FILED

United States Court of Appeals

Tenth Circuit

February 7, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAY BIRMINGHAM,

Plaintiff - Appellant,

v. No. 09-4146

EXPERIAN INFORMATION

SOLUTIONS, INC.; VERIZON

COMMUNICATIONS; VODAFONE

GROUP, PLC., a joint venture, d/b/a

Verizon Wireless; CELLULAR INC.

NETWORK; UTAH RSA 6;

VERIZON POWER PARTNERS;

WASATCH UTAH RSA NO. 2, d/b/a

Verizon Wireless; VERIZON

WIRELESS UTAH, operating under

the name and style of Verizon

Wireless; VERIZON WIRELESS

(VAW),

Defendants - Appellees, 

TRANSUNION, 

 Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. NO. 2:06-CV-00702-BSJ)

Ronald W. Ady, Salt Lake City, Utah, for Plaintiff - Appellant.

Meir Feder, (Dawn Elizabeth McFadden, with him on the briefs), Jones Day,

Cleveland, Ohio, for Defendant - Appellee, Experian Information Solutions, Inc.;
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and Steve K. Gordon, Durham, Jones & Pinegar, Salt Lake City, Utah, for

Defendants - Appellees Verizon Communications, Inc.; Vodafone Group, Plc;

Cellular Inc. Network Corporation; Utah RSA 6, Limited Partnership; Verizon

Power Partners, Inc., Wasatch Utah RSA No. 6, Limited Partnership; Verizon

Wireless Utah, L.L.C.; and Verizon Wireless (VAW), L.L.C.

Before LUCERO, HARTZ, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

Raymond Birmingham was the victim of identity theft. Verizon Wireless

closed two fraudulent accounts opened in his name, but he disputed charges to his

legitimate accounts and closed those as well. Verizon then reported his failure to

pay the charges to the three major credit-reporting agencies—Experian

Information Solutions, Inc. (Experian); Equifax; and TransUnion. Birmingham

disputed these reports and was dissatisfied with the agencies’ responses. 

Claiming violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681,

et seq., and Utah law, he filed suit in the United States District Court for the

District of Utah against the three agencies and several entities (the Verizon

Defendants) that he believed to be responsible for the allegedly incorrect reports

to the agencies. On this appeal Birmingham challenges the district court’s grant

of summary judgment to Experian and the dismissal of his claims against the

Verizon Defendants without granting him leave to add a defendant. We have

jurisdiction under 28 U.S.C. § 1291.
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With respect to Experian, the sole issue before us is whether Birmingham is

entitled to liquidated and punitive damages under the FCRA because Experian

intentionally or recklessly failed to investigate adequately his dispute with

Verizon. We hold that the district court properly granted summary judgment on

the issue because of the absence of evidence of intentional or reckless

misconduct. 

The issues concerning the Verizon Defendants are whether the entity that

reported Birmingham’s failure to pay his telephone charges was a defendant in

this case and, if not, whether the district court properly denied his motion to

amend his complaint to name that entity. As Birmingham learned several months

into the litigation, the entity that informed the credit-reporting agencies of his

failure to pay his phone bill was Cellco Partnership (Cellco). Cellco, however,

does not appear in the caption of Birmingham’s initial or amended complaints. 

Birmingham contends that Cellco was nevertheless a party or, in the alternative,

that the district court should have added Cellco as a defendant because he moved

to add Cellco the day before the final pretrial conference and because it was a

necessary party under Federal Rule of Civil Procedure 19(a). We reject these

contentions and hold that the district court properly dismissed the Verizon

Defendants and properly denied Birmingham’s motion to amend his complaint to

add Cellco as a defendant. 
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Because there is very little overlap in the facts relevant to the dispositions

of the claim against Experian and the claims against the Verizon Defendants, we

will set forth the facts in the sections devoted to these distinct claims. We begin

with the claim against Experian.

I. CLAIM AGAINST EXPERIAN

Birmingham alleges that Experian violated § 1681e(b) and § 1681i(a)(1) of

the FCRA. Section 1681e(b) states: “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). Under § 1681i(a)(1), if a

consumer notifies a consumer reporting agency of a dispute concerning the

completeness or accuracy of information in the consumer’s file, 

the agency shall, free of charge, conduct a reasonable reinvestigation

to determine whether the disputed information is inaccurate and

record the current status of the disputed information, or delete the

item from the file . . . before the end of the 30-day period beginning

on the date on which the agency receives the notice of the dispute

from the consumer or reseller.

Id. § 1681i(a). Section 1681o(a) provides that a consumer is entitled to actual

damages for a negligent violation of the FCRA. See id. at § 1681o(a). Under

§ 1681n(a), however, the consumer need not prove actual damages if the violation

is willful, but may recover punitive damages and statutory damages ranging from

$100 to $1,000. See id. at 1681n(a). A “willful” violation is either an intentional
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violation or a violation committed by an agency in reckless disregard of its duties

under the FCRA. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57–58 (2007). 

Recklessness is measured by “an objective standard: action entailing an

unjustifiably high risk of harm that is either known or so obvious that it should be

known.” Id. at 68 (internal quotation marks omitted). “[A] company subject to

FCRA does not act in reckless disregard of it unless the action is not only a

violation under a reasonable reading of the statute’s terms, but shows that the

company ran a risk of violating the law substantially greater than the risk

associated with a reading that was merely careless.” Id. at 69. 

