Opinion
3:20-cv-00137-AR
06-09-2023
PHUONG THAO HA, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC and CIC MORTGAGE CREDIT, INC., Defendant.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD, UNITED STATES MAGISTRATE JUDGE
In January 2020, plaintiff Phuong Thao Ha filed this Fair Trade Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., action against defendants Equifax Information Services (Equifax) and CIC Mortgage Credit, Inc. (CIC). This Findings and Recommendation addresses only Ha's claims against CIC.
Equifax has not moved for summary judgment and the claims against it are not addressed in this Findings and Recommendation.
Ha alleges that CIC negligently or willfully violated FCRA by failing to comply with 15 U.S.C. § 1681e(b), a provision that obliges consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy” of consumer reports. (Am. Compl. ¶¶ 41-48, ECF No. 14.) Ha's allegations are based on four “tri-merge” consumer reports generated by CIC that allegedly reflect inaccurate data reported by Equifax that belong not to Ha, but instead to her brother, Trung Ha. (Id.) Ha alleges that those inaccuracies delayed her process of purchasing a house from Habitat for Humanity Portland Metro/East (HFH) and caused her emotional distress, headaches, frustration, and mental anguish. (Id.)
Although not specifically alleged, Ha's claims arise under 15 U.S.C. § 1681o (negligent violation of the FCRA) and 15 U.S.C. § 1681n (willful violation of the FCRA).
Because this action is subject to the two-year statute of limitations set forth in 15 U.S.C. § 1681p(1), the parties agree that Ha's claims for negligent and willful violations of § 1681e(b) are based solely on the tri-merge reports issued by CIC on January 23, 2018, April 12, 2018, August 14, 2018, and April 25, 2019. (Def.'s Mot. Summ. J at 3, ECF No. 51; Pl.'s Resp. to Mot. Summ. J. at 18, ECF No. 55.) The court nevertheless recounts facts related to the report from October 5, 2016, to provide the full context regarding Ha's housing applications to HFH.
CIC moves for summary judgment on both claims under Federal Rule of Civil Procedure 56. (Def.'s Mot. Summ. J., ECF No. 51.) CIC argues that, as a matter of law, it maintained reasonable procedures to assure maximum accuracy of those consumer reports and contends that Ha has not presented evidence that CIC caused her alleged harms. (Id. at 4-11).
This court has considered the briefing, evidence, and oral argument of both parties. As explained below, the court recommends denying CIC's motion for summary judgment.
BACKGROUND
A. FCRA Roles and CIC's Procedures
Phuong Thao Ha is an individual consumer as that term is used under FCRA. See 15 U.S.C. § 1681a(c). Equifax is a consumer reporting agency (CRA) that compiles and maintains files on consumers on a nationwide basis. See 15 U.S.C. §§ 1681a(f) (defining CRA), 1681a(p) (defining nationwide CRA). CIC is a “reseller” of consumer information, which means it is a CRA that:
(1) assembles and merges information contained in the database of another consumer reporting agency or multiple consumer reporting agencies concerning any consumer for the purposes of furnishing such information to any third party, to the extent of such activities; and
(2) does not maintain a database of the assembled or merged information from which new consumer reports are produced.15 U.S.C. § 1681a(u); (See Def.'s Mot. Summ. J. at 4 (admitting CIC is a reseller.)
As a reseller, CIC assembles and merges data from three “nationwide” CRAs-Experian, TransUnion, and Equifax-into a “merged in-file credit report,” commonly known as a “trimerge report.” (Decl. of Robert Sola ¶ 10, Ex. 9, transcript of dep. of Cassie Burroughs-Thomas (Burroughs-Thomas Dep.) 23:1-3, 39:4-8, 40:11-14, 63:16-21, ECF Nos. 56-57.) A tri-merge report is a form of “consumer report” under FCRA, which means that it is:
any 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 household purposes; (B) employment purposes; or (C) any other purpose authorized under section 1681b of this title.15 U.S.C. § 1681a(d). Tri-merge reports are typically used in assessments related to mortgage lending, general financing, tenant screening, volunteer services, and business credit. (Burroughs-Thomas Dep. 24:8-10.) CIC sold approximately 400,000 consumer reports in 2018, 2019, and 2020, respectively. (Id. at 32:22-25, 33:1-2.)
At her deposition, CIC's 30(b)(6) representative, Cassie Burroughs-Thomas, explained that CIC's process for generating tri-merge reports is “completely automated” and that a report is “submitted [to the end user] within seconds” following a request. (Burroughs-Thomas Dep. 56:625; 58:1-7; 126:8-10.) No one at CIC reviews the tri-merge report before it is sent to the end user, and CIC “make[s] no determination on whether [the data provided by the nationwide CRAs] is accurate or inaccurate in anyone's viewpoint.” (Id. at 56:6-25, 58:10-11, 126: 8-17.) Likewise, CIC does not have a system to “flag” inconsistent information reported by the different CRAs. (Id. at 58:12-21; 126:8-17.) Burroughs-Thomas testified that CIC's contractual “agreements to be a reseller do[] not allow” it to “alter, change, or modify the information” that it obtains from the nationwide CRAs. (Id. at 54:12-17.)
B. Ha's Housing Application to HFH
This action arises from Ha's 2016 application for, and eventual purchase of, a home from HFH. On September 12, 2016, Ha applied to HFH's housing program to purchase a three-bedroom home. (Decl. of Christi Lawson ¶ 3, Ex. B, ECF No. 51; Decl. of Phuong Thao Ha ¶ 3, ECF No. 58.) Because Ha does not speak English, her adult daughter, Tiffany Vo, assisted with the application and frequently acted as translator during communications with HFH. (Ha Decl. ¶ 2; Decl. of Tiffany Vop Vo ¶ 2, ECF No. 60; Decl. of John Atallah ¶ 2, Ex. A, ECF No. 63 (Ha's testimony that she speaks Vietnamese).)
