Miller v. Experian Information Solutions, Inc. et al

Filing 125

ENTRY AND ORDER GRANTING MOTION TO REOPEN CASE (DOC. 122 ); GRANTING IN PART TRANS UNION, LLC'S BILL OF COSTS (DOC. 104 ); AND GRANTING IN PART AND DENYING IN PART TRANS UNION, LLCS MOTION FOR ATTORNEY FEES AND SANCTIONS PURSUANT TO RULE 11, 2 8 U.S.C. § 1927, AND 15 U.S.C. § 1681 (DOC. 105 ) - The Court GRANTS Trans Unions Bill of Costs in the amount of $1,449.40 and GRANTS Trans Unions Motion for Attorney Fees and Sanctions pursuant to Rule 11 and 28 U.S.C. § 1927, b ut DENIES it with respect to 15 U.S.C. § 1681. Trans Union is ORDERED to file, by no later than October 14, 2016, a memorandum stating the amount of its requested attorneys' fees and why such amount is appropriate under Fed. R. Civ. P. 11 a nd 28 U.S.C. § 1927. Trans Union's memorandum shall not exceed 10 pages. Miller's counsel may file a memorandum in response to Trans Union's memorandum, also not to exceed 10 pages, by no later than October 28, 2016. Trans Union may file a reply memorandum, not to exceed 5 pages, by no later than November 4, 2016. Signed by Judge Thomas M. Rose on 9/22/2016. (ep)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CARIN MILLER,
Plaintiff,

Case No. 3:13-cv-00090
Judge Thomas M. Rose

v.
EXPERIAN INFORMATION SOLUTIONS
INC., et al.,
Defendants.
______________________________________________________________________________
ENTRY AND ORDER GRANTING MOTION TO REOPEN CASE (DOC. 122);
GRANTING IN PART TRANS UNION, LLC’S BILL OF COSTS (DOC. 104);
AND GRANTING IN PART AND DENYING IN PART TRANS UNION, LLC’S
MOTION FOR ATTORNEY FEES AND SANCTIONS PURSUANT TO RULE 11,
28 U.S.C. § 1927, AND 15 U.S.C. § 1681 (DOC. 105)
______________________________________________________________________________
This case is before the Court on the Motion to Reopen Case and For Consideration of
Defendant Trans Union’s Fully Briefed Motion for Attorneys’ Fees and Sanctions Pursuant to Fed.
R. Civ. P. 11, 28 U.S.C. § 1927 and 15 U.S.C. § 1681 and Fully Briefed Bill of Costs (“Motion to
Reopen Case”) filed by Defendant Trans Union, LLC (“Trans Union”). (Doc. 122.) For the
reasons below, the Court GRANTS the Motion to Reopen Case (Doc. 122), GRANTS Trans
Union’s Bill of Costs (Doc. 104), and GRANTS IN PART and DENIES IN PART Trans
Union’s Motion for Attorney Fees and Sanctions (Doc. 105).
I.

BACKGROUND
A. Overview
On March 26, 2013, Plaintiff Carin Miller (“Miller”) brought this lawsuit against

Defendants Trans Union, Experian Information Solutions (“Experian”), Equifax, Inc. (“Equifax),
Infinity Marketing Solutions, Inc. (“Infinity”), Wites & Kapetan, P.A. (“Wites & Kapetan”), and

Doe Company Debt Collector. (Doc. 1.) In the original Complaint, Miller alleged that Trans
Union, Experian and Equifax violated the Fair Credit Reporting Act (“FCRA”) by providing
Miller’s credit report to Wites & Kapetan, a law firm that offers debt settlement services, and Doe
Company Debt Collector without a permissible purpose.

(Id. at ¶¶ 26-33.)

