Jones v. Experian Info. Solutions, Inc.

982 F.Supp.2d 268

Keisha JONES, Plaintiff,

v.EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.

No. 11 Civ. 9136(CM)(KNF).

United States District Court, S.D. New York.

Nov. 12, 2013.

Kevin Christopher Mallon, Fishman & Neil, LLP, New York, NY, for Plaintiff.

Joseph A. Strazzeri, Richard John Galati, Jr., Briana Rose Hulet, Jones Day, New York, NY, for Defendant.

DECISION AND ORDER

McMAHON, District Judge.

Plaintiff, Keisha Jones (“Plaintiff”) brings this action against Experian Information Solutions, Inc. (“Defendant” or “Experian”) alleging Defendant violated the Fair Credit Reporting Act, as codified 15 U.S.C. § 1681 et seq. (“FCRA”). Plaintiff specifically claims that Defendant, a credit reporting agency (“CRA”), willfully failed to conduct a reasonable reinvestigation in violation of 15 U.S.C. §§ 1681i, 1681n. Defendant has moved for summary judgment. For the reasons set forth below, Defendant's motion is denied.

Background

On January 20, 2011 Plaintiff called Defendant to dispute two credit items that were appearing on her Experian credit report. (Scott Depo. 31:8–18; Def. Exh. G). Defendant had been reporting that Plaintiff owed Central Financial Control (“CFC”) balances of $540 and $260 for debts initially belonging to Hahnemann University Hospital. ( Id ). Plaintiff contended that she never incurred these debts. ( Id ). She insisted that her identity was stolen and the accounts were opened by the identity thieves. ( Id ).

Defendant requires consumers to provide their name, social security number, date of birth and address to Experian before it would allow a consumer to dispute such an account. (Scott Depo. 124:7–12). Plaintiff did so. ( Id ).

Defendant then sent CFC an electronic consumer dispute verification (“CDV”) form requesting it verify the accounts. (Scott Depo. 37:5–12, Def. Exh. G). CFC responded by sending back the forms and verifying that the accounts had been opened by someone using Plaintiff's correct name and social security number, but with birth date of August 18, 1974. (Def. Exh. G). Plaintiff's actual date of birth is June 24, 1970. (Jones Depo. 24:9). Both the accounts listed an address of 523 W. Fisher Ave, Philadelphia, PA; Plaintiff resided in New York and used post office boxes in New York as her address. (Jones Depo., passim; Def. Exh. G). However, one of the forms returned by CFC stated that current address on file was for the account was the “Same” as the mailing address Plaintiff provided to Defendant at the time she made the dispute: P.O. Box 634, Bronx, NY. (Def. Exh. G). The other form returned by CFC indicated the address on file was “Different” than the one Plaintiff provided. (Def. Exh. G).

On March 3, 2011 Defendant sent the results of its investigation to Plaintiff's mailing address in the Bronx. Defendant advised Plaintiff that it would not remove the disputed charges from the credit report. (Scott Depo. 54:25–55:3; Def. Exh. J, EXP 98–119).

On November 18, 2011 Plaintiff called Defendant to dispute yet another item that was appearing on her credit report. (Scott Depo. 104:11–105:4). Comcast had reported $2,956 was past due and had been written off. (Def. Exh. D, EXP–1184). Plaintiff complained that someone had used her identifying information to open a Comcast account in her name without her consent. (Def. Exh. N; Def. Exh. F, EXP 1169).

Defendant mailed a CDV form to Comcast, informing them that Plaintiff disputed the account as fraudulent. (Def. Exh. N). Comcast returned the form, informing Experian that their account had a differently spelled first name for Plaintiff—Keshia instead of Keisha—and had address listed as 332 West Berkeley Street, Philadelphia, PA, not Plaintiff's address. (Def. Exh. N; Scott Depo. 106:3–14). Comcast indicated the date of birth and social security number were the same. (Def. Exh. N; Scott Depo. 106:3–14). Defendant again decided to keep the information on Plaintiff's credit report, sending her the notification of the results to her P.O. Box address in the Bronx on December 9, 2011. (Def. Exh. O).

