Slantis v. Capozzi & Associates, P.C.
MEMORANDUM AND ORDER. Plaintiff's motion in limine (Doc. 63) is GRANTED with regard to each matter sought to be excluded and identified as A through J in the Opinion. Signed by Magistrate Judge William T. Prince on 08/09/2010.(Attachments: #(1) Order) (wtplc2)
Slantis v. Capozzi & Associates, P.C.
UNITED STATES DISTRICT COURT M ID D L E DISTRICT OF PENNSYLVANIA L A H N E E N SLANTIS, P la in tif f : : N O .: 1:09-CV-00049-CCC : v. : (J U D G E CONNER) : (M A G IS T R A T E JUDGE PRINCE) C A P O Z Z I & ASSOCIATES, P.C., : D e f e n d a n ts : : ________________________________________________________________________
O P I N I O N OF THE COURT P u rs u a n t to an Order entered on August 2, 2010 (Doc. 70), Honorable Christopher C o n n e r referred plaintiff's pending motion in limine to the undersigned Magistrate Judge.
I . Background T h is case is about access made by defendant Capozzi & Associates (C&A) to p la in tif f Slantis's credit report. Plaintiff alleges that C&A's access was unauthorized and la c k e d a legitimate business need, thus violating the federal Fair Credit Reporting Act (F C R A ), 15 U.S.C.A. §§ 16011693r (West 2010). Defendant asserts that its credit in q u iry, made as part of preparation for litigation, was permissible, and seeks to introduce a variety of evidence to support its position. A portion of this evidence comprises the s u b je c t of plaintiff's pending motion in limine (Doc. 63), filed June 16, 2010, which s e e k s to bar defendant's introduction of ten different items or categories of evidence. P la in tif f filed a brief in support (Doc. 64) and defendants a brief in opposition (Doc. 67); p la in tif f s responded with a reply brief (Doc. 69), making this motion ripe for a d ju d ic a tio n .
II. Discussion (A ) Overview of the law of evidence T h e Federal Rules of Evidence are designed to facilitate the introduction of e v id e n c e ; relevant evidence is, by default, admissible unless the governing rules provide to the contrary. United States v. Sriyuth, 98 F.3d 739, 745 (3d Cir. 1996) (citing United S ta te s v. Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988)); Fed. R. Evid. 402. The f o u n d a tio n a l definition of relevant evidence is "evidence having any tendency to make th e existence of any fact that is of consequence to the determination of the action more p ro b a b ly or less probable than it would be without the evidence." Fed. R. Evid. 401. This d e f in itio n sets a low threshold for admissibility. Hurley v. Atl. City Police Dept., 174 F.3d 9 5 , 110 (3d Cir. 1999). H o w e v e r, relevancy has its limits. A trial judge has broad discretion to exclude e v id e n c e that, although relevant, has a probative value that is "substantially outweighed b y the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by c o n s id e ra tio n s of undue delay, waste of time, or needless presentation of cumulative e v id e n c e ." Fed. R. Evid. 403. As a general matter, evidence of a person's character is in a d m is s ib le to prove their propensity to act in a certain way, with certain specific e x c e p tio n s for matters including motive, intent, and a witness's reputation for tru th f u ln e s s . Fed. R. Evid. 404, 60709. Matters of relevance and evidentiary exclusion are generally left to the discretion o f the trial judge. Livingstone v. N. Bell Vernon Borough, 91 F.3d 515, 524 (3d Cir. 1 9 9 6 ). In making its determination, a court is not bound by the rules of evidence, except f o r those concerning privileges. Fed. R. Evid. 104(a). A court is thus free to examine any n o n p riv ile g e d material within or without the record to determine whether a particular item o f evidence may be admitted.
(B) Matters sought to be excluded In her motion in limine, plaintiff requests that the following ten categories or s p e c if ic articles be excluded from evidence: (A ) E v id e n c e that plaintiff is a criminal, has committed criminal acts, or has a c rim in a l record. (B ) E v id e n c e that plaintiff committed insurance fraud or made m is re p re s e n ta tio n s to an insurance carrier. (C ) E v id e n c e of any misconduct by plaintiff during her employment with A d v a n c e d Center for Infertility and Reproductive Medicine (the Center). (D ) (E ) E v id e n c e concerning plaintiff's drug use. E v id e n c e that plaintiff did violate or may have violated the terms of the M a y 23, 2006 Consent Agreement with the Department of Nursing. (F ) E v id e n c e that plaintiff's legal claims against the Center were frivolous, for th e purpose of harrassment, or otherwise lacking in merit. (G ) E v id e n c e regarding the status of plaintiff's financial obligations to the C e n te r. (H ) (I) (J) A letter from Louis Capozzi to Frank Clark dated January 3, 2007. T h e Consent Agreement and Order of May 23, 2006. C o p ie s or portions of plaintiff's consumer file or reports, or c h a ra c te riz a tio n s or opinions formed from the reports.
