Carlisle v. Nat'l Commercial Servs., Inc.

• Decision Date: 22 July 2016
• Docket Number: CIVIL ACTION NO. 1:14-CV-515-TWT-LTW
• Parties: ROLAND CARLISLE, Plaintiff, v. NATIONAL COMMERCIAL SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

ROLAND CARLISLE, Plaintiff, v. NATIONAL COMMERCIAL SERVICES, INC., et al., Defendants.

CIVIL ACTION NO. 1:14-CV-515-TWT-LTW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

July 22, 2016

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This case is presently before the Court on Defendant Experian Information Solutions, Inc.'s ("Experian") Motion for Summary Judgment and Plaintiff Roland Carlisle's ("Plaintiff") Motion to Strike or Disregard Declaration of Kimberly Hughes. (Doc. 61). For the reasons explained below, Experian's Motion for Summary Judgment should be DENIED. (Doc. 61). Plaintiff's Motion to Strike or Disregard Declaration of Kimberly Hughes is DENIED. (Doc. 67). Instead, arguments from Plaintiff's Motion to Strike have been considered as objections and are addressed herein when they concern evidence which is relevant and necessary for assessment of the summary judgment motion.

Also before the Court is Plaintiff's motion for a less than one-week extension of time to respond to Experian's summary judgment motion. (Doc. 62). For good cause shown, Experian's Motion is GRANTED NUNC PRO TUNC. (Doc. 62). The deadline for Plaintiff's response is extended to December 11, 2015.

PLAINTIFF'S OBJECTIONS TO EVIDENCE WITHIN HIS

MOTION TO STRIKE DECLARATION OF KIMBERLY HUGHES

On February 21, 2014, Plaintiff filed his Complaint in this Court, and subsequently amended his Complaint on May 16, 2014. (Docket Entries 1, 6). In Plaintiff's Amended Complaint, Plaintiff contends that Experian violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. when Experian failed to establish reasonable procedures to assure maximum possible accuracy in the preparation of the credit reports and files it maintained concerning Plaintiff, failed to conduct a timely and lawful reinvestigation, failed to forward all relevant information to Defendant National Commercial Services, Inc. ("NCS"), the furnisher, as part of its reinvestigation, failed to delete inaccurate information in his credit file, failed to maintain reasonable procedures to filter and verify disputed information in Plaintiff's credit file, and relied upon verification from a source it has reason to believe is unreliable. (Am. Compl. ¶¶ 52-56, 72-76, 86-89). Plaintiff further contends that Experian violated the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390, et seq. ("GFBPA") when it engaged in conduct that violated the FCRA, including the reporting of information it knew, or should have known, to be false. (Am. Compl. ¶¶ 86-89).

Experian contends that summary judgment should be granted as to Plaintiff's FCRA claims because it reported Plaintiff's credit information accurately and he has no evidence showing that its procedures and reinvestigation of his dispute were unreasonable. Experian further contends that summary judgment should be granted as to Plaintiff's GFBPA claim because he has not offered any evidence showing an unfairor deceptive act occurred, the evidence shows that Plaintiff's account was reported correctly at all times, and Experian complied with the reasonableness standards imposed by the FCRA.

Experian offers the Affidavit of Kimberly Hughes, who is its Compliance and Litigation Analyst, to support its summary judgment argument. (Aff. of Kimberly Hughes, hereinafter "Hughes Aff.," ¶ 2). Experian relies upon Hughes' Affidavit in its Motion for Summary Judgment to substantiate how it handled the reinvestigation of Plaintiff's account, establish its procedures for reporting credit information it receives, and explain its procedures for investigating and resolving consumers' disputes of the items appearing on their credit reports. Plaintiff argues Hughes' Affidavit should be stricken because Experian did not identify Hughes as a witness in its Initial Disclosures and portions of the Hughes' Affidavit are not made based upon her personal knowledge. Plaintiff further contends that two exhibits, Experian's Exhibits B (Doc. 61-4) and G (Doc 61-9) should be stricken because they were not properly authenticated.

As a preliminary matter, because a Motion to Strike is not the appropriate vehicle for challenging the consideration of evidence in support of a Motion for Summary Judgment, Plaintiff's Motion to Strike will be treated as objections to evidence. Pinkerton & Laws Co. v. Roadway Express, Inc., 650 F. Supp. 1138, 1141 (N.D. Ga. 1986). Therefore, this Court will address many of Plaintiff's objections to the admissibility of any evidence presented through affidavits or any other method either explicitly here or as part of its assessment of Experian's Motion for Summary Judgment.Any objections not explicitly addressed in this section, will be considered in the Court's assessment of Experian's Summary Judgment Motion if the evidence becomes relevant to the Court's consideration of the Motion. See Linscheid v. Natus Med. Inc., No. 3:12-CV-67-TCB, 2015 WL 1470122, at *1 (N.D. Ga. Mar. 30, 2015) (considering objections when the challenged evidence became relevant to the decision on the motion); Smith v. Se. Stages, Inc., 479 F. Supp. 593, 594-95 (N.D. Ga. 1977).

