Page 1 of 12

 

1

The allegations in this complaint were sworn under penalty of perjury on March 1, 2002. The original

complaint was filed on January 25, 2002.

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RODRIQUEZ PORTER,

 Plaintiff,

vs. 3:03cv595/MCR/MD

TRANS UNION LLC, 

 Defendant.

REPORT AND RECOMMENDATION

This case filed pursuant to 15 U.S.C. § 1681b(2) and 1681n is now before the

courtuponthedefendant’s motion for summary judgment, supporting memorandum

and attachments (doc. 48). The pro se plaintiff filed an answer to defendant’s

motion for summary judgment (doc. 60), the defendant filed objections to plaintiff’s

summary judgment evidence (doc. 63) and plaintiff filed a response thereto. (Doc.

65). Upon review of the submissions of the parties, it is the opinion of the

undersigned that the defendant’s motion for summary judgment should be granted.

Background

In his amended complaint (doc. 21) (henceforth “complaint”),1 plaintiff alleges

that in January of 2003, he sent $9.00 to the defendant Trans Union LLC “Trans

Union” for a copy of his credit report and score. Plaintiff states that when he did not

receive a response from Trans Union after 3 months, he sent a single letter of

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 1 of 12
Page 2 of 12

Case No: 3:02cv25/RV/MD

inquiry, to which the defendant failed to respond. Because he did not receive a copy

of his report, plaintiff claims to have suffered from “mental stress and anguish from

an increased, almost phobic, feeling that his identify may actually have been stolen.”

(Doc. 21 at 3). In this action, plaintiff seeks to recover the cost of the credit report

he never received, the costs associated with filing this case, compensation for the

mental stress and anguish he contends he suffered as a result of the defendant’s

failure to supply the requested credit report, and punitive damages, for a total of

$195,252.75. 

Defendant has moved for summary judgment, claiming that plaintiff can not

establish that it violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et

seq. Plaintiff opposes the motion.

Summary Judgment Standard

On a motion for summary judgment, this court must evaluate the record in the

light most favorable to plaintiff as the nonmovant and grant defendant’s motion only

if the record demonstrates that there is no genuine issue of material fact and that

defendants are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986); Lee v. Ferraro, 284

F.3d 1188, 1190 (11th Cir. 2002); F.R.C.P. 56. Summary judgment is improper “[i]f a

reasonable fact finder could draw more than one inference from the facts, and that

inference creates a genuine issue of material fact.” Cornelius v. Highland Lake, 880

F.2d 348, 351 (11th Cir. 1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d

785 (1990). An issue of fact is “material” if it might affect the outcome of the case

under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986). It is “genuine” if the record taken as a

whole could lead a rational trier of fact to find for the non-moving party. Id.; see also

Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.

1348, 1356, 89 L.Ed.2d 538, 552 (1986). Finally, it is improper for the district court to

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 2 of 12
Page 3 of 12

Case No: 3:02cv25/RV/MD

make credibility determinations on a motion for summary judgment. Rollins v.

TechSouth, Inc., 833 F.2d 1525, 1531 (11th Cir. 1987).

Legal Analysis

Plaintiff maintains that his complaint arises under 15 U.S.C. § 1681b(2) and 15

U.S.C. § 1681n. Title 15 U.S.C. § 1681b(a)(2), to which plaintiff presumably intends

to refer, provides that any “consumer reporting agency may furnish a consumer

report . . . in accordance with the written instructions of the consumers to whom it

relates.” Defendant suggests that plaintiff’s claim actually relates to § 1681g, which

pertains to disclosure of credit reports and files to consumers. This section

identifies the information that must be produced to consumers, and provides the

parameters for the summary of rights that must be included with disclosures.

Title 15 U.S.C. § 1681n governs civil liability for willful noncompliance. It

provides:

 (a) In general

Any person who willfully fails to comply with any requirement imposed under

this subchapter with respect to any consumer is liable to that consumer in an

amount equal to the sum of--

(1)(A) any actual damages sustained by the consumer as a result of the

failure or damages of not less than $100 and not more than $1,000; or

(B) in the case of liability of a natural person for obtaining a consumer

report under false pretenses or knowingly without a permissible

purpose, actual damages sustained by the consumer as a result of the

failure or $1,000, whichever is greater;

(2) such amount of punitive damages as the court may allow; and

(3) in the case of any successful action to enforce any liability under

this section, the costs of the action together with reasonable attorney's

fees as determined by the court.

