Hill v. Equifax Info. Servs., LLC

• Decision Date: 24 September 2013
• Docket Number: No. 1:11CV107.,1:11CV107.
• Citation: 974 F.Supp.2d 865
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Arthur HILL, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC, Defendant.

974 F.Supp.2d 865

Arthur HILL, Plaintiff,
v.
EQUIFAX INFORMATION SERVICES, LLC, Defendant.

No. 1:11CV107.

United States District Court,
M.D. North Carolina.

Sept. 24, 2013.

[974 F.Supp.2d 867]

Arthur Hill, Concord, NC, pro se.

David Glen Guidry, King & Spalding, LLP, Charlotte, NC, Barry Goheen, J. Anthony Love, King & Spalding, LLP, Keasha Ann Broussard, King & Spaulding, LLP, Atlanta, GA, for Defendant.

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge.

This matter is before the court on the Motion for Partial Judgment on the Pleadings (Doc. 34) and Motion for Summary Judgment (Doc. 55) filed by Defendant Equifax Information Services, LLC (“Defendant” or “Equifax”). Plaintiff Arthur Hill (“Plaintiff” or “Hill”) filed the instant lawsuit pro se, alleging violations of various provisions of the Fair Credit Reporting Act and related North Carolina state statutes. In response to Defendant's Motion for Partial Judgment on the Pleadings and Motion for Summary Judgment, Plaintiff filed responses (Doc. 38 and Doc. 64, respectively) and Defendant has replied (Doc. 43 and Doc. 68, respectively). The motions are now ripe for adjudication. After reviewing the motions, accompanying briefs, and relevant filings in the case, this court finds that both motions should be granted for the reasons that follow.

I. PROCEDURAL HISTORY

Arthur Hill proceeds pro se in this lawsuit filed under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA” or “the Act”) and related North Carolina state statutes. In addition to the original complaint ¹ (Complaint (Doc. 3)), Plaintiff has filed an Amended Complaint (Def.'s Am. Notice of Removal, Ex. B., Am. Complaint (“Am. Compl.”) (Doc. 12–2)) and a document entitled “Supplemental Complaint” (Doc. 44). From the record, it appears Plaintiff took no discovery or depositions to support his allegations.

On June 1, 2012, Equifax filed a Motion for Partial Judgment on the Pleadings (Doc. 35) as to 13 of the 28 counts set forth in Plaintiff's Complaint and Amended Complaint. On November 19, 2012, Defendant filed a Motion for Summary Judgment

[974 F.Supp.2d 868]

(Doc. 55) on those 13 counts as well as the remaining 15 counts in the Amended Complaint and all the counts asserted in the Supplemental Complaint.

Plaintiff's claims arise from what Plaintiff contends are numerous violations of the FCRA by Defendant in response to alleged errors and inaccuracies in his credit report. Plaintiff alleges a host of violations of the FCRA, including violations of § 1681b (requiring reasonable procedures regarding credit reporting), § 1681e(b) (requiring “reasonable procedures to assure maximum possible accuracy”), § 1681i(a) (requiring a reasonable reinvestigation of disputed information), § 1681c–1 (requiring the placement of fraud alerts upon request by consumers), § 1681g (requiring disclosure of a consumer's file to that consumer), and § 1681c (requiring exclusion and inclusion of certain information in credit reports). Defendant contends that its procedures are reasonable as to each requirement of the FCRA and that, in any event, Plaintiff lacks sufficient evidence of actual damages or an evidentiary basis for punitive damages to create a genuine issue of material fact.

II. FACTUAL BACKGROUND

“Fed.R.Civ.P. 56 prescribes specific procedures to be followed in submitting evidence for or against a summary judgment motion.” Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir.1993). As noted by Defendant in its Reply (Def.'s Reply in Supp. of Mot. for Summ. J. (Doc. 68)), Orsi states that “unsworn, unauthenticated documents cannot be considered on a motion for summary judgment.” ( Id. at 3.) ²

Here, Plaintiff, in support of his claims and in response to summary judgment, has submitted very lengthy verified pleadings including a complaint, amended complaint, supplemental complaint, and affidavits, including numerous attachments. Additionally, Plaintiff has submitted his personal affidavit affirming that all the documents he has “provided in support of [his] opposition to Defendant's Motion for Summary Judgment are true and accurate copies.” (Pl.'s Resp. Br. in Opp'n of Def.'s Mot. for Summ. J. (“Pl.'s Resp. Br.”), Attach. 1, Affidavit of Arthur Hill (Doc. 64–2).) While each of Plaintiff's submissions is not directly attached to a separate affidavit, his sworn statement was filed alongside his response brief (Doc. 64), as were all his additional items of evidence.

