Coleman v. Experian Information Solutions, Inc.

• Docket Number: CIVIL ACTION NO. 1:21-CV-1095-CAP
• Decision Date: 06 February 2023
• Citation: Coleman v. Experian Information Solutions, Inc., 655 F.Supp.3d 1285 (N.D. Ga. 2023)
• Parties: Edward COLEMAN, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

655 F.Supp.3d 1285

Edward COLEMAN, Plaintiff, v.EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.

CIVIL ACTION NO. 1:21-CV-1095-CAP

United States District Court, N.D. Georgia, Atlanta Division

Signed February 6, 2023

David A. Chami, Pro Hac Vice, The Consumer Justice Law Firm, Scottsdale, AZ, Jenna Dakroub, Price Law Group, APC, Scottsdale, AZ, Bobby Shane Palmer, Robert J. Semrad and Associates, LLC, Atlanta, GA, for Plaintiff.

Adam W. Wiers, Pro Hac Vice, Jones Day, Chicago, IL, Callie Barr, Pro Hac Vice, Eric A. Nicholson, Pro Hac Vice, Jones Day, Detroit, MI, Christopher Michael Johnson, Pro Hac Vice, Jones Day, San Diego, CA, Jane Ashley Raborn, Rebecca Marie Nocharli, Jones Day, Atlanta, GA, MacKenzie Salvi, Pro Hac Vice, Barrington, IL, for Defendant.

ORDER

CHARLES A. PANNELL, JR., United States District Judge

This matter is before the court on the magistrate judge's Final Report and Recommendation ("R & R")[Doc. No. 126] recommending that this court grant summary judgment to the defendant, Experian Information Solutions, Inc.("Experian" or "the defendant"), pursuant to Experian's motion for the same [Doc. No. 96].¹The plaintiff has filed objections to the R & R[Doc. No. 128], and Experian has filed a reply to those objections [Doc. No. 129].The day after Experian replied to the plaintiff's objections, the plaintiff filed a motion for leave to file a surreply [Doc. No. 130], to which Experian objected [Doc. No. 131].On January 12, 2023, Experian filed a notice of supplemental authority [Doc. No. 132], and on January 16, 2023the plaintiff filed a motion for leave to file a response to Experian's supplemental briefing [Doc. No. 133].The court has reviewed all documents filed before it; thus, it GRANTS the plaintiff's motion for leave to file a surreply, which appears to be incorporated within the motion [Doc. No. 130], as well as the plaintiff's motion for leave to file a response to Experian's supplemental motion, which was also apparently incorporated within the motion [Doc. No. 133].No additional briefing is necessary or permitted on this issue.

This matter, which is more-than-fully briefed, is now ripe for review.

I.Applicable Legal Standards

A.Legal Standard for Reviewing a Report and Recommendation

To challenge the findings and recommendations of the magistrate judge, a party must file with the clerk of court written objections which "shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis of the objection."Heath v. Jones,863 F.2d 815, 822(11th Cir.1989).If timely and proper objections are filed, the district court"shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."28 U.S.C. § 636(b)(1)(C).The court"may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."Fed. R. Civ. P. 72(b)(3).

B.Legal Standard for Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgment 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. P. 56(a).A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party.Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).A fact is "material" if it is "a legal element of the claim under the applicable substantive law which might affect the outcome of the case."Allen v. Tyson Foods, Inc.,121 F.3d 642, 646(11th Cir.1997).

The moving party bears the initial burden of showing, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial.Hickson Corp. v. N. Crossarm Co.,357 F.3d 1256, 1260(11th Cir.2004)(citingCelotex Corp. v. Catrett,477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986)).The moving party's burden can be discharged either by showing an absence of evidence to support an essential element of the nonmoving party's case or by showing that the nonmoving party will be unable to prove the case at trial.Celotex,477 U.S. at 325, 106 S.Ct. 2548;Fitzpatrick v. City of Atlanta,2 F.3d 1112, 1115(11th Cir.1993).In determining whether the moving party has met this burden, the court must consider the facts in the light most favorable to the nonmoving party.SeeRobinson v. Arrugueta,415 F.3d 1252, 1257(11th Cir.2005).

