Taylor v. Tenant Tracker Inc

Filing 83

ORDER granting 40 Tenant Tracker's Motion for Summary Judgment and dismissing Taylor's complaint with prejudice. Signed by Judge Brian S. Miller on 11/4/11. (hph) (Docket text modified on 11/4/2011 to correct the description of the document filed, and case closing information removed.) (thd).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CATHERINE L. TAYLOR
v.

PLAINTIFF

CASE NO. 4:10CV00282 BSM

TENANT TRACKER, INC., a/k/a/
RESULT MATRIX, INC.

DEFENDANT
ORDER

Defendant Tenant Tracker, Inc.’s motion for summary judgment [Doc. No. 40] is
GRANTED.
I. FACTUAL BACKGROUND
In September 2008, plaintiff Catherine Taylor and her husband Max Taylor applied
for federal housing assistance with the Benton Public Housing Authority (BPHA). Wanda
Taylor Dep. Ex. 3. At the time of their application, the Taylors’ household income was
limited to social security benefits payable to Max and two of their three children. Id.;
Catherine Taylor Dep., at 18. Because the Taylors met the initial qualifications for a Section
8 voucher, plaintiff was added to BPHA’s waiting list. Wanda Taylor Dep., at 6.
On April 7, 2010, after rising to the top of the waiting list, plaintiff and her husband
met with a BPHA counselor to complete the requisite background check. Catherine Taylor
Dep., at 17. To initiate the process, the Taylors signed a release providing their names,
addresses, phone numbers, dates of birth, social security numbers, and driver’s license
numbers. Wanda Taylor Dep. Ex. 9. That document authorized BPHA to perform federally
mandated screening for drug-related or violent behavior or for sex-offender registration. Id.

BPHA has subscribed to Tenant Tracker’s public record reporting service since 2003
and used that service on April 7, 2010, to conduct criminal background checks on the
Taylors. Clifton Aff. ¶¶ 2, 3. Plaintiff’s report was generated at 10:42 a.m., and lists under
applicant information the name “Catherine Taylor,” her date of birth, social security number,
and driver’s license number. Wanda Taylor Dep. Ex. 10. Under “Public and Criminal
Information” there are five separate entries immediately preceded by the following language:
“WARNING: Any service NOT using fingerprint analysis has limited effectiveness and is
subject to the uniqueness and truthfulness of the applicant’s identification. Subscriber shall
use all additional identifying information to confirm accuracy.” Id.
The first two entries list an offender by the name of “Chantel Taylor” born on the
same date as plaintiff and indicate that “Chantel Taylor” was convicted in Florida state court
of two counts of felony aggravated child abuse in 1990. Id. The entries for “Chantel Taylor”
were included in the records search as a derivation of or possible alias for “Catherine
Taylor.” Clifton Aff. ¶ 5. The third through fifth entries list an offender by the name of
“Catherine Taylor” born on the same date as plaintiff and indicate that “Catherine Taylor”
was convicted in Illinois state court of theft, forgery, and possession of a controlled substance
between 2003 and 2006. Wanda Taylor Dep. Ex. 10. These entries also indicate that
“Catherine Taylor” has a tattoo of the word “Troy” on her left ankle. Id.
Wanda Taylor, an employee of BPHA and of no relation to plaintiff, reviewed the
report almost immediately and in the presence of the Taylors. Wanda Taylor Dep., at 35-36.

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She immediately noticed the first name “Chantel” and began to doubt whether the first two
entries were attributable to plaintiff. Id. at 36. She then noticed the notation about the left
ankle tattoo on the third through fifth entries and visually confirmed the lack of any tattoo
on plaintiff. Id. at 38. Additionally, plaintiff’s height, weight, eye color, and hair color
distinguished her from the “Chantel Taylor” and “Catherine Taylor” listed on her report.
Catherine Taylor Dep., at 30. Therefore, although the report initially caused Wanda Taylor
to doubt the Taylors’ eligibility, upon further scrutiny, it became clear that the “Chantel
Taylor” and “Catherine Taylor” were not, in fact, plaintiff. Wanda Taylor Dep., at 40.
Plaintiff was visibly upset during the background check. Id. at 48. She was asked
whether she had any criminal history and specifically whether she was a registered sex
offender. Id. at 62. Because of her relatively common name, plaintiff has experienced similar
problems before, including being confused with the thrice-convicted “Catherine Taylor” from
Illinois. Catherine Taylor, Dep., at 40. Indeed, she has twice previously sued records
reporting entities in federal district court, alleging violations of the Fair Credit Reporting Act
(FCRA). Id. at 28, 44, 47.
During the background check at issue, Wanda Taylor made several handwritten notes
on the report itself including striking through the “Chantel” entries, circling the tattoo
notations next to the “Catherine Taylor” entries, and writing “no tattoo” in the margin.
Wanda Taylor Dep., at 68. Plaintiff and her husband were approved the same day. Id. at 68,
Ex. 9.

