Tilley v. Equifax Information Services, LLC et al

Filing 200

ORDER granting in part and denying in part 179 defendant's Motion for Summary Judgment. See order for certain trial deadlines. Signed by Magistrate Judge James P. O'Hara on 3/24/09. (ct)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF KANSAS C A R O L BETH TILLEY, P la in tif f , v. G L O B A L PAYMENTS, INC., D e f e n d a n t. ) ) ) ) ) ) ) ) )

Case No. 06-2304-JPO

M E M O R A N D U M AND ORDER I. Introduction T h e plaintiff, Carol Beth Tilley, alleges the defendant, Global Payments, Inc., acted w illf u lly or negligently in reviewing her credit information and reporting it to credit reporting a g e n cie s, in violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. T h is case is now before the court1 on defendant's motion for summary judgment (doc. 179). T h e instant motion has been fully briefed (see docs. 180, 188, & 193), and the court is now re a d y to rule. II. Facts2

On June 5, 2008, by consent of both parties, this case was reassigned for disposition f ro m Hon. Julie A. Robinson, U.S. District Judge, to the undersigned U.S. Magistrate Judge, J a m e s P. O'Hara (see doc. 194). T h e court, of course, construes the facts in the light most favorable to plaintiff as the n o n m o v in g party pursuant to Fed. R. Civ. P. 56. Immaterial facts and those not properly s u p p o rte d by the record are omitted. When necessary, additional facts are included in the an alysis section of this memorandum and order.
O:\M & O\06-2304-JPO-179.wpd
2

1

In August 2002, plaintiff owned a business called Tilley Sports Apparel, which sold t-sh irts, among other things. Plaintiff arranged to have a merchant account with defendant, w h ich enabled Tilley Sports Apparel to accept credit cards for purchases. Tilley Sports A p p a re l was an unincorporated, sole proprietorship, so plaintiff provided defendant her s o c ia l security number as the tax identification number for the business. O n or about August 22, 2002, plaintiff received an unsolicited e-mail directed to T ille y Sports Apparel from an individual she had never met. In the e-mail, the sender stated th a t his name was "Rev Mahmoud Sidi" and that his address was in "Ghana West Africa." T h e sender requested plaintiff send him hundreds of t-shirts for a total cost of approximately $ 1 0 ,0 0 0 , which he asked plaintiff to split over four different credit cards. After receiving the o rd e r, plaintiff contacted defendant and told it about the order. Defendant told her to run the c r e d it cards and to call back on the following Monday. Plaintiff then ran the credit cards. P la in tif f called defendant on the following Monday and gave it the approval numbers for the c re d it cards. Defendant told her the credit cards were fine and that she could process and s h ip the order. Plaintiff had the money from the order in her account that same Monday and s h ip p e d the t-shirts on Thursday. O n September 16, 2002, plaintiff received a sales draft request from defendant, dated S e p tem b e r 11, 2002, indicating there was no cardholder authorization for one of the credit c a r d s plaintiff processed. The transaction amount listed on the sales draft request is $ 2 ,4 8 7 .3 8 . Although unable to provide copies of sales draft requests for the other three

O:\M & O\06-2304-JPO-179.wpd

-2-

c re d it cards, defendant asserted it was entitled to $9,949 from plaintiff. In October 2002, defendant reported to Experian Information Solutions, Inc. ( " E x p e r ia n " ) a debt in the amount of $9,949. The debt was reported for the credit file m aintaine d under plaintiff's social security number. D e f en d a n t sometimes worked with a collection agency, Capstone Financial M a n a g em e n t, LLC ("Capstone"). It was defendant's practice that if it did not know if a debt h a d been paid or if information had been purged from its systems, it would contact the a s s ig n e d collection agency or person whom it contended was indebted to defendant and ask if the debt had been paid. If the response was the debt had been paid, defendant would have t h e collection agency or person send written proof of the payment. Defendant's system w o u l d identify if a matter had been handed over to a collection agency. Defendant has a c o n ta c t person at the collection agencies it has referred matters. O n November 11, 2002, Capstone received plaintiff's debt to defendant. In May 2 0 0 3 , defendant approved a settlement of the debt in full for $3,107. Capstone received a c h e ck from plaintiff for $3,107 on May 13, 2003. D e f en d a n t's system would identify if a matter had been handed over to a collection a g e n cy. But defendant did not have a policy or procedures for governing how the collection a g e n c y was to handle the matter, just an expectation that it would act within the law. Nor did d e f en d a n t have any written policy or procedures governing how it was to update its records w h e n a collection agency reported back to it that a dispute had been settled. Although

O:\M & O\06-2304-JPO-179.wpd

-3-

d e f e n d a n t's procedure was to update its records to indicate a dispute had been settled, d e f e n d a n t 's system ("Oracle") was not updated to indicate its dispute with plaintiff had been s e ttle d . D e f e n d a n t purges its merchant account system ("MAS") after six months of nona c tiv i t y, except for demographic information about the customer such as name, address, telep h o n e number, merchant identification number, and federal tax identification number. T h is information is maintained by defendant either in a database or on CD. Besides the M A S , defendant has two other systems, Oracle and Cadre, that are not purged. In June 2003, TransUnion L.L.C. ("TransUnion") updated the credit file maintained u n d e r plaintiff's social security number to reflect a debt owed to defendant in the amount of $ 9 ,9 4 9 . The debt was initially reported for the credit file maintained under plaintiff's social se c u rity number. TransUnion cannot say when it first received the report from defendant, a lth o u g h defendant's documents reveal it made the report on June 1, 2003. A c c o rd in g to Experian, on October 9, 2003, it sent a notice to defendant of a formal d is p u te from plaintiff that the debt to defendant was showing as unpaid. Experian further s ta te s that, having received no timely response from its October 9, 2003 inquiry, it updated d e f en d a n t's account in plaintiff's credit file on November 7, 2003 to show the debt was paid. O n October 21, 2003, in response to a formal notice of dispute made by plaintiff to T ra n sU n io n , which was communicated to defendant, defendant verified the debt information it initially reported to TransUnion regarding plaintiff in October 2002 was still correct.