I. Experian Did Identify Hughes as a Witness

Plaintiff first contends that Hughes' Affidavit should be stricken because Experian did not identify Hughes as a witness having knowledge of discoverable information regarding his claims. Under Rule 26(a)(1)(A)(i) of the Federal Rules of Civil Procedure, Experian was required to provide to Plaintiff "the name. . . of each individual likely to have discoverable information-along with the subjects of that information-that . . . [it] may use to support its claims or defenses." Here, however, Experian disclosed Hughes as a witness in its Initial Disclosures, which were served on Plaintiff in July 2014. (Doc. 73-1, at 1; Doc. 73-2, at 6). Experian explained at that time that Hughes had knowledge of its "credit reporting systems and procedures," which are the very subjects about which Hughes testified. Under these circumstances, the Court finds that Experian properly disclosed Hughes as a witness.

II. Hughes' Personal Knowledge of Statements Within Paragraphs 4, , and 9

Plaintiff further contends that Paragraphs 4, 7, and 9 of Hughes' Affidavit should be stricken because they were not based upon her personal knowledge. Specifically,Plaintiff appears to argue Hughes' Affidavit does not set forth job duties she currently performs demonstrating that she is not currently familiar with the topics of her testimony. Plaintiff argues Hughes moved from a Consumer Affairs Specialist position to a Compliance and Litigation Analyst in January 2011 and that it is not clear whether Hughes, in her new role as Compliance and Litigation Analyst, would have knowledge of Experian's current business record practices. Plaintiff also insists that Hughes' Affidavit does not describe in detail current job duties which show that she is qualified to testify on many of the topics within the Affidavit. Under Rule 56(c)(4), an affidavit used to support or oppose a summary judgment motion must be made on personal knowledge and show that the affiant is competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4); McCaskill v. Ray, 279 F. App'x 913, 914-15 (11th Cir. 2008) ("Under Federal Rule of Civil Procedure 56(e), affidavits, supporting or opposing summary judgment, must be made on personal knowledge and must set forth facts that would be admissible evidence."). Where the affiant clearly declares that the content of the affidavit is based on her personal knowledge and that the statements within the affidavit are true and correct, the district court is bound to accept the statements that the affidavit is based on personal knowledge is true unless the context demonstrates otherwise. Martin v. Rumsfeld, 137 F. App'x 324, 326 (11th Cir. 2005); Glock v. Glock, No. 1:14-CV-3249-TWT, 2015 WL 8773434, at *2, — F. Supp. 3d — (N.D. Ga. Dec. 14, 2015); Brown v. Blue Cross & Blue Shield of Fla., Inc., No. 11-80390-CIV, 2011 WL 11532078, at *4 (S.D. Fla. Aug. 8, 2011); HomeBingo Network, Inc. V.Chayevsky, 428 F. Supp. 2d 1232, 1238-39 (S.D. Ala. Apr. 21, 2006).

Here, Hughes states that in her capacity as Compliance and Litigation Analyst, her duties include analysis of Experian's credit reporting processes in connection with litigation filed by consumers against Experian and providing oral and written testimony in connection with her analysis. (Hughes Aff. ¶ 2). Hughes also asserts that she reviews Experian's policies, procedures, and systems as they relate to its consumer credit reporting business and makes recommendations to mitigate risks and improve various policies and procedures as appropriate. (Hughes Aff. ¶ 2). Hughes states: "Based upon my experience with Experian, I am very familiar with Experian's procedures pertaining to consumer disputes, Experian's procedures related to its credit reports, including the appearance of and policies and procedures regarding inquiries, and with the business records maintained by Experian's credit reporting division." (Hughes Aff. ¶ 5). Hughes further avers that the facts within her Affidavit are based upon her personal knowledge. (Hughes Aff. ¶ 5). Nothing within Hughes' Affidavit indicates that she is not currently familiar with, for instance, Experian's current business records' practices or the procedures used to assure accuracy of reported credit information. Indeed, Hughes' job duties as described in the Affidavit suggest that she is familiar with Experian's practices and procedures as indicated. (See Hughes Aff. ¶ 2 (explaining that as Compliance and Litigation Analyst, her duties include analysis and review of Experian's credit reporting processes, policies, procedures, and systems as they relate to the credit reporting business and mak[ing] recommendations to mitigate risks) ¶ 4 (explaining that asConsumer Affairs Specialist, she served as a custodian of records with respect to entries that...