Thomas v. Gulf Coast Credit Services, Inc.

214 F.Supp.2d 1228

Nina J. THOMAS, Plaintiff, v. GULF COAST CREDIT SERVICES, INC., et al., Defendants.

Civil Action No. 01-D-1313-S.

United States District Court, M.D. Alabama, Southern Division.

July 22, 2002.

COPYRIGHT MATERIAL OMITTED

Stuart F. Vargo, Stephen D. Heninger, Heninger Burge Vargo & Davis, Birmingham, AL, for Nina J. Thomas.

Stephen E. Whitehead, Laura Catherine Nettles, Jeffrey Neal Cotney, Lloyd, Gray & Whitehead, P.C., Birmingham, AL, George A. Tonsmeire, Mobile, AL, Davis Arthur Barlow, Davis A. Barlow, LLC, Birmingham, AL, for Gulf Coast Credit Services.

Robert A. Huffaker, R. Austin Huffaker, Jr., Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, AL, Bruce S. Luckman, Mark E. Kogan, Timothy P. Creech, Satzberg, Trichon, Kogan & Wertheimer, PC, Philadelphia, PA, for Trans Union Consumer Services, L.L.C.

Paul M. James, Rushton, Stakely, Johnston & Garrett, P.A., Lewis P. Perling, Kilpatrick & Stockton, LLP, Atlanta, GA, for Equifax Credit Information Services.

Jana K. Limer, Jones, Day, Reavis & Pogue, Dallas, TX, for Experian Information Solutions, Inc.

MEMORANDUM OPINION AND ORDER

De MENT, Senior District Judge.

Before the court are four Motions For Summary Judgment, each filed by a different Defendant on June 3, 2002.¹ (Doc. Nos.40, 42, 45, 46.) Plaintiff Nina J. Thomas filed a single response to the four Motions on July 1 (Doc. No. 55), to which Defendants filed separate Reply Briefs on July 9.² (Doc. Nos.56-59.) After careful consideration of the arguments of counsel, the relevant law and the record as a whole, the court finds that the Motions For Summary Judgment filed by Experian, Gulf Coast, and Trans Union are due to be granted, and the Motion filed by Equifax is due to be granted in part and denied in part.

I. JURISDICTION AND VENUE

The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 & 1367. The Parties do not contest personal jurisdiction or venue.

II. SUMMARY JUDGMENT STANDARD

When a party moves for summary judgment, the court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment is entered only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely "determine[s] whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted).

This determination involves applying substantive law to the pertinent facts that have been developed. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the nonmoving party, based on the applicable law in relation to the evidence presented. See id. at 248, 106 S.Ct. 2505; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If this task is satisfied, the burden then shifts to the non-moving party, which must designate specific facts remaining for trial and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Judgment will be granted when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. See id. at 587, 106 S.Ct. 1348.

III. FACTUAL BACKGROUND

Plaintiff is the victim of identity theft. (Thomas Dep. at 54.) It seems that a Texas woman assuming the name Nina Thomas-Gines has opened dozens of credit accounts by fraudulently using Plaintiff's name and social security number. (Id. at 95; Resp. Ex. B:006.) Plaintiff unsuccessfully sought relief from various state and federal law enforcement agencies in Texas and Alabama. (Thomas Dep. at 87-97.) The present discussion focuses on the extent to which the Fair Credit Reporting Act, codified at 15 U.S.C. § 1681-1681u, can provide a vehicle for redress for those unfortunate individuals finding themselves in a situation similar to Plaintiff. Specifically, Plaintiff has filed the instant lawsuit against Defendants, all of whom are consumer reporting agencies within the meaning of 15 U.S.C. § 1681a(f) and, therefore, are subject to the FCRA. Plaintiff alleges that Defendants have been remiss-indeed, that they have acted willfully-in permitting Ms. Gines to mar Plaintiff's credit history.³ (Compl. ¶¶ 7-24.) The court must determine whether the following facts raise a jury issue under the FCRA.