 Birmingham’s opening brief on appeal challenges the district court’s ruling

that he had not established actual damages. But he abandoned that challenge at

oral argument. His counsel surprised the court by stating: “We didn’t raise the

issue of actual damages with Experian.” And when asked: “And your damages

claim, then, is essentially you had proof of willfulness, and therefore you’re

entitled to statutory damages regardless of whether you put on evidence of actual

damages?” he responded, “Correct.” Accordingly, the sole issue before us is

whether Experian was entitled to summary judgment on the claim that it willfully

violated the FCRA.

“We review de novo the district court’s grant of summary judgment.” 

Fredericks v. Jonsson, 609 F.3d 1096, 1098 (10th Cir. 2010). Summary judgment 

“should be rendered if the pleadings, the discovery and disclosure materials on
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file, and any affidavits show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2) (2009); cf. Fed. R. Civ. P. 56(a) (effective Dec. 1, 2010) (“The court

shall grant summary judgment . . .”). “[W]e must view the facts in the light most

favorable to the nonmoving party.” Fredericks, 609 F.3d at 1097. 

Birmingham has presented little evidence regarding what Experian knew

and when it knew it. The record shows the following: 

In December 2003, Birmingham discovered that fraudulent charges had

been made to one of his credit cards. He filed a statement of identity theft with

the police department in Reno, Nevada (where he lived at the time), and sent a

letter to the Las Vegas, Nevada, police department. He also reported the fraud to

Experian by telephone and requested that it add a security alert to his file. 

Experian sent him a letter (incorrectly addressed to the name “Raymond

Burnham” but listing the proper Reno address) dated December 1, 2003, stating

that a fraud security alert had been added to his personal credit report, suggesting

that he consider adding a fraud-victim statement that would remain on his credit

file for seven years, and detailing the information needed to add such a statement

to his file. Birmingham does not recall providing that information to Experian,

and Experian has no record of receiving such information from him. 

On January 12, 2004, Birmingham reported to Verizon Wireless, with

whom he maintained two mobile telephone accounts, that two fraudulent
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telephone accounts had been opened in his name and that fraudulent charges had

appeared on one of his legitimate accounts, apparently as the consequence of the

same identity theft. Although Verizon Wireless terminated the fraudulent

accounts the next day, Birmingham alleges that it failed to credit him for the

fraudulent charges incurred on the legitimate account. After Birmingham failed

to make any payments on his legitimate accounts for several months, Verizon

closed those two accounts and reported the unpaid charges to Experian, Equifax,

and TransUnion.

Birmingham complained to Equifax and TransUnion; and both investigated

his disagreement with Verizon and received verification of the information from

Verizon. But there is a dispute of fact regarding when and how Birmingham

complained to Experian, which conducted no investigation. In a sworn

declaration Birmingham asserted that he had first “disputed [with Experian] the

Verizon Wireless charges in writing on January 21, 2005 . . . .” Aplt. App.,

Vol. III at 1065. In deposition testimony, however, he said that he had no

recollection of sending anything in writing to Experian in January 2005. Instead,

he stated that he “disputed online,” id., Vol. I at 438, with all three credit

agencies, and that he did so approximately every six months; yet he had no

records of doing so (he said that these online communications could not be

printed out) and could not provide the date, week, or even month of any

communication to Experian. The only document from Experian for the relevant
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time period was a letter dated January 21, 2005, produced by Experian in

discovery; and it indicated that he had not contacted Experian. It stated that

Experian had “added an Initial Security Alert to [Birmingham’s] credit file as

requested on [his] behalf by one or more of the nationwide consumer credit

reporting agencies.” Id., Vol. II at 454 (emphasis added). The letter told him

what information he would need to provide to place an extended fraud alert on his

credit file and to block information on his file that he believed resulted from

identity theft. The required information included “appropriate proof of [his]

identity” (such as his social security number) and an identity-theft report,

including “a copy of a report you have filed with a federal, state, or local law

enforcement agency.” Id. at 455. Birmingham, however, never sent any creditreporting agency a copy of the Reno police report or his letter to the Las Vegas

police. 

A few months later, on July 20, 2005, Birmingham did send a letter to the

three credit-reporting agencies. The letter provided his name, his current address

in Utah, and a contact telephone number. It requested a free credit report and the

removal from his credit file of derogatory information provided by Verizon. 

Experian responded a week later in a letter stating that it could not honor his

request because it was “unable to access [his] report using the identification

information [he] provided.” Id. at 459. The letter explained that for a person to

access his own credit report, Experian requires the person’s full name, including
1

Birmingham argues that we should disregard the affidavits of Hughes and

Centanni. He gives several reasons. First, he asserts that Experian did not

disclose that Centanni was a potential witness and provided no contact

information for Hughes. But the record is to the contrary. Next, he argues that

we should disregard some of their statements because Experian failed to include

documentary evidence in support of them. He relies on the since-revised version

of Federal Rule of Civil Procedure 56 applicable at the time of the district-court

proceedings. Rule 56(c)(1) stated: “If a paper or part of a paper is referred to in

an affidavit [supporting or opposing summary judgment], a sworn or certified

copy must be attached to or served with the affidavit.” But Birmingham does not

indicate on appeal how he was prejudiced by Experian’s failure to attach a

document to the declarations. His reply brief on appeal refers only to the

nonproduction of Experian “documents reciting the procedures referred to in [the]

declarations.” Aplt. Reply Br. at 17. The declarations, however, are based on

personal knowledge of the declarants regarding Experian’s procedures, not their

interpretation of the language of some manual. They do not refer to or rely on

(continued...)

