Opinion
19-3063
09-10-2020
Sherri Cohen, Plaintiff-Appellant, v. Equifax Information Services, LLC, Transunion LLC, Defendants-Appellees, Experian Information Solutions, Inc., Defendant.
FOR PLAINTIFF-APPELLANT: Sherri Cohen, pro se, Middletown, NY. FOR DEFENDANT-APPELLEE EQUIFAX INFORMATION SERVICES, LLC: Esther Slater McDonald, Seyfarth Shaw LLP, Atlanta, GA. FOR DEFENDANT-APPELLEE TRANSUNION LLC: Camille R. Nicodemus, Colin C. Poling, Schuckit & Associates, P.C., Zionsville, IN.
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of September, two thousand twenty. PRESENT: JOHN M. WALKER, JR., ROBERT A. KATZMANN, RAYMOND J. LOHIER, JR., Circuit Judges. FOR PLAINTIFF-APPELLANT: Sherri Cohen, pro se, Middletown, NY. FOR DEFENDANT-APPELLEE EQUIFAX INFORMATION SERVICES, LLC: Esther Slater McDonald, Seyfarth Shaw LLP, Atlanta, GA. FOR DEFENDANT-APPELLEE TRANSUNION LLC: Camille R. Nicodemus, Colin C. Poling, Schuckit & Associates, P.C., Zionsville, IN.
Appeal from a judgment of the United States District Court for the Southern District of New York (Rakoff, J.; Parker, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Sherri Cohen, proceeding pro se, sued credit reporting companies Equifax Information Services, LLC ("Equifax") and Transunion LLC ("Transunion") under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. The district court denied Cohen leave to amend her complaint to include a civil RICO claim, and it granted summary judgment to the defendants, finding that Cohen had not established a genuine dispute of material fact as to whether the defendants (1) failed to follow reasonable procedures to assure the accuracy of her credit report, in violation of 15 U.S.C. § 1681e(b), (2) failed to reasonably reinvestigate disputed information in her credit file, in violation of 15 U.S.C. § 1681i, or (3) willfully violated the FCRA. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
I. Summary Judgment
We review a grant of summary judgment de novo, "resolv[ing] all ambiguities and draw[ing] all inferences against the moving party." Garcia v. Hartford Police Dep't, 706 F.3d 120, 126-27 (2d Cir. 2013) (per curiam). "Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
A. Inaccuracies
The parties agree that a plaintiff must demonstrate that her credit report contained inaccurate information in order to prevail on a claim under § 1681e(b) or § 1681i. The district court found that Cohen at most raised a genuine dispute as to whether her Equifax file contained inaccurate addresses and her Transunion file contained inaccurate addresses and telephone numbers, but not as to any other alleged inaccuracy.
The district court correctly noted that Cohen cited only to her complaint, her deposition, and her declaration as evidence that her credit report contained inaccuracies, and that her complaint was not evidence. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (a complaint is treated as an affidavit for summary judgment purposes only if the plaintiff "verifie[s] his complaint by attesting under penalty of perjury that the statements in the complaint [are] true to the best of his knowledge"). We agree that the declaration and most of Cohen's deposition testimony were "too vague and conclusory" to raise a genuine dispute regarding the existence of other inaccuracies. Even with respect to the Applied Bank balances and utilization rates, about which she gave at least some information about the nature of the inaccuracy, Cohen did not explain what the correct information would have been.
On appeal, Cohen argues that there was other evidence of inaccuracies in the record that the district court overlooked and that the district court applied the wrong legal standard when evaluating her claims. But, contrary to her argument, the district court explicitly considered the dispute letters written by her attorney. These records of Cohen's disputes (and the fact that the agencies initiated investigations in response to them) are merely evidence that Cohen made allegations of inaccuracies. The attachments to the dispute letters written by Cohen's attorney fail to raise a genuine dispute of fact: they included only receipts documenting prior disputes and then-current balance statements for CapitalOne and Merrick Bank accounts. Nothing in the record suggests that CapitalOne and Merrick Bank did not timely report this balance information to the agencies, or that the agencies failed to update Cohen's file to accurately reflect it. Although Cohen argues that the district court drew an improper inference against her when it found that Cortrust's nonresponse to an agency verification request was not evidence that the information previously reported by Cortrust was inaccurate, a reasonable juror could not conclude that information in Cohen's credit file was inaccurate based on this fact. See Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) ("When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact . . . ."). Finally, Cohen argues that the district court applied the wrong legal standard by failing to consider evidence of inaccuracies as a whole, analogizing to the standard applied to evidence in a discrimination case to prove discriminatory intent. This analogy is inapposite: considering the evidence as a whole and construing it in the light most favorable to Cohen, the evidence fails to create a genuine dispute of material fact concerning the existence of other inaccuracies.
