Neclerio v. Trans Union, LLC

• Decision Date: 15 November 2013
• Docket Number: Civil Action No. 3:11–CV–01317 (VLB).
• Parties: Ralph C. NECLERIO, Jr., Plaintiff, v. TRANS UNION, LLC, Defendant.
• Court: U.S. District Court — District of Connecticut

983 F.Supp.2d 199

Ralph C. NECLERIO, Jr., Plaintiff,

v.TRANS UNION, LLC, Defendant.

Civil Action No. 3:11–CV–01317 (VLB).

United States District Court,

D. Connecticut.

Nov. 15, 2013.

Anthony S. Bonadies, Bonadies Law Firm LLC, Hamden, CT, Ian B. Lyngklip, Lyngklip & Taub Consumer Law Group, Southfield, MI, for Plaintiff.

Howard K. Levine, Carmody & Torrance, New Haven, CT, Robert Schuckit, William R. Brown, Schuckit & Associates, P.C., Zionsville, IN, for Defendant.

MEMORANDUM OF DECISION DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND DENYING DEFENDANT'S MOTION TO STRIKE [Dkts. 44, 47 & 61]

VANESSA L. BRYANT, District Judge.

INTRODUCTION

Before the Court are cross motions for summary judgment: a motion for partial summary judgment filed by the Plaintiff, Ralph C. Neclerio, Jr. (“Neclerio, Jr.”), seeking judgment on claims brought under 15 U.S.C. § 1681g and 15 U.S.C. § 1681i(a)(6)(B)(ii), and a motion for summary judgment as to all claims filed by Defendant, Trans Union, LLC (“Trans Union”) ¹. The Plaintiff, Richard C. Neclerio, Jr., brought this suit alleging both negligent and willful noncompliance of sections 1681e(b), 1681i, and 1681g of the Fair Credit Reporting Act (the “FCRA”). For the reasons stated hereafter, Plaintiff's motion for partial summary judgment is denied, Defendant's motion for summary judgment is denied as to Plaintiff's section 1681e(b) claim only and granted as to Plaintiff's remaining claims, and Defendant's Motion to Strike Plaintiff's Supplemental Interrogatory Response is denied.

I. FACTUAL BACKGROUND²

The following facts are undisputed unless otherwise noted. Plaintiff applied for a job with Guilford Savings Bank (“Guilford”) in 2009. [Dkt. 45, Def. 56(a)(1) Statement, ¶ 42.] As part of his application, Plaintiff submitted a resume and completed a form application that included a release allowing Guilford to conduct an employment background investigation. Id. At 12:56 PM on September 1, 2009, as part of that background investigation, Guilford requested a consumer report from Trans Union (the “12:56 Request”). [Dkt. 45, Def. 56(a)(1) Statement, ¶ 43.] In the 12:56 Request, Guilford provided Trans Union with only the name “Ralph Neclerio” and Plaintiff's then-current address, located on Lincoln Avenue in Wallingford, Connecticut (the Court will refer to Plaintiff'sthen-current address as the “Lincoln Avenue Address”). Id. Guilford did not provide Trans Union with the suffix to Plaintiff's name, “Jr.,” in the 12:56 Request. Id. The report returned by Trans Union in response to the 12:56 Request (the “12:56 Report”) bore a name matching Plaintiff's, “Ralph C. Neclerio, Jr.”, noted a current address located on Stonewall Drive in Hamden, Connecticut (the “Stonewall Drive Address”), and indicated that the Lincoln Avenue Address was the first previous address. [Dkt. 45, Def. 56(a)(1) Statement, 11 44.] Additionally, the 12:46 Report contained a date of birth and a Social Security Number, neither of which were Plaintiff's. Id. Guilford noticed immediately that the Social Security Number on the report did not match the Social Security Number that Plaintiff had provided to Guilford, and shredded the report. [Dkt. 45, Def. 56(a)(1) Statement, ¶ 45.] Seven minutes later, at 1:03 PM, Guilford made a second report request to Trans Union (the “1:03 Request”). [Dkt. 45, Def. 56(a)(1) Statement, ¶ 45.]

The exact content of the 12:56 Report are not in the record, as Guilford shredded it immediately after receiving it, [Dkt. 45, Def. 56(a)(1) Statement, ¶ 45.] and because Trans Union does not keep internal copies of reports that have been sent. [Dkt. 57, Def. 56(a)(2) Statement, ¶ 6.] ³ However, it is undisputed that Trans Union's automated system generated a letter on September 3, 2009, which indicated that Trans Union had produced a credit report to Guilford, and which described six pieces of public record information that were contained in that report. [Dkt. 45, Def. 56(a)(1) Statement, ¶ 49.] That letter was addressed to “Ralph C. Neclerio, Jr.”, and sent to Plaintiff's father's address, the Stonewall Avenue Address.⁴ [Dkt. 45, Def. 56(a)(1) Statement, ¶ 49].