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middle name and generation; current mailing address and two proofs of the

address; social security number; date of birth; and complete addresses for the past

two years, including apartment numbers and zip codes. The letter provided an

internet address and phone number to contact if Birmingham already had a

personal credit report, thought the information to be inaccurate, and wished to

request an investigation. Experian had no record of a response. (Although

Birmingham stated in his deposition that he “believe[d] that [he] probably did”

respond to the letter, id. at 754, he had no specific recollection of doing so and

does not press the point on appeal.)

Experian’s procedures for ensuring the accuracy of credit entries were

described in affidavits from two employees: Kimberly Hughes, a Consumer

Affairs Specialist Consultant, and Kathleen M. Centanni, a Compliance Manager.1
1

(...continued)

any manual and hence did not need to attach one. See 10A Charles A. Wright et

al, Federal Practice and Procedure: Civil 3d § 2722 at 381 (1998) (under Rule

56(c)(1), “testimony otherwise admissible need not be stricken simply because it

contains evidence that also appears in written documents that are not attached to

the affidavit.”) Finally, Birmingham appears to argue that we should disregard

many of the statements in the two affidavits because they set out identical facts. 

But we are aware of no authority prohibiting such repetition. 

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Both stated that to prevent identity theft and fraud, Experian requires the

consumer to provide his social security number and other specified identifying

information before Experian takes any action regarding his file. If a consumer

requests an investigation into an item listed on his report but fails to provide a

social security number or provides an address that had never been previously

reported to Experian by a credit grantor, Experian sends a letter explaining that

further verification of the consumer’s identity is required to initiate an

investigation. Once sufficient information has been provided, Experian contacts

the source of the disputed information and describes the dispute. The source must

research the information reported and respond regarding the accuracy of the

information. Depending on the answer, Experian leaves the item as is, deletes it,

or changes it in a manner specified by the source. It also sends the consumer a

disclosure stating the results of the investigation and instructs the consumer on

additional steps that he may take. 

On this record, Experian was entitled to summary judgment on the willfulmisconduct claim. Experian’s standard procedures appear reasonable. More
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importantly, we have been pointed to no described practice that would be a

reckless violation of the FCRA. And there is no evidence that Experian’s specific

actions with respect to Birmingham were reckless. He claims to have complained

to Experian about Verizon in January and July 2005. But Experian’s response in

July was appropriate; it asked for additional identifying information to be sure it

was being contacted by the consumer himself. As for January, Experian added a

security alert in Birmingham’s credit file after being contacted by another creditreporting agency; and it sent Birmingham a letter informing him of what was

needed to place an extended fraud alert in his file. It has no record of any

complaint directly from Birmingham. Even if one believes Birmingham’s vague

assertion that he contacted Experian in January, the most one can reasonably infer

from the absence of any record of that contact in Experian’s files is that a clerical

employee negligently failed to record the complaint. To infer that Experian acted

recklessly in response to the complaint would require inappropriate speculation. 

A reasonable person reviewing the evidence before the district court could not

find Experian to have committed a willful violation of the FCRA.

II. CLAIMS AGAINST VERIZON DEFENDANTS

A. The Court Proceedings

Birmingham filed his complaint on August 23, 2006, and filed an amended

complaint (the Complaint) on December 20, before any defendants answered. See

Fed. R. Civ. P. 15(a)(1) (allowing one amendment without court permission if
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defendant has not responded). The Complaint named Experian, Equifax, and

TransUnion as defendants and listed the following Verizon Defendants:

[1] Verizon Communications, Inc., and Vodafone Group, PLC, a

joint venture dba Verizon Wireless; [2] Cellular Inc. Network

Corporation, Utah RSA 6 Limited Partnership, Verizon Power

Partners Inc. and Wasatch Utah RSA No. 2 Limited Partnership dba

Verizon Wireless; [3] Verizon Wireless Utah, LLC operating under

the name and style of Verizon Wireless; [4] Verizon Wireless (VAW)

LLC, operating under the name and style of Verizon Wireless.

Aplt. App., Vol. I at 1. The Complaint stated that any reference to “Verizon” was

“a reference to whichever of the above named Verizon entities in fact provided

cellular telephone service to the Plaintiff and billed him for the cellular telephone

service complained of below.” Id. at 5. It alleged that the Verizon Defendants

violated the FCRA, 15 U.S.C. § 1681s-2(b), and were liable under Utah law for

negligence, defamation, invasion of privacy, and violations of the Utah Consumer

Sales Practices Act. 

An answer was filed on February 5, 2007, for Verizon Communications

Inc.; Cellular, Inc. Network Corporation; Utah RSA 6 Limited Partnership;

Verizon Power Partners, Inc.; Wasatch Utah RSA No. 2 Limited Partnership;

Verizon Wireless Utah, LLC, operating under the name and style of Verizon

Wireless; and Verizon Wireless (VAW) LLC. Vodafone Group, Plc, which had

been named in the Complaint as belonging to a Verizon Wireless joint venture

with Verizon Communications Inc., did not file an answer. On April 17, 2007,
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the district court issued a scheduling order requiring fact discovery to be

completed by November 15. 

Birmingham’s scatter-gun naming of Verizon Defendants perhaps made

sense at the outset of the lawsuit. Determining who was the precise entity that

had caused the alleged harm could have been a substantial challenge. But, as the

following account shows, the matter was clarified within months, and

Birmingham, inexplicably, did not respond appropriately.

