UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE
May 8, 2013
EQUIFAX INFORMATION SERVICES, LLC DEFENDANT
MEMORANDUM OPINION AND ORDER
Plaintiff, Gregory Bickley, brought suit seeking relief for injuries caused by Defendants, Dish Network LLC ("Dish Network") and Equifax Information Services, LLC ("Equifax"), when one or both of these entities allegedly accessed Bickley's credit report. After a period of discovery, Dish Network filed a motion for summary judgment as to Counts One, Two and Six of Bickley's amended complaint. ECF No. 38. After the parties fully briefed the motion, the Court sustained Dish Network's motion and dismissed all claims against it on November 2, 2012 ("November Order"). ECF No. 56. Bickley now moves for reconsideration of that order on the basis of new evidence and the Court's clear error. For the reasons stated herein, the Court denies Bickley's motion.
The facts are undisputed. On October 7, 2009, an unknown person called Dish Network's independent, non-exclusive third-party retailer, American Satellite, in an attempt to procure Dish Network services. At some point in the conversation with the American Satellite representative, the caller provided the name Crgringina Dickley, or some variation thereof, and Bickley's social security number as his or her personal information. Using Dish Network's electronic interface, the American Satellite representative provided Dish Network's credit reporting agencies with this information in an attempt to perform a credit check. The information first went to Equifax, which returned a "no hit" response. A "no hit" response means that the credit reporting agency could not find a confident match between the identifiers the caller gave and any person in their database. Through a waterfall process, the system then sent the caller's information to two other credit reporting agencies to see if the identifiers matched an individual in their databases. The secondary and tertiary reporting agencies also provided "no hit" responses.
On October 20, 2009, Bickley accessed his credit report and noticed that Dish Network made an inquiry into his credit report. Dish Network notified Bickley that he had been the victim of identity theft. Nearly a year later, on November 3, 2010, Bickley filed suit. Bickley alleged that Dish Network specifically engaged in willful and negligent noncompliance with the Fair Credit Reporting Act ("FCRA"), pursuant to 15 U.S.C. § 1681n and o, respectively.*fn1 The Court found that Dish Network did not violate either of these provisions.
A party may move the Court to reconsider a judgment or order pursuant to Fed. R. Civ. P. 59(e). The Court will grant relief pursuant to Rule 59(e) if "there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent manifest injustice." GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (internal citations omitted). Bickley advances two arguments as to why the Court should grant his motion: 1) because the Court exhibited a clear error of law when it prematurely and erroneously determined that Dish Network had a permissible purpose when it accessed Bickley's information, and 2) because new evidence arose from Equifax undermining the Court's conclusions. The Court will address both grounds for Bickley's motion.
To constitute newly discovered evidence for purposes of the a motion to reconsider, the evidence must have been previously unavailable. GenCorp, Inc., 178 F.3d at 834. Bickley argues that one of Equifax's answers to an interrogatory constitutes new evidence. In this answer, Equifax states, inter alia, "Dish Network then requested Equifax to provide it with the consumer report containing the social security number that Dish Network had provided to Equifax. Equifax provided Dish Network with a copy of Plaintiff's credit file because the file contained a matching social security number and address." ECF No. 64. Without going into more detail as to the context surrounding this Dish Network request, this interrogatory alone is vague and lacks probative value sufficient to rise to the level of evidence sufficient to warrant reconsideration.*fn2
Moreover, it is unlikely that this evidence can be considered new. In fact, Dish Network contends that the Court actually addressed this evidence in its November Order. Dish Network argues that it requested Bickely's EchoStar Risk score, information received from Equifax that Dish Network kept in a password protected database, during the discovery process for this case. If so, the Court previously discussed this evidence at length and deemed it irrelevant. ECF No. 56.*fn3
Bickley makes no argument that this conclusion was false, except to say that Dish Network's understanding of Equifax's answer is absurd without further discussion. Therefore, this evidence cannot be considered new.
If Dish Network is incorrect in surmising the context surrounding Equifax's interrogatory answer, the Court does not consider the evidence new for another reason: it was previously available. Evidence that Dish Network accessed Bickley's credit report at some point after the 2009 imposter phone call to American Satellite, and before Bickley filed this case, existed prior to and during the period for briefing the motion for summary judgment. That Bickley contends he needed more time to conduct discovery against another defendant to uncover this information is immaterial to the present motion. The Court is under no obligation to wait for the parties to signal their readiness for the Court to rule on motions that are properly filed and fully briefed within the deadlines established by the Court. Any accusation that the Court's November Order was premature is therefore inapposite. The Court granted Bickley's motion for extension of time to file a response once, and if Bickley needed more time to engage in discovery, he could have so moved the Court.
Accordingly, this evidence fails to constitute new evidence sufficient to warrant reconsideration of the Court's November Order for three reasons: (1) Equifax's vague answer to an interrogatory is not substantive and probative enough to constitute evidence sufficient to warrant reconsideration; (2) the Court already discussed the evidence in the November Order, and/or (3) the evidence was previously available. The Court will not sustain Bickley's motion on this ground.