(C ) Relevance R e le v a n c e is determined by reference to the claims to be proven. If an item of e v id e n c e does not relate to any of the elements of plaintiff's FCRA claim or defendant's
defense, the item is irrelevant and should be excluded; otherwise, it will be admissible. In order to establish a violation of the FCRA for obtaining a credit report without a le g itim a te business need, plaintiff must prove that (1) there was a consumer report; (2) d e f e n d a n t used or obtained it; (3) defendant did so without a permissible statutory p u rp o s e ; and (4) defendant was negligent or willful in so doing. Phillips v. Grendahl, 312 F .3 d 357, 364 (8th Cir. 2002), abrogated on other grounds by Safeco Ins. Co. of Am. v. B u rr , 551 U.S. 47 (2007). Because there is no dispute that there was a consumer report a n d that defendant obtained it, evidence in this case is relevant to a fact or matter in issue o n ly if it relates to one of the two remaining elements: defendant's purpose in obtaining th e report and whether defendant was negligent or willful. D e f e n d a n t has offered two reasons for obtaining the report: first, to determine w h e th e r a counterclaim in a suit between plaintiff and defendant's client "would be f in a n c ia lly worth raising" (Doc. 49, at 5), and second, "because of a concern about the re s p o n s ib ility [that plaintiff's employer had] with regard to [p]laintiff's consent order w ith the Department of Nursing" (id. at 6). However, neither of these two reasons c o n s titu te s a "legitimate business need" under the FCRA. The only possible section of the F C R A that would legitimize defendant's access in this case is 15 U.S.C.A § 1681b(a)(3)(F)(i), which allows consumer reports to be furnished "in connection with a b u s in e s s transaction that is initiated by the customer." Defendant has not cited, and the C o u rt cannot find, any case that has held obtaining a consumer report permissible under th is section based on analogous facts or comparable ostensible purposes.1 Even were
D e f e n d a n t cited a handful of cases that purportedly held obtaining consumer re p o rts permissible under § 1681b(a)(3)(F)(i) for the purpose of preparing for litigation, b u t every one of those cases is readily distinguishable. See Korotki v. Thomas, Ronald & C o o p e r , P.A., No. 96-1877 1997 WL 753322, at *2 (4th Cir. Sept. 29, 1997), aff'g K o r o tk i v. Attorney Servs. Corp., 931 F. Supp. 1269 (D. Md. 1996) (prior to 1996 FCRA a m e n d m e n ts, in underlying case about debt collection on a contract, use of credit report to 4
defendant to prove that its purposes were, in fact, what it claimed them to be, they would s till be impermissible under the statute, making any evidence on this point irrelevant to th e third element described in Phillips. T h e fourth Phillips element relates to the degree of culpability in an impermissible a c c e s s of a credit report: either willful noncompliance (15 U.S.C.A. § 1681n) or negligent n o n c o m p lia n c e (id. § 1681o). Previously, § 1681n's willful-noncompliance provision a p p lie d only if a defendant "knowingly and intentionally committed an act in conscious d is re g a rd for the rights of others." Cushman v. Trans Union Corp., 115 F.3d 220, 226 (3d C ir. 1997) (quoting Philbin v. Trans Union Corp., 101 F.3d 957, 970 (3d Cir. 1996)). H o w e v e r, in 2007, the Supreme Court lowered the bar for what constitutes willful
f in d an alternate address at which to serve appellant held to be a legitimate business n e e d ); Minter v. AAA Cook County Consolidation, Inc., No. 02-C-8698, 2004 WL 1 6 3 0 7 8 1 , at *1 (N.D. Ill. July 19, 2004) (quoting Allen v. Kirkland & Ellis, No. 91-C8 2 7 2 1 , 1992 WL 206285, at *2 (N.D. Ill. Aug. 17, 1992)) (in dicta, in a case concerning a c re d it report accessed in the context of plaintiff's dealings with a debt-consolidation c o m p a n y, court stated that preparation for litigation constitutes a legitimate business need, c itin g for support an unpublished trial-court opinion authored before the 1996 FCRA a m e n d m e n ts); James v. Interstate Credit Collection, Inc., No. 03-CV-1037, 2005 WL 1 0 1 7 8 1 9 , at *12 (E.D. Pa. Apr. 28, 2005) (when defendant had obtained plaintiff's c o n s u m e r report to determine whether a specific disputed debt had been removed from th e report, court relied on Minter to support statement that preparation for litigation is a p e rm iss ib le purpose). Contra, e.g., Houghton v. N.J. Mfrs. Ins. Co., 795 F.2d 1144, 1149 (3 d Cir. 1986) (narrowly construing the statutory predecessor to § 1681b(a)(3)(F)(i), and re q u irin g that a "consumer relationship" exist between the party requesting the report and th e subject of the report); Mone v. Dranow, 945 F.2d 306, 308 (9th Cir. 1991) (defendant o b ta in e d credit report to determine whether plaintiff had sufficient assets to pay a ju d g m e n t; held impermissible under statutory predecessor to § 1681b(a)(3)(F)(i)); C a p p e tta v. GC Servs. Ltd. P'ship, 654 F. Supp. 2d 453, 459 (E.D. Va. 2009) (noting that 1 9 9 6 FCRA amendments imposed a stricter standard under the "legitimate business need" ru le than had been in effect previously). 5