O:\M & O\06-2304-JPO-179.wpd

-4-

C a p sto n e sent defendant an e-mail on November 6, 2003 indicating the settlement of p la in tif f 's account was reported to the credit bureau agencies in June 2003 and the account n e e d e d to be removed from her credit bureau information as soon as possible. An analyst w ith defendant sent an e-mail back to Capstone that same day indicating she mailed the in f o rm a tio n to the credit bureaus. Capstone forwarded the e-mails to plaintiff on November 7 , 2003. In November 2003, CSC Credit Services, Inc. ("CSC") and Equifax Information S e rv ic e s, LLC ("Equifax") updated their credit file maintained under plaintiff's social s e c u rity number to reflect a debt owed to defendant in the amount of $9,949. CSC and E q u ifax cannot say when they first received the report from defendant, although defendant's d o c u m e n ts reveal it made the report on June 1, 2003. CSC and Equifax documents indicate d e f en d a n t reported this information to them in November 2003. C S C , Experian, Equifax, and/or TransUnion were not able to find any document or th in g mailed or sent to any of them by defendant in November 2003 requesting them to d e le te , remove, or correct defendant's entry on plaintiff's credit reports. Defendant has not p ro d u c e d in this litigation a copy of any communication it sent to CSC, Experian, Equifax, a n d /o r TransUnion in November 2003 relating to plaintiff. O n September 6, 2005, in response to a formal notice of dispute made by plaintiff to C S C , which was communicated to defendant, defendant verified the debt information as b e in g reported correctly. Defendant reported plaintiff's debt to CSC as "charged to profit

O:\M & O\06-2304-JPO-179.wpd

-5-

a n d loss," meaning it was written off as uncollectible. Defendant has admitted that reporting its entry against plaintiff as charged to profit and loss was incorrect. Rather, defendant s h o u ld have reported that plaintiff paid the debt in full and nothing was owed to defendant b y plaintiff. Plaintiff contacted defendant on September 24, 2005 regarding the debt and was to ld a couple of days later that defendant did not have any record of her having paid the debt. A ro u n d October 5, 2005, one of defendant's in-house counsel told plaintiff that d e f e n d a n t's entry against her would be removed with all credit reporting agencies within f o rty-e ig h t hours. A representative of defendant also told plaintiff around November 7, 8, o r 9, 2005 that defendant's entry would be removed within forty-eight hours. On November 9 , 2005, the representative indicated in writing she requested all three credit reporting a g e n cie s remove the debt, but defendant admits it had not sent requests to Experian and T ra n sU n io n . O n November 6, 2005, defendant sent an electronic update to Equifax and CSC asking its account in plaintiff's credit file be deleted. Equifax and CSC deleted defendant's account in plaintiff's credit file by or about November 10, 2005. O n May 1, 2006, TransUnion deleted defendant's entry in the credit file maintained u n d e r plaintiff's social security number based upon a letter, dated April 25, 2006, it received f ro m a lawyer for plaintiff. Attached to the letter from plaintiff's lawyer was correspondence f ro m defendant, dated November 9, 2005, showing the debt to defendant had been resolved. O n May 2, 2006, defendant sent an electronic update to Experian asking its account

O:\M & O\06-2304-JPO-179.wpd

-6-

in plaintiff's credit file be deleted. Experian deleted defendant's account in plaintiff's credit f ile by or about May 3, 2006. P la in tif f testified she felt humiliated as result of defendant's actions. Specifically, p la in tif f felt humiliated when she told her credit card companies multiple times the debt had b e e n paid, settled in full, and should never have appeared on her credit report; when she was to ld by defendant twice in writing it was going to be removed from her credit reports and it w a s not; when she was unable to put braces on her son's teeth, take care of her kids, obtain lo a n s to send her son to college who then had to join the military and serve in Iraq; in S e p te m b e r 2005 when CSC reported that defendant was still verifying the debt; on November 1 6 , 2005 when she pulled her credit reports and defendant's entry was still there, even though i t had assured her on November 9, 2005 it would be removed with all credit reporting a g e n cie s within forty-eight hours; and in January 2006 when defendant had still not removed its entry with all of the credit reporting agencies. P lain tiff claims the interest rates on several of her personal credit cards greatly incre ase d after defendant's entry appeared on her credit history, and then her credit score w e n t down by fifty-one points once defendant's entry was removed from her credit history. P lain tiff spoke with a representative from one of her credit cards who indicated her rate in c re a se d due to an item between $9,000 and $10,000 on her credit report, which she asserts m u s t have been defendant's entry. Plaintiff had previously paid payments late with different c re d ito rs and had outstanding credit card debt of approximately $33,000.

O:\M & O\06-2304-JPO-179.wpd

-7-

P la in tif f claims she was denied credit by Cypress Financial Corp., Lamar Bowling S u p p ly, First Priority Acceptance, Financial Pacific Leasing, LLC, and Preferred Lease as a result of her account with defendant. Plaintiff admits all of these credit applications were f o r a new scoring system at her bowling alley, Jayhawk Bowl, LLC. O n July 25, 2006, plaintiff filed a complaint alleging defendant, and others who have s in c e been dismissed, violated FCRA (see docs. 1, 145, & 171-73). Plaintiff also asserted a defamation claim against defendant. III. Summary Judgment Standards S u m m a ry judgment is appropriate if the moving party demonstrates there is "no g en u ine issue as to any material fact" and it is "entitled to judgment as a matter of law." 3 In a p p lyin g this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.4 A fact is "material" if, under the a p p lic a b le substantive law, it is "essential to the proper disposition of the claim." 5 An issue o f fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact c o u ld resolve the issue either way." 6 T h e moving party bears the initial burden of demonstrating an absence of a genuine

3

Fed. R. Civ. P. 56(c).

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita E le c . Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
5

4

Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Id. (citing Anderson, 477 U.S. at 248). -8 -

6

O:\M & O\06-2304-JPO-179.wpd

is s u e of material fact and entitlement to judgment as a matter of law.7 In attempting to meet th a t standard, a movant that does not bear the ultimate burden of persuasion at trial need not n e g a te the other party's claim; rather, the movant need simply point out to the court a lack o f evidence for the other party on an essential element of that party's claim.8 "On the other h an d , if the movant has the burden of proof on a claim or defense raised in a summary ju d g m e n t motion, it must show that the undisputed facts establish every element of the claim o r defense." 9 O n c e the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." 1 0 The nonmoving p a rty may not simply rest upon its pleadings to satisfy its burden.1 1 Rather, the nonmoving p a rty must "set forth specific facts that would be admissible in evidence in the event of trial f ro m which a rational trier of fact could find for the nonmovant." 1 2 "To accomplish this, the f a c ts must be identified by reference to affidavits, deposition transcripts, or specific exhibits

7

Id. at 670-71. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Media Servs. Group, Inc. v. Lesso, Inc., 45 F. Supp. 2d 1237, 1239 (D. Kan. 1999).

