Wright v. Verizon Communications Inc. et al

Filing 107

MEMORANDUM. Signed by Judge Gregory M. Sleet on 11/7/2016. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)

ERRICK M. WRIGHT,

)
)

Plaintiff,

)
)
)
)

v.

Civil Action No. 15-115-GMS

EXPERIAN INFORMATION SOLUTIONS INC., )
)

Defendant.

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MEMORANDUM
I.

INTRODUCTION

The prose plaintiff Errick Wright ("Wright") filed this action on October 27, 2014, (D.I.
1-2), alleging that defendant Experian Information Solutions, Inc. ("Experian") committed fraud
by deception, conspiracy to defraud, and defamation concerning his credit account with Verizon
Wireless. Subsequently, Wright filed an unopposed Motion to Amend to which he attached an
Amended Complaint. In this Amended Complaint, Wright claimed that Experian inaccurately
reported accounts included in his credit report and failed to properly investigate disputes in
violation of 15 U.S.C. §§ 1681e(b) and 168li of the Fair Credit Reporting Act ("FCRA"). (D.I.
82, 82-1.) Experian moves for summary judgment pursuant to Federal Rule of Civil Procedure
56. (D.I. 99.)
II.

For the reasons that follow, the court will grant Experian's motion.

FACTUAL AND PROCEDURAL BACKGROUND

Wright's Complaint alleges that Experian committed fraud to "deceive Plaintiff to secure
an unfair and unlawful financial gain" (D.I. 1-2 at 8), and that Experian and the former codefendants "engaged in unlawful conduct and conspired against the Plaintiff to collect an unlawful
financial gain in the amount of $4, 222.75." (D.I. 1-2 at 11.) Wright also alleges claims of libel
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and slander based on "oral and/or written false statements to various third parties receiving
Plaintiffs consumer information ... stat[ing] incorrectly [that] Plaintiff owed $4,477.25" to
Verizon. (D.I. 1-2 at 13.) Wright's proposed Amended Complaint asserts that Experian has failed
to adopt and follow reasonable procedures as mandated by§ 1681e(b) of the FCRA. (D.I. 82-1.)
Wright also alleges that Experian failed to adequately investigate when he disputed his account
records in violation of 15 U.S.C. § 1681i(a), the FCRA provision which mandates that credit
reporting agencies reinvestigate consumer disputes.

Specifically, Wright contends Experian

reported inaccurate credit information related to his account with Verizon Wireless. (D.I. 82-1.)
Wright asserts that Experian's failure to properly reinvestigate has damaged his credit and
reputation. (D.I. 82-1.)
On February 10, 2016, the court entered a Scheduling Order setting the discovery deadline
as May 10, 2016, and the deadline for dispositive motions as July 11, 2016. (D.I. 76). Consistent
with the Order, Experian served Wright with Requests for Admissions (D.I. 77), Request for
Production (D.I. 78), and Interrogatories (D.I. 79) on February 24, 2016. On March 23, 2016,
Wright filed a Motion to Strike Experian's Discovery Requests (D.I. 87), and Experian filed an
opposition brief on March 29, 2016. (D.I. 88.) Further, Experian filed a Motion to Compel Wright
to respond to Experian's discovery requests on May 6, 2016. (D.I. 95.) Wright has not properly
responded or objected to Experian's discovery requests and failed to conduct his own discovery
by the discovery deadline.
Experian filed this pending motion for summary judgment on July 11, 2016. On August
5, 2016, the court granted Wright's motion for extension of time to file a response to Experian' s
motion for summary judgment. (D.I. 105.) After Wright failed to respond by the August 12, 2016
deadline, the court ordered Wright to respond by October 26, 2016. (D.I. 106.) Presently, Wright

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has yet to respond to the motion for summary judgment or make any attempt to litigate this case
since August 3, 2016.

III.

LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving paiiy is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
moving party bears the burden of proving that no genuine issue of material fact exists. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). The court must view
the evidence in the light most favorable to the nonmoving party and draw inferences in that party's
favor. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the moving party is entitled
to judgment as a matter of law if the nonmoving party fails to make a sufficient showing on an
essential element of its case for which it has the burden of proof at trial. Celotex, 4 77 U.S. at 32223. If a party fails to properly support an assertion of fact or fails to properly address another
party's .assertion of fact as required by Rule 56(c)(l)(A), the court may consider those facts
undisputed for the purpose of the summary judgment. See Fed. R. Civ. P. 56(e)(2).

IV.

DISCUSSION
Experian argues that it is entitled to the entry of summary judgment against Wright on each

of his claims because during the discovery period Wright has failed to adduce facts that might
prove the elements of his various claims. Experian contends that Wright's failure to comply with
Rule 56 results in the admission of facts that bar each of his claims as a matter of law. The court
will address each of Wright's claims in both the original and proposed amended complaints and
the impact of his apparent failure to comply with the Federal Rules of Civil Procedure in turn.

