BAILEY v. EXPERIAN INFORMATION SOLUTIONS, INC. et al
Filing
37
MEMORANDUM OPINION AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 01/09/2012. IT IS THEREFORE RECOMMENDED that Santander Consumer USA, Inc.'s Motion for Summary Judgment and for Relief Under 15 U.S.C. 1681n(c) and 1 681o(c) (Docket Entry 29 ) be GRANTED IN PART and DENIED IN PART in that the Court should enter judgment as a matter of law for Santander and should dismiss this action with prejudice, but the Court should decline to award attorneys fees to Santander under 15 U.S.C. 1681n(c) and 1681o(b).(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KRISTYN BAILEY,
Plaintiff,
v.
SANTANDER CONSUMER USA,
Defendant.
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1:11CV437
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge for a recommended ruling on Santander Consumer
USA, Inc.’s Motion for Summary Judgment and for Relief Under 15
U.S.C. §§ 1681n(c) and 1681o(c) (Docket Entry 29).1
For the
reasons that follow, the Court should grant the instant Motion in
part and deny it in part.
Background
Plaintiff’s Complaint, filed with this Court pro se, alleges
violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§ 1681, et seq., against three Defendants - Experian Information
Solutions, Inc. (“Experian”), Trans Union LLC (“Trans Union”), and
Santander Consumer USA, Inc. (“Santander”).
(See Docket Entry 2.)
Although Santander’s instant Motion cites 15 U.S.C. § 1681o(c), the
undersigned interprets it as a request for relief under 15 U.S.C. § 1681o(b),
which allows the Court to award attorney’s fees upon a finding that a pleading
was filed “in bad faith or for purposes of harassment.” 15 U.S.C. § 1681o(b).
There is not a subsection (c) within 15 U.S.C. § 1681o.
1
After all Defendants filed answers to Plaintiff’s Complaint (see
Docket Entries 12, 17, 22), the Court held an Initial Pretrial
Conference at which Plaintiff failed to appear.
dated Sept. 22, 2011.)
(See Docket Entry
Plaintiff subsequently filed a Notice of
Voluntary Dismissal Without Prejudice (Docket Entry 28) “giv[ing]
notice of the voluntary dismissal of this action without prejudice”
(id. at 1 (emphasis in original)).
Shortly prior to that notice,
Santander had filed the instant Motion seeking summary judgment on
Plaintiff’s claims for violations of the FCRA and attorney’s fees
incurred in responding to the Complaint.
(See Docket Entry 30.)2
Trans Union and Experian filed written consents to Plaintiff’s
notice of voluntary dismissal.
(See Docket Entries 32, 34.)
Santander, however, did not consent (see Docket Entry dated Oct. 6,
2011) and instead continued in the case as the sole Defendant. See
Fed. R. Civ. P. 41(a)(1) (explaining circumstances under which
Plaintiff may accomplish dismissal without court authorization).
With Santander’s motion for summary judgment still pending, the
Clerk mailed Plaintiff a letter explaining that Plaintiff had “the
right to file a 20-page response in opposition to [Santander’s
instant Motion] . . . .”
(Docket Entry 31 at 1.)
2
The letter
Santander originally filed its motion for summary judgment and
corresponding memorandum on September 23, 2011 - three days before Plaintiff
served her notice of voluntary dismissal. (See Docket Entries 27, 28.) However,
as Santander failed to file its motion and memorandum as separate documents, it
received a Notice of Deficiency re Electronically Filed Document. (See Docket
Entry dated Sept. 26, 2011). Santander re-filed its motion and memorandum as
separate documents on the same day that Plaintiff filed her notice of dismissal.
(See Docket Entries 28, 29, 30.)
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specifically cautioned Plaintiff that her “failure to respond or,
if appropriate, to file affidavits or evidence in rebuttal within
the
allowed
time
may
cause
the
court
to
conclude
that
the
defendant’s contentions are undisputed and/or that [she] no longer
wish[es] to pursue the matter.
Therefore, unless [she] file[s] a
response in opposition to the defendant’s motion, it is likely
[her] case will be dismissed or summary judgment granted in favor
of the defendant.”
(Id.)
Despite these warnings, Plaintiff has
not filed a response to Santander’s instant Motion.
(See Docket
Entries dated Sept. 26, 2011, to present.)
Summary Judgment
The Court should enter summary judgment for Santander both
because Plaintiff failed to respond to the instant Motion and
because the record establishes Santander’s entitlement to judgment
as a matter of law.
Under this Court’s Local Rules, failure to respond to a motion
generally warrants granting the relief requested.
See M.D.N.C. R.
7.3(k). Moreover, the Clerk specifically warned Plaintiff that her
failure to respond to the instant Motion would likely lead to
dismissal or a finding of summary judgment for Santander.
