JONATHAN GOODMAN, United States Magistrate Judge.
THIS CAUSE is before the Court on the motions for summary judgment filed by Defendants Trans Union, LLC [ECF No. 74], Bank of America (n/k/a FIA Card Services, N.A.) [ECF No. 80], Experian Information Solutions, Inc. [ECF No. 81], and CACH, LLC [ECF No. 83].
For the reasons below, the Undersigned
On July 12, 2011, Stroud filed a thirteen-count lawsuit under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA) and Florida law against the Defendants. Stroud's claims all stem from his efforts to force Defendants to investigate and correct what he contends is inaccurate information on his credit reports resulting from identity theft. Stroud contends that Defendants' actions have caused him a credit denial, a negative credit reputation, and physical and mental injuries.
The Court must construe Stroud's complaint liberally because he is proceeding pro se. H & R Block E. Enters., Inc. v. Morris, 606 F.3d 1285, 1288 n. 1 (11th Cir.2010). To that end, it appears that Stroud's specific claims are as follows:
Stroud alleges claims against BOA for violation of its duties under the FCRA, 15 U.S.C. § 1681s-2(b), as a furnisher of information, for failing to conduct a reasonable investigation of Stroud's credit reporting dispute and for providing inaccurate information to credit reporting agencies under Florida defamation law.
Stroud alleges claims against CACH for violation of its duties under the FCRA, 15 U.S.C. § 1681s-2(b), as a furnisher of information, for failing to conduct a reasonable investigation of Stroud's credit reporting dispute and for providing inaccurate information to credit reporting agencies under Florida defamation law.
Stroud alleges five claims against Trans Union. He contends that Trans Union violated: (1) 15 U.S.C. § 1681i(a)(2)(A) by failing to provide all relevant details of Stroud's dispute to the furnisher of the disputed information and § 1681i(a)(5) by mishandling allegedly unverifiable information; (2) § 1681i(c) by failing to place a notice of the dispute in his credit report; (3) § 1681h(e) by negligently or willfully including false information in his credit report; (4) § 1681g(a) by failing to provide
Stroud alleges four claims against Experian. Instead of providing specific factual allegations against Experian, Stroud simply states that he "incorporates the proceeding allegations by reference" and then references paragraphs from his allegations against Trans Union.
Summary judgment is appropriate when the pleadings, depositions, affidavits and exhibits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a), (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue of fact is "material" if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997).
An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, 121 F.3d at 646. On a motion for summary judgment, the court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party and determine whether the evidence could reasonably sustain a jury verdict for the non-movant. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Allen, 121 F.3d at 646.
The Eleventh Circuit "has consistently held that conclusory allegations without specific supporting facts have no probative value." Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.2000) (citing Evers v. G.M. Corp., 770 F.2d 984, 986 (11th Cir.1985)). "`[O]ne who resists summary judgment must meet the movant's affidavits with opposing affidavits setting forth specific facts to show why there is an issue for trial.'" Leigh, 212 F.3d at 1217 (quoting Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir.1978)). A party's self-serving affidavit that contains only unverified, conclusory allegations does not create a genuine issue of material fact. Lucas v. State Farm Fire & Cas. Co., 864 F.Supp.2d 1346, 1356-57 (M.D.Ga.2012) (citing Evers, 770 F.2d at 986).
The Court will address Stroud's claims on a defendant-by-defendant basis.
Stroud's only FCRA claim is that BOA failed to conduct a reasonable investigation pursuant to 15 U.S.C. § 1681s-2(b) of the FCRA.
Put another way, to avoid summary judgment on this claim, Stroud must show there is a genuine issue of material fact evidencing that Bank of America:
Howard v. DirecTV Grp., Inc., No. CV 109-156, 2012 WL 1850922, at *4 (S.D.Ga. May 21, 2012) (discussing § 1681s-2(b) in the motion to dismiss context). A furnisher of information is entitled to summary judgment if it conducts a reasonable investigation based upon the information regarding the dispute provided by the credit reporting agency, concludes that there is no evidence its information is inaccurate, and accurately reports its findings to the credit reporting agencies. Westra v. Credit Control of Pinellas, 409 F.3d 825 (7th Cir.2005).