Pursuant to

settlements, Miller later dismissed with prejudice her claims against Experian, Equifax, and Wites
& Kapetan. (Docs. 42, 43, 45.) Miller obtained a default judgment against Infinity. (Doc.
117.) Miller never identified the Doe Company Debt Collector named as a Defendant.
On June 16, 2014, Miller was granted leave to file an Amended Complaint, which was
deemed filed as of that date. On February 13, 2015, the Court granted Trans Union’s motion for
summary judgment, after which Trans Union promptly filed a Bill of Costs and Motion for
Attorney’s Fees against Miller and her counsel. (Docs. 102, 104, 106.) When Miller appealed
the Order granting summary judgment for Trans Union, the Court overruled Trans Union’s Bill of
Costs and Motion for Attorney’s Fees subject to renewal after the Sixth Circuit ruled on Miller’s
appeal. (Doc. 116.)
On March 17, 2016, the Sixth Circuit affirmed summary judgment for Trans Union.
(Doc. 120.) On April 11, 2016, the Sixth Circuit issued a mandate pursuant to its decision, which
returned the case to this Court. (Doc. 121.) On March 14, 2016, Trans Union filed the Motion to
Reopen Case that is now before the Court. (Doc. 122.) That motion is now fully briefed and ripe
for the Court’s consideration. (Docs. 123, 124.)
B. Summary of Case before District Court
The Sixth Circuit’s Order contains the following detailed summary of the proceedings
before this Court:

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Miller was a regular user of credit cards and accumulated an outstanding balance on
one or more of those cards in the amount of $16,000. Wites & Kapetan sent a
letter to Miller on March 28, 2011 offering to assist her in the settlement of her
debts. The letter stated that Wites & Kapetan had “obtained your name and
address from a data company, which indicates that you may have approximately
16,000 [sic] in unpaid credit card bills and/or other unsecured debt.” W & K
Letter, Page ID 7. The letter advised Miller that Wites & Kapetan “do[es] not
have any other information regarding your situation.” Id. That proviso included
a footnote reading: “To further explain, we do not have your social security
number, account names or numbers, your Credit Report, or any other information
about you other than what is indicated in this letter.” Id. Miller assumed Wites &
Kapetan had gained access to her credit report, despite the fact that Wites &
Kapetan explained that it did not have her credit report. Nevertheless, and with no
more information, Miller filed her complaint.
In her complaint, Miller alleged that the consumer reporting agency defendants
furnished consumer credit reports without a permissible purpose in violation of §§
1681b & 1681e(a) of the Act. Defendants Wites & Kapetan, Infinity, and Doe
allegedly purchased Miller’s debt information which, Miller suggested, Wites &
Kapetan ultimately used to offer her debt settlement services. She further alleged
that defendants Wites & Kapetan, Infinity, and Doe committed the tort of invasion
of privacy, specifically by intruding upon her seclusion, when they acquired her
information from the consumer reporting agency defendants.
Miller then filed an amended complaint. Since the amended complaint was
untimely, it was initially stricken, but the district court granted Miller leave to
amend on June 16, 2014. Around the time Miller amended her complaint,
Experian and Equifax were dismissed by stipulation. At that point, Trans Union
was the only remaining consumer reporting agency defendant and the only active
defendant left in the case. Miller’s amended complaint stated a new claim against
Trans Union. This claim was predicated on a report that Miller alleged she
requested from Trans Union on October 3, 2013, over six months after her initial
complaint was filed.
Miller’s amended complaint contained allegations that originated with a credit
offer Miller received in the mail. On August 15, 2013, she received from
Mobiloans what she describes as “a prescreened offer of credit” based on
information in her credit report. Am. Compl. ¶¶ 22–23, Page ID 285. The
Mobiloans offer included a “Prescreen & Opt–Out Notice” that read, in part: “If
you do not want to receive prescreened offers of credit from this and other
companies, call the consumer reporting agencies toll-free at 1–888–5OPT–OUT
(1–888–567–8688), or visit the website at, www.optoutrequest.com; or write:
TransUnion Opt–Out Request, P.O. Box 505, Woodlyn, PA 19094–0505.”
Mobiloans Offer, Ex. E, Am. Compl., Page ID 386. Because the Mobiloans offer
included a Trans Union opt-out address, Miller assumed that Mobiloans must have
3

