Hernandez-Diaz v. Experian Information Solutions, Inc.

Filing 20

OPINION AND ORDER: Defendant Experian Information Solutions, Inc.'s Motion for Judgment on the Pleadings and Alternative Motion for Summary Judgment #12 is GRANTED. This action is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Eric C. Tostrud on 5/22/2023. (RMM)

CASE 0:22-cv-02218-ECT-DLM Doc. 20 Filed 05/22/23 Page 1 of 9

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Luis Hernandez-Diaz,

File No. 22-cv-2218 (ECT/DLM)

Plaintiff,
v.

OPINION AND ORDER

Experian Information Solutions, Inc.,
Defendant.
________________________________________________________________________
Andrew John Ratelle, Edina, MN, for Plaintiff Luis Hernandez-Diaz.
Trevor Parkes, Jones Day, Minneapolis, MN, for Defendant Experian Information
Solutions, Inc.
In this case removed from Hennepin County District Court, Plaintiff Luis
Hernandez-Diaz claims that Defendant Experian Information Solutions violated the Fair
Credit Reporting Act (“FCRA”).

Experian seeks judgment on the pleadings or,

alternatively, summary judgment. The motion will be granted. Each of three grounds
independently justifies the case’s dismissal: (1) Hernandez-Diaz did not respond at all to
Experian’s motion. He filed no responsive brief, and his counsel did not appear at the
hearing. Courts ordinarily construe a complete, unexplained failure to respond to a
dispositive motion as a waiver of a plaintiff’s claims, and no reason is apparent why this
rule should not be applied here. (2) Hernandez-Diaz does not allege facts in his complaint
plausibly showing FCRA violations, making judgment on the pleadings appropriate in
Experian’s favor.

(3) Hernandez-Diaz failed to respond to Experian’s requests for

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admissions. Those requests concerned a host of dispositive factual matters that, by virtue
of Hernandez-Diaz’s failure to respond, are deemed admitted. And these admitted matters,
in turn, would make the entry of summary judgment in Experian’s favor proper.
The complaint’s allegations. Hernandez-Diaz alleges that Experian is a consumer
reporting agency. Compl. [ECF No. 1-1] ¶ 4. He alleges that Experian “prepared and
issued consumer reports concerning Plaintiff that included false and inaccurate
information,” damaging his credit score. Id. ¶ 6 and at 3. Hernandez-Diaz claims to have
notified Experian of the inaccuracies via certified mail on June 22, 2021, November 17,
2021, and March 23, 2022, but he alleges that Experian neither responded to his
notifications nor deleted the allegedly inaccurate information. Id. ¶¶ 8–10. HernandezDiaz says that unnamed potential lenders reviewed the inaccurate information, resulting in
him being “excluded from the benefits of the credit system.” Id. ¶¶ 11–12. HernandezDiaz alleges this caused him “anger, frustration, anxiety, [] humiliation,” and related health
problems, and also violated his right to information and privacy. Id. ¶¶ 12–13, 20, 23. He
seeks compensatory and statutory damages, attorneys’ fees and costs, and injunctive relief.
Id. at 8.
Relevant procedural background.