15 U.S.C. § 1681s-2(b) does not define what constitutes a "reasonable" investigation. But 15 U.S.C. § 1681s-2(a)(1)(A)-(D) provides that a furnisher of information may not furnish information to a credit reporting agency if it "knows or has reasonable cause to believe that the information is inaccurate" and that "reasonable cause" "means having specific knowledge, other than solely allegations by the consumer, that would cause a reasonable person to have substantial doubts about the accuracy of the information." See also Groves v. U.S. Bank, No. 8:10-CV-2665-T-17TGW, 2011 WL 2192821, at *6 (M.D.Fla. Jun. 6, 2011) (applying this standard to a § 1681s-2(b) claim on a motion to dismiss).
Moreover, it is apparent that "what is a reasonable investigation by a furnisher may vary depending on the circumstances," that reasonableness is judged by an "objective standard," and that "the burden
As recently summarized by the Eastern District of Virginia in Van Veen v. Equifax Info., 844 F.Supp.2d 599, 605 (E.D.Pa. 2012):
In this case, BOA has more than amply demonstrated that it conducted a reasonable investigation, that the result of that investigation provided no reason to reach any conclusion other than that the disputed account belonged to Stroud, and that it accurately reported the results of the investigation. For his part, Stroud has failed to provide any evidence, as opposed to merely his own allegations or hunches or theories, that the investigation was unreasonable or that BOA reported any inaccurate information. BOA is therefore entitled to summary judgment.
BOA reports that between May 2008 and July 2011, it received nine disputes from credit reporting agencies regarding Stroud's account. [ECF No. 80-2, pp. 1-2]. The precise wording of these disputes varied, but generally the notifications from the credit reporting agencies stated that Stroud believed the account was "[n]ot his/ hers ... [p]rovide or confirm ID" or that Stroud believed his credit report contained "inaccurate information" or that he was the victim of identity theft. [Id. at p. 2].
BOA Assistant Vice President and Operations Team Manager for Credit Bureau Disputes, Margaret Jane Getty, submitted a declaration stating that for the majority of the disputes, the Bank investigated whether the account was Stroud's by confirming that the personal information for the account that Stroud listed in the disputes matched the information in FIA's records for the account. As to one particular complaint made in July 2009 alleging identity theft, Getty affirmed that BOA rejected that claim because of the results of its March 2009 investigation of a complaint received from the Office of the Comptroller of the Currency ("OCC"). The investigation of the OCC complaint and the results will be described more fully below.
BOA Operations Consultant for U.S. Card Litigation Support, George Driver IV, also submitted a declaration. [ECF No. 80-1]. Driver reports that he was responsible for reviewing the March 2009 OCC complaint. Driver researched the relevant account and discovered that BOA's records indicated Stroud opened it on June 12, 1994. Among other material observations, Driver states that in 2009 he concluded the account belonged to Stroud because:
[Id. at pp. 3-5]. Driver attached copies of the statements and the check to his declaration.
Driver states that he also conducted another investigation regarding the disputed account when Stroud filed this lawsuit in 2011. During this investigation, Driver reports that he found additional evidence that the account belonged to Stroud — such as more bank statements sent to Stroud's address, additional copies of checks, and records of communications between BOA and Stroud regarding the account. Moreover, Driver attached copies of this evidence to his declaration. [Id. at pp. 5-7].
Considered in isolation, BOA's submissions demonstrate that its response to Stroud's various disputes constituted a reasonable investigation under the FCRA, that this investigation yielded no indication that the account did not belong to Stroud, and that BOA accurately reported its findings. See also, e.g., Howard v. Pinnacle Credit Servs., LLC, No. 4:09-CV-85 (CDL), 2010 WL 2600753, at *2-3 (M.D.Ga. June 24, 2010) (analyzing similar disputes received from a credit agency, describing a similar response, and granting summary judgment to furnisher of information on § 1681s-2(b) claim). Therefore, to avoid summary judgment, Stroud must demonstrate that there is other evidence demonstrating that a genuine issue of material fact exists.