obtained her credit report from Trans Union.
Miller then sought to obtain a consumer disclosure of her credit file to review the
suspected Mobiloans credit inquiry. Although Miller initially navigated to the
Federal Trade Commission website and then to annualcreditreport.com, she admits
that she eventually navigated away from annualcreditreport.com and “went to a
TransUnion website.” Miller Dep. 73, Page ID 1536. What she ordered was the
October 2013 Report from TUI. The Report bears the name and logo of Trans
Union at the top, but the printed root URL in the footer is,
https://tui.transunion.com. Oct. 2013 Rep., Ex. A, Am. Compl., Page ID 294. In
addition, Miller received a receipt for the Report sent from the email address,
[e-mail]. Miller Dep. 74, Page ID 1536. To obtain the
type of report Miller obtained, a user must also enter into a service agreement with
TUI. That service agreement begins: “Welcome to the TransUnion Interactive
web site, tui.transunion.com[.]” Service Agreement 1, Page ID 1546.
TUI, the furnisher of the October 2013 Report, is a wholly-owned subsidiary of
Trans Union that is in the business of providing consumers a tool to monitor their
own credit information as though they were a third party, a distinctly different
product from that offered by Trans Union. Simms Dep. 98–99, Page ID 1505–06.
Thus, when a consumer requests a “credit monitoring report” (what TUI titles its
reports), TUI furnishes a report that reflects the information a third party would
receive if it solicited his or her consumer credit report, as that term is defined in 15
U.S.C. § 1681b. Id. TUI compiles these reports by requesting credit information
from Trans Union in the same way any other third-party user seeking consumer
credit information would: by requesting it and having the request logged on Trans
Union’s records. Id. at 104, Page ID 1509 (“[TUI] acts as a person requesting a
regular credit report.”). TUI’s reports omit promotional inquiries, such as that
from Mobiloans, because those inquiries cannot be disclosed on a credit report
obtained by a third party. Id. at 97–98, Page ID 1504–05. See also 15 U.S.C. §
1681a(d)(2)(B) (prohibiting from inclusion in consumer reports “any authorization
or approval of a specific extension of credit directly or indirectly by the issuer of a
credit card or similar device”).
Promotional inquiries, also known as “soft inquiries,” only appear in consumer
disclosures under § 1681g. See 15 U.S.C. § 1681g(a)(5) (requiring disclosure to
the consumer of “[a] record of all inquiries received by the agency during the 1–
year period preceding the request that identified the consumer in connection with a
credit or insurance transaction that was not initiated by the consumer”). Consumer
disclosures are obtained directly from consumer reporting agencies, such as Trans
Union, by requesting a consumer disclosure from annualcreditreport.com. Id. at
90–92, Page ID 1500–02. Consumer disclosures include soft credit inquiries, such
as the hypothetical Mobiloans inquiry. Id. Trans Union has no record of Miller
requesting a consumer disclosure through annualcreditreport.com on October 3,
2013 or at any other time. Id.
4

Upon review of the October 2013 Report, the Mobiloans inquiry that Miller
assumed she would see was not reflected. Miller believed that the Act required the
October 2013 Report to disclose the fact that Mobiloans obtained her credit report
from Trans Union—although her only evidence that Mobiloans had obtained her
report was the opt-out mailing address listed in the offer from Mobiloans.
On the basis of this belief, Miller amended her complaint to assert that Trans Union
violated the Act by not disclosing a credit inquiry from Mobiloans in the October
2013 Report. Miller asserted in her amended complaint that the October 2013
Report is a “consumer disclosure” governed by § 1681g and that it was furnished to
her by Trans Union. By omitting the promotional credit inquiry, Miller claimed,
Trans Union violated § 1681g of the Act that requires that consumer disclosures
include all promotional inquiries from the year preceding the consumer’s request
for the disclosure. Miller did not invoke § 1681g in her amended complaint but
she alleged that Trans Union violated the Act.
Trans Union argued in its motion for reconsideration that Miller’s claims are
without merit because it did not provide the Report. Rather, Trans Union claimed,
the Report was furnished by TUI, a wholly-owned subsidiary of Trans Union. See
Mot. for Recons., Page ID 551. Trans Union further explained in its motion for
reconsideration that the October 2013 Report is not subject to the Act because it is
not a consumer disclosure. Trans Union’s motion was denied, and it answered the
amended complaint on July 21, 2014. Trans Union did not move to dismiss
Miller’s amended complaint. Despite Trans Union’s claims, Miller did not seek to
join TUI in the lawsuit.
On August 22, 2014, Miller moved for summary judgment. She repeated the
claims in her complaint and argued that there could be no reasonable dispute of fact
that the October 2013 Report was furnished to her by Trans Union. Further, she
argued that there could be no reasonable dispute of fact that the Report omitted a
series of credit inquiries made into her account in the year prior to October 3, 2013.
Lastly, because Trans Union issued the Report (so Miller argued) and did not
include the credit inquiries, it willfully violated the Act, meaning Miller is entitled
to statutory damages, punitive damages, and attorney’s fees.
Trans Union responded by repeating what had become its refrain below: it did not
issue the October 2013 Report; even if it did, the Report is not governed by the Act;
and, again, even if it were, Trans Union did not willfully violate the Act. Trans
Union relied predominantly on the absence of any evidence supporting Miller’s
claims. First, Trans Union pointed out that the web address on the report
contained the abbreviation “tui” for Trans Union Interactive, the actual issuer of the
Report. Second, Trans Union argued that Miller herself admitted in her deposition
that she did not obtain the October 2013 Report from annualcreditreport.com but
that she actually navigated away from the website and could not remember whence
she requested the Report. Finally, Trans Union cited the high standard that a
5