Docket Entry 31 at 1.)
(See
Furthermore, Plaintiff has consistently
failed to take the necessary steps to prosecute her action and has
offered no explanation to the Court for those shortcomings.
-3-
Under
these circumstances, the Court should follow its general rule and
should enter summary judgment.
In addition, Santander is entitled to summary judgment because
there is no genuine issue of material fact.
Under Fed. R. Civ. P.
56(a), “[t]he [C]ourt shall grant summary judgment 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.”
In
considering that question, the Court “may not make credibility
determinations
Plumbing
or
Prods.,
weigh
Inc.,
the
530
evidence.”
U.S.
133,
Reeves
150
v.
(2000).
Sanderson
However,
“unsupported speculation is not sufficient to defeat a summary
judgment motion if the undisputed evidence indicates that the other
party should win as a matter of law.”
Francis v. Booz, Allen &
Hamilton, Inc., 452 F.3d 299, 308 (4th Cir.2006).
In the instant case, Plaintiff’s allegations relate to a
perceived failure on the part of Santander - holder of Plaintiff’s
account related to a vehicle purchase - to adequately investigate,
and to refrain from reporting, Plaintiff’s disputed ownership of
said account.
(See Docket Entry 2, ¶¶ 7, 23.)
Specifically,
Plaintiff alleges:
Defendant violated sections 1681n and 1681o of the
FCRA by engaging in the following conduct that violates
15 U.S.C. § 1681s-2 and 168H:
a.
Willfully and/or negligently failing to
conduct an investigation of the inaccurate
information that Plaintiff disputed;
-4-
b.
Willfully and/or negligently failing to review
all relevant information concerning Plaintiffs
[sic]
accounts
which
was
provided
to
Defendants;
c.
Willfully and/or negligently reporting the
inaccurate status of the information to all
credit reporting agencies;
d.
Willfully and/or negligently failing to
properly participate, investigate and comply
with the re-investigations that were conducted
by any and all credit reporting agencies
concerning the inaccurate information disputed
by Plaintiff;
e.
Willfully and/or negligently continuing to
furnish
and
disseminate
inaccurate
and
derogatory
credit,
account
and
other
information concerning Plaintiff, despite
knowing that said information was inaccurate;
f.
Willfully and/or negligently failing to comply
with the requirements imposed on furnishers of
information pursuant to 15 U.S.C. § 1681s-2;
and/or
g.
Willfully and/or negligently failing to comply
with the requirements imposed on consumer
reporting agencies pursuant to 15 U.S.C.
§ 1681i.
(Id., ¶ 23.)
A
fair
reading
of
Plaintiff’s
Complaint
leads
to
the
conclusion that Plaintiff brings this action against Santander
specifically for violation of 15 U.S.C. § 1681s-2(b).
Section
1681s-2(b) pertains to the obligations of an entity in Satander’s
role when given notice of a dispute.
It provides:
After receiving notice pursuant to section 1681i(a)(2) of
this title of a dispute with regard to the completeness
or accuracy of any information provided by a person to a
consumer reporting agency, the person shall—
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(A) conduct an investigation with respect to the disputed
information;
(B) review all relevant information provided by the
consumer reporting agency pursuant to section 1681i(a)(2)
of this title;
(C) report the results of the investigation to the
consumer reporting agency;
(D) if the investigation finds that the information is
incomplete or inaccurate, report those results to all
other consumer reporting agencies to which the person
furnished the information and that compile and maintain
files on consumers on a nationwide basis; and
(E) if an item of information disputed by a consumer is
found to be inaccurate or incomplete or cannot be
verified after any reinvestigation under paragraph (1),
for purposes of reporting to a consumer reporting agency
only, as appropriate, based on the results of the
reinvestigation promptly—
(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of
information.
15 U.S.C. § 1681s-2(b).
In conjunction with its instant Motion, Santander has provided
credible evidence showing its compliance with these requirements.
Specifically, in the form of the sworn statement of its Senior Vice
President for Servicing Operations, Santander has detailed its
investigation into Plaintiff’s account.
(See Docket Entry 30-1.)
Santander has also submitted the original credit application of
Plaintiff, complete with Plaintiff’s signature and a copy of
Plaintiff’s driver’s license, along with a retail sales installment
contract signed by Plaintiff, all of which support its assertion
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that its investigation properly identified Plaintiff as the holder
of the account in question.
(See id. at 4-9.)
Plaintiff, by
failing to respond to the instant Motion, has identified no
evidence to rebut Santander’s showing.
Accordingly, because the
“undisputed evidence indicates that [Santander] should win as a
matter of law,” Booz, Allen & Hamilton, 452 F.3d at 308, Santander
is entitled to summary judgment.
