Jeffers v. First Nat'l Bank of Omaha

679 F.Supp.3d 757

Wendi JEFFERS, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA, Defendant.

Case No. 21-CV-2169

United States District Court, C.D. Illinois, Urbana Division

Signed June 27, 2023

Angie K. Robertson, Mary E. Philipps, David J. Philipps, Philipps & Philipps Ltd., Palos Hills, IL, Savannah Rose Theil, Costello Sury & Rooney, Oakbrook Terrance, IL, for Plaintiff.

Cory J. Rooney, Law Firm of Cory J. Rooney, P.C., Omaha, NE, for Defendant.

ORDER

COLIN S. BRUCE, UNITED STATES DISTRICT JUDGE

Plaintiff, Wendi Jeffers, filed a Complaint (#1) on July 2, 2021, alleging that Defendant, First National Bank of Omaha, violated the Fair Credit Reporting Act ("FCRA") (15 U.S.C. § 1681, et seq.) and/or the Illinois common law right to privacy when it unlawfully requested and received a copy of Plaintiff's credit report from third parties TransUnion and Argus. The parties filed cross-Motions for Summary Judgment (#18, 19) on August 8, 2022.

On March 22, 2023, this court entered an Order (#32) on Defendant's Motion, granting it in part and denying it in part, and denying Plaintiff's Motion in full.

The court granted summary judgment in favor of Defendant on Plaintiff's negligence claims under the FCRA, finding that Plaintiff could not demonstrate a genuine issue of material fact as to whether she had incurred actual damages in the form of emotional distress due to Defendant's actions. Regarding Plaintiff's claim of a willful violation of the FCRA, the court found that both parties had presented sufficient facts for a reasonable jury to rule in favor of either. Thus, the court denied the parties' summary judgment motions on the issue of willfulness.

On April 21, 2023, Plaintiff filed a Motion for Reconsideration (#33), requesting the court reconsider its Order denying her Motion for Summary Judgment. Specifically, Plaintiff argues that the question of whether Defendant recklessly, as opposed to merely negligently, accessed Plaintiff's credit report is a matter of law that must be decided by the court. Plaintiff further argues that the court should find as a matter of law that Defendant acted recklessly. Next, Plaintiff argues that the court erred in its evaluation of Plaintiff's evidence of her emotional distress.

"Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985). "A motion for reconsideration would be appropriate where, for example, the court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Quaker Alloy Casting Co. v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). "A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the court." Quaker Alloy, 123 F.R.D. at 288. Such problems rarely arise and the motion to reconsider should be equally rare. Quaker Alloy, 123 F.R.D. at 288; Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). "This is because the court's orders are 'not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.' " Pruitt v. Personal Staffing Group, LLC, 2021 WL 197399, at *1 (N.D. Ill. Jan. 20, 2021), quoting Geraty v. Village of Antioch, 2015 WL 127917, at *3 (N.D. Ill. Jan. 8, 2015).

"A motion to reconsider 'is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.' " Pruitt, 2021 WL 197399, at *1, quoting Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269-70 (7th Cir. 1996).

Plaintiff, as the party seeking reconsideration "bears a heavy burden," and the decision whether to grant a motion to reconsider is a matter squarely within the district court's discretion. Pruitt, 2021 WL 197399, at *1, citing Patrick v. City of Chicago, 103 F.Supp.3d 907, 912 (N.D. Ill. 2015).

I. Whether Willful Violation of FCRA Must Be Decided by Court As a Matter of Law

Concerning Plaintiff's first argument, there is a division between courts in this country over whether a willfulness determination under the FCRA is a question of fact for the jury, or a question of law for the court.

Some courts have concluded that it is a question of fact for the jury. See Edwards v. Toys "R" Us, 527 F.Supp.2d 1197, 1210 (C.D. Cal. 2007) ("Willfulness under the FCRA is generally a question of fact for the jury."); Martinez v. American Express National Bank, 2022 WL 16571194, at *5 (C.D. Cal. Nov. 1, 2022); Lara v. Experian Information Solutions, Inc., 625 F.Supp.3d 1062, 1074-75 (S.D. Cal. 2022); Starkey v. Experian Information Solutions, Inc., 32 F.Supp.3d 1105, 1111 (C.D. Cal. 2014); Manuel v. Wells Fargo Bank, National Association, 123 F.Supp.3d 810, 829 (E.D. Va. 2015); Langston v. Rizza Chevrolet, Inc., 2008 WL 5083111, at *9 (N.D. Ill. Nov. 24, 2008).