Stroud submitted an affidavit, two written responses, and two appendices with attached exhibits in response. [ECF Nos. 96; 106; 128; 129; 132; 133]. After reviewing Stroud's submissions, the Court concludes that they are not sufficient to defeat summary judgment in BOA's favor on Stroud's § 1681s-2(b) claim because Stroud produced no evidence to support this claim other than his own allegations.
For example, Stroud contends that he never received any of the account statements bearing his address that BOA attached to Driver's affidavit. [ECF No. 96]. This allegation, however, is conclusory and unpersuasive. The issue is whether BOA conducted a reasonable investigation. Stroud offers no evidence contradicting Driver's affidavit testimony that BOA's records indicate that BOA sent the statements to Stroud at Stroud's address. Even if somehow none of the statements actually made it to Stroud, if there is nothing in BOA's records evidencing this claimed procedural failure, then this fact does not mean it was unreasonable for BOA to have concluded that Stroud received the statements. Moreover, Stroud's argument also misses the mark because his purported non-receipt of the statements would only indicate that he did not receive the statements — not that the account did not belong to him.
Stroud's other points are either not relevant, incorrect, or unsupported by any
Stroud also appears to contend that many of BOA's records are inaccurate, inconsistent, unauthenticated, or simply fraudulent. [See generally ECF No. 132]. As to the alleged inaccuracies and inconsistencies, Stroud offers no authority standing for the proposition that BOA was required to examine every entry in its records for any inconsistency and, more importantly, does not explain why these entries demonstrate that the account did not belong to him (or at a minimum, why it would be reasonable to conclude that the account did not belong to him based on these alleged inaccuracies in the face of the seemingly large amount of straightforward evidence that the account did belong to him). As to authentication, the Court already explained why Stroud's analysis is misplaced in its order denying Stroud's motions in limine. [ECF No. 143]. Finally, the Court notes that Stroud points to no evidence supporting his hypothesis that the records are fraudulent or that a BOA employee stole his identity.
Stroud's remaining argument appears to be that it was unreasonable for BOA to rely on the e-OSCAR system for transmission of disputes from the credit reporting agencies. [ECF No. 128, p. 10]. This argument also fails. Stroud cites no authority holding that use of the e-OSCAR system is inappropriate or that BOA had any obligation to solicit additional information. Instead, the rule is that if a credit reporting agency relays an insufficient dispute description to an information furnisher, then an individual may instead simply have a cause of action against the credit reporting agency. Chiang, 595 F.3d at 38; see also Van Veen, 844 F.Supp.2d at 605 (noting that courts must examine the reasonableness of an investigation based upon the description of the dispute provided by the credit reporting agency). Moreover, under the circumstances of this case it does not appear to have made a difference, as BOA's records overwhelmingly indicated that the account belonged to Stroud and it is unclear how the investigation's result would have been any different if BOA had received any additional information with regard to the disputes.
In sum, the Undersigned concludes that the only material evidence — as opposed to conclusory allegations and self-serving hunches — is that BOA conducted a reasonable investigation under the circumstances and that this investigation resulted in a reasonable conclusion that the disputed account belonged to Stroud.
Stroud's second claim against BOA is under the Florida common law for defamation
Lofton-Taylor v. Verizon Wireless, 262 Fed.Appx. 999, 1002 (11th Cir.2008) (emphasis added) (citing 15 U.S.C. § 1681h(e)). Consistent with this preemption, Stroud's defamation claim must fail because he has submitted no evidence that the information was inaccurate or that BOA acted with malice or willful intent. Bermudez v. Equifax Info. Servs., LLC, No. 07-cv-1492-Orl-31GJK, 2008 WL 5235161, at *4 (M.D.Fla. Dec. 15, 2008); see also Schaffhausen v. Bank of Am., N.A., 393 F.Supp.2d 853, 860 (D.Minn. 2005) (granting defendants' summary judgment motions because plaintiff "has not presented sufficient evidence to suggest that BOA's actions were malicious or made in an attempt to injure" plaintiff); Kronstedt v. Equifax, CSC, No. 01-C-0052-C, 2001 WL 34124783 (W.D.Wis. Jan. 28, 2002) (noting that courts which have construed the preemption provision regarding the meaning of "malice or willful intent" have applied definitions used in libel law, observing that a statement is made with malice if it is made with knowledge of falsity or reckless disregard for the truth and holding that plaintiff's defamation claim must fail because the court already found plaintiff failed to adduce sufficient evidence of willfulness to survive defendant bank's summary judgment motion on punitive damages). BOA is therefore entitled to summary judgment on Stroud's defamation claim.
