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Corozzo v. Wal-Mart Stores, Inc.

Court of Appeals of Missouri, Western District, Fourth Division

July 25, 2017

JOSHUA COROZZO and ARTHOR RUFF, Appellants,
v.
WAL-MART STORES, INC., Respondent.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Daniel R. Green, Judge.

          Before: Mark D. Pfeiffer, Chief Judge, and Victor C. Howard and James Edward Welsh, Judges.

          MARK D PFEIFFER, CHIEF JUDGE.

         Mr. Joshua Corozzo ("Corozzo") and Mr. Arthor Ruff ("Ruff") brought a class action against Wal-Mart Stores, Inc. ("Wal-Mart") for violations of the Fair Credit Reporting Act ("FCRA"). The Circuit Court of Cole County, Missouri ("trial court"), granted Wal-Mart's motion to dismiss and entered judgment dismissing the matter with prejudice. Corozzo and Ruff appeal, raising two points of error. We affirm.

         Facts and Procedural History[1]

         Corozzo applied for work with Wal-Mart in 2014, and Ruff applied for work with Wal-Mart in 2015. Both were given a form titled "Background Check Disclosure and Authorization Form Fair Credit Reporting Act Authorization" ("Disclosure Form"). The seven-page Disclosure Form[2] was used by Wal-Mart to obtain consumer reports[3] on individuals, including Corozzo and Ruff, for employment purposes.

         On July 21, 2015, Corozzo and Ruff filed a class action "Complaint" against Wal-Mart, alleging willful violations of the FCRA. Specifically they alleged that Wal-Mart's Disclosure Form contained extraneous information, inaccurate and misleading statements, and did not provide the putative class members with "a clear and conspicuous disclosure in writing in a document that consisted solely of the disclosure that a consumer report may be obtained for employment purposes." As relief, they sought "statutory damages, punitive damages, costs and attorneys fees, and all other relief available pursuant to the FCRA."

         The circuit court docket sheet shows "Judge Assigned" the same day the case was filed. The docket sheet also shows an "Order" entered by Judge Jon Beetem on September 1, 2015, which order included a statement that Division 1 recused on its own motion and transferred the case file to the Presiding Judge for re-assignment. On October 2, 2015, the docket sheet shows the Presiding Judge entered an "Order for Change of Judge" assigning the case to Division 2.

         Wal-Mart filed its answer on October 19, 2015, alleging as one of its affirmative defenses that "Plaintiffs lack standing to bring the claims set forth in their Complaint because they involve no threatened or actual injury to Plaintiffs. Plaintiffs lack standing to assert the claims in their Complaint because, among other reasons, they have not suffered an injury-in-fact."

         A docket sheet entry on October 20, 2015 shows "Judge Assigned[, ] Motion to Stay[, ]" and indicates that Wal-Mart's motion to stay discovery and suggestions in support were sent to the assigned judge for review.

         On November 10, 2015, Corozzo and Ruff filed a motion for change of judge. The trial court conducted a hearing on the motion on November 18, 2015. After hearing the parties' arguments, the trial court denied the motion for change of judge[4] and permitted the parties to argue Wal-Mart's motion to stay discovery, which the trial court sustained in part.

         Thereafter, Wal-Mart moved to dismiss Corozzo and Ruff's petition for lack of standing on the grounds that they asserted only a "bare procedural violation"; they did not assert any "concrete harm" or injury; and therefore they failed to satisfy the "injury-in-fact requirement of standing." After a hearing on the motion, the trial court entered its judgment dismissing the case with prejudice.

         Corozzo and Ruff timely appealed.

         Point I - Change of Judge

         Standard of Review

         In Corozzo and Ruff's first point, they contend the trial court erred in denying their motion for change of judge because their request was timely made. The denial of a motion for change of judge without cause is an issue of law that the appellate court reviews de novo. Gordon ex rel. G.J.E. v. Epperly, 504 S.W.3d 836, 844 (Mo. App. W.D. 2016).

         Analysis

         Under Rule 51.05(a), a party has the absolute right to disqualify a judge once without cause or any showing of prejudice. State ex rel. Manion v. Elliott, 305 S.W.3d 462, 464 (Mo. banc 2010). "A change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by a party. . . . The application need not allege or prove any cause for such change of judge and need not be verified." Rule 51.05(a). "Although a party's right to disqualify a judge for cause is a substantive right, the right to pursue a change of judge without cause is a procedural right." Atteberry v. Hannibal Reg'l Hosp., 926 S.W.2d 58, 60 (Mo. App. E.D. 1996). "Because the nature of the application for change of judge without cause is procedural, the requesting party must strictly comply with the procedures set forth in Rule 51.05." Id.

         One procedural limitation on obtaining a change of judge under Rule 51.05 is that the application must be timely filed. Manion, 305 S.W.3d at 464. To be timely, "[t]he application must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer."[5] Rule 51.05(b). The "designation of the trial judge" occurs when the judicial transfer order is "filed" in the circuit court, Cover v. Robinson, 224 S.W.3d 36, 39 (Mo. App. W.D. 2007), not when the ...


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