# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued February 10, 2005

Decided July 6, 2005

Before

HON. DANIEL A. MANION, Circuit Judge

HON. TERENCE T. EVANS, Circuit Judge

HON. DIANE S. SYKES, Circuit Judge

No. 04-2185

Roland Kuehling,

Plaintiff-Appellant

,

v.

Trans Union, LLC,

Defendant-Appellee. Appeal from the United States

District Court for the

Eastern District of Wisconsin.

No. 02 C 1148

Lynn Adelman,

Judge

.

O R D E R

Roland Kuehling was denied credit when attempting to purchase an automobile.

He took issue with several items on the credit report maintained by Trans Union, LLC,

(“Trans Union”) and demanded a reinvestigation pursuant to the Fair Credit Reporting

Act, 15 U.S.C . § 1681i(a)(1)(A) (“FCRA”). Trans Union looked into the matter,

concluded that nothing was amiss, and sent its report to Kuehling. But Kuehling never

received the report because Trans Union mailed it to the wrong address. So Kuehling

sued Trans Union, asserting several violations of the FCRA, 15 U.S.C. §§ 1681 et seq

.

Seventeen months of contentious litigation ensued. The district court eventually

entered summary judgment in favor of Trans Union, concluding that Kuehling had

failed to produce any evidence that his credit report was inaccurate and, therefore, all

of his claims failed. We affirm. UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53No. 04-2185 Page 2

I. Background

After Kuehling’s credit application was denied by an automobile dealer, he sent a

fax to Trans Union disputing fiv e entries on his credit report and requesting a reinvestigation and deletion of the disputed entries. The fax was sent on October 3,

2002; Trans Union began its reinvestigation of the disputed entries on October 7, 2002,

and completed its work on November 1, 2002. Trans Union concluded upon

reinvestigation that none of the specified credit report entries were inaccurate. Trans

Union did mo

dify a few other entries on Kuehling’s report, but there has been no

dispute between the parties over those modifications. On November 1, 2002, Trans

Union mailed Kuehling’s updated credit report to him at the wrong addr ess and he

never received it. Kuehling claims he sent Trans Union a “reminder” letter on

November 13 that included his correct address, but Trans Union denies any knowledge

of that second letter and Kuehling has no evidence that he actually mailed it.

On November 25, 2002, Kuehl ing filed suit against Trans Union in the

Unit ed States District Court for the Eastern District of Wisconsin, alleging the

following violations of the FCRA, 15 U.S.C. §§ 1681 et seq .: (1) Trans Union failed to

conduct a re investigation within thirty days as required by § 1681i(a)(1)(A); (2) the

reinvestigation was inadequate; and (3) Trans Union’s mistake in mailing the updated

credit report to the wrong address violated § 1681i(a)(6)(A), which requires that the

credit agency notify a consumer of the results of a reinvestigation within five business

days of its completion. Kuehling also asserted a defamation claim under Wisconsin

law.

P rotracted disputes over discovery and summary judgment briefing stymied the

proceedings in the district court; these were handled with patience by United States

District Court Judge Lynn Adelm an. Fifteen months into the litigation and two

months before trial was set to commence, Kuehling filed a motion to amend his

complaint. The district court denied the motion on the grounds that the proposed

amendments were known to Kuehling for many months (some since before the suit was even filed), that Kuehling offered no explanation for the delay, and that granting the

amendment so late in the litigation would prejudice Trans Union and inconvenience

the court.

The court he ld a status conference on April 7, 2004, at which it ruled on Trans

Union’s motion for summary judgment. Though provided with notice of the conference,

neither Kuehling nor his counsel bothered to attend. The court held that Kuehling had

not produced any evidence suggesting that Trans Union f ailed to conduct a

reinvestigation within thirty days of his request, as requir ed by § 1681i(a)(1)(A).

