Lindsey v. Experian Information Solutions Inc

Filing 39

MEMORANDUM OPINION. 36 MOTION to Address Additional Additional Authority is DENIED. Signed by Judge Abdul K Kallon on 1/31/2017. (YMB)

FILED
2017 Jan-31 AM 09:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEPHEN LINDSEY,
Plaintiff,

v.
EXPERIAN INFORMATION
SOLUTIONS, INC.,
Defendant.

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Civil Action Number
2:15-cv-02353-AKK

MEMORANDUM OPINION
Stephen Lindsey filed this action against Experian Information Solutions,
Inc. (“Experian”), for an alleged “intentional refusal to conduct a reinvestigation”
in violation of section 1681i(a)(1)(A) of the Fair Credit Reporting Act, 15 U.S.C. §
1681 et seq. (“FCRA”). See doc. 1. 1 The court has for consideration Experian’s
motion for summary judgment, doc. 25, and Lindsey’s cross-motion for partial
summary judgment on his willful violation claim, docs. 28; 30. The motions are
fully briefed, docs. 25; 28; 30; 33; 34; 35, and ripe for review. 2 For the reasons
stated below, Experian’s motion is due to be granted, and Lindsey’s motion denied.

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The complaint pleads both negligent and willful violations of the FCRA. See doc. 1 at
7. However, because Lindsey advanced no arguments regarding the alleged negligent violation
claim in response to Experian’s motion for summary judgment, the court deems that claim
abandoned. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 971 n. 36 (11th Cir.
2008) (“Martin did not defend the claim on summary judgment; he thus abandoned it.”).
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Experian’s motion to address additional authority, doc. 36, is DENIED.

I.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), summary judgment is proper
“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.” “Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(alteration in original). The moving party bears the initial burden of proving the
absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to
the non-moving party, who is required to go “beyond the pleadings” to establish
that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation
marks omitted). A dispute about a material fact is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
dispute will be resolved in the non-moving party’s favor when sufficient competent
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evidence supports that party’s version of the disputed facts. But see Pace v.
Capobianco, 238 F.3d 1275, 1276–78 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party’s favor when that party’s version of
events is supported by insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that a jury could
reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252).
II.

FACTUAL BACKGROUND

In July 2013, Lindsey requested and received his personal credit report from
Experian. See SEALED doc. 26-1 at APP., p. 18. The report reflected a $3,521
debt to Sam’s Club, which Portfolio Recovery Associates, L.L.C. (“PRA”) had
purchased. See id. at APP., p. 23; doc. 1 at 3. PRA ultimately sued Lindsey in the
Circuit Court of Jefferson County, Alabama. After a trial on November 10, 2014,
the court entered judgment in favor of Lindsey. See SEALED doc. 26-1 at APP.,
p. 12. That same day, Lindsey sent Experian a letter stating: “I am writing to
dispute an entry on my credit report. I believe that Portfolio Recovery Associates,
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LLC is reporting an account number with a sum claimed of $3,521.88 on my credit
report.” See SEALED doc. 26-1 at APP., p. 5. Lindsey requested “that [Experian]
investigate Portfolio’s entry on [his] credit report and respond to [Lindsey] within
thirty days.” Id. The letter included Lindsey’s first and last name, home address,
the Circuit Court case number, the judge’s name and telephone number, the
address and phone number for the Circuit Court Clerk, the contact information for
Lindsey’s attorney, Lindsey’s date of birth, and the last four digits of Lindsey’s
social security number. See id.
On November 19, 2014, the day after Experian received Lindsey’s letter, see
SEALED doc. 26 at 2, “[i]ndependently of the . . . correspondence [from Lindsey],
. . . per the data furnisher’s batch transmission, Experian deleted [the] trade line
regarding [Lindsey] reported by Portfolio Recovery [Associates], LLC.” Id. The
next day, in response to Lindsey’s letter, Experian wrote Lindsey stating that it had
“received a suspicious request regarding [Lindsey’s] personal credit information
that [Experian has] determined was not sent by [Lindsey].” SEALED doc. 26-1 at
APP., p. 8. The letter further stated that “[Experian has] not taken any action on
this request” and “[a]ny future requests made in this manner will not be processed
and will not receive a response.” Id. Finally, the letter stated:
If you believe that information in your personal credit report is
inaccurate or incomplete, please call us at the phone number that
displays on your Experian personal credit report, or visit our secure
web site at www.experian.com/dispute. You also may write to us at
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the address on your Experian personal credit report. Be sure to
include all of the following: your full name including middle initial
(and generation such as JR, SR, II, III); Social Security number;
current mailing address; date of birth; and previous addresses for the
past two years.
Include the account name and number for any item on your
credit report that you wish to dispute, and state the specific reason
why you feel the information is inaccurate. The dispute process may
take up to 30 days . . . . Once we complete the processing of your
dispute, we will promptly notify you of the outcome.
Id. In other words, Experian did not initiate any reinvestigation in response to
Lindsey’s correspondence. SEALED doc. 26 at 3.
On December 1, 2014, Lindsey visited Experian’s website to request his free
annual credit disclosure. See SEALED doc. 26-1 at APP., p. 40. The report
Lindsey received did not include the PRA account, which Experian had deleted a
few weeks earlier. See generally SEALED doc. 26-1 at APP., pp. 40–61. Other
than requesting this free report, there is no evidence that Lindsey utilized the
procedures Experian outlined in Experian’s letter to follow-up on his initial
correspondence to Experian.
III.

