Rodgers v. McCullough

• Decision Date: 03 December 2003
• Docket Number: No. 02-2744 M1.,02-2744 M1.
• Citation: 296 F.Supp.2d 895
• Parties: Christine D. RODGERS, Plaintiff, v. Barbara S. McCULLOUGH, et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

296 F.Supp.2d 895

Christine D. RODGERS, Plaintiff, v. Barbara S. McCULLOUGH, et al., Defendants.

No. 02-2744 M1.

United States District Court, W.D. Tennessee, Western Division.

December 3, 2003.

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Warner Hodges, III, Esq., Hodges Law Firm, Germantown, TN, David B. Mour, Jeffrey A. Cross, Borowitz & Goldsmith, PLC, Louisville, KY, for plaintiff.

Richard Glassman, Esq., Glassman, Edwards, Wade & Wyatt, P.C., Memphis, TN, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS FOR PARTIAL SUMMARY JUDGMENT

MCCALLA, District Judge.

This case is before the Court on three motions for partial summary judgment. Plaintiff has filed the following motions: (1) Plaintiff's Motion for Partial Summary Judgment Regarding the Defendants' Failure to Comply with the Fair Credit Reporting Act; (2) Plaintiff's Motion for Partial Summary Judgment Regarding Whether Defendants' Failure to Comply with the Fair Credit Reporting Act was Willful; and (3) Plaintiff's Motion for Partial Summary Judgment Regarding Whether the Defendants' Actions Constitute an Unlawful Invasion of Privacy. Plaintiff filed each of these motions on July 28, 2003. Defendants responded in opposition to each of the motions on August 27, 2003. For the following reasons, the Court GRANTS Plaintiff's first motion for partial summary judgment because Defendants did not have a permissible purpose to obtain Plaintiff's credit report. The Court DENIES the second motion for summary judgment on the question of whether Defendants actions were willful. The Court also DENIES the third motion on the question of unlawful invasion of privacy.

I. Background

This case concerns Defendants' receipt and use of Christine Rodgers' consumer report. The material facts do not seem to be disputed. The parties agree that Ms. Rodgers gave birth to a daughter, Meghan, on May 4, 2001. Meghan's father is Raymond Anthony. Barbara McCullough, an attorney, represented Mr. Anthony in a child custody suit against Ms. Rodgers in which Mr. Anthony sought to obtain custody and child support from Ms. Rodgers. Ms. McCullough received, reviewed, and used Ms. Rodgers' consumer report in connection with the child custody case.

On September 25, 2001, Ms. McCullough instructed Gloria Christian, her secretary, to obtain Ms. Rodgers' consumer report.¹ Ms. McCullough received the report on September 27 or 28 of 2001. She reviewed the report in preparation for her examination of Ms. Rodgers during a hearing to be held in juvenile court on October 23, 2001. She also used the report during the hearing, including attempting to move the document into evidence and possibly handing it to the presiding judge.

The dispute in this case centers around whether Ms. McCullough obtained and used Ms. Rodgers' consumer report for a purpose permitted under the Fair Credit Reporting Act (the "FCRA"), 15 U.S.C. § 1681b(a). Plaintiff contends that Ms. McCullough, as well as her law firm, Wilkes, McCullough & Wagner, a partnership, and her partners, Calvin J. McCullough and John C. Wagner,² are liable for the unlawful receipt and use of Ms. Rodgers' consumer report in violation 15 U.S.C. §§ 1681o (negligent failure to comply with the FCRA) and 1681n (willful failure to comply with the FCRA or obtaining a consumer report under false pretenses). Plaintiff has also sued Defendants for the state law tort of unlawful invasion of privacy.

II. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if ... there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Supreme Court has explained that the standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

So long as the movant has met its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548, and the nonmoving party is unable to make such a showing, summary judgment is appropriate. Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989). In considering a motion for summary judgment, "the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. Analysis

Plaintiff has moved for summary judgment on the questions of whether Defendants failed to comply with the FCRA (i.e. whether Defendants had a permissible purpose to obtain Ms. Rodgers' credit report), whether Defendants' alleged failure to comply was willful, and whether Defendants' actions constituted unlawful invasion of privacy.³ The Court will address the FCRA claims followed by the state law claim for unlawful invasion of privacy.

