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Goldberg v. Uber Technologies, Inc.

United States District Court, D. Massachusetts

April 6, 2015

MARK GOLDBERG, on behalf of himself and others similarly situated


RICHARD G. STEARNS, District Judge.

In July of 2014, Mark Goldberg applied, through defendant Rasier, LLC, to be a driver for defendant Uber Technology, Inc.[1] The first step of the online application process required Goldberg to "[c]omplete the FREE online background check." Am. Compl. ¶ 18. Goldberg encountered a text box entitled "Background Check Terms" with the first three lines visible. The lines read:

Rasier, LLC, the entity that contracts with drivers who provide peer-to-peer transportation requested through the Uber app, is committed to safety. As part of that commitment, Raiser uses a third-party vendor to conduct criminal background check, motor vehicle record check, and other checks. Please review the below disclosure/authorization and release.

Opp'n at 6. Goldberg electronically accepted the Background Check Terms and completed the application.

On July 29, 2014, Rasier emailed Goldberg two background reports compiled by defendant Hirease, LLC. On August 4, 2014, Rasier emailed a third report to Goldberg. The third report included a Fair Credit Reporting Act (FCRA) "Summary of Rights." The cover email stated: "[t]his consumer report was used only for purposes of determining your eligibility as an independent contractor, " and that "[c]urrently, a decision is pending regarding your proposal. The contents of the enclosed report are under review and are being considered with regard to your proposal." Am. Compl. ¶¶ 28-29. The August 4 report disclosed that Goldberg faced a pending federal indictment for "conspiracy to manufacture, possess with intent to distribute and to distribute marijuana." Id. Ex. C at 2. Goldberg emailed Uber the following day (August 5, 2014), explaining that he had never been convicted of any crimes. Uber responded that it "will certainly take the information [Goldberg] provided into consideration." Id. ¶ 35.

On August 12, 2014, Rasier notified Goldberg that his application had been rejected, "in part [because] of information obtained through the Consumer Reporting Agency identified below." Id. ¶ 36. Goldberg immediately asked Uber to reconsider and received two responses, one of which stated: "Uber does not employ drivers or own any vehicles. Our background checks are meant to ensure that we are connecting riders with the safest rides on the road. If at any time your circumstances change and you would like us to re-run your background check, please let us know." Id. ¶ 42.

Goldberg filed this putative class action in Suffolk Superior Court on October 30, 2014. His Amended Complaint alleges willful or negligent violation of § 1681b(b)(3)(A) of the FCRA (Count I), violation of the Massachusetts Consumer Credit Reporting Act (MCCRA), Mass. Gen. Laws ch. 93, §§ 50 et seq. (Count II), and violations of the Massachusetts Criminal Offender Record Information (CORI) law, Mass. Gen. Laws ch. 6, §§ 167-178B (Count III). Uber and Raiser removed the case to the federal district court on federal question grounds, and on March 6, 2015, moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).


The standard for a motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

"Because [a Rule 12(c)] motion calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom...." R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir.2006). Under Bell Atlantic v. Twombly, 550 U.S. 544, [555] (2007), to survive a Rule 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual allegations that "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true...."

Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008).

Count I - FCRA

Defendants first contend that Goldberg lacks Article III standing to bring a FCRA negligence claim because he has no actual damages. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 53 (2007) ("If a violation is negligent, the affected consumer is entitled to actual damages."). Although Goldberg claims the loss of the opportunity to become a driver for Uber, compliance with the FCRA does not guarantee a right to employment, particularly where the information given to Uber (and on which it relied) was accurate. While Goldberg provided Uber with information that he believed to be mitigating (because it was more complete), nothing in the FCRA required Uber to change its hiring policies as a result.

As a fallback, Goldberg argues that he need not plead actual harm to establish a claim of a willful violation of the FCRA. Id. Willfulness connotes reckless disregard, and its test combines an objective component of reasonableness, and a subjective component of intent. The ...

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