8

9

Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n.1 (concerning shifting b u rd e n s on summary judgment).
11

10

Anderson, 477 U.S. at 256. Adler, 144 F.3d at 671 (internal quotation omitted). -9 -

12

O:\M & O\06-2304-JPO-179.wpd

in c o rp o ra te d therein." 1 3 F in a lly, the court notes that summary judgment is not a "disfavored procedural s h o rtc u t," rather, it is an important procedure "designed `to secure the just, speedy and inex p en sive determination of every action.'" 1 4 IV . Analysis A. F C R A Liability 1. D u tie s of Furnishers of Information

F C R A was enacted "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and o th e r information in a manner which is fair and equitable to the consumer, with regard to the c o n f id e n tia lity, accuracy, relevancy, and proper utilization of such information." 1 5 "FCRA p la c es distinct obligations on three types of entities: (1) consumer reporting agencies; (2) u s e rs of consumer reports; and (3) furnishers of information to consumer reporting a g e n c i e s . " 1 6 Although FCRA does not define it, courts have defined the term furnisher of in f o rm a tio n "as an entity which transmits information concerning a particular debt owed by

13

Id. Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). 1 5 U.S.C. § 1681(b). A k la g i v. Nationscredit Fin. Servs. Corp., 196 F. Supp. 2d 1186, 1192 (D. Kan.

14

15

16

2 0 0 2 ).
O:\M & O\06-2304-JPO-179.wpd

-1 0 -

a particular consumer to consumer reporting agencies." 1 7 Defendant does not dispute it is a furnisher of information within the meaning under § 1681s-2 of FCRA. S e c tio n 1681s-2 imposes two sets of duties on furnishers of information. First, under § 1681s-2(a), furnishers of information have a general duty to provide accurate information to a consumer reporting agency. Significantly, Congress did not create a private right of a c tio n for violations of § 1681s-2(a).1 8 These duties can only be enforced by governmental a g e n c ie s and officials.1 9 S e c o n d , under § 1681s-2(b), furnishers of information have a duty, after receiving n o tic e from a consumer reporting agency of a dispute by a consumer regarding the c o m p le te n e ss or accuracy of an account, to: (1) conduct an investigation with respect to the disp u ted information; (2) review all relevant information provided by the consumer reporting a g e n cy; (3) report the results of the investigation to the consumer reporting agency; (4) if the in v e stig a tio n finds the information is incomplete or inaccurate, report those results to all o th e r consumer reporting agencies to which it furnished the information and that compile and m a in ta in files on consumers on a nationwide basis; and (5) to promptly modify, delete, or p e rm a n e n tly block the reporting of information to consumer reporting agencies that is

17

Jarrett v. Bank of Am., 421 F. Supp. 2d 1350, 1352 n.1 (D. Kan. 2006).

§ 1681s-2(c)(1) & (d); Lowe v. Surpas Res. Corp., 253 F. Supp. 2d 1209, 1253 (D. K a n . 2003); Aklagi, 196 F. Supp. 2d at 1192. Pinson v. Equifax Credit Info. Servs., Inc., No. 06-CV-162-GKF-SAJ, 2008 WL 9 0 6 2 2 2 , at *2 (N.D. Okla. Mar. 31, 2008).
O:\M & O\06-2304-JPO-179.wpd
19

18

-1 1 -

d is p u te d by a consumer and found to be inaccurate or incomplete or cannot be verified after th e required reinvestigation. T h is second component of § 1681s-2 does create a private cause of action by a c o n su m e r against a furnisher of credit information.2 0 Specifically, a consumer may obtain h e r actual damages, costs of the action, and attorney's fees if a furnisher of information is n e g lig e n t in failing to comply with a requirement of § 1681s-2(b).2 1 FCRA also provides that a consumer may obtain statutory and punitive damages, as well as costs and attorney's fees, a g a in s t a furnisher of information who willfully fails to comply with any requirement of § 1 6 8 1 s - 2 ( b ) .2 2 It is important to keep in mind that the duties of furnishers of information imposed u n d er § 1681s-2(b) are only triggered after the furnisher receives notice of a consumer's d is p u te from a consumer reporting agency.2 3 As alluded to earlier, regardless of which c o n s u m e r reporting agency notified a furnisher of information of a consumer dispute, a f u rn is h e r may have duties related to the other consumer reporting agencies, such as reporting th a t information was found to be incomplete or inaccurate or modifying, deleting, or blocking th e reporting of the information. The court therefore flatly rejects defendant's implied

20

Aklagi, 196 F. Supp. 2d at 1193. § 1681o(a). § 1681(n)(a). P in s o n , 2008 WL 906222, at *3; Aklagi, 196 F. Supp. 2d at 1193. -1 2 -

21

22

23

O:\M & O\06-2304-JPO-179.wpd

a rg u m e n ts that it can only be liable for its response to the credit agency which received p la in tif f 's dispute.2 4 2. S ta tu te of Limitations

A s earlier indicated, plaintiff filed this case on July 25, 2006. Defendant argues that F C R A 's statute of limitations bars all of its conduct from being actionable, except for its S e p te m b e r 6, 2005 response to plaintiff's dispute to CSC. Defendant relies on the current v e rs io n of FCRA's statute of limitations section, 15 U.S.C. § 1681p. Because § 1681p was a m e n d e d in 2003, in the middle of the events surrounding this case, the court will briefly a d d re s s the previous version's applicability. T h e previous version of § 1681p stated that an action must be brought w ith i n two years from the date on which the liability arises, e x c e p t that where a defendant has materially and willfully m is re p r e s e n te d any information required under this title to be d is c lo s e d to an individual and the information so misrepresented is material to the establishment of the defendant's liability to th a t individual under this title, the action may be brought at any tim e within two years after discovery by the individual of the m is r e p re s e n ta tio n .2 5 U n d e r the current § 1681p, an action to enforce liability under FCRA must be brought "two

The court declines to address defendant's argument that it did not have the authority to correct TransUnion credit reports. Under FCRA, defendant may have been required to at le a s t report that information was inaccurate to all consumer reporting agencies to which it f u rn is h e d the information. § 1681s-2(b)(1)(D). Regardless, plaintiff has presented evidence th a t defendant reported inaccuracies to TransUnion regarding other customers. F a ir Credit Reporting Act, Pub. L. No. 91-508, 84 Stat. 1134 (1970) (current version at 15 U.S.C. § 1681p).
O:\M & O\06-2304-JPO-179.wpd
25