plaintiff must meet to prove a willful violation of the Act and argued that Miller
produced no evidence to meet that standard.
The district court denied Miller’s motion for summary judgment. It held, in
relevant part, that there was a genuine dispute of material fact over whether the
October 2013 Report was furnished to Miller by Trans Union. The district court
noted the presence of the “tui” abbreviation in the Report’s URL and in the email
address that sent her a receipt for the Report. Because a jury could find that the
Report was furnished by TUI, not Trans Union, the district court concluded that
Miller was not entitled to summary judgment. Again, despite these claims, Miller
did not seek to join TUI in the proceeding.
On November 18, 2014, Trans Union filed a motion for summary judgment. It
claimed that Miller’s original argument—that Trans Union provided third parties
with her credit report without a proper purpose under § 1681b—was meritless
because
there
was
no
evidence
that
any
of
the
non-consumer-reporting-agency-defendants requested information from Trans
Union. Next, Trans Union once again repeated its claims that there is no evidence
connecting it to the October 2013 Report for purposes of liability under the Act. In
the alternative, Trans Union argued that if it could be said to have furnished the
October 2013 Report, it did so in compliance with the Act or, at a minimum, did not
willfully violate the Act.
Miller offered no argument in response to Trans Union’s claim that it did not
disclose her credit report to third parties and, in any event, did not do so without a
proper purpose. In response to Trans Union’s arguments that it did not violate §
1681g, Miller repeated claims she had previously made about the October 2013
Report: she did in fact request the Report through annualcreditreport.com; she
requested it from Trans Union; and the Report, which she again claimed is a
“consumer disclosure,” omitted inquiries from the year prior to her request for the
Report.
The district court granted Trans Union’s motion. It held that the October 2013
Report is unambiguous: it was produced by TUI, not by Trans Union. Trans
Union Interactive, the district court also concluded, is not a consumer reporting
agency, so the October 2013 Report could not be a consumer disclosure. Finally,
the district court explained that even if Trans Union were subject to liability under
the Act, there is no evidence that any violation alleged by Miller was willful. The
district court entered summary judgment against Miller.
Miller v. Trans Union, LLC, 644 F. App’x 444, 445–50 (6th Cir. 2016) (footnotes omitted).
Affirming summary judgment for Trans Union, the Sixth Circuit held that no reasonable juror
could find that Trans Union violated the FCRA when TUI provided Miller a credit monitoring
6

report on October 3, 2013. Id. at 451-56.
II.

ANALYSIS
A. Trans Union’s Motion to Reopen Case
Trans Union moves to reopen this case so that the Court may consider its Bill of Costs and