ANALYSIS

The FCRA requires a consumer reporting agency (“CRA”) to conduct a free
reinvestigation of a consumer’s file if “the completeness or accuracy of any item of
information contained in a consumer’s file . . . is disputed by the consumer.” 15
U.S.C. § 1681i(a)(1)(A). After a reinvestigation, the CRA “shall provide written
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notice to a consumer of the results of a reinvestigation.” § 1681i(a)(6)(A). “As
part of, or in addition to, the notice . . ., a [CRA] shall provide . . . a consumer
report that is based upon the consumer’s file as that file is revised as a result of the
reinvestigation. . . .” § 1681i(a)(6)(B). The FCRA provides a private right of
action against CRAs for willful violations of the duty to conduct a reasonable
reinvestigation under § 1681i(a). See Collins v. Experian Info. Solutions, Inc., 775
F.3d 1330, 1333 (11th Cir. 2015) (citing Safeco Insurance Company of America v.
Burr, 551 U.S. 47, 53 (2007)).
Lindsey asserts that Experian willfully violated § 1681i(a) by describing his
letter as “suspicious,” “refusing to investigate,” and failing to provide him with
“notice of the reinvestigation results.” Doc. 28 at 3, 6. Experian challenges
Lindsey’s contentions primarily on two grounds: (1) that Lindsey suffered no
injury and, as such, has no standing to raise this claim; and (2) that it did not
willfully violate the FCRA as a matter of law. Doc. 25 at 6. The court will
examine these arguments in Sections A and B, below, beginning with the standing
issue since it impacts the court’s power to hear this dispute.
A. Standing
“Standing ‘is the threshold question in every federal case, determining the
power of the court to entertain the suit.’” Camp Legal Def. Fund v. City of Atlanta,
451 F.3d 1257, 1269 (11th Cir. 2006) (quoting Warth v. Seldin, 422 U.S. 490, 499
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(1975)). Indeed, “the core component of standing is an essential and unchanging
part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). “In the absence of standing, a court is not free
to opine in an advisory capacity about the merits of a plaintiff’s claims,” Bochese
v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005), and “the court is
powerless to continue,” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409
(11th Cir. 1999). Standing requires that a plaintiff show that
(1) [he] has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.
Pittman v. Cole, 267 F.3d 1269, 1282 (11th Cir. 2001) (quoting White’s Place, Inc.
v. Glover, 222 F.3d 1327, 1329 (11th Cir. 2000)). For the reasons stated below,
the court finds that Lindsey cannot satisfy the standing requirement.
1. Lindsey cannot prove he suffered an “injury in fact”
To support its contention that Lindsey has no standing to pursue this claim,
Experian notes that it deleted the disputed account the day after receiving
Lindsey’s dispute letter and that there is no evidence that it issued a consumer
report or disclosure containing the disputed information. Doc. 25 at 6. Lindsey
disagrees and alleges that he “suffered actual damages” by “having to engage

