IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Ann Marie Attridge §

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Plaintiff Civil Action No.:

 5:20-cv-00205-OLG

v

Colonial Savings, F.A. and 

Trans Union, LLC

Defendants

Plaintiff’s Motion to Reconsider Dkt. No. 99 Order Dismissing Case 

for Lack of Subject Matter Jurisdiction and Memorandum in Support

_________________________________________

Introduction and Summary

Plaintiff moves this Court to reconsider the portion of its September 

28, 2023, Memorandum Opinion and Order (Doc. 99) (hereinafter “the 

Opinion”) dismissing this case for lack of subject-matter jurisdiction on the 

basis that plaintiff’s emotional distress damages were insufficient to 

establish concrete injury under TransUnion LLC v. Ramirez, 141 S. Ct. 

2190, 210 L. Ed. 2d 568 (2021). As shown below, TransUnion itself 

recognized that materialized emotional distress can create such concrete 

injury, and the Opinion’s rejection of that Supreme Court ruling and its 

failure to adhere to the same conclusion in Perez v. McCreary, Veselka, Bragg

Case 5:20-cv-00205-OLG Document 101 Filed 10/20/23 Page 1 of 7
& Allen, P.C., 45 F.4th 816 (5th Cir. 2022), constitute manifest legal error 

warranting relief under Rule 59(e).

Furthermore, this Court’s earlier Order of December 8, 2021 (Doc. 

51) denied defendant’s motion for summary judgment claiming that plaintiff 

suffered no actual damages, and expressly held that plaintiff presented 

sufficient “evidence of her mental distress to present a genuine issue of 

material fact to be presented to the jury.” (Doc. 51, p. 13). This Court’s 

own finding confirms plaintiff’s standing here and mandates reinstatement 

of this case.

Argument of Law

A. The Opinion rejects binding legal precedent and must therefore 

be reconsidered. 

Rule 59(e) provides for reconsideration of a judgment that is founded 

on a “manifest error of law.” See e.g. In re Deepwater Horizon, 785 F.3d 986, 

991–92 (5th Cir. 2015). The Opinion qualifies for such treatment because it 

misapplied the applicable ruling in TransUnion when it misread footnote 7 

to conclude that the Supreme Court “took ‘no position on whether or how 

such an emotional or psychological harm could suffice for Article III 

purposes.’” (Doc. 99, p. 9). The Opinion misread footnote 7 because its 

reference to “such” emotional or psychological harm was specifically 

discussing only the risk of future harm, not the already-materialized harm 

Case 5:20-cv-00205-OLG Document 101 Filed 10/20/23 Page 2 of 7
presented in this case. 141 S. Ct. at 2210-11 (emphasis added). The sentence 

attached to footnote 7 stated that “the mere risk of future harm, standing 

alone, cannot qualify as a concrete harm—at least unless the exposure to 

the risk of future harm itself causes a separate concrete harm.” Id.

(emphasis in original). And the sentence preceding the “no position” 

language in the footnote states in full: “For example, a plaintiff ’s 

knowledge that he or she is exposed to a risk of future physical, monetary, 

or reputational harm could cause its own current emotional or psychological 

harm.” Id. (emphasis added).

The Plaintiff’s evidence of emotional distress does not relate at all to 

future harm and instead pertains exclusively to her damages suffered 

concurrently with and proximately caused by defendant’s false credit 

reporting, as the Court’s earlier summary judgment Order clearly explains. 

In contrast to the conditions posited by the Supreme Court in its footnote 7 

discussion, plaintiff is not complaining of “the mere risk of future harm, 

standing alone,” and the Opinion’s interpretation of footnote 7 to 

categorically deny plaintiff jurisdiction to redress her emotional distress 

injury that had materialized before she filed suit is objectively erroneous.

Significantly, the Fifth Circuit has confirmed plaintiff’s position as to 

the limitation of TransUnion in the following extended excerpt from Perez:

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Second, Perez maintains that MVBA's letter subjected her to a 

material risk of financial harm and that that exposure qualifies as a 

concrete injury. Specifically, Perez claims that her receipt of the 

letter subjected her to a risk that she might accidentally pay her timebarred debts. This theory, too, is foreclosed by TransUnion.

Remember: A plaintiff always must be able to point to a concrete 

injury to bring suit. And if a risk hasn't materialized, the plaintiff 

hasn't yet been injured. TransUnion held that merely being subjected 

to a risk of future harm cannot support a suit for damages. 141 S. Ct. 

at 2210–11. A plaintiff can sue for damages if the risk materializes or 

causes a separate injury-in-fact, such as emotional distress. Id. But 

those are suits based on those injuries, not the risk itself. Id.

45 F.4th at 824.1

The Opinion’s reliance on footnote 7 of TransUnion to find

plaintiff’s claims of harm insufficient is misplaced and legally erroneous.

