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Sheridan v. Diversified Adjustment Service, Inc.

United States District Court, M.D. Tennessee, Nashville Division

January 17, 2017

TERRY SHERIDAN, Plaintiff,
v.
DIVERSIFIED ADJUSTMENT SERVICE, INC., Defendant.

         JURY TRIAL DEMANDED

          MEMORANDUM OF OPINION

          KEVIN H. SHARP, CHIEF JUDGE

         Pending before the Court is Defendant Diversified Adjustment Service, Inc.'s (“Defendant”) Motion for Summary Judgment (Docket No. 24), Memorandum (Docket No. 25) and Statement of Undisputed Material Facts (Docket No. 26), in support of same, and Motion for Entry of Order Granting Summary Judgment (Docket No. 28) (collectively, the “Motion”). For the reasons stated below, the Motion will be GRANTED.

         I. Background

         Defendant is a licensed debt collector in the state of Tennessee. (Docket No. 24-2, ¶ 3.) Plaintiff had an account with Verizon Wireless upon which he owed a balance. (Docket No. 26, ¶ 2.) On April 18, 2013, Verizon Wireless referred Plaintiff's account to Defendant for collection. (Id. at ¶ 3.) Defendant then requested Plaintiff's “propensity to pay score” from Trans Union, a credit reporting agency, in order to assist Defendant in its collection efforts against Plaintiff on the Verizon account. (Id. at ¶ 5.)

         Plaintiff filed this pro se lawsuit on February 12, 2016, alleging that Defendant violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681b, by accessing his credit report with no permissible purpose. (Id. at ¶¶ 1, 15.) Defendant claimed that it legally obtained Plaintiff's credit report in an attempt to collect on an account owed by Plaintiff, pursuant to § 1681b(a)(3) of the FCRA (Docket No. 12, ¶ 15), and moved for summary judgment on these grounds (Docket No. 24). Defendant also filed a Motion to Dismiss for Plaintiff's failure to comply with the Court's order resulting from the July 8, 2016 scheduling conference (Docket No. 27, ¶ 9), because Plaintiff did not respond to Defendant's Requests for Admission (Docket No. 27-1). Finally, Defendant filed a Motion for Entry of Order Granting Summary Judgment on the grounds that Plaintiff did not respond to its Motion for Summary Judgment. (Docket No. 28.)

         II. Standard of Review

         Summary judgment is rendered when “there is no genuine dispute as to any material fact and … the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party must demonstrate that the non-moving party has failed to establish a necessary element of that party's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant has the initial burden of informing the district court of the basis for the summary judgment motion and identifying portions of the record that lack a genuine issue of material fact. Id. at 323. However, the non-moving party may not rest solely on the allegations in the complaint, but must delineate specific evidence that shows there is a genuine issue for trial. Id. at 324. A “mere possibility” of a factual dispute is not sufficient to withstand a properly supported motion for summary judgment. Baird v. NHP Mill Creek Apartments, 94 F. App'x 328, 330-31 (6th Cir. 2004) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). A dispute about a material fact is genuine if a reasonable factfinder could find for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party asserting or denying that a fact is genuinely disputed must support its position by (1) citing to particular parts of materials in the record; (2) showing that the materials cited by the opposing party do not establish the absence or presence of a genuine dispute; or (3) showing that an adverse party cannot produce admissible evidence to support a fact. Fed.R.Civ.P. 56(c)(1).

         III. Analysis

         To prove that a defendant obtained a plaintiff's credit report with no “permissible purpose, ” in violation of the FCRA, 15 U.S.C. § 1681 et seq., the plaintiff must show “(i) that there was a ‘consumer report' within the meaning of the statute; (ii) that the defendant used or obtained it; and (iii) that the defendant did so without a permissible statutory purpose.” Bickley v. Dish Network, LLC, 751 F.3d 724, 728 (6th Cir. 2014). A plaintiff must also prove “the defendant acted with the specified level of culpability, ” but the court need not address this if it finds “the presence of a ‘permissible purpose[.]'” Bickley, 751 F.3d at 728, n.3. If the plaintiff fails to demonstrate any of these elements, the FCRA claim fails. Id. at 728. Defendant admits that it obtained Plaintiff's “propensity to pay” score. (Docket No. 12, p. 3, ¶ 3.) Therefore, the second element is undisputed and the Court will confine its analysis to the first and third elements.

         Under the FCRA, a “consumer report” is:

[A]ny written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for-
(A) credit or insurance to be used primarily for personal, family, or ...

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