The first important information came to Birmingham the same day as the

district court’s scheduling order (April 17, 2007), about two months after the

Verizon Defendants filed their answer. Counsel for the Verizon Defendants

(Verizon’s counsel) sent Birmingham’s counsel a letter stating that Verizon

Wireless (VAW), LLC was the only defendant that could have done business with

Birmingham, because it was the only named entity that was “licensed to provide

cellular service in Mr. Birmingham’s market.” Id., Vol. IV at 1533. He requested

that Birmingham stipulate to dismissal of the other entities, but Birmingham did

not agree. 

The record reflects no further activity in the case until November 13, when

the parties filed a joint motion to extend the discovery deadline to February 15,

2008. The district court granted the motion. Two days before that deadline,

Birmingham moved for entry of default against Vodafone Group, Plc, which

entered a special appearance (through Verizon’s counsel) to oppose the motion,
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claiming improper service of the complaint. The court scheduled a hearing on the

motion; but Birmingham’s counsel failed to appear, and the court denied the

motion. 

On the deadline for completing discovery, Birmingham moved to extend

the deadline, complaining of difficulties posed by the defendants in conducting

discovery. Although they did not object to the extension, the Verizon

Defendants’ response objected to Birmingham’s characterization of their

behavior. The district court extended the discovery deadline to May 15, 2008. 

On May 7, 2008, Birmingham’s counsel served Verizon’s counsel with a

notice under Federal Rule of Civil Procedure 30(b)(6) that defendant Verizon

Communications Inc. and nonparty Vodafone Group, Plc, as the members of a

joint venture doing business as Verizon Wireless, designate a representative to

testify at a deposition regarding Birmingham’s claims. Verizon’s counsel

promptly responded that it would not be producing these witnesses because no

representative or employee of Verizon Communications Inc. had knowledge of

the subject matter of the Complaint, and because Vodafone Group, Plc was not a

party to the suit. He reiterated that Verizon Wireless (VAW), LLC was the only

named entity that could have had business with Birmingham. Between May 12

and May 14, counsel exchanged a series of emails on the matter. Birmingham’s

counsel maintained that “Verizon Wireless” was the party in interest to the suit,

and that, according to an attached copy of an SEC filing from 2003, “Verizon
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Communications, Inc. and Vodafone Group, PLC, were directly doing business as

partners through a partnership named Cellco Partnership, dba as Verizon

Wireless.” Id., Vol. V at 1644 (emphasis omitted). He also requested that, given

the confusion, each of the Verizon Defendants provide individual responses to his

discovery requests, instead of the joint responses that had been previously

provided. 

Verizon’s counsel responded with a letter describing the corporate structure

of the relevant entities. The letter explained that “Verizon Wireless” is not a

company, but a trade name; that 172 entities do business under the “Verizon

Wireless” umbrella, with most of them having permission to use the “Verizon

Wireless” trade name; and that “[t]here are so many entities for tax reasons, and

because of the nature of the cellular telephone services industry and FCC

oversight of that industry.” Id. at 1651. It said that Verizon Communications

Inc. and Vodafone Group, Plc do not have a “partnership” doing business as

“Verizon Wireless.” Rather, they “indirectly” own an entity called “Cellco

Partnership, d/b/a Verizon Wireless” through “indirect subsidiaries” (that is,

subsidiaries separated from the parent by one or more levels of intermediate

subsidiaries): Verizon Communications Inc. indirectly owns 55% of Cellco

through five indirect subsidiaries: (1) Bell Atlantic Cellular Holdings, L.P., (2)

NYNEX PCS Inc., (3) PCSCO Partnership, (4) GTE Wireless Incorporated, and

(5) GTE Wireless of Ohio Incorporated; and Vodafone Group, Plc indirectly owns
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45% of Cellco through two indirect subsidiaries: (1) PCS Nucleus, L.P., and (2)

JV PartnerCo, L.L.C. Id. at 1651–52.

In a follow-up letter on May 15, 2008, the discovery deadline, Verizon’s

counsel proposed a compromise to resolve the dispute over the noticing of a Rule

30(b)(6) witness: Birmingham could serve a Rule 30(b)(6) notice on Verizon

Wireless (VAW), LLC in exchange for Birmingham’s dismissing without

prejudice all Verizon Defendants except Verizon Wireless (VAW), LLC.

On that same day, Birmingham filed another motion for more time to

complete discovery. The motion complained that Birmingham’s counsel had been

thwarted in taking depositions of representatives of defendant Verizon

Communications Inc. and nonparty Vodafone Group, Plc. It also argued that by

providing collective responses to discovery, the Verizon Defendants had

“effectively admitted that all of these entities act together and that all were

involved in or are fully culpable for the transactions of which [Birmingham]

complains.” Aplt. Supp. App. at 29. The response from Verizon’s counsel

disputed Birmingham’s version of the discovery dispute. It explained that (1)

“Verizon Wireless” is a trade name and (2) because Verizon Communications Inc.

holds stock in a number of subsidiaries and conducts no other business, it never

had a business relationship with Birmingham, and its employees had no

involvement or knowledge of the events giving rise to his complaint. 
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These assertions about Verizon Communications Inc.’s noninvolvement

were reiterated in its motion for summary judgment filed shortly thereafter, on

May 30, 2008. Attached to the motion was an affidavit by Bernadette

Miragliotta, who was responsible for handling Verizon Communications Inc.’s

litigation matters. It repeated the statements previously made by Verizon’s

counsel regarding the status of Verizon Communications Inc. as a mere holding

company whose subsidiaries owned 55% of Cellco, which it described as a

Delaware general partnership that “provides wireless telecommunications

services.” Aplt. App., Vol. I at 122. Birmingham failed to file a response to the

summary-judgment motion, and the district court granted the motion on July 15.