24

-1 3 -

ye a rs after the date of discovery by the plaintiff of the violation that is the basis for such lia b ility." 2 6 T h e current version of § 1681p became effective March 31, 2004. The prior version o f § 1681p is applicable to claims that arose prior to March 31, 2004. 2 7 Although both v ersion s include a two-year time limit, the prior version includes only a limited discovery ru le, whereas the current version includes a general discovery rule, i.e., the prior version is m o re restrictive of what conduct can form the basis for plaintiff's claims. In any event, b e c a u se neither party saw fit to address the earlier version of the statute of limitations in their v o lu m in o u s briefing, the court will simply apply the current version of the section to all of d e f en d a n t's conduct, regardless if it occurred before March 31, 2004. B e c au s e plaintiff filed her complaint on July 25, 2006, conduct she discovered since J u ly 25, 2004 may be considered for purposes of plaintiff's FCRA claims, pursuant to the c u rre n t § 1681p. Initially, the court notes that plaintiff previously stated she is making no c laim s based on any conduct prior to her May 2003 settlement with defendant.2 8 D e f en d a n t concedes its September 6, 2005 response to Equifax/CSC's notification

15 U.S.C. § 1681p. Alternatively, the current FCRA section provides the statute of lim itatio n s is five years after the date on which the violation that is the basis for the liability o c c u rs when that date is earlier than two years after the date of discovery. Id. Plaintiff does n o t contend the five-year statute of limitation applies to the case at bar. S e e Miller v. Wells Fargo & Co., Civil Action No. 3:05-CV-42-S, 2008 WL 793683, at *4 (W.D. Ky. Mar. 24, 2008).
28 27

26

D o c . 174, at 4 n.3. -1 4 -

O:\M & O\06-2304-JPO-179.wpd

th a t plaintiff disputed the debt is within the statute of limitations period. Plaintiff lists v a rio u s actions defendant took between July 25, 2004 and July 25, 2006, including that d e f en d a n t verified the debt to Equifax/CSC, failed to conduct a reasonable investigation b e f o re doing so, failed to delete its entry from TransUnion, and failed to send a delete in s tru c tio n to Experian until May 2, 2006. As stated above, once defendant received notice o f plaintiff's dispute to Equifax/CSC, defendant had duties to all consumer reporting a g e n cie s, not just Equifax/CSC. The court finds all of the alleged violations stemming from p lain tiff 's dispute to Equifax/CSC fall within FCRA statute of limitations and therefore are n o t time-barred. Defendant argues plaintiff may not rely on the discovery rule because she was aware o f the alleged misreporting as early as October 2003. Unfortunately, plaintiff fails to address § 1681p's discovery rule much less assert any violations that occurred prior to July 25, 2004 a n d that she first discovered between July 25, 2004 and July 25, 2006. Because plaintiff did n o t dispute defendant's argument that the discovery rule does not apply, the court grants d ef en d an t's motion for summary judgment as to all of its alleged violations occurring before J u ly 25, 2004. As stated above, however, all of defendant's alleged violations stemming f r o m plaintiff's formal dispute to Equifax/CSC fall within FCRA's statute of limitations. 3. P la in tif f 's Claimed Damages

A lth o u g h plaintiff addresses the issue, defendant does not argue it is entitled to ju d g m e n t as a matter of law on the issue of whether it acted negligently. Defendant does,

O:\M & O\06-2304-JPO-179.wpd

-15-

h o w e v e r, seek summary judgment on the basis that plaintiff did not sustain any actual d a m ag e s , barring her claim for negligent noncompliance with FCRA.2 9 D a m a g e s are an element of plaintiff's negligent noncompliance claim and, without e v id e n c e of damages, summary judgment is appropriate.3 0 Attorney's fees and the costs of a n action are recoverable in a negligent noncompliance action only in the event of a " su c c es s f u l action to enforce any liability." 3 1 Plaintiff must therefore first establish actual d a m a g e s sustained to be successful on her negligent noncompliance claim and then be e n t itle d to attorney's fees and costs.3 2 a. N o n -e c o n o m ic Damages

In addition to the economic damages discussed below, plaintiff seeks damages for e m b a rra s s m e n t and humiliation.3 3 Plaintiff withdrew her previous claim of damages for

In a footnote, defendant does recognize that actual damages are not required to prove w illf u l noncompliance with FCRA. See Ramirez v. Midwest Airlines, Inc., 537 F. Supp. 2d 1 1 6 1 , 1168 (D. Kan. 2008) (noting that a showing of actual damages is not required to rec o v er statutory damages under § 1681n(a)(1)(A) for willful noncompliance). J o rd a n v. Equifax Info. Servs., LLC, 410 F. Supp. 2d 1349, 1355-56 (N.D. Ga. 2 0 0 6 ) ; see also McKinley v. CSC Credit Servs., Inc., No. 05-2340 ADM/JJG, 2007 WL 1 4 1 2 5 5 5 , at *6 (D. Minn. May 10, 2007) (granting summary judgment on negligent violation claim where plaintiff proffered insufficient evidence of actual damages).
31 30

29

§ 1681o(a)(2). S e e McKinley, 2007 WL 1412555, at *6.

32

D o c. 174, at 22. Plaintiff also seeks attorney's fees and costs, which alone are in s u f f ic ie n t for her to meet the damages element of her negligent noncompliance claim, as e x p la in e d above. Additionally, plaintiff seeks statutory and punitive damages in conjunction w ith her willful noncompliance claim.
O:\M & O\06-2304-JPO-179.wpd

33

-1 6 -

m e n ta l and emotional pain and anguish.3 4 Defendant argues plaintiff has not met her burden fo r recovering humiliation damages. The court assumes defendant is suggesting plaintiff's e v i d e n c e consists of conclusory statements. A c tu a l damages under FCRA may include humiliation and embarrassment, even if the c o n su m e r suffered no out-of-pocket losses.3 5 A plaintiff must present evidence beyond c o n c lu so ry allegations;3 6 however, a plaintiff's own testimony is sufficient evidence to e s ta b l is h emotional damages.3 7 T h e court rejects defendant's argument that plaintiff's evidence consists of merely c o n c lu s o ry statements. Indeed, plaintiff set forth many statements she made at her deposition re g a rd in g her feeling humiliated in various ways, including telling creditors multiple times th e debt had been paid, being told by defendant multiple times the debt would be removed w h e n it was not even several months later, and being unable to care for her children. The c o u rt denies defendant's motion for summary judgment on the issue of plaintiff's claim for d a m a g e s based on humiliation and embarrassment. b. P e rs o n a l Economic Damages

D e f en d a n t argues that plaintiff has not shown the increases in the interest rates on her

34

Doc. 154. S te v en s o n v. TRW Inc., 987 F.2d 288, 296 (5th Cir. 1993). C o le v. Am. Family Mut. Ins. Co., 410 F. Supp. 2d 1020, 1025 (D. Kan. 2006).

