Opinion
Civil Action 20-cv-02728-WJM-NRN
10-12-2022
JEROME L. GRIMES, Plaintiff, v. SSP 720 CHAPMAN, LLC, Defendant.
RECOMMENDATION ON DEFENDANT SSP 720 CHAPMAN, LLC'S MOTION FOR SUMMARY JUDGMENT (DKT. #79) AND PLAINTIFF GRIMES' MOTION FOR SUMMARY JUDGMENT (DKT. #85)
N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on two orders (Dkt. ##82 & 86) referring Defendant SSP Chapman, LLC's (“Defendant” or “SSP”) Motion for Summary Judgment (Dkt. #79) and Plaintiff Jerome Grimes' (“Plaintiff” or “Mr. Grimes”) Motion for Summary Judgment. (Dkt. # 85.)
Plaintiff responded to Defendant's Motion for Summary Judgment. (Dkt. #92.) Defendant did not file a reply in support of its motion for summary judgment.
Defendant responded to Mr. Grimes' Motion for Summary Judgment on May 31, 2022. (Dkt. #102.) On June 27, 2022, Plaintiff filed a document titled “Plaintiff's Written Version of ‘Oral Argument' for: June 28, 2022, Motion Hearing for Plaintiff's Motion for Summary Judgement” (Dkt. #109), which the Court construes and accepts as Plaintiff's reply brief, even though it was untimely.
The Court heard oral argument on June 27, 2022. (See Dkt. #110.) Now, being fully informed and for the reasons discussed below, it is hereby RECOMMENDED that Defendant's Motion for Summary Judgment (Dkt. #79) be GRANTED. The Court further RECOMMENDS that Mr. Grimes Motion for Summary Judgment (Dkt. #85) be DENIED AS MOOT.
BACKGROUND
Mr. Grimes was a tenant at the Pine Creek Apartments in Colorado Springs, Colorado. SSP owned and operated the apartment complex during the relevant time period. (See Dkt. #79 at 2, ¶ 2). In this lawsuit, Mr. Grimes asserts a single claim for defamation based on two separate incidents. He argues that SSP defamed him when it (1) initiated an allegedly wrongful eviction proceeding against him, and (2) reported a past due amount to Equifax, a consumer reporting agency. (See generally Dkt. #7.) Mr. Grimes complains that his credit was damaged by Defendant's eviction and reporting, and that these allegedly defamatory actions caused Mr. Grimes harm in terms of getting financial aid to pursue studies at Capella University. Id.
The Court relies primarily on Defendant's statement of undisputed facts in part because Mr. Grimes did not comply with Judge Martinez's Practice Standards, which, for example, required him to respond to Defendant's material facts with numbered paragraphs admitting or denying each of Defendant's asserted facts, and providing a factual basis for a denial. Further, as set forth more below, Mr. Grimes has not offered any evidence sufficient to create a genuine dispute of material fact.
SSP has moved for summary judgment arguing that Mr. Grimes' defamation claim related to the eviction proceedings is barred by the doctrine of res judicata. The eviction proceeding formed the basis, in part, of a prior lawsuit by Mr. Grimes, which was dismissed with prejudice in its entirety. SSP further argues that Mr. Grimes defamation claim related to the debt reporting is precluded by the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681h(e).
LEGAL STANDARD
I. Pro Se Litigants
Mr. Grimes proceeds pro se. Accordingly, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). This standard “applies to all proceedings involving a pro se litigant, including . . . summary judgment proceedings.” Espinoza-Horiuchi v. Walmart Stores, Inc., 2016 WL 1275494 at *1 (D. Colo. Mar. 7, 2016) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). However, “pro se parties [must] follow the same rules of procedure that govern other litigants.” Calbart v. Denver Sheriff Dep't, 505 Fed.Appx. 703, 705 (10th Cir. 2012). Mr. Grimes' pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Motion for Summary Judgment under Rule 56
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). A court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Furthermore, a judge's function at summary judgment is not to weigh the evidence and determine the truth of the matter, but to determine if there is a genuine issue for trial. Tolan v. Cotton, 572 U.S. 650, 656 (2014).
The moving party bears the initial responsibility of providing the court with the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party's claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
If the movant properly supports a motion for summary judgment, the non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, the opposing party may not rest on the allegations contained in his complaint but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”); see also Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1180 (10th Cir. 2002). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005). However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). Ultimately, the Court's inquiry on summary judgment is whether the facts and evidence identified by the parties present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52 (1986).
ANALYSIS
I. The doctrine of res judicata bars Mr. Grimes' claim for defamation based on the 2018 eviction proceeding.
This is not Mr. Grimes' first suit against SSP. In 2018, he sued SSP and several other defendants for issues arising at the same apartment complex and from the same eviction proceeding. Judge Tafoya described Mr. Grimes' claims in that first suit as follows:
Mr. Grimes also filed an earlier lawsuit that was dismissed under Fed.R.Civ.P. 41(b) for failure to comply with the Court's order to file an amended complaint on the court-approved form. Order of Dismissal, Grimes v. Dumas, 18-cv-02185-LTB, Dkt. #5.
