Bickley v. Dish Network L.L.C.

Filing 68

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 5/7/13 - Plaintiff Gregory Bickleys 57 Motion to Reconsider is DENIED. cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:10-CV-00678-H

GREGORY BICKLEY,

PLAINTIFF

V.
EQUIFAX INFORMATION SERVICES, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff, Gregory Bickley, brought suit seeking relief for injuries caused by Defendants,
Dish Network LLC (“Dish Network”) and Equifax Information Services, LLC (“Equifax”), when
one or both of these entities allegedly accessed Bickley’s credit report. After a period of discovery,
Dish Network filed a motion for summary judgment as to Counts One, Two and Six of Bickley’s
amended complaint. ECF No. 38. After the parties fully briefed the motion, the Court sustained
Dish Network’s motion and dismissed all claims against it on November 2, 2012 (“November
Order”). ECF No. 56. Bickley now moves for reconsideration of that order on the basis of new
evidence and the Court’s clear error. For the reasons stated herein, the Court denies Bickley’s
motion.
I.
The facts are undisputed. On October 7, 2009, an unknown person called Dish Network’s
independent, non-exclusive third-party retailer, American Satellite, in an attempt to procure Dish
Network services. At some point in the conversation with the American Satellite representative, the
caller provided the name Crgringina Dickley, or some variation thereof, and Bickley’s social
security number as his or her personal information. Using Dish Network’s electronic interface, the

American Satellite representative provided Dish Network’s credit reporting agencies with this
information in an attempt to perform a credit check. The information first went to Equifax, which
returned a “no hit” response. A “no hit” response means that the credit reporting agency could not
find a confident match between the identifiers the caller gave and any person in their database.
Through a waterfall process, the system then sent the caller’s information to two other credit
reporting agencies to see if the identifiers matched an individual in their databases. The secondary
and tertiary reporting agencies also provided “no hit” responses.
On October 20, 2009, Bickley accessed his credit report and noticed that Dish Network made
an inquiry into his credit report. Dish Network notified Bickley that he had been the victim of
identity theft. Nearly a year later, on November 3, 2010, Bickley filed suit. Bickley alleged that
Dish Network specifically engaged in willful and negligent noncompliance with the Fair Credit
Reporting Act (“FCRA”), pursuant to 15 U.S.C. § 1681n and o, respectively.1 The Court found that
Dish Network did not violate either of these provisions.
A party may move the Court to reconsider a judgment or order pursuant to Fed. R. Civ. P.
59(e). The Court will grant relief pursuant to Rule 59(e) if “there is a clear error of law, newly
discovered evidence, an intervening change in controlling law, or to prevent manifest injustice.”
GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (internal citations
omitted). Bickley advances two arguments as to why the Court should grant his motion: 1) because
the Court exhibited a clear error of law when it prematurely and erroneously determined that Dish
Network had a permissible purpose when it accessed Bickley’s information, and 2) because new

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Bickley’s amended complaint also contained a claim for intentional infliction of emotional distress against Dish
Network, which the Court summarily dismissed in the November Order. Bickley does not attempt to resurrect this
claim in the present motion, and therefore the claim remains dismissed.

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evidence arose from Equifax undermining the Court’s conclusions. The Court will address both
grounds for Bickley’s motion.
A.
To constitute newly discovered evidence for purposes of the a motion to reconsider, the
evidence must have been previously unavailable. GenCorp, Inc., 178 F.3d at 834. Bickley argues
that one of Equifax’s answers to an interrogatory constitutes new evidence. In this answer, Equifax
states, inter alia, “Dish Network then requested Equifax to provide it with the consumer report
containing the social security number that Dish Network had provided to Equifax. Equifax provided
Dish Network with a copy of Plaintiff’s credit file because the file contained a matching social
security number and address.” ECF No. 64. Without going into more detail as to the context
surrounding this Dish Network request, this interrogatory alone is vague and lacks probative value
sufficient to rise to the level of evidence sufficient to warrant reconsideration.2
Moreover, it is unlikely that this evidence can be considered new. In fact, Dish Network
contends that the Court actually addressed this evidence in its November Order. Dish Network
argues that it requested Bickely’s EchoStar Risk score, information received from Equifax that Dish
Network kept in a password protected database, during the discovery process for this case. If so,
the Court previously discussed this evidence at length and deemed it irrelevant. ECF No. 56.3
Bickley makes no argument that this conclusion was false, except to say that Dish Network’s
2

In the event Bickley can present more concrete evidence to support his position that Dish Network accessed his
consumer report after receiving the “no hit” response but before discovery for this case, and not under the
circumstances described in the remainder of this Section, the Court will entertain a motion to reconsider on that
ground.
3
The Court stated, “While the ‘Echostar Risk’ number may be a consumer report under the FCRA, DISH Network
asserts that it only accessed the audit trial and uncovered the Echostar Risk number for the purposes of providing its
vice president with information for her deposition for this lawsuit. Plaintiff does not contest that DISH Network
only accessed this audit trail the day before the deposition . . . . Therefore, the Echostar Risk number is irrelevant to
this issue.” ECF No. 56, at 7-8.