Relief Under 15 U.S.C. §§ 1681n(c) and 1681o(b)
Santander also contends that it is entitled to relief in the
form of attorney’s fees because Plaintiff filed the Complaint “in
bad faith or for purposes of harassment,” 15 U.S.C. §§ 1681n(c),
1681o(b). (See Docket Entry 30 at 9.) This contention requires the
Court to find that Plaintiff “filed an action that was frivolous,
unreasonable, or without foundation.”
Smith v. HM Wallace, Inc.,
No. 08-22372-CIV, 2009 WL 3179539, at *2 (S.D. Fla. Oct. 1, 2009)
(unpublished); see also In re Countrywide Financial Corp. Customer
Data Sec. Breach Litigation, No. 3:08-MD-01998, 2010 WL 5147222, at
*4 (W.D. Ky. Dec. 13, 2010) (unpublished) (citing same).
“Bad
faith is ‘not simply bad judgment or negligence, but implies the
conscious doing of a wrong because of a dishonest purpose or moral
obliquity; . . . it contemplates a state of mind affirmatively
operating with furtive design or ill will.’”
Shah v. Collecto,
Inc., No. Civ.A.2004-4059, 2005 WL 2216242, *14 (D. Md. Sept. 12,
2005) (unpublished) (quoting Black’s Law Dictionary 139 (6th ed.
-7-
1990)); see also In re 1997 Grand Jury, 215 F.3d 430, 436 (4th Cir.
2000) (citing same bad faith definition in analysis of sanctions
related to criminal complaint filing).
Furthermore, this determination must focus on the plaintiff’s
mental state at the time of filing.
See Rogers v. Johnson-Norman,
514 F. Supp. 2d 50, 52 (D.D.C. 2007) (“It is not enough to show
that the ‘pleading, motion, or other paper’ in question ‘later
turned out to be baseless.’” (quoting Ryan v. Trans Union Corp.,
No. 99-216, 2001 WL 185182, at *6 (N.D. Ill. Feb. 26, 2001)
(unpublished))).
The moving party bears the burden to show
entitlement to fees.
See Eller v. Experian Info. Solutions, Inc.,
Civil Action No. 09-cv-00040-WJM-KMT, 2011 WL 3365955, at *18 (D.
Colo. May 17, 2011) (unpublished) (“It appears the burden is on the
party moving for fees under Sections 1681n or 1681o to demonstrate
that they are warranted.”); DeBusk v. Wachovia Bank, No. CV 060324-PHX-NVW,
2006
WL
3735963,
*4
(D.
Ariz.
Nov.
17,
2006)
(unpublished) (“It is the burden of the party moving for fees under
§ 1681n(c) to demonstrate that they are warranted.”).
As grounds for the Court to find the required mens rea,
Santander
contends
[Plaintiff]’s
that
[a]ccount.
“[t]he
She
[a]ccount
knew
that
is
when
and
always
was
filed
the
she
Complaint. She knows that she bought the [v]ehicle and made
payments
under
the
Contract
that
she
signed
after
receiving
approval on the Credit Application that she signed.” (Docket Entry
-8-
30 at 9.)
The Court should find these inferences from the record
insufficient to establish that Plaintiff filed this action in bad
faith
or
confusion
for
or
the
purpose
mistake.
of
harassment,
Accordingly,
to
rather
the
than
extent
due
to
Santander
requests relief under 15 U.S.C. §§ 1681n(c) and 1681o(b), the
instant Motion should be denied.
Conclusion
On the record of this case, no reason exists to depart from
the general rule that Plaintiff’s failure to respond to Santander’s
instant Motion warrants the granting of summary judgment for
Santander. See M.D.N.C. R. 7.3(k).
Furthermore, because Plaintiff
failed to rebut Santander’s evidentiary showing, the “undisputed
evidence indicates that [Santander] should win as a matter of law.”
Booz, Allen & Hamilton, 452 F.3d at 308.
record
lacks
sufficient
evidence
to
However, because the
support
a
finding
that
Plaintiff filed her Complaint “in bad faith or for purposes of
harassment,” the Court should deny Santander’s motion to the extent
it seeks relief in the form of attorney’s fees under 15 U.S.C.
§§ 1681n(c) and 1681o(b).
IT IS THEREFORE RECOMMENDED that Santander Consumer USA,
Inc.’s Motion for Summary Judgment and for Relief Under 15 U.S.C.
§§ 1681n(c) and 1681o(c) (Docket Entry 29) be GRANTED IN PART and
DENIED IN PART in that the Court should enter judgment as a matter
of law for Santander and should dismiss this action with prejudice,
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but the Court should decline to award attorney’s fees to Santander
under 15 U.S.C. §§ 1681n(c) and 1681o(b).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 9, 2012
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