Plaintiff appears to allege Defendants violated his constitutional rights and engaged in criminal activity by entering his apartment to search for valuable property under the guise of spraying for roaches and fixing a water leak. (See Amend. Compl. 3-5.) Plaintiff purports Defendants intended to poison him with pesticides that were akin to dirty bomb smoke. (Id. at 6-7.) Plaintiff also alleges Defendants violated his Sixth Amendment rights, as well as the Dodd-Frank Act, by charging him certain fees as part of an abusive financial practice. (Id. at 8-14, 17). Finally, Plaintiff brings various criminal claims, such as illegally searching Plaintiff's apartment for valuables, illegally entering Plaintiff's apartment to attempt to murder Plaintiff, and forcing entry into Plaintiff's apartment. (Id. at 1, 4, 8.) Plaintiff seeks injunctive relief in the form of a ruling that Defendants do not have unlimited rights to enter his
apartment, in addition to damages in the amount of $260,000.00. (Id. at 23.) Taking the facts pled in Plaintiff's Complaint as true, Plaintiff has not set forth viable claims for any of his allegations.Recommendation of United States Magistrate Judge, Grimes v. Dumas, 18-cv-02795-WJM-KMT (“Grimes I”), Dkt. #53 at 8-9. Additionally, Mr. Grimes asserted a claim titled “Defamation of Character as a Bad Tenant Needing Eviction, 4th Amendment Rights, U.S. Constitution.” Id., Dkt. # 4 at 1, 21 (referencing defamation related to eviction).
Ultimately, Judge Tafoya recommended dismissal of that prior action finding that, even accepting Mr. Grimes' allegations as true, he had not set forth any viable claims. See id. Judge Martinez adopted Judge Tafoya's recommendation in full and ordered the case dismissed with prejudice. Id., Dkt. #69.
SSP argues that Mr. Grimes' current defamation claim based on the eviction proceeding is barred by the doctrine of res judicata. “Under res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action.” Wilkes v. Wyo. Dep't of Emp., 314 F.3d 501, 504-05 (10th Cir. 2002) (citing Satsky v. Paramount Commc'ns, Inc., 7 F.3d 1464 (10th Cir. 1993)) (emphasis in original). Claim preclusion requires a judgment on the merits in an earlier action, identity of the parties in the two suits, and identity of the cause of action in both suits. Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 1999).
The Court finds that claim preclusion applies to bar Mr. Grimes' defamation claim based on the eviction proceeding.
First, there was a judgment on the merits in Grimes I. Dismissal with prejudice “constitutes a final adjudication on the merits with preclusive effect in the federal court.” Ostler v. Anderson, 200 Fed.Appx. 750, 753 (10th Cir. 2006).
Second, there is no question that the relevant parties are identical-Mr. Grimes was the plaintiff in the first action, and SSP was one of the defendants.
Finally, the Court finds that the same cause of action was at issue in both suits. The Tenth Circuit employs the transactional approach of the Restatement (Second) of Judgments to determine what claims constitute identity of the causes of action. Yapp, 186 F.3d at 1227. Under this test, claims “arising out of the same ‘transaction, or series of connected transactions' as a previous suit” are precluded. Id. (quoting Restatement (Second) of Judgments § 24 (1982)).
What constitutes the same transaction or series of transactions is “to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.”Id. (quoting Restatement (Second) of Judgments § 24).
In the Grimes I, Mr. Grimes complained that that the defendants, including SSP, defamed him by labeling him a “bad tenant” who required eviction. In the present case, Mr. Grimes appears to argue that the eviction proceeding constituted defamation. In the Second Amended Complaint (Dkt. #7), he writes that SSP initiated an eviction proceeding “fraud intent amount to MISTAKE OF LAW, and leading to ILLEGAL DEFAMATION With MALICE & ILLEGAL RETAILIATION in violation of. . . ‘Rights to Be Free from Defamations.'”
The Court quotes this language as it appears in Mr. Grimes Second Amended Complaint.
Thus, any such defamatory statement, whether it was the eviction proceeding itself or some unidentified statement made related to Mr. Grimes' eviction, arose out of the same transaction or series of transaction as Mr. Grimes' claims in Grimes I. Indeed, at oral argument, Mr. Grimes offered no explanation why his present lawsuit, to the extent it is bases its defamation claim on the 2018 eviction proceeding, is not identical to his prior one. Thus, Mr. Grimes' defamation claim based on the 2018 eviction proceeding is barred by res judicata, and SSP is entitled to judgment as a matter of law on this claim.