Motion for Attorneys’ Fees and Sanctions, both of which were filed shortly after the Court granted
summary judgment in Trans Union’s favor. Miller does not oppose reopening the case, but does
oppose the Bill of Costs and Motion for Attorneys’ Fees and Sanctions. When the Court
overruled Trans Union’s Motion for Attorneys’ Fees and Sanctions, it expressly stated that Trans
Union could renew that motion when the Sixth Court ruled on Miller’s appeal. Now that the Sixth
Circuit has ruled and its mandate has issued, it is appropriate to reopen the case for that purpose.
Trans Union’s Motion to Reopen Case is GRANTED.
B. Trans Union’s Bill of Costs
Trans Union seeks to recover its costs as the prevailing party in this lawsuit pursuant to
Fed. R. Civ. P. 54 and S.D. Local Rule 54.1. Federal Rule of Civil Procedure 54(d)(1) provides:
Costs Other Than Attorney’s Fees. Unless a federal statute, these rules, or a court
order provides otherwise, costs—other than attorney’s fees—should be allowed to
the prevailing party. But costs against the United States, its officers, and its
agencies may be imposed only to the extent allowed by law. The clerk may tax
costs on 14 days’ notice. On motion served within the next 7 days, the court may
review the clerk’s action.
Fed. R. Civ. P. 54(d)(1).
S.D. Local Rule 54.1 provides:
If the prevailing party intends to file a bill of costs, the party must do so within
forty-five days from the entry of judgment unless a statute or Court order provides
otherwise. A bill of costs must be prepared on Form AO 133, which is available on the
Court’s website, or in substantially similar form. The bill of costs must be verified in
accordance with 28 U.S.C. § 1924. The Clerk shall tax costs after all parties have had
an opportunity to be heard on the bill of costs pursuant to the briefing schedule

7

provided in S.D. Ohio Civ. R. 7.2. The Clerk may defer taxation of costs pending
appeal. Advisory guidelines for the taxation of costs are available from the Clerk and
on the Court’s website.

S.D. Local Rule 54.1.
As the prevailing party in this case, Trans Union should be allowed its costs under Fed. R.
Civ. P. 54. White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986).
Trans Union has also met the requirements of S.D. Local Rule 54.1 by timely filing a verified Bill
of Costs on Form AO 133. (Doc. 104.)
Miller objects to three items in Trans Union’s Bill of Costs: (1) the cost for expediting
Michelle Simms’ deposition transcript; (2) Simms’ witness fees; and (3) the certified copy of
Miller’s deposition transcript. (Doc. 111 at 4.)
Miller argues that Trans Union has not shown that the cost for expediting Simms’
deposition transcript was necessary. Trans Union responds that it “needed to expedite the
transcript of the deposition of its Rule 30(b)(6) witness, Michelle Simms, since Ms. Simms’
deposition was not completed until October 8, 2014 (more than a week after the September 30,
2014 discovery deadline) and Trans Union needed the transcript both to complete its Motion For
Summary Judgment and so Ms. Simms could respond to an outstanding question raised at her
deposition.” (Doc. 113 at 1-2.) Miller noticed the deposition of Simms as Trans Union’s
corporate representative under Fed. R. Civ. P. 30(b)(6). If the deposition had been noticed for
completion prior to the close of discovery, then Trans Union would not have needed to expedite
the transcript. It would be unreasonable to deny Trans Union its costs for the Simms’ deposition
transcript when the circumstances requiring its expedition were not in Trans Union’s control.
The Court overrules Miller’s objection to this cost.
Miller argues that Trans Union is not entitled to recover Simms’ witness fees because she
8

testified on behalf of Trans Union as its corporate representative. (Doc. 111 at 2 (citing N.J. Mfrs.
Ins. Grp. v. Electrolux, Inc., Civil Action No. 10-1597 (AET), p. 17 (D.N.J. 2013)).) Trans Union
concedes that real parties in interest or parties sued in a representative capacity are not entitled to
fees or allowances as witnesses. Trans Union argues, however, that Simms’ witness fees are
recoverable because she was “acting as a fact witness and not acting purely as a corporate
representative.” (Doc. 113 at 4.)
Trans Union’s argument does not withstand scrutiny. Simms appeared as a corporate
representative for Trans Union in response to Plaintiff’s Notice of Deposition to Trans Union, LLC
(Doc. 73). The first page of her deposition transcript states that the deposition was taken “by the
Plaintiff as upon cross-examination and pursuant to Rule 30(b)(6) of the Federal Rules of Civil
Procedure.” (Doc. 93-1.) In the case cited by Trans Union, True N. Energy, LLC v. Chicago
Title Ins. Co., No. 3:10 CV 1100, 2011 WL 5362063 (N.D. Ohio Oct. 27, 2011), the court
excluded the costs associated with a witness’s testimony as a corporate representative from the
amount of allowable costs. Id. at *5; see also Hartford Fin. Servs. Grp., Inc. v. Cleveland Pub.
Library, No. 1:99CV1701, 2007 WL 963320, at *9 (N.D. Ohio Mar. 28, 2007) (“As long as the
employees appeared as witnesses, rather than as representatives of the corporation, [the prevailing
party] may tax as costs the associated witness fees.”) Trans Union does not identify which
portions of Simms’ deposition testimony purportedly constitute her personal testimony, as
opposed to her testimony on behalf of Trans Union. The Court sustains Miller’s objection to the
recovery of Simms’ witness fees for attending her deposition.
Miller also argues that Trans Union has not shown that it was necessary to obtain a certified
copy of Miller’s deposition transcript. Trans Union explains that Miller failed to return a signed

