Case 3:20-cv-06754-WHA Document 398 Filed 11/10/22 Page 1 of 2
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`VICTOR L. WEAVER,
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`Plaintiff,
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`v.
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`CHECKR INC.,
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`Defendant.
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`No. C 22-04135 WHA
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`ORDER REQUESTING FURTHER
`BRIEFING
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`In this action under the Fair Credit Reporting Act, plaintiff, who appears pro se, alleges
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`that defendant Checkr Inc., a consumer reporting agency, provided an inaccurate background
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`check to a potential employer. Plaintiff initially filed suit against defendant in the United
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`States District Court for the District of Arizona on June 27, 2022. See Weaver v. Checkr Inc.,
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`No. C 22-01090 (D. Ariz. filed June 27, 2022) (Judge Susan M. Brnovich). Plaintiff then filed
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`a virtually identical suit here two weeks later. Meanwhile, Judge Brnovich compelled plaintiff
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`to arbitration and dismissed the Arizona suit on September 12, 2022 (id. Dkt. No. 14).
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`Defendant now moves to dismiss our suit under the doctrine of collateral estoppel (Dkt.
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`No. 14). A party may invoke the doctrine of collateral estoppel to avoid relitigating an issue in
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`a subsequent proceeding when: “(1) the issue at stake was identical in both proceedings; (2) the
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`issue was actually litigated and decided in the prior proceedings; (3) there was a full and fair
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`opportunity to litigate the issue; and (4) the issue was necessary to decide the merits.”
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`Snoqualmie Indian Tribe v. Washington, 8 F.4th 853, 864 (9th Cir. 2021).
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`Northern District of California
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`United States District Court
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`Case 3:20-cv-06754-WHA Document 398 Filed 11/10/22 Page 2 of 2
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`The central issue at play is whether the issue was actually litigated. Shortly after filing
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`the Arizona suit, plaintiff received notice that the Arizona case would be dismissed without
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`prejudice if defendant was not served within ninety days. Plaintiff explained at the motion
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`hearing that he understood that to mean that the case would be dismissed if he did nothing. He
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`then decided to file in California. Defendant, meanwhile, appeared voluntarily in the Arizona
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`proceeding and exercised its right to file a motion to compel arbitration. Plaintiff admits that
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`he got notice of the motion, but that he ignored it because he no longer intended to pursue his
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`case in Arizona and assumed the case would be dismissed.
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`Plaintiff, however, never communicated his intent with the Arizona district court. Judge
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`Brnovich then decided the issue without a hearing on account of not receiving opposition
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`papers. Notably, Judge Brnovich did not merely grant the motion as unopposed, but instead
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`decided the issue on the merits.
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`Our court of appeals has explained that “some types of judgments are not given collateral
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`estoppel effect because the court did not get the benefit of deciding the issue in an adversarial
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`context.” In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983). In Gottheiner, for example,
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`our court of appeals suggested that collateral estoppel may not be appropriate when a party
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`“simply give[s] up from the outset.” Ibid. By way of example, the court explained that “[i]n
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`the case of a default judgment . . . a party may decide that the amount at stake does not justify
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`the expense and vexation of putting up a fight. The defaulting party will certainly lose that
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`lawsuit, but the default judgment is not given collateral estoppel effect.” Ibid.
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`Here, plaintiff never opposed defendant’s motion to compel arbitration and he did not get
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`the benefit of a motion hearing. He did, however, get notice of the motion and had an
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`opportunity to “actually litigate” the issue. In light of these circumstances, both parties shall
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`submit briefing of no more than five pages on NOVEMBER 17, 2022 addressing the issue of
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`whether plaintiff “actually litigated” the motion to compel arbitration.
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`Dated: November 10, 2022.
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`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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`2
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`Northern District of California
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`United States District Court
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