Miller v. Experian Information Solutions, Inc. et al

Filing 101

ENTRY AND ORDER OVERRULING MILLER'S MOTION TO STRIKE (Doc. 95 ) AND GRANTING TRANS UNIONS MOTION FOR SUMMARY JUDGMENT (Doc. 89 ): Miller is given until not later than fourteen (14) days following entry of this Order to renew a motion for defau lt judgment against Infinity. Failure to do so will result in the captioned cause being terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. Signed by Judge Thomas M Rose on 2/12/15. (ep)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CARIN MILLER,
Case No. 3:13-cv-090
Plaintiff,
Judge Thomas M. Rose
-vEXPERIAN INFORMATION SOLUTIONS
INC., et al.,
Defendants.
______________________________________________________________________________
ENTRY AND ORDER OVERRULING MILLER’S MOTION TO STRIKE
(Doc. #95) AND GRANTING TRANS UNION’S MOTION FOR
SUMMARY JUDGMENT (Doc. #89)
______________________________________________________________________________
Plaintiff Carin Miller (“Miller”) has filed an Amended Complaint against Defendants
Experian Information Solutions, Inc. (“Experian”), Equifax, Inc. (“Equifax”), Transunion LLC
(“Trans Union”), Wites & Kapetan, P.A. (“W & K”), Infinity Marketing Solutions, Inc.
(“Infinity”), Equifax Information Services LLC (“Equifax Information”) and Doe Company Debt
Collector. (Doc. #41.) Therein, Miller sued all of the Defendants for violation of the Fair Credit
Reporting Act (the “FCRA”), 15 U.S.C. § 1681 et seq. Miller also sued, what she terms, the
“Debt Buyers” for invasion of privacy - wrongful intrusion. In her Amended Complaint, she
defines the “Debt Buyers” as W & K, Infinity and Doe Company Debt Collector. (Doc. #41, ¶
12.)
The Doe Company Debt Collector has not yet been identified. Experian and W & K have
been dismissed by Miller. (Doc. #56.) Infinity has been served but has not answered or otherwise
defended within the allotted time. Therefore, Infinity has been adjudged to be in default (doc.
#25), but the Court has elected to not yet enter default judgment against Infinity (doc. #28). On

June 19, 2014, Miller filed a Notice of Settlement with Defendants Equifax and Equifax
Information, although the stipulated dismissal with prejudice of these two Defendants specified
in the Notice of Settlement has not yet been filed. (Doc. #45.) The only remaining active
Defendant, then, is Trans Union.
On August 22, 2014, Miller sought summary judgment against Trans Union. (Doc. #63.)
That Motion was denied on November 5, 2014. (Doc. #88.)
Now before the Court is Trans Union’s Motion for Summary Judgment. (Doc. #89.) This
Motion is now fully briefed and ripe for decision. Also before the Court is a Motion To Strike a
Declaration submitted by Trans Union as part of its Motion for Summary Judgment. (Doc. #95.)
This Motion, too, is now fully briefed and ripe for decision.
The Motion To Strike will first be addressed. This will be followed by the relevant
factual background, the standard of review for motions for summary judgment, other relevant
legal provisions and an analysis of Trans Union’s Motion for Summary Judgment.
MOTION TO STRIKE
Trans Union submitted the Declaration of Michelle Simms (“Simms Decl.”) as an exhibit
to its Motion for Summary Judgment. Michelle Simms (“Simms”) is Senior Director of
Operations for Trans Union, and her Declaration, at issue here, is dated November 18, 2014.
Miller moved to strike Simms’ Declaration because it: (a) bears a false attestation; (b) is
inherently inconsistent with prior deposition testimony; and (c) fails to comply with Fed. R. Civ.
P. 26(a) (initial disclosures) and 26(e) (duty to supplement).
The Court does not find it necessary to refer to Simms’ Declaration to decide the pending
Motion for Summary Judgment. However, in the interest of expediting a possible appeal, the