Ha had previously applied to purchase a home from HFH, likely beginning in 2014. (Lawson Decl. ¶ 2, Ex. A, Transcript of Dep. of Phuong Thao Ha (Ha Dep.) 13:17-14:10.) Ha does not recall how many times she applied to HFH or when, and there is no evidence in the record as to why those pre-2016 applications were denied.
To assess Ha's creditworthiness as part of the application process, HFH requested five tri-merge reports from CIC between 2016 and 2019. (Lawson Decl. ¶ 5, Ex. C, transcript of Dep. of Michelle Rosa Bouza (Rosa Bouza Dep.) 21:15-25; Sola Decl. ¶ 3, Ex. 1; Decl. of Julie Wang ¶ 4, ECF No. 59.) Ha alleges that those tri-merge reports contained inaccurate information reported by Equifax, including the name of her brother, Trung Ha, and a social security number (SSN), birth date, and accounts belonging to another consumer.
1. 2016: first tri-merge report and acceptance to housing program
HFH requested the first tri-merge report from CIC in October 2016. (Sola Decl. ¶ 3, Ex. 1; Wang Decl. ¶ 4.) HFH's request-and each of its subsequent requests-required it to input information identifying Ha, such as her full name, address, SSN, and date of birth. (Sola Decl. ¶ 9, Ex. 6 at 105:18-25.)
CIC furnished HFH with a tri-merge report on October 5, 2016. (Id. ¶ 3, Ex. 1; Lawson Decl. ¶ 5, Ex. D.) The report was comprised of data from Experian, TransUnion, and Equifax. (Id.) The data provided by Experian and TransUnion did not contain any faulty information about Ha. (Id.) However, the data provided by Equifax contained several inaccuracies, such as: (1) listing the applicant as Trung T. Ha-Ha's brother; (2) reporting a credit score based on a birth date and SSN that do not belong to Ha; and (3) listing approximately 40 accounts, including a mortgage, that do not belong to Ha. (Id. at 1-11; Ha Decl. ¶ 4, Ex. 1.)
Because of the data reported by Equifax, Ha was initially deemed “ineligible for a loan and home from HFH.” (Wang Decl. ¶ 4; Ha Decl. ¶ 5 (“HFH told me that because of the information on the CIC report, I could not get a loan or home from HFH. I told them that the mortgage and other information on the report did not belong to me. HFH told me they would try to help me get the credit report fixed.”) Julie Wang, an HFH homeownership support manager, was assigned to work with Ha to help get the errors on her credit report fixed. (Wang Decl. ¶ 4.)
Subsequently, on December 5, 2016, HFH notified Ha that she had been accepted into the home ownership program. (Id. ¶ 5; Lawson Decl. ¶¶ 6, Ex. E (Letter of Acceptance).) Wang explains that “[t]his acceptance was not a guarantee that [Ha] would get the home, but was done with the expectation that the credit report would be corrected before she would actually have to be approved for the loan.” (Wang Decl. ¶ 5.) At her deposition on June 29, 2021, Michelle Rosa Bouza-HFH's FRCP 30(b)(6) corporate representative-testified that the errors identified on the October 2016 tri-merge report did not delay Ha's acceptance to the housing program because “[w]e knew we had time to help her fix it.” (Rosa Bouza Dep. 26:5-25, 27:1-3.)
Although Ha was accepted into the housing program in December 2016, construction on the home assigned to her was not completed until spring 2019. (Id. at 43:6-12.)
2. 2017: dispute letters and communications with HFH
While the HFH home was under construction, Wang continued to assist Ha with attempts to correct the inaccuracies reported by Equifax in CIC's October 2016 tri-merge report. In January 2017 and March 2017, Wang prepared dispute packages on Ha's behalf, which Ha sent to Equifax. (Wang Decl. ¶ 6; Ha Decl. ¶ 6.) When those dispute packages did not result in a corrected consumer report, Wang prepared a third dispute package on Ha's behalf in July 2017. (Wang Decl. ¶ 7.) Ha sent that dispute package to Equifax on July 3, 2017. (Ha Decl. ¶ 7; Vo Decl. ¶¶ 3, 7, Ex. 8 at 1.)
On September 14, 2017, Rosa Bouza-acting as HFH's Homeownership Program Manager-emailed Vo to inquire whether Ha had been able to resolve the inaccuracies in her credit report. (Vo Decl. ¶¶ 4, 7, Ex. 8 at 2.) Vo responded on October 25, 2017, stating that Ha had not heard back from Equifax and inquiring whether Rosa Bouza had any updates related to construction of the house. (Id. at 3.) Rosa Bouza responded:
I would recommend doing a credit pull now to see if the error is still on the credit report. I would be happy to help with this if you would like to arrange to come into the office. You can do it yourself as well through annualcreditreport.com for free. The specific one you want to check is Equifax.
In terms of the home, unfortunately I have no new updates. We are still waiting for them to get permits from the city so that they can continue construction on the houses. We have a meeting next Tuesday with the construction staff and hopefully they will have news by then.(Id. (emphasis added); see also Rosa Bouza Dep. 39:21-25, 40:1-7.) At her deposition, Rosa Bouza similarly testified that, as of June 2017, the construction on Ha's house was “extremely delayed.” (Rosa Bouza Dep. 35:1-4.) She described the cause of the delay as follows:
A. Part of it was [that Ha's] home was being built by a partner, Walsh Construction, and they were going through some I think financial issues. And there were some delays on their part on completion of the home.
Q. Anything else from your memory that was the cause of the delay?
A. I think that was the main cause.(Id. 35:5-13.)
3. 2018: second, third, and fourth tri-merge reports
HFH obtained a second tri-merge report from CIC on January 23, 2018. (Wang Decl. ¶ 8; Sola Decl. ¶ 4, Ex. 2.) As with the first report, the data provided by Experian and TransUnion did not contain any faulty information about Ha. (Sola Decl. ¶ 4, Ex. 2.) However, Equifax continued to list the applicant as Trung Ha, to report an incorrect SSN and birth date, and to list several accounts that did not belong to Ha. (Id. at 1-11; Ha Decl. ¶ 4.)