Evidence in the form of Trans Union employee affidavits established that the

r einvestigation was commenced on October 7, 2002, within days of Kuehling’s October 3

request, and was completed on November 1, 2002. Because Kuehling had produced no

evidence disputing this chronology, the court granted summary judgm ent for Trans

Union on Kuehling’s first claim.No. 04-2185 Page 3

As to Kuehling’s second claim, the court held that Kuehling had failed to produce

any admissible evidence suggesting th at his credit report contained inaccuracies or

that Trans Union’s reinvestigation was inadequate. The court noted that Kuehling had

not made it clear whether he was bringing this claim under § 1681i(a)(1)(A), which

specifies a credit agency’s duties u pon a consumer’s request for reinvestigation, or

§ 1681e(b), which requires credit agencies to “follow reasonable procedures to ensure

maximum possible accur acy” in credit reports. Either way, the court held that the

evidence was insuffic

ient to create a triable issue of fact. In this regard, the court

noted that the sum total of Kuehling’s “evidence” was an unauthenticated letter from

one of his creditors dated April 7, 2003, five months after Trans Union completed its

reinvestigation of Kuehling’s credit repor t. The letter contains a statement by the

creditor indicating that an entry from Kuehling’s credit report would be deleted due to

discrepancies the creditor had found in an account. The district court disregarded the

letter, conclud

ing that it was inadmissible because it was submitted without a

supporting affidavit verifying its authenticity. Alternatively, the court concluded that

the letter, even if admissible, would not have created a genuine issue of fact for trial

because it only identified a problem with Kuehling’s credit report in April 2003, five

months after

the Trans Union reinvestigation that was the subject of the lawsuit.

The district court also dismissed Kuehling’s claim that Trans Union violated

§ 1681i(a)(6)(A) by failing to notify him of the results of the reinvestigation within five

days of completion. Trans Union admitted that it mailed the results of its

reinvestigation to an incorrect address and that by doing so had failed to comply with

the statute. But the court noted there is civil liability under FCRA only for willful or

negligent failures to comply with the law. See 15 U.S.C. §§ 1681n, 1681o. The court

held that although a jury could infer negligence from the mailing mistake, Kuehling

failed to produce any evidence that he had been harmed. Referring back to the lack of

evidence of inaccuracies in the credit report, the court concluded that if the

reinvestigation report had arriv ed at the correct address within the statutorily

mandated time frame, nothing would have been different.

Finally, the court dismissed Kuehling’s state-law defamation claim on the basis of

the same deficiencies i n the evidence. Without evidence of any inaccuracies in the

credit report, Kuehling could not satisfy the first element of a Wisconsin defamation

claim—namely, the existence of a false statement made by the defendant.

Kuehling moved for reconsideration on the basis of newly discovered evidence, in

particular a copy of his credit report dated March 31, 2004, in which one of the accounts

he had disputed was deleted. The court denied the motion, concluding that any

evidence concerning the state of Kuehling’s credit report in early 2004 was immaterial

to his claims against Trans Union, all of which related to events that occurred more

than a year earlier. Kuehling appealed.No. 04-2185 Page 4

II. Discussion

Our review of a grant of summary judgment is de novo. Gordon v. United Airlines,

Inc.

, 246 F.3d 878, 885 (7th Cir. 2001). We apply the same methodology as the district

court. Summary judgment will be granted if there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. F E D

. R. C IV

. P. 56(c);

Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). We view all the facts and draw all

reasonable inferences therefrom in favor of the nonmoving party. S ee Franzoni v.

Hartmarx Corp.

, 300 F.3d 767, 771 (7th Cir. 2002). However, to survive summary

judgment, the nonmoving party may not rely on mere allegations; he must present

specific facts to show that a genuine issue of material fact exists. C elotex

, 477 U.S. at

322-23.

The first issue on appeal is the district court’s denial of Kuehling’s motion to amend

his complaint, filed two months before the trial was set to begin and well over a year

after the suit was initiated. Leave to amend a complaint should be freely granted

when justice so requires, but the court need not permit an amendment when there is

undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, or when

the amendment would be futile. Foman v. Davis

, 371 U.S. 178, 182 (1962); Bethany

Pharmacal Co. v. QVC, Inc

., 241 F.3d 854, 860-61 (7th Cir. 2001). We review a district

court’s decision to deny leave to amend for an abuse of discretion. B ethany Pharmacal

, 241 F.3d at 861. The district court denied Kuehling’s motion to amend because of

undue and unexplained delay and prejudice to Trans Union, given that it was filed so

late in the litigation. These are proper grounds for denial; we see no abuse of

discretion here.

