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Rosco v. Equifax Information Solutions

United States District Court, E.D. Washington

December 7, 2017

RUSSELL D. ROSCO and BONNIE R. ROSCO, Plaintiffs,
v.
EXPERIAN INFORMATION SOLUTIONS; FIRST BANK MORTGAGE; and ADVANTAGE GROUP, Defendants.

          ORDER GRANTING EXPERIAN'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO TAKE JUDICIAL NOTICE AND DENYING EXPERIAN'S MOTION TO STRIKE PLAINTIFF'S MEMORANDUM IN OPPOSITION TO MOTION EXHIBIT A

          ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are a Motion for Summary Judgment filed by Defendant Experian, ECF No. 249, a Motion to Take Judicial Notice of Experian's Motion for Summary Judgment with Exhibits, ECF No. 253, and Experian's Motion to Strike Plaintiff's Memorandum in Opposition to Motion Exhibit A, ECF No. 257. The Court has reviewed the motions, the record, and is fully informed.

         BACKGROUND

         As this Court previously held in response to motions to dismiss from other defendants in this matter, Plaintiffs allege a deprivation of their rights, but fail to specify which statutes they seek to invoke beyond the statement of purpose of the Fair Credit Reporting Act (FRCA), or upon which provisions of the Constitution their claims rely. Experian interprets Plaintiffs' claims as seemingly alleging a violation of 15 U.S.C. §1681e(b) by “‘providing false or misleading reports' concerning [Plaintiffs'] First Bank Mortgage and The Advantage Group accounts” and alleging a violation of 15 U.S.C. § 1681e(a) by allowing impermissible access to Plaintiffs' credit information. ECF No. 249 at 2; see ECF No. 1 at 5-10. Plaintiffs' response does not dispute Experian's interpretation. See ECF No. 256. Therefore, the Court construes Plaintiffs' First Amended Complaint as alleging that Experian provided false information and improperly allowed access to Plaintiffs' credit reports without a permissible purpose.

         Experian argues that summary judgment for Experian is proper on several bases: (1) Plaintiffs lack standing to bring their claims; (2) Plaintiffs' claims fail for lack of factual accuracy; (3) Plaintiffs' claim that Experian provided Plaintiffs' credit information for an impermissible purpose fails as a matter of law; and (4) Plaintiffs have failed to provide support for their claims regarding statutory and punitive damages. ECF No. 249 at 2-4.

         The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331 as a civil action arising under the laws of the United States because Plaintiffs allege violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. §1681.

         The motions before the Court involve Plaintiffs, a husband and wife, and the consumer reporting agency, Experian. Plaintiffs had a mortgage for a house, which was sold by short sale in 2013. ECF No. 251 at 10. Plaintiffs then proceeded with a Chapter 7 bankruptcy. Id. at 10-11. Experian maintained reports of Plaintiffs' credit information throughout the two years preceding Plaintiffs' filing of the present lawsuit. ECF No. 252 at 9-10. Plaintiffs have disputed Experian's report information regarding two creditors: First Bank Mortgage and The Advantage Group. ECF No. 1. Plaintiffs argue that Experian inaccurately reported the credit information related to these two creditors and that Experian impermissibly provided Plaintiffs' credit information to third parties. Id. Experian contends that it accurately reported Plaintiffs' credit information, did not impermissibly provide Plaintiffs' credit information to third parties, and maintains reasonable procedures to assure the accurate and permissible reporting of consumer credit information. ECF No. 249.

         DISCUSSION

         As a threshold matter, the Court will consider Plaintiffs' standing to bring these FCRA claims against Experian. After determining whether Plaintiffs have standing, the Court will consider whether summary judgment is proper. First, the Court will address Plaintiffs' allegations against Experian concerning violations of 15 U.S.C. § 1681e(b). Second, the Court will address Plaintiffs' allegations against Experian concerning violations of 15 U.S.C. § 1681e(a). Finally, the Court will consider whether Plaintiffs have provided support for their claims regarding statutory and punitive damages sufficient to satisfy the requirements of the FCRA.

         Plaintiffs' Standing to Bring Claims

         Experian argues that Plaintiffs' Complaint fails to allege any actual harm and that, consequently, Plaintiffs lack standing to pursue their FCRA claims. Id. at ECF No. 249 at 18-21. Plaintiffs argue that allegedly inaccurate Experian credit reports have harmed their ability to secure a home mortgage loan and resulted in emotional damages. ECF No. 256 at 1-2.

         Standing is based on Article III requirements and must be met before a plaintiff can proceed on a case. Elements of standing include:

(1) the plaintiff has suffered an injury in fact, i.e., an invasion of a judicially cognizable interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of, i.e., the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the E. Lake Sammamish Trail v. City of Sammamish, 361 F.Supp.2d 1260 (W.D. Wash. 2005) (citing Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). “Injury in fact is a constitutional requirement, and it is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Spokeo, Inc. v. Robins (Spokeo I), 136 S.Ct. 1540, 1548 (2016) (internal quotations omitted).

         In Spokeo I, the plaintiff alleged that his job prospects had been harmed by misleading information contained in his credit report in violation of the same provision of the FCRA at issue in this matter, 15 U.S.C. § 1681e(b). Id. On remand, the Ninth Circuit noted that while a plaintiff “may not show an injury-in-fact merely by pointing to a statutory cause of action, the Supreme Court also recognized that some statutory violations, alone, do establish concrete harm.” Robins v. Spokeo (Spokeo II), 867 F.3d 1108, 1113 (9th Cir. 2017).

         To evaluate the statutory claim of harm, the court asks “(1) whether the statutory provisions at issue were established to protect [a plaintiff's] concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.” Id.

         Considering the first requirement of this two-prong analysis, the Ninth Circuit concluded that the FCRA's procedural requirements were established to protect concrete reputational and privacy interests. Id. at 1113-15. It further found that the “second requirement makes clear that, in many instances, a plaintiff will not be able to show a concrete injury simply by alleging that a consumer-reporting agency failed to comply with one of [the] FCRA's procedures.” Id. at 1115-16.

         In Spokeo I, the Supreme Court “explicitly rejected the notion that every minor inaccuracy reported in violation ‘will cause [real] harm or present any material risk of [real] harm.'” Id. at 1116 (quoting Spokeo I, 136 S.Ct. at 1550). The Spokeo II court found that plaintiff sufficiently alleged that he suffered a concrete injury for the purposes of establishing standing when he argued that the inaccurate information contained in his credit report harmed his employment prospects “by misrepresenting facts that would be relevant to employers” and that he suffered anxiety and concern as a result.. Id. at 1117.

         Experian argues that in this case Plaintiffs failed to allege any actual harm suffered as a result of Experian's alleged FCRA violations. ECF No. 249 at 20. Experian argues that Plaintiffs have not alleged a specific or cognizable injury resulting from Experian's alleged inaccuracy on Russell Rosco's credit report sufficient to grant standing. ECF No. 259 at 9-10. Experian states that Plaintiffs have failed ...


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