9

copy of her deposition transcript to the Court Reporter within the required 30 day period. (Doc.
113 at 2 (citing Doc. 77 at PageID 1176).) As a result, Trans Union was required to obtain a
certified copy of Miller’s deposition for citation in its motion for summary judgment, as required
by S.D. Local Rule 5.4(a). Trans Union’s explanation is reasonable. Miller’s objection is
overruled.
Excluding Simms’ witness fees from the Bill of Costs, Trans Union is entitled to recover
$1,449.40 as costs under Fed. R. Civ. P. 54.
C. Trans Union’s Motion for Attorneys’ Fees and Sanctions
Trans Union argues that Miller and her counsel violated Fed. R. Civ. P. 11(b) and that
sanctions are warranted under Fed. R. Civ. P. 11(b), 28 U.S.C. § 1972, and 15 U.S.C. § 1681n.
The Court addresses whether sanctions are appropriate under each of these authorities below.
i. Whether Sanctions Are Warranted Under Fed. R. Civ. P. 11
Rule 11 of the Federal Rules of Civil Procedure states, in relevant part:
(b) Representations to the Court. By presenting to the court a pleading, written
motion, or other paper—whether by signing, filing, submitting, or later advocating
it—an attorney or unrepresented party certifies that to the best of the person’s
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
10

information.
Fed. R. Civ. Pro. 11(b). Rule 11 applies to each piece of paper signed by an attorney in the course
of litigation. This means that an attorney may commit multiple Rule 11 sanctions in the course of
a single case. Jackson v. Law Firm of O’Hara, Ruberg, Osborne, and Taylor, et al., 875 F.2d
1224, 1229 (6th Cir. 1989). A court should not assess fees unless it finds the claim is frivolous,
unreasonable, groundless, or the party continued to litigate after it clearly became so. Garner v.
Cuyahoga County Juvenile Court, 554 F.3d 624, 635 (6th Cir. 2009). Additionally, Rule 11
imposes a continuing duty to dismiss claims where discovery reveals a lack of legal and factual
support. Dearborn St. Bldg. Assocs., LLC. V. Huntington Nat’l Bank, 411 Fed. Appx. 847 (6th
Cir. 2011); see also Rentz v. Dynasty Apparel Indus., Inc., 556 F.3d 389, 395 (6th Cir. 2009)
(discussing Rule 11's “continuing duty of candor”); Bailey v. Papa John's USA, Inc., 236
Fed.Appx. 200, 203 (6th Cir. June 11, 2007) (Rule 11 sanctions proper where, instead of
withdrawing complaint or agreeing to dismissal, plaintiff “continued to litigate after it became
clear that his claim was frivolous, unreasonable or without foundation”); Ridder v. City of
Springfield, 109 F.3d 288, 293 (6th Cir. 1997) (discussing continuing duty of candor under Rule
11); Herron v. Jupiter Transp. Co., 858 F.2d 332, 336 (6th Cir. 1988) (discussing litigants
“continuing responsibility to review and reevaluate [their] pleadings”).
The two primary goals of Rule 11 are deterrence and compensation, and of the two,
deterrence is the primary goal. Jackson, 875 F.2d at 1229. The Sixth Circuit has advised that
“courts should impose the least severe sanction that is likely to deter.” Id. Additionally, a party
seeking sanctions must mitigate their damages “by acting promptly and avoiding any unnecessary
expenses in responding to papers that violate the rule.” Id. at 1230. Finally, the court must
consider the attorney’s ability to pay the sanction. Id.
11