Once the moving party has adequately supported its motion, the non-movant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute.Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986).There is no "genuine [dispute] for trial" when the record as a whole could not lead a rational trier of fact to find for the non-moving party.Id.All reasonable doubts, however, are resolved in the favor of the nonmoving party.Fitzpatrick,2 F.3d at 1115.In addition, the court must "avoid weighing conflicting evidence or making credibility determinations."Stewart v. Booker T. Washington Ins.,232 F.3d 844, 848(11th Cir.2000).

II.Overview of the Case

A.The Plaintiff's Claims

The plaintiff alleges that Experian negligently and/or willfully violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681e(b), by misreporting a debt that the plaintiff incurred with First Franklin Financial ("First Franklin").²See generallyCompl.[Doc. No. 1].The plaintiff contends that, although the debt was discharged in bankruptcy, Experian inaccurately reported it as open with a balance of $1,336.Id.¶ 45.He claims that the defendant's reporting error caused him damages, "including credit harm, loss of credit opportunity, credit denials, and other financial harm" as well as "interference with daily activities [and] emotional distress, including, without limitation, emotional and mental anguish, humiliation, stress, anger, frustration, shock, embarrassment, and anxiety."Id.¶ 57.He further alleges that he was denied an automobile loan by several creditors due to the defendant's "inaccurate reporting which was published to the creditors in their review of [his] application."Id.¶ 58.The plaintiff seeks actual, statutory, and punitive damages as well as costs and reasonable attorneys' fees.Id. at 17-18.

B.Undisputed Facts for Purposes of Summary Judgment

1.Introduction

In the R & R on this matter, the magistrate judge set forth a lengthy and descriptive statement of facts.The plaintiff has not disputed the majority of these facts; thus, they are recited below with citations omitted.The court has removed an excerpt regarding the plaintiff's deposition testimony and will review that testimony in its analysis of the plaintiff's claim for emotional distress damages.

2.Facts

On December 31, 2019, the plaintiff took out a cash loan in the amount of $1,596 with First Franklin so that he could pay for a dental procedure.³On January 6, 2020, six days after incurring the debt to First Franklin, the plaintiff filed a petition for Chapter 7 bankruptcy in the U.S. Bankruptcy Court for the Northern District of Georgia and signed sworn statements that his schedule of liabilities and list of creditors were true and correct.The plaintiff, however, failed to list the First Franklin debt on his bankruptcy petition or schedule of liabilities, and never sought to amend his bankruptcy petition or schedules to add First Franklin as a creditor to his bankruptcy.Because First Franklin was not listed on the plaintiff's petition as a creditor, the bankruptcy court did not provide First Franklin with notice of the plaintiff's bankruptcy.The plaintiff testified in his deposition that he was not sure why First Franklin was not listed as a creditor, but the omission was not intentional.⁴

Experian's internal records indicate that First Franklin first reported the plaintiff's debt to Experian on February 19, 2020.At that time, First Franklin reported to Experian that the plaintiff's account was opened on December 31, 2019; the account condition was "open"; the account status was "current"; there was no history of any late payments; and the balance was $1,336 as of December 2019.

On April 13, 2020, the bankruptcy court entered a discharge order in the plaintiff's bankruptcy.Experian received notice of the plaintiff's bankruptcy discharge from its public-records vendor, LexisNexis Risk Data Management, on the same day the bankruptcy court entered the Discharge Order.

Upon notice that a consumer has received a discharge in a Chapter 7 bankruptcy proceeding, Experian applies an automated "scrub" procedure to that consumer's credit files.The scrub process evaluates the debts in a consumer's credit file, identifies pre-bankruptcy debts Experian considers most likely to have been discharged in the consumer's bankruptcy, and causes those debts to report as discharged in bankruptcy and with a zero ($0) balance by applying an industry-standard code known as a Consumer Information Indicator with a value of "E."

Experian developed its bankruptcy scrub in order to implement the procedures it had agreed to pursuant to a class action settlement agreement and order issued by the United States District Court for the Central District of California in White v. Experian Information Solutions, Inc.,No. SA CV 05-1070 DOC (MLGx)(Lead Case) and related cases(including No. 05-cv-1073, 2008 WL 11518799(C.D. Cal.)Aug. 19, 2008)(hereinafter "the WhiteOrder").The action asserted claims on behalf of a putative nationwide class of consumers relating to each of the defendants' (including Experian's) procedures for reporting pre-bankruptcy debts of consumers who have obtained discharges through Chapter 7...