Opinion
02 CIV. 274 (DLC)
August 28, 2003
Aror Ark O'Diah, pro se, Hicksville, NY, For Plaintiff
Christine M. Fecko, Esq. McGuireWoods LLP, New York, N.Y. For Defendant Equifax Information Services LLC
Mark E. Kogan, Esq., Satzberg, Trichon, Kogan Wertheimer, P.C., Philadelphia, PA, for defendant Trans Union LLC
Bruce S. Luckman Esq., Satzberg, Trichon, Kogan Wertheimer, P.C., Philadelphia, PA, for defendant Trans Union LLC
Timothy P. Creech, Esq., Satzberg, Trichon, Kogan Wertheimer, P.C., Philadelphia, PA, for defendant Trans Union LLC
Sevan Ogulluk, Esq., Jones Day, New York, NY, For Defendant Experian Information Solutions, Inc.
OPINION AND ORDER
Plaintiff pro se Aror Ark O'Diah ("O'Diah") brought this action on January 11, 2002, against thirty-eight defendants alleging,inter alia, violations of 42 U.S.C. § 1983, the Civil Rights Act of 1964, and the Fair Credit Reporting Act. The claims against most of the defendants were dismissed in an Opinion and Order of August 21, 2002 ("August 21 Opinion"). Three defendants who have answered the complaint now move for summary judgment, and their motions are granted.
BACKGROUND
Defendants Experian Information Solutions Inc. ("Experian"), Trans Union LLC ("Trans Union") and Equifax Information Services LLC ("Equifax") are all credit reporting agencies. Trans Union filed an answer to O'Diah's complaint on March 20, 2002, Experian on April 16 and Equifax on June 19. None of these three defendants filed a dispositive motion prior to the Court's rendering of the August 21 Opinion. A scheduling order, also issued on August 21, 2002, set out a period for discovery and permitted these three defendants to file any pretrial motion by February 14, 2003. As no motion was filed by that date, the Court, by Order of March 14, set a schedule for plaintiff and these defendants to submit pretrial statements. Following correspondence from these defendants, the March 14 Order was vacated in the Order of March 31. The March 31 Order set a new briefing schedule for any pretrial motion, with which the parties complied. When serving their summary judgment motions, each of these defendants served O'Diah with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment," which explains the operation of Rule 56, Fed.R.Civ.P., and specifically that a plaintiff:
may NOT oppose summary judgment simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial.
As discussed in the August 21 Opinion, plaintiff's complaint asserts many unrelated claims arising from alleged physical injuries, injuries to his reputation, and numerous instances of discrimination. O'Diah also generally alleges a conspiracy among the various defendants to deprive him of his rights. See O'Diah v. New York City, et al., 2002 WL 1941179 (S.D.N.Y. Aug. 21, 2002). Familiarity with the factual background and legal principles discussed in the August 21 Opinion is assumed.
The only specific allegations against these defendants appear to be attempts to plead claims under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681e(b), and a common law claim for defamation. O'Diah states:
On August 24, 2001, plaintiff discovered that the defendants, Equifax Credit Information, Experian, Trans Union . . . went ahead to misrepresent the plaintiff to the general public that plaintiff is a bad debtor, even though these defendants knew that the reports they made public against the plaintiff were false, in violation of the federal fair credit reporting act, denying the plaintiff equal protection and due process, since plaintiff [sic] consent was not sought, and when plaintiff discovered the false information against him and called it to attention of the defendants, the defendant willfully and recklessly disregarded the plaintiff. The false reports made public by the defendants defamed the plaintiff via libel, and slander, and the plaintiff and his businesses suffered great financial supporters [sic], and inability to raise fund [sic]. Plaintiff reputation [sic] was severely damaged within the financial communities worldwide, and nationwide.
Attached to the complaint are documents that appear to be the credit reports issued by these defendants. One of the credit reports has annotations, presumably made by O'Diah, indicating that many of the outstanding debts listed on the report are disputed.