-2-

Court will decide the Motion To Strike.
False Attestation
Miller asserts that Simms falsely attested that she had personal knowledge of Trans
Union Interactive, Inc.’s (“TUI’s”) processes in her Declaration dated November 18, 2014.1 Yet,
in her sworn deposition taken on October 8, 2014, Simms testified that her understanding of
TUI’s processes came from Kate Anderson at TUI.2 (Deposition of Michelle Simms (“Simms
Dep.”) 22 Oct. 8, 2014.) Trans Union responds that Simms was Trans Unions’ 30(b)(6)
representative and was, therefore, permitted to offer testimony on TUI’s processes.
On August 1, 2014, Trans Union produced documents pursuant to the Court’s Order of
July 21, 2014. (Doc. #60.) Included were documents that Trans Union independently obtained
from TUI, a non-party.
In response to Miller’s initial notice of Trans Union’s Rule 30(b)(6) deposition, Trans
Union moved for a protective order arguing that Miller should be required to get testimony
regarding TUI from TUI. Miller then successfully argued that Trans Union was the proper party
to be deposed on, among other things, all documents produced by Trans Union in discovery. The
Court ordered Trans Union to make a Rule 30(b)(6) representative available to testify regarding,
among other things, the TUI documents produced by Trans Union. During Simms’ Deposition,
Miller’s attorney asked questions regarding TUI, but elected not to ask specifically about the

1

TUI is a wholly-owned subsidiary of Trans Union.

2

Kate Anderson’s Declaration has been struck by the Court (doc. #88) because she was
not identified by Trans Union as a witness. Simms was identified by Trans Union as a Rule
30(b)(6) witness to testify based upon the organization’s collective knowledge and the witness’s
personal knowledge.
-3-

TUI Credit Monitoring Order Form and the TUI Service Agreement.3 In addition, Simms was
deposed regarding all of the topics in the declaration that Miller now wishes to strike.
Simms was provided as a Rule 30(b)(6) representative. She testified, pursuant to a Court
Order and answered very specific questions by Miller’s attorney about the nature of TUI’s credit
monitoring services.
Trans Union should not be penalized because Miller’s attorney elected to not ask Simms
questions about certain TUI issues when given an opportunity to do so by the Court. Also, Trans
Union later provided information regarding the TUI Credit Monitoring Order Form and the TUI
Service Agreement through Simms, a witness ordered by the Court to testify on the very issues.
Miller has not shown that Simms’ Declaration should be struck because Miller doesn’t think that
Simms had personal knowledge about TUI, particularly when Miller’s attorney insisted on
examining Simms, Trans Union’s 30(b)(6) representative, about TUI.
Miller also asserts that Simms’ Declaration is false because Exhibit 3-A to Simms’
Declaration expressly recited: “Anne, you’re one step closer to your FREE score and
monitoring.” This, according to Miller, cannot be the online order form that Miller used because
Miller has never been called “Anne.” Trans Union responds that Miller’s argument misstates the
Simms Declaration which states only that a copy of the TUI credit monitoring order form is
attached, and not that the specific form that Miller used is attached.
Simms’ Declaration states, “[a]t the time she purchased the Credit Monitoring Report

3

Simms’ Declaration includes reference to copies of TUI’s Credit Monitoring Order
Form and Service Agreement. Miller was provided with these documents in discovery and
granted the right to inquire about them at Simm’s Deposition. Simms also testified that she was
enrolled, herself, in TUI”s credit monitoring service. (Simms Dep. 163-63.)
-4-

from TUI, Plaintiff first entered her identifying information into the online TUI credit
monitoring order form, a true and accurate copy of which is attached hereto as Exhibit ‘A.’”
Simms Declaration can be read to say that Exhibit A is a copy of TUI’s credit monitoring order
form and not necessarily a copy of the actual form that Miller submitted. Therefore, the Court
cannot find Simms’ declaration regarding Exhibit A to be false, provided that Exhibit A is
considered to be a sample order form and not Miller’s actual order form.
Inherently Inconsistent
Miller asserts that Simms’ Declaration is inherently inconsistent. However, Miller does
not argue, beyond the “false attestation” argument, how Simms’ Declaration is internally
inconsistent. Also, Trans Union offers no argument on this specific issue. Therefore, this issue
will not be further considered.
Fails To Comply With Rules 26(a) and 26(e)
Finally, Miller asserts that Simms’ Declaration should be struck because Trans Union
failed to comply with Fed. R. Civ. P. 26(a) and 26(e). More specifically, Trans Union never
identified Simms as having any information relating to TUI. Trans Union responds that,
although it never identified Simms as having any information relating to TUI, it was ordered by
the Court to provide a witness on four topics, including the TUI documents produced by Trans
Union.
Rule 26(a)(1)(A) requires a party to provide the name of each individual likely to have
discoverable information and the subject of that information, that the disclosing party may use to
support its claims or defenses. Rule 26(e) requires the disclosures made under Rule 26(a) to be
supplemented or corrected in a timely manner or as ordered by the Court. Finally, Rule 37(c)(1)

