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Bickley v. Equifax Information Services, LLC

United States District Court, Sixth Circuit

May 8, 2013



JOHN G. HEYBURN, II, District Judge.

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. ยง 1681n and o, respectively.[1] 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.[2]

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.[3] 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.[4] The Court also ...

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