A. Permissible Purpose under the FCRA

Pursuant to the FCRA, "A person shall not use or obtain a consumer report for any purpose unless (1) the consumer report is obtained for a purpose for which the consumer report is authorized to be furnished under this section ...." 15 U.S.C. § 1681b(f)(1). Defendants do not dispute that Ms. McCullough obtained and used Ms. Rodgers' consumer report. (Def.'s Resp. to Pla.'s Stm't of Mat'l Facts Regarding Alleged Failure to Comply with the FCRA ¶¶ 17, 19, 34-36.)

Fifteen U.S.C. § 1681b(a) provides a list of permissible purposes for the receipt and use of a consumer report, of which the following subsection is at issue in this case:

[A]ny consumer reporting agency may furnish a consumer report under the following circumstances and no other:

. . . . .

(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 ...

15 U.S.C. § 1681(b)(A)(3). Defendants concede that Ms. McCullough's receipt and use of Ms. Rodgers' consumer report does not fall within any of the other permissible purposes enumerated in 15 U.S.C. § 1681b(a). (Def.'s Resp. to Pla.'s Stm't of Mat'l Facts Regarding Alleged Failure to Comply with the FCRA ¶¶ 21-23, 25-30.)

Ms. Rodgers requests summary judgment in her favor on this point, relying on the plain text of the statute, because she was not in arrears on any child support obligation at the time Ms. McCullough requested the consumer report, nor did she owe Ms. McCullough's client any debt. She notes that Mr. Anthony did not have custody of Meghan Rodgers and that an award of child support had not even been set at the time Ms. McCullough obtained her consumer report.

Defendants maintain that Ms. McCullough obtained Ms. Rodgers' consumer report for a permissible purpose, namely to locate Ms. Rodgers' residence and set and collect child support obligations. Defendants argue that 15 U.S.C. § 1681b(a)(3)(A) permits the use of a credit report in connection with "collection of an account" and, therefore, Ms. McCullough was permitted to use Ms. Rodgers' credit report in connection with the collection of child support.⁴

The cases Defendants have cited in response to the motion for summary judgment are inapplicable to the present facts. In each case cited by Defendants, the person who obtained a credit report did so in order to collect on an outstanding judgment or an outstanding debt. See, e.g., Baker v. Bronx-Westchester Investigations, Inc., 850 F.Supp. 260, 262 (S.D.N.Y. 1994) (finding that collection of a judgment of arrears in child support is a permissible purpose under § 1681b(a)(3)(A)); Korotki v. Attorney Servs. Corp., 931 F.Supp. 1269, 1277-79 (D.Md.1996) (holding that defendant had a permissible purpose for obtaining a consumer report where plaintiff owed an outstanding debt to the company).

However, no such outstanding debt or judgment existed in this case. At the time Ms. McCullough obtained Ms. Rodgers' consumer report, Ms. Rodgers' did not owe money to either Ms. McCullough or her client, Mr. Anthony. Defendants have provided no evidence showing that Ms. McCullough believed Ms. Rodgers owed money to Mr. Anthony at the time she requested the credit report. Indeed, Mr. Anthony had not even been awarded custody of Meghan Rodgers at the time Ms McCullough obtained and used the credit report. Ms. McCullough acknowledged each of the facts during her deposition. (McCullough Dep. at 97-99.) Moreover, in response to Plaintiff's request for admissions, Ms. McCullough admitted that she did not receive the credit report for the purpose of collecting on an account from Ms. Rodgers. (Resp. to Pla.'s First Request for Admissions ¶ 57.)

The evidence before the Court makes clear that Ms. McCullough was actually attempting, on behalf of Mr. Anthony, to secure custody of Meghan Rodgers and obtain a future award of child support payments from Ms. Rodgers by portraying Ms. Rodgers as irresponsible to the court. (McCullough Dep. at 157-158.) These are not listed as permissible purposes under 15 U.S.C. § 1681b(a)(3)(A). Defendants have offered the Court no reason to depart from the plain language of the statute, which clearly does not permit an individual to obtain a consumer report for the purposes of obtaining child custody and instituting child support payments.⁵ Moreover, the fact that the Juvenile Court later awarded custody and child support to Mr. Anthony does not retroactively provide Ms. McCullough with a permissible purpose for...