As with BOA, Stroud's only FCRA claim against CACH is that CACH failed to conduct a reasonable investigation pursuant to 15 U.S.C. § 1681s-2(b) of the FCRA and, as a result, reported inaccurate information. As noted above, to prevail on this claim, Stroud would need to demonstrate that CACH failed to conduct a reasonable investigation and/or failed to report the investigation results accurately and to make any warranted modifications to its reporting regarding Stroud.
The Court concludes that CACH has more than amply demonstrated that it conducted a reasonable investigation, that the result of that investigation provided no reason to reach any conclusion other than that the disputed account belonged to Stroud, and that it accurately reported the results of the investigation. For his part, Stroud has failed to provide any rebuttal evidence, as opposed merely to his allegations, that the investigation was unreasonable or that CACH ever reported any inaccurate information. CACH is therefore entitled to summary judgment.
CACH presented the following evidence-supported material facts in support of its summary judgment motion:
Stroud filed a written opposition memorandum, an affidavit and an appendix with attached exhibits in response. [ECF Nos. 95;100;101].
In his affidavit, Stroud states his belief that CACH (1) does not own the disputed account, (2) has no authority to collect it, and (3) has never presented any valid evidence of ownership. [These arguments appear, at least in part, to be an extension of the arguments the Court rejected in its order denying Stroud's motions in limine regarding the corporate merger].
In his written memorandum, Stroud primarily appears to raise various complaints over the documentation CACH filed in the state court debt collection action and to dispute the veracity of the BOA affidavits of sale and Mills' affidavit. [ECF No. 100]. But Stroud does not appear to offer any competent evidence supporting his contentions that CACH ever willfully or negligently furnished any inaccurate information to a credit reporting agency, or that CACH did not conduct a reasonable investigation in response to his disputes or that it did so but did not then provide accurate results (either willfully or negligently).
Stroud's primary, on-point argument in his memorandum appears to be that CACH (1) willfully or negligently did not conduct a reasonable investigation of his account disputes because it used the e-OSCAR system, and (2) negligently or willfully reported the account in the first place because it lacked sufficient information to verify the debt.
The Court rejects these arguments. The only evidence before the Court establishes that CACH performed a reasonable investigation based upon the information provided to it by the credit reporting agency and that the information CACH reported was correct.
In response to the credit reporting agency disputes, CACH reviewed its files and then, after discovering that the first affidavit of sale did not appear to contain the correct account number, deleted the account from the information it furnished to credit reporting agencies. This was reasonable under the circumstances. See, e.g., Howard v. Pinnacle Credit Servs., LLC, No. 4:09-CV-85 (CDL), 2010 WL 2600753, at *2-3 (M.D.Ga. June 24, 2010) (analyzing similar disputes received from a credit agency, describing a similar response, and granting summary judgment to furnisher of information on § 1681s-2(b) claim).
Most importantly, Stroud has failed to produce any evidence that CACH ever actually — either before or after Stroud filed the disputes — furnished inaccurate information to any credit reporting agency. Stroud may disagree with this conclusion and believe otherwise, but he has not produced any evidence to support his disagreement and beliefs. CACH is therefore entitled to summary judgment on this claim.
Stroud's second claim against CACH is raised under the Florida common law for defamation. As discussed above with regards to BOA, the Court concludes that his claim is preempted by the FCRA because Stroud presented no evidence to rebut CACH's evidence that the information reported was not accurate and failed to present evidence of malice or willful intent. The Court therefore also grants CACH summary judgment on this claim.