After reviewing the report, Wang contacted an attorney, Michael Fuller, explaining that she had been working without success to have the inaccurate information removed from Ha's Equifax report. (Wang Decl. ¶ 8.) Wang told Fuller that HFH “may not be able to sell [Ha] a home if the issue isn't resolved.” (Id. ¶¶ 8, 19, Ex. 7 at 1.) After Wang received a response from Fuller, she emailed Vo, explaining that Fuller's “advice was to request your mother's [three] free annual credit reports through the mail.” (Id. ¶ 19, Ex. 7 at 2.)
HFH obtained a third tri-merge report from CIC on April 12, 2018. (Sola Decl. ¶ 5, Ex. 3.) That report continued to reflect inaccuracies reported by Equifax. (Id.; Wang Decl. ¶ 9.) Wang called CIC to inform it of the inaccurate information on the report. (Id.) She provided CIC with information identifying Ha, so that CIC was able to review Ha's file. (Id.) Wang attests that CIC responded that the inaccuracies “were not an issue on its end, and [she] should call Equifax.” (Id.). Wang was “frustrated after that call with CIC because it did not offer any further assistance.” (Id.) She called Equifax, which “said it could not locate a file for Ms. Ha.” (Id.)
Despite the inaccuracies still present in Ha's April 2018 credit-report, Wang states that “HFH decided to allow Ms. Ha to proceed with the purchase of her home even if her credit report was not corrected by the time of the purchase.” (Wang Decl. ¶ 11.) She explains:
There was some confusion within HFH about whether Ms. Ha could get the home if her credit report was not corrected. On November 14, 2018, I spoke with Loretta Kelly, the loan manager, and she said that Michelle Rosa Bouza said the mortgage loan needed to be off Ms. Ha's credit report in order to purchase the home. When I informed Michelle Rosa Bouza about this conversation with Loretta, she said there had been a misunderstanding and the plan was to move
ahead with the sale regardless of whether the credit report was corrected by the closing date.(Wang Decl. ¶ 11; Rosa Bouza Dep. 56:8-25.) On April 13, 2018, Wang placed a note in Ha's HFH file documenting her call to CIC and stating that, despite the inaccuracies reported by Equifax on the April 2018 tri-merge report, the “homeownership staff agreed that [HFH] would continue to work on getting the erroneous accounts off her credit report, but if it [does not] occur before the home sale, [Ha] could proceed with the purchase.” (Lawson Decl. ¶ 9, Ex. H; ¶ 8, Ex. G, transcript of dep. of Julie Wang 14:16-21; Attalah Decl. ¶ 4, Ex. C at 2.)
Wang “did not tell Ms. Ha about HFH's intention to allow her to obtain a home even if her credit report was not corrected” and “do[es] not know if anyone else informed her.” (Wang Decl. ¶ 12.) HFH sent several emails to Vo in January, March, and April 2018 asking about Ha's credit report. (Ha Decl. ¶ 8; Wang Decl. ¶ 8, Ex. 7 at 3.) The emails “caused [Ha] great concern that [she] would not be able to obtain the loan for the house because [her] credit report was still wrong.” (Id.)
Around April 30, 2018, Wang prepared another dispute package for Ha to send to Equifax. (Wang Decl. ¶ 13.) The dispute package contained a dispute letter, CIC's tri-merge report from April 12, 2018, and a dispute form listing the false accounts. (Id.) Wang mailed that dispute package to Ha, who sent it on to Equifax in May 2018. (Id. ¶ 14; Ha Decl. ¶ 9.) Ha attests that, when she received the dispute package from Wang, it “caused [her] stress, and added to [her] concern that [she] would not be able to get a home.” (Ha Decl. ¶ 9.) Equifax did not respond to Ha's dispute, and Ha “became even more worried that [she] would not be able to obtain the loan from HFH.” (Id. ¶¶ 11-12.)
On August 8, 2018, Rosa Bouza emailed Vo, stating that Ha needed to come to HFH for a financial check-in. (Vo Decl. ¶¶ 6-7, Ex. 8 at 4.) That email “made [Ha] more worried [that she] would not get the home because [her] credit report was wrong.” (Ha Decl. ¶ 13.)
HFH obtained a fourth tri-merge report from CIC on August 14, 2018. (Sola Decl. ¶ 6, Ex. 4.) The report continued to reflect the same inaccuracies reported by Equifax, such as listing the applicant as Trung Ha, reporting an incorrect SSN and birth date, and listing several accounts that did not belong to Ha. (Id.)
On October 25, 2018, Wang informed Fuller that Equifax had not responded to Ha's last dispute letter. (Id. ¶ 16.) Wang stated that “the home is still being constructed so this could potentially affect [Ha's] home purchase if this is not cleared up.” (Id. ¶ 16.) At her deposition, Rosa Bouza testified that, as of November 2018, HFH was not concerned that resolution of any credit reporting issues would delay closing on Ha's home. (Rosa Bouza Dep. 56:23-25, 57: 1-2.)
5. 2019-2020: fifth tri-merge report and closing on house
HFH obtained the fifth tri-merge report from CIC on April 25, 2019. (Sola Decl. ¶ 7, Ex. 5.) As with the first four reports, Equifax continued to list Trung Ha as the applicant and to report an SSN, birth date, and accounts that did not belong to Ha. (Id.; Wang Decl. ¶ 17.)
Because of the inaccurate tri-merge reports that HFH kept receiving from CIC, Ha “felt very uncertain and concerned about whether [she] would get the home.” (Ha Decl. ¶¶ 15-16.) She attests:
My understanding was that HFH needed my credit report to be corrected so I could get the home, which is why they kept requesting my reports, kept working with me to try to get it corrected, kept asking me if it had been corrected, and wanted to see the letters from the credit reporting agency that I sent disputes to.(Id.) The problems with the CIC reports “made [Ha] frustrated and gave [her] headaches, which grew over time, and caused [her] to have trouble sleeping.” (Id.) Ha also contends that, but for the inaccuracies on her tri-merge reports from CIC, she “would have gotten the house sooner, would have paid it off sooner.” (Lawson Decl. ¶ 2, Ex. A; Ha Dep. 28:11-22, 32:19-22, 36:20.)