35

36

S e e Stevenson, 987 F.2d at 297; King v. Asset Acceptance, LLC, 452 F. Supp. 2d 1 2 7 2 , 1281 (N.D. Ga. 2006).
O:\M & O\06-2304-JPO-179.wpd

37

-1 7 -

p e rs o n a l credit cards were based upon defendant's entry on her credit report. Specifically, d ef en d an t argues plaintiff has presented no evidence the increases were based on defendant's e n try, as opposed to the fact she had made late payments previously and had an outstanding c re d it card debt of approximately $33,000. Further, defendant argues that plaintiff has no p e rso n a l knowledge defendant's entry was a factor in the decisions and may not speculate a s to the reasons. Defendant also argues plaintiff's deposition testimony regarding the re a so n s a representative with one of the credit companies gave her is hearsay, which may not b e considered on a motion for summary judgment. Plaintiff fails to even address her claim for economic damages based on increased in te re st rates on personal credit cards in the analysis section of her summary judgment brief. P la in tif f did set forth facts that her interest rate increased after defendant's entry appeared o n her credit report and her credit score went up after the entry was removed. As mentioned a b o v e , plaintiff also relies on a statement by a representative of a credit card company giving th e reason for the interest rate increase. F o r summary judgment purposes, a "plaintiff need only produce evidence from which a reasonable trier of fact could infer that the inaccurate items on the plaintiff's credit report w e re a substantial factor in the potential creditors' decisions to deny his applications for c r e d it." 3 8 The plaintiff in a FCRA case need not eliminate the possibility that other factors,

Frost v. Experian, No. 98 CIV. 2106 JGK JCP, 1999 WL 287373, at *8 (S.D.N.Y. M ay 6, 1999).
O:\M & O\06-2304-JPO-179.wpd

38

-1 8 -

in c lu d in g correct adverse entries, also entered into the decision.3 9 But "mere speculation is n o t evidence of damages." 4 0 O n e court found that a FCRA plaintiff, who was a mortgage loan officer, had in s u f f ic ie n t evidence to avoid summary judgment on his claim for damages due to a higher interest rate, when he only provided his testimony about discussions with the creditor's re p re se n ta tiv e s and testimony from his co-worker and himself.4 1 There, the plaintiff applied f o r a mortgage while in the midst of his dispute with a credit reporting agency and claimed th a t, if the credit entry at issue had not been on his account, he would have received a lower in te re st rate.4 2 The court noted the plaintiff did not have personal knowledge that the higher in te re st rate was due to the credit entry at issue and found his evidence too speculative.4 3 P la in tif f did not address defendant's argument that the credit card representative's s ta te m e n t is hearsay. Of course, hearsay testimony may not be considered in ruling on a m o tio n for summary judgment.4 4 The court will therefore not consider plaintiff's deposition te stim o n y regarding what a credit card representative told her about the interest rate increase.

39

Id. M c K in le y , 2007 WL 1412555, at *4. Id . Id . at *2. Id . at *4.

40

41

42

43

S ta r r v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995); Apodaca v. D is c o v e r Fin. Servs., 417 F. Supp. 2d 1220, 1226 (D.N.M. 2006).
O:\M & O\06-2304-JPO-179.wpd

44

-1 9 -

P la in tif f 's evidence that defendant's entry on her credit report caused her interest rates o n her personal credit cards to increase is very weak. The court, however, finds plaintiff's e v i d e n c e of multiple rates increasing relatively soon after the entry was made on her reports, a n d the subsequent increase in her credit score when it was removed, is sufficient evidence f r o m which a reasonable trier of fact could infer the defendant's entry on plaintiff's credit r e p o r t was a substantial factor in the creditors' decisions to increase plaintiff's interest rates. A lth o u g h plaintiff admits she had made late credit payments and she had credit card d e b t of approximately $33,000, the court finds she need not eliminate the possibility that o ther factors, including correct adverse entries, also entered into the decision. The court f in d s that, given plaintiff's multiple interest rate increases, and the timing of the increases, p la in tif f 's evidence is distinguishable from the evidence presented by the plaintiff in the M c K in le y case cited above. The court therefore denies defendant's motion for summary ju d g m e n t on the issue of plaintiff's claim for damages related to increased interest rates on h e r personal credit cards. c. B u s in e ss Economic Damages

P la in tif f seeks damages to her businesses relating to denials of credit for a bowling a lle y scoring system and subsequent lost sales and repair costs to her current scoring system. D e f en d a n t requests the court grant summary judgment on plaintiff's claim for damages r e la te d to her businesses, including from denials of credit for business purposes, lost sales, a n d repair costs. Plaintiff interprets defendant's argument as a contention that she cannot

O:\M & O\06-2304-JPO-179.wpd

-20-

re c o v er any damages under FCRA because she operates a business. Notably, defendant does n o t argue plaintiff cannot recover any damages simply because she is a sole proprietor. In s te a d , defendant merely argues that plaintiff may not recover damages related to her b u s in e s s e s . P la in tif f argues sole proprietors may maintain actions under FCRA for violations of th e statute and damages they have sustained individually. Defendant does not dispute this.4 5 P la in tif f failed to otherwise address her claim for business damages, and the court could find that she does not contest defendant's argument regarding business damages. However, b e c a u se plaintiff may be attempting to argue by implication that damages related to her sole p rop rietorsh ip are damages sustained individually, the court will address defendant's a rg u m e n t. F C R A applies only to "consumer reports." The statute defines consumer reports as: a n y written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit w o rth in e ss , credit standing, credit capacity, character, general

In arguing plaintiff is not entitled to recover damages to her business, defendant s ta te s plaintiff's account with it was related to Tilley Sports Apparel, a business venture, rathe r than plaintiff's personal uses. However, it fails to argue how the commercial nature o f the original debt relates to the damages plaintiff may seek. A lth o u g h damages related to commercial transactions are not recoverable, it does not f o llo w that just because the information at issue (i.e., plaintiff's alleged debt to defendant) w a s regarding a commercial transaction, defendant is somehow insulated from all liability u n d e r FCRA with regard to that transaction. Johnson v. Wells Fargo Home Mortgage, Inc. (J o h n so n I), No. 3:05-CV-0321-RAM, 2007 WL 3226153, at *8 (D. Nev. Oct. 29, 2007). In deed, "[s]ubsequent credit reports issued for `consumer purposes' containing the inaccurate in f o rm a tio n arguably do fall under the coverage of the FCRA." Id.
O:\M & O\06-2304-JPO-179.wpd

