United States District Court, W.D. Kentucky, Louisville Division
DANA ADAMS, ET AL. Plaintiffs
FIFTH THIRD BANK Defendant
MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, United States District Court District
the Court is Defendant's Renewed Motion for Summary
Judgment [DE 47] and Plaintiffs' Motion to File Their
First Amended Complaint [DE 45]. The matters are ripe. For
the reasons below, the Court will GRANT Defendant's
Renewed Motion for Summary Judgment and DENY Plaintiffs'
Motion to File Their First Amended Complaint.
August 2015, Fifth Third Bank (“Fifth Third”)
sued Plaintiffs Dana Adams and Robert Jones in Kentucky state
court to collect a note and mortgage (the “Kentucky
suit”). [DE 1 at 1-2, ¶¶ 2, 13; DE 47-2 at
315]. In March 2016, Fifth Third initiated a “hard
inquiry” into Plaintiffs' credit reports from both
Trans Union, LLC (“Trans Union”) and Equifax
Information Services, LLC. [DE 1 at 1-2, ¶¶ 21,
April 2016, Plaintiffs filed the present complaint, alleging
that Fifth Third violated the Fair Credit Reporting Act, 15
U.S.C. § 1681 et seq. (the “FCRA”) by making
inquiries into their credit reports without having a
permissible purpose for doing so. [Id. at 1, ¶
1, 5-6, ¶ 33, 34]. Plaintiffs sought damages under 15
U.S.C. § 1681n(b) and § 1681o. [Id. at
6-7, ¶¶ 56, 58]]. The Court granted Fifth
Third's motion for judgment on the pleadings in part,
dismissing Plaintiffs' claims under 15 U.S.C. §
1681o, but allowing Plaintiffs' claims under 15 U.S.C.
§ 1681n to proceed. [DE 24 at 180]. In September 2017,
Fifth Third moved for summary judgment on the remaining
claim. [DE 27]. That motion was never ruled upon.
March 2018, the parties deposed Jeremy Hejl, a senior manager
of consumer collections at Fifth Third. [DE 47-4 at 335].
Plaintiffs then filed a Motion to File Their First Amended
Complaint (the “Motion to Amend”) under
Fed.R.Civ.P. 15(a)(2). [DE 45]. Alleging that Trans Union is
“responsible for characterizing Fifth Third's
request for Plaintiffs' credit reports as hard credit
requests” in violation of 15 U.S.C. § 1681b(c)(3),
Plaintiffs moved to amend their complaint to add Trans Union
as a party. [Id. at 256]. Plaintiffs also moved to
“include facts and allegations that they were unaware
of at the time they filed their complaint and which they only
recently learned of.” [Id.]. Fifth Third
opposes the Motion to Amend as futile. [DE 46 at 272-73]
April 2018, Fifth Third filed a Renewed Motion For Summary
Judgment (the “Motion for Summary Judgment”),
arguing that they initiated the credit inquiries in relation
to the Kentucky suit, but that they had done so for the
permissible purpose of “collecting the outstanding debt
owed to it by Plaintiffs.” [DE 47 at 310]. In Response,
Plaintiffs argue that Defendant's inquiries were not made
for a permissible purpose because Defendant “wanted
Plaintiffs' credit reports for purposes other than
collection of the account.” [DE 52 at 356]. Fifth Third
disputes Plaintiffs' characterization of the evidentiary
record and case law. [DE 53 at 392-97].
judgment is proper on a showing 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(a). The party seeking summary judgment bears
the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The party opposing the motion may establish
a genuine issue of fact by introduction of “any of the
kinds of evidentiary materials listed in Rule 56(c).”
Id. at 324. Such evidence may include depositions,
answers to interrogatories, affidavits, and admissions on
file. Id. at 323. Further, “a party opposing a
properly supported motion for summary judgment may not rest
upon mere allegations or denials of his pleadings, but . . .
must set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (quoting First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 288 (1968)). All evidence must be construed in the light
most favorable to the party opposing summary judgment.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
Civ. Pr. 15(a)(2) states that absent the opposing party's
consent, plaintiffs may not amend their pleadings without the
Court's leave. A court should “freely give leave
when justice so requires.” Fed.R.Civ.P. 15(a)(2). But
the court “should deny a motion to amend where the
proposed amended complaint could not withstand a Fed.R.Civ.P.
12(b)(6) motion.” Massingill v. Ohio Adult Par.
Auth., 28 Fed.Appx. 510, 511 (6th Cir. 2002) (citation
omitted). In other words, a court “may deny a plaintiff
leave to amend . . . when the proposed amendment would be
futile.” Kottmyer v. Maas, 436 F.3d 684, 692
(6th Cir.2006). When reviewing a Fed.R.Civ.P. 12(b)(6) motion
to dismiss, the court must construe the complaint in the
light most favorable to the plaintiff, Bloch v.
Ribar, 156 F.3d 673, 677 (6th Cir. 1998), accept the
complaint's factual allegations as true, Broyde v.
Gotham Tower, Inc., 13 F.3d 994, 996 (6th Cir. 1994),
and determine whether plaintiff has pleaded “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
proposed amendment adding defendants is also futile when
summary judgment would be appropriate as to those defendants
“for the same reasons that summary judgment is
appropriate” as to the original defendants. Pollard
v. Blue, Civil Action No. 4:06-CV-P134-M, 2009
WL 3160355, at *5 (W.D. Ky. Sept. 25, 2009) (concurrently
granting summary judgment to existing defendants and denying
a motion to amend to add defendants).
Motion for Summary Judgment
1968, Congress enacted the FCRA to promote “efficiency
in the Nation's banking system and to protect consumer
privacy.” 15 U.S.C. § 1681(a). The “FCRA
provides a private right of action against businesses that
use consumer reports but fail to comply” with their
obligations under that act. Safeco Ins. Co. of Am. V.
Burr,551 U.S. 47, 53 (2007). “The FCRA places
distinct obligations on three types of entities: (1) consumer
reporting agencies; (2) users of consumer reports; and (3)
furnishers of information to consumer reporting
agencies.” Stafford v. Cross Country Bank, 262
F.Supp.2d 776, 782 (W.D. Ky. 2003). Users of consumer reports
may “access consumers' credit reports only if the
access is for a ‘permissible ...