Construction on the home assigned to Ha was completed in spring 2019. (Rosa Bouza Dep. 43:6-12.) Despite the inaccuracies reported by Equifax in the CIC tri-merge reports, HFH notified Ha that she was pre-approved for a mortgage loan to purchase the home on June 18, 2019. (Lawson Decl. ¶ 7, Ex. F.) Ha took possession of her house that month. (Id. ¶ 2, Ex. A; Ha Dep. 13:9-12.)
LEGAL STANDARD
In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is proper “if the [moving party] shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” FED. R. CIV. P. 56. A factual issue is “genuine” when there is sufficient evidence such that a reasonable trier of fact could resolve the issue in the nonmovant's favor, and an issue is “material” when its resolution might affect the outcome of the action under the governing law.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact . . ., the court may . . . consider the fact undisputed.” FED. R. CIV. P. 56(e)(2). Furthermore, “Rule 56[(a)] mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. Therefore, if the nonmovant does not make a sufficient showing to establish the elements of its claims, the court must grant the motion. See In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (“non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor”).
DISCUSSION
CIC moves for summary judgment on Ha's claims against it on two grounds. First, CIC contends that the procedures it used to generate Ha's tri-merge reports were reasonable as a matter of law because they are consistent with applicable industry standards. (Def.'s Mot. Summ. J. at 4-8.) Second, CIC argues that Ha has failed to produce evidence that she experienced harm and that CIC was the cause of that harm. (Id. at 9-11.)
Ha counters that the reasonableness of CIC's procedures is a question of fact that must be submitted to a jury and that genuine disputes of material fact remain as to whether CIC caused her alleged harm. (Pl.'s Resp. to Mot. Summ. J. at 20-40.) The court addresses the parties' arguments as to each issue below.
A. Reasonable Procedures to Ensure Maximum Possible Accuracy of Consumer Reports
“The FCRA was the product of congressional concern over abuses in the credit reporting industry.” Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995) (citing St. Paul Guardian Ins. Co. v. Johnson (St. Paul), 884 F.2d 881, 883 (5th Cir. 1989)). Congress crafted FCRA to “to protect consumers from the transmission of inaccurate information about them” and “to establish credit reporting practices that utilize accurate, relevant, and current information in a confidential and responsible manner.” Id. (citing Kates v. Crooker Nat'l Bank, 776 F.2d 1396, 1397 (9th Cir. 1985) and St. Paul, 884 F.2d at 883); see also 15 U.S.C. § 1681(b) (requiring that “consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information”).
A consumer has a private right of action for negligent and willful noncompliance with any duty imposed by FCRA. 15 U.S.C. 15 U.S.C. §§ 1681o, 1681n. Here, Ha's claims under § 1681o and § 1681n are each premised on CIC's alleged violation of § 1681e(b), a bedrock provision of the FCRA that imposes the following obligation on consumer reporting agencies:
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). Ha contends that the procedures that CIC used to prepare its tri-merge reports were not reasonably calculated to assure maximum possible accuracy because they repeatedly reproduced data reported by Equifax that “clearly belonged to a different person” because it was “drastically different from the information that [CIC] had received from TransUnion and Experian.” (Am. Comp. ¶¶ 31-32.) CIC counters that the procedures it followed to generate the tri-merge reports were, as a matter of law, reasonably calculated to assure the maximum possible accuracy of those reports. (Def.'s Mot. Summ. J. at 4; Def.'s Reply to Mot. Summ. J. at 4, ECF No. 62.)
Notably, Ha does not allege that CIC was noncompliant with 15 U.S.C. § 1681i(f). That provision obliges resellers to conduct a “reinvestigation” upon “notice from a consumer of a dispute concerning the completeness or accuracy of any item of information contained in a consumer report” in order to “determine whether the item of information is incomplete or inaccurate as a result of an act or omission of the reseller.” Id. § 1681i(f)(2)(A). If that reinvestigation reveals that the inaccuracy is not attributable to the reseller's act or omission, the reseller must “convey the notice of the dispute, together with all relevant information provided by the consumer, to each consumer reporting agency that provided the reseller with the information that is the subject of the dispute.” Id. § 1681i(f)(2)(B)(ii). Because Ha does not allege that CIC failed to comply with § 1681i(f)'s reinvestigation duty, the court addresses that section only to note that § 1681e(b)'s duty to maintain reasonable procedures is “codified separately and distinctly from the duty to conduct reasonable reinvestigation following a consumer dispute of credit report information.” Saenz v. Trans Union, LLC, 621 F.Supp.2d 1074, 1081 (D. Or. 2007). The court “makes every effort not to interpret one provision of a statute in such a manner as to render another provision superfluous.” Id. (citing Chowdhury v. INS, 249 F.3d 970, 973 (9th Cir. 2001)).
CIC admits that, as a “reseller” of credit information, it is a consumer reporting agency that is subject to the reasonable procedure obligation of § 1681e(b). (Def.'s Mot. Summ. J. at 4; Def.'s Reply at 4). Case law supports that admission. See Ocasio v. CoreLogic Credco, LLC, Case No. 14-1585 (NLH/JS), 2015 WL 5722828, at *10-11 (D. N.J. Sept. 29, 2015) (“Section 1681e(b) sets requirements for consumer reporting agencies and does not carve out an exception for resellers.”); Waterman v. Experian Info. Solutions, Inc., Case No. CV 12-01400 SJO (PLAx), 2013 WL 675764, at *2 (C.D. Cal. Feb. 25, 2013) (“While it is true that the FCRA sets forth different requirements for resellers of information (for example, § 1681i[(f)]), nowhere does the FCRA set forth a different standard in § 1681e(b).”).