The defendant maintains that it did not violate any provision of the FCRA.

Plaintiff asserts that the defendant’s failure to respond to his request for credit

disclosure was in violation of the Act. Title 15 U.S.C. § 1681g(a) obligates credit

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 3 of 12
Page 4 of 12

 

2Although plaintiff specifically cites the statutory provision dealing with willful violations, in other portions

of this complaint he refers to Trans Unions’s “willful, callous, negligent and recklessly indifferent treatment of

the plaintiff.” Thus, the court incorporates the statutory provision dealing with negligence.

Case No: 3:02cv25/RV/MD

reporting agencies upon request and subject to section 1681h(a)(1) to clearly and

accurately disclose “[a]ll information in the consumer’s file at the time of the

request.” Section 1681h(a)(1) provides that consumer reporting agencies shall

require that the consumer furnish proper identification before the report is provided.

Thus, to show a violation of the FCRA, plaintiff must establish the following:

(1) Trans Union maintained a file on him (15 U.S.C. § 1681g);

(2) Plaintiff requested disclosure of this file, accompanied by proper

identification (15 U.S.C. § 1681h) and proper payment. (15 U.S.C. 1681j(f); 67 Fed.

Reg. 2002 WL 31814297);

(3) Trans Union failed to provide the requested disclosure (15 U.S.C. § 1681g);

(4) Trans Union’s failure to provide the disclosure was either willful or

negligent (15 U.S.C. § 1681n or o)2;

(5) Plaintiff was actually damaged and the damage was caused by Trans

Union. 

Defendant contends that plaintiff’s claim must fail and it is entitled to

summary judgment for myriad reasons. First, Trans Union has verified that it does

not maintain a credit file on the plaintiff. (Doc. 48, exh. A, ¶ 16). Defendant Trans

Union explains that this could be due to a number of factors, including plaintiff’s

incarceration or a decision to abstain from obtaining credit. (Doc. 48, exh. A, ¶ 17).

Absent the existence of such a file, there was nothing for the defendant to produce.

Cf. Ben-Hur v. Equifax Information Services, Inc., 976 F.Supp. 795, 806 (E.D. Wis.

1997) (credit reporting agency did not violate 15 U.S.C. § 1681g for not providing

consumer a report it no longer had). And, “[a] consumer reporting agency is not

required to create new files on consumers for whom it has no file.” Davis v. Equifax

Information Services, 346 F.Supp. 2d 1164, 1172 (N.D. Al. 2004). Plaintiff’s claim in

this case is not that he received an inaccurate report or that inaccurate information

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 4 of 12
Page 5 of 12

Case No: 3:02cv25/RV/MD

was reported to a third party, rather plaintiff’s claim is that the defendant did not

provide him with a copy of his credit file. Plaintiff does not dispute defendant’s

assertion that it maintained no such file. He does complain that the defendant

should have more promptly responded to his inquiries.

With respect to the fact of plaintiff’s request for disclosure, the defendant

does not dispute that plaintiff requested his credit file, or that he included the proper

payment. However, it argues that plaintiff failed to provide proper identification and

failed to cooperate with Trans Union’s attempts to obtain additional identifying

information so it could search for the file. The declaration of Eileen Little, a

Consumer Relations Group Manager for Trans Union, indicates that based on the

information provided by the plaintiff with his request for a credit disclosure, Trans

Union could not locate a credit file for the plaintiff. (Doc. 48, exh. A, ¶ 4). Therefore,

defendant sent a letter to plaintiff requesting that he provide proof of his address,

but received no response. (Doc. 48, exh. A1). On May 12, 2003, plaintiff sent Trans

Union another letter requesting a copy of his credit file. Even based on the new

information, Trans Union could not locate a credit file. (Doc. 48, exh. A ¶ 6). It sent

a letter to plaintiff on May 15, 2003 explaining that it needed additional verifying

information, and this letter was returned by the U.S. postal service on June 5, 2003.

(Id. at ¶ 7).

Plaintiff notified Trans Union of a change in his address on January 8, 2004.