Hernandez-Diaz served Experian with his

complaint on August 23, 2022. ECF No. 1 ¶ 1. Experian removed the case on September
12, 2022. ECF No. 1. Experian answered Hernandez-Diaz’s complaint a week later, on
September 19. ECF No. 5. Following entry of a scheduling order, ECF No. 10, Experian
served Hernandez-Diaz with various discovery requests, including requests for admissions,
see ECF No. 15 ¶¶ 3, 8–9 and Ex. A. Experian served the requests for admissions on
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January 27, 2023. Id. ¶ 8. Hernandez-Diaz has not responded to Experian’s requests for
admissions. Id. ¶ 11. (Nor has Hernandez-Diaz responded to other written discovery
requests served by Experian. Id. ¶¶ 3, 5, 7, 10, 14.) Experian filed its motion for judgment
on the pleadings or, alternatively, for summary judgment on March 10, 2023. ECF Nos.
12–17. Hernandez-Diaz’s response to the motion was due to be filed on or before
March 31, 2023. D. Minn. LR 7.1(c)(2). Hernandez-Diaz did not respond to Experian’s
attempts to meet and confer regarding the motion and has filed no response to the motion.
ECF No. 15 ¶ 11.
The lack of any response to the motion. Hernandez-Diaz’s failure to respond to
Experian’s motion constitutes a waiver, and the motion could be granted on just this basis.
See Hernandez-Diaz v. Equifax Info. Servs., No. 22-cv-2302 (JRT/JFD), 2023 WL
2025123, at *2 (D. Minn. Feb. 15, 2023); see also Cox v. Harpsted, No. 22-cv-0478
(PJS/DJF), 2022 WL 16541087, at *1 (D. Minn. Oct. 28, 2022) (accepting report and
recommendation and agreeing that the plaintiff’s “failure to respond to defendants’ motion
to dismiss amounts to waiver”). This isn’t the first time Hernandez-Diaz and his counsel
have failed to respond to a dispositive motion in an FCRA case. In Hernandez-Diaz v.
Equifax Info. Servs., Hernandez-Diaz—represented by the same counsel who represents
him in this case—brought FCRA claims against Equifax in Hennepin County District Court
using a complaint that is word-for-word identical to the complaint Hernandez-Diaz served
on Experian in this case. See Hernandez-Diaz v. Equifax Info. Servs., No. 22-cv-2302
(JRT/JFD), ECF No. 1-1. Equifax removed that case to this Court and moved to dismiss
under Rule 12(b)(6). Id., ECF Nos. 1, 8. Hernandez-Diaz didn’t respond at all to Equifax’s
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motion, prompting Judge John R. Tunheim to grant the motion. Hernandez-Diaz, 2023
WL 2025123, at *2. Though Judge Tunheim also determined that the merits of Equifax’s
motion favored dismissal, he noted first that federal district courts “interpret[] a failure to
respond to a motion to dismiss as a waiver and voluntary dismissal of those claims.” Id.
As a result, Judge Tunheim concluded: “Accordingly, the Court must dismiss HernandezDiaz’s complaint under Rule 12(b)(6).”

Id.

The fact that this is the second time

Hernandez-Diaz’s counsel has failed to respond at all to a dispositive motion raises
questions and concerns. Leaving those aside, Hernandez-Diaz’s counsel cannot claim to
be surprised by this outcome.
Judgment on the pleadings. A Rule 12(c) motion for judgment on the pleadings is
assessed under the same standard as a Rule 12(b)(6) motion. Ashley Cnty. v. Pfizer, Inc.,
552 F.3d 659, 665 (8th Cir. 2009). In reviewing a motion to dismiss for failure to state a
claim under Rule 12(b)(6), a court must accept as true all of the factual allegations in the
complaint and draw all reasonable inferences in the plaintiff’s favor. Gorog v. Best Buy
Co., 760 F.3d 787, 792 (8th Cir. 2014) (citation omitted). Although the factual allegations
need not be detailed, they must be sufficient to “raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The
complaint must “state a claim to relief that is plausible on its face.” Id. at 570. “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).

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The basic problem with Hernandez-Diaz’s complaint here is that it lacks essential
factual content. Hernandez-Diaz alleges violations of six HCRA provisions: 15 U.S.C. §§
1681c(a), 1681c-1, 1681c-2, 1681e(b), 1681(g), and 1681i. See ECF No. 1-1 ¶ 20. Section
1681c(a) concerns the removal of obsolete information from a consumer report, but the
complaint does not allege what information in Hernandez-Diaz’s credit report might be
obsolete. Sections 1681c-1 and 1681c-2 concern fraud alerts and identity theft, but the
complaint alleges no facts regarding fraud or identity theft. Section 1681e(b) requires
consumer reporting agencies to “follow reasonable procedures to assure maximum possible
accuracy” of the information included in a consumer report. 15 U.S.C. § 1681e(b). “To
plead a viable claim under § 1681e(b), a plaintiff must plausibly allege that (1) his report
was inaccurate in some way and (2) the inaccuracy was due to the [consumer reporting
agency’s] failure to follow reasonable procedures.” Desautel v. Experian Info. Sol., LLC,
No. 19-CV-2836 (PJS/LIB), 2020 WL 2215736, at *2 (D. Minn. May 7, 2020). The
complaint here alleges only generically that Experian prepared and issued credit reports
containing “false and inaccurate information” about Hernandez-Diaz. Compl. ¶ 6. It does
not identify what information was false or inaccurate. Section 1681g concerns disclosures
of consumer information upon request, but the complaint does not allege a disclosure
request ever was made. Section 1681i requires consumer reporting agencies to “conduct a
reasonable reinvestigation” when a consumer notifies the agency of a dispute regarding the
completeness or accuracy of information in the consumer’s file. 15 U.S.C. § 1681i(a)(1).
“Courts have repeatedly held that, to recover from a [consumer reporting agency] under §
1681i(a)(1)(A), the consumer must (1) point to an item of information contained in the
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[consumer reporting agency’s] file and (2) prove that the item of information is inaccurate.”
Desautel, 2020 WL 2215736, at *4 (D. Minn. May 7, 2020). The complaint does not allege
either of these things. Owing to all of these essential-but-missing allegations, Experian’s
Rule 12(c) motion will be granted.
Summary judgment. Summary judgment is warranted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if its resolution might
affect the outcome of the suit under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Id. at 255.
Experian’s (alternative) summary-judgment motion is premised on (1) HernandezDiaz’s failure to respond to Experian’s requests for admissions and (2) Experian’s
argument—based on Rule 36(a)(3)—that this means the matters that are the subject of
those requests are admitted. Rule 36(a)(3) provides that “[a] matter is admitted unless . . .
the party to whom the request is directed” timely serves a signed, written answer or
objection on the requesting party “within 30 days after being served,” though a “shorter or
longer time for responding may be stipulated to under Rule 29 or be ordered by the court.”
Fed. R. Civ. P. 36(a)(3). The Eighth Circuit has made clear that that “the failure to respond
in a timely fashion does not require the court automatically to deem all matters
admitted.” Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1312 (8th Cir. 1983).
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Because the rule explicitly provides that courts may allow a longer time to
respond, see Fed. R. Civ. P. 36(a)(3), a court possesses discretion to permit responses that
otherwise would be untimely.

