Whirl v. Trans Union, LLC
Filing
24
MEMORANDUM AND ORDER, denying 18 MOTION for Preliminary Injunction filed by Kemo D. Whirl. Signed by Judge J. Phil Gilbert on 1/25/2018. (jdh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEMO D. WHIRL,
Plaintiff,
v.
Case No. 3:17-cv-01326-JPG-SCW
TRANS UNION, LLC,
Defendant.
MEMORANDUM AND ORDER
J. PHIL GILBERT, DISTRICT JUDGE
This matter comes before the Court on plaintiff Kemo D. Whirl’s motion for a
preliminary injunction. (Doc. 18.) For the following reasons, the Court DENIES Whirl’s motion.
I.
BACKGROUND
Kemo D. Whirl is a prisoner at Centralia Correctional Center. Trans Union, LLC
(“TransUnion”) is a consumer reporting agency. Whirl brought this action against TransUnion
alleging that the agency violated the Fair Credit Reporting Act by failing to provide Whirl with a
free copy of his annual credit report. See 15 U.S.C § 1681g(a)(1).
Today, the Court is faced with a different issue. Whirl has moved for a preliminary
injunction to stop TransUnion from “threatening and committing libel and slander against
[him].” (Doc. 18.) Whirl previously moved for a temporary restraining order in this case on the
same issue (Doc. 17), which the Court has already denied. (Doc. 22.) Whirl makes the same
argument here that he made in the motion for a temporary restraining order: he has attached an
affidavit that explains that he received a letter from TransUnion’s attorney that contains
“numerous not-so-veiled threats to dismiss his legal action”. (Doc. 18-1, ¶ 4.) Whirl believes
that he “should not have to bear the annoyance, oppression and burden of the Defendant’s
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threats”, and that he is “afraid as to whether he should continue on with his litigation or not.” (Id.
at ¶¶ 7, 8.) Whirl believes that TransUnion is taking advantage of him because he is proceeding
pro se. (Id. at ¶ 6.) He has attached a copy of TransUnion’s “threatening” letter to his affidavit,
and a further look at this letter reveals that TransUnion has instructed Whirl that they will move
for Federal Rule of Civil Procedure 11 sanctions against Whirl if he does not withdraw his
complaint. (Doc. 18-1, p 3.) Specifically, TransUnion asserts that Whirl has fraudulently altered
and/or manufactured documents which he attached to his complaint in this case. The letter also
explains why TransUnion believes that Whirl’s case will fail on the merits.
II.
LEGAL STANDARDS
Preliminary injunctive relief is designed “to minimize the hardship to the parties pending
the ultimate resolution of the lawsuit.” Platinum Home Mortgage Corp. v. Platinum Fin. Group
Inc., 149 F.3d 722, 726 (7th Cir. 1998). A party seeking a preliminary injunction must make a
threshold showing that (1) it has some likelihood of success on the merits; (2) no adequate
remedy at law exists; and (3) it will likely suffer irreparable harm if the injunction is not granted.
Ferrell v. United States Dep’t of Housing and Urban Dev., 186 F.3d 805, 811 (7th Cir. 1999). If
the moving party is able to establish these three factors, the Court must then balance the harms to
both parties using a “sliding scale” analysis, also taking into consideration the effect that
granting or denying the injunction will have on the public. “[T]he greater the moving party’s
likelihood of prevailing on the merits, the less strongly it must show that the balance of harms
weighs in its favor.” Ferrell, 186 F.3d at 811. “A preliminary injunction is an extraordinary
remedy that should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.” Chicago Dist. Council of Carpenters Pension Fund v. K & I Constr., Inc., 270 F.3d
1060, 1064 (7th Cir. 2001) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam)); accord Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008).
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III.
ANALYSIS
The Court cannot grant Whirl’s request for a preliminary injunction because he has not
demonstrated that he will likely suffer irreparable harm if the Court does not grant his request.
Although Whirl believes that TransUnion is engaging in “libel and slander” against him, there is
no evidence in favor of that argument. “Libel and slander” claims are considered under Illinois
defamation law. To state a claim for defamation under Illinois law, the plaintiff must show that
“the defendant made a false statement about the plaintiff, the defendant made an unprivileged
publication of that statement to a third party, and that this publication caused damages.” Solaia
Tech., LLC v. Specialty Publ'g Co., 852 N.E.2d 825, 839 (2006) (internal citations omitted).
TransUnion is not engaging in defamation against Whirl because TransUnion did not
publish any statements to a third party. Rather, TransUnion sent a private letter to Whirl in the
course of this litigation discussing the case and offering what TransUnion believes to be a
compromise. While the Court sympathizes with Whirl’s lack of training in law and his
uncertainty as to whether he should proceed with his case, that is one of the dangers of
proceeding as a pro se litigant. The Court cannot grant a preliminary injunction against
TransUnion simply because they sent an adversarial letter to a pro se litigant.
CONCLUSION
For the foregoing reasons, the Court DENIES Whirl’s motion for a preliminary
injunction. (Doc. 18.)
IT IS SO ORDERED.
DATED: JANUARY 25, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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