-5-

provides that, if a party fails to provide information or identify a witness, as required by Rule
26(a) or (e), the party may not use that information or witness to supply evidence on a motion
unless the failure was substantially justified or harmless.
Initially, Trans Union never identified Simms as having any information relating to TUI.
However, as more fully set forth above, at Miller’s urging, the Court ordered Trans Union to
testify about the TUI forms that Trans Union provided in discovery. Further, Simms was Trans
Unions’ Rule 30(b)(6) witness. So Simms was essentially ordered to testify about TUI, and
Miller’s attorney subsequently had a full opportunity to examine Simms about issues, including
TUI. Thus, Miller cannot now be heard to complain about Simms’ testimony.
Conclusion
Miller has not shown that Simms’ Declaration should be struck. Miller’s Motion To
Strike (doc. #95) is overruled. Simms’ Declaration is not considered below but it could have
been.
RELEVANT FACTUAL BACKGROUND4
When this lawsuit was filed, Miller was a resident of Ohio. (Am. Compl. ¶ 2.) Trans
Union is a nationwide credit reporting agency. (Id. at ¶ 6.) It is undisputed that Miller is a
consumer and Trans Union is a nationwide credit reporting agency.
Miller’s Deposition was taken on August 12, 2014. She testified that, in preparation for
her application to the bar, she obtained what she terms a “free credit report” (the “October 2013
Report”). (Deposition of Carin R. Miller (“Miller Dep.”) 60 Aug. 12, 2014.) According to

4

For purposes of a motion for summary judgment, the facts are viewed in a light most
favorable to the nonmoving party, Miller in this case.
-6-

Miller’s testimony, she went to the FTC website to find out how to obtain the free credit report.
(Id.) There she was provided with a link to another page termed “annualcreditreport.com.” (Id.)
She then followed the prompts which took her to different credit bureaus, including Trans Union.
(Id. at 60-61.) Miller does not remember what the text of the link said when she clicked on Trans
Union. (Id. at 64.)
At this point in her Deposition, Miller is referring to what is termed Exhibit 5. (Id. at 60.)
Exhibit 5 is a report that is captioned “Online Personal Credit Reports & Credit Scores TransUnion Credit Monitoring.” (Miller Dep. Ex. 5.) This report indicates that it is from the
website “tui.transunion.com” and is dated October 3, 2013, at 6:22 a.m. (Id.)
Miller received an email receipt for obtaining the October 2013 Report. (Miller Dep. 7375.) She received this email from [e-mail]. (Id.) This email references
details of the ordering of a three-bureau-credit-monitoring-report. (Id.) Further, the October 2013
Report indicates that the credit reporting agencies are TransUnion, Experian and Equifax.
(Affidavit of Carin Miller (“Miller Aff.”) Ex. A Aug. 19, 2014.)
Miller later submitted an Affidavit dated August 19, 2014. Therein she states that she
ordered a consumer report from www.transunion.com. (Id. at ¶ 2.) She attaches a copy of this
report to her Affidavit as Ex. A. This report is captioned “Online Personal Credit Reports &
Credit Scores - TransUnion Credit Monitoring.” (Miller Aff. Ex. A.) This report indicates that it
is from the website “tui.transunion.com” and is dated October 3, 2013, at 6:22 a.m. (Id.)
In her Deposition, Simms is asked about “29.” But, there is no exhibit 29 included with
her Deposition nor is “29" further identified in the briefing papers.
Trans Union provides only consumer disclosures through annualcreditreport.com.

