Primrose v. Castle Branch, Inc.

Filing 47

ORDER granting 34 Motion for Summary Judgment. Signed by Chief Judge James C. Dever III on 1/3/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
I
SOUTHERN DIVISION
No. 7:14-CV-235-D

CLAIRE H. PRIMROSE,
Plaintiff,

v.
CASTLE BRANCH, INC.,
Defendant.

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ORDER

On October 17,2014, Claire H. Primrose ("Primrose" or "plaintiff'') filed a prose complaint
against Castle Branc~ Inc. ("Castle Branch" or "defendant") [D.E. 1]. On January 5, 2015, Primrose
amended her complaint, asserting violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C.
§§ 1681-168lx, as well as state law "libel and defamation" claims [D.E. 12]. On June 6, 2016,
Castle Branch moved for summary judgment [D.E. 34] and filed a memorandum in support [D.E.
38], astatementofmaterialfacts [D.E. 37], and an appendix [D.E. 36]. On June 30,2016, Primrose
responded to Castle Branch's motion for summary judgment [D.E. 41 ], responded to Castle Branch's
statement of material facts [D.E. 42], and filed an appendix [D.E. 43]. On July 13, 2016, Castle
Branch replied [D.E. 44] and filed an additional exhibit [D.E. 45]. As explained below, the court
grants Castle Branch's motion for summary judgment.
I.
Primrose resides in New Hanover County, North yarolina. Defs.' Stmt. Material Facts [D.E.
'

35] ~ 5; Pl.'s Resp. Defs.' Stmt. Material Facts [D.E. 42] ~ 5; Primrose Dep. [D.E. 37-1] 9. Castle
Branch is a North Carolina corporation that performs background checks. Defs.' Stmt. Material·
Facts~~

1-2; Pl.'s Resp. Defs.' Stmt. Material Facts

~~

1-2.

On August 3, 1993, Primrose pleaded guilty to multiple counts of misdemeanor forgery in
New Hanover County. Ex. 13 [D.E. 37-11] 5-6, 8-12. The North Carolina Administrative Office
of the Courts operates the Automated Criminal/Infraction System ("ACIS"), an online database of
court records regarding criminal charges and convictions. Defs.' Stmt. Material Facts ~ 115; Pl.'s
Resp. Defs.' Stmt. Material Facts~ 115; Ex. 12 [D.E. 36-12] ~ 18; Ex. 23 [D.E. 36-23] ~ 18. When
the North Carolina Administrative Office of the Courts entered Primrose's forgery convictions into
ACIS, it erroneously entered one conviction as a conviction for common law robbery. Defs.' Stmt.
Material Facts~ 77; Pl.'s Resp. Defs.' Stmt. Material Facts~ 77; Ex. 20 [D.E. 36-20] ~ 6. The error
went unnoticed for over 20 years. Defs.' Stmt. Material Facts~ 78; Pl.'s Resp. Defs.' Stmt. Material
Facts~ 78;

Ex. 20 at~ 6. OnApri119, 2004, Primrose pleaded guilty to one count of misdemeanor

worthless check in New Hanover County. Ex. 13 at 5.
From 2006 until20 15, Primrose worked as an accountant at the University ofNorth Carolina
at Wilmington ("UNCW''). Defs.' Stmt. Material Facts~ 10; Pl.'s Resp. Defs.' Stmt. Material Facts
~

10; Primrose Dep. 13. In 2010, Primrose enrolled in UNCW's Watson College of Education

("WCE") to pursue a Master ofArts in Teaching and a teacher's license. Defs.' Stmt. Material Facts
~

16; Pl.'s Resp. Defs.' Stmt. Material Facts~ 16; Primrose Dep. 37-40. In 2010, UNCWrequired

Primrose to submit to a background check. Defs.' Stmt. Material Facts~ 11; Pl.'s Resp. Defs.' Stmt.
Material Facts~ 11. 1 On June 23, 2010, Castle Branch issued a report which listed Primrose's
convictions for forgery and passing a worthless check (''the first Castle Branch report"). Defs.' Stmt.
Material Facts~ 12; Pl.'s Resp. Defs.' Stmt. Material Facts~ 12; Ex. 3 [37-3]. In reliance on the

1

The record is unclear why UNCW requested the report. Primrose claims, without support,
that UNCW requested the report when she applied for an on-campus job in 2010. Pl.'s Resp. Stmt.
Material Facts~ 11. Notes created by WCE staff, however, suggest that UNCW requires the report
when a student begins her "field experience." Ex. 9 [D.E. 37-8] 3. The dispute is not material.

