Brim v. Midland Credit Mgmt. Inc.

• Decision Date: 04 May 2011
• Docket Number: Case No. CV–10–J–369–S.
• Citation: 795 F.Supp.2d 1255
• Parties: Jamon BRIM, Plaintiff,v.MIDLAND CREDIT MANAGEMENT, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

795 F.Supp.2d 1255

Jamon BRIM, Plaintiff,

v.MIDLAND CREDIT MANAGEMENT, INC., Defendant.

Case No. CV–10–J–369–S.

United States District Court, N.D. Alabama, Southern Division.

May 4, 2011.

Leonard A. Bennett, Consumer Litigation Associates PC, Newport News, VA, Penny Hays Cauley, Hays Cauley PC, Darlington, SC, Ronald C. Sykstus, Bond Botes Sykstus & Larsen PC, Huntsville, AL, for Plaintiff.Eric B. Langley, Jason B. Tompkins, Marcus R. Chatterton, Balch & Bingham LLP, Birmingham, AL, for Defendant.

ORDER

INGE PRYTZ JOHNSON, District Judge.

Pending before the court are the defendant's motion for judgment as a matter of law or, alternatively, that the judgment be vacated (doc. 79); defendant's motion for remittitur and constitutional reduction of punitive damages award (doc. 80), and the defendant's motion for a new trial (doc. 81), to which the plaintiff filed a memorandum in opposition to defendant's motion for new trial, and a memorandum in opposition to the defendant's motion for judgment as a matter of law and motion for remittitur (docs. 93 and 94), and the defendant thereafter filed a reply (doc. 98). Having considered said motions, responses and reply, the court finds as follows:

I. Motion for Judgment as a Matter of Law (doc. 79)

The Eleventh Circuit has instructed that

In reviewing the district court's grant of a JNOV, our standard of review is the same as that used by the district court to determine whether to grant a JNOV in the first instance. As we stated in Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988):

All of the evidence presented at trial must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion......” Where substantial conflicting evidence is presented such that reasonable people “in the exercise of impartial judgment might reach different conclusion, [sic]” the motion should be denied. (Citations omitted).

Simon v. Shearson Lehman Bros., Inc., 895 F.2d 1304,1310 (11th Cir.1990). See also Advanced Bodycare Solutions, LLC v. Thione Intern., Inc., 615 F.3d 1352, 1360 (11th Cir.2010).

The defendant's motions are no more than a rehashing of the evidence adduced at trial and heard by the jury. In essence, the defendant does not agree with the findings of the jury, particularly the findings that defendant's actions in investigating plaintiff's complaints were “willful” as that term is used in the Fair Credit Reporting Act; that defendant's method of investigating complaints was not reasonable; and that the jury did not give great weight to certain testimony of defendant's witnesses. The Seventh Amendment prohibits a re-examination of a jury's determination of the facts. Johansen v. Combustion Eng'g, Inc., 170 F.3d 1320, 1330 (11th Cir.1999).

As to willfulness, the jury heard the evidence, and based on that evidence, found the defendant's actions to have been willful.¹ See Jury Verdict (doc. 74). It is not for this court to substitute its own finding of credibility for that of the jury. See e.g. United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir.1997) (stating that it is the exclusive province of the jury to determine whether a witness is credible); Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1215 (11th Cir.1991). “Because it is critical that a judge does not merely substitute his judgment for that of the jury, ‘new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great—not merely the greater—weight of the evidence.’ ” Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.2001); citing Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.1984). After careful consideration of the defendant's arguments, the plaintiff's response, the applicable law, and the record as a whole, the court is of the opinion that the jury's verdict is not contrary to the great weight of the evidence as a whole. The basis for this conclusion is set forth herein.

The defendant argues that the plaintiff failed to offer legally sufficient evidence to show a cognizable injury, based on evidence admitted over objection at trial. Defendant also asserts that its witness at trial testified that the evidence in question, specifically the denial of credit, was not from a time period when defendant's actions would have affected plaintiff's credit score. Defendant's motion for judgment as a matter of law (doc. 79) at 9; defendant's motion for remittitur (doc. 80) at 3. The defendant further challenges the verdict by its assertion that the plaintiff failed to offer legally sufficient evidence that the plaintiff's injuries were caused by the defendant. Id., at 16.

The jury found defendant's witness's testimony regarding defendant's actions' impact on the plaintiff and his credit score not to be credible. It is within the province of the jury to pick which evidence to believe. See e.g., St. Luke's Cataract and Laser Institute, P.A. v. Sanderson, 573 F.3d 1186, 1203 (11th Cir.2009); United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir.1999) (explaining that the power to determine the credibility of witnesses is the “exclusive province” of the jury and “the court of appeals may not revisit this question”).

