Bickley v. Dish Network, LLC

• Citation: 751 F.3d 724
• Decision Date: 13 May 2014
• Docket Number: 13–5979.,Nos. 13–5956,s. 13–5956
• Parties: Gregory BICKLEY, Plaintiff–Appellant/Cross–Appellee, v. DISH NETWORK, LLC, Defendant–Appellee/Cross–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

751 F.3d 724

Gregory BICKLEY, Plaintiff–Appellant/Cross–Appellee,

v.DISH NETWORK, LLC, Defendant–Appellee/Cross–Appellant.

Nos. 13–5956, 13–5979.

United States Court of Appeals,

Sixth Circuit.

May 13, 2014.

ON BRIEF:Zachary L. Taylor, Murphy & Powell, PLC, Louisville, Kentucky, for Appellant/Cross–Appellee. Shea W. Conley, Matthew T. Lockaby, Lauren D. Lunsford, Reminger Co., LPA, Lexington, Kentucky, for Appellee/Cross–Appellant.

Before: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

This is a case about identity theft and apparently reflects the axiom that no good deed should go unpunished. The issue presented is whether a corporation violates the Fair Credit Reporting Act when it obtains a “consumer report” in the name provided by an imposter in order to verify a consumer's identity and eligibility for a business service. As we determine that Dish Network's conduct complied with the Fair Credit Reporting Act, we AFFIRM the district court's grant of summary judgment on the related claims. We also AFFIRM the district court's entry of judgment on Dish's counterclaim for abuse of process.

I. FACTS

On October 7, 2009, American Satellite, an independent, third party retailer of satellite television services for Dish Network (“Dish”), received a phone call from a potential consumer interested in obtaining satellite television. For reasons that are not clear from the record, the initial caller, Patrice Louis, was unable to open an account. She then placed her “cousin,” who purportedly resided in the same household, on the phone. This second person, who identified herself as “Gregina Dickley,” ¹ provided the American Satellite representative with what she claimed to be her social security number. In actuality, the number belonged to Gregory Bickley, the plaintiff in the present case. Dickley was an identity thief, and Bickley would have been the victim, but for the actions taken by American Satellite.

The American Satellite representative then inputted Dickley's name and social security number into an interface that connects to three credit reporting agencies: Equifax, Experian, and TransUnion. The agencies followed a “waterfall” process as they attempted to cross-verify that the information matched. The basic process was as follows: the first agency assessed whether the social security number corresponded to the consumer's name. If a match was found, in this instance by Equifax, it would inform American Satellite that the person was “Approved;” but if the search revealed a “Declined No Hit” response, Equifax would send the consumer's information to a second agency, Experian, to run the information through a similar cross-verification process. If this second search also returned a “Declined No Hit” response, Experian would forward the information to a third credit agency, TransUnion, which would run the information through its databases. If TransUnion also returned a “Declined No Hit” response, it would forward this final determination to the requesting company.

In the present case, TransUnion responded to the American Satellite representative with “Declined No Hit.” This indicated that, following the “waterfall” process, all three credit agencies—Equifax, Experian, and TransUnion—had been unable to find a positive match based on the information provided. After receiving the TransUnion notification, American Satellite informed Dickley that her attempt to open a new account had been declined. This short conversation between an identity thief attempting to open an account using fraudulent information and the American Satellite representative provides the humble origins for the present litigation.

On October 20, 2009, Bickley received a credit report indicating that “Dish” had purportedly made an inquiry of some kind under his name. Whether Dish actually made the inquiry or whether the credit report indicated that Dish had made the inquiry because American Satellite contacted the credit agencies using Dish's credit-agency interface is disputed. Regardless, shortly after Bickley learned about the “Dish” inquiry, Dish contacted him and informed him that someone had attempted to open an account in his name. Dish even provided Bickley with a recording of the phone conversation between the American Satellite representative and the identity thief, Dickley.