Plaintiff is proceeding pro se, and, as a result, a determination of what facts may be considered at summary judgment is complicated by this court's duty to construe pro se pleadings liberally. See, e.g., Butler v. Cooper, 554 F.2d 645, 647 (4th Cir.1977).³Fed.R.Civ.P. 56(c)(1)(A) permits a party to cite “particular parts of materials in the record.” However, a “party's reliance on that material may be defeated if “the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. Fed.R.Civ.P. 56(c)(2).” Whittaker v. Morgan State Univ., 524 Fed.Appx. 58 (4th Cir.2013). The comments to the most recent Federal Rules amendment make clear that “[t]he burden is on the proponent to

[974 F.Supp.2d 869]

show that the material is admissible as presented or to explain the admissible form that is anticipated.” Fed.R.Civ.P. 56, comment to subdivision (c)(2) (emphasis added). In this case, Plaintiff has cited to, and relied upon, a number of facts as set forth either in his verified pleadings or in his affidavit. In light of the duty to construe pro se pleadings liberally, see, e.g., Butler, 554 F.2d at 647, this court has, where possible, assumed Plaintiff could subpoena a witness or present admissible evidence of a particular fact and will award to Plaintiff the benefit of the doubt as to his ability to present admissible evidence at trial. However, where Plaintiff has presented no evidence, or even an inference, of the ability to present evidence in admissible form, those facts cannot be considered in opposition to Defendant's motion for summary judgment. Pursuant to the foregoing principles, this court will summarize the undisputed facts in the light most favorable to the Plaintiff.

There is no dispute that Plaintiff is a consumer 15 U.S.C. § 1681a(c) and Defendant is a consumer reporting agency within the meaning of the FCRA. (Def.'s Br. in Supp. of Mot. for Summ. J. (“Def.'s Br.”), Ex. B (Doc. 56–2) ¶ 4.) Furthermore, it is undisputed that Plaintiff was never denied credit, did not suffer adverse financing activity, nor was his credit score adversely affected as a result of the matters about which Plaintiff now complains.

The first area of dispute with Equifax relates to two former addresses (Port Barre, Louisiana, and Richmond, Ohio) that Plaintiff alleges were erroneously included in his credit report. (Am. Compl. (Doc. 12–2) ¶¶ 20, 30.) There is no evidence Plaintiff has ever used or been associated in any fashion with the Port Barre address of P.O. Box 1585, Port Barre, Louisiana. The dispute as to the Port Barre address began in 2008 when Plaintiff discovered the address on his report. On June 16, 2008, Equifax received an online dispute from Plaintiff of the Port Barre address and intended to delete the address but failed to do so. (Def.'s Br., Ex. B, Declaration of Mackenzie Cole (“Cole Decl.”) (Doc. 56–2) ¶ 45.) In December 2009, Plaintiff again contacted Equifax to correct these addresses as well as an account he disputed, the “Escallate/Medclear” account. (Am. Compl. (Doc. 12–2) ¶¶ 34, 36; Def.'s Br., Cole Decl. (Doc. 56–2) ¶ 46.) Equifax contends that as a result, it deleted the Port Barre address (Def.'s Br., Cole Decl. (Doc. 56–2) ¶ 46), but on January 6, 2010, Plaintiff again disputed the Port Barre (P.O. Box 1585) address; for some as yet unexplained reason, this time Equifax moved the address to “the former address section of Plaintiff's credit file.” ( Id. ¶ 50.) On January 12, 2010, Plaintiff again disputed the Port Barre address and Equifax apparently took no action. ( Id. ¶ 51.) On January 14, 2010, Plaintiff notified Equifax that he would not be sending in documents to remove the Port Barre address because it had been reported by Honda.⁴ ( Id. ¶ 52.) On January 27, 2010, Plaintiff again disputed the Port Barre address and, in response, Defendant permanently suppressed the address.⁵ ( Id. ¶ 53.)

[974 F.Supp.2d 870]

The second area of Plaintiff's dissatisfaction with Defendant relates to the reporting and removal of a Medclear/NCO Collection account. The undisputed facts do not reflect that the Medclear/NCO account was improperly reported by Defendant on Plaintiff's credit report. Plaintiff's verified pleadings reflect that the account was based upon an NCO report that contained false information, including “a wrong address and misrepresented the fact that the Plaintiff was insured on 2 insurance policies that covered his son and his ex-wife, and also associated the Plaintiff with his ex-wife's home address....” (Am. Compl. (Doc. 12–2) ¶ 17.) Although Plaintiff alleges a misrepresentation, that appears to have been attributable to NCO's report and not to any action by Defendant. Regardless, Plaintiff has forecast no evidence from which this court could find that Defendant acted improperly in reporting the account.⁶

Nevertheless, in May and June 2008, Plaintiff disputed the Medclear account as not his. (Am. Compl. (Doc. 12–2) ¶ 17.) Defendant conducted a reinvestigation; Medclear advised Defendant to delete the account. (Def.'s Br., Cole Decl. (Doc. 56–2) ¶¶ 41–42.) Defendant deleted the account and sent Plaintiff the reinvestigation results. ( Id.; Am. Compl. (Doc. 12–2) ¶ 17; Pl.'s Resp. Br., Ex. A, Declaration of Arthur Hill (“Hill Decl.”) (Doc. 64–1) ¶ 23.)

Plaintiff's own actions in relation to the Medclear/NCO account were in part responsible for the third matter about which Plaintiff complains. Specifically, the third matter of dispute is that Plaintiff requested a One–Call Fraud...