The defendant also criticizes the “inference of an actual denial” with regard to the plaintiff not obtaining a mortgage as “pure speculation.” Doc. 79, at 10. However, this too, was a question for the jury. The court may not “assume the jury's role of weighing conflicting evidence or inferences, or of assessing the credibility of witnesses.” Cornell v. CF Center, LLC, 410 Fed.Appx. 265, 268 (11th Cir.2011) (quoting Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1177 (11th Cir.2005)). While defendant may believe the jury came to the wrong conclusion, the evidence does not “so undermine the jury's decision as to warrant a new trial.” Id. The defendant continues to maintain that its investigation of plaintiff's complaints were reasonable. However, the question of reasonableness was for the jury, and the jury disagreed with the defendant.²See e.g., Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir.1991) (reasonableness of procedures is a jury question in the overwhelming majority of cases) (citing Bryant v. TRW, Inc., 689 F.2d 72, 78 (6th Cir.1982)); Dalton v. Capital Associated Industries, Inc., 257 F.3d 409, 416 (4th Cir.2001) (citing Guimond v. Trans Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir.1995)). See also Johnson v. MBNA America Bank, NA, 357 F.3d 426, 431 (4th Cir.2004) (under similar circumstances, finding jury conclusion—that MBNA acted unreasonably in failing to verify the accuracy of information—to be reasonable).

In its motion for judgment as a matter of law, the defendant's criticisms of the jury's verdict focus on a lack of direct proof of various elements on which the plaintiff bore the burden. However, the law does not require direct proof, but rather permits evidence of circumstances from which the fact to be proved is a legitimate inference. See Boutwell v. Federal Mogul Corp., 342 Fed.Appx. 541, 547 (11th Cir.2009), citing Gulf States Steel, Inc. v. Whisenant, 703 So.2d 899, 907 (Ala.1997) (“[K]nowledge need not be shown by direct proof. It may be made to appear, like any other fact, by showing circumstances from which the fact or actual knowledge is a legitimate inference.”); Premdor Corp. v. Jones, 880 So.2d 1148, 1149–55 (Ala.Civ.App.2003).

The same is true for defendant's assertion that plaintiff's evidence of emotional distress was insufficient as a matter of law. Doc. 79 at 12; see also doc. 80. When a jury awards damages for emotional distress, the court must be “particularly deferential to the fact finder's determination of compensatory damage awards for intangible, emotional harms because the harm is so ‘subjective and evaluating it depends considerably on the demeanor of the witnesses.’ ” Griffin v. City of Opa–Locka, 261 F.3d 1295, 1315 (11th Cir.2001) (citations omitted).

Defendant argues that because plaintiff showed no actual credit injury, he could not recover for emotional distress. Defendant ignores the fact that the FCRA contains no requirement that the plaintiff prove an out of pocket loss in order to recover actual damages. See Guimond, 45 F.3d at 1333 (“no case has held that denial of credit is a prerequisite to recovery under the FCRA”); Boris v. Choicepoint Services, Inc., 249 F.Supp.2d 851, 859 (W.D.Ky.2003) (citations omitted) (“It is well settled that actual damages under the FCRA are not limited to pecuniary out of pocket losses but may include non-pecuniary damages for humiliation, mental distress, and injury to one's reputation and creditworthiness”).

The Eleventh Circuit has never precisely delineated the factors that a court should consider in determining whether the plaintiff's evidence of emotional distress is sufficient to support the jury's award of compensatory damages for emotional distress, particularly where, as here, the plaintiff's damages evidence consists chiefly of his own testimony. However, other district courts in this Circuit have clearly held that damages for mental distress are recoverable under the FCRA even if the plaintiff has suffered no out of pocket expenses; Moore v. Equifax Information Services, LLC, 333 F.Supp.2d 1360, 1365 (N.D.Ga.2004); and the Eleventh Circuit has cited other Circuit cases for the proposition that “a claim for actual or compensatory damages under FCRA may include compensation for emotional distress in the absence of physical injury or out-of-pocket expenses.” Levine v. World Financial Network Nat. Bank, 437 F.3d 1118, 1125 (11th Cir.2006) (citing Bakker v. McKinnon, 152 F.3d 1007, 1013 (8th Cir.1998) (holding that, even in the absence of “out-of-pocket expenses or costs incurred,” the district court did not abuse its discretion in awarding actual and punitive damages when appellees testified “about...