Vazquez-Garcia v. Trans Union De Puerto Rico, CIVIL NO. 00-2071 (DRD).

• Decision Date: 18 September 2002
• Docket Number: CIVIL NO. 00-2071 (DRD).
• Citation: 222 F.Supp.2d 150
• Parties: Jose VAZQUEZ-GARCIA, Plaintiff, v. TRANS UNION DE PUERTO RICO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

222 F.Supp.2d 150

Jose VAZQUEZ-GARCIA, Plaintiff, v. TRANS UNION DE PUERTO RICO, et al., Defendants.

CIVIL NO. 00-2071 (DRD).

United States District Court, D. Puerto Rico.

September 18, 2002.

Peter J. Porrata, Maritere Perez-Pascual, San Juan, PR, for Plaintiff.

Eric J. Berlingeri-Vincenti, De Corral & De Mier, Fernando J. Gierbolini-Gonzalez, Salvador Antonetti-Zequeira, Fiddler, Gonzalez & Rodriguez, Luis G. Martinez-Llorens Colon, Colon & Martinez, San Juan, PR, for defendants.

OPINION AND ORDER

DOMINGUEZ, District Judge.

Pending before the Court are three (3) motions: the first two (2) were filed by defendant, Sears, Roebuck & Co. ("Sears"), to wit, a motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6), and another for summary judgment, filed under FED. R.CIV.P. 56. The other motion pending is a motion to extend time to oppose Sears' motion for summary judgment, filed by plaintiff. After carefully reviewing the record, the Court hereby DENIES Sears' motion for summary judgment (Docket No. 60); the Court also DENIES Sears' motion to dismiss (Docket No. 54). Plaintiff's motion for an extension of time to file opposition is GRANTED. (Docket No. 61). The Court considers plaintiff's motion in opposition as submitted, at Docket Nos. 62 and 63.

I FAILURE TO COMPLY WITH LOCAL RULES REGARDING SUMMARY JUDGMENT

At the outset, the Court denies Sears' motion for summary judgment, Docket No. 60, for failure to comply with this Court's local rules. While Sears partly complied with Local Rule 311.12, providing a "short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried," its statement is not, however, "properly supported by specific reference to the record." See Local Rule 311.12 (emphasis added). Even though the statement makes (specific) reference to a transcript of plaintiff's deposition, that transcript is not found in the record. The long-standing rule is that transcripts of depositions are generally not admissible as evidence, and thus, they are not usually part of the record. See Westinghouse Electric Corp. v. Wray Equipment Corp., 286 F.2d 491, 493-494 (1st Cir.1961)(citing cases). Accordingly, since Sears makes reference to a transcript which is not part of the record, its Rule 311.12-statement is not "properly supported by specific reference to the record," in violation of Local Rule 311.12.

Moreover, Sears' motion for summary judgment must be denied on the basis that it also fails to comply with Local Rule 311.4. Said rule provides, in pertinent part, that "[w]hen allegations of facts not appearing on record are relied upon in support of a motion, all affidavits and other pertinent documents then available shall accompany the motion." See Local Rule 311.4 (emphasis added). Because the transcript of plaintiff's deposition, on which Sears relies upon in support of its motion for summary judgment does not appear on record, Sears had an obligation to file it together with its motion. Sears did not. Hence, Sears also failed to comply with Local Rule 311.4.

It is well established in this Circuit that a district court "[is] entitled to insist upon compliance with its local rule." Corey v. Mast Road Grain & Bldg. Materials Co., Inc., 738 F.2d 11, 12 (1st Cir.1984); see also United States v. Proceeds of Sale of 3,888 Pounds Atlantic Sea Scallops, 857 F.2d 46 (1st Cir.1988). The First Circuit Court has constantly reiterated, particularly, with reference to Rule 311.12, that "parties ignore [it] at their own peril ...." Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.2000)(citing prior cases); see also Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 33 (1st Cir.2001)("This case is a lesson in summary judgment practice"). Furthermore, a recent First Circuit case buttresses the Court's conclusion of dismissing for failure to comply with local rules. See NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 5-9 (1st Cir.2002)(granting of judgment on pleadings based on plaintiff's failure to comply with local rule requiring timely response). Accordingly, since Sears' motion does not comply with either Rule 311.12 nor Rule 311.4, the Court denies its motion for summary judgment.¹

II MOTION TO DISMISS

Having denied the motion for summary judgment, the Court is left only with Sears' motion to dismiss the complaint, pursuant to fed.R.Civ.P. 12(b)(6). (Docket No. 54). Thus, the Court examines Sears' motion to dismiss.