noncompliance, which now includes both knowing and reckless violations. Safeco Ins. C o . of Am. v. Burr, 551 U.S. 47, 5657 (2007) (citing, e.g., McLaughlin v. Richland Shoe C o ., 486 U.S. 128, 13233 (1988)). Accordingly, any evidence relating to defendant's n e g lig e n t, reckless, or knowing access of plaintiff's credit report would be relevant under F e d e ra l Rule of Evidence 401 and admissible under Rule 402. E v id e n c e relevant to the fourth Phillips element should, therefore, address d e f e n d a n t's state of mind during or prior to access of plaintiff's credit report, its k n o w le d g e or lack thereof concerning the statutorily defined permissible purposes, or any a c tio n s that defendant took to discharge its duty of care in attempting to ensure c o m p lia n c e with FCRA. But none of the evidence that plaintiff seeks to exclude has a n yth in g to do with whether defendant acted negligently, reckelessly, or knowingly in im p ro p e rly accessing plaintiff's credit report. Defendant's brief opposing the motion in lim in e consists of nothing more than a summary of evidence and FCRA law followed by a series of statements insisting, without any argument or support, that the evidence at is su e here is relevant. (See Doc. 67, at 47 (reviewing evidence law); id. at 79 (re v ie w in g FCRA law); id. at 912 (proclaiming, e.g., that "the evidence here reveals w h y [d]efendant acted as it did"; that evidence of plaintiff's misconduct during her e m p lo ym e n t "is relevant"; that it "is certainly relevant" to consider evidence about how p la in tif f 's claims against her employer should be characterized; and that plaintiff's o s te n s ib le unpaid obligations to her employer are "similarly relevant.") At best, the bulk o f this evidence relates to defendant's purpose in obtaining the credit report, but d e f e n d a n t will gain nothing by offering evidence of why it obtained the report for an im p e rm is s ib le purpose. Evidence about plaintiff's actions, of whatever sort, have no b e a rin g on defendant's negligence, recklessness, or knowledge, because such evidence s h e d s no light on defendant's state of mind.
All of the evidence at issue in plaintiff's motion in limine fails to meet the th re s h o ld requirement of relevance under the Federal Rules. None of this evidence has a n y probative value in relation to any of the disputed issues in this case.
(D ) Prejudice In its opposing brief, defendant properly points out that motions in limine should be treated with caution, particularly under Rule 403. "Rulings excluding evidence on Rule 403 grounds should rarely be made in limine," because a court "cannot fairly ascertain the potential relevance for Rule 403 purposes until it has a full record relevant to the putatively objectionab le evidence." Walden v. Georgia Pacific Corp., 126 F.3d 506, 518 n.10 (3d Cir. 1997) (quoting In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990). But Rule 403, under which evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice," only operates on evidence that is relevant in the first place. Relevant evidence offered by a party, although it may at the pretrial stage appear to be unduly prejudicial, may differ from what is actually presented at trial, which provides good reason for circumspection in disallowing a party from presenting the evidence at all. See Walden, 126 F.3d at 518 n.10 (quoting Luce v. United States, 369 U .S . 38, 4142 (1984)) (noting that in-limine rulings may change at trial, "particularly if the actual testimony differs from what was contained in the . . . proffer"). This concern about an inability to accurately weigh probative value and risk of u n f a ir prejudice disappears when the proffered evidence has no probative value. As d is c u s se d in the preceding section, none of the evidence that plaintiff seeks to exclude w o u ld shed any light on disputes material to this case. Because this evidence can properly b e excluded solely on relevance grounds, plaintiff's motion in limine may be granted w ith o u t running afoul of the Third Circuit's statement that Rule 403 determinations are
"unfair and improper" if made before the record has been developed at trial. Id. (quoting In re Paoli, 916 F.2d at 859). A n order will be issued in conformity with this opinion.
s / William T. Prince W illia m T. Prince U n ite d States Magistrate Judge A u g u s t 9, 2010
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