Gutting, 710 F.2d at 1312 (collecting cases).

Under Gutting, a party’s service of a late response under Rule 36 may function as a
withdrawal of—or at least, an attempt to withdraw—its admissions. See id. at 1313. And
courts may permit withdrawal or amendment under Rule 36 when doing so promotes the
presentation of the merits of the action and when the party who obtained the admissions
“fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining
his action or defense of the merits.” Id. (citation and internal quotation marks omitted); see
also Fed. R. Civ. P. 36(b) (test for amending or withdrawing admission). Failure to
consider both factors in determining whether to permit withdrawal or amendment
constitutes error. See Gutting, 710 F.2d at 1313.
The problem here is that Hernandez-Diaz has remained utterly non-responsive and
silent with respect to Experian’s requests for admissions. In other words, though the law
left plenty of room for Hernandez-Diaz to ask for more time to respond to the requests or
seek to withdraw his admissions, Hernandez-Diaz hasn’t done any of these things. In this
situation, and in the absence of record evidence that might explain or justify his nonresponsiveness, the better answer is to find that Hernandez-Diaz’s failure to answer or
object to Experian’s requests for admissions means that the matters that are the subjects of
those requests are admitted. And those admitted matters are fatal to Hernandez-Diaz’s
claims. The admitted matters include facts essential to Hernandez-Diaz’s FCRA claims.
See ECF No. 15-1 at 3–4. For example, as discussed above, Hernandez-Diaz has no claim
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under Sections 1681i and 1681e(b) absent an inaccuracy. See Paul v. Experian Info.
Solutions, Inc., 793 F. Supp. 2d 1098, 1101–04 (D. Minn. 2011). But Experian’s nowadmitted requests include an admission that “Experian has never provided inaccurate
information in Plaintiff’s Credit Report.” ECF No. 15-1 at 4. Hernandez-Diaz has
admitted that “Experian followed reasonable procedures to ensure maximum possible
accuracy of the information Experian reported with respect to Plaintiff,” and that he “was
not damaged as a result of any act or omission on the part of Experian.” Id. at 3. These
admissions preclude Hernandez-Diaz from making the prima facie showing necessary to
support a § 1681e(b) claim. See Paul, 793 F. Supp. 2d at 1101–02. Hernandez-Diaz also
has admitted he “never contacted Experian to dispute information appearing on Plaintiff’s
Credit Report or Plaintiff’s Credit Disclosure.” ECF No. 15-1 at 3. This means his claims
under Sections 1681c-1 and 1681c-2 cannot survive summary judgment.

Finally,

Hernandez-Diaz’s admission that “Experian has never failed to provide Plaintiff with a
copy of Plaintiff’s Credit Disclosure in response to any request by Plaintiff,” id. at 4, is
fatal to Hernandez-Diaz’s § 1681g claim. For these reasons, if judgment on the pleadings
against Hernandez-Diaz’s claims were not appropriate, summary judgment would be.

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ORDER
Based on the foregoing, and on all the files, records, and proceedings herein, IT IS
ORDERED THAT:
1.

Defendant Experian Information Solutions, Inc.’s Motion for Judgment on

the Pleadings and Alternative Motion for Summary Judgment [ECF No. 12] is
GRANTED.
2.

This action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: May 22, 2023

s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court

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