“In order to make out a prima facie violation under § 1681e(b), a consumer must present evidence tending to show that a credit reporting agency prepared a report containing inaccurate information.” Guimond, 45 F.3d at 1333 (citing Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1156 (11th Cir. 1991)). “The FCRA does not impose strict liability, however-an agency can escape liability if it establishes that an inaccurate report was generated despite the agency's following reasonable procedures.” Id. The reasonableness of the procedures and whether the agency followed them will be jury questions in the “overwhelming majority” of cases. Id.; see also Cairns v. GMAC Mortg. Corp., Case No. CIV 04-1840-PHX-SMM, 2007 WL 735564, at *4 (D. Ariz. March 5, 2007) (“[P]rior to sending a section § 1681e(b) claim to the jury, a credit reporting agency can usually prevail only if a court finds, as a matter of law, that a credit report was accurate.” (emphasis in original)).
1. inaccurate report
A consumer report is “inaccurate” if it contains information that is either “patently incorrect” or “materially misleading.” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009) (quotations marks omitted). “[A]t the very least, information that is inaccurate ‘on its face' is ‘patently incorrect.'” Drew v. Equifax Info. Servs., LLC, 690 F.3d 1100, 1108 (9th Cir. 2012).
Although Gorman and Drew involved claims under another provision of the FCRA (15 U.S.C. § 1681s-2(b)), the same standard for accuracy applies to claims under § 1681e(b). See Lewis v. Trans Union, LLC, Case No. 1:13-cv-00229-LJO, 2013 WL 3456999, at *3 (E.D. Cal. July 9, 2013) (relying on Gorman standard in deciding a claim under § 1681e(b)); see also Starkey v. Experian Info. Solutions, Inc., 32 F.Supp.3d 1105, 1109 (C.D. Cal. 2014) (“The FCRA, therefore, requires that this Court apply the same [] definition of ‘inaccurate' to a report prepared by a reseller that it would apply to a report prepared by any other credit reporting agency.”).
Ha has presented evidence tending to show that the tri-merge reports prepared by CIC contained patent inaccuracies. Specifically, Ha has shown that CIC sold tri-merge credit reports about her that contained her brother's name and an SSN, birth date, and accounts belonging to another individual. (Sola Decl. ¶¶ 4-7, Exs. 2-5; Ha Decl. ¶¶ 4, 9, 14.) “[T]he inaccuracy of that information was obvious on the face of her credit reports” because only Equifax-and not Experian or TransUnion-listed Trung Ha as the applicant and reported the other incorrect information. See Ocasio v. CoreLogic Credco, LLC, Case No. 14-1585 (NLH/JS), 2015 WL 5722828, at *8 (D. N.J. 2015) (tri-merge report contained patent inaccuracies where it contained derogatory accounts belonging to plaintiff's grandmother); Rogue v. Credco, Case No. 1:19-cv-00260-BLW, 2020 WL 7061745, at *8 (Dec. 2, 2020) (tri-merge report contained “information that by its existence showed that there was a potential inaccuracy” where one nationwide CRA reported a bankruptcy that was not reported by the other two nationwide CRAs). Those inconsistencies were sufficient to notify CIC that there was, at minimum, a potential inaccuracy in the tri-merge reports from on January 23, 2018, April 12, 2018, August 14, 2018, and April 25, 2019. Therefore, Ha has made a prima facie showing that CIC violated § 1681e(b) by preparing a tri-merge reports that contained patent inaccuracies.
2. reasonableness of procedures
Once a plaintiff has presented evidence that a report contains patently inaccurate or misleading information, the burden of proof as to the unreasonableness of the CRA's procedures remains with the plaintiff. Saenz v. TransUnion, LLC, 621 F.Supp.2d 1074, 1080 (D. Or. 2007) (granting summary judgment for consumer reporting agency where plaintiff's claim relied solely on “facially credible” information received from creditors). However, that burden is “so minimal that in the ‘overwhelming majority of cases' a jury could infer the unreasonableness of a defendant's procedures from the fact that those procedures permitted an inaccuracy to occur.” Id. Thus, “[q]uestions regarding the reasonableness of procedures adopted by credit reporting agencies to ensure maximum accuracy in its reports, and questions as to whether the agency actually followed such procedures will generally be decided by a jury in the overwhelming majority of cases under the FCRA.” Guimond, 45 F.3d at 1133; Cairns, 2007 WL 735564, at *5.
CIC concedes that the reasonableness of a credit reporting agency's procedures is normally a question of fact for a jury but contends that this action is an exception to the “overwhelming majority of cases,” for two reasons. First, CIC asserts that its procedures are reasonable as a matter of law because they comply with industry standards. (Def. Mot. Summ. J. at 4-5.) Second, CIC argues that, in its role as a reseller, it has no duty to review or reconcile inconsistent credit data reported by TransUnion, Experian, and Equifax. (Id.)
CIC's primary argument is that industry standards establish that its procedures are reasonable as a matter of law. As evidence of those standards, CIC offers the report of its proposed expert witness, Terry Clemans. (Lawson Decl. ¶ 12, Ex. K, Expert Witness Report of Terry W. Clemans (Clemans Rep.) at 1.) Clemans serves as executive director of the National Consumer Reporting Agency (NCRA) and has more than 30 years of experience with that agency. (Id.) Drawing from that experience, he opines that “CIC followed federal regulations and industry standards required of a [reseller CRA] with respect to Ms. Ha's report.” (Id. at 7.)
Ha challenges the sufficiency of Clemans' expert report under Federal Rule of Evidence 702 and Federal Rule of Civil Procedure 26(a)(2). (Pl.'s Resp. at 35-36.) Therefore, before addressing Clemans' report in detail, the court must consider Ha's evidentiary objections.