-7-

(Simms Dep. 91.) Trans Union does not provide a credit report through annualcreditreport.com.
(Id. at 92.)
In addition, Trans Union provides a credit monitoring service that the consumer
specifically signs up for. (Id. at 98.) This credit monitoring allows consumers to monitor their
credit and the elements that appear on a credit report that would be considered for credit
decisions by financial institutions. (Id. at 98-99.) The credit monitoring report would contain the
same information found in credit reports provided to third-parties. (Id. at 97.)
Trans Union has no record of Miller requesting a consumer disclosure from Trans Union
or through www.annualcreditreport.com. (Id. at 90.) Further, Trans Union has no “inquiry”
associated with Miller showing that Miller made such a request. (Id.) Trans Union does,
however, have a record of Miller making a request for her TUI Credit Monitoring Report from
TUI on October 3, 2013 at 6:22 a.m. (Id. at 167; Ex. 18.)
STANDARD OF REVIEW
Trans Union’s Motion for Summary Judgment is brought pursuant to Fed. R. Civ. P. 56.
Rule 56 and its associated caselaw establish the standard of review for summary judgment.
Rule 56 provides that summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Alternatively, summary
judgment is denied “[i]f there are any genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in favor of either party.” Hancock v.
Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

-8-

242, 250 (1986)).
The party seeking summary judgment has the initial burden of informing the court of the
basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file together with the affidavits which it believes demonstrate
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The burden then shifts to the nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ.
P. 56(e)). Once the burden of production has shifted, the party opposing summary judgment
cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to
“simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 “requires the
nonmoving party to go beyond the [unverified] pleadings” and present some type of evidentiary
material in support of its position. Celotex Corp., 477 U.S. at 324.
In determining whether a genuine issue of material fact exists, a court must assume as
true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that
party. Anderson, 477 U.S. at 255. If the parties present conflicting evidence, a court may not
decide which evidence to believe by determining which parties’ affirmations are more credible.
10A Wright & Miller, Federal Practice and Procedure, §2726. Rather, credibility
determinations must be left to the fact-finder. Id. However, the mere existence of a scintilla of
evidence in support of the nonmoving party is not sufficient to avoid summary judgment.
Anderson, 477 U.S. at 252. “There must be evidence on which the jury could reasonably find for
the plaintiff.” Id. The inquiry, then, is whether reasonable jurors could find by a preponderance

-9-

of the evidence that the nonmoving party is entitled to a verdict. Id.
Finally, in ruling on a motion for summary judgment, “[a] district court is not…
obligated to wade through and search the entire record for some specific facts that might support
the nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.
1989), cert. denied, 494 U.S. 1091 (1990). Thus, in determining whether a genuine issue of
material fact exists on a particular issue, the court is entitled to rely upon the Rule 56 evidence
specifically called to its attention by the parties. The Rule 56 evidence includes the verified
pleadings, depositions, answers to interrogatories and admissions on file, together with any
affidavits submitted. Fed. R. Civ. P. 56(c).
RELEVANT LEGAL PROVISIONS
Miller claims that Trans Union has violated the FCRA. The FCRA requires consumer
reporting agencies to “adopt reasonable procedures for meeting the needs of commerce for
consumer credit, personnel, insurance, and other information in a manner which is fair and
equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper
utilization of such information….” 15 U.S.C. § 1681(b). A “consumer” is defined in the FCRA
as “an individual.” 15 U.S.C. § 1681a(c). A consumer reporting agency is “any person which, for
monetary fees, dues, or on a cooperative nonprofit 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 consumer 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).
The FCRA provides for two (2) types of reporting regarding consumers - a consumer

-10-

report and a disclosure to consumers. A third type of report, although not governed by relevant
legal provisions, is at issue in this case. It is termed a “credit monitoring report.”
Finally, the FCRA provides for compensatory damages, statutory damages, punitive
damages and attorneys’ fees for wilful noncompliance. 15 U.S.C. 1681n. To prove wilfulness, a
plaintiff must show that a defendant acted knowingly or recklessly when committing a violation.
Safeco Insurance Company of America v. Burr, 551 U.S. 47, 57-58 (2007). Further, only
defendants who wilfully violate the FCRA are subject to liability under Section 1681n.
Stevenson v. TRW Inc., 987 F.2d 288, 293 (5th Cir. 1993)
Consumer Report
A “consumer report” is defined in the FCRA as “any written, oral, or other
communication of any information by a consumer reporting agency bearing on a consumer’s
credit worthiness, credit standing, credit capacity, character, general reputation, personal
characteristics, or mode of living which is used or expected to be used or collected in whole or in
part for the purpose of serving as a factor in establishing the consumers eligibility for… credit.”
15 U.S.C. § 1681a(d). Section 1681b lists the permissible purposes of consumer reports. For
example, promotional inquiries are generally prohibited from being disclosed on consumer
reports. 15 U.S.C. § 1681b(c)(3). Finally, consumer reports are generally termed “credit reports.”
(See Simms Dep. at 81, 83.)
Disclosure To Consumer
Section 1681g describes “disclosures to consumers.” This section requires every
consumer reporting agency to clearly and accurately disclose certain information to the
consumer including all information in the consumer’s file at the time of the request with certain