Miller’s original complaint alleged that Trans Union provided Wites & Kapetan with a
copy of Miller’s credit report through an undetermined third party. The only support Miller
provided for this allegation was the letter Wites & Kapetan sent to her in 2011. The letter
contains a footnote that explicitly states that Wites & Kapetan do not have her credit report. (Doc.
1-1.) This singular letter served as the basis of Miller’s complaint. No further investigation
seems to have taken place and no other evidence was presented to support the claims against Trans
Union. Miller, without any substantive evidence to support the allegation, elected to believe
Trans Union had disclosed her credit report in violation of FCRA. Miller and her counsel have
thus failed to demonstrate that her claim would likely have evidentiary support after further
discovery.
Miller ultimately dropped her original claim against Trans Union, and filed an amended
complaint alleging a new claim against Trans Union based on a report that she ordered six months
after she brought this lawsuit. Miller’s new claim alleged that Trans Union violated the FCRA by
failing to disclose promotional inquiries on a consumer disclosure. (Doc. 41.) Miller’s claim
was again factually unsupported. The service agreement that Miller entered into (Doc. 106-4)
and the URLs on the report that she received (Doc. 41-1) both show the report was produced by
TUI. Thus, Miller either failed to recognize or deliberately ignored the fact that Trans Union and
TUI are separate legal entities. Miller then failed to recognize that what she had requested was
not a consumer disclosure covered by § 1681g of the FCRA. These are significant investigatory
failures on the part of Miller’s counsel.
Miller also filed three motions against Trans Union that were found to lack any evidentiary
support or Plaintiff was found to lack the grounds to object. Plaintiff’s Motion For Sanctions

12

Against Trans Union For Spoliation of Evidence (Doc. 74) and Plaintiff’s Motion To Show Cause
Why Trans Union Should Not be Held in Contempt (Doc. 86) were found to lack evidentiary
support and were summarily denied. Plaintiff’s Motion to Strike the Deposition of Michelle
Simms (Doc. 95) was denied because the Court ordered Simms to testify about TUI documents
and procedures at Plaintiff’s request; Plaintiff, therefore, had no grounds to strike the same
testimony. (Doc. 101.)
Additionally, Miller and her counsel were put on notice by Trans Union that there was no
factual basis for the claims made against the company. Trans Union contacted Miller’s counsel in
June 2013 (Doc. 106-1), February 2014 (Doc. 106-3), and August 2014 (Doc. 106-4) and informed
them that the claims in the complaint and the amended complaint were meritless. While the Court
would not expect plaintiff’s counsel to blindly accept a defendant’s assessment of plaintiff’s case,
the Court would expect such repeated assertions to prompt an investigation into the facts
underlying plaintiff’s claims. Miller deserves some credit for ultimately dropping her original
claim against Trans Union, but she then replaced it with a claim equally without merit. Miller
never agreed to dismiss that claim against Trans Union nor sought leave to add TUI as a
defendant—even though Trans Union notified her counsel that TUI was the proper defendant.
The primary goal of Rule 11 sanctions is to deter baseless accusations that lack factual
support. Yet there is also a duty on the party seeking sanctions to mitigate their damages and
avoid unnecessary filings. Trans Union arguably met this obligation by sending Miller three
separate letters detailing the distinct lack of factual support for their claim and warning of Rule 11
sanctions. On the other hand, Trans Union moved for reconsideration of the Court’s order
granting Miller leave to amend, but did not move to dismiss the Amended Complaint. (Doc. 46.)