This is true even if Mr. Grimes characterized his defamation claim in Grimes I as one arising under the Fourth Amendment. Plotner v. AT&T Corp., 224 F.3d 1161, 1170 (10th Cir. 2000) (“The fact that [plaintiff] now presents some of her claims under the rubric of slightly different legal theories . . . does not obscure the fact that they all arise out of a single transaction.”).
SSP also suggests that the second instance of defamation, when SSP reported Mr. Grimes' debt to Experian, is barred by res judicata because it arises from the same series as transactions as the eviction proceeding. The Court, however, finds the connection between the debt reporting and the eviction proceeding too tenuous. First, unlike the eviction proceeding, Mr. Grimes did not explicitly raise a claim about the debt reporting in his original lawsuit. The eviction proceeding and other underlying events in Grimes I, which included allegedly improper access to Mr. Grimes apartment, levying of fees, and improper efforts to evict him, took place in fall of 2018. The allegedly improper reporting occurred in January 2019. False reporting a debt months later is a separate and distinct claim, even if the debt arises out of the eviction proceeding. The defamation claim based on allegedly false reporting is a “new and independent” claim based on new facts, and therefore not barred by the doctrine of res judicata. See Hatch v. Boulder Town Council, 471 F.3d 1142, 1150 (10th Cir. 2006) (“[A] new action will be permitted only where it raises new and independent claims, not part of the previous transaction, based on the new facts.”) (emphasis in original).
In fact, though the natural inference may be that the past due amount is related to the eviction proceeding, Defendant has offered no evidence proving this.
Nevertheless, as set forth below, the Court find that Mr. Grimes defamation claim for false reporting fails as a matter of law because it is barred by the FCRA.
II. The FCRA preempts Mr. Grimes' defamation claim based on the allegedly false reporting.
The FCRA contains express preemption language that protects SSP, as an entity
“who furnishes information to a consumer reporting agency,” from a defamation claim. Section 1681h(e) provides that
no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against . . . any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report except as to false information furnished with malice or willful intent to injure such consumer.15 U.S.C. § 1681h(e) (emphasis added). Thus, only state common law claims against a furnisher that survive preemption are those based on malice or a willful intent to injure. Collins v. BAC Home Loans Servicing LP, 912 F.Supp.2d 997, 1014 (D. Colo. 2012). A defendant's violation of the FCRA is willful where it acts knowingly, or when it recklessly disregards its statutory duties. Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007).
Because this case is at the summary judgment stage, Mr. Grimes must “designate specific facts showing there exists a genuine issue of malice and/or willful intent by [the furnisher, SSP] to injure Plaintiff in order to sustain his state common law claims.” Collins, 912 F.Supp.2d at 1014. Mr. Grimes has identified no such facts either in his response to SSP's motion for summary judgment or in his own motion. Any allegations that SSP acted willfully, knowingly, or recklessly are conclusory. The record does not contain any evidence to support an inference of ill-will or hostility. Mere incorrect reporting, without more, does not show malicious intent. Johnson v. Equifax, Inc., 510 F.Supp.2d 638, 648 (S.D. Ala. 2007) (“The mere existence of inaccuracies in a consumer report does not in itself amount to an act in conscious disregard of the plaintiff's rights supporting a finding of willful noncompliance.”); see also Muhammad v. Wakefield & Assocs., No. 20-cv-03024-RBJ-STV, 2021 WL 5284708, at *5 (D. Colo. May 21, 2021) (“The mere failure to correct errors in a consumer's credit report does not give rise to a willful violation of the FCRA.”), report and recommendation adopted sub nom. Muhammad v. Transunion Consumer Reporting Agency, No. 20-cv-3024-RMR-STV, 2021 WL 5284952 (D. Colo. Sept. 30, 2021).
Because Mr. Grimes has failed to offer evidence of SSP's malice or willful intent, his defamation claim is barred by the FCRA.
CONCLUSION
In light of the foregoing, it is hereby RECOMMENDED that Defendant SSP 720 Chapman, LLC's Motion for Summary Judgment be GRANTED and judgment entered in favor of SSP and against Mr. Grimes. It is further RECOMMENDED that Mr. Grimes' Motion for Summary Judgment be DENIED as MOOT.
Alternatively, Mr. Grimes' Motion for Summary Judgment should be stricken. First, Mr. Grimes did not confer as required by D.C.COLO.LCivR 7.1. Second, Mr. Grimes did not comply with section III.F of Judge Martinez's Civil Practice Standards, which require that all motions for summary judgment contain a section entitled “Movant's Statement of Material Facts,” which sets forth “in simple, declarative sentences, all of which are separately numbered and paragraphed, each material fact the movant believes supports movant's claim that movant is entitled to judgment as a matter of law.” Mr. Grimes' Motion for Summary Judgment contains no such statement of facts.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn , 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr. , 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996).