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understanding of Equifax’s answer is absurd without further discussion. Therefore, this evidence
cannot be considered new.
If Dish Network is incorrect in surmising the context surrounding Equifax’s interrogatory
answer, the Court does not consider the evidence new for another reason: it was previously
available. Evidence that Dish Network accessed Bickley’s credit report at some point after the 2009
imposter phone call to American Satellite, and before Bickley filed this case, existed prior to and
during the period for briefing the motion for summary judgment. That Bickley contends he needed
more time to conduct discovery against another defendant to uncover this information is immaterial
to the present motion. The Court is under no obligation to wait for the parties to signal their
readiness for the Court to rule on motions that are properly filed and fully briefed within the
deadlines established by the Court. Any accusation that the Court’s November Order was premature
is therefore inapposite. The Court granted Bickley’s motion for extension of time to file a response
once, and if Bickley needed more time to engage in discovery, he could have so moved the Court.

Accordingly, this evidence fails to constitute new evidence sufficient to warrant
reconsideration of the Court’s November Order for three reasons: (1) Equifax’s vague answer to an
interrogatory is not substantive and probative enough to constitute evidence sufficient to warrant
reconsideration; (2) the Court already discussed the evidence in the November Order, and/or (3) the
evidence was previously available. The Court will not sustain Bickley’s motion on this ground.
B.
Bickley next argues that the Court committed clear error when it held that Dish Network
showed the absence of any genuine issue of material fact as to its legitimate business need for the

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credit report, such that Dish Network established it had a permissible purpose for accessing the
information it received. To maintain a claim for improper use or acquisition of a credit report under
the FCRA, the plaintiff must show (a) that the defendant used or obtained (b) a credit report, as
defined within the statute, (c) without a permissible statutory purpose. Godby v. Wells Fargo Bank,
N.A., 599 F. Supp. 2d 934, 937 (S.D. Ohio 2008). As a threshold matter, the Court based its ruling
on two failures, not just Bickley’s evidentiary failures as to the permissible purpose prong of the
FCRA claim.4 The Court also sustained Dish Network’s motion for summary judgment because
Bickley failed to show enough evidence as to the second element, that the information Dish Network
received was a consumer report under the FCRA.
The Court found that Dish Network received three types of information pertinent to this case:
(1) the Echostar Risk number that the Court found irrelevant; (2) the “no hit” response that the Court
found did not constitute a consumer report under the FCRA; and (3) the “header information” that
the Court also found was not a consumer report. Bickley provided no evidence to the contrary in
its opposition to Dish Network’s motion for summary judgment. Similarly, Bickley offers no
argument or evidence to show that this information constituted a consumer report in its motion for
reconsideration and subsequent reply. Bickley does not even address this element. For that reason
alone, the Court’s analysis could stop here. The Court did not commit clear error in holding that
Bickley’s FCRA claims failed.
With the utmost caution, the Court continues in its analysis only to show that its second
reason for sustaining the summary judgment motion contained no clear error. The Court found that

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In the November Order, the Court did not discuss in any detail the first element, whether Dish Network used or
obtained the consumer report, because the Court found that if Bickley showed there was a credit report, he produced
enough evidence to submit the question of whether Dish Network used or obtained the credit report to the jury.

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American Satellite accessed Bickley’s information for a legitimate business need, which is a
permissible purpose under the FCRA. The articulated legitimate business need was to confirm the
identity of the caller and determine the caller’s creditworthiness in connection with assessing
whether the caller is qualified to receive Dish Network services. Bickley’s argument that this
determination was clearly erroneous is unpersuasive.
Permissible purposes is defined in 15 U.S.C. § 1681b(a). See generally Smith v. Bob Smith
Chevrolet, Inc., 275 F. Supp. 2d 808, 816-17 (W.D. Ky. 2003)(discussing the definition of
permissible purpose, but not in the context of an imposter or identity thief). This provision defines
permissible purposes for any consumer reporting agency furnishing a consumer report. Here, the
operative actor is not a consumer reporting agency as defined within the FCRA, and Dish Network
did not furnish the consumer report to any other entity or person. However, 15 U.S.C. §1681n and
§1681o, the provisions under which Bickley brings his claims, establishes causes of action for
entities wilfully or negligently obtaining consumer reports under false pretenses or without a
permissible purpose. Under this provision, an entity obtaining a consumer report must do so within
the confines of the § 1681b(a) definition for permissible purposes. “This is because a consumer
reporting agency can legally issue a report only for the purposes listed in § 1681b. If the agency is
complying with the statute, then a user cannot utilize an account with a consumer reporting agency
to obtain consumer information for a purpose not permitted by § 1681b without using a false
pretense.” Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir. 1978).
In the November Order, the Court correctly found that Dish Network’s credit inquiry was
made for a permissible purpose under § 1681b(a)(3)(F). The Court relied on Ewing v. Wells Fargo
Bank, 2012 WL 1844807, *4 (D. Ariz. May 21, 2012) in the November Order. In Ewing, the Court

