Court of Appeals of Missouri, Western District, Fourth Division
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.
PFEIFFER, CHIEF JUDGE.
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.
and Procedural History
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 was used by
Wal-Mart to obtain consumer reports on individuals, including
Corozzo and Ruff, for employment purposes.
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
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
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."
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.
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 and permitted the parties to argue
Wal-Mart's motion to stay discovery, which the trial
court sustained in part.
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
and Ruff timely appealed.
I - Change of Judge
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.
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.
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." 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 ...