. Launch, a Delaware limited-liability company, [Doc. 1 ¶ 21], with a single office located at its headquarters in Illinois, [Doc. 16–1 (Declaration of Jean Rollo, Launch's Chief Operating Officer ("Rollo Decl.") ) ¶ 7], contends that it lacks contacts with Georgia sufficient to establish general jurisdiction, [Doc. 16 at 2–3, 5–7], and that the Court would not have specific jurisdiction over individual claims asserted by the unnamed class plaintiffs because there is no connection between their individual claims and Launch's few activities within the state of Georgia, [Doc. 16–1 at 2, 7–10]. Plaintiff does not rebut the arguments, thus inherently conceding the issues. See Kramer v. Gwinnett Cnty. , 306 F.Supp.2d 1219, 1221 (N.D. Ga. 2004) (Evans, J.) (explaining that where a party fails to respond to any portion of a motion, that portion, claim, or defense is waived).⁵ Launch does admit, however, that Plaintiff "appears to properly assert specific jurisdiction," as his claims "arguably arose within this jurisdiction." [Doc. 34 at 9]. Thus, the question presented to the Court is whether, in light of the due-process concerns driving dismissal of the claims of the non-resident plaintiffs in Bristol–Myers , personal jurisdiction may be had over Launch with regard to the claims of the non-resident class members on the strength of the Court's specific jurisdiction over the claims of the named plaintiff.

After careful review, the Court concludes that due-process concerns do not foreclose its exercise of personal jurisdiction over Launch as to the claims of the resident named plaintiff both on his own behalf and on behalf of the unnamed non-resident plaintiffs. Launch's argument that Bristol–Myers is analogous to this case is not without logical appeal: California's "sliding-scale" approach to specific...