SUSAN ILLSTON, District Judge.
Defendants' motion for summary judgment is scheduled for a hearing on May 30, 2014. Pursuant to Local Civil Rule 7-1(b), the Court determines that the matter is appropriate for resolution without oral argument, and VACATES the hearing. For the reasons set forth below, the Court GRANTS defendants' motion.
On June 28, 2013, plaintiff David Karrigan filed this lawsuit against defendants DataX and Selling Source, LLC. Plaintiff filed an amended complaint on October 11, 2013. The first amended complaint alleges that defendants are "consumer reporting agencies" under the Fair Credit Reporting Act ("FCRA), 15 U.S.C. § 1681 et seq., and that defendants furnished consumer credit reports about plaintiff to third parties under impermissible circumstances in violation of the FCRA. Plaintiff alleges that as a result of defendants' violation of the FCRA, he was the victim of a "massive financial scam. . . perpetrated against persons in the United States who had applied for and/or obtained payday loans." First Amended Complaint ("FAC") ¶ 26.
The facts regarding the scam are as follows. In June 2011, plaintiff went to a public library in Los Angeles, California and used a library computer to apply for three "payday" loans
On January 13, 2012, plaintiff received a phone call on his mobile phone from a man who spoke with a thick Indian accent. Karrigan Decl. ¶ 7. The man told plaintiff that plaintiff was the "prime suspect" in a criminal case for failure to repay a payday loan, that plaintiff owed a debt of $500, and that plaintiff would go to jail if he failed to repay the loan right away. Id. ¶¶ 7-8. Plaintiff states that during the conversation he had with the caller on January 13, 2012, the caller recited the following personal information about plaintiff: his name, phone number, address, date of birth, e-mail address, employment history, checking account number, and the fact that plaintiff had recently defaulted on a payday loan. Id. ¶ 10. According to plaintiff, he had a number of conversations over the next week or so with people who he believed to be debt collectors. Id. ¶ 12. On January 20, 2012, the "debt collector" with whom plaintiff spoke told plaintiff that the collector's supervisor was in chambers with a judge, and the judge was about to sign a warrant for plaintiff's arrest. Id. ¶ 13. Plaintiff states that he believed his arrest was imminent, and so he spoke to his father about borrowing $500 to pay the "debt collector." Id. ¶ 14. Plaintiff's father agreed to loan him $500, and plaintiff agreed to pay him back as soon as he had the funds to do so. Id. ¶ 15. On January 20, 2012, as instructed by the "debt collector" with whom plaintiff spoke, plaintiff purchased a $500 prepaid debit card from Walmart, and he gave the number on the card to the "debt collector." Id. ¶ 16.
Plaintiff alleges "[i]n truth, however, Plaintiff owed no such debt, and was simply one of many victims of a scam that was perpetrated as the result of the scam operators' acquisition of consumer reports and personal information from Defendants." FAC ¶ 40. Plaintiff alleges that "[t]he scam operators succeeded in convincing thousands of payday loan applicants to pay them over $5 million dollars before being enjoined by a court order obtained by the Federal Trade Commission." Id. ¶ 36. Plaintiff has submitted evidence regarding an investigation by the Federal Trade Commission into a debt collection scam involving Broadway Global Master, Inc., In-Arabia Solutions, Inc., and Kirit Patel. Plaintiff has filed an excerpt of the declaration of Raminder Sabhi, which was filed in Federal Trade Commission v. Broadway Global Master, Inc., Case No. 2:12-cv-008855 (E.D. Cal.). Plaintiff's Request for Judicial Notice, Ex. I.
Plaintiff alleges that defendants sold a consumer report about plaintiff to the perpetrators of the scam. On July 14, 2011, Tiger Financial, d/b/a Speedy Cash, reported to DataX that plaintiff had defaulted on the loan. Tillman Decl. ¶ 14(d). The parties agree that DataX is a "consumer reporting agency" within the meaning of the FCRA. DataX is a wholly owned subsidiary of defendant Selling Source, LLC. According to Jessica Tillman, Vice President of Product and Compliance at DataX, "[DataX] prepares `consumer reports' reflecting consumers' loan payment histories that it provides to customers with a permissible purpose to obtain a credit report, including lenders that make loans to consumers for such lenders' use in determining whether to extend credit to the consumer." Id. ¶ 4.