In the meantime, on June 5, 2008—after the filing of the affidavit regarding

Verizon Communications Inc. and Cellco, but before the grant of the summaryjudgment motion—the district court held a hearing on Birmingham’s motion to

extend discovery. Birmingham’s counsel stated that the “primary issue” was the

Verizon Defendants’ failure to respond to the request to provide a witness under

Rule 30(b)(6). Id. at 132. Verizon’s counsel said once more that his clients could

not comply with the request because Birmingham had not served the 30(b)(6)

deposition notices on the proper parties. He maintained the position that Verizon

Wireless VAW, LLC was the only named defendant that could have had any

business dealings with Birmingham, and added that he believed that “the people

that sent the credit report are employed by an entity that’s not even a defendant
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called Cellco Partnership.” Id. at 139. In response, Birmingham’s counsel

asserted that Cellco was a party to the action. 

Verizon’s counsel again explained that Verizon Communications Inc. and

Vodaphone Group, Plc were merely holding companies that indirectly owned

Cellco through subsidiaries and were not Cellco partners. He proposed a

compromise: If Birmingham’s counsel sent the Rule 30(b)(6) notice to Verizon

Wireless VAW, LLC (and not to Verizon Communications Inc. and Vodafone

Group, Plc), then he would produce a witness with knowledge of the report of

Birmingham’s information to the credit-reporting agencies, even if that witness

turned out to be employed by Cellco. He named nine potential witnesses but

could not confirm at that time which entity—Cellco or Verizon Wireless (VAW),

LLC—employed each one. The district court ordered Verizon’s counsel to

produce the witness or witnesses from his list of names and extended discovery to

August 15, 2008. It warned that it would not extend discovery past that date and

that it would not consider any additional motions to continue. 

On July 25, 2008, two weeks after the court granted Verizon

Communications Inc.’s summary-judgment motion, Birmingham’s counsel sent an

email to Verizon’s counsel stating that “[i]t is now apparent that the Verizon

Wireless we are dealing with is Cellco Partnership.” Aplee. Supp. App. at 117. 

The email attached a proposed stipulation to amend the Complaint, which

included the following statement: “Plaintiff incorrectly named Verizon
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Communications and Vodafone Group, PLC, as parties to this action. The correct

party to be named is Cellco Partnership, a Delaware general partnership doing

business as Verizon Wireless.” Id. at 119. In an email dated July 28, Verizon’s

counsel stated that his clients would so stipulate “if you agree to dismiss the other

Verizon entities, all of which are improperly named. If you agree to do so, I will

accept service for Cellco.” Id. at 122. Emails then went back and forth

discussing whether the amendment would relate back to the filing of the original

complaint under Federal Rule of Civil Procedure 15(c), and Verizon’s counsel

ultimately agreed on August 8 that the amendment would relate back. 

An hour later, however, Birmingham’s counsel requested the additional

stipulation that “all discovery responses will fully apply to Cellco to the same

degree as if it had responded to those requests.” Id. at 148. In an August 11,

2008, letter, Verizon’s counsel refused to accept the additional condition,

explaining that his clients were not willing to renegotiate the prior stipulation and

that if Birmingham did not intend to abide by the original agreement, the Verizon

Defendants would not stipulate to the filing of the second amended complaint. 

He further explained that even if his clients were willing to renegotiate, he could

not agree to a stipulation that would certify that the prior “discovery responses

prepared and submitted by other separate entities (which have been defendants for

over one year) are complete and accurate as to Cellco.” Aplt. App., Vol. V at

1657. Counsel did state, however, that he was willing to consider a compromise
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in which Cellco would “review and supplement responses filed by other Verizonrelated entities, if necessary.” Id. Birmingham never responded to the August 11

letter. 

On August 15, 2008, the Verizon Defendants produced for deposition Scott

Scarbrough, one of the potential witnesses named at the June 5 hearing. 

Scarbrough testified that he was a Cellco employee and provided information

regarding the report on Birmingham’s account to the credit-reporting agencies.

The remaining Verizon Defendants (Verizon Communications Inc. had

already been granted a summary judgment) filed two motions to dismiss and two

for summary judgment on August 21, 22, and 29, 2008, just before the September

1 deadline for dispositive motions. The motions addressed the merits of

Birmingham’s claims, not the question of who was the proper defendant. 

Birmingham made repeated requests for extensions of time to respond. The

Verizon Defendants agreed to five requests to extend Birmingham’s time to

respond to their two motions for summary judgment, giving him until December

8. Birmingham, however, did not meet the extended deadlines. On December 8

he filed a memorandum in opposition to only one of the motions. He did not file

his memorandum in opposition to the other summary-judgment motion until

January 7, 2009, thirty days after the filing deadline and only two days before the

hearing on the motions (which had been postponed from the original scheduled

date of November 13, 2008). The next day, January 8, Birmingham filed a motion
2

Similar issues arose concerning the filing of Birmingham’s opposition to

Experian’s summary-judgment motion. Experian agreed to three extensions

sought by Birmingham but opposed his fourth request, which was nevertheless

granted by the court (to give him until November 18 to respond). Yet he did not

file his memorandum in opposition to Experian’s motion until November 19, did

not file his appendix to the motion until another week had passed, and submitted

an affidavit in opposition seven weeks later, the day before the January 9 hearing.