Under FRE 702, the “trial court acts as a gatekeeper for expert testimony to ensure it ‘rests on a reliable foundation and is relevant to the task at hand.'” Sullivan v. Multnomah Cnty., Case No. 3:19-cv-00995-JGZ, 2023 WL 2537822, at *2 (D. Or. Mar. 16, 2023) (quoting Daubert v. Merril Dow Pharmaceuticals, 509 U.S. 579, 597 (1993)). As a general rule, “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” FED. R. EVID. 704(a). However, “an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” Hangarter v. Provident Life & Accident Ins., Co., 373 F.3d 998, 1016 (9th Cir. 2004) (emphasis in original). That limitation exists because “instructing the jury as to the applicable law is the distinct and exclusive province of the court.” Id.
FRE 702 provides that a witness qualified by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Relatedly, FRCP 26(a)(2) mandates that “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under [FRE] 702, 703, or 705.” FED. R. CIV. P. 26(a)(2)(a). That disclosure “must be accompanied by a written report-prepared and signed by the witness-if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” FED. R. CIV. P. 26(a)(2)(B). In addition to providing a “complete statement of all opinions the witness will express and the basis and reasons for them,” the report must contain “the facts or data considered by the witness in forming them” and “any exhibits that will be used to summarize or support” those opinions. FED. R. CIV. P. 26(a)(2)(B)(ii) and (iii).
Ha argues that portions of Clemans' report should be excluded because they contain legal conclusions and are not reliably supported by facts, data, and exhibits, namely Clemans' opinions that resellers and nationwide CRAs have “different standard[s] for accuracy in the FCRA,” that resellers “should be exempt” from the maximum possible accuracy requirement of § 1681e(b), and that resellers do not “prepare” consumer reports. (Pl's Br. at 36; Clemans Rep. at 2-5.) Ha also notes that, although Clemans' report relies on various documents that apparently provide evidence of Fannie Mae's standards and procedures, those documents are not included as exhibits and the report lacks adequate citation to identify those authorities. Given those inadequacies, Ha argues that there is no way to assess the basis, reliability, and validity of Clemans' opinions.
Clemans' report is not supported by any exhibits and, although it includes various footnote citations, the court was unable to access most of those authorities despite diligent effort. (See Decl. of Kelly Jones ¶ 5, ECF No. 61 (“After a diligent search on the internet (using a Google search) I was unable to locate or access these documents or information from the citations proffered by Mr. Clemans in his report.”).)
As the proponent of the challenged expert report, CIC has the burden of showing that the proposed testimony is admissible under Rule 702. Sullivan, 2023 WL 2537822, at *2 (citing Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007)). Despite that burden, CIC declined to respond to any of Ha's arguments about the sufficiency of Clemans' report. (See generally, Def.'s Reply). The court finds merit in Ha's objections and rejects the challenged portions of Clemans' report-specifically the legal conclusions previously identified by Ha. See Nationwide Transport Finance v. Cass Info. Sys., Inc., 523 F.3d 1051, 1059 (9th 2008) (upholding trial court's order excluding expert testimony as to how the Uniform Commercial Code applied to the facts of case.) However, “[d]isputes on the ‘lack of textual authority' in an expert opinion [] generally go to the weight, not the admissibility, of the expert testimony.” Sullivan, 2023 WL 2537833, at *5 (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)). The court therefore treats the remaining portions of Clemans' report as admissible for the purpose of summary judgment only and addresses CIC's arguments related to those portions below.
Turning to the remaining content of the report, Clemans opines that industry standards- those set by the U.S. Department of Housing and Urban Development (HUD), the Federal National Mortgage Association (Fannie Mae), and the Federal Home Loan Mortgage Corporation (Freddie Mac)-require resellers such as CIC to use a “fully automated, nearly-instantaneous process for assembling tri-merge reports and delivering them to end-users.” (Def.'s Mot. Summ. J. at 6; Clemans Rep. at 3-4.) Clemans asserts that Fannie Mae's standards mandate that resellers prepare and deliver “99% of all New Credit Report Requests made during each calendar month” within “an elapsed time of ten (10) seconds or less,” or else face fines starting at $3,000 per month. (Clemans Rep. at 3.) He also states that the data reflected in tri-merge reports “must be passed on ‘exact' and ‘unchanged' from what was obtained from the ‘nationwide' CRAs.” (Id.)
Clemans focuses on “Fannie Mae rules since they are the largest of the technology providers” that he has “had the most direct contact with.” (Clemans Rep. at 3.) He states, without providing further detail, that Freddie Mac “has very similar regulations to Fannie Mae, and HUD utilizes both of these automated underwriting systems to power [its] automated loan underwriting via HUD Total Scorecard.” (Id.)
CIC argues that Clemans' report provides “realistic context on what is possible and reasonable to expect from resellers in the consumer reporting industry.” (Def.'s Reply at 5 (emphasis in original).) It explains that, within the 10 second time-constraint imposed by Fannie Mae, a reseller
must receive a consumer[']s identifying information from the end-user, connect to the nationwide CRAs, obtain machine-readable credit data from each of the nationwide CRAs, allow time for a credit score to be calculated on the data from each of the nationwide CRAs, combine the machine-readable credit data into a single, human-readable tri-merge report, and deliver the tri-merge report to the end user in the format required by one of almost 100 different loan origination systems.(Def.'s Mot. Summ. J. at 6.) CIC argues that, given the industry-imposed time constraints, those procedures should be considered reasonable as a matter of law and contends that Ha's § 1681e(b) claims are “premised on the notion that CIC should have done that impossible.” (Id. at 7.) Ha counters that, even accepting as true Clemans' statement about Fannie Mae's standards, those standards are “nothing more than a contractual obligation of CIC” and thus insufficient to establish that CIC's procedures were reasonable as a matter of law. (Pl.'s Resp. at 32).