45

-2 1 -

re p u tatio n , personal characteristics, or mode of living which is u s e d or expected to be used or collected in whole or in part for th e purpose of serving as a factor in establishing the consumer's e lig ib ility for (A) credit or insurance to be used primarily for p e rs o n a l, family, or household purposes; (B) employment p u rp o s e s ; or (C) any other purpose authorized under section 1 6 8 1 b of this title.46 A lth o u g h not explicit, defendant seems to argue that any credit reports furnished to potential c re d ito rs when plaintiff was seeking credit for business purposes were not consumer reports w ith i n the meaning of FCRA, and therefore she may not obtain damages to her businesses. O n e court explained the necessity of a consumer report to a FCRA plaintiff's ability to recover economic damages claims as follows: [ T ] h e court turns to Plaintiff's alleged damages resulting from a third-party's decision to deny Plaintiff credit, increase his in te re st rates and cancel or reduce his existing lines of credit due to Defendant's erroneous reporting. In order to be recoverable a s actual damages under the FCRA, those decisions must have b e e n made based on the erroneous information reported by D e f en d a n t. In order to show the decisions were made based on th a t erroneous information, the decision-makers must n e c es s a rily have had knowledge of the erroneous information. I n order to acquire such knowledge, the decision-makers must h a v e obtained a credit report containing the erroneous in f o rm a tio n . And, in order to be subject to the FCRA, the credit re p o rt obtained must have been a consumer report as defined u n d e r the FCRA. Thus, a consumer report is vital to Plaintiff's c laim . Without the consumer report, a plaintiff would e ss e n tia lly be able to claim every undesirable financial event he e n c o u n ter e d since the defendant's violation without actually p ro v in g the event occurred because of defendant's violation, ra th e r than due to some other reason. Accordingly, the

46

15 U.S.C. § 1681a(d)(1). -2 2 -

O:\M & O\06-2304-JPO-179.wpd

d e f in itio n of a consumer report is crucial because it controls the F C R A 's applicability.4 7 I n determining whether a particular report is a consumer report, some courts have limited c o n sid e r a tio n to examining the purpose for which a particular report is requested by the re p o rt's user. Other courts have applied FCRA more broadly, focusing on the purpose for w h i c h the credit report was sought and the purpose for which the credit reporting agency b e lie v e d it was collecting the information.4 8 H e re , plaintiff does not dispute the denials of credit related to her bowling alley s c o rin g system and subsequent lost sales and repair costs were business and commercial tra n sa c tio n s .4 9 She also does not allege a consumer report was involved in any of the tran sac tio n s related to credit for the scoring system, either because the purpose of the report w a s consumer in nature or that the credit reporting agency issuing the report believed it was c o l le c tin g information for other than business or commercial purposes.5 0

Johnson v. Wells Fargo Home Mortgage, Inc. (Johnson II), 558 F. Supp. 2d 1114, 1 1 2 3 (D. Nev. 2008). Id . at 1123-24 (citing cases); Breed v. Nationwide Ins. Co., No. 3:05CV-547-H, 2007 W L 1231558, at *1-*2 (W.D. Ky. Apr. 24, 2007). C f. Apodaca, 417 F. Supp. 2d at 1228 (finding an issue of fact existed as to whether th e plaintiff applied for a credit card in her capacity as a consumer or as an agent for her or h er husband's business). C f. Johnson II, 558 F. Supp. 2d at 1127 (analyzing plaintiff's claimed business d a m a g e s because, although plaintiff did not present evidence a consumer report was used in th e transactions, defendant attached evidence that consumer reports may have been used in ce rtain transactions).
O:\M & O\06-2304-JPO-179.wpd
50 49 48

47

-2 3 -

" [ S ]e v e ra l courts have held that where the purpose of a plaintiff's credit application w a s to secure credit for business purposes, as opposed to personal, family or household p u rp o se s, the reporting agency's conduct was not covered by the [FCRA]." 5 1 One court, h o w e v e r, withdrew its previous order dismissing the plaintiff's FCRA claims for actual d a m a g e s because such damages arose from commercial transactions. The court noted most c irc u it s suggest the expectations of the credit reporting agency at the time it prepared the c re d it reports and at the time it collected the information contained in the reports should be co n side red , and no evidence had been presented as to those prongs. The court therefore a llo w e d the plaintiff to pursue his FCRA claims "at least through trial." 5 2 T h e court respectfully disagrees with the Breed Court's cautious approach to wait u n til trial to see if the plaintiff can present any evidence of a consumer report. Here, plaintiff h a s provided no evidence a consumer report was involved in her attempts to obtain credit for th e scoring system. The court agrees with defendant that plaintiff has not set forth any s p e c if ic facts showing there is a genuine issue for trial regarding the existence of a consumer re p o rt in conjunction with plaintiff's attempts to obtain business credit. O n e plaintiff attempting to seek business damages argued that because his businesses w e re sole proprietorships, his case was distinguishable from cases holding plaintiffs could Natale v. TRW, Inc., No. C 97-3661 CRB, 1999 WL 179678, at *3 (N.D. Cal. Mar. 3 0 , 1999) (citing cases); see also Apodaca, 417 F. Supp. 2d at 1228; Frost v. Experian, No. 9 8 CIV. 2106 JGK JCP, 1999 WL 287373, at *5 (S.D.N.Y. May 6, 1999); Yeager v. TRW, In c ., 961 F. Supp. 161, 162-63 (E.D. Tex. 1997).
52 51

B r e e d , 2007 WL 1231558, at *2. -2 4 -

O:\M & O\06-2304-JPO-179.wpd

n o t seek business damages.5 3 Although plaintiff does not explicitly make this argument, T ille y Sports Apparel is a sole proprietorship. The court holds that the form of ownership o f plaintiff's business is immaterial.5 4 Further, plaintiff's bowling alley appears to be a lim ite d liability company. "Because the FCRA only protects individual consumers, losses to [p]laintiff's limited liability compan[y] are not recoverable under the FCRA." 5 5 T h e court therefore grants defendant summary judgment on plaintiff's claim for d a m a g e s from the denials of credit for business purposes, including lost sales and repair co sts. As stated above, the court denies defendant's motion on the issue of plaintiff's c la im e d emotional damages and damages relating to her personal credit cards. 4. E v i d e n c e of Willfulness

In its memorandum in support of the instant motion, defendant seeks summary jud g m en t on plaintiff's defamation claim on the basis it did not act willfully and therefore p lain tiff 's defamation claim is preempted by FCRA. This argument is addressed below. In m a k in g this argument, defendant states that no evidence shows it acted maliciously or with w illf u l intent to injure plaintiff. Defendant then argues in a footnote that plaintiff's claim for w illf u l noncompliance with FCRA is also barred by undisputed evidence. Plaintiff does a d d re ss defendant's argument that it did not act willfully. In its reply, defendant then