Stroud bases his claims against Experian on 15 U.S.C. §§ 1681i, 1681h(e), 1681g, and Florida defamation law. § 1681i provides the procedures a credit reporting agency such as Experian must follow when a consumer disputes the accuracy of information contained in the consumer's file. Jackson v. Ocwen Loan Servicing, LLC, No. 11-Civ-60560, 2011 WL 4345449, at *3 (S.D.Fla. Sept. 16, 2011). § 1681h(e) provides in relevant part that "no consumer may bring any action or proceeding in the nature of defamation ... against [any credit reporting agency] except as to false information furnished with malice or willful intent to injure such consumer."
An action under the FCRA must be brought "not later than the earlier of — (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs." 15 U.S.C. § 1681p; see also Grinke v. Countrywide Home Loans, Inc., No. 08-23383-CIV, 2009 WL 2588746, at *1 n. 6 (S.D.Fla. Aug. 24, 2009) (describing the statute of limitations). Under § 95.11(4)(g), a defamation action brought under Florida common law must be brought within two-years of publication.
Stroud filed his lawsuit on July 12, 2011. [ECF No. 1]. Experian contends that Stroud's claims under 15 U.S.C. § 1681h(e) and Florida defamation law are therefore barred by the statute of limitations because he filed this lawsuit more than three years after he discovered the statute was being violated. Specifically, Experian argues that the claim under § 1681h(e) and Florida defamation law accrued at least as early as June 7, 2008, when Stroud was denied credit for a laptop purchase based upon an Experian credit report. [ECF No. 81, p. 4; see also ECF No. 82-28 (the denial letter)]. Experian further argues that Stroud's claim under 15 U.S.C. § 1681i accrued at least as early as June 2008, when Stroud received notification from Experian that it would not remove the BOA account from his credit report. [ECF No. 81, pp. 4-5].
In response, Stroud makes only two arguments. First, he argues that his claims under 15 U.S.C. §§ 1681i & 1681h(e) did not begin to run until he "discovered" — through the formal discovery materials produced to him by Defendants after he filed his lawsuit — documentation substantiating his suspicions that Experian violated these provisions of the FCRA. [ECF No.
Stroud's arguments regarding the statute of limitations as to his § 1681i claim are unpersuasive. The record is clear that he was aware of the FCRA and his right to sue under that act at least as early as June 2008, when he was denied credit for a laptop computer based upon an Experian credit report and when Experian denied his request to remove the account from his credit report that same month. At his deposition, Stroud acknowledged that as of March 2008 he had read the FCRA and was aware that, if he disputed an account with Experian but Experian refused to remove it, then he could sue Experian under the FCRA. [ECF No. 82-2, p. 11].
Stroud's argument to the contrary appears to be based upon a fundamental misunderstanding of the statute of limitations. Stroud contends that "discovery" as used in the statute of limitations refers to the formal process of discovery in the lawsuit. In other words, Stroud appears to believe that the statute of limitations merely requires him to litigate his claims to completion within two years of receiving discovery materials that he believes prove his claim.
A statute of limitations limits the time for bringing a civil lawsuit based on the date when the claim accrued, which, in this case, is the date Stroud discovered — meaning realized — that he had reasonable grounds to believe he had a cause of action. BLACK'S LAW DICTIONARY 1451 (8th ed.2004); see also Cintron-Luna v. Roman-Bultron, 668 F.Supp.2d 315, 320 (D.Puerto Rico 2009) (holding that FCRA statute of limitations begins to run when a consumer discovers the facts giving rise to his claims).
Litigants rarely have all the evidence necessary to prove their claim when they file a lawsuit but they must file the lawsuit anyway based on less-than-perfectly confirmed allegations or risk waiving their right to do so. Indeed, the Federal Rules of Civil Procedure only require that a lawyer representing a plaintiff have a "belief" that a lawsuit has an evidentiary basis or "will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed.R.Civ.P. 11(b)(3). In any event, Stroud's interpretation of the statute of limitations is incorrect and contrary to his admission that he was prompted to file this lawsuit because he believed that if he waited any longer "the statute of limitations would be up
The Court therefore grants Experian summary judgment on statute of limitations grounds as to Stroud's § 1681i claim.