2

ACIS record, that report also stated that Primrose had been convicted of common law robbery in
New Hanover County. Defs.' Stmt. Material Facts~ 14; Pl.'s Resp. Defs.' Stmt. Material Facts~ 14;
Ex. 3. Primrose has never been convicted of common law robbery.
In the spring semester of 2014, Primrose was enrolled in courses that, when completed,
would allow her to graduate from WCE with a Master of Arts in Teaching. Defs.' Stmt. Material
Facts~~ 22,

25; Pl.'s Resp. Defs.' Stmt. Material Facts~~ 22, 25; Primrose Dep. 49-50. Primrose

also had completed all courses required to obtain her teacher's license, but still needed to complete
one semester as a student-teaching intern to meet a "field experience" requirement. Defs.' Stmt.
Material Facts~~ 23-27; Pl.'s Resp. Defs.' Stmt. Material Facts

~~ 23-27;

Primrose Dep. 49-50;

Potts Dep. [D.E. 37-4] 15. Primrose did not plan to complete her field-experience requirement until
the fall semester of2014. Defs.' Stmt. Material Facts~~ 28-29; Pl.'s Resp. Defs.' Stmt. Material
Facts~~ 28-29; Primrose Dep. 60.

Instead, in the spring semester of20 14, Primrose planned to tutor

middle-school students. Defs.' Stmt. Material Facts~~ 28-29; Pl.'s Resp. Defs.' Stmt. Material
Facts~~ 28-29.

On February 6, 2014, WCE hosted an internship-application meeting, which Primrose
attended to discuss her application for an internship in the fall semester of2014. Ex. 9 [D.E. 37-8]
2. WCE required all WCE students to attend an internship-application meeting before completing
the field- experience requirement. Defs.' Stmt. Material Facts~ 42; Pl.'s Resp. Defs.' Stmt. Material
Facts

~

42. During the internship-application meeting, WCE staff told Primrose that she would

''need to submit to a new formal background check." Ex. 9 at 2. Certiphi, Inc. ("Certiphi"), a
competitor of Castle Branch, would perform that background check. Defs.' Stmt. Material Facts
~~ 46-48;

Pl.'s Resp. Defs.' Stmt. Material Facts~~ 46-48. WCE students were "required to sign

upforandpayfor [the] background report to be completed byCertiphi." Defs.' Stmt. Material Facts

3

~ 43; Pl.'sResp. Defs.'

Stmt. Material Facts~ 43. WCE also instructed students to complete a self-

disclosure questionnaire. Ex. 9 at 2.
On February 7, 2014, Primrose completed a self-disclosure questionnaire, including
answering questions about her criminal background. Id. at 14-15; Ex. 10 [D.E. 37-9] 2-3. In
response to a question asking if Primrose had been discharged or dismissed from a job, Primrose
responded that she had, and disclosed that she was dismissed from a job because of conduct which
resulted in a forgery charge. Ex. 10 at 2. In response to a question that asked if she had ever been
convicted of a crime, she answered "no"; however, in response to a question that asked if she had
ever entered a plea of guilty, Primrose stated that she had pleaded guilty to one count of
misdemeanor forgery. Id. Primrose did not disclose her convictions for passing worthless checks,
believing those matters were resolved through civil fines rather than criminal convictions. Id.; Pl.'s
Resp. Defs' Stmt. Material Facts~ 58. On February 19,2014, Primrose ordered a background check
from Certiphi. Primrose Dep. 56-57; Ex. 13.
On or about February 20,2014, Primrose attended a "Background Check review" meeting
with Cindy Wiseman, WCE's Director of Professional Experiences, and Stephanie Glowa, WCE's
Field Experience Coordinator. Ex. 9 at 2. The three discussed Primrose's criminal background, and
Wiseman told Primrose that, in light of her criminal history as shown in a background report that
WCE had on file, Primrose must provide "a letter of explanation" ofher prior convictions and a copy
of her court records. See Defs.' Stmt. Material Facts~~ 35-36; Pl.'s Resp. Defs.' Stmt. Material
Facts~~ 35-36; Primrose Dep.

