United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
SAM, SENIOR JUDGE.
American United Federal Credit Union (“AUFCU”),
pursuant to Fed. R. Civ. Pro. 56 and DUCiv-R 56-1, has
requested that the court grant summary judgment in favor of
AUFCU regarding Plaintiff's claim for damages and
negligent violation of the Fair Credit Reporting Act.
and his attorneys initiated this action in March 2017 and are
alleging that Defendant AUFCU failed to reasonably
re-investigate a dispute brought to AUFCU's attention by
the credit reporting agency Experian. To prevail on this
claim, Plaintiff must prove that AUFCU's actions caused
Plaintiff actual damages.
allows the court to grant summary judgment only when
“the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(c). A
material fact is one that could affect the outcome of the
suit, and a genuine issue is one that could permit a
reasonable jury to enter a verdict in the non-moving
party's favor. Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 248 (1986). The party moving for summary
judgment bears the initial burden of establishing the absence
of a genuine issue of material fact and can satisfy this
burden by presenting evidence that negates an essential
element of the non-moving party's case. Celotex Corp.
v. Catrett, , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). Alternatively, the movant can demonstrate
that the non-moving party cannot provide evidence to support
an essential element upon which it will bear the burden of
proof at trial. Id.
the moving party meets its initial burden, the non-moving
party must go beyond the pleadings and set out specific facts
showing a genuine issue for trial. Fed.R.Civ.P. 56(e);
Celotex Corp., 477 U.S. at 324; Valandingham v.
Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). The
court must view any inferences drawn from the underlying
facts in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
AUFCU is adamant that it did not violate the FCRA in any
respect, its present motion addresses only Plaintiff's
ability to prove damages. Plaintiff's allegation of
damages is entirely unsupported by any facts and contradicted
by his clear testimony. Plaintiff consistently stated in
sworn discovery responses that he had actual damages but that
they would eventually be established by expert testimony,
although he never provided any evidence of damages and never
designated an expert. In his amended complaint, Plaintiff
alleges that AUFCU's actions “caused Plaintiff
damages”; that “Plaintiff is informed and
believes that his credit score is taking a ‘double
hit' as a result of AUFCU's reporting”; that
AUFCU's reporting “damaged Plaintiff's
creditworthiness”; and that Plaintiff is entitled to
actual damages[.]” ECF No. 46 at 4-5.
Rule of Civil Procedure 26(a)(1)(A)(iii) requires that
Plaintiff produce with his initial disclosures “a
computation of damage claimed by the disclosing party-who
must also make available for inspection and copying as under
Rule 34 the documents or other evidentiary material, unless
privileged or protected from disclosure, on which each
computation is based, including material bearing on the
nature and extent of injuries suffered[.]”
Plaintiff's initial disclosures did not provide a
calculation of actual damages, but again indicated that such
damages existed and would be proven by evidence including an
expert report. ECF No. 46 at 5-6. The documents that were
eventually produced do not provide any evidence of damages.
was required to respond directly to discovery regarding the
existence and amount of his damages and to provide or
identify evidence in support of his alleged damages.
Plaintiff again did not provide any evidence, testimony, or
document that would satisfy his burden to prove damages.
Instead, Plaintiff again suggested that such information
would be produced at a future date, perhaps by way of expert
opinion. ECF No. 46 at 7-10.
Plaintiff was deposed. In his deposition, he was unable to
identify any instance where the alleged FCRA violations by
AUFCU caused him a loss. He was specifically asked if
AUFCU's reporting has cost him money, hurt his credit,
increased his interest rates, or caused him to miss out on a
loan. Plaintiff was unable to testify that he experienced any
such damages. ECF No. 46 at 10-13.
is no dispute that Plaintiff has failed to carry his burden
as to the element of damages. In fact, in Plaintiff's
response to AUFCU's partial summary judgment motion, he
“concedes he will be hard pressed to prove monetary
damages[.]” ECF No. 47 at 2.
conceding his lack of monetary damages, Plaintiff proceeds to
argue that he is entitled to emotional damages as actual
damages under FCRA and that he has suffered emotional damages
due to Defendant's reporting. However, if Plaintiff
intended to seek non-economic damages, he was required to
identify such in his initial disclosures, which he did not
do. And while FRCP 26(e) allows a party to supplement a
disclosure or discovery response with newly discovered
information or to correct an inaccuracy, Plaintiff did ...