B. Reasonable Procedures (§ 1681e)
On appeal, Cohen argues that a reasonable factfinder could find that the defendants did not maintain reasonable procedures to assure the accuracy of her consumer report based on (1) the number of inaccuracies in her credit report, (2) a statistic regarding the prevalence of errors in Transunion credit reports drawn from a 2012 settlement agreement, and (3) the fact that one data furnisher failed to respond to a reinvestigation inquiry from Transunion. We agree with the district court that this evidence did not give rise to a genuine dispute of material fact regarding the reasonableness of the agencies' procedures. As discussed above, Cohen at most raised a genuine dispute regarding the accuracy of contact information in her credit report. But inaccurate contact information cannot give rise to liability under § 1681e(b): this section concerns the accuracy of "consumer reports," which do not encompass contact information because such information does not "bear[] on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living." 15 U.S.C. § 1681a(d)(1); see id. § 1681e(b); Williams-Steele v. TransUnion, 642 F. App'x 72, 73 (2d Cir. 2016) (summary order) (plaintiff's "claims concern[ing] inaccuracies in her credit reports," including contact information, "had no bearing on her credit-worthiness, and were therefore not actionable under the FCRA"); see also Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993) (noting that the Court may affirm a judgment on any grounds "for which there is a record sufficient to permit conclusions of law").
C. Reasonable Reinvestigation (§ 1681i)
Cohen identifies seven disputes that, she contends, the agencies failed to reasonably reinvestigate. As discussed above, Cohen conceded that the dispute must concern information that is actually inaccurate to state a claim under § 1681i, and she raised a genuine dispute of fact only as to the inaccuracy of addresses and telephone numbers. Of the seven identified disputes, only one—an alleged October 4, 2016 dispute with Transunion, for which she argues that there is no evidence of any investigation—concerned inaccurate addresses or telephone numbers. Accordingly, only the October 4, 2016 dispute could give rise to liability.
As a preliminary matter, Cohen did not address this alleged dispute in her opposition to Transunion's motion for summary judgment and we decline to reach it for the first time on appeal. See Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016) (appellate courts generally will not consider an issue raised for the first time on appeal). Even if we were to consider this allegation, Cohen's October 4, 2016 communication with Transunion did not trigger any obligation under § 1681i because it did not dispute the "completeness or accuracy of an[] item of information" in her file. 15 U.S.C. § 1681i(a)(1)(A). If a consumer is not satisfied with the result of a reinvestigation, the FCRA gives the consumer the right to "file a brief statement setting forth the nature of the dispute." 15 U.S.C. § 1681i(b). Transunion presented evidence that, on October 4, 2016, Cohen submitted a request to add a consumer statement to her credit file listing two addresses and instructing, "[i]f somebody puts another address, please make it fraudulent." This request was not presented to the agency in the form of a dispute, and it is best read to apply prospectively—i.e. to instruct that any account information associated with a different address in the future would be fraudulent, not to assert that any account associated with a different address already in her file was then incomplete or fraudulent.
Moreover, Cohen does not challenge the district court's legal conclusion that a dispute generated by a credit repair company without consulting or notifying the consumer does not trigger the reporting agency's reinvestigation obligations under § 1681i, and she has thus abandoned that challenge. LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (pro se litigant abandons issue by failing to raise it in appellate brief). Cohen does, however, briefly argue that the district court erred in finding that the credit repair company Creditrepair.com generated disputes without consulting with her or notifying her of their content. However, as the district court found, Cohen repeatedly testified that, after she retained Creditrepair.com's services, it generated disputes without her input or that she had no memory of being involved in initiating the disputes.