Experian has submitted an affidavit in connection with this motion describing its interaction with plaintiff. Experian's representative affirms that in September 2001, O'Diah informed it of alleged inaccuracies in its credit report. After following standard industry procedure for confirming disputed entries on a credit report, Experian reissued its report, removing two entries for which the underlying creditor could not provide confirmation. Equifax has submitted an affidavit attesting to its regular procedures for collecting credit information, and stating that "[i]n the two years preceding the filing of this civil action, Equifax has not knowingly or willfully issued a consumer report containing false information regarding plaintiff O'Diah." Trans Union has not submitted an affidavit in conjunction with its motion for summary judgment, although it has submitted a Rule 56.1 Statement of Material Facts, stating that there is "no evidence Trans Union reported false, inaccurate or misleading information about plaintiff" or "that Trans Union acted in willful contravention of Plaintiff's rights, or that Trans Union acted with malice or willful intent to injure Plaintiff." O'Diah submitted a four-page affidavit in opposition to these motions.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties taken together "show 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." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002). Thus, in determining whether to grant summary judgment, this Court must (1) determine whether a genuine factual dispute exists based on evidence in the record; and (2) determine, based on the substantive law at issue, whether the fact in dispute is material.
Construing the complaint very liberally, O'Diah's claim under the FCRA arises under Section 1681e(b). That section states, in relevant part:
Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.15 U.S.C. § 1681e(b). To succeed on a claim under this section, a plaintiff must establish that: (1) the consumer reporting agency was negligent in that it failed to follow reasonable procedures to assure the accuracy of its credit report; (2) the consumer reporting agency reported inaccurate information about the plaintiff; (3) the plaintiff was injured; and (4) the consumer reporting agency's negligence proximately caused the plaintiff's injury. See, e.g., Whelan v. Trans Union Credit Reporting Agency, IAG, 862 F. Supp. 824, 829 (E.D.N.Y. 1994) (collecting cases).
All three defendants raise fundamentally the same arguments in urging summary judgment on the FCRA claim. They point to the lack of evidence in the record that would create a material issue of fact regarding any element of the prima facie case; namely, there is no evidence to show how the credit reports attached to the complaint were inaccurate, that they were prepared via unreasonable procedures, or that they were the proximate cause of any identifiable damages. O'Diah, in his opposition to these motions, merely repeats the accusations stated in his complaint, and adds no description, let alone evidence, of any specific inaccuracies or unreasonable procedures.
In his opposition, O'Diah appears to assert a new claim against these defendants, under 42 U.S.C. § 1983, alleging that defendants' conduct was the result of racial discrimination. These defendants are all private entities. Even if this claim could properly be asserted at this juncture of the litigation, as it is not accompanied by any allegation of conspiracy with government officials, it cannot survive. See O'Diah, 2002 WL 1941179, *8.
O'Diah has failed to show the existence of a disputed issue of material fact on his putative FCRA claim. He has taken no discovery, submitted no documentary evidence, and made no specific reference to any action by these defendants that could constitute a violation of the FCRA. O'Diah has failed to dispute, other than by conclusory statements, these defendants' description of events or their procedures. Even under the very liberal standard accordedpro se litigants, O'Diah's claim cannot survive summary judgment in light of the complete dearth of proof. These motions are granted with respect to the FCRA claim.
The FCRA preempts the common law standard for defamation claims against credit reporting agencies, creating a qualified immunity. See,e.g, Williams et al. v. Metropolitan Life Ins. Co, et al., 1994 WL 529880, *2 (S.D.N.Y. Sept. 28, 1994). Section 1681h(e) states:
. . . [n]o 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 consumer reporting agency . . . except as to false information furnished with malice or willful intent to injure such consumer.15 U.S.C. § 1681h(e). The same complete lack of evidence that is fatal to O'Diah's FCRA claim dooms the defamation claim as well. Plaintiff has adduced no evidence to rebut defendants' affirmations that the statements in the credit reports were accurate. Plaintiff has not put into the record, nor indicated with any specificity, any evidence that would tend to show that these defendants' actions were willful or malicious. These motions must be granted as to the defamation claims.
CONCLUSION
For the reasons above described, the motions by Experian, Trans Union and Equifax for summary judgment are granted. All claims against these defendants are dismissed with prejudice.SO ORDERED.