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requesting the district court to accept the untimely opposition brief; an

accompanying memorandum argued (1) that his failure to file by December 8,

2008, was excusable neglect under Rule 6(b)(2) of the Federal Rules of Civil

Procedure because unanticipated litigation demands had made it impossible to

complete his memorandum on time; (2) that under Fed. R. Civ. P. 56(c) his

submission of materials in opposition to the summary-judgment motion was

permitted until the day before the hearing; and (3) that his opposition brief

incorporated the arguments from his brief in opposition to the Verizon

Defendants’ other summary-judgment motion, which had been timely filed.2

The district court held the hearing on January 9, 2009, as scheduled. On

January 26 and March 13 it issued orders granting in part and denying in part the

Verizon Defendants’ motions. By February 25 all other defendants had settled or

been granted summary judgment. The March 13 order stated that the court would

address at the final pretrial conference the “question whether there remain

genuine issues of material fact requiring a trial”, id., Vol. IV at 1344; and the

court scheduled that conference for April 28. 
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On April 28, 2009—14 minutes before the final pretrial conference was to

begin—Birmingham’s counsel filed a motion under Rules 15(a) and 15(c) of the

Federal Rules of Civil Procedure to amend the Complaint to add Cellco as a

defendant. Although the motion stated that the grounds for the motion were more

fully stated in a supporting memorandum, the memorandum was not filed until the

next day. The district court began the conference by asking whether Cellco was

the only remaining defendant. Verizon’s counsel responded that Cellco was not a

party and that he had notified Birmingham’s counsel of the need to add Cellco as

a defendant over a year before, but that Birmingham’s counsel had failed to do so. 

Verizon’s counsel then recounted the history of the issue, asserting that by May

2007 Birmingham had been notified that he had not named the right defendant;

that during the dispute over Birmingham’s motion to extend the time for

discovery and at the hearing on June 5, 2008, he had made it clear that Cellco was

the proper defendant in the action; that Birmingham’s counsel had conceded as

much during the summer-of-2008 negotiations to stipulate to a proposed amended

complaint; and that after those negotiations had broken down in August 2008,

Birmingham’s counsel had made no mention of the issue until four days before

the final pretrial conference, when he had informed Verizon’s counsel of his

intention to file the motion to amend the complaint. 

Birmingham’s counsel provided only one explanation for the delay in

moving to amend: that the various dispositive motions were filed either
-23-

immediately before or immediately after his deposition of Scarbrough and that

those motions “fully occupied things” until they were decided. Id., Vol. V at

1939. He contended that Birmingham had been “short-sheeted” in discovery and

stated that he would like the opportunity to take “the 30(b)(6) deposition of

Cellco Partnership.” Id. at 1941. He also argued that Cellco was already a party. 

Verizon’s counsel disputed Birmingham’s excuse for delay. He asserted that

there was time to amend before the dispositive motions were filed and after the

motions had been heard by the court in January 2009. 

The district court said that it wished “to bring this matter to a head,” id. at

1940, and that the central question was whether or not Cellco was present as a

defendant. It declared that it would not allow further discovery, explaining that

Birmingham could not now complain about inadequate discovery responses

because he should have filed a motion to compel rather than “fuss around for

another six or eight or ten months or a year.” Id. at 1942. After hearing

argument from the parties, the court determined that Cellco was not a party, and it

stated that once Birmingham had become aware that the proper defendant was

Cellco, he should have moved to add Cellco as a defendant. The court concluded

that it had “no alternative but to deny [the belated] motion to amend” and it must

dismiss the case “because . . . the wrong parties are here and the right party is

not.” Id. at 1951–52. 
-24-

At a hearing on June 5, 2009, to consider Verizon counsel’s proposed order

of dismissal, Birmingham made further arguments that Cellco was already a party

in the case. The district court overruled Birmingham’s objections, but it made the

dismissal without prejudice “just to make sure that we’re not mistaken as to the

identified partnership.” Id. at 2010.

B. Analysis

By the time of the dismissal of Birmingham’s claims in district court, there

was no dispute that the entity that had informed the major credit-reporting

agencies of Birmingham’s failure to pay his bills—and therefore the sole entity

that would be liable to him for an erroneous report—was Cellco Partnership, d/b/a

Verizon Wireless. Cellco, however, was not a named defendant in Birmingham’s

Complaint; indeed, the word Cellco does not appear in the Complaint. To salvage

his claim, Birmingham takes two tacks on appeal. First, he argues that Cellco,

although unnamed as a defendant, was actually a defendant in the litigation. 

Second, he argues that the district court should have joined, or this court should

join, Cellco as a required party. For the reasons that follow, we reject both

arguments.

1. Was Cellco a Party Below

Birmingham presents a grabbag of arguments why Cellco, although not

named as a defendant, was nevertheless a party to this litigation. 
3

We note that the relationship between Cellco and defendant Verizon

Wireless Utah, LLC, was not technically that of a parent and subsidiary. Verizon

Wireless Utah, LLC, was a Delaware limited liability company, and Cellco was

its sole member (owner). But under Delaware law a limited liability company and

its members are treated the same as a subsidiary and a parent for liability

purposes. See Elf Atochem N. Am., Inc. v. Jaffari, 727 A.2d 286, 287 (Del. 2006).