In the absence of any dispute that (1) concerned information for which there is a genuine dispute of fact regarding accuracy and (2) triggers the reporting agency's reinvestigation obligations, we do not reach Cohen's argument that the agencies' procedures for reinvestigating disputed information are not "reasonable" under § 1681i.
D. Willful Violations
As the district court found, because Cohen failed to demonstrate a violation of § 1681e or § 1681i, she necessarily failed to show a willful violation of those sections. Cohen also failed to raise a genuine dispute of material fact as to whether the agencies willfully violated the FCRA by imposing a "litigation lock" on her credit file. See Leon, 988 F.2d at 308 (noting that the Court may affirm on grounds upon which the district court did not rely). Cohen does not explain how the alleged litigation locks could violate § 1681e or § 1681i. In deference to Cohen's pro se status, we liberally construe her filings to raise and preserve for review a claim that this practice constituted a willful violation of 15 U.S.C. § 1681g(a), which establishes a consumer's right to her credit file "upon request." 15 U.S.C. § 1681g(a).
We liberally construe Cohen's filings despite the fact that both her brief and reply on appeal state that they were "drafted in whole, or substantial part, by an attorney." --------
But the evidence does not establish a genuine dispute as to whether Cohen was denied access to her credit file or that the agencies otherwise violated this provision of the FCRA. Cohen points to the following evidence to support her "litigation lock" claim: (1) Equifax's admission that it placed a code in her file to steer her inquiries to a legal response team, (2) Transunion's admission that it placed a "lock" on her file, (3) the fact that she was denied access to Equifax's credit monitoring program, (4) a notice from the company Identity Guard, and (5) a transcript of Cohen's telephone conversations with Equifax customer representatives. Transunion conceded that it imposed a "litigation lock" on Cohen's account on July 19, 2018, pursuant to which all of Cohen's queries were addressed by Transunion's outside litigation counsel rather than its usual customer representatives. But § 1681g(a) would not be violated by routing credit queries through a legal team; nor would it be violated by refusing membership in a credit monitoring service. See 15 U.S.C. § 1681g(a). Moreover, Cohen's evidence regarding Identity Guard—a notice from that company—says only that there was insufficient data in her credit file to compile a report, not that the company could not access her file. Finally, the transcripts do not show that Cohen was denied access to her Equifax credit file; they only show that her requests were routed to Equifax's legal team. Cohen does not argue that any request for credit information directed to the agencies' legal teams was denied.
II. Discovery
We review a district court's discovery rulings for abuse of discretion. See DG Creditor Corp. v. Dabah (In re DG Acquisition Corp.), 151 F.3d 75, 79 (2d Cir. 1998). A district court has abused its discretion "if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation marks omitted).
On appeal, Cohen argues that the district court erred in denying her request to depose information technology workers from the agencies. But she does not challenge the district court's rulings that her objection to the magistrate judge's order denying this discovery request was untimely and her objection to the magistrate judge's order denying reconsideration was without merit. These challenges are thus waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998) ("Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal."). Even setting aside timeliness and waiver, the district court did not abuse its discretion in denying Cohen's discovery request because Cohen has not explained how additional information about the capabilities of the agencies' computer systems would support her claim. See Fed. R. Civ. P. 26(b)(1).
III. Leave to Amend Complaint
"While generally leave to amend should be freely granted, it may be denied when there is a good reason to do so, such as futility, bad faith, or undue delay." Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002) (citation omitted). We generally review the denial of leave to amend for abuse of discretion, although we review de novo where the denial is based on the resolution of legal questions. Thea v. Kleinhandler, 807 F.3d 492, 496 (2d Cir. 2015). Cohen argues that the district court erred in denying leave to amend her complaint to include a civil RICO claim because such an amendment would not have been futile, but she does not address the district court's alternative dispositive holding that the motion to amend must be denied based on undue delay. Her challenge to that ruling is thus also waived. See Norton, 145 F.3d at 117.
We have considered all of Cohen's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of Court