United States District Court, E.D. Washington
RUSSELL D. ROSCO and BONNIE R. ROSCO, Plaintiffs,
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
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.
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.
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.
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.
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.
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
Standing to Bring Claims
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
is based on Article III requirements and must be met before a
plaintiff can proceed on a case. Elements of standing
(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
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).
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.
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.
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.
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