The court agrees with Ha. “Properly understood, Guimond stands for the proposition that where-and only where-evidence of inaccuracy permits the conclusion that a consumer reporting agency's accuracy-assuring procedure are unreasonable, such evidence is minimally sufficient to create a question of fact for jury determination.” Saenz, 621 F.Supp.2d at 1080 (citing Guimond, 45 F.3d at 1333). Ha has presented evidence that CIC's procedures caused it to generate and deliver multiple tri-merge reports reflecting patent inaccuracies reported by Equifax. (Sola Decl. ¶¶ 4-7, Exs. 2-5.) Even accepting that industry standards compel CIC to use a fully automated and near-instantaneous process for generating tri-merge reports, a factual question remains as to whether patent errors like the one in this case-a social security number and birth date in one of the three reports that is different from the other two-can or cannot be captured and addressed by CIC's automated procedure or some other procedure. At oral argument, CIC asserted that, given the high incidence of miskeyed social security numbers or other errors in credit reports, it is not in a position to make an informed decision about errors and it would be impractical for a small company like it to do so. Whether that view is correct cannot be decided as a matter of law. Additionally, industry standards may only be one of other factors that drives what is considered a reasonable procedure. Put differently, CIC's view that its procedures that comply with the industry standards set by HUD, Fannie Mae, and Fannie Mac are objectively reasonable is not enough to put this dispute outside of the “overwhelming majority of cases,” Guimond, 45 F.3d at 1333, for which a jury decides whether a CRA's procedures were reasonable.
As secondary grounds for summary judgment, CIC argues that, in its role as a reseller, it is only required to accurately convey the information reported by the nationwide CRAs and that, in discharging that role, it maintains and follows procedure to assure that it accurately merges and assembles into its reports the information that it has received from TransUnion, Experian, and Equifax. (Def.'s Mot. Summ. J. at 5.) CIC specifically denies that it had any obligation to review or reconcile the inconsistent information that it receives from the nationwide CRAs for accuracy. (Id.)
The court disagrees with CIC and instead agrees with district courts throughout the country that have rejected arguments that, to comply with § 1681e(b), “a reseller is only required to accurately reproduce the information furnished to it by other credit bureaus.” See Rogue, 2020 WL 7061745, at *9-10 (collecting cases). Those courts have “found that, as a matter of law, a reseller can be subject to liability under § 1681e(b) for failing to follow reasonable procedures to assure the maximum possible accuracy of the information it provides to a consumer.” Id. (citing Perez v. TransUnion, LLC, 526 F.Supp.2d 504, 509 (E.D. Pa. 2007) (finding that even though reseller obtained its information from CRAs, there remained a question of fact as to whether it followed reasonable procedures to ensure the accuracy of its reports) (abrogated on other grounds by Cortez v. TransUnion, LLC, 617 F.3d 688 (3d Cir. 2010)); Waterman, 2013 WL 675764, at *5-6 (rejecting argument that resellers are “subject to a different, and more practical, set of requirements than those applicable to the traditional CRAs”).
CIC argues that those cases are distinguishable because the courts did not have occasion to consider “evidence of the role of resellers and the constraints placed on them” by industry standards from entities such as Fannie Mae. (Def.'s Mot. Summ. J. at 3.) CIC expends little effort actually distinguishing those cases from the facts presented in this action, however. And even assuming the cases are distinguishable on that basis, this court has already considered CIC's evidence of the constraints imposed by industry standards and explained why that evidence does not entitle CIC to summary judgment. See Cairns, 2007 WL 735564, at *5 (“Determining whether the inconsistencies [in a consumer report] constitute evidence of the employment of unreasonable procedures for preventing inaccuracies is a question of fact and therefore is not for this Court to decide.”).
Accordingly, because genuine issues of material fact remain as to whether CIC followed “reasonable procedures to assure maximum possible accuracy of the information” in its tri-merge reports about Ha, its motion for summary judgment should be denied on that basis.
B. Harm and Causation
Ha alleges that, as a result of CIC's noncompliance with § 1681e(b), she has suffered emotional distress, headaches, frustration, and mental anguish and experienced delays in purchasing a house from HFH. (Am. Comp. ¶¶ 41-48.) CIC counters that Ha has failed to provide evidence to support her alleged damages or establish a causal link between those alleged damages and CIC's conduct. (Def.'s Mot. Summ. J. at 9-11.)
1. damages
The FCRA provides for compensation in the form of actual damages and attorney fees if a consumer reporting agency negligently fails to comply with any of its statutory obligations. 15 U.S.C. §1681o. A consumer can also recover punitive damages for willful noncompliance. 15 U.S.C. § 1681n. The Ninth Circuit has interpreted “actual damages” to include damages for denial of credit, loss of property, and emotional distress and humiliation. Guimond, 45 F.3d at 1333 (citing Johnson v. Dep't of Treasury, I.R.S., 700 F.2d 971, 984 (5th Cir. 1983) (mental anguish included as an element of recovery in FCRA claims)). “A denial of credit, rather than mere credit inaccuracies, is not a prerequisite to recovery under FCRA.” Rothery v. TransUnion, Case No. CV-04-312-ST, 2006 WL 1720498, at *9 (D. Or. Apr. 6, 2006) (citing Guimond, 45 F.3d at 1333).
The Ninth Circuit has not addressed the type of evidence necessary to support an award of emotional distress damages under FCRA. Id. However, in Acton v. Bank One Corporation, a court within the District of Arizona considered that evidentiary burden and noted that the Ninth Circuit “has stated in other contexts that ‘while objective evidence requirements may exist in other circuits, such a requirement is not imposed by case law in the Ninth Circuit, or the Supreme Court.'” 293 F.Supp.2d 1092, 1101 (D. Ariz. 2003) (quoting Zhang v. Am. Gem. Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir. 2003) (holding in a discrimination action that the plaintiff's “testimony alone is enough to substantiate the jury's award of emotional distress damages”) (ellipses and citations omitted)). In line with that reasoning, the Acton court characterized the evidentiary burden for emotional damages under FCRA as “low” and found that the plaintiff's “own subjective account and the declaration of her mother” were sufficient evidence of emotional distress to preclude summary judgment on that issue. Id.; see also Saenz, 621 F.Supp.2d at 1085-86 (applying “low” evidentiary standard); Rothery, 2006 WL 1720498, at *9. The court likewise concludes that the “low” evidentiary burden applies to a FCRA claim.