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counsel to clarify that the PRA trade line was deleted.”3 Doc. 28 at 13. This
contention is unavailing because the attorney fees Lindsey seeks, which are only
recoverable in the event of a “successful action,” are not considered “actual
damages” under the FCRA. See § 1681n; 4 Crabill v. Trans Union, L.L.C., 259
F.3d 662, 665 (7th Cir. 2001) (stating, in the context of a FCRA case, that “if no
injury is [proved] . . ., and as a result there is no case or controversy between the
parties within the meaning of the Article III . . ., the plaintiff cannot base standing
on a claim for attorneys’ fees.”) (citations omitted).
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Lindsey has explicitly disavowed any claim for mental anguish or emotional distress.
See doc. 28 at 6 n.3 (“Plaintiff has elected to jettison his claim for emotional distress (as is his
right to do) — making this purely a claim for statutory damages, punitive damages, and fees and
costs arising from Experian’s failure to investigate.”). Thus, his actual damages claim rests
solely on the attorney fees he incurred.
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§1681n distinguishes between actual damages and attorney’s fees:

(a) In general. Any person who willfully fails to comply with any requirement imposed
under this title . . . with respect to any consumer is liable to that consumer in an amount equal to
the sum of —
(1) (A) any actual damages sustained by the consumer as a result of
the failure or damages of less than $100 and not more than $1,000;
or
(B) in the case of liability of a natural person for obtaining a
consumer report under false pretenses or knowingly without a
permissible purpose, actual damages sustained by the consumer as
a result of the failure or $1,000, whichever is greater;
(2) Such amount of punitive damages as the court may allow; and
(3) In the case of any successful action to enforce any liability under
this section, the costs of the action together with reasonable
attorney’s fees as determined by the court.
15 U.S.C. § 1681n (emphasis added).
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Lindsey correctly notes, however, that he does not need actual damages to
establish a willful violation of the FCRA. See doc. 28 at 6. Still, Lindsey must
prove an “injury in fact” sufficient to confer Article III standing. Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1549 (2016); In re Cmty. Health Sys., No. 15-cv-222KOB, 2016 U.S. Dist. LEXIS 123030, at *56 (N.D. Ala. Sept. 12, 2016). In
Spokeo, the Supreme Court held that Article III standing requires a concrete injury
even in the context of an undisputed procedural violation. Id. at 1549. As the
Court explained, “[i]njury in fact is a constitutional requirement, and . . . Congress
cannot erase Article III’s standing requirements by statutorily granting the right to
sue to a plaintiff who would not otherwise have standing.” Id. at 1547–48 (quoting
Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)) (some quotation marks omitted); see
also Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) (“In no
event . . . may Congress abrogate the Art. III minima.”).
Lindsey maintains that he can satisfy the “injury in fact” requirement
because he purportedly suffered a concrete injury as a result of Experian’s decision
to decline to open a reinvestigation in response to Lindsey’s letter. See docs. 25 at
18–19; 28 at 12–13. Where, as here, the purported injury is intangible, “[i]n
determining whether an intangible harm constitutes injury in fact, both history and
the judgment of Congress play important roles.” Spokeo, 136 S. Ct. at 1549.
However, “Congress’ role in identifying and elevating intangible harms does not
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mean that a plaintiff automatically satisfies the injury-in-fact requirement
whenever a statute grants a person a statutory right and purports to authorize that
person to sue to vindicate that right.”