(Doc. 48, exh. A3). On January 14, 2004, Trans Union sent plaintiff yet another letter

at the new address advising that it had not been able to locate a credit file based on

the information plaintiff had provided and advising that it would recheck its records

if plaintiff would provide additional verifying information. (Id., exh. A6). Plaintiff

notified the defendant that suit had been filed in this court, (id., exh. A5), and after

receiving a copy of plaintiff’s application to proceed without prepayment of fees and

affidavit, (id., exh. A8), Trans Union sent plaintiff another letter on February 18, 2004

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 5 of 12
Page 6 of 12

 

3Plaintiff’s interrogatory responses indicate that he received the letter but chose not to respond because

it had arrived over a year after his initial request and after he had filed this case. (Doc. 48, exh. C at 5).

Case No: 3:02cv25/RV/MD

requesting verification of plaintiff’s address. (Id., exh. A9). Again, it received no

response.3 

On August 16, 2004, a letter was sent to plaintiff from the office of counsel for

Trans Union, requesting that plaintiff provide his social security number and former

address. (Doc. 48, exh. B1). Plaintiff finally responded by letter dated August 20,

2004. When Trans Union received this additional information, it reviewed its files,

verifying without a doubt that it does not maintain a credit file for the plaintiff.

Therefore, on November 30, 2004, defendant, through counsel, attempted to refund

plaintiff’s money. (Doc. 48, exh. B4). Plaintiff responded, indicating that a refund of

$9.00 was not sufficient to voluntarily dismiss the case, although he would be open

to discussing a “reasonable” settlement. (Id., exh. B5). He returned the defendant’s

$9.00 check. Trans Union argues that it is entitled to summary judgment because

it acted reasonably in handling plaintiff’s request, given the circumstances with

which it was presented. 

The FCRA is not a strict liability statute. Sarver v. Experian Info. Solutions,

390 F.3d 969, 971 (7th Cir. 2004); Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d

1151, 1156, 1161 (11th Cir. 1991); Davis v. Equifax Information Services, 346 F.Supp.

2d 1164, 1171 (N.D. Al. 2004). Although there do not appear to be any cases directly

on point involving a reporting agency’s inability to locate a consumer’s credit file,

an underlying requirement of “reasonableness” runs through other cases involving

the duties of credit reporting agencies. “A credit reporting agency is not liable

under the FCRA if it followed ‘reasonable procedures to assure maximum possible

accuracy,’ but nonetheless reported inaccurate informationinthe consumer’s credit

report.” Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994); Cahlin, 936

F.2d at 1156 (agency escapes liability if it establishes that an inaccurate report was

generated by following reasonable procedures); see also Davis, 346 F.Supp.2d at

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 6 of 12
Page 7 of 12

Case No: 3:02cv25/RV/MD

1171 (applicable standard of care under FCRA is how a reasonably prudent person

would have acted under the circumstances), citing Thompson v. San Antonio Retail

Merchants Assoc., 682 F.2d 509, 513 (5th Cir. 1982). Trans Union argues that the

record reflects that it attempted several times to obtain additional information from

the plaintiff so it could locate his file, and, having been unsuccessful, it could not

determine that it had no file on plaintiff or offer him a refund until regular

correspondence was established, which only happened post suit and through

counsel. 

Plaintiff claims that whether the defendant sent the letters of inquiry in

question is a material fact in dispute in light of his assertion that he did not receive

said letters. He suggests that the letters were not actually created on the dates

reflected on the letters, or in the alternative that they were not actually sent. Eileen

Little’s declaration, which was sworn under penalty of perjury, contradicts plaintiff’s

conclusory assertion, at least with respect to recent fabrication. She states that

these records “were made at or near the time of the occurrence of the matters set

forth in the attached records by, or from information transmitted by, a person with

knowledge of those matters...” and that they “were made in the course of regularly

conducted business activities of Trans Union and as a regular practice of Trans

Union.” (Doc. 48, exh. A, ¶ 19). Her declaration also states that the letters were

“sent.” The reasonableness of defendant’s actions does not include a duty to exert

control over the United States Postal Service to track whether seemingly routine

letters it mails to consumers were received. 