Ha relies primarily on her personal declaration as evidence that she experienced emotional distress and mental anguish because of the inaccuracies in her tri-merge reports. She attests that “the problems with the reports made me frustrated, gave me headaches, which grew over time, and caused me to have trouble sleeping.” (Ha Decl. ¶¶ 15-16.) Ha further states that the inaccurate reports made her feel “very uncertain and concerned about whether [she] would get the home” from HFH, causing her significant stress and worry. (Id. ¶¶ 9, 11-12, 15-16.)
CIC challenges the sufficiency of Ha's declaration and argues that the court should give it “little weight” because “it is written in English, a language [Ha] testified she does not speak or read, and there is no evidence that it was translated or explained for her.” (Def's Reply at 2.) To support that contention, CIC cites a case from the District of Hawaii, in which the court considered whether to strike the English-language declaration of a plaintiff that did not speak English. Matsuda v. Wada, 101 F.Supp.2d 1315, 1323 (D. Haw. 1999). After noting that the plaintiff had testified during his deposition that the declaration had been translated to him, the court considered guidance from the Sixth Circuit and held that the plaintiff's English-language declaration was admissible as submitted. Id. (citing Collazos-Cruz v. United States, Case No. 965452, 1997 WL 377037, at *3 (6th Cir. July 3, 1997) (admitting English-language declaration even absent evidence that it was translated for the Spanish-speaking plaintiff)).
CIC argues that the circumstances surrounding Ha's declaration are distinguishable from those in Matsuda because there is no evidence that Ha's declaration was ever translated into her native language. (Def.'s Reply at 2.) However, “[n]othing in [28 U.S.C.] § 1746” -the federal statute governing unsworn declarations- “requires that a non-English speaking affiant provide evidence that the declaration was translated into the affiant's native language before signing it.” Collazos-Cruz, 1997 WL 377037, at *3 (citing 28 U.S.C. § 1746)). And there is ample evidence that Ha's daughter, Vo, frequently acted as a translator for Ha. (Ha Decl. ¶ 3; Vo Decl. ¶ 2;
Wang Decl. ¶ 14.) Thus, the court declines to strike Ha's declaration and finds that the declaration serves as sufficient evidence, under Acton, from which a jury reasonably could conclude that Ha experienced emotional distress and mental anguish because of the inaccuracies in her tri-merge reports. See Bradshaw v. BAC Home Loan Services LP, 816 F.Supp.2d 1066, 1076 (D. Or. 2011) (plaintiffs' description of the emotion distress they both suffered due to their credit denials was sufficient to create a question for the jury).
CIC also argues that it is entitled to judgment as a matter of law because Ha has not presented evidence that her credit score and reputation were damaged as a result of the inaccurate tri-merge reports. (Def.'s Reply at 8.) Because it is well-settled that denial of credit is not a prerequisite to recovery under the FCRA, Guimond, 45 F.3d at 1333, that argument is unavailing.
2. causation
“[A] plaintiff must be ‘able to show specific damage incurred by [the defendant's conduct].” Hastings v. Citizens Bank, Case No. 6:17-cv-01901, 2020 WL 1550749, at *4 (D. Or. Apr. 1, 2020). “‘[C]ausation is a question of fact, [but] may be decided as a matter of law if, under undisputed facts, reasonable minds could not differ.'” Id. (quoting Iolab Corp. v. Seaboard Sur. Co., 15 F.3d 1500, 1506 n.4 (9th Cir. 1994)). A plaintiff does not need to disprove every other possible cause of her harm. Pac. Shores Props., Ltd. Liab. Co. v. City of Newport Beach, 730 F.3d 1142, 1168 (9th Cir. 2013). Rather, “plaintiffs can demonstrate causation by proving that the defendant's wrongful conduct was a ‘substantial factor' in bringing about the harm in question.” Id.
CIC argues that Ha has not presented any evidence showing that its tri-merge reports caused delays in her application for HFH's housing program. (Def.'s Reply at 6.) In support, CIC notes that Ha was accepted into the housing program in December 2016 and approved for a loan in June 2019-in spite of the uncorrected inaccuracies in her tri-merge report. (Lawson Decl. ¶¶ 6-7, Exs. E, F.) CIC also points to testimony from HFH representative Rosa Bouza as evidence that construction delays were the “main cause” of any delays in Ha's housing application. (Rosa Bouza Dep. 35:1-4; 56:23-25; 57:1-2 (Q. “So would it be fair to say at that point in time in November 2018, [HFH] was not concerned that the resolution of any credit reporting issues would delay closing on Ms. Ha's home? A. Yes, that's correct.”)).) CIC contends that, because Ha was accepted into the housing program and because delays in the housing process can be attributed to other causes than the tri-merge reports, there can be no genuine issues of fact about whether its conduct a causal role in Ha's alleged harm.
The court declines to reach that position. Viewing the record in the light most favorable to Ha, a jury could reasonably find that inaccuracies in CIC's tri-merge reports played a “substantial factor” in delaying Ha's homeownership application process. Notably, testimony from both Rosa Bouza and Wang suggest that, despite its ultimate decision to accept Ha to the program even with inaccurate reports, HFH expended great effort to assist Ha with correcting those reports. (Rosa Bouza Dep. 26:5-25, 27:1-3 (testifying that inaccuracies on Ha's October 2016 tri-merge report did not delay acceptance to the housing program because “[w]e knew we had time to help her fix it”); Wang Dep. 14:16-21 (describing internal confusion at HFH regarding whether inaccurate reports disqualified Ha from housing program). A jury could reasonably find that those efforts caused delays in the application process. Moreover, Ha attests that “HFH told me that because of the information on the [tri-merge reports], I could not get a home or loan from HFH,” but does not present further evidence of economic damages. (Ha Decl. ¶ 3.) Given that evidence, genuine issues of material fact exist as to whether CIC's tri-merge reports were a substantial factor in delaying Ha's housing application. Those factual questions must be resolved by a jury.
CONCLUSION
For the reasons stated above, CIC's motion for summary judgment (ECF No. 51) should be DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a District Judge. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.