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found that if the defendant made a credit inquiry because someone used the plaintiff’s identity to
apply for a credit transaction with the defendant, the defendant “might have had a legitimate reason
for pulling Plaintiff’s credit report.” Id. Other courts have found a legitimate business need in
comparable situations. See, e.g., Estiverne v. Sak’s Fifth Avenue, 9 F.3d 1171, 1173-74 (5th Cir.
1993)(holding that the defendant’s obtaining of the plaintiff’s “consumer report for the purpose of
deciding whether to accept or reject a check in payment is a ‘legitimate business need’”).
This case law is consistent with the statutory language. Section 1681b(a)(3)(F) provides that
a consumer reporting agency may furnish a consumer report “to a person which it has reason to
believe-- . . . (F) otherwise has a legitimate business need for the information -- (i) in connection
with a business transaction that is initiated by the consumer.”

On its face, the provision

contemplates a situation wherein an entity accesses information about a consumer who is lying about
his or her identity or creditworthiness, but the entity seeking access nevertheless has reason to
believe that it had a legitimate business need for the consumer’s information.5 That Dish Network
5

Bickley offers Andrews v. TRW, Inc., 225 F.3d 1063 (9th Cir. 2000), rev’d on other grounds, 534 U.S. 19
(2001), to support his contention that Dish Network had no reasonable belief that Bickley was the consumer. In
Andrews, the Ninth Circuit asked whether the credit reporting agency had a reasonable belief that the plaintiff was
the consumer involved in the credit transactions. Id. at 1067. The Court determined that the question should be left
up to the jury, because a reasonable jury could find that the consumer reporting agency did not have a reasonable
belief that the transaction involved the particular plaintiff where the last name merely matched a social security
number on file.
This opinion is not controlling for two reasons. First, the Court was analyzing the term “involve” as it is
used in 15 U.S.C. § 1681b(a)(3)(A), and consulting dictionary definitions of the term. However, the permissible
purpose cited by Dish Network here falls under the purview of 15 U.S.C. § 1681b(a)(3)(F), which does not contain
the word “involve”, as Bickley correctly noted in his Reply. ECF No. 67. Second, Andrews sheds light on a
consumer reporting agency’s reasonable beliefs when furnishing consumer reports in instances where the consumer
at issue is an imposter or identity thief. This is not the situation at hand. Presently, the Court is dealing with the
reasonable belief of a user of consumer reports, which is manifestly different than a consumer reporting agency
furnishing those reports. Under the FCRA, a consumer reporting agency functions as a sort of gatekeeper of
consumer credit information, while a user of that information possesses no such function. Comparatively, the level
of “reasonable belief” that the user of a consumer report must have is lower and more easily achieved. Where the
consumer calls an entity purportedly to obtain network services, provides a name, address and social security
number, an entity has a reasonable belief that they are interacting with the actual consumer named until they engage
in the credit inquiry process. Accordingly, Andrews does not bear on the present situation, and the Court finds that
Dish Network had a reasonable belief that it was inquiring into an individual’s consumer report for a permissible

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did not actually engage in a transaction with Bickley, or that Bickley was not the individual who
actually initiated the transaction, does not obviate that Dish Network accessed Bickley’s information
with a reasonable belief that it had a legitimate business need for the information. American
Satellite used the Dish Network interface in connection with a potential sale of network services,
and based on the caller providing personal information, had reason to believe that it was engaging
in a transaction with a potential customer who initiated the call. Accordingly, under the §
1681b(a)(3)(F) definition, Dish Network obtained the information with a permissible purpose.6
In sum, the Court committed no clear error of law in the November Order. First, Bickley
does not contest the Court’s decision as to Bickley’s failure to show that Dish Network accessed a
consumer report, as defined in the FCRA, leaving that decision in tact. On this ground alone, the
Court will not reconsider its November Order. Going further, however, the Court’s analysis as to
Dish Network’s permissible purpose in the November Order is consistent with the law on the
subject. Accordingly, Bickley’s motion must be denied.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff Gregory Bickley’s Motion to Reconsider is
DENIED.

purpose.
6
If Dish Network accessed the information in connection with these proceedings, this too constitutes a permissible
purpose. Spence v. TRW, Inc., 92 F.3d 380 (6th Cir. 1996)(“The filing of the lawsuit obviously gave TRW reason to
believe that MichCon had a ‘legitimate need’ for the report, such a need having arisen in connection with the
preparation of MichCon’s defense to the lawsuit.”). As stated above, this Echostar Risk score inquiry also remains
irrelevant to Bickley’s claim for damages resulting from a period extending from the imposter phone call to
American Satellite in October 2009 to when Bickley filed suit arising from the consequences of that call in
November 2010.

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May 7, 2013

cc:

Counsel of Record

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