Other courts, however, have held that whether a violation of the FCRA is willful or reckless is purely a question of law, and cannot be submitted to a jury. See Humphrey v. Navient Solutions, 2020 WL 91007, at *2 (W.D. Wis. Jan. 8, 2020); Salem v. Legal Liaison Service, 2019 WL 1057371, at *7 (N.D. Ill. Mar. 6, 2019).

In Van Straaten v. Shell Oil Products Co. LLC, 678 F.3d 486 (7th Cir. 2012), the Seventh Circuit was determining whether an alleged violation of the FCRA under § 1681n was "willful." The plaintiff argued "that 'the law is settled' that willfulness cannot be decided on summary judgment but must be submitted to a jury." Van Straaten, 678 F.3d at 490. The court noted that the plaintiff "did not mention Safeco Insurance, in which the Supreme Court of the United States treated willfulness as a question of law and directed that judgment be entered in a defendant's favor without a trial." Van Straaten, 678 F.3d at 490-91, citing Safeco Ins. Co. v. Burr, 551 U.S. 47, 71, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). The court determined that, as a matter of law, the defendant did not willfully violate the FCRA and could not be held liable under § 1681n. Van Straaten, 678 F.3d at 491. Judge Cudahy, in concurrence, wrote that "[f]ollowing Safeco, this may be determined as a matter of law and without trial." Van Straaten, 678 F.3d at 491 (Cudahy, J., concurring).

While it is clear, after Van Straaten, that a willfulness determination under the FCRA may be determined by the court as a matter of law, it appears to be an open question in the Seventh Circuit of whether the willfulness question must be determined by the court. Put another way, does Van Straaten mandate that district courts in the Seventh Circuit never submit claims of willful violations of the FCRA to a jury? Even after Van Straaten, courts that have granted summary judgment on claims of willful violations of the FCRA have done so via analyses that evaluated the evidence in the context of whether a reasonable jury could find the FCRA violation in question to be intentional or reckless. See Smith v. TransUnion, LLC, 2015 WL 1188189, at *6 (N.D. Ill. Mar. 12, 2015); Banno v. Experian Information Solutions, Inc., 2017 WL 3087726, at *6-8 (N.D. Ill. July 20, 2017); Matson v. Edfinancial Services LLC, 2015 WL 5010515, at *9 (E.D. Wis. Aug. 21, 2015); Redd v. Healthcare Revenue Recovery Group, 2022 WL 1988989, at *3 (N.D. Ill. June 6, 2022).

Even in Salem, decided after both Safeco and Van Straaten, the district court, in granting summary judgment for the defendant on the plaintiff's claim of a willful violation of the FCRA, analyzed the argument in the context of what a "reasonable jury could conclude" based on the facts. 2019 WL 1057371, at *7. The court found that the plaintiff had not "presented any additional facts that would support a finding of willfulness[,]" and that

While a reasonable jury could conclude that Equifax was obligated to perform additional investigation in this case, there is no genuine issue of material fact as to whether any violation of the FCRA that may have been committed was willful. That is, no reasonable jury could conclude that Equifax's belief that its exclusive reliance on the ACDV process was sufficient was "objectively unreasonable."

Salem, 2019 WL 1057371, at *7, citing Van Straaten, 678 F.3d at 489.

In Humphrey, the plaintiff claimed the defendant willfully violated § 1681s-2(b)(1)(A) of the FCRA by failing to reasonably investigate notices it received from credit reporting agencies that the plaintiff was disputing the accuracy of his credit reports. Before considering whether the defendant willfully violated the statute, the court noted "an issue that the parties didn't address before trial, which is whether willfulness should be decided by the court or the jury." Humphrey, 2020 WL 91007, at *2. The court stated that, "[a]lthough both sides assumed that willfulness is a question of fact for the jury, in Van Straaten v. Shell Oil Product Co. LLC, the court stated that Safeco 'treated willfulness as a question of law[,]' " and that "questions of law are reserved for the court." Humphrey, 2020 WL 91007, at *2, quoting Van Straaten, 678 F.3d at 491. The court's conclusion was "supported by the language of the FCRA itself, which states that a defendant who violates the statute willfully may be required to pay 'such amount of punitive damages as the court may allow.' " Humphrey, 2020 WL 91007, at *2, quoting 15 U.S.C. § 1681n(a)(1)(B)(2) (emphasis added by Humphrey).¹

Even so, the court pulled back from definitively holding that whether a defendant willfully violated the FCRA was always a question of law that must be decided by a court, stating "[b]ut regardless whether willfulness is a question of law or a question of fact, the court concludes that Navient is entitled to judgment...