53

Natale, 1999 WL 179678, at *4. Id . Jo h n so n II, 558 F. Supp. 2d at 1132. -2 5 -

54

55

O:\M & O\06-2304-JPO-179.wpd

e x p lic itly argues that plaintiff has no evidence to allow a jury to consider a willful violation o f FCRA and punitive damages. T h e phrase "willfully fails to comply" in § 1681n(a) includes reckless violations of F C R A , as well as knowing violations.5 6 Plaintiff claims defendant willfully violated FCRA b e c a u se it only looked at its Oracle system, which it had failed to update, did not follow its a lleg e d procedure, and verified the debt despite its knowledge of the settlement. D e f en d a n t argues it did not willfully violate FCRA because plaintiff did not contact d e f en d a n t about the debt being reported until September 24, 2005. Plaintiff states she c o n ta c te d Capstone in November 2003 about defendant's credit entry against her. Plaintiff a rg u e s that Capstone was defendant's agent and therefore the knowledge of Capstone was th e knowledge of its principal, defendant. Defendant argues Capstone was an independent c o n tra c to r and plaintiff's notice to Capstone did not equate notice to defendant. For the r e a s o n s stated below, the court need not decide the issue of whether Capstone was d e f e n d a n t's agent. C a p sto n e e-mailed defendant in November 2003 regarding the debt appearing on p la in tif f 's credit reports. Plaintiff argues this created actual knowledge on the part of d e f en d a n t that the debt was being reported to the credit agencies. Further, plaintiff notes d e f en d a n t had approved the settlement before she paid it. In addition to claiming defendant

Safeco Ins. Co. of Am. v. Burr, 127 S. Ct. 2201, 2208-09 (2007); Ramirez v. Midwest A ir lin e s, Inc., 537 F. Supp. 2d 1161, 1169 (D. Kan. 2008).
O:\M & O\06-2304-JPO-179.wpd

56

-2 6 -

f a ile d to fully reinvestigate the debt or follow its own practices, plaintiff argues defendant f a ile d to consider the information available to it, including its knowledge of the settlement a n d that the debt was appearing on plaintiff's credit reports. Plaintiff therefore concludes d e f en d a n t acted willfully by recklessly conducting its reinvestigation. A lth o u g h defendant admits it learned of the settlement in the middle of November 2 0 0 3 ,5 7 defendant fails to even address plaintiff's argument that the approval of the s e ttle m e n t and the notice defendant received from Capstone's e-mail form the basis of a w illf u l violation. Defendant argues that the most plaintiff can show is defendant could have u p d a te d its Oracle system sooner. Defendant concludes this is an insufficient showing of w illf u ln e s s as a matter of law. T h e court rejects defendant's argument. Defendant's approval of the settlement of the d e b t and its receipt of the e-mail from Capstone create a genuine issue of material fact as to w h a t information defendant had available when it reinvestigated the debt in 2005. It is th e re f o re for a jury to decide whether defendant recklessly conducted its reinvestigation, in w illf u l violation of FCRA. B. D e f a m a tio n Claim 1. S ta tu te of Limitations

Defendant argues that only one of its contacts with the credit reporting agencies can f o rm the basis of plaintiff's defamation claim, because the other contacts are barred by the

57

Doc. 193, at 12. -2 7 -

O:\M & O\06-2304-JPO-179.wpd

s ta tu te of limitations. Defendant only cites to the one-year Kansas statute of limitation for l i b e l and slander actions5 8 and ignores the choice of law issue. In the pretrial order, the p a r tie s agreed plaintiff's common law defamation claim was governed by Georgia, Kansas, o r Maryland law.5 9 Fortunately, like Kansas, both Georgia and Maryland have one-year s ta tu te of limitations for defamation actions,6 0 and the court does not need to address the c h o ic e of law issue. D e f en d a n t also did not address when the statute of limitations begins in any of the th re e states. The one-year statute of limitations in Kansas and Georgia begins when the alleg ed defamatory statement is published.6 1 The Maryland statute of limitations, however, b eg ins when the plaintiff knows or reasonably should know of the alleged defamatory sta tem e n t.62 B e c au s e plaintiff filed the instant case on July 25, 2006, defendant states no conduct o c c u rrin g before July 25, 2005 can form the basis for plaintiff's defamation claim. D e f e n d a n t concludes the only contact it had with the credit reporting agencies during this

58

K.S.A. § 60-514(a). D o c. 174, at 2, para. 3(d). G a . Code Ann. § 9-3-33; Md. Code Ann., Cts. & Jud. Proc. § 5-105.

59

60

G e o la s v. Boy Scouts of Am., 23 F. Supp. 2d 1254, 1258 (D. Kan. 1998); Clark v. C la r k , 969 F. Supp. 1319, 1327 (S.D. Ga. 1997). K in g v. Marriot Int'l, Inc., 195 F. Supp. 2d 720, 728 (D. Md. 2002); Shepard v. N a b b , 581 A.2d 839, 843-44 (Md. Ct. Spec. App. 1990).
O:\M & O\06-2304-JPO-179.wpd
62

61

-2 8 -

o n e -ye a r period was its September 6, 2005 response to Equifax/CSC's notification that p la in tif f disputed the debt. This response included the debt information was being reported c o rr e c tly and that the debt was "charged to profit and loss." P la in tif f failed to even address the statute of limitations for her defamation claim. P la in t if f therefore did not dispute the applicability of a one-year statute of limitations. P la in tif f also failed to set forth any other false statement defendant made to the credit re p o rtin g agencies between July 25, 2005 and July 25, 2006, or any false statement defendant m a d e prior to July 25, 2005 that she first discovered or should have discovered between July 2 5 , 2005 and July 25, 2006. The court therefore finds the only communication defendant had w ith the credit reporting agencies that can form a basis for plaintiff's defamation claim is its S e p tem b e r 6, 2005 response to Equifax/CSC's notification that plaintiff disputed the debt. T o the extent plaintiff's defamation claim is based on any other statement defendant made to the credit reporting agencies, it is barred by the statute of limitations. 2. P re e m p tio n by FCRA

D e f en d a n t argues plaintiff's defamation claim is preempted by FCRA. Although d e f e n d a n t did not throughly address both provisions, the statute contains two separate p re e m p tio n provisions that arguably apply in this case: (1) § 1681t(b)(1)(F), which provides f u rn is h e rs of credit information with absolute immunity; and (2) § 1681h(e), which provides f u rn is h e rs of credit information with qualified immunity. Plaintiff failed to even mention § 1 6 8 1 t(b )(1 )(F ), let alone address its applicability to her defamation claim.

