Rigby v. FIA Card Servs., N.A.

• Decision Date: 23 September 2013
• Docket Number: CIVIL ACTION NO. 11-00373-KD-M
• Parties: JAMES G. RIGBY, Plaintiff, v. FIA CARD SERVICES, N.A., d.b.a. BANK OF AMERICA, Defendant.
• Court: U.S. District Court — Southern District of Alabama

JAMES G. RIGBY, Plaintiff, v. FIA CARD SERVICES, N.A., d.b.a. BANK OF AMERICA, Defendant.

CIVIL ACTION NO. 11-00373-KD-M

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE and ORDERED: September 23, 2013

ORDER

This action is before the Court on the Motion for Partial Summary Judgment (Doc. 61) and supporting documents (Doc. 70) filed by Plaintiff James G. Rigby ("Rigby") and the Motion for Summary Judgment (Doc. 83) and supporting documents (Docs. 84, 85, 87, 89) filed by Defendant FIA Card Services, N.A. d.b.a. Bank of America ("BOA"), along with the respective responses (Docs. 86, 93) and replies (Docs. 92, 96) thereto. These motions have been filed pursuant to Federal Rule of Civil Procedure 56. Both motions have been taken under submission and are ripe for adjudication. Upon consideration, and for the reasons stated herein, the Court finds that Rigby's motion is due to be DENIED and that BOA's motion is due to be GRANTED in part and DENIED in part.

I. Procedural History

On July 12, 2011, Rigby commenced this action by filing a Complaint (Doc. 1) with the Court, asserting claims against BOA 1) for violations of the Fair Credit Billing Act, 15 U.S.C. § 1666 et seq. ("FCBA") (Count I), 2) for declaratory relief (Count II), and 3) for negligence (Count III) and wantonness (Count IV) under state law. On December 21, 2011, the Court granted BOA's Motion to Dismiss (Doc. 8), dismissing all of Rigby's claims with prejudice. (Docs. 32-33). Rigby appealed this ruling, and on September 19, 2012, the Court of Appeals forthe Eleventh Circuit reversed the Court's dismissal of Rigby's FCBA, negligence, and wantonness claims. (Docs. 39-40). Accordingly, the Court referred this action to the Magistrate Judge for entry of a scheduling order. (Doc. 41).¹

BOA filed its Answer (Doc. 45) on November 14, 2012, denying any liability. On April 26, 2013, Rigby filed his motion for partial summary judgment, requesting summary judgment in his favor as to his FCBA claims in Count I of his Complaint. (Doc. 61). On June 21, 2013, BOA filed its motion for summary judgment, requesting summary judgment in its favor on all of Rigby's claims. (Doc. 83). Both pending motions were timely filed pursuant to the Court's scheduling order. (Doc. 44).

II. Standard of Review

"The 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). Rule 56(c) governs procedures and provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c).

A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The mere existence of a factual dispute will not automatically necessitate denial; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004).

If a non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. In reviewing whether a non-moving party has met its burden, the Court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted).

" 'Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed . . . Nonetheless, cross-motions may be probative of the non-existence of a factual dispute when . . . they demonstrate a basic agreement concerning whatlegal theories and material facts are dispositive.' " United States v. Oakley, 744 F.2d 1553, 1555-56 (11th Cir. 1984) (quoting Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017 (5th Cir. 1975)) (per curiam) (second ellipsis added). See also Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983) ("[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.").

III. Analysis

A. FCBA Claim

"In order to state a claim under § 1666[ of the FCBA], the plaintiff must allege: (1) the existence of a billing error; (2) plaintiff's timely notification of the billing error; and (3) failure of the card issuer to comply with the procedural requirements of Section 1666." Rigby v. FIA Card Servs., N.A., 490 F. App'x 230, 235 (11th Cir. 2012) (citing Beaumont v. Citibank (S.D.) N.A., No. 01 Civ. 3393, 2002 WL 483431, at *3 (S.D.N.Y. Mar. 28, 2002). The parties dispute whether a "billing error" actually occurred and whether BOA complied with the procedural requirements of the FCBA. The parties do not dispute that Rigby's notification of a billing error was timely. Upon consideration of the arguments and evidence submitted by both parties, the Court concludes that genuine issues of material fact exist regarding both disputed elements of Rigby's FCBA claim, including whether BOA conducted a "reasonable" investigation of Rigby's notice of a claimed billing error. See infra.

"The [FCBA] defines a 'billing error' as, among other things, '[a] reflection on a statement of goods and services not accepted by the obligor or his designee or not delivered to the obligor or his designee in accordance with the agreement made at the time of the transaction.' " Id. at 234 (quoting § 1666(b)(3)). The Eleventh Circuit previously determined that Rigbysufficiently alleged a "billing error" based on both non-acceptance and non-delivery. Id. at 235. Rigby asserts both on summary judgment, and the Court finds genuine issues of material fact as to whether either type of billing error in fact occurred.

Deferring to the commentary on the FCBA's implementing regulations, the Eleventh Circuit noted that, "to the extent Rigby asserts a billing error based on nondelivery of the membership, the FCBA required BOA to 'conduct[ ] a reasonable investigation and determine[ ] that the [membership was] actually delivered ... as agreed,' before reinstituting the charge." Id. at 236 (quoting 12 C.F.R. § 226.13, Supp. I. cmt. 13(f)(3)(ii)). As to this requirement, the Eleventh then noted:

Rigby does not dispute that BOA conducted an investigation of his claim, and resolved his claim within the statutory deadline. Instead, Rigby disputes the adequacy of that investigation. Specifically, Rigby alleges that he provided BOA with the August 3, 2010, letter, in which Outrigger acknowledged that it would be "impossible" for Rigby to use the membership. That fact renders plausible the claim that BOA failed to follow-up when presented with information that could have conclusively demonstrated non-delivery. Or, alternatively, the letter allows the reasonable inference that BOA's initial investigation, which led it to reinstate the charge on July 21, 2010, was inadequate. As a result, Rigby has pleaded facts that, taken as true, allow the reasonable inference that BOA's investigation was not "reasonable" and that BOA's disposition of the billing error claim did not rest on a determination that the club membership was "actually delivered." See 12 C.F.R. § 226.13, Supp. I. cmt. 13(f)(3)(ii).

Id. at 236-37.

The implementing regulation commentary does not contain specific procedures regarding a billing error based on non-acceptance. With regard to investigations of billing errors in general, the implementing regulation commentary states:

A creditor must conduct a reasonable investigation before it determines that no billing error occurred or that a different billing error occurred from that asserted. In conducting its investigation of an allegation of a billing error, the creditor may reasonably request the consumer's cooperation. The creditor may not automatically deny a claim based solely on the consumer's failure or refusal to comply with a particular request, including providing an affidavit or filing apolice report. However, if the creditor otherwise has no

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