Giacalone v. Experian et al
Filing
61
MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 6/24/2013.Mailed notice(sct, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH J. GIACALONE, JR.,
Plaintiff,
v.
EXPERIAN PLC, et al.,
Defendants.
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12 C 1192
MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the cross-motions for summary
judgment of Plaintiff Joseph Giacalone, Jr. (“Giacalone”) and Defendant Experian
PLC (“Experian”) pursuant to Federal Rule of Civil Procedure 56. For the following
reasons, Experian’s motion is granted, and Giacalone’s motion is denied.
BACKGROUND
The following facts are derived from the parties’ respective statements and
exhibits filed pursuant to Northern District of Illinois Local Rule 56.1. The Court
reviews each Local Rule 56.1 statement and disregards any argument, conclusion, or
assertion unsupported by the evidence in the record. Experian is a consumer credit
reporting agency (“CRA”) with its principal place of business in Dublin, Ireland.
Experian also commonly does business in the State of Illinois under the name
Experian Information Solutions, Inc. Over the years, Giacalone has obtained several
consumer disclosures from Experian. Under the Fair Credit Reporting Act (“FCRA”),
15 U.S.C. § 1681 et seq., a consumer may request such a disclosure, and the CRA is
required to provide it. 15 U.S.C. § 1681g.
In 2005, Giacalone filed for Chapter 7 bankruptcy. Giacalone’s consumer
disclosures should have reflected that his debts had been discharged pursuant to the
bankruptcy with the line “debt included in bankruptcy.”
Unfortunately, when
Giacalone examined his February 21, 2011 consumer disclosure, that phrase was
absent, and individuals viewing the information thus would have been unaware of the
discharge of Giacalone’s debts in bankruptcy. On February 21, 2012, Giacalone filed
a five count complaint alleging that he has been denied credit due to the inaccuracies
contained in the 2011 consumer disclosure.
Specifically, Giacalone alleges: a
violation of the FCRA (Count I); defamation (Count II); tortious interference with
prospective economic advantage (Count III); intentional infliction of emotional
distress (“IIED”) (Count IV); and false light (Count V).
Giacalone seeks both
compensatory and punitive damages. On March 14, 2013, Giacalone moved for
summary judgment with respect to Counts I and III pursuant to Federal Rule of Civil
Procedure 56. On April 11, 2013, Experian moved for summary judgment with
respect to all counts pursuant to Rule 56.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings, discovery, disclosures,
and affidavits establish that there is no genuine issue of material fact, such that the
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movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant
bears the initial burden of showing that no genuine issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on
which the non-movant bears the burden of proof at trial. Id. at 325. The non-movant
may not rest upon mere allegations in the pleadings or upon conclusory statements in
affidavits; he must go beyond the pleadings and support his contentions with
documentary evidence. Id. A genuine issue of material fact exists when, based on the
evidence, a reasonable jury could find in favor of the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary
judgment, the court construes all facts and draws all reasonable inferences in favor of
the non-moving party. Smith v. Hope Schs., 560 F.3d 694, 699 (7th Cir. 2010). When
faced with cross-motions for summary judgment, the court views all facts and draws
all reasonable inferences in favor of the party against whom the motion under
consideration is made. Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 359
(7th Cir. 2011).
DISCUSSION
I.
FCRA Claim
Giacalone argues that Experian’s actions violate 15 U.S.C. § 1681e(b) of the
FCRA. To prove a violation of this section, a plaintiff must show that: (i) inaccurate
information was included in a consumer credit report; (ii) the inaccuracy was caused
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by the failure of the CRA to follow reasonable procedures to assure maximum
possible accuracy; (iii) the plaintiff suffered damages; and (iv) those damages were
caused by the inaccuracy. Philbin v. Trans Union Corp., 101 F.3d 957, 963 (3d Cir.