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As a preliminary matter, the court agrees that Wright's Motion to Strike Defendants'
Discovery Request (D.I. 87) does not function as a timely objection. Experian argues that Wright
failed to answer or object to Experian's requests for admission, because Wright's moved to strike
based on Federal Rule of Civil Procedure 12(f)(2), which deals with striking matters from
pleadings. (D.I. 100 at 11.) As a result of Wright's failure to timely respond to these requests
within thirty days, Experian contends that Wright admitted key elements of each of his claims, and
that these admissions are fatal to Wright's cause of action. The court recognizes, however, that
Wright proceeds pro se, and will not hold this procedural error against him. Nevertheless, as
previously noted, the court will grant the motion but without relying on the purportedly admitted
facts.
A. Original Complaint: Fraud, Civil Conspiracy, Defamation
First, Wright alleges common law fraud against Experian. (D.I. 1-2 at 8-9.) To prove
common law fraud in Delaware requires (1) a false representation made by the defendant, (2) the
defendant's knowledge as to its falsity or reckless indifference for its truth, (3) an intent to induce
the plaintiff to act based upon that representation, (4) the plaintiffs justifiable reliance upon the
false representation, and (5) damage to the plaintiff as a result of such reliance. Gaffin v. Teledyne,

Inc., 611 A.2d 467, 472 (Del. 1992). Rule 56(c)(l) requires that a party support his factual
position. The opportunity to do this is during the period for discovery allotted by the court. Wright
failed to engage the discovery process. As a consequence, his fraud claim cannot stand. Experian
is entitled to summary judgment on this claim.
Second, Wright alleges a civil conspiracy by Experian to defraud him. (D.I. 1-2 at 10-11.)
To maintain a civil conspiracy claim, a plaintiff must show (1) a confederation of two or more
persons, (2) some unlawful conduct done in furtherance of the conspiracy, and (3) actual legal
damage resulting to the plaintiff. McLaughlin v. Copeland, 455 F. Supp. 749, 752 (D. Del. 1978).
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Importantly, "the plaintiff must allege an underlying actionable tort by each defendant. 'It is not
the conspiracy itself, but rather the underlying wrong that must be actionable, even without the
alleged conspiracy."' Abbott v. Gordon, C.A. No. 04C-09-055 PLA, 2008 WL 821522, at *17
(Del Super. Ct. Mar. 27, 2008). For the reasons just noted, Wright cannot establish the underlying
conduct necessary to prove civil conspiracy. Thus, Experian is entitled to summary judgment on
this claim.
Wright also claims that Experian's inaccurate reporting of his account information caused
him to be defamed. (D.I. 1-2 at 12-13.) To prove defamation under Delaware law, a plaintiff must
establish: (1) the existence of a defamatory communication; (2) that the communication was
published to a third party; (3) that the communication refers to the plaintiff; (4) that the
communication is defamatory in character; and (5) injury. Calloway v. Green Tree Servicing, 607
F. Supp. 2d 669, 675 (D. Del. 2009). As discussed and, again, as a result of his own failure to
engage the discovery process, Wright has failed to establish any facts that might support his
defamation claim. As a result the court will grant summary judgment for Experian.

B. Proposed Amended Complaint: FCRA Violations
Wright asserts that Experian failed to employ reasonable procedures to assure the accuracy
of his credit report in violation of§ 1681e(b). In order to succeed on a§ 1681e(b) claim, Wright
must establish each of the following four elements: (1) inaccurate info1mation was included in his
credit report; (2) the inaccuracy was due to Experian's failure to follow reasonable procedures to
assure maximum possible accuracy; (3) he suffered an injury; and (4) his injury was caused by the
inclusion of the inaccurate entry. Cortez v. Trans Union, LLC, 617 F.3d 688, 708 (3d Cir. 2010).
r
Again, because Wright has not engaged the discovery process, he cannot establish any of the
essential facts of this claim. See Schwetizer v. Equifax Info. Solutions, LLC, 441 Fed. Appx. 896,

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902 (3d Cir. 2011) (affirming the entry of summary judgment in favor of the credit reporting
agency when the plaintiff failed to provide evidence that his credit reports actually contained
inaccurate information). Therefore, Experian is entitled to summary judgment on this FCRA
claim.
In addition, Wright claims that Experian failed to conduct reasonable reinvestigations in
violation of§ 1681i(a). Experian responds that it conducted six separate investigations of the
Verizon account that affirmed the account was accurately reported. (D.I. 102, Methvin Deel.

ifif

7, 12-13.) To demonstrate that a reinvestigation was unreasonable under the FCRA, Wright must
show that (1) his credit file contained inaccurate information, (2) he notified Experian directly of
the inaccurate information, (3) his dispute was not frivolous, (4) Experian failed to respond to his
dispute, and (5) Experian's failure to respond caused Wright to suffer actual damages. See 15
U.S.C. § 1681i(a). Here, Wright cannot show that a genuine issue of material fact exists as to any
element of his reasonable investigation claim because he has not conducted discovery. Thus,
Experian is entitled to summary judgment on this claim.

V.

CONCLUSION

For the foregoing reasons, the court will grant Experian's motion for summary judgment.
(D.I. 99.)

Date:

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