52-53; Ex. 9 at 3. Primrose protested that the report WCE had on

file was inaccurate, and Wiseman encouraged Primrose to contact Certiphi to resolve any issues.
Ex. 9 at 3. Wiseman also told Primrose that Primrose would have to submit to another background
check before she could begin her internship. Id. Wiseman and Glowa agreed that they would not
4

submit Primrose's background check to the middle school where Primrose planned to tutor students
until resolving the dispute regarding her background check. Id.
On February 26,2014, Certiphi issued a background report on Primrose to WCE (''the first
Certiphi report"). Ex. 13. That report included Primrose's convictions for forgery and worthless
checks, as well as the erroneously listed conviction for common law robbery. Id. at 5-6. The report
contained a screenshot from ACIS. Id. at 8-9; Ex. 14 [D.E. 37-12] 1[1[ 4--8. The screenshot showed
that the ACIS database contained an entry for Primrose's erroneously listed common law robbery
conviction. Ex. 13 at 8. Primrose did not review the first Certiphi report until March 11, 2014.
Defs.' Stmt. Material Facts 1[ 53; Pl.'s Resp. Defs.' Stmt. Material Facts 1[ 53; Primrose Dep. 61.
Dr. Ann Potts, WCE' s Associate Dean for Teacher Education, compared the Certiphi report
with Primrose's self-disclosure form and considered Primrose's disclosure insufficient because
"there was a mismatch between the Certi[phi] document and her self disclosure." Potts Dep. 36.
Specifically, Dr. Potts saw that Primrose had answered "no" when asked if she had been convicted
of a crime, "and then when we got the background check we saw there was [sic] guilty charges on
there." Id. at 34.
On February 24, 2014, Carol McNulty, WCE's Associate Dean for Academic and Student
Affairs, ordered another background report, this time from Castle Branch, to resolve disputes
concerning Primrose's criminal background and the Certiphi report. Defs.' Stmt. Material Facts

1[1[ 64, 66; Pl.'s Resp. Defs.' Stmt. Material Facts 1[1[ 64, 66; Ex. 15 [D.E. 37-13] 2. On March 6,
2014, Castle Branch issued a background report on Primrose (''the second Castle Branch report").
Defs.' Stmt. Material Facts 1[ 67; Pl.'s Resp. Defs.' Stmt. Material Facts 1[ 67; Ex. 2 [D.E. 3 7-2]. The
second Castle Branch report also stated that Primrose had been convicted of common law robbery,

5

forgery, and passing a worthless check. Defs.' Stmt. Material Facts mf 69-70; Pl.'s Resp. Defs.'
Stmt. Material Facts ~~ 69-70; Ex. 2.
On March 11, 2014, Primrose met with WCE staff, including Dr. Potts, ''to review her formal
background check and self disclosure statement and [the] mismatch between the two." Potts Dep.
47. Dr. Potts believed that "a mismatch" existed because Primrose said she had not been convicted
of a crime, but the report stated otherwise. Id. at 48. At that meeting, the WCE staff dismissed
Primrose from WCE' s Master of Arts in Teaching program "for failure to disclose her criminal
background history." Defs.' Stmt. Material Facts~~ 89, 91; Pl.'s Resp. Defs.' Stmt. Material Facts
~~ 89, 91; Ex. 9 at 12-13.

Although Primrose disputed the accuracy ofthe background reports, WCE

staff told her that they could "only act upon the documents that [they] ha[d] in hand," and "should
her criminal background history change" she could apply for readmission. Ex. 9 at 13. On March
11, 2014, Primrose reviewed the second Castle Branch report for the first time. See Defs.' Stmt.
Material Facts~ 74; Pl.'s Resp. Defs.' Stmt. Material Facts~ 74; Primrose Dep. 72, 75.
On March 12, 2014, WCE permitted Primrose to provisionally re-enroll in WCE's Master
of Arts in Teaching program. Defs.' Stmt. Material Facts~ 94; Pl.'s Resp. Defs.' Stmt. Material
Facts ~ 94. Before she provisionally re-enrolled on March 12, 2014, Primrose could not attend class
or contact her professors. Defs.' Stmt. Material Facts~ 97; Pl.'s Resp. Defs.' Stmt. Material Facts
~

97; Primrose Dep. 119-20.
On March 17, 2014, an unknown individual at the New Hanover County courthouse edited

Primrose's criminal record in ACIS, changing the conviction for common law robbery to a
misdemeanor conviction for passing a worthless check. Defs.' Stmt. Material
Resp. Defs.' Stmt. Material Facts ~ 131.

6

Facts~

131; Pl.'s

On or shortly after April1, 2014,WCE formally reinstated Primrose into WCE's Master of
Arts in Teaching program. Defs.' Stm.t. Material Facts, 95; Pl.'s Resp. Defs.' Stm.t. Material Facts