O:\M & O\06-2304-JPO-179.wpd

-29-

S ec tio n 1681t(b)(1)(F), the absolute immunity provision, provides that "[n]o re q u ire m e n t or prohibition may be imposed under the laws of any State­with respect to any s u b je c t matter regulated under . . . section 1681s-2 of this title, relating to the responsibilities o f persons who furnish information to consumer reporting agencies." Section 1681h(e), the q u a lif ie d immunity provision, states: n o consumer may bring any action or proceeding in the nature o f defamation, invasion of privacy, or negligence with respect to the reporting of information against . . . any person who f u rn is h e s information to a consumer reporting agency . . . except a s to false information furnished with malice or willful intent to in ju re such consumer. C o u rts are split on how to reconcile FCRA's two immunity provisions and follow t h re e distinct approaches.6 3 Neither the Tenth Circuit nor any other circuit court has a d d re ss e d the issue.6 4 Notably, plaintiff failed to even address the applicability of §

1 6 8 1 t(b )(1 )(F ) , although defendant briefly addressed it. Regardless, the court will follow the u n d e r s ig n e d ' s previous opinion reconciling FCRA's two immunity provisions. P u r s u a n t to § 1681t(b)(1)(F), to the extent defendant's conduct falls within the " su b jec t matter regulated under . . . section 1681s-2," plaintiff's state law defamation claim

See Greene v. Capital One Bank, No. 2:07-CV-687 TS, 2008 WL 1858882, at *5-*6 (D . Utah Apr. 23, 2008); Jarrett v. Bank of Am., 421 F. Supp. 2d 1350, 1354 n.4 (D. Kan. 2 0 0 6 ); Barnhill v. Bank of Am., N.A., 378 F. Supp. 2d 696, 699-703 (D.S.C. 2005). H o lla n d v. GMAC Mortgage Corp., No. 03-2666, 2006 WL 1133224, at *11-*12 (D. K a n . Apr. 26, 2006); see also Lofton-Taylor v. Verizon Wireless, 262 F. App'x 999, 1002-03 (1 1 th Cir. 2008) (declining to decide the issue); Beyer v. Firstar Bank N.A., 447 F.3d 1106, 1 1 0 8 (8th Cir. 2006) (same).
O:\M & O\06-2304-JPO-179.wpd
64

63

-3 0 -

a g a in st defendant is preempted. Defendant's conduct must be broken down into two discrete tim e periods: (1) the time period between plaintiff's May 2003 settlement of the debt and w h e n defendant first received notice of plaintiff's dispute to CSC; and (2) the period after d e f e n d a n t received notice of plaintiff's dispute to CSC.6 5 Conduct falling in the second time p e rio d is regulated by § 1681s-2(b)(1), and is therefore completely preempted by § 1 6 8 1 t (b ) ( 1 ) ( F ) .6 6 D e fend an t's only communication not barred by the statute of limitations occurred after it received notice of plaintiff's dispute and therefore falls within the second time period. A c c o rd in g ly, any state law defamation claim predicated on defendant furnishing inaccurate in f o rm a tio n to a consumer reporting agency after it received notice of plaintiff's dispute to C S C is completely preempted by § 1681t(B)(1)(F). Because the statute of limitations barred a n y defamation claims based on defendant's other communications to the consumer reporting ag en cies, the court need not address the applicability of § 1681h(e) and whether defendant's co n d u ct was willful. The court therefore grants defendant summary judgment on plaintiff's d e f a m a tio n claim. V . Order In consideration of the foregoing, IT IS HEREBY ORDERED:
65

See Aklagi v. Nationscredit Fin. Servs. Corp., 196 F. Supp. 2d 1186, 1194 (D. Kan.

2 0 0 2 ).
66

S e e id. at 1194-95. -3 1 -

O:\M & O\06-2304-JPO-179.wpd

1.

D e f e n d a n t's motion for summary judgment (doc. 179) is granted in part and

d en ied in part. Specifically, defendant's motion is granted with respect to plaintiff's d e f am a tio n claim. With respect to plaintiff's claims for negligent and willful noncompliance w ith FCRA, defendant's motion is granted only as to the alleged violations that are barred b y the statute of limitations and to the extent plaintiff seeks damages related to her b u s in e ss e s. In all other respects, defendant's motion is denied. 2. A s discussed during the informal telephone status conference among counsel

a n d the court on February 27, 2009, this case is now specially set for jury trial on May 5, 2 0 0 9 , at 9:00 a.m., with an estimated trial time of 2-3 days. The court will conduct a limine a n d status conference on May 4, 2009, at 3:00 p.m. See doc. 199. 3. M c C a m ish . 4. P la in tif f did not supplement her economic damages, as required by the pretrial T h e parties confirmed they unsuccessfully mediated this case with Warren

o rd e r (doc. 174, at 22 n.10), and is therefore not seeking more than $111,652,97 in economic d am ag es. As stated above, however, plaintiff may not recover any damages related to her b u s in e s s e s . Defendant expects to file a motion in limine precluding plaintiff from presenting e v i d e n c e at trial of damages related to her businesses. 5. 6. T h e parties have confirmed that neither party has any expert witnesses. T h e May 2, 2008 deadline in paragraph 4(b) of the pretrial order for the parties

to file business records stipulations is extended to April 2, 2009.

O:\M & O\06-2304-JPO-179.wpd

-32-

7.

T h e deadline in paragraph 18(d)(2) of the pretrial order for the parties to file

th e ir jury instructions 6 7 is amended to April 14, 2009. Any objections to proposed jury in s tru c tio n s shall be filed no later than April 21, 2009. D a te d this 24th day of March, 2009, at Kansas City, Kansas.

s/James P. O'Hara James P. O'Hara U .S . Magistrate Judge

Without limitation of the specific language in the pretrial order, counsel are re m in d e d that proposed jury instructions must be submitted in compliance with Fed. R. Civ. P . 51 and D. Kan. Rule 51.1. Under D. Kan. Rule 51.1, the parties and the attorneys have the jo in t responsibility to attempt to submit one agreed set of preliminary and final instructions th a t specifically focuses on the parties' factual contentions, the controverted essential e le m e n ts of any claims or defenses, damages, and any other instructions unique to this case. In the event of disagreement, each party shall submit its own proposed instructions with a b rie f explanation, including legal authority as to why its proposed instruction is appropriate, o r why its opponent's proposed instruction is inappropriate, or both.
O:\M & O\06-2304-JPO-179.wpd

67

-33-