-11-

exceptions. 15 U.S.C. § 1681g(a). Consumer reporting agencies must also disclose each person
that procured a consumer report for any purpose during the one-year period preceding the date
on which the request is made and a record of all inquiries received during the one-year period
preceding the request that identified the consumer in connection with a credit or insurance
transaction that was not initiated by the consumer. 15 U.S.C. § 1681g(a)(3)(A)(ii) and
1681G(a)(5). Thus, promotional inquiries must be included in disclosures to consumers. 15
U.S.C. § 1681g(a)(5). One of the primary differences between a consumer report and a
disclosure to a consumer is the inclusion of promotional inquiries in consumer disclosures and
not in consumer reports. (Simms Dep. at 96.)
According to Simms, a consumer disclosure is a “picture” of everything on a consumer
report including “hard” inquiries that consumers have requested “and given permissible purpose
to post” and any soft inquiries that got posted as a result of campaigns. (Simms Dep. at 51.) A
“hard” inquiry is “an offer of credit or a request from a consumer to get credit pulled.” (Id.)
There are two (2) types of “soft” inquiries. (Id. at 52.) One is for professional purposes - either
solicitations or monitoring inquiries. (Id.) The other is an account review made by credit
monitoring services. (Id.) Specifically, “hard” inquiries are made for requests for firm offers of
credit and the “soft” are for either promotional or monitoring purposes. (Id.)
The FCRA requires that consumer reporting agencies make consumer disclosures once
during any 12-month period without charge to the consumer. 15 U.S.C. § 1681j(a)(1)(A). The
Section governing consumer disclosures provides that free credit reports are available at
AnnualCreditReport.com. 15 U.S.C. § 1681j(g)(1). Thus, the free annual credit report is a
consumer disclosure. (See Simms Dep. 95.) It is a consumer disclosure because it is announced

-12-

in the FCRA section regulating consumer disclosures.
Credit Monitoring Report
Consumer reporting agencies also make credit monitoring available to consumers.
(Simms Dep. at 98.) The purpose of the credit monitoring report provided by TUI is to provide
consumers with the information that would be provided to prospective creditors so that
consumers can track and evaluate their credit-worthiness. (Id. at 98-99.) TUI’s credit monitoring
report monitors the consumer’s performance and how lenders would view them. (Id.) Finally, if
credit monitoring is not provided by a consumer reporting agency as defined in the FCRA, the
credit monitoring report is not regulated by the FCRA. So a credit monitoring report is a report
provided to a consumer but not by a consumer reporting agency. (Simms Dep. at 83, 92.)
Credit monitoring reports are not governed by the FCRA, and, therefore, do not involve
relevant legal provisions. A discussion of credit monitoring reports is included here, however,
because they are relevant to the issue at hand.
ANALYSIS
Miller has pursued various claims against Trans Union at various times during this
litigation. Therefore, the Court must determine what is/are Miller’s current complaint(s).
Miller’s Original Complaint
Miller’s original Complaint (doc. #1), filed on March 26, 2013, alleges that Trans Union
violated the FCRA when it provided her consumer report to Defendants W&K and Infinity.
(Compl. ¶ 30.) Simms has testified that Trans Union has never provided a credit report regarding
Miller to W&K or Infinity (Simms Dep. 35-36), and Miller has provided no reliable evidence
that Trans Union did.