Even assuming for sake of argument that plaintiff was correct that the

documents were created after the fact or never mailed to the plaintiff, or the

defendant’s actions were in some other way unreasonable, which the court does not

find, he cannot establish his entitlement to damages. As noted above, the FCRA

creates a private right of action against credit reporting agencies for the negligent

or willful violation of any duty imposed under the statute. 15 U.S.C. §§ 1681n &

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 7 of 12
Page 8 of 12

Case No: 3:02cv25/RV/MD

1681o. The reporting agency is liable for “actual damages” sustained, including the

costs of the action, attorneys fees, and where appropriate, punitive damages.

However, proof of damage is an essential element of an action under the FCRA.

Casella v. Equifax Credit Information Services, 56 F.3d 469, 473 (2nd Cir. 1995) (citing

Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1160-61 (11th Cir. 1991);

see also Pettus v. TRW Consumer Credit Services, 879 F.Supp. 695, 697-98 (W.D.

Tex. 1994) (citing Hyde v. Hibernia National Bank, 861 F.2d 446, 447 (5th Cir. 1988),

cert. denied, 491 U.S. 910, 109 S.Ct. 3199, 105 L.Ed.2d 706 (1989); Cahlin v. General

Motors Acceptance Corp., 936 F.2d 1151, 1160-61 (11th Cir. 1991)(plaintiff has

affirmative duty to come forward with evidence of actual damage); Zeller v. Samia,

758 F.Supp. 775, 778 n. 1 (D.Mass.1991) (plaintiff must show that damages were

proximately caused by violation of the Act)). In this case, plaintiff claims four

different kinds of damages: the $9.00 fee he sent for a copy of the report; mental

stress and anguish; reimbursement for legal research, photocopies and recopying

of pages; and punitive damages. 

The defendant is permitted by statute to charge a reasonable fee for a credit

disclosure. 15 U.S.C. §§ 1681g, 1681j. This fee is currently set at $9.00. After

verifying that it maintained no credit file on the plaintiff, the defendant attempted to

return the fee to him. As noted above, plaintiff returned the check to the defendant.

Therefore, because defendant attempted to unconditionally refund the plaintiff’s

money, to the extent plaintiff was “damaged” by the loss of the $9.00 fee, his

damages are of his own doing. 

Under some circumstances, a plaintiff is entitled to recover damages for

mental stress and anguish for violations of the FCRA. Cousin v. Trans Union Corp.,

246 F.3d 359, 369-371 (5th Cir. 2001). To recover such damages, a plaintiff must show

more than mere feelings of frustration, anger or irritation. Id. (Citing Patterson v.

P.H.P. Healthcare Corp., 90 F.3d 927, 938 (5th Cir. 1996)). And, there must be record

evidence of the emotional distress. To recover damages for such an intangible loss

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 8 of 12
Page 9 of 12

Case No: 3:02cv25/RV/MD

requires a degree of specificity which may include corroborating testimony or

medical or psychological evidence in support of the award. Cousin, 246 F.3d at 371;

see also Spector v. Equifax Inf. Services, 338 F.Supp.2d 378, 386 (D.Conn. 2004)

(noting that only plaintiff’s deposition testimony even marginally corroborated his

claim). In Spector, the defendant had taken plaintiff’s credit file “off line” after it was

sued by him. The Spector plaintiff twice wrote to Equifax after he was denied credit,

requesting copies of the credit report, but did not receive a response. He claimed

as damages both the postage incurred in making the request and “emotional

distress.” The emotional distress about which plaintiff Spector testified in his

deposition was decidedly minimal. He essentially stated that he had some sleepless

nights, anxiety and continuing annoyance over the problem. 338 F.Supp. 2d at 383-

84. The Spector court referred to the Second Circuit’s decision in Casella, supra.

It noted that court’s conclusion that “corroborated affidavit testimony alleging

severe emotional distress from knowing one's credit report contains inaccurate and

damaging credit information failed to raise a genuine issue of material fact because,

absent evidence of dissemination of the inaccurate informationtopotential creditors

or others, there was no causal link between the alleged emotional distress and the

alleged FCRA violations, i.e., preparing of an inaccurate credit report and refusal to

delete the false information or include a statement of dispute after being notified by

plaintiff of the inaccuracy.” Spector, 338 F.Supp.2d at 386 (citing Casella, 56 F.3d

at 474-75). The harm in Casella, disclosure of inaccurate credit information without

the consumer being afforded the opportunity to respond, was the same as that

feared in Spector. In Spector, as in the instant case, the consumer only suspected

that his report contained inaccurate information. The court concluded that only

upon release of the inaccurate information is the harm feared by the consumer

potentially realized and thus actionable. 338 F.Supp.2d at 386. In the case at bar,

plaintiff sought a copy of his credit report to ascertain the status of his credit as it

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 9 of 12
Page 10 of 12

 

4According to the Department of Corrections website, plaintiff’s tentative release date is not until

December of 2010. www.dc.state.fl.us/ActiveInmates.