As for the court’s summary ju dgment ruling, Judge Adelman’s analysis of

Kuehling’s FCRA and defamation claims was correct in every respect. Kuehling has

brought forward no evidence to suggest that Trans Union failed to conduct a reinvestigation within thirty days of his request; summary judgment dismissing his

claim under § 1681i(a)(1)(A) was entirely appropriate.

In addition, Kuehling has produced no evidence tending to establish that his credit

report was inaccurate. The district court disregarded the April 2003 letter from one

of Kuehling’s creditors as inadmissible because it was not submitted with an affidavit

attesting to its authenticity; this was not an abuse of discretion. S ee Scott v. Edinburg

, 346 F.3d 752, 759-60 (7th Cir. 2003); F ED

. R. C IV

. P. 56(e). In the alternative, the court

concl uded that the letter, even if considered, did not create an issue of fact for trial

because it pertained to a problem in Kuehling’s credit report five months after the

reinvestigation in question in this case. Without evidence of some inaccuracy in the

Trans Union report or reinvestigation, Kue hling cannot establish that Trans Union

violated the FCRA—either § 1681e(b) or § 1681i(a)(1)(A). “In the absence of evidence

that [the defendant] disclosed incorrect information

. . . to a third party, [plaintiff]

cannot eve n show that it violated the Act’s reinvestigation requirement.” W antz v. Experian Info. Sys ., 386 F.3d 829, 834 (7th Cir. 2004).No. 04-2185 Page 5

The same analysis applies to Kuehling’s claim that Trans Union violated the

FCRA’s notice provision, 15 U.S.C. § 1681i(a)(6)(A). While Trans Union has admitted

sending Kuehling’s updated report to the incorrect address, Kuehling has no evidence

that this mistake injured him. As the district court properly noted, if the

reinvestigation report had been sent to the correct address, nothing would have been

different. A suit for actual damages under FCRA requires a showing that the plaintiff

suffered harm. “Without a causal relation between the violation of the statute and the

loss of credit, or some other harm, a plaintiff cannot ob tain an award of ‘actual

damages.’” Crabill v. Trans Union, L.L.C. , 259 F.3d 662, 664 (7th Cir. 2001). Kuehling

has not produced evidence o f a loss of credit or other harm causally linked to the

mailing mistake.

Finally, Kuehling’s defamation claim collapses f or essentially the same reasons.

Because he has not produced evidence that his credit report contained any

inaccuracies, he cannot get past even the first element of a defamation claim. Under

Wisconsin law, the elements of a defa mation claim are: “(1) a false statement, (2)

comm unicated by speech, conduct, or in writing to a person other than the person

defamed, and (3) the communication is unprivileged and is defamatory, that is, tends

to harm one’s reputation so as to lower him or her in the estimation of the community

or to deter third persons from association or dealing with him or her.” H art v. Bennet

, 672 N.W.2d 306, 317 (Wis. Ct. App. 2003). Kuehling has failed to produce evidence of

a false statement by Trans Union.

Kuehling complains that his ability to adequa tely respond to Trans Union’s

summary judgment motion was hampere d by what he characterizes as the district

court’s mishandling of various discovery disputes and requests for discovery sanctions;

he claims that the court “endors[ed] Trans Union’s untimely tomfoolery” with respect

to these discovery disputes and otherwise allowed itself to be “hoodwinked” by Trans

Union’s counsel. Discovery disputes and requests for sanctions under Rule 37 of the

Federal Rules of Civil Procedure are addressed to the sound discretion of the district

court and are review

ed only for abuse of discretion. M elendez v. Ill. Bell Tel. Co.

, 79F.3d 661, 670 (7th Cir. 1996). Kuehling’s rambling criticism of the district court’s

management of the di scovery process does not sufficiently identify an abuse of

discretion on the judge’s part—certainly not one that would have made any difference

given the substantial weaknesses in Kuehling’s c ase. As we have noted,

Judge Adelman handled this unnecessarily difficult lawsuit with patience, g iving

Keuhling more than ample opportunity to make his case for a trial. We see no basis

upon which to find an abuse of discretion.

For the foregoing reasons, the judgment is A FFIRMED

.