Almost a year after learning about the “Dish” inquiry, and despite knowing that the inquiry had prevented the theft of his identity, on November 3, 2010, Bickley filed a complaint initiating the present litigation. The complaint alleged that Dish wilfully and negligently violated the Fair Credit Reporting Act (“Fair Credit Act”), 15 U.S.C. § 1681b, by requesting and using his credit report without having a “permissible purpose.” Despite this allegation, or perhaps precisely because this allegation hinges on the existence of a “permissible purpose,” neither the complaint nor the amended complaint make any mention of the attempted identity theft. When asked at his deposition whether the identity theft, which triggered the credit inquiry in the first place, was an important aspect to this case, Bickley responded, “Possibly. I'm not too sure.” R. 36–2, Bickley Dep. at 87, PageID # 306. We are not so lukewarm, and find the conspicuous underdevelopment of this key factual detail in Bickley's complaint and in the briefs bordering on deceitful.

Not content with merely alleging a statutory violation, Bickley also contended in the complaint that Dish intentionally inflicted emotional distress through its conduct. That is, Bickley alleged that, despite having more than one dozen other credit inquiries on his report, he “suffer[ed] severe mental and emotional distress, anguish, humiliation, and loss of privacy” ² because Dish allegedly received a consumer report that enabled it to prevent the theft of Bickley's identity.

Following Bickley's complaint, Dish filed a counterclaim for abuse of process. Dish contended that Bickley lacked good faith in bringing his Fair Credit Act claim because he knew that the credit score inquiry had actually been undertaken by American Satellite, not Dish, and that any indication that Dish had made the inquiry was due to the fact that American Satellite contacted the credit agencies using Dish's credit-agency interface. Dish also argued that Bickley had brought suit against it, instead of American Satellite, which was then defunct, in order to extort settlement money. Dish subsequently moved for summary judgment on all of Bickley's claims and further requested that the district court enter a default judgment in its favor or, in the alternative, grant summary judgment on its counterclaim because Bickley had failed to answer or respond. Bickley contested the motion for summary judgment and, in turn, moved for judgment on the pleadings with regard to Dish's counterclaim.

The district court granted Bickley's motion for judgment on the pleadings with regard to the abuse of process claim, as well as Dish's motion for summary judgment on the Fair Credit Act claims. Bickley then moved the court to reconsider, and after granting an extension of time for additional discovery, the district court affirmed the original grant of summary judgment for Dish on the Fair Credit Act claims. Bickley now appeals the grant of summary judgment, and Dish has cross-appealed the entry of judgment on the pleadings as to Dish's abuse of process counterclaim.

II. ANALYSIS

We review the district court's grant of summary of judgment de novo. Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 526 (6th Cir.2012). When reviewing such a grant, we draw all inferences in the light most favorable to the nonmoving party and assess whether the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In other words, summary judgment is appropriate “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.” Fed. R. Civ. Pro. 56(a).

The Fair Credit Reporting Act of 1970, 15 U.S.C. § 1681, is designed to accomplish dual goals: “to promote efficiency in the Nation's banking system and to protect consumer privacy.” TRW Inc. v. Andrews, 534 U.S. 19, 23, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001); see also15 U.S.C. § 1681(a)(4). Towards this end, the Fair Credit Act regulates the permissible uses of “consumer reports,” which summarize credit history and credit worthiness, see15 U.S.C. § 1681b, and creates a private right of action allowing injured consumers to recover for negligent and willful violations of the Fair Credit Act. See15 U.S.C. § 1681n (willful violations); 15 U.S.C. § 1681o (negligent violations).

Bickley has brought claims against Dish under both 15 U.S.C. § 1681n and § 1681o. To maintain a claim for improper use of a credit report, the plaintiff must prove that the defendant acted with the specified level of culpability.³ The plaintiff must also show three elements: “(i) that there was a ‘consumer report’ within the meaning of the statute; (ii) that the defendant used or obtained it; and (iii) that the defendant did so without a permissible statutory purpose.” Godby v. Wells Fargo Bank, N.A., 599 F.Supp.2d 934, 937 (S.D.Ohio 2008); Phillips v. Grendahl, 312 F.3d 357, 364 (8th Cir.2002)abrogated on other grounds by Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). If Bickley fails to demonstrate any element of this analysis, the Fair Credit Act claim must fail. We address each element in turn.

1) Was there a “ consumer report ” within the meaning of the statute?

The district court sustained Dish's motion for summary judgment after determining that Bickley had failed to show enough evidence that Dish received a “consumer report” under the Fair Credit Act. A “consumer report”...