On December 9, 2011 Plaintiff initiated this action, claiming that Defendant failed to conduct a “reasonable reinvestigation” as required by the FCRA in response to her disputes. Plaintiff is not seeking compensation for actual damages, for she suffered none. Since the time Plaintiff disputed these items, Defendant has not issued a consumer credit report to third parties, nor did Plaintiff apply for credit or authorize access to her credit file while the disputed items appeared there. (Rule 56.1 Statement ¶¶ 24–25). Instead Plaintiff seeks statutory and punitive damages under the FCRA.

Defendant has moved for summary judgment. Defendant argues that its reinvestigation complied with the FCRA as a matter of law, claiming it was not required to look further into the disputed accounts once they were verified by CFC and Comcast and because Plaintiff did not provide sufficient documentation. Defendant further argues that in order for Plaintiff to recover under the FCRA, Plaintiff must show that the disputed credit items were furnished to a third party. Finally, Defendant argues Plaintiff lacks Art. III standing, or fails to state a claim under the FCRA, because she is not seeking actual damages in this action.

Discussion

I. Standard for Summary Judgment

“A party may move for summary judgment [and] the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. The initial burden is on the moving party to show that no genuine issue of material fact exists. Kirby v. Yonkers Sch. Dist., 767 F.Supp.2d 452, 459 (S.D.N.Y.2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once such a showing has been made, the nonmoving party must present facts showing a genuine issue for trial. See Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). “Genuine issues of material fact cannot be created by mere conclusory allegations; summary judgment is appropriate only when, ‘after drawing all reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party.’ ” Marvel Entertainment, Inc. v. Kellytoy Inc., 769 F.Supp.2d 520, 523 (S.D.N.Y.2011) (citing Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir.1993); Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

“As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “In reviewing the record, the district court must assess the evidence in the light most favorable to the non-moving party, resolve all ambiguities, and draw all reasonable inferences in its favor.” Clarke v. Aetna Life Ins. Co., 471 F.Supp.2d 463, 468–69 (S.D.N.Y.2007) (citing Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994)).

II. Plaintiff Has Article III Standing

As a threshold matter, Plaintiff has Article III standing to bring her claim. Defendant contends that since Plaintiff only seeks statutory and punitive damages for Defendant's alleged violation, and does not seek actual, or compensatory, damages, that she fails the “injury in fact” prong of Article III standing. Defendant's contention is without merit, and this Court has jurisdiction over Plaintiff's suit.

The Supreme Court has held that a plaintiff has standing when (1) the plaintiff has suffered an injury in fact; (2) there is a causal connection between the injury and the conduct complained of; and (3) it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An “injury in fact” consists of “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (internal citations and quotation marks omitted). It is well established that the “actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing,” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted), and that Congress may “define new legal rights, which in turn will confer standing to vindicate an injury caused to the claimant.” Vt. Agency of Nat. Res. v. United States, 529 U.S. 765, 773, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000).

The Plaintiff is entitled to an accurate credit report. The FCRA provides that a CRA must conduct a “reasonable reinvestigation” if a consumer disputes an item on her credit report. 15 U.S.C. § 1681i(a)(1)(A). The FCRA further provides a consumer with a private right of action to enforce such right in the event a party “willfully fails to comply with any requirement” of the FCRA “with respect to any consumer.” Id.§ 1681n(a). These sections confer upon Plaintiff a statutory entitlement to a reasonable reinvestigation once she disputes an item on her credit report. Defendant's alleged failure to fulfill its statutory obligations with respect to Plaintiff caused Plaintiff an injury in fact—she did not get the benefit of the reasonable reinvestigation into the accuracy of her credit report to which she was statutorily entitled. This is an actual, concrete injury which is particularized to Plaintiff. Plaintiff's injury may be redressed through statutory and punitive damages. She may have suffered no actual damages but her rights were violated and Congress has provided statutory damages for any such violation.

I. A Reasonable Jury Could Find Defendant Failed to Conduct a Reasonable Reinvestigation

Plaintiff cla...