, 95; Primrose Dep. 119. On Apri18, 2014, Primrose authorized UNCW to send the second Castle
Branch report to the schools where she hoped to intern. Defs.' Stmt. Material Facts, 75; Pl.'s Resp.
Defs.' Stm.t. Material Facts, 75; Primrose Dep. 88-89. On or about April 9, 2014, Primrose
received a corrected report from Certiphi (''the corrected Certiphi report"). Defs.' Stm.t. Material
Facts, 102; Pl.'s Resp. Defs.' Stm.t. Material Facts, 102. This report did not list a charge for
common law robbery. ld.
On April9, 2014, Primrose contacted Castle Branch and disputed the common law robbery
conviction listed in the second Castle Branch report. Defs.' Stmt. Material Facts, 108; Pl.'s Resp.
Defs.' Stm.t. Material Facts, 108; Primrose Dep. 103--04. Castle Branch reinvestigated Primrose's
criminal background and issued a new report (''the third Castle Branch report") that did not contain
any conviction for common law robbery, but did include an additional misdemeanor conviction for
passing a worthless check. Defs.' Stm.t. Material Facts,, 109-22; Pl.'s Resp. Defs.' Stm.t. Material
Facts,, 109-22.
On Apri110, 2014, Castle Branch sent Primrose a letter incorrectly stating that the second
Castle Branch report had been correct; however, Castle Branch attached to the letter a copy of the
third Castle Branch report, which contained the corrected information. Defs.' Stm.t. Material Facts
,, 122-24; Pl.'s Resp. Defs.' Stm.t. Material Facts,, 122-24. Also, on AprillO, 2014, Castle
Branch emailed UNCW' s Dean of Students about the third Castle Branch report. Defs.' Stmt.
Material Facts, 125; Pl.'s Resp. Defs.' Stmt. Material Facts, 125. The email incorrectly stated that
the second Castle Branch report had correctly stated Primrose's criminal history; however, the email
contained a link to the corrected third Castle Branch report, and at least three members ofUNCW' s

7

staff accessed the third Castle Branch report "multiple times." Defs.' Stmt. Material Facts
~~

125-27; Pl.'s Resp. Defs.' Stmt. Material

Facts~~

125-27; Ex. 12

~~

26-28. The language

Castle Branch ''used in the April10, 2014letter was a mistake and was not intentional." Ex. 23

~

24. The letter was saved into Castle Branch's file for Primrose, and therefore when Primrose called
to speak with Castle Branch employees to dispute the findings ofthe reinvestigation, Castle Branch's
employees mistakenly repeated the inaccurate statement in the cover letter. Defs.' Stmt. Material
Facts~

124; Pl.'s Resp. Defs.' Stmt. Material Facts~ 124.
Primrose began her field-experience internship in the fall semester of 2014. Defs.' Stmt.

Material Facts ~ 134; Pl.'s Resp. Defs.' Stmt. Material Facts ~ 134. WCE removed Primrose from
the program in October 2014 forreasons unrelated to Castle Branch's conduct or Primrose's criminal
background. Defs.' Stmt. Material Facts
~~ 134--51.

~~

134--51; Pl.'s Resp. Defs.' Stmt. Material Facts

Primrose never completed the internship program, but in December 2014 she graduated

from WCE with a Master of Arts in Teaching. Defs.' Stmt. Material Facts~~ 150, 154; Pl.'s Resp.
Defs.' Stmt. Material Facts~~ 150, 154. In January 2015, Primrose obtained a provisional teaching
license, which allows her to teach in North Carolina public schools, and Primrose has taught in North
Carolina public schools since the spring of20 15. Defs.' Stmt. Material Facts~~ 155-56; Pl.'s Resp.
Defs.' Stmt. Material Facts~~ 155-56; Primrose Dep. 35.

n.
Summary judgment is appropriate ifthe moving party demonstrates ''that there is no genuine
dispute as to any material fact" and the moving party "is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). The party seeking summary judgment must initially show an absence of a
genuine dispute of material fact or the absence of evidence to support the nonmoving party's case.
Celotex Cor,p. v. Catrett 477 U.S. 317, 325 (1986). If a moving party meets its burden, the

8

nonmoving party must "come forward with specific facts showing that there is a genuine issue for
trial." MatsushitaElec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,587 (1986) (quotation and
emphasis omitted). A genuine issue for trial exists if there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's
position [is] insufficient ...." Id. at 252; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)
("The nonmoving party, however, cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another."). Only factual disputes that might affect
the outcome under substantive law preclude summary judgment. Anderson, 477 U.S. at 248. In
reviewing the factual record, the court views the facts in the light most favorable to the nonmoving
party and draws reasonable inferences in that party's favor. Matsushim, 475 U.S. at 587-88.