-13-

After Miller received the October 2013 Report in October of 2013, she filed an Amended
Complaint. (Doc. #37.) The Amended Complaint was filed on June 2, 2014. In the Amended
Complaint, Miller adds a charge that Trans Union violated the FCRA because the October 2013
Report did not include any inquiries from Mobiloans and she had received an offer of credit from
Mobiloans which indicated that the offer was based upon information in Miller’s credit report.
(Am. Compl. ¶¶ 22-23, 29-32.)
Then, on October 31, 2014, this Court determined that Miller was claiming that
TransUnion violated the FCRA in two ways: (1) by providing Miller’s consumer report to one or
more third parties (specifically, now-dismissed party W& K) without a permissible purpose; and
(2) by selling or disseminating pre-screened lists including Miller’s credit information, and
failing to list such sales or disseminations on Miller’s consumer report. (Doc. #86.) With one
exception to be explored below, Miller has provided no reliable evidence that Trans Union
violated the FCRA.
Miller’s Current Claim
On August 22, 2014, Miller filed a Motion for Summary Judgment against Trans Union.
(Doc. #63.) Therein, she alleged that Trans Union has wilfully violated the FCRA by
deliberately failing to disclose certain required information, and by intentionally providing a
“credit monitoring product” instead of a complete consumer report. Therein, Miller identifies
three (3) reports that she received. One was allegedly from Trans Union and the other two (2)
were provided to Miller pursuant to this Court’s Order by Trans Union during discovery. The
two reports provided by Trans Union during discovery cannot be the subject of an FCRA claim
by Miller because they were not requested by Miller as required by section 1681g. Further,

-14-

Simms has testified as to why these two (2) reports are not violations of the FCRA and Miller
has not argued otherwise. (Simms Dep. 45-48.)
Finally, in her Memorandum In Opposition to Trans Union’s Motion for Summary
Judgment, Miller primarily discusses the October 2013 Report. Mention is made of the other two
(2) reports discussed in the Motion for Summary Judgment that she filed, but they are not
actionable as discussed above.
Thus, the issues about which Miller complains have changed throughout this litigation.
For purposes of Trans Union’s Motion for Summary Judgment, allegations regarding the
October 2013 Report will be considered to be Miller’s only remaining complaint against Trans
Union.
Analysis of Summary Judgment On Current Claim
Trans Union argues that summary judgment should be granted because it has not violated
FCRA §§ 1681b and 1681g and because Miller has no actual damages and there is no evidence
of wilful violation of the FCRA by Trans Union. Each will be addressed seriatim.
Violation of the FCRA
Miller’s Amended Complaint alleges that Trans Union violated the FCRA when it failed
to list the sale or dissemination of pre-screened lists on Miller’s “consumer report.” (Am. Compl.
¶ 62.) The “consumer report” to which Miller refers is the October 2013 Report.
The October 2013 Report is a report issued by TUI. At the top, it indicates, “Online
Personal Credit Reports & Credit Scores - TransUnion Credit Monitoring.’ At the bottom, the
October 2013 Report indicates that it was printed from “http//tui.transunion.com….” Finally,
Miller received an email receipt for obtaining the October 2013 Report from transunion@e-

-15-

tui.transunion.com.
There is no evidence that TUI is a consumer reporting agency as defined by the FCRA.
There is, however, evidence that TUI issues credit monitoring reports such as the October 2013
Report received by Miller. There is also evidence that the report Miller alleges she received in
October of 2013 is a credit monitoring report and that it was issued by TUI. Thus, the October
2013 Report is a credit monitoring report, and it was issued by TUI.
Miller attempts to show that she received the October 2013 Report from Trans Union but
her story is told two (2) different ways. At her deposition on August 12, 2014, Miller testified that
she obtained the October 2013 Report by going through the “annualcreditreport.com” website to a
Trans Union website. In an Affidavit dated August 18, 2019, Miller affirms that she received the
October 2013 Report from www.transunion.com. In both cases, the report that Miller is referring
to is the October 2013 Report, which, as determined above, came from a TUI website.
The October 2013 Report was provided by TUI and is, therefore, not governed by the
FCRA. Thus, Miller cannot show that the FCRA was violated by the October 2013 Report.
Miller claims the October 2013 Report is a credit report that violates the FCRA because
an “account review inquiry” appears on the October 2013 Report. However, as determined above,
the October 2013 Report is not a credit report, it is a credit monitoring report. Further, TUI says
that it treats its credit monitoring reports as consumer disclosures and consumer disclosures that
are regulated by the FCRA include account review inquiries.
Miller also argues that she necessarily ordered a consumer report, and not merely a credit
monitoring report, because (1) she ordered her consumer report through annualcreditreport.com;
(2) Trans Union provides only consumer disclosures through annualcreditreport.com; and (3)