The Supreme Court’s restriction of concrete injury – to the context of

future harm that may or may not materialize – cannot apply to this case

where the plaintiff’s damages accrued before she filed this litigation. The

Opinion’s citation to footnote 7 as the foundation of its holding is precisely

the type of manifest error of law that requires reconsideration.

1 The Fifth Circuit had reached the same conclusion under pre-TransUnion law 

that “emotional harm satisfies the ‘injury in fact’ requirement of constitutional 

standing.” Rideau v. Keller Indep. Sch. Dist., 819 F.3d 155, 168-69 (5th Cir. 2016).

Case 5:20-cv-00205-OLG Document 101 Filed 10/20/23 Page 4 of 7
B. Substantial emotional distress recognized by federal 

jurisprudence to support an award of actual damages is concrete 

injury that confers Article III jurisdiction. 

The Opinion summarily dismissed without analysis the ruling in 

Perez that a “plaintiff can sue for damages if the risk materializes or causes a 

separate injury-in-fact, such as emotional distress,” with a single conclusory 

declaration that the “statement was dicta.” Notwithstanding this rejection 

of the teaching of the Fifth Circuit on the precise question presented here, 

what is particularly important is that the statement cannot be ignored as 

dicta. The purported dictum is actually the Perez Court’s essential 

reasoning on the proposition presented and decided: materialized distress. 

Accordingly, this statement is not the type of gratuitous observation that 

can be rejected as obiter dictum but shows that the Perez panel made the 

statement after careful deliberation in support of its own reasoning to 

resolve the standing question before it. The Fifth Circuit has expressly held 

that such elucidation of an opinion’s reasoning is not dictum. Env't Texas 

Citizen Lobby, Inc. v. ExxonMobil Corp., 47 F.4th 408, 420 n.3 (5th Cir. 

2022) (“A statement is not dictum if it...constitutes an explication of the 

governing rules of law.”); see also, Autobahn Imports, L.P. v. Jaguar Land

Rover N. Am., L.L.C., 896 F.3d 340, 346 (5th Cir. 2018). The Opinion’s 

disregard and summary dismissal of the Perez precedent is accordingly a 

manifest error of law that requires reconsideration.

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Apart from the Opinion’s error in rejecting binding Circuit authority 

is the fact that contemporaneous emotional distress proximately caused by a 

statutory violation can qualify as Article III concrete injury. Courts agree 

that tenuous, conclusory allegations of emotional distress do not rise to that 

level. See, e.g., Pierre v. Midland Credit Mgmt., Inc., 29 F.4th 934, 939 (7th 

Cir. 2022). But the type of severe emotional distress that this Court already 

held could support a jury’s award of compensatory damages here is the type 

of concrete and particularized harm that confers Article III standing. This 

conclusion was confirmed by the Eleventh Circuit when it applied this rule 

to another credit reporting case, also involving a misreported bankruptcy, 

and concluded that the emotional distress claim was supported by 

“sufficient evidence both to establish injury for Article III standing 

purposes, and to raise a jury question about damages on the merits." Losch

v. Nationstar Mortg. LLC, 995 F.3d 937, 944 (11th Cir. 2021).

C. The earlier summary judgment order here confirms the quantum 

of evidence necessary for Attridge to sustain standing. 

This Court’s summary judgment Order of December 8, 2021 (Doc. 

51, pp. 11-13), correctly establishes that plaintiff has introduced legally 

sufficient evidence to support a jury’s award of actual emotional distress 

damages under the exacting federal standard, citing, inter alia, Cousin v. 

Trans Union Corp., 246 F.3d 359, 371 (5th Cir. 2001). Since that quantum of 

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evidence necessarily also establishes Article III standing, plaintiff need add 

nothing more to demonstrate that reconsideration is warranted, and that 

plaintiff has established her standing to pursue this litigation. Indeed, this 

Court’s earlier summary judgment ruling controls the identical issue here in 

the Article III setting pursuant to the law of the case doctrine. See, e.g., 

Agostini v. Felton, 521 U.S. 203, 236, 117 S. Ct. 1997 (1997) (“Under this

doctrine, a court should not reopen issues decided in earlier stages of the

same litigation.”).

Conclusion

Based on the foregoing, Plaintiff Ann Marie Attridge respectfully 

requests that the Court reconsider and withdraw its order dismissing 

Plaintiff’s case for lack of subject matter jurisdiction. 

Dated: October 20, 2023 Respectfully Submitted,

/s/William M. Clanton

William M. Clanton

Texas Bar No. 24049436

Law Office of Bill Clanton, P.C.

926 Chulie Drive

San Antonio, Texas 78216

Phone: (210) 226-0800

Fax: (210) 338-8660

Email: bill@clantonlawoffice.com

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