ill.
Primrose alleges that Castle Branch violated the Fair Credit Reporting Act ("FCRA"), 15
U.S.C. §§ 1681-1681 x, by issuing and failing to correct an inaccurate background report. See Am.
Compl. [D.E. 12]. The FCRA concerns consumer reporting agencies. The term "consumer reporting
agency," or CRA, means:
any person which, for monetary fees, dues, or on a cooperative non-profit basis,
regularly engages in whole or in part in the practice of assembling or evaluating
consumer credit information or other information on consumers for the purpose of
furnishing reports to third parties, and which uses any means or facility of interstate
commerce for the purpose of preparing or furnishing consumer reports.
15 U.S.C. § 1681a(f). Castle Branch is a CRA. Defs.' Stmt. Material Facts ,-r,-r 3-4; Pl.'s Resp.
Defs.' Stmt. Material Facts ,-r,-r 3-4.
The FCRA contains two civil liability provisions. See Yohay v. City of Alexandria Emps.
Credit Union. Inc., 827 F.2d 967, 971 (4th Cir. 1987). Under section 1681o, a consumer may
9

recover actual damages resulting from a CRA's negligent failure to comply with the FCRA.2 A
consumer must prove actual damages to recover for a negligent violation of the FCRA. Guimond
v. Credit Bureau Inc., 955 F.2d 41, at *2 (4th Cir. 1992) (per curiam) (unpublished table decision).
"Actual damages do not include nominal damages under the FCRA." Davenport v. Sallie Mae. Inc.,
124 F. Supp. 3d 574, 581 (D. Md.) (quotation omitted), aff'd, 623 F. App'x 94 (4th Cir. 2015) (per
curiam) (unpublished).
Under section 1681n, a CRA may be liable for actual or statutory damages and punitive
damages for ''willful" failures to comply with the FCRA. 15 U.S.C. § 1681n(a);3 see Berry v.

2

15 U.S.C. § 1681o provides:

(a) In general
Any person who is negligent in failing to comply with any requirement imposed
under this subchapter with respect to any consumer is liable to that consumer in an
amount equal to the sum of-(1) any actual damages sustained by the consumer as a result of the failure; and
(2) in the case of any successful action to enforce any liability under this section,
the costs of the action together with reasonable attorney's fees as determined by
the court.

(b) Attorney's fees
On a finding by the court that ari unsuccessful pleading, motion, or other paper filed
in connection with an action under this section was filed in bad faith or for purposes
ofharassment, the court shall award to the prevailing party attorney's fees reasonable
in relation to the work expended in responding to the pleading, motion, or other
paper.
15 U.S.C. § 1681o.
3

15 U.S.C. § 1681n(a) provides:

(a) In general
Any person who willfully fails to comply with any requirement imposed under this
10

Schulman, 807 F.3d 600, 605 (4th Cir. 2015); Saunders v. Branch Banking & Trust Co., 526 F.3d
142,149 (4thCir. 2008);Ausherman v. Bank ofAm. Corp., 352F.3d 896,899-900 (4thCir. 2003).
To prove willfulness under the FCRA, a consumer must show that the defendant knowingly or
recklessly disregarded the FCRA's requirements. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47,
57, 68--69 (2007); Bm:y, 807 F.3d at 605; Aushermm1, 3 52 F .3d at 900; Dalton v. Capital Associated
Indus .. Inc., 257 F.3d 409, 418 (4th Cir. 2001). To survive summary judgment, a plaintiff must
support a willful-noncompliance claim with evidence that the violation was willful, not merely
negligent or careless. See Robinson v. Equifax Info. Servs.. LLC, 560 F.3d 235, 241 n.3 (4th Cir.
2009); Dalton,257 F.3d at 418; Casella v. Equifax Credit Info. Servs., 56 F.3d 469,476 (2d. Cir.
1995).

A.
Primrose claims that Castle Branch failed to comply with section 1681 b(b), which describes
conditions for furnishing and using consumer reports for employment purposes. See 15 U.S.C.

subchapter with respect to any consumer is liable to that consumer in an amount
equal to the sum of-(1)(A) any actual damages sustained by the consumer as a result of the failure or
damages of not less than $100 and not more than $1,000; or

(B) in the case of liability of a natural person for obtaining a consumer report
under false pretenses or knowingly without a permissible purpose, actual
damages sustained by the consumer as a result ofthe failure or $1,000, whichever
is greater;
(2) such attlount of punitive damages as the court may allow; and
(3) in the case of any successful action to enforce any liability under this section,
the costs of the action together with reasonable attorney's fees as determined by
the court.
15 U.S.C. § 1681n(a).
11

§ 1681 b(b). Under section 1681 b(b)(2), before furnishing a, consumer report for employment
purposes, a CRA must obtain certification from the employer that the preparation of the consumer
report has been disclosed to the consumer who is the subject ofthe report, and that the consumer has
authorized in writing that the employer may procure the consumer report. See id. § 1681 b(b)(2).
A report is issued for "employment purposes" if it is ''used for the purpose of evaluating a consumer
for employment, promotion, reassignment or retention as an employee." ld. § 1681a(h).