The present complaint was originally filed against nine (9) defendants. On October 31, 2001 plaintiff filed a motion requesting voluntary dismissal, with prejudice, with respect to three defendants (Docket No. 50), which was soon thereafter granted by the Court. (Docket No. 51). Accordingly, only six (6) defendants remain in this case, namely, Trans Union de Puerto Rico, Inc.; Equifax Credit Information; GMAC; Sears; GE Plus; and Resources BK MTG Group.² The Court notes here that the motion to dismiss now pending before the Court was filed by Sears, and with respect to Sears only.

When deciding a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all well-pleaded factual claims, and indulge all reasonable inferences in Plaintiffs' favor. Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate if the facts alleged, taken as true, do not justify recovery. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). In order to survive a motion to dismiss, Plaintiff must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery." Gooley v. Mobil Oil Corp. 851 F.2d 513, 515 (1st Cir.1988). Although all inferences must be made in Plaintiffs' favor, the Court need not accept "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Aulson, 83 F.3d at 3. Moreover, when considering a motion to dismiss under Rule 12(b)(6) the Court must limit its focus to the allegations of the complaint. Litton Indus., Inc. v. Colon, 587 F.2d 70, 74 (1st Cir.1978). Specifically, the inquiry should be "whether a liberal reading of [the complaint] can reasonably admit of a claim ...." Id.; see also Doyle, 103 F.3d at 190.

III FACTUAL BACKGROUND

The Court shall thus review whether dismissal is warranted, accepting as true all factual allegations within the complaint and indulging all reasonable inferences in the plaintiff's favor. See Brown v. Hot Sexy & Safer Prods. Inc., 68 F.3d 525, 530 (1st Cir.1995).

Plaintiff alleges in his complaint that, in 1999, he received a telephone call from a Sears representative at the credit department, advising him that a "Sears Charge Credit Card" registered under his name had an outstanding balance which was overdue. Surprised, plaintiff indicated that he had never applied for a Sears credit card, and, in response, suggested it was all a mistake. The next day, on August 30, 1999, plaintiff requested an updated copy of his credit report from co-defendant Trans Union de Puerto Rico, Inc. ("Trans Union"). Upon receipt of the credit report, plaintiff uncovered several strange entries in it, including an outstanding debt to Sears. It was further uncovered that a resident of the State of Nevada, born in 1960, had falsely and illegally used plaintiff's social security number, to apply for credit cards in his name. Plaintiff, of course, is a resident of Puerto Rico, not Nevada; also, he was born in 1962, not 1960.

Plaintiff therefore requested an investigation at the offices of Trans Union. After conducting an investigation, Trans Union provided plaintiff a revised credit report. This first revision, however, failed to correct the information pertaining to the outstanding debt towards Sears. Plaintiff then requested a second revision. Hence, Trans Union provided plaintiff a second revision of his credit history report. Nonetheless, this second revision still had not weeded out the misleading history. Plaintiff alleges that, to date, Trans Union has not removed the incorrect information in his credit history report. As a consequence, plaintiff's applications for several credit cards—including a credit card from Sears—have been consistently denied, his credit limit has been reduced, and his present credit history, which reflects incorrect information, has affected his financial stability. Plaintiff alleges that Sears acted negligently when it authorized a credit card to the unnamed Nevada resident, and then when it (equivocally) sought payment from him, even though he had advised Sears of the situation. He also claims that Sears offered false information, which was furnished with willful intent to injure plaintiff. Finally, he states that due to the reasons stated above, he as suffered tremendously, both materially and mentally.

III

FAIR CREDIT REPORTING ACT

A. Private Right of Action against "any person."

In 1968, Congress enacted the Fair Credit Reporting Act (FCRA), in order to establish "reasonable procedures for meeting the [credit reporting] needs of commerce" and the banking industry in a "manner that is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy and proper utilization of such information ...." 15 U.S.C. §§ 1681, et seq. The FCRA was essentially prompted by "congressional concern over abuses in the credit reporting industry." Philbin v. Trans Union Corp., 101 F.3d 957, 962 (3rd Cir.1996)(quoting Guimond v. Trans Union Credit Info Co., 45 F.3d 1329, 1331 (9th Cir.1995)). As such, one of the main goals of the FCRA is to protect individuals from inaccurate or arbitrary information found in their credit history reports. See Pinner v. Schmidt, 805 F.2d 1258, 1261 (5th Cir.1986). In other words, a general purpose of the FCRA is to protect the creditworthiness and reputation of every consumer. Ackerley v. Credit Bureau of Sheridan, Inc., 385 F.Supp. 658 (D.Wyo.1974).

There are essentially...