-16-

Trans Union did not provide a credit report through annualcreditreport.com. First, no matter what
she thinks she may have ordered, she received a credit monitoring report from TUI. Second, just
because she went through the annualcreditreport.com website, does not necessarily infer that what
she ended up receiving was a credit (consumer) report or a consumer disclosure. Third, there is no
reliable evidence that Miller received anything from Trans Union by going through the
annualcreditreport.com website. Thus, this argument is unavailing.
Miller also attempts to convince the Court that she ordered a complete consumer report
from Trans Union because she says she ordered a complete consumer report from Equifax and
Experian on the same day as she ordered the October 2013 Report. However, this argument is
unconvincing. The Court does not know why Miller ordered a credit monitoring report from TUI
and yet, according to herself, ordered consumer reports from Equifax and Experian on the same
day, but she may have.
Finally, Miller asserts that this Court has already determined that, “there is a question of
fact as to whether Miller asked for and received a credit report or a credit monitoring report.”
This determination was made in an Order denying Miller summary judgment and was based upon
the evidence presented therein and the burdens-of-proof for a motion made by Miller. The
determination here that Miller received a credit monitoring report is based upon the Rule 56
evidence, or lack thereof, associated with Trans Union’s Motion for Summary Judgment and upon
a careful reading of all of the relevant law.
In sum, Miller has not presented any reliable evidence that Trans Union violated the
FCRA. Thus, there are no genuine issues of material fact and Trans Union is entitled to judgment
as a matter of law on Miller’s claim that Trans Union violated the FCRA.

-17-

Damages
Millers’ Amended Complaint asserts that she is entitled to actual and punitive damages,
statutory damages, attorney’s fees and costs due to the harm she suffered and due to Trans
Union’s wilful conduct. Miller specifically argues that Trans Union has wilfully violated the
FCRA by deliberately failing to disclose certain required information and by intentionally
providing a “Credit Monitoring Product” instead of a complete consumer report. Trans Union
seeks summary judgment on this issue because it did not violate the FCRA and because Miller
admits that she has no actual damages and there is no evidence of any wilful violation of the
FCRA by Trans Union.
Miller admits that she has no actual damages resulting from Trans Unions actions.
(Plaintiff Carin Miller’s Supplemental Responses To Defendant Trans Union’s First Set of
Interrogatories To Plaintiff, Interrogatory Nos. 10 and 11, doc. # 40-1.) She seeks only statutory
damages and attorneys’ fees. (Id.)
The FCRA provides for statutory damages, punitive damages and attorneys’ fees for
wilful noncompliance. 15 U.S.C. § 1681n. To show wilful noncompliance, a plaintiff must show
that the defendant “knowingly and intentionally committed an act in conscious disregard for the
rights of others,” but need not show “malice or evil motive.” Cushman v. Trans Union Corp., 115
F.3d 220, 226 (3d Cir. 1997). However, there is no wilful noncompliance when the defendant
exhibited no ill will toward the plaintiff and acted to fix the alleged problem.
Miller has not shown that she is entitled to any damages from Trans Union. This is
because she has not shown that Trans Union violated the FCRA. In addition, Miller has admitted
that she has no actual damages and she has not identified evidence of wilful noncompliance.

-18-

SUMMARY
There are no genuine issues of material fact and Miller has not presented evidence that
Trans Union violated the FCRA. Further, Miller is not entitled to damages. Therefore, Trans
Union’s Motion for Summary Judgment (doc. #89) is GRANTED.
Miller has moved for default judgment against Infinity (doc. #26), the only Party
remaining in this case. The Court declined to grant default judgment at the time without prejudice
to renewal of the motion for default judgment after the claims against W&K and Doe Company
Debt Collector have been resolved.
Doe Company Debt Collector has yet to be identified and W&K was dismissed by Miller
on June 13, 2014 (doc. # 42) The dismissal of W&K was subsequently approved by the Court on
July 17, 2014. (Doc. # 56.) Thus, Doe Company Debt Collectors is not relevant and the claims
against W&K were resolved by July 17, 2014 at the very latest.
Pursuant to a Notice of Settlement (doc. #45), Defendants Equifax and Equifax
Information Services are dismissed. Also, to date, Miller has elected to not renew her motion for
default judgment against Infinity.
Therefore, Miller is given until not later than fourteen (14) days following entry of this
Order to renew a motion for default judgment against Infinity. Failure to do so will result in the
captioned cause being terminated upon the docket records of the United States District Court for
the Southern District of Ohio, Western Division, at Dayton.

-19-

DONE and ORDERED in Dayton, Ohio this Twelfth Day of February, 2015.

s/Thomas M. Rose
_______________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
Copies furnished to: Counsel of Record

-20-