"[A] prose complaint, however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers."

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Nevertheless, "[o]nly those questions which are squarely presented to a court may properly be
addressed." Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Even under the standard governing pro se complaints, Primrose has not plausibly alleged a
violation of section 1681 b(b). Rather, both her initial complaint and her amended complaint allege
that Castle Branch's report contained false and defamatory information, and that Castle Branch
refused to correct the report once notified of the inaccurate information. See Compl. [D.E. 1]; Am.
Compl. Neither complaint alleges that Castle Branch created a report for employment purposes, nor
do they allege that Castle Branch created an unauthorized report. Primrose did not plead a violation
of section 1681 b(b). Moreover, in light of the deadline in the scheduling order [D .E. 16], Primrose
cannot use her brief opposing Castle Branch's motion for summary judgment to add such a claim.
See,

~'

Hexion Specialty Chems.. Inc. v. Oak-Bark Cor;p., No. 7:09-CV-105-D, 2011 WL

4527382, at *7-10 (E.D.N.C. Sept. 28, 2011) (unpublished) (collecting cases holding that a party
cannot use briefing in support of or in opposition to summary judgment to amend its complaint);
Fed. R. Civ. P. 16(b)(4). Thus, the court grants summary judgment to Castle Branch on Primrose's
claim under section 1681 b(b).
12

B.
Primrose claims that Castle Branch failed to comply with 15 U.S.C. § 1681d(a)(1) because
it "prepared an investigative consumer report" without disclosing the investigation to Primrose in
writing and receiving her authorization to produce the report. [D.E. 41] 3-4. Section 1681 d applies
only to "investigative consumer reports." See 15 U .S.C. § 1681 d(a)(l ). An "investigative consumer
report" is "a consumer report ... in which information on a consumer's character, general reputation,
personal characteristics, or mode of living is obtained through personal interviews." 15 U.S.C.

§ 1681 a(e). Castle Branch's reports involved neither personal interviews nor reports on Primrose's
character, reputation, or personal characteristics. Rather, Castle Branch's reports summarized the
contents of various public records. See Exs. 2 [D.E. 37-2], 3 [D.E. 37-3], 4 [b.E. 36-4]. Thus,
Castle Branch's reports were not "investigative consumer reports," and the court grants summary
judgment to Castle Branch on Primrose's claim under section 1681d(a)(1).

c.
Primrose claims that Castle Branch violated 15 U.S.C. § 1681i. Section 168li(a)(1)(A)
requires that, if a consumer disputes the "accuracy of any item of information contained in a
consumer's file" and the consumer notifies the CRA of the dispute, the CRA must reinvestigate the
information. 15 U.S.C. § 1681i(a)(1)(A). If unable to confirm its accuracy, the CRA must either
note the current status of the disputed information or delete the information within 30 days. Id. The
CRA must "provide written notice to a consumer of the results of a reinvestigation under this
subsection not later than 5 business days after the completion of the reinvestigation, by mail or, if
authorized by the consumer for that purpose, by other means available to the agency." Id.

§ 1681i(a)(6)(A).

13

On Apri19, 2014, Primrose contacted Castle Branch and disputed the common law robbery
conviction in the second Castle Branch report. On April 10, 2014, Castle Branch sent a letter to
Primrose and an email to UNCW incorrectly stating that the second Castle Branch report had been
correct, but attaching a copy of the corrected third Castle Branch report. Even assuming that Castle
Branch failed to provide written notice to Primrose as required by section 1681 i(a)(6)(A), the record
contains no evidence suggesting that Castle Branch's error was willful. See~' 807 F .3d at 605;
Robinson,560 F.3d at 241 n.3; Ausherm~ 352 F.3d at 900; Dalton,257 F.3d at 418; Casell~ 56
F .3d at 576. Indeed, that Castle Branch sent the corrected third Castle Branch report along with the
inaccurate cover letter and email shows that Castle Branch was not willfully attempting to
misrepresent Primrose's criminal history. Rather, the Castle Branch employee who handled the
matter testified that Castle Branch ''mistakenly" used the wrong response in the cover letter and
email after correcting Primrose's report. Therefore, the court grants summary judgment to Gastle
Branch on Primrose's willfulness claim under section 1681i.
To prove a negligent violation of section 1681 i, Primrose must show that she suffered "actual
damages." See 15 U.S.C. § 1681o; Guimond, 955F.2d41, at*2; Davenport, 124F. Supp. 3dat581.
Primrose's claims for actual damages, however, are not causally related to Castle Branch's alleged
failure to follow proper notification procedures after it reinvestigated Primrose's record. Rather,
Primrose's claims for actual damages all involve the reactions of third parties who believed that
Primrose had been convicted of common law robbery. See Ex. 30 [D.E. 36-30]. Castle Branch's
failure to inform Primrose that the original report had been inaccurate did not cause those alleged
harms. Rather, the record shows that Castle Branch provided UNCW staff, an accurate, corrected
report and that UNCW staff, in fact, viewed that corrected report on multiple occasions.
Furthermore, Primrose's claims for damages all concern events that occurred before April9, 2014,
14

the date when she notified Castle Branch that she disputed its report. Therefore, the court grants
summary judgment to Castle Branch concerning the alleged negligent failure to follow the
reinvestigation procedures in section 1681i.