 

5Additionally, the court notes that in Spector, the plaintiff had been denied credit and thus had reason to

believe there were inaccuracies in his report. In this case there is nothing in the record to suggest that

plaintiff’s fears of identify theft were anything other than the product of an overactive imagination. 

Case No: 3:02cv25/RV/MD

would relate to his plans to open a business upon his release from prison.4 When

he did not promptly receive a copy of the report, plaintiff states that he was

“wondering whether he had been the victim of identity theft” and felt like Trans

Union had ignored his requests because he was black and incarcerated, which made

him feel like a non-person. (Doc. 60 at 8). He also indicates that he felt humiliation.

(Doc. 60, exh. 1 at 2). Therefore, in this case, there not only was no release of

inaccurate information, but also, because of the absence of a credit file, there was

no information to release. And finally, there was no individual or entity (other than

the plaintiff) authorized and waiting to receive the information. Plaintiff does not

allege that he was denied credit, see Thompsons v. San Antonio Retail Merchants

Assoc., 682 F.2d 509, 513 (5th Cir. 1982), or that he was prevented from making plans

for after his release. Therefore, the allegedly improper failure to disclose cannot be

causally linked to the plaintiff’s claimed emotional distress due to speculative

concerns over identity theft.5

Plaintiff has also sought to recover fees for time spent on legal research and

time spent recopying his complaint at the rate of $20.00 per hour. Pro se litigants

are not entitled to recover fees for the time spent litigating their cases. See, e.g.,

Celeste v. Sullivan, 988 F.2d 1069, 1070 (11th Cir. 1992) (pro se litigant not entitled to

recover attorneys fees under the Equal Access to Justice Act) (citing Kay v. Ehrler,

499 U.S. 432, 111 S.Ct. 1435, 1436-37, 113 L.Ed.2d 486 (1991) (pro se litigants who

is not an attorney may not recover attorneys fees under 42 U.S.C. § 1988); Cofield

v. City of Atlanta, 648 F.2d 986, 987-88 (5th Cir.1981) (no fees for pro se litigants

under § 1988); Clarkson v. IRS, 811 F.2d 1396, 1397 n. 2 (11th Cir.1987) (no fees for

pro se litigants under Privacy Act)); Dumdei v. Certified Financial Planner Bd. Of

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 10 of 12
Page 11 of 12

Case No: 3:02cv25/RV/MD

Standards, Inc., 1999 WL 787402 (N.D. Tex. 1999) (citing Barrett v. Bureau of

Customs, 651 F.2d 1087 (5th Cir. 1981); Cofield v. City of Atlanta, 648 F.2d 986 (5th

Cir. 1981)); see also Gaines v. Bausch & Lomb Pharmaceutical Corp., 1994

WL652835 (M.D. Fl. 1994) (litigant may not recover for attorneys fees he has not

incurred or in personal time spent litigating a case). Therefore, plaintiff would not

be entitled to recover such damages.

Finally, absent evidence of a willful violation, which he has failed to present,

plaintiff is not entitled to punitive damages. Plaintiff has presented only abject

speculation in support of his contention that there was any attempt on the part of the

defendant to willfully violate the FCRA.

In sum, plaintiff has failed to establish as a matter of law that the defendant

violated the FCRA or that he is entitled to any damages, and the defendant is entitled

to summary judgment.

Accordingly, it is respectfully RECOMMENDED:

That defendant’s motion for summary judgment (doc. 48) be GRANTED, and

that the clerk be directed to enter judgment in favor of the defendant and close the

file.

At Pensacola, Florida, this 25

TH day of March, 2005. 

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 11 of 12
Page 12 of 12

Case No: 3:02cv25/RV/MD

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within ten days after being served a copy thereof. A copy of objections shall be

served upon all other parties. Failure to object may limit the scope of appellate

review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case 3:03-cv-00595-MCR-MD Document 68 Filed 03/25/05 Page 12 of 12