1996); Alley v. First Am. Credco, Inc., No. 05 C 2130, 2007 U.S. Dist. LEXIS 4659,
at *10 (N.D. Ill. Jan. 19, 2007). Giacolone has provided the Court with the consumer
disclosure that he requested and received from Experian pursuant to its statutory
obligations. See 15 U.S.C. § 1681g. This differs from a consumer credit report,
which is “used . . . in whole or in part for the purpose of serving as a factor in
establishing the consumer’s eligibility for [credit, employment and several other
items].”
15 U.S.C. § 1681a(d)(1).
In other words a consumer credit report is
exclusively for the use of third parties. A CRA in possession of erroneous credit
information about a consumer, that it sends to that consumer, does not constitute a
consumer credit report and hence does not trigger the FCRA. See Hyde v. Hibernia
Nat’l Bank, 861 F.2d 446, 449 (8th Cir. 1988), cert. denied, 491 U.S. 910 (1989); see
also Renninger v. Chexsystems, No. 98 C 669, 1998 U.S. Dist. LEXIS 8528, at *15
(N.D. Ill. May 22, 1998) (“To hold otherwise . . . would potentially subject a [CRA]
to liability any time [it] disclosed the contents of [its] files upon a consumer’s request
. . . .”).
Giacalone has not provided the Court with any consumer credit report. A
fortiori the Court cannot deem there to be inaccuracies contained in a document that
the Court has not received. Giacalone has provided the consumer disclosure that he
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received and several letters of rejection that denied his requests for credit. On April
23, 2013, however, this Court granted Experian’s motion to strike these letters as
inadmissible hearsay. See Fed. R. Evid. 802. Giacalone has attempted to insert these
letters back into play through his affidavit in support of his reply to the instant motion;
however, the affidavit also constitutes inadmissible hearsay.
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As the letters and
affidavit are inadmissible hearsay, this Court cannot consider them, and Giacalone has
offered no other evidence that would lead the Court to conclude that there exists a
consumer credit report containing the inaccurate debt information, much less that third
parties have seen such a report and have denied Giacalone credit because of it.
Giacalone avers that he has suffered damages in the form of emotional distress.
However, based on all admissible evidence, the sole basis for this claim under the
FCRA is Giacalone’s knowledge that his consumer disclosure contained erroneous
information. This Court has found no case in which a plaintiff has recovered under
the FCRA for emotional distress based solely on his knowledge that a CRA possessed
inaccurate credit information about him. See Casella v. Equifax Credit Info. Servs.,
56 F.3d 469, 475 (2d Cir. 1995) (declining to extend recovery of emotional distress
damages under FCRA where consumer merely knew of erroneous information in
consumer credit report); Cousin v. Trans Union Corp., 246 F.3d 359, 370-71 (5th
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Giacalone is conveying what he was told by out-of-court declarants to prove the truth of the
matter asserted—that creditors have seen his consumer credit report with the inaccurate
information and that they rejected his credit requests because of it. A court may consider only
admissible evidence in ruling on a motion for summary judgment. Gunville v. Walker, 583 F.3d
979, 985 (7th Cir. 2009). The letters relied on lack any accompanying testimony or certification
necessary for admissibility under the Federal Rules of Evidence.
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Cir.), cert. denied, 534 U.S. 951 (2001) (same). In the present case, Giacalone has not
even presented evidence of inaccurate information contained in a consumer credit
report but instead has provided only the consumer disclosure sent to him as required
by statute. Giacalone’s FCRA claim, therefore, must be dismissed.
II.
Defamation Claim
Giacalone posits that he has been defamed by the inaccuracies contained in his
consumer disclosure. A defamation action is designed to redress statements that harm
a plaintiff’s reputation by lowering him in the eyes of the community or by deterring
the community from associating with him. Solaia Tech., LLC v. Specialty Publ’ns
Co., 852 N.E.2d 825, 839 (Ill. 2006). To state a claim for defamation under Illinois
law, a plaintiff must show that: (i) the defendant made a false statement about him; (ii)
the defendant made an unprivileged publication of that statement to a third party; and
(iii) the publication caused damages. Id. at 839. In the case sub judice, Giacalone
cannot state a claim for defamation because he has failed to present evidence of
publication of the inaccurate statements in his consumer disclosure to a third party.