D.
Primrose claims that Castle Branch violated section 1681 e(b) of the FCRA, which requires
a CRA to follow "reasonable procedures to assure the maximum possible accuracy" of its reports.
15 U.S.C. § 1681e(b). In support, Primrose cites Castle Branch's reliance on the ACIS system's
report that Primrose had been convicted of common law robbery.
Although the statute uses the language "maximum possible accuracy," section 1681e(b)
requires a CRA to follow reasonable procedures, not infallible procedures, and a CRA may
reasonably rely on a court's electronic database. See Childress v. Experian Info. Solutions. Inc., 790
F.3d 745, 746-47 (7th Cir. 2015). Here, the North Carolina Administrative Office of the Courts
maintains the ACIS system, and that system erroneously stated that Primrose had been convicted of
common law robbery. Moreover, the record demonstrates that Castle Branch had no reason to know
of--or even suspect-ACIS's error until April9, 2014. Indeed, Castle Branch "ha[d] never had a
problem with the accuracy of records obtained via ACIS" until Primrose's case. Defs.' Stmt.
Material Facts ~ 118; Pl.'s Resp. Defs.' Stmt. Material Facts ~ 118. Certiphi, a company that also
created a consumer report on Primrose's criminal background in 2014, also relied on ACIS and
reported the same erroneous conviction. Defs.' Stmt. Material Facts~~ 117-18; Pl.'s Resp. Defs.'
Stmt. Material Facts~~ 117-18; Ex. 13 at 8-12. On April9, 2014, after Castle Branch became
aware that Primrose disputed the common law robbery conviction, Castle Branch corrected the report
and sent UNCW an email with a link containing the corrected report. Defs.' Stmt. Material Facts

15

~~

125-26; Pl.'s Resp. Defs.' Stmt. Material

Facts~~

125-26. Thus, the court grants summary

judgment to Castle Branch concerning the alleged violation of section 1681e(b).

E.
Finally, Primrose cannot show actual damages that would support recovery under section
1681 o. A plaintiff's claim under section 1681 o cannot survive summary judgment unless the record
contains evidence of actual damages caused by the defendant's negligent violations of the FCRA.
See Davenpon, 124 F. Supp. 3d at 581; Spectorv. Experianlnfo. Servs. Inc., 321 F. Supp. 2d 348,
356 (D. Conn. 2004). Primrose's claims for damages broadly fall into two categories: emotional
distress damages and damages resulting from her temporary dismissal from WCE. See Ex. 30.
As for emotional distress damages, Primrose alleges that she suffered actual damages in the
form of"embarrassment, humiliation, depression, stress, anguish, anxiety, fear, lack of sleep, lack
of appetite .... extreme emotional distress .... [and] [d]eliberate infliction of emotional harm."
Id. at 3. "Actual damages [under the FCRA] may include not only economic damages, but also
damages for humiliation and mental distress." Sloane v. Equifax Info. Servs.. LLC, 510 F.3d 495,
500 (4th Cir. 2007). Although a plaintiff's testimony by itself"can provide sufficient evidence to
support an emotional distress award," the Fourth Circuit requires the testimony to "sufficiently
articulate true demonstrable emotional distress." Id. at 503 (alteration and quotation omitted). A
plaintiff's testimony ''must indicate with specificity how the plaintiff's alleged distress manifested
itself' and ''must also show a causal connection between the [FCRA] violation and her emotional
distress." Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536, 547 (4th Cir. 2003) (alteration and
quotations omitted). "Demonstrable" emotional distress refers to emotional distress which leads to
externally observable occurrences like physical symptoms or a diagnosis from a medical
professional. See id.; Dennis v. Columbia Colleton Med. Ctr.. Inc., 290 F.3d 639, 653 (4th Cir.
16