Between July 14, 2011, and January 19, 2012, DataX sold a consumer report about plaintiff that included information about the Speedy Cash default to two entities: AALM and American Web Loan. Id. ¶ 10. Defendants have submitted uncontroverted evidence showing that AALM and American Web Loan were both "credentialed customers" with whom DataX had contracts. Id. ¶¶ 5-8, 11, 12. According to the Tillman declaration:
Id. ¶¶ 5-8.
With regard to the report DataX sold to AALM, Tillman states,
Id. ¶ 11.
Id. ¶ 12. Plaintiff's opposition to defendants' motion for summary judgment does not contend that AALM or American Web Loan were connected to the debt collection scam, and indeed plaintiff's opposition effectively abandons any claim that DataX sold a consumer report about plaintiff to the operators of the debt collection scam.
Instead, plaintiff now contends that Selling Source, LLC — possibly through its wholly-owned subsidiary PartnerWeekly — sold "sales leads" (which plaintiff equates with "consumer reports") to the scam operators. In support of this assertion, plaintiff has submitted a screen shot of Selling Source's website, a screen shot of Selling Source's profile page from the website LinkedIn, and several pleadings from Selling Source, LLC v. Red River Ventures, LLC, Case No. 2:09-cv-01491 (D. Nev.). The screen shot of Selling Source's website states,
Emanuel Decl., Ex. A.
The LinkedIn profile page states,
Id., Ex. B.
Finally, plaintiff relies on the complaint and a declaration filed in Selling Source, LLC v. Red River Ventures, LLC, Case No. 2:09-cv-01491 (D. Nev.). Plaintiff quotes the following paragraphs from the complaint in that case:
Plaintiff's Request for Judicial Notice, Ex. F.
Plaintiff also quotes from a 2009 declaration filed in Selling Source, LLC v. Red River Ventures, LLC, by Alton Irby in support of a motion for a temporary restraining order. Id., Ex. G. Irby is a managing member of London Bay Capital, LLC, a private equity firm which owns a controlling interest in Selling Source. Plaintiff quotes the following paragraphs from Irby's 2009 declaration:
Id. Ex. G.
Defendants dispute that Selling Source sells consumer reports or sales leads. Defendants have submitted a new declaration from Mr. Irby, who states:
Irby Decl. ¶¶ 3-4. Attached as Exhibit A to the new Irby declaration is a complete copy of the 2009 Irby declaration, including the original exhibits to that declaration. One of those original exhibits is the Master Agreement between Selling Source and its customer that Irby referenced in the 2009 declaration. Id., Ex. A at Ex. A. That Master Agreement defines the "Company" as The Selling Source, Inc. "together with its subsidiaries and affiliates." Id.
Defendants have also submitted the declaration of Glenn McKay, the President and CEO of Selling Source, as well as the declaration of Tim Madsen, the Executive Vice President of Sales for PartnerWeekly, LLC. McKay states that "Selling Source is the parent company of several companies engaged in online advertising, lead generation, and data businesses. Collectively, Selling Source's subsidiaries provide customer acquisition and data services. However, Selling Source does not itself sell any information about consumers to third parties." McKay Decl. ¶ 3.
Madsen states that PartnerWeekly is a wholly-owned subsidiary of Selling Source, LLC, and that "PartnerWeekly is in the business of generating and selling leads for short term, unsecured small dollar loans." Madsen Decl. ¶¶ 3-4. Madsen states,
Id. ¶ 4. Madsen also states that "[t]he leads sold by PartnerWeekly to its lender customers do not include any information about the consumer's payment history on prior loans; PartnerWeekly has no such information available to it." Id. ¶ 6. According to Madsen,
Id. ¶¶ 7-9.
Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party, however, has no burden to disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only demonstrate to the Court that there is an absence of evidence to support the non-moving party's case. Id. at 325.
Once the moving party has met its burden, the burden shifts to the non-moving party to "set out `specific facts showing a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). The evidence the parties present must be admissible. Fed. R. Civ. P. 56(c)(2).
Defendants move for summary judgment on plaintiff's FCRA claim. Defendants contend that there is no evidence showing that either defendant sold a consumer report about plaintiff to anyone connected to the debt collection scam. Defendants argue that the undisputed evidence shows that DataX sold two consumer reports about plaintiff to entities in circumstances permitted by the FCRA, and that Selling Source, LLC is not a "consumer reporting agency" under the FCRA and did not sell any consumer reports about plaintiff to anyone.