Hence, his defamation claim must fail.
III.
False Light Claim
In his reply to the instant motion, Giacalone has indicated his desire to
withdraw this claim. The Court will abide by this request, and this count is dismissed.
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IV.
Tortious Interference with Prospective Economic Advantage Claim
Giacalone posits that the inaccuracies in his consumer disclosure interfered
with his ability to obtain credit and, therefore, constitute a tortious interference with
prospective economic advantage. To state a claim for tortious interference with
prospective economic advantage in Illinois, a plaintiff must show: (i) he had a
reasonable expectancy of entering into a valid business relationship; (ii) the defendant
had knowledge of that expectancy; (iii) the defendant’s intentional and unjustified
interference caused a breach or termination of that expectancy; and (iv) damages.
Voyles v. Sandia Mortg. Corp., 751 N.E.2d 1126, 1133 (Ill. 2001). In the case at
bench, the Court can discern no evidence supporting Giacalone’s claim under this
theory.
Giacalone received a consumer disclosure that contained inaccurate
information. He has presented no evidence that he was denied credit due to the
inaccurate information contained therein or even that a third party was privy to the
inaccurate information. As such, his claim for tortious interference with prospective
economic advantage is dismissed.
V.
IIED Claim
Giacalone contends that Experian is liable for IIED due to the inaccurate
statements contained in Giacalone’s consumer disclosure and the manner in which
Experian treated Giacalone. To state a claim for IIED in Illinois, a plaintiff must
show that: (i) the defendant engaged in extreme and outrageous conduct; (ii) the
defendant knew or should have known that such conduct would cause severe
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emotional distress; and (iii) the conduct caused the plaintiff severe emotional distress.
Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill. 2003). “Mere insults, indignities,
threats, annoyances, petty oppressions or other trivialities” do not constitute extreme
and outrageous conduct. Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill.
1992). “Rather, the nature of the defendant’s conduct must be so extreme as to go
beyond all possible bounds of decency, and to be regarded as intolerable in a civilized
community.” Id. at 211 (citing Restatement (Second) of Torts § 46, Comment d, at 73
(1965)).
In the instant case, Experian sent Giacalone a consumer disclosure
containing inaccurate information.
Giacalone also complains that “grossly
incompetent” employees answered his phone calls and that, generally, Experian
treated him unfairly, causing him frustration. The Court concludes that this conduct
would not be deemed extreme and outrageous by a reasonable juror. Cf. Hukic v.
Aurora Loan Servs., 588 F.3d 420, 438-39 (7th Cir. 2009) (affirming dismissal of
IIED claim where plaintiff cited as extreme and outrageous conduct defendant’s
inaccurate report that plaintiff had been delinquent on mortgage payments).
Giacalone also has provided insufficient evidence that his emotional distress is
severe. He testified that he has not manifested physical symptoms from the distress.
Rather, he claims to have suffered insomnia, hypertension, stress, frustration,
embarrassment, humiliation and anxiety.
His sole support for this claim is his
affidavit and testimony. The Seventh Circuit has affirmed the granting of summary
judgment with respect to an IIED claim similar to Giacalone’s. See Sornberger v.
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City of Knoxville, 434 F.3d 1006, 1030 (7th Cir. 2006) (under Illinois law, IIED claim
failed where children’s grades had declined due to their parents’ wrongful
incarceration). Giacalone’s IIED claim is, therefore, deficient and must be dismissed.
CONCLUSION
In summary, the record is devoid of (i) evidence that any credit reports were
sent to third parties, (ii) any creditors saw the alleged inaccuracy or based any credit
decision on it, or (iii) any creditor referred to or relied on an Experian credit report in
any action regarding Giacalone. As the record stands, only Giacalone saw the alleged
inaccuracy in any Experian record. For these reasons, Giacalone’s motion for partial
summary judgment is denied. Experian’s motion for summary judgment is granted
with respect to all counts.
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Charles P. Kocoras
United States District Judge
Dated: June 24, 2013
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