2002). A plaintiff's emotional distress must have been directly caused by the FCRA violation and
not by the denial of a benefit for which the initial credit report was sought. See Dennis, 290 F.3d
at 653.
Primrose's claims for emotional distress damages recite the sort of generalized emotional
state that, if proven, is not the specific, demonstrable emotional distress required to recover
emotional distress damages under the FCRA. Primrose's claims do not "indicate with specificity
how [her] alleged distress manifested itself." Bryant, 333 F.3d at 547 (quotation omitted); cf.
Robinson, 560 F .3d at 240-41; Sloane, 510 F .3d at 503-04. Rather, they speak broadly about mental
states like embarrassment, or lack of appetite. Moreover, a psychologist, psychiatrist, or other
mental health professional has never evaluated Primrose, much less diagnosed her with anxiety,
depression, or any other condition. See Primrose Dep. 31-32. Furthermore, according to Primrose,
her emotional distress occurred as a result ofthird parties believing that she had committed common
law robbery, rather than the direct results of the inaccmate report itself. Therefore, even if Primrose
testified to the facts alleged in her claims for emotional distress damages, a reasonable jury would
not have a legally sufficient basis to find that she suffered emotional distress damages as a result of
Castle Branch's alleged FCRA violations.
Primrose also alleges damages arising from her temporary dismissal from WCE. However,
even ifthe court assumes without deciding that WCE dismissed Primrose because ofthe erroneously
listed common law robbery conviction, and not because of other "mismatches" between her selfdisclosme and the second Castle Branch report, no actual damages occurred. Specifically, on March

11, 2014, WCE dismissed Primrose. When dismissed, Primrose could not attend classes or contact
her professors. On March 12, 2014, WCE permitted Primrose to provisionally re-enroll and she did
so. From March 12 through Aprill, 2014, Primrose was allowed to attend classes and contact her

17

\

professors. On Aprill, 2014, WCE fully reinstated Primrose. Primrose concedes that the temporary
dismissal did not affect her ability to intern in the fall of2014, or her ability to graduate, and the
record contains no evidence that Primrose suffered any damages as a result of her temporary
dismissal. In fact, Primrose graduated from WCE. Furthermore, although Primrose did not
complete the internship, she concedes that this failure ''was not related to Castle Branch's conduct
or the ... background report in anyway." Defs.' Stmt. Material Facts~~ 150-51; Pl.'s Resp. Defs.'
Stmt. Material Facts

~~ 150-51.

Currently, Primrose has a teaching license and has taught in North

Carolina public schools since the springof2015. Defs.' Stmt. Material Facts~~ 155-57; Pl.'sResp.
Defs.' Stmt. Material Facts~~ 155-57.
Primrose has failed to produce sufficient facts from which a jury would have a legally
sufficient basis to conclude that she suffered any actual damages as a result of her temporary
dismissal from WCE. Thus, the court grants summary judgment to Castle Branch on Primrose's
claims under section 168lo.

IV.
As for Primrose's state law "libel and defamation" claims,4 the FCRA provides that except
for the specified remedies provided for in the FCRA,
no consumer may bring any action or proceeding in the nature of defamation ...
against any consumer reporting agency ... based on information disclosed by a user
of a consumer report to or for a consumer against whom the user has taken adverse
action, based in whole or in part on the report[,] except as to false information
furnished with malice or willful intent to injure such a consumer.

4

Under North Carolina law, defamation includes libel and slander. See Market Am.. Inc.
v. Christman-Otlh, 135 N.C. App. 143, 149-52, 520 S.E.2d 570, 576-77 (1999). Libel is defined
as a written defamation. Id. at 149, 520 S.E.2d at 576. Slander is defined as spoken defamation.
Id. at 151, 520 S.E.2d at 577.
18

15 U.S.C. § 1681h(e); see Ross v. F.D.I.C., 625 F.3d 808, 813-17 (4th Cir. 2010). Under North
Carolina law, libel and slander are "in the nature of defamation." Beattie v. Nations Credit Fin.
Servs. Corp., 69 F. App'x 585,590 &n.7 (4thCir2003) (per curiam) (unpublished) (analyzing libel
under South Carolina law as "in the nature of defamation" under section 1681h(e)); Market Am..
Inc., 135 N.C. App. at 149-52, 520 S.E.2d at 576-77. Here, no rational jury could find that Castle
Branch furnished any false information with malice or willful intent to injure Primrose. See, ~'
Ross, 625 F .3d 813-17. Accordingly, Primrose's "libel and defamation" claims are preempted, and
the court grants summary judgment to Castle Branch.

v.
In sum, the defendant's motion for summary judgment [D.E. 34] is GRANTED. Defendant
may file a motion for costs in accordance with the Federal Rules of Civil Procedure and this court's
local rules. The clerk shall close the case.
SO ORDERED. This _3_ day of January 2017.

SC.DEVERill
J
Chief United States District Judge

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