However, the Undersigned concludes that Stroud's defamation claim as to the September 8, 2009 report issued to GE Capital is not barred by the statute of limitations. Experian's reliance on the "single publication" rule is misplaced. When applying and interpreting Florida
Nevertheless, the Undersigned will still grant Experian summary judgment on the defamation claim because it is preempted under § 1681h(e). As outlined above in regard to defamation claims against other defendants, to avoid preemption of a common law claim "in the nature of defamation, invasion of privacy, or negligence," a consumer must base the claim on "false information furnished with malice or willful intent to injure such consumer." 15 U.S.C. § 1681h(e);
Consequently, Stroud's only remaining claim against Experian is for failing to provide a credit report upon request pursuant to § 1681g. In his complaint, Stroud does not specifically allege the grounds giving rise to this claim. Nonetheless, Experian cited to Stroud's deposition transcript, where Stroud explained the following relevant details about this claim:
Experian also attached a declaration from Teresa Iwanski, a Senior Legal and Compliance Specialist in the National Consumer Assistance Center of Experian Information Solutions, Inc. [ECF No. 82-10, pp. 6-7]. Ms. Iwanski confirmed that Experian's records demonstrate that Stroud sent a dispute letter to Experian on March 11, 2011 regarding the BOA account but that his dispute letter did not contain sufficient information for Experian to process the dispute. She also confirmed that Experian sent Stroud a letter on March 24, 2011 in response to Stroud's March 11, 2011 dispute that advised Stroud he needed to submit proper identification to allow them to process the dispute. Finally, Ms. Iwanski confirmed that, according to Experian's records, Experian "did not receive any other requests from Plaintiff for his credit report between March 8, 2011 and the filing of this lawsuit." [Id. at p. 7].
Experian contends that, based on Stroud's deposition testimony and Ms. Iwanski's declaration, the only reasonable conclusions are that Stroud never requested a second credit report, that the March 24, 2011 letter was in response to the March 11, 2011 dispute (not a second credit report request made approximately two weeks after he admittedly received a credit report), and that Experian therefore never denied him his credit report in violation of § 1681g. [ECF No. 81, p. 10].
In response, Stroud insists for various reasons that the March 24, 2011 letter was not in response to his March 11, 2011 dispute letter. However, these positions are little more than unsworn theories and, for the most part, Stroud points to no evidence to support these unsworn allegations. The one item of actual evidence to which Stroud points is a copy of an email
For one thing, Stroud's reliance on the email is problematic because, on its face, this email only confirms that Stroud ordered a Vantage Score that day. Stroud offers no competent evidence explaining, for example, that the omission of any mention of a free credit report in the March 8, 2011 email indicates that Stroud did not also request a free credit score. The unsworn suggestion that he did not order a free credit report that day also directly contradicts his sworn deposition testimony on this point. Moreover, even if Stroud did not request a free credit report on March 8, 2011, this email offers no support for his position he did so at a later date in March 2011 and was denied the report at that time.
But most damaging to Stroud's opposition to summary judgment is that Stroud has offered no evidence to rebut Experian's evidence that its records (1) show he requested and received his free credit report on March 8, 2011 and (2) demonstrate that Stroud made no further credit report requests with Experian between March 8, 2011 and the date he filed this lawsuit. [ECF No. 82-10, p. 7].
A party cannot resist an amply supported summary judgment motion by simply repeating the evidence-free mantra that the movant's position is incorrect. Stroud may subjectively and passionately believe that his hunch is correct, but hunches, regardless of how sincere they may be developed or how stridently they are repeated, are simply not evidence which a non-movant can rely upon to prevent the entry of summary judgment.
In sum, Stroud has failed to provide any evidence to support his allegations regarding this claim and has not rebutted the competent evidence provided by Experian. The Undersigned therefore grants summary judgment to Experian on Stroud's § 1681g claim.