The FCRA was adopted "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information...." 15 U.S.C. § 1681(b). The FCRA addresses the preparation and use of "consumer reports," a term defined in the Act. The Act defines "consumer report" as,
15 U.S.C. § 1681a(d)(1).
According to the FCRA, "[t]he term `consumer reporting agency' means any person which, for monetary fees, dues or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports." 15 U.S.C. § 1681a(f). A consumer reporting agency may only furnish a consumer report for enumerated "permissible" purposes. 15 U.S.C. § 1681b. A consumer reporting agency is permitted to furnish a "consumer report" to "a person which it has reason to believe . . . intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to . . . the consumer." 15 U.S.C. § 1681b(a)(3)(A).
Plaintiff's opposition does not address defendants' arguments or evidence regarding DataX. Instead, plaintiff devotes much of the opposition to arguing that DataX and Selling Source, LLC are a "common enterprise" and should be treated as the same company in this case. Plaintiff then argues that Selling Source, LLC is a consumer reporting agency, and that there is "ample evidence to support an inference that the scam operators who called Plaintiff on January 13, 2012, obtained his personal information from Selling Source." Opp'n at 17:15-17. Plaintiff contends that the evidence in support of this claim consists of the following: (1) the temporal proximity between when the "defendants" received plaintiff's personal information on July 14, 2011 and the January 13, 2012 phone call; (2) the scam operators had the same detailed information about plaintiff that was in defendants' possession (name, phone number, address, date of birth, e-mail address, employment history, checking account number, and fact that plaintiff had recently defaulted on a payday loan); (3) Selling Source is the "most likely source of the phone numbers of over 600,000 consumers" who were targeted in the debt collection scam investigated by the FTC because Selling Source "has a significant database of potential consumers of short-term loan services," and the Court should infer that plaintiff was a victim of the same debt collection scam investigated by the FTC; and (4) "the false statements made by Selling Source with regard to the nature of its business activities shows consciousness of guilt and creates an inference of culpability." Id. at 18-19. Plaintiff asserts that Selling Source's discovery responses in this case — in which Selling Source denied that it was a "consumer reporting agency" and stated that it did not sell a consumer report about plaintiff to anyone — are demonstrably false because Selling Source stated that it was in the lead generation business in the complaint and Irby declaration filed in Selling Source, LLC v. Red River Ventures, LLC, Case No. 2:09-cv-01491 (D. Nev.).
The Court concludes that defendants are entitled to summary judgment because plaintiff has not raised a triable issue of fact on the FCRA claim. Plaintiff has not submitted any evidence showing that either defendant furnished a consumer report about plaintiff to anyone connected to the debt collection scam.
With regard to Selling Source, LLC, the undisputed record shows that Selling Source is not a consumer reporting agency and that Selling Source did not sell a consumer report or "sales lead" about plaintiff to anyone. The pleadings in Selling Source, LLC v. Red River Ventures, LLC, Case No. 2:09-cv-01491 (D. Nev.), do not establish that Selling Source, LLC is a consumer reporting agency. Instead, the pleadings in that case used the term "Selling Source" to refer to Selling Source (or its predecessor The Selling Source, Inc.) together with all of its subsidiaries. Irby Decl. ¶¶ 3-4 & Ex. A at Ex. A. The evidence submitted by defendants shows that DataX sells consumer reports, and that non-party PartnerWeekly, which is another Selling Source subsidiary, sells "sales leads." The Madsen declaration, which is undisputed, shows that the debt scam operators did not purchase plaintiff's information from PartnerWeekly because, inter alia, "sales leads" do not contain information about a consumer's prior loan defaults. Madsen Decl. ¶¶ 4-6, 9.
In response to this undisputed evidence, plaintiff argues that the Court should make a number of "reasonable inferences" in order to connect defendants to the debt scam operators. However, to defeat summary judgment, plaintiff must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586; see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 n.10 (9th Cir. 2002) ("At summary judgment, this court need not draw all possible inferences in [plaintiff's] favor, but only all reasonable ones.") On this record, no reasonable jury could infer that either defendant provided a consumer report about plaintiff to the scam operators because there is no evidence in support of such a claim.
For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment. Docket No. 29.