(continued...)

-25-

One theme that pervades these arguments is that Cellco was related to the

named parties through corporate parent-subsidiary or partner-partnership

relationships. But neither type of relationship can save him. With respect to

parent-subsidiary relationships, “[a] holding or parent company has a separate

corporate existence and is treated separately from the subsidiary in the absence of

circumstances justifying disregard of the corporate entity.” Benton v. Cameco

Corp., 375 F.3d 1070, 1081 (10th Cir. 2004) (internal quotation marks omitted);

see also 1 William Meade Fletcher, Cyclopedia of the Law of Corporations § 26

(rev. ed. 2010) (“A subsidiary corporation is presumed to be a separate and

distinct entity from its parent corporation.”); cf. United States v. Bestfoods, 524

U.S. 51, 61 (1998) (“It is a general principle of corporate law deeply ingrained in

our economic and legal systems that a parent corporation . . . is not liable for the

acts of its subsidiaries.” (internal quotation marks omitted)). Yet Birmingham

presents no evidence or argument that some corporate veil should be pierced so

that a corporation not named in the Complaint can be treated as the alter ego of a

named party. See generally Phillip L. Blumberg, et al., 1 Blumberg on Corporate

Groups, Part III: Common Law Veil Piercing Theory (2d ed. 2005).3

 And as for
3

(...continued)

(LLC provides “tax benefits akin to a partnership and limited liability akin to the

corporate form”); Thomas v. Hobbs, No. C.A. 04C-02-010 RFS, 2005 WL

1653947, *2 (Del. Super. Ct. April 27, 2005) (member of LLC can be personally

liable only if corporate veil can be pierced); Poore v. Fox Hollow Enters.,

No. C.A. 93A-09-005, 1994 WL 150872, *2 (Del. Super. Ct. March 29, 1994)

(LLC is “a separate legal entity” and “[t]he interest of a member . . . is analogous

to shareholders of a corporation”; like a corporation, but unlike a partnership, it

can be represented in court only by a licensed attorney); Credit Suisse Sec. (USA)

LLC v. W. Coast Opportunity Fund, LLC, C.A. No. 4380-VCN, 2009 WL

2356881, *3 & n.23 (Del. Ch. July 30, 2009) (“The limited liability company—at

least in the absence of factual allegations supporting ‘piercing the veil,’ fraud, or

the like—is a separate legal entity and that status must be respected,” even if it

has only one member.); Wellman v. Dow Chemical Co., Civ. No. 05-280-SLR,

2007 WL 842084, *2 (D. Del. March 20, 2007) (LLC “is treated for liability

purposes like a corporation” and a member can be held liable only by piercing the

corporate veil).

-26-

the partner-partnership relationship, even if there were some circumstances in

which a partnership could be treated as a party when only the partner is named,

the Complaint fails to name any of the partners of the Cellco partnership.

True, there was confusion, at least early in this litigation, regarding what

entity reported Birmingham’s failure to pay bills. Birmingham contends, for

example, (1) that the Verizon Defendants erroneously admitted in their answer to

the Complaint that they all had a commercial relationship with Birmingham and

had received information concerning his disputes, and (2) that their initial

disclosures identified Cellco employees as witnesses concerning their business

processes. But such errors by parties could not transform nonparty entities into

parties. Birmingham suggests that when parties admitted doing things that were

actually done by Cellco, then they were effectively admitting that they were
4

Rule 15(c)(1) states in pertinent part:

An amendment to a pleading relates back to the date of the original

pleading when: 

. . . .

(B) the amendment asserts a claim or defense that arose out of

(continued...)

-27-

Cellco, thereby making Cellco a defendant. We reject the suggestion. Its

implications are mindboggling. By admitting that it performed certain acts, a

party defendant could impose liability on a nonparty who actually performed the

acts. 

For the same reason, we cannot accept Birmingham’s argument that

Verizon’s counsel admitted that he was representing Cellco in the case because he

raised arguments on the merits, rather than simply denying involvement. Again,

parties cannot make a nonparty into a party in the action except by a pleading,

such as a crossclaim or a motion to join, explicitly seeking party status for the

person.

There is nothing unfair about requiring the plaintiff to name the proper

defendant in a complaint. When, as implicitly alleged by Birmingham, the proper

defendant is unknown to the plaintiff because of confusion created by defendants

who are in league with the nonparty proper defendant, Federal Rule of Civil

Procedure 15(a) allows the plaintiff to join the proper defendant once the

confusion is dissipated; and under Rule 15(c), the plaintiff will not be time-barred

by the delayed joinder.4

 It is worth noting that Rule 15(c)(1)(C) does not provide
4

(...continued)

the conduct, transaction, or occurrence set out—or attempted

to be set out—in the original pleading; or

(C) the amendment changes the party or the naming of the

party against whom a claim is asserted, if Rule 15(c)(1)(B) is

satisfied and if, within the period provided by Rule 4(m) for

serving the summons and complaint, the party to be brought in

by amendment:

(i) received such notice of the action that it will not be

prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have

been brought against it, but for a mistake concerning the

proper party’s identity. 

-28-

for deeming a person to be a party; rather it speaks in terms of an amendment to

change “the party or the naming of the party against whom a claim is asserted.”

