Buchanan v. Texar Federal Credit Union, Cause No. 1:01-CV-433 (N.D. Ind. 6/26/2002)

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ELISABETH CURRY BUCHANAN, Plaintiff v. TEXAR FEDERAL CREDIT UNION, Successor to Teachers Credit Union, TRANS UNION, Defendants.

Cause No. 1:01-CV-433.

United States District Court, N.D. Indiana, Fort Wayne Division.

June 26, 2002.

MEMORANDUM OF DECISION AND ORDER

ROGER B. COSBEY, Magistrate Judge.

I. INTRODUCTION

This matter is before the Court¹ on the May 10, 2002, motion for summary judgment filed by defendant Texar Federal Credit Union ("Texar"). The Plaintiff filed a response brief on June 10, 2002, and Texar filed a reply on June 20, 2002.

The record consists of the affidavit of Texar's Chief Operating Officer, Connie Lee ("Lee"), Texar's answers to interrogatories, and various documents. The Court has jurisdiction over the Plaintiff's claims under 28 U.S.C. § 1331 and 1367.

For the following reasons, Texar's motion for summary judgment will be GRANTED.

II. PROCEDURAL AND FACTUAL BACKGROUND

On October 31, 2001, the Plaintiff filed this action in state court, alleging that Texar violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681b(f),² common law negligence, and intrusion upon seclusion. The Defendants' removed the case to this Court on November 30, 2001.

The Plaintiffs allegations stem from a credit disclosure statement she received in March 2001, from Trans Union, LLC (the other defendant in this case), which indicated that on November 1, 1999, her credit report was obtained by:

Teachers CU P.O. Box 6085 Texarkana, Texas 75501

(Compl. Ex. A.) However, the Plaintiff never authorized "Teacher's CU" in Texarkana to obtain her credit report.

Texar is a credit union located in Texarkana, Texas, and until March 2001, was known as The Teachers Federal Credit Union, (Lee Aff., ¶ 3). However, Texar has never been affiliated with the "Teacher's Credit Union," in South Bend, Indiana.³

Moreover, the record reflects that Texar never requested, obtained, or used the Plaintiffs credit report. (Lee Aff., ¶¶ 8-9.) Indeed, Texar maintains it never heard of the Plaintiff prior to this lawsuit. (See Texar's Answers to Pl.'s Interrogs. at 2.)

III. SUMMARY JUDGMENT STANDARD

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff" Id. at 2512; In Re Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988); Valentin v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir. 1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir. 1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)).

Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify tose portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v. Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2511. However, "[i]t is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained" and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed. R. Civ. P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir. 1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.

IV. DISCUSSION

In order to succeed on her FCRA claim, the Plaintiff must make the threshold showing that Texar used or obtained her credit report.⁴ See 15 U.S.C. § 1681b(f).

Texar contends it is entitled to summary judgment on all three of the Plaintiff's claims because it never requested, obtained or used the Plaintiffs credit report. To support this contention, Texar offers Lee's affidavit, which shows that Texar has no records of ever requesting, obtaining or using the Plaintiffs credit report, and that it never requested, obtained or used the Plaintiffs credit report in fact. (Lee Aff., ¶¶ 8-9.) Texar's contention is bolstered by the fact that before obtaining the credit report, Texar would need the Plaintiffs Social Security Number, and they do not have it. (Lee Aff., ¶ 8.)

Nevertheless, the Plaintiff argues summary judgment is inappropriate because the credit disclosure statement itself indicates that "Teacher's CU" in Texarkana, Texas (similar to Texar's former name) obtained her credit report.

However, the Plaintiff has submitted no affidavits or evidence demonstrating that Texar actually requested, obtained, or used her credit report, and under Fed. R. Civ. P. 56(e), she cannot rely solely on her complaint to survive summary judgment. See Fed. R. Civ. P. 56(e) ("an adverse party may not rest upon allegations . . . [in her] pleadings"); Goka, 862 F.2d at 649; Posey, 702 F.2d at 105. Nonetheless, the complaint is exactly what the Plaintiff relies upon since she attached the credit disclosure statement as "Exhibit A," and incorporated it into that pleading. See Fed. R. Civ. P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is part thereof for all purposes."); Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998).

Moreover, in opposing a motion for summary judgment, a non-movant must present admissible evidence. Corder v. Lucent Technologies Inc., 162 F.3d 924, 927-928 (7th Cir. 1998); Rice v. Indiana State Police, 149 F. Supp.2d 573, 578-79 (S.D. Ind. 2001). One condition precedent for the admissibility of a document is authentication. Fed. R. Evid. 901 (a); Fed. R. Evid. 902; Otto v. Variable Annuity Life Ins. Co., 134 F.3d 841, 852-853 (7th Cir. 1998). In this instance, the Plaintiffs complaint is unverified, and the credit disclosure statement is otherwise not properly authenticated and thus is inadmissible.⁵ Consequently, because the credit disclosure statement is inadmissible, it may not be considered on summary judgment. See Fed. R. Civ. P. 56(e); 10A Charles Wright, Arthur Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2722, at 58-60 (2002) (only exhibits properly made a part of an...