13

In the order denying the motion for reconsideration, the Court stated that “Trans Union remains
free to file a motion to dismiss the Amended Complaint should it believe such a motion is
appropriate.” (Doc. 58.) All considered, the Court finds that Trans Union pursued a resolution
of this case in a reasonable manner. It would be inaccurate to suggest that Trans Union sat on its
hands and accrued defense costs while it built a case for Rule 11 sanctions; it tried to reason with
Miller’s counsel, but to no avail.
In the Complaint (Doc. 1), the Amended Complaint (Doc. 41), and the three discovery
motions (Doc. 74, 86, 95), Miller’s counsel demonstrated a disregard for the facts of the case and
for the responsibility placed upon attorneys to faithfully investigate the claims they wish to pursue.
All of these filings lacked evidentiary support from the beginning and are consistent with an intent
to drive up the costs of this lawsuit to extort a settlement for the nuisance value of the lawsuit.
There would be little use for Rule 11 if it were not employed in situations such as this, where a
party aggressively pursues a claim that lacks any real evidentiary support.
The Court finds that Miller’s counsel is liable for sanctions under Federal Rule of Civil
Procedure 11(b)(3). The Court will determine the amount of the sanction necessary to deter such
future conduct after the submission of additional briefing by the parties, as discussed below.
ii. Whether Attorneys’ Fees and Sanctions Should Be Awarded Under 28
U.S.C. § 1927
Trans Union also seeks attorney’s fees and costs pursuant to 28 U.S.C. § 1927, which
states:
§ 1927. Counsel’s liability for excessive costs
Any attorney or other person admitted to conduct cases in any court of the United
States or any Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred because of such
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conduct.
28 U.S.C. § 1927. Section 1927 authorizes the assessment of fees for the “‘unreasonable and
vexatious’ multiplication of litigation.” Fifth Third Bank v. Boswell, 125 F.R.D. 460, 463 (S.D.
Ohio 1989). In order to award fees under § 1927, the Court must find “[1] that the claims
advanced were meritless, [2] that counsel knew or should have known this, and [3] that the motive
for filing the suit was for an improper purpose.” Metz v. Unizan Bank, 655 F.3d 485, 489 (6th
Cir.2011).

“Harassing the opposing party, delaying or disrupting litigation, hampering the

enforcement of a court order, or making improper use of the courts” are all actions that the Sixth
Circuit considers improper for the purposes of § 1927. BDT Products, Inc. v. Lexmark Intern.,
Inc., 602 F.3d 742, 754 (6th Cir. 2011). A meritless claim alone, however, will not suffice. Id.
Here, Miller’s claims were meritless, but her counsel also needlessly protracted the
proceedings in this case. The three discovery motions referenced above were each filed without
reasonable grounds, as the Court stated in its orders. Additionally, Miller filed a Motion for
Summary Judgment (Doc. 63) that lacked evidentiary support beyond Miller’s own affidavit.
The motion did include copies of the report that Miller attributed to Trans Union, but even that
evidence supported Trans Union’s consistent assertion that it was, in fact, TUI that created the
report. (Doc. 63.)
The Court finds that Miller’s counsel are also liable for attorneys’ fees and costs
reasonably incurred due to their violation of 28 U.S.C. § 1927. Again, the Court will determine
the amount of the award to Trans Union after submission of additional briefing by the parties.
iii. Whether Attorneys’ Fees and Sanctions Should Be Awarded Under 15
U.S.C. § 1681n
In light of the Court’s findings that Miller’s counsel is liable for violations of Fed. R. Civ.
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P. 11 and 28 U.S.C. § 1927, it declines to consider whether the same conduct also constitutes a
violation of 15 U.S.C. § 1681n. The Court has considerable discretion under Rule 11 and § 1927
to frame an appropriate award of fees and costs to Trans Union. Any additional award under §
1681n would be duplicative of that relief.
III.

CONCLUSION
For the foregoing reasons, the Court GRANTS Trans Union’s Bill of Costs in the amount

of $1,449.40 and GRANTS Trans Union’s Motion for Attorney Fees and Sanctions (Doc. 105)
pursuant to Rule 11 and 28 U.S.C. § 1927, but DENIES it with respect to 15 U.S.C. § 1681.
Trans Union is ORDERED to file, by no later than October 14, 2016, a memorandum stating the
amount of its requested attorneys’ fees and why such amount is appropriate under Fed. R. Civ. P.
11 and 28 U.S.C. § 1927. Trans Union’s memorandum shall not exceed 10 pages. Miller’s
counsel may file a memorandum in response to Trans Union’s memorandum, also not to exceed 10
pages, by no later than October 28, 2016. Trans Union may file a reply memorandum, not to
exceed 5 pages, by no later than November 4, 2016.
DONE and ORDERED in Dayton, Ohio, this Thursday, September 22, 2016.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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