Seven minutes after its first request, at 1:03 PM, Guilford made a second report request to Trans Union (the “1:03 Request”). [Dkt. 45, Def. 56(a)(1) Statement, ¶ 45.] In making the 1:03 Request Guilford submitted the exact same name and address used in the 12:56 Request, but also included Plaintiff's Social Security Number. [Dkt. 45, Def. 56(a)(1) Statement, ¶ 46.] In response, Trans Union provided a second report (the “1:03 Report”). [Dkt. 45, Def. 56(a)(1) Statement, ¶ 47.] The 1:03 Report included Plaintiff's name and generational suffix, “Ralph C. Neclerio, Jr.,” a current address that matched Plaintiff's then-address, the Lincoln Avenue Address,listed the Stonewall Drive Address as the first previous address,⁵ listed Plaintiff's Social Security Number, and listed a date of birth matching Plaintiff's. [Dkt. 45, Def. 56(a)(1) Statement, ¶¶ 47; Dkt. 54, Ex. 8 at ¶ 3.] ⁶ Although Plaintiff does not admit that the 1:03 Report was his own credit report, Plaintiff also does not allege that the 1:03 Report was not his own report or offer any evidence indicating that such report was not his own, and the evidence that is in the record indicates that it was in fact his own report. Although the 1:03 Report itself is not in the record, the record does contain an email to Plaintiff from an employee at Guilford stating that the 1:03 Report was Plaintiff's report. [Dkt. 45, Ex. H at 000367.] Because Plaintiff does not allege that the 1:03 Report was not his own report, and because the evidence in the record indicates that such report was in fact Plaintiff's own report, the Court will assume for the purposes of this decision that the 1:03 Report was Plaintiff's report.

On September 3, 2009, Trans Union sent an automatically-generated letter addressed to “Ralph C. Neclerio, Jr.”, to the Stonewall Drive Address (the “September 3 Letter”). [Dkt. 45, Def. 56(a)(1) Statement, ¶¶ 49.] The September 3 Letter stated that a credit report had been sent to Guilford as part of an employment background check, and further reported that six pieces of public record information had been included in the report sent to Guilford. [Dkt. 45, Def. 56(a)(1) Statement, ¶ 49.] These six pieces of public records information included a Chapter 7 Bankruptcy discharge, and five federal tax liens totaling approximately $86,000. [Dkt. 54, Ex. 2.] In declarations attached as exhibits to Plaintiff's opposition to Defendant's motion for summary judgment, Plaintiff states that he has never filed for bankruptcy nor been the subject of a tax lien; Plaintiff's father states that he has filed for bankruptcy, has accumulated several tax liens on his property, and that the public records items identified in the September 3 Letter are attributable to him. [Dkt. 54, Ex. 8 at ¶¶ 6–7; Dkt. 54, Ex. 9 at ¶¶ 8–10.]

On September 9, 2009, Plaintiff emailed Guilford to inform them that information from his father's credit report may have appeared on the credit report Guilford received in response to its employment background check. [Dkt. 45, Def. 56(a)(1) Statement, ¶¶ 51.] In his email, Plaintiff wrote: “The public information described and contained in the report is inaccurate and not mine.” [Dkt. 45, Ex. H at 000367.] In a September 10, 2009 email response, Guilford informed Plaintiff that it had “recognized that the [12:56 Report] was not a match to you and resubmitted the report to Trans Union and received your correct report.” [Dkt. 45, Ex. H at 000367.] Guilford explained that: “When we ran the credit report for you, we first received a report for a Ralph Neclerio Jr., however, the social security number on the report did not match your social security number.” [Dkt. 45, Ex. H at 000367.] Guilford went on to say: “ Your employment screening report from Trans Union came back absolutely fine and shows no issues that may impact your ability to be hired at Guilford Savings Bank.” [Dkt. 45, Ex. H at 000367 (emphasis in original).] Guilford extended Plaintiff an offer of employment. [Dkt. 45, Def. 56(a)(1) Statement, ¶¶ 52.] There is no evidence in the record that Guilford read the erroneously issued credit report.

On January 8, 2010, Trans Union received a letter from Plaintiff's attorney Anthony Bonadies, in which Plaintiff informed Trans Union that he believed that Trans Union had “placed his father's poor credit history on his report,” for which Plaintiff demanded damages from Trans Union, including attorney's fees. [Dkt. 45, Def. 56(a)(1) Statement, ¶ 54; Dkt. 55, Ex. 11.] In response, Trans Union personnel performed an investigation, although the quality of the investigation is disputed by the parties. [Dkt. 45, Def. 56(a)(1) Statement, ¶ 55; Dkt. 56, Pl. 56(a)(2) Statement, ¶ 54.] On January 10, 2010, Trans Union sent a letter to Plaintiff stating that Trans Union had performed an investigation and had concluded that there was no information in Plaintiff's report that did not belong to Plaintiff. [Dkt. 45, Def. 56(a)(1) Statement, ¶ 56; Dkt. 55, Ex. 11]. Trans Union attached a copy of Plaintiff's credit report,⁷ to the letter, and informed Plaintiff that it would decline to pay any damages. [Dkt. 45, Def. 56(a)(1) Statement, ¶¶ 57–58; Dkt. 50, Ex. 5.] It appears that Trans Union was unaware that it had issued an erroneous credit report.

Trans Union received a second letter from Plaintiff's counsel on February 22, 2012, stating that Trans Union “provided six derogatory items that were attributed to Mr. Neclerio in error” without providing any detail on those six items. Although the letter indicated that it had an attachment [Dkt. 45, Def. 56(a)(1) Statement, ¶ 59; Dkt. 55, Ex. 13.] In this letter Plaintiff demanded a copy of the “updated and corrected credit history” sent to Guilford on ...