We can also easily distinguish Birmingham’s authority saying that a party

can make a general appearance in a case without being served with process. See,

e.g., FDIC v. Oaklawn Apartments, 959 F.2d 170 (10th Cir. 1992). That authority

does not dispense with the requirement that a person be named in the complaint to

be a party. It addresses only the circumstances in which a party is subject to the

court’s jurisdiction despite not being properly served. 

In addition, we are not persuaded by Birmingham’s invocation of the res

judicata doctrine that a nonparty may be bound by a judgment if the nonparty was

“adequately represented by someone with the same interests who was a party to

the suit.” Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (brackets and internal

quotation marks omitted) (giving class actions and suits by fiduciaries as
-29-

examples). That doctrine applies once a judgment has been rendered; the

judgment may then have a claim- or issue-preclusive effect on later litigation. 

Even if, as we doubt, Cellco could have been bound by a judgment against one of

the named defendants, there has been no such judgment here, so the res judicata

doctrine has no application. And the doctrine even lacks any persuasive force by

analogy, because Birmingham is not seeking to parlay his victory against a party

into a victory against Cellco; on the contrary, he is seeking to obtain rights with

respect to Cellco after having lost his claims against the parties that were

purportedly representing Cellco’s interests.

2. Denial of Motion to Amend Complaint to Add Cellco As a

Defendant

Finally, Birmingham argues that the district court abused its discretion in

denying his motion to amend the Complaint to add Cellco as a defendant. The

court denied the motion as untimely. Birmingham had known for at least nine

months that Cellco was the entity that had made the adverse credit report, but he

waited to file his motion until minutes before the final pretrial conference, at

which the court was to rule on whether the case could proceed. 

We doubt that Birmingham has preserved on appeal any argument that the

district court erred in ruling that his motion to add Cellco as a defendant was

untimely. Some language in his opening brief on appeal might be read to

challenge the ruling; but construing his brief as raising the issue would be a
-30-

stretch, and his reply brief states that he did not argue in his opening brief

whether “Mr. Birmingham unduly delayed in moving to amend his complaint to

specifically name Cellco Partnership.” Aplt. Reply Br. at 13. Our general

practice is to decline to address issues not raised on appeal until the reply brief. 

See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). 

In any event, Birmingham’s argument on timeliness in his reply brief is

unpersuasive. He relies on Minter v. Prime Equipment Co., 451 F.3d 1196 (10th

Cir. 2006), which reversed a district court’s decision disallowing as untimely an

amendment to a complaint to add a claim. But Minter cannot save Birmingham. 

Minter recognized this court’s precedents that a district court has discretion to

deny a motion to amend as untimely when the movant’s delay is unexplained. See

id. at 1206. Here, unlike the plaintiff in Minter, Birmingham failed to provide an

adequate explanation for not moving to amend during the nine months after he

proposed a stipulation stating that he had named incorrect parties and that Cellco

was the correct party. His sole excuse to the district court was that he was tied up

in summary-judgment disputes and was awaiting their resolution. We see no

reason why an uncomplicated motion to amend should not have been filed

promptly upon discovery of the error in naming parties. Even if Birmingham

might have learned something from the court’s rulings on the dispositive motions

that would have enabled him to “improve” an amended complaint naming Cellco,

he has not explained why that would justify delaying the amendment. Moreover,
-31-

the district court found that the Verizon Defendants would be prejudiced by a

grant of the motion to amend. Yet Minter recognizes that prejudice to

nonmovants is a proper ground for denying a motion to amend, id. at 1207–08,

and Birmingham has not argued lack of prejudice in his appellate briefs.

Birmingham does, however, raise an alternative ground for making Cellco a

party. He claims that Cellco was a required party that should have been joined as

a defendant by the district court. He relies on Federal Rule of Civil Procedure

19(a)(1), which states:

A person who is subject to service of process and whose joinder will

not deprive the court of subject-matter jurisdiction must be joined as

a party if: 

(A) in that person’s absence, the court cannot accord complete

relief among existing parties; or 

(B) that person claims an interest relating to the subject of the

action and is so situated that disposing of the action in the

person’s absence may: 

(i) as a practical matter impair or impede the person’s ability

to protect the interest; or 

(ii) leave an existing party subject to a substantial risk of

incurring double, multiple, or otherwise inconsistent

obligations because of the interest.

Citing Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379, 1383 (10th Cir.

1997), he argues that “the issue of indispensability can be raised at any time,”

Aplt. Br. at 55, perhaps suggesting that we must consider the matter even though

not raised below. 

Birmingham, however, labors under a fundamental misunderstanding of

Rule 19. It is not a means by which a plaintiff can join a truly liable defendant if
-32-

he has mistakenly sued innocent parties. See 4 James Wm. Moore, Moore’s

Federal Practice § 19.02 (3d ed. 2010) (Rule 19 “reflect[s] a policy decision that

[in certain circumstances] other interests—primarily the protection of other

parties and absentees—outweigh the interest in plaintiff autonomy [in structuring

the litigation].”). Rule 19 has no application here because even without adding

Cellco as a party, (1) the district court could “accord complete relief among

existing parties,” Fed. R. Civ. P. 19(a)(1)(A), by dismissing the claims against the

nonculpable defendants; (2) Cellco is not prejudiced in any way by the failure to

be joined; and (3) there is no risk that an existing party would be subject to

inconsistent obligations. Accordingly, we reject Birmingham’s Rule 19 argument.

CONCLUSION

We AFFIRM the district court’s grant of summary judgment to Experian

and AFFIRM the denial of the motion to amend and the dismissal of the Verizon

Defendants.