Id. (emphasis added). In that respect,

Lindsey misses the mark when he alleges that “even in the absence of a palpable
economic injury, if the statute in question is designed to protect the plaintiff and
confers on the plaintiff the right to sue for redress of a violation of the plaintiff’s
protected interest, there is standing,” doc. 28 at 11 (emphasis added). To the
contrary, a plaintiff cannot merely “allege a bare procedural violation, divorced
from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”
Spokeo, 136 S. Ct. at 1549 (citing Summers v. Earth Island Inst., 555 U.S. 488, 496
(2009)). This is precisely the case here given that Lindsey contends only that “by
not notifying [him] of a reinvestigation result,” Experian deprived him of his right
under § 1681i(a)(6)(B)(v). Doc. 30 at 17–18. To have standing to assert a claim
for a violation of § 1681i(a)(6)(B)(v), Lindsey must present evidence, at a
minimum, that a third party requested or received one of his credit reports that
incorrectly listed the PRA account. Absent such a showing, Lindsey has failed to
satisfy the “injury in fact” requirement. See, e.g., Pittman, 267 F.3d at 1282 (An
injury in fact must be “actual or imminent, not conjectural or hypothetical.”).
Therefore, Lindsey lacks standing to bring this claim.

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B. Willful Violation of the FCRA
Alternatively, Lindsey’s claim fails because he cannot establish a willful
violation under §§ 1681i(a) and 1681n. The Supreme Court in Safeco Insurance
Company of America v. Burr, 551 U.S. 47 (2007), expanded the contours of
willfulness, holding that even “reckless disregard of a requirement of [the] FCRA
would qualify as a willful violation within the meaning of § 1681n(a).” Id. at 71.
Still, to find a willful violation, “[a]n interpretation that favors the [CRA] must be
‘objectively unreasonable’ under either the text of the Act or ‘guidance from the
courts of appeals or the Federal Trade Commission that might have warned [the
CRA] away from the view it took.’” Levine v. World Fin. Network Nat’l Bank,
554 F.3d 1314, 1318 (11th Cir. 2009) (quoting Safeco, 551 U.S. at 70). See also
Fuges v. Sw. Fin. Servs., Ltd., 707 F.3d 241, 249 (3d Cir. 2012) (“[E]ven when a
court disagrees with a party’s reading of [the] FCRA, it may not impose liability
for a reckless, and therefore willful, violation of that statute unless that party’s
reading is ‘objectively unreasonable.’”).
Lindsey contends that Experian willfully violated the FCRA when it sent
him correspondence stating that it would take no further action in response to the
“suspicious” letter it received. See doc. 30 at 2. The alleged facts fall short of the
‘objectively unreasonable’ standard necessary for a willful violation. Specifically,
after receiving the letter from Lindsey, Experian did not simply ignore it. Rather,
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Experian sought to confirm the letter’s authenticity, in part, by requesting
additional information Lindsey had not provided in his letter. See SEALED doc.
26-1 at APP., p. 8. Critically, Experian provided clear instructions to Lindsey on
how to proceed if he, in fact, had sent the letter and wanted to resolve an alleged
inaccuracy. See id. Lindsey ignored these instructions and never responded. His
failure to do so — or Experian’s decision to not initiate a reinvestigation —
resulted in no harm here since Experian had already removed the disputed
information the day before. Even if Lindsey is correct that his failure to include
the additional information Experian cited did not render his correspondence
“suspicious,” see doc. 28 at 7, this fact does not create a willful violation because
the Supreme Court and Eleventh Circuit have made clear that “objective[]
unreasonable[ness]” is a high standard and that subjective bad faith, alone, is
insufficient to prove a willful violation of the FCRA. See Levine, 554 F.3d at 1319
(citing Safeco, 551 U.S. at 70 n.20). In view of the undisputed evidence, the text
of the FCRA, and the lack of any specific guidance from the Eleventh Circuit as to
this particular issue, the court cannot find that Experian acted under an objectively
unreasonable interpretation of the FCRA by requesting further information before
agreeing to commence a reinvestigation.

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IV.

CONCLUSION

Because Lindsey lacks Article III standing or, alternatively, cannot establish
that Experian willfully violated the FCRA, Experian’s motion for summary
judgment, doc. 25, is due to be granted, and Lindsey’s cross-motion for partial
summary judgment, docs. 28; 30, is due to be denied. The court will enter a final
order contemporaneously herewith.
DONE the 31st day of January, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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