Stroud advances five theories against Trans Union. Stroud claimed Trans Union violated: (1) 15 U.S.C. § 1681i(a)(2)(A) by failing to provide all relevant details of Stroud's dispute to the furnisher of the disputed information and § 1681i(a)(5) by mishandling allegedly unverifiable information; (2) § 1681i(c) by failing to place a notice of the dispute in his credit report; (3) § 1681h(e) by defaming him by negligently or willfully including false information in his credit report; (4) § 1681g(a) by failing to provide Stroud with a credit report upon his request; and (5) Florida defamation law by providing an inaccurate credit report.
In its summary judgment motion, Trans Union argued that it is entitled to summary judgment on all of Stroud's FCRA claims because, even assuming Trans Union violated the FCRA (which it denies), Stroud cannot demonstrate that he suffered any compensable
Stroud did not respond substantively to Trans Union's damages argument. His response instead contains only headings suggesting the arguments regarding damages which could or should be made, but underneath those headings are only blank spaces. [ECF No. 105, pp. 11-12]. In its reply, Trans Union urges the Court to accept its statement of material facts regarding damages as admitted and to grant summary judgment on all of Stroud's FCRA claims. [ECF No. 111].
It is well-established that actual damages are an element of an FCRA claim and, if a consumer cannot present any evidence substantiating actual damages, then summary judgment must be granted to a credit reporting agency. Nagle v. Experian Info. Solutions, Inc., 297 F.3d 1305, 1307 (11th Cir.2002) (noting that "failure to produce evidence of damage resulting from a FCRA violation mandates summary judgment."); see also Jackson v. Equifax Info. Servs., LLC, 167 Fed.Appx. 144, 146 (11th Cir.2006) (affirming district court's grant of summary judgment to a credit reporting agency on a § 1681i claim because "Jackson failed to produce any evidence indicating that he was damaged as a result of an allegedly inaccurate Equifax report."); see also Enwonwu v. Trans Union, 164 Fed.Appx. 914, 918 (11th Cir. 2006) (affirming district court's grant of summary judgment on a § 1681e claim because "Enwonwu has not created a genuine issue of material fact that the inaccurate information reported by Trans Union caused him harm."); Rambarran v. Bank of Am., N.A., 609 F.Supp.2d 1253, 1262-63 (S.D.Fla.2009).
Local Rule 56.1 provides that all material statements of fact made by the moving party will be deemed admitted unless the non-moving party denies them. Similarly, Federal Rule of Civil Procedure 56(e) permits a district court to treat an unaddressed statement of fact as undisputed. This Court's summary judgment instruction order cautioned Stroud of these consequences and provided him with additional time to file a revised or supplemental response to Trans Union's motion. [ECF No. 127]. But Stroud never took advantage of the additional time and did not submit any additional filing to supplement his response to Trans Union's summary judgment motion.
Therefore, the Court will deem as accepted Trans Union's statements that Stroud cannot prove he was damaged by inaccuracies (if any) in credit reports issued by Trans Union and will grant Trans Union summary judgment on all of Stroud's FCRA claims. See, e.g., BMU, Inc. v. Cumulus Media, Inc., 366 Fed. Appx. 47 (11th Cir.2010); Centennial Bank v. Noah Grp., LLC, 755 F.Supp.2d 1256, 1258 n. 2 (S.D.Fla.2010); Gossard v. JP Morgan Chase & Co., 612 F.Supp.2d 1242, 1245-46 (S.D.Fla.2009) aff'd, 389 Fed.Appx. 936 (11th Cir.2010).
The only remaining claim against Trans Union is Stroud's defamation claim. The Court also grants summary judgment on this claim because Stroud has not submitted evidence to avoid preemption. In other words, he has not presented any competent
For the reasons above, the Undersigned
The Court also notes that in his response to Experian's summary judgment motion, Stroud appears to make arguments regarding 15 U.S.C. § 1681c. However, and as noted above in footnote 4 to this order, while Stroud references this statutory provision in his claims against Trans Union, he does not in his allegations against Experian. The Court will not consider this claim because Stroud raises it for the first time in his response. Supra n. 11.