Bickley next argues that the Court committed clear error when it held that Dish Network showed the absence of any genuine issue of material fact as to its legitimate business need for the credit report, such that Dish Network established it had a permissible purpose for accessing the information it received. To maintain a claim for improper use or acquisition of a credit report under the FCRA, the plaintiff must show (a) that the defendant used or obtained (b) a credit report, as defined within the statute, (c) without a permissible statutory purpose. Godby v. Wells Fargo Bank, N.A., 599 F. Supp. 2d 934, 937 (S.D. Ohio 2008). As a threshold matter, the Court based its ruling on two failures, not just Bickley's evidentiary failures as to the permissible purpose prong of the FCRA claim.*fn4 The Court also sustained Dish Network's motion for summary judgment because Bickley failed to show enough evidence as to the second element, that the information Dish Network received was a consumer report under the FCRA.
The Court found that Dish Network received three types of information pertinent to this case:
(1) the Echostar Risk number that the Court found irrelevant; (2) the "no hit" response that the Court found did not constitute a consumer report under the FCRA; and (3) the "header information" that the Court also found was not a consumer report. Bickley provided no evidence to the contrary in its opposition to Dish Network's motion for summary judgment. Similarly, Bickley offers no argument or evidence to show that this information constituted a consumer report in its motion for reconsideration and subsequent reply. Bickley does not even address this element. For that reason alone, the Court's analysis could stop here. The Court did not commit clear error in holding that Bickley's FCRA claims failed.
With the utmost caution, the Court continues in its analysis only to show that its second reason for sustaining the summary judgment motion contained no clear error. The Court found that American Satellite accessed Bickley's information for a legitimate business need, which is a permissible purpose under the FCRA. The articulated legitimate business need was to confirm the identity of the caller and determine the caller's creditworthiness in connection with assessing whether the caller is qualified to receive Dish Network services. Bickley's argument that this determination was clearly erroneous is unpersuasive.
Permissible purposes is defined in 15 U.S.C. § 1681b(a). See generally Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d 808, 816-17 (W.D. Ky. 2003)(discussing the definition of permissible purpose, but not in the context of an imposter or identity thief). This provision defines permissible purposes for any consumer reporting agency furnishing a consumer report. Here, the operative actor is not a consumer reporting agency as defined within the FCRA, and Dish Network did not furnish the consumer report to any other entity or person. However, 15 U.S.C. §1681n and §1681o, the provisions under which Bickley brings his claims, establishes causes of action for entities wilfully or negligently obtaining consumer reports under false pretenses or without a permissible purpose. Under this provision, an entity obtaining a consumer report must do so within the confines of the § 1681b(a) definition for permissible purposes. "This is because a consumer reporting agency can legally issue a report only for the purposes listed in § 1681b. If the agency is complying with the statute, then a user cannot utilize an account with a consumer reporting agency to obtain consumer information for a purpose not permitted by § 1681b without using a false pretense." Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir. 1978).
In the November Order, the Court correctly found that Dish Network's credit inquiry was made for a permissible purpose under § 1681b(a)(3)(F). The Court relied on Ewing v. Wells Fargo Bank, 2012 WL 1844807, *4 (D. Ariz. May 21, 2012) in the November Order. In Ewing, the Court found that if the defendant made a credit inquiry because someone used the plaintiff's identity to apply for a credit transaction with the defendant, the defendant "might have had a legitimate reason for pulling Plaintiff's credit report." Id. Other courts have found a legitimate business need in comparable situations. See, e.g., Estiverne v. Sak's Fifth Avenue, 9 F.3d 1171, 1173-74 (5th Cir. 1993)(holding that the defendant's obtaining of the plaintiff's "consumer report for the purpose of deciding whether to accept or reject a check in payment is a 'legitimate business need'").
This case law is consistent with the statutory language. Section 1681b(a)(3)(F) provides that a consumer reporting agency may furnish a consumer report "to a person which it has reason to believe-- . . . (F) otherwise has a legitimate business need for the information -- (i) in connection with a business transaction that is initiated by the consumer." On its face, the provision contemplates a situation wherein an entity accesses information about a consumer who is lying about his or her identity or creditworthiness, but the entity seeking access nevertheless has reason to believe that it had a legitimate business need for the consumer's information.*fn5 That Dish Network did not actually engage in a transaction with Bickley, or that Bickley was not the individual who actually initiated the transaction, does not obviate that Dish Network accessed Bickley's information with a reasonable belief that it had a legitimate business need for the information. American Satellite used the Dish Network interface in connection with a potential sale of network services, and based on the caller providing personal information, had reason to believe that it was engaging in a transaction with a potential customer who initiated the call. Accordingly, under the § 1681b(a)(3)(F) definition, Dish Network obtained the information with a permissible purpose.*fn6
In sum, the Court committed no clear error of law in the November Order. First, Bickley does not contest the Court's decision as to Bickley's failure to show that Dish Network accessed a consumer report, as defined in the FCRA, leaving that decision in tact. On this ground alone, the Court will not reconsider its November Order. Going further, however, the Court's analysis as to Dish Network's permissible purpose in the November Order is consistent with the law on the subject. Accordingly, Bickley's motion must be denied.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff Gregory Bickley's Motion to Reconsider is DENIED.
cc: Counsel of Record