Plaintiff's problems began in January of 2000, while she was shopping at Victoria's Secret. (Thomas Dep. at 48.) The sales clerk used the offer of free merchandise to entice Plaintiff into applying for a Victoria Secret's credit card. (Id.) However, the clerk was unable to obtain the usual instant credit approval, so she advised Plaintiff that a letter of approval would arrive in the mail within two weeks time. (Id. at 83.) While a letter did arrive on January 23, it stated that Plaintiff was denied the credit card given the excessive number of credit applications and delinquencies appearing on her credit report. (Mot.Ex. 8.) The letter noted that the bank relied upon a credit report provided to it by Equifax, and it briefly advised Plaintiff of her rights under the FCRA. (Id.) Heeding that advice, Plaintiff telephoned Equifax, whereupon she was encouraged to likewise contact Trans Union and Experian. (Thomas Dep. at 49-50.) Plaintiff subsequently received the information pertaining to her credit history that each Defendant possessed.⁴ (Id. at 50-51.)

Although many months passed before Plaintiff would deduce that she was the victim of identity theft (id. at 94-95), it was plain that Defendants maintained files on Plaintiff that were not accurate. In addition to the extensive negative credit information, Plaintiff's files included incorrect personal data pertaining to birth dates, names, former addresses, employment histories, and even the name of Plaintiff's spouse. (Resp.Exs.A:001, B:001, C:001.) Thus began a tedious bout of communication between Plaintiff and Defendants aimed at expunging the disputed information from Plaintiff's credit record. (Resp. at 4-20.) Plaintiff has abundantly detailed the protracted exchanges in her Response Brief, and Defendants do not object to her characterization of events. However, while such facts are not disputed, their materiality is limited such that the court will preserve resources by reserving discussion until the time is appropriate. For present purposes, it is sufficient to note that during the time relevant to the present lawsuit Plaintiff contacted Experian on eleven occasions, Equifax on nine occasions, Trans Union on four occasions, and Gulf Coast on five occasions. (Id.) No Defendant completely removed the fraudulent information from Plaintiff's files within the year that she first contacted them. (Id.)

During this time, other than the Victoria's Secret incident, Plaintiff was denied a consumer credit application on just one instance.⁵ (Mot.Ex. 9.) Again, the stated reason for this denial was that her credit report showed delinquent obligations. (Id.) This lender, Regions Bank, relied upon credit reports provided by Equifax as well as by Trans Union. (Id.) However, Ted Gashaw, the officer responsible for denying Plaintiff's credit application (id.; Gashaw Aff. ¶ 4), has offered testimony noting that the score provided by Trans Union was high enough that, were it the only credit report relied upon, the bank would have extended credit to Plaintiff. (Gashaw Aff. ¶¶ 3-6.)

Over the course of the two-year ordeal, Plaintiff exerted a great deal of time and energy trying to repair the damage to her credit reputation. (Thomas Dep. at 266-67.) The efforts left her "totally exhausted," and she suffered a great deal of stress and anxiety. (Id.) Indeed, she claims that the stress caused her complexion to suffer, and that her sleep was disrupted by dreams about the ordeal. (Id. at 266-76.) Adding to the stress was the occasional telephone call from debt management companies and collection agencies. (Id. at 59-61, 67-68, 80, 266.) However, there is nothing in the record directly linking any of these calls to any credit reports issued by Defendants, beyond the fact that one collection agency, Sagres, received a credit report from Trans Union on one occasion. (Id.; Resp. Ex. D:042.)

IV. DISCUSSION

Although Plaintiff initially alleged that Defendants violated a number of FCRA provisions (Compl. ¶¶ 7-24), she has since conceded that she effectively seeks relief pursuant to two statutory provisions. (Resp. at 39.) First, Plaintiff alleges that Defendants violated § 1681e(b) of the FCRA. Section 1681e(b) imposes a duty on consumer reporting agencies to follow reasonable procedures to assure maximum possible accuracy when issuing credit reports. Here, Plaintiff alleges that Defendants did not have in place such reasonable procedures and subsequently issued inaccurate reports that injured Plaintiff. Second, Plaintiff contends that Defendants violated § 1681i of the FCRA, which imposes a duty on consumer reporting agencies to reinvestigate reported disputes. According to Plaintiff, even though she contacted Defendants on numerous occasions to dispute the inaccurate information, Defendants negligently or willfully failed to correct the adverse information.

Defendants have offered three general arguments in support of summary judgment: first, they contend that Plaintiff cannot prove a causal link between...