United States District Court, E.D. Virginia, Alexandria Division
MIGUEL A. RODRIGUEZ, on behalf of himself and all others similarly situated, Plaintiff,
EQUIFAX INFORMATION SERVICES, LLC, Defendant.
ANTHONY J. TRENGA, District Judge.
Plaintiff, Miguel Rodriguez, brings this class action alleging that Defendant, Equifax Information Services, LLC ("Equifax" or "Defendant') violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681. Presently pending before the Court are Plaintiff's Motion for Class Certification [Doc. No. 70] and Defendant's Motion for Summary Judgment [Doc. No. 80]. Upon consideration of the motions, the memoranda and exhibits in support thereof and in opposition thereto, the arguments made by counsel at the hearing held on June 26, 2015, and for the reasons stated below, the Court concludes that Plaintiff has failed to present evidence sufficient to establish that Equifax violated 15 U.S.C. § 1681k or § 1681e(b), or alternatively, that any violation was negligent or willful. Accordingly, for the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED and Plaintiff's Motion for Class Certification is DENIED as moot.
I. FACTUAL AND PROCEDURAL HISTORY
Facts related to Equifax-OPM Contract
Defendant Equifax, together with Experian and Trans Union, is one the three largest "consumer reporting agencies" (CRA), as defined in 15 U.S.C § 1681a(f). Under the FCRA, a CRA, such as Equifax, has certain obligations when it provides information to an actual or prospective employer. Specifically, when a CRA "furnishes a consumer report for employment purposes and which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer's ability to obtain employment, " it shall "(1) at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported[.]" 15 U.S.C.A. § 1681k(1)(West) (emphasis added).
This action centrally concerns whether Equifax timely notified certain consumers whose information was requested by the U.S. Office of Personnel Management (OPM). Specifically, between September 2012 and May 2013, Equifax prepared and delivered to OPM customized "tri-merge" reports (containing information from Equifax, Experian and Trans Union) when requested by OPM pursuant to the terms of a written contract between Equifax and OPM,  Def. Ex. D, Doc. No. 81-4 ("Rivera Decl.") at ¶ 4. For this purpose, Equifax used an automated overnight batching process that operated between midnight and 3:00 a.m. EST. Id; Rivera Dep. Tr. at 52:1-5. As part of the automated process, reports containing information from public record (PR) files were flagged, which automatically caused the creation of a notice specific to each individual whose report was flagged. Rivera Dep. Tr. at 69:13-15. As a matter of routine, at approximately 7:00 a.m. each morning (during the time period relevant to this litigation), an Equifax employee named Michelle Ambrose downloaded the PR file containing all of the notices created by the automated process, printed each notice, put them in envelopes, and place them in a mail bin for pickup that day by the mail vendor with whom Equifax had contracted for that purpose. Def. Ex. F, Doc. No. 81-6 ("Ambrose Decl.") at ¶¶ 3, 5-6. Ambrose did not maintain a record of when she placed each individual notice into the mail bin. There were concededly occasions when Ambrose did not deposit the notices into the mail bin until the next business day after she printed them, although the record reflects only isolated examples of such occasions. Id. at ¶¶ 6-7. The record contains no information concerning when the mail vendor actually mailed the notices that it picked up daily from Equifax pursuant its contract.
Facts related to Plaintiff Miguel Rodriguez
Plaintiff is a consumer who was seeking employment as a federal government contractor in September 2012; and as part of a security clearance background investigation for that position, OPM requested from Equifax consumer reports regarding Plaintiff. Equifax provided OPM with a "tri-merge" consumer report that contained a reference to a public record listing of a bankruptcy and a civil judgment, as well as a collection account. After Equifax provided this consumer report to OPM, an OPM security clearance investigator asked Plaintiff about the listed bankruptcy and civil judgment. Plaintiff was "floored" when the investigator asked about the civil judgment, and told the investigator that he "knew nothing about it." Rodriguez Dep. Tr. at 68:3-4. The investigator did not make any follow-up request to Plaintiff after the interview. Id. at 68:19-24. Approximately two months later, in December 2012, Plaintiff's security clearance was approved. Id. at 21:2-11.
Plaintiff has asserted two causes of action in his Amended Complaint, Doc. No. 64, filed on April 27, 2015. First, Plaintiff alleges that Equifax provided OPM with a consumer report containing public record information that would likely have an adverse effect upon Plaintiff's ability to obtain employment (the bankruptcy and civil judgment), but failed to provide notice to him "at the time" it furnished the report to OPM, as required by 15 U.S.C. § 1681k(a)(1) (the class claim). Although Plaintiff claims that he never received the required notice, Rodriguez Dep. Tr. at 97:16-22, he more generally challenges the adequacy of Equifax's then used system for providing notice to consumers and has moved for class certification on this claim. Second, Plaintiff alleges, as an individual claim only, that the consumer report on him provided by Equifax to OPM contained an objectively incorrect civil judgment under a name other than his and a "collection amount" that had been discharged in bankruptcy; and for these reasons, Equifax violated 15 U.S.C. § 1681e(b),  which requires Equifax to establish or to follow reasonable procedures to assure maximum possible accuracy in the preparation of the consumer report it furnished to OPM. Plaintiff seeks statutory damages in connection with his § 1681k claim (the class claim), actual damages in connection with his § 1681e claim (the individual claim), and punitive damages, attorneys' fees and costs as to both claims.
II. Legal Standard
Summary judgment is appropriate only if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958-59 (4th Cir.1996). The party seeking summary judgment has the initial burden to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The facts shall be viewed, and all reasonable inferences drawn, in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4th Cir.2007). To defeat a properly supported motion for summary judgment, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 248. Whether a fact is considered "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
"Before harnessing [class action] economies, Rule 23(a) demands that four prerequisites be met: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the representative's claims or defenses are typical of those of the class; and (4) the representative will fairly and adequately represent the interests of the class.'" Soutter v. Equifax Info. Servs., LLC, No. 3:10CV107, 2015 WL 1787236, at *4 (E.D. Va. Apr. 15, 2015) (quoting Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 337 (4th Cir. 1998)). "In addition, putative classes must satisfy one of the Rule 23(b) tests. Where, as here, the plaintiff seeks certification under Rule 23(b)(3), the Court must ensure that questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.' Because adjudication by class is an exception to the normal rules of litigation, the Court must perform a "rigorous analysis" of each class certification factor." Id. (quoting Fed.R.Civ.P. 23(b)(3)).
"The FCRA provides a private cause of action for those damaged by violations of the statute. See 15 U.S.C.A. §§ 1681n, 1681o. A successful plaintiff can recover both actual and punitive damages for willful violations of the FCRA, id. § 1681n(a), and actual damages for negligent violations, id. § 1681o(a). Actual damages may include not only economic damages, but also damages for humiliation and mental distress." Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495, 500 (4th Cir. 2007). "FCRA does not impose strict liability on consumer reporting agencies for inaccuracies in reporting. Instead, FCRA imposes liability for negligent ...