Chester v. Purvis
| Decision Date | 26 March 2003 |
| Docket Number | No. IP 01-1560-CBS.,IP 01-1560-CBS. |
| Citation | 260 F.Supp.2d 711 |
| Parties | Lenoard CHESTER, Plaintiff, v. Gregory PURVIS, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
Brandi A. Haggard, Southward & Haggard, Clifford W. Shepard, Attorney at Law, Indianapolis, IN, for Plaintiff.
Todd J. Kaiser, Ogletree, Deakins, Nash, Smoak & Stewart, PC, Indianapolis, IN, for Defendant.
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This is an action against an attorney for allegedly misusing a credit report during the deposition of the plaintiff. This cas collateral to a putative class action, Hill v. Priority Financial Services, Inc., IP98-1319-C B/S, a Fair Debt Collection Practices Act case. The plaintiff here was (until he withdrew) a named representative of the class, and the defendant, attorney Gregory Purvis, was counsel for Priority Financial Services, Inc. (hereafter PFS). Mr. Chester's complaint alleges that, during the course of discovery in Hill v. PFS, Mr. Purvis deposed Mr. Chester. During the deposition, Mr. Purvis allegedly used a credit report involving Mr. Chester's credit history to form questions to Mr. Chester. Mr. Chester alleges that Mr. Purvis' use of the credit report violated Mr. Chester's statutorily protected confidentiality pursuant to the Fair Credit Reporting Act, 15 U.S.C. §§ 1681(b)(a) and (f).
Mr. Purvis seeks summary judgment as to Mr. Chester's claim. Mr. Chester, in turn, asks us to construe his written submissions as both an opposition to Mr. Purvis' motion and as a cross-motion for summary judgment. For the reasons explained below, we DENY Mr. Purvis' motion for summary judgment. In addition, we note that we are prepared to enter summary judgment in favor of Mr. Chester on the record as it stands. Before entering summary judgment in favor of Mr. Chester, we offer Mr. Purvis an opportunity to respond and thus order Mr. Purvis to file a response, if he wishes, to Mr. Chester's motion for summary judgment within thirty days after the date of this order.
The material facts are uncontested. Mr. Chester was named as a representative of a putative class of plaintiffs in Hill v. PFS. Mr. Purvis represented PFS in that lawsuit. During discovery, Mr. Purvis took Mr. Chester's deposition. Mr. Purvis testified that among the purposes for deposing. MChester was to test his adequacy as a class representative, to test his potential effectiveness as a witness, to test his memory, and to determine his ability to pay certain costs, or, as Mr. Purvis testified, to test Mr. Chester's "financial condition generally." Purvis Dep., p. 68. In the course of deposing Mr. Chester, Mr. Purvis asked some questions concerning Mr. Chester's status as a debtor. Mr. Chester displayed an apparent lapse of memory with respect to collection actions that may have been filed against him.
Ms. Rebecca Pollard, PFS's Vice President, attended Mr. Chester's deposition as a company representative. In response to Mr. Chester's apparent failure of memory with respect to his credit record, Ms. Pollard showed Mr. Chester's credit report to Mr. Purvis; she "pointed out different items" on the report to Mr. Purvis. Purvis Dep., pp. 74-75. Mr. Purvis acknowledges that, during the deposition, he may have held the credit report in his own hands. Purvis Dep., p. 85. He also acknowledges that questions which he posed to Mr. Chester about Mr. Chester's credit history may have been based solely on the credit report supplied by Ms. Pollard because there may not have been a public record on which to base those questions. Purvis Dep., pp. 76-80, 85.
In sum, Mr. Purvis acknowledges that he used some of the information he gathered from Mr. Chester's credit report to formulate questions during Mr. Chester's deposition. During Mr. Purvis' deposition in the current action, he was asked the following questions and answered as follows:
We are asked to decide what are essentially cross motions for summary judgment. In doing so, we may grant one party summary judgment (as to all or a part) or deny both parties' motions. In any event, the standard for determining summary judgment is the same, even where only one party has moved for it.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir.1998).
On a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the nonmovant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Alb U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex, All U.S. at 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265; Anderson, All U.S. at 249-52, 106 S.Ct. 2505, 91 L.Ed.2d 202).
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 920. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir.1997). If genuine doubts remain, and a reasonable factfinder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir.1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir.1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, All U.S. at 322, 106 S.Ct. 2548, 91 L.Ed.2d 265; Waldridge, 24 F.3d at 920.
This case is uniquely susceptible to summary judgment in that the material and essential facts are uncontested making the issues before us pure matters of law. There is no dispute as to the fact that Mr. Purvis used Mr. Chester's credit report during his deposition. The issue, therefore, is whether this use was protected or otherwise non-actionable. Either Mr. Purvis had a right to use Mr. Chester's credit report while deposing Mr. Chester, or he did not. If he did not, then he violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681(b)(a) and (f).
The statute governing "permissible purposes of consumer reports," 15 U.S.C. § 1681b, provides in pertinent part:
(a) In general. Subject to subsection (c) of this section, any consumer reporting agency may furnish a consumer report under the following circumstances and no other:
(1) In response to the order of a court having jurisdiction to issue such an order, or a subpoena issued in connection with proceedings before a Federal grand jury.
(2) In accordance with the written instructions of the consumer to whom it relates.
(3) To a person which it has reason to believe—
(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or
* * * * * *
(F) otherwise has a legitimate business need for the information—
(i) in connection with a business transaction that is initiated by the consumer; or
(ii) to review an account to determine whether the consumer continues to meet the terms of the account.
(4) In response to a request by the head of a State or local child support enforcement agency (or a State or local government official authorized by the head of such an agency), if the person making the request certifies to the consumer reporting agency that— (A) the consumer report is needed for the purpose of establishing an individual's capacity to make child support payments or determining the appropriate level of such payments;
(B) the paternity of the consumer for the child to which the obligation relates has been established or acknowledged by the consumer in accordance with State laws under which the obligation arises (if required by those laws);
(C) the person has provided at least 10 days' prior notice to the consumer whose report is requested, by certified or registered mail to the last known address of the consumer, that the report will be requested; and
(D) the consumer report will be kept confidential, will be used solely for a purpose described in subparagraph (A), and will not be used in connection with any other...
To continue reading
Request your trial
-
Shepherd-Salgado v. Tyndall Fed. Credit Union
...in this regard "operate to support the confidentiality of consumer reports by limiting their dissemination." Chester v. Purvis, 260 F. Supp.2d 711, 717 (S.D. Ind. 2003); see generally Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) ("Congress ena......
- Peabody Coal Co. v. INDUSTRIAL COM'N
-
Vaughn v. Grand Brands, LLC
...circumstances and no other.' (Emphasis added.) We must interpret a statute in terms of its plain meaning." Chester v. Purvis, 260 F. Supp. 2d 711, 717 (S.D. Ind. 2003)(citing Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (Thomas, J., concurring). "In ascertaining the plain meaning of [a] st......
-
Redmond v. Elizabethtown Motors Inc.
...Only after being strongly cautioned did you wisely decline to introduce it as an exhibit.As you requested, see e.g., Chester v.Purvis, 260 F.Supp.2d 711 (S.D.Ind. 2003); Rodgers v. McCullough, 296 F.Supp.2d 895 (W.D.Tn. 2003) and Duncan v. Handmaker, 149 F.3d 424 (6th Cir. 1998); 15 U.S.C. ......