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The following afternoon, Tenant Tracker transmitted another report on plaintiff using
additional identifying information obtained from BPHA. Clifton Aff., ¶ 7. This new
document showed no criminal history. Id. The Taylors ultimately did not receive a voucher
because plaintiff obtained employment in the intervening period, and, as a result, her family
no longer met the income qualifications. Catherine Taylor Dep., at 52.
Plaintiff originally brought numerous claims against Tenant Tracker, but has
voluntarily dismissed all of them except her cause of action under 15 U.S.C. § 1681e(b).
Tenant Tracker moves for summary judgment arguing that the report is entitled to First
Amendment protection and was technically accurate.
II. LEGAL STANDARD

Summary judgment is proper if, after viewing the evidence in the light most favorable
to Taylor, no genuine issues of material fact exist and Tenant Tracker is entitled to judgment
as a matter of law. Nelson v. Corr. Med. Servs., 533 F.3d 958, 961 (8th Cir. 2008). Taylor
cannot survive the motion for summary judgment merely by pointing to disputed facts; the
facts in dispute must be material to the outcome of the case. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1985). If the facts alleged by Taylor, when viewed in the light most
favorable to her claims, would not allow a reasonable jury to find in her favor, then summary
judgment should be granted in favor of Tenant Tracker. Bloom v. Metro Heart Group of St.
Louis, Inc., 440 F.3d 1025, 1029 (8th Cir. 2006).
III. DISCUSSION

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Summary judgment is granted because the record is devoid of evidence from which a
reasonable jury could find a violation of the FCRA.
The statute under which plaintiff proceeds is entitled “accuracy of report” and provides
as follows: “Whenever a consumer reporting agency prepares a consumer report it shall follow
reasonable procedures to assure maximum possible accuracy of the information concerning
the individual about whom the report relates.” 15 U.S.C. § 1681e(b). If plaintiff can show that
Tenant Tracker negligently failed to comply with this requirement, she may recover actual
damages, costs, and attorneys’ fees. Hauser v. Equifax, Inc., 602 F.2d 811, 814 (8th Cir. 1979)
(citing 15 U.S.C. § 1681o). Additionally, if she can show Tenant Tracker’s violation was
willful, plaintiff would be entitled to punitive damages. Id. at 814 (citing 15 U.S.C. § 1681n).
To begin, the statute does not provide for strict liability for each inaccuracy. Id. The
inquiry is whether the inaccuracy “resulted from the [reporting] agency’s failure to ‘follow
reasonable procedures to assure maximum possible accuracy.’” Id. at 814-15. The most recent
Eighth Circuit case on point is Wilson v. Rental Research Svcs., Inc. (Wilson II), 165 F.3d 642
(8th Cir. 1999), vacated on rehearing en banc, 206 F.3d 810 (8th Cir. 2000).
In Wilson, the plaintiff sought to lease an apartment from a landlord who subscribed
to a credit reporting agency engaged in the business of providing background information on
prospective tenants. Id. at 643. The landlord requested an “instant inquiry” report on plaintiff
that showed “twelve ‘possible’ reports of unlawful detainer actions” over the previous three
years involving a person with the same or similar name of plaintiff. Id. Two were filed on the

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same day, and two others were filed days apart in different counties. Id. Like the document
at issue in the present case, the defendant’s report provided a disclaimer warning the
subscriber that the records were pulled using limited identifiers and required further
verification. Id.
The district court granted summary judgment in favor the defendant reporting agency
finding that the background check was an “accurate reporting of court records” even though
the evidence showed that only two of the twelve unlawful detainer actions actually involved
plaintiff. Wilson v. Rental Research Svcs., Inc., (Wilson I), No. 3-96-820, at 11 (D. Minn.
Nov. 10, 1997). It reasoned that the report warned that the list contained “possible” matches
as opposed to “confirmed identical matches” and that the disclaimer sufficiently “identifie[d]
the nature of the information and its limitations.” Id. at 12-13.
In a two-to-one panel decision, the Eighth Circuit reversed the district court on this
point. Wilson II, 165 F.3d at 644-47. The panel majority held that the district court erred by
applying “technical accuracy” standard and adopted a balancing test used by the D.C. Circuit
Court of Appeals. Id. at 646. Under that test, the court is to “weigh the potential that the
information will create a misleading impression against the availability of more accurate [or
complete] information and the burden of providing such information. Clearly the more
misleading the information [i.e., the greater the harm it can cause the consumer] and the more
easily available the clarifying information, the greater the burden upon the consumer reporting
agency to provide this clarification.” Id. (citing Koropolous v. Credit Bureau, Inc., 734 F.2d

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37, 42 (D.C. Cir. 1984).
Shortly after that opinion issued, the agency’s petition for rehearing en banc was
granted and the case was set for re-argument. 191 F.3d 911 (8th Cir. 1999). The Eighth
Circuit Court of Appeals, sitting en banc, split five-to-five, vacated the panel decision, and
affirmed the district court. 206 F.3d 810 (8th Cir. 2000). The undersigned can find no more
recent cases discussing the proper standard for accuracy under 15 U.S.C. § 1681e(b).
Accordingly, the law of this circuit is set forth in the district court’s Wilson opinion.
Summary judgment must be granted because the record is devoid of any evidence
suggesting that the report itself is “technically inaccurate” or that Tenant Tracker acted
negligently in preparing it. Plaintiff’s argument, of course, is not that “Chantel Taylor” of
Florida or “Catherine Taylor” of Illinois did not commit the crimes as set forth in the report.,
but rather that those crimes are not attributable to her. Nevertheless, plaintiff has still failed
to produce evidence from which a reasonable juror could find that Tenant Tracker’s
procedures were negligently designed or deployed and that such defects thwarted its ability
to report accurately.
While this outcome might seem unfair to plaintiff, the fact remains that many
Americans have popular first names and common surnames. As noted by the panel dissent,
it would be a strange consequence of the FCRA to conduct jury trials every time a possible
match appears on an applicant’s report. See Wilson II, 165 F.3d at 649. Moreover, plaintiff
suffered no damage in explaining that she was not the Chantel or Catherine on her report. Her

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family was approved during her meeting with the BPHA counselor who reviewed the first
report, and once Tenant Tracker received updated identifiers from BPHA, it promptly issued
a second report.
Accordingly, Tenant Tracker’s motion for summary judgment [Doc. No. 40] is granted,
and Taylor’s complaint is hereby dismissed with prejudice.
IT IS SO ORDERED this 4th day of November 2011.

________________________________
UNITED STATES DISTRICT JUDGE

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