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Kaufman v. Amcol Systems, Inc.

United States District Court, M.D. Louisiana

September 21, 2018

SUSAN KAUFMAN
v.
AMCOL SYSTEMS, INC. ET AL.

          RULING ON MOTION FOR SUMMARY JUDGMENT [1]

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Motion for Summary Judgment[2] filed by defendant, Baton Rouge General Medical Center (“Baton Rouge General, ” or “General Health System”).[3] The Motion for Summary Judgment is opposed by plaintiff, Susan Kaufman (“Plaintiff”), [4] and Baton Rouge General has filed a Reply.[5] For the reasons set forth herein, the Motion for Summary Judgment[6]is GRANTED and all of Plaintiff's remaining claims in this lawsuit are DISMISSED WITH PREJUDICE.

         I. Background

         Plaintiff originally filed this suit in Baton Rouge City Court alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and Fair Credit Reporting Act (“FCRA”). Per her Petition, Plaintiff named two defendants, Amcol and General Health Systems, and alleged that “defendants” had violated various provisions of 15 U.S.C. § 1681s-2 (the provision of the FCRA setting out duties imposed upon “furnishers of information”) as well as 15 U.S.C. § 1692g (a provision of the FDCPA). While the majority of Plaintiff's Petition is directed to both defendants and generally cites to the provisions of the FCRA and FDCPA, Plaintiff provides the following factual allegations:

Defendant General Health System refused to file a proper claim under Plaintiff's health insurance policy after Plaintiff gave Defendant General Health System her health insurance policy information. Because General Health System failed to file a claim as required by Louisiana law, General Health System reported Plaintiff to Amcol Systems, Inc. for collection.[7]

         Following Amcol's removal of the case to this Court pursuant to 28 U.S.C. § 1331, Amcol filed a Notice of Settlement[8] and Plaintiff filed a Stipulation of Dismissal with Prejudice stipulating to the dismissal of her claims against Amcol.[9] Thereafter, the District Judge approved the stipulation and dismissed all claims against Amcol with prejudice.[10] Per the instant Motion for Summary Judgment, Baton Rouge General seeks dismissal of all of Plaintiff's remaining claims against it. Baton Rouge General argues that it is not a “debt collector” for purposes of the FDCPA and that, with respect to claims against it arising under the FCRA, it is not a “furnisher of information.” Even assuming, arguendo, that it could be considered a furnisher of information for purposes of the FCRA, Baton Rouge General argues there is no private right of action under 15 U.S.C. § 1681s-2(a), and that under 15 U.S.C. §1681s-2(b), Plaintiff cannot meet her burden of showing that the requisite notice was provided to trigger Baton Rouge General's duties.

         II. Law and Analysis

         A. Summary Judgment Standard

         Pursuant to well-established legal principles, summary judgment is appropriate where there is no genuine disputed issue as to any material fact, and the moving party is entitled to judgment as a matter of law.[11] A party moving for summary judgment must inform the court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, that show that there is no such genuine issue of material fact.[12] If the moving party carries its burden of proof under Rule 56, the opposing party must direct the court's attention to specific evidence in the record which demonstrates that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict in its favor.[13] This burden is not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of evidence.[14] Rather, Rule 56 mandates that summary judgment be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.[15] Summary judgment is appropriate in any case where the evidence is so weak or tenuous on essential facts that the evidence could not support a judgment in favor of the non-moving party.[16] In resolving a motion for summary judgment, the Court must review the facts and inferences in the light most favorable to the non-moving party, and the Court may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual disputes.[17]

         B. Plaintiff's Claim Under the FDCPA

         In her opposition to the Motion for Summary Judgment, Plaintiff concedes that “[b]ecause General Health System's primary function is not debt collection, there cannot be a violation of the FDCPA by them. Because Amcol Systems has been removed from this case by stipulation of the parties after a settlement was reached, there are no remaining parties to the present case which violated the FDCPA.”[18] Any claims Plaintiff has asserted against General Health System under the FDCPA are dismissed with prejudice.

         C. Plaintiff's Claim Under the FCRA

         “The Fair Credit Reporting Act imposes duties on consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies (‘furnisher')….Section 1681s-2 delineates the furnishers' obligations, and they include (a) duties to provide accurate information and (b) duties that are triggered when a credit reporting agency notifies the furnisher of a dispute.”[19] Here, even assuming arguendo that Baton Rouge General would be a “furnisher of information”[20] for purposes of § 1681s-2, because Plaintiff cannot sustain her claim under either § 1681s-2(a) or § 1681s-2(b), the Court finds summary judgment in favor of Baton Rouge General is warranted.

         With respect to § 1681s-2(a), courts in this Circuit uniformly hold that “there is no private right of action to enforce the duty of furnishers of information to provide accurate information under subsection (a) of section 1681s-2 of the federal act.”[21] Plaintiff's briefing in opposition to the Motion for Summary Judgment does not address this clear precedent, and the undersigned has found no basis to deviate therefrom. Like the many courts which have previously considered the question, the Court here finds that 15 U.S.C. § 1681s-2(c)(1) precludes Plaintiff's private right of action for any alleged violations of § 1681s-2(a).[22]

         Unlike section 1681s-2(a), “[t]he Fair Credit Reporting Act creates a private cause of action to enforce § 1681s-2(b).”[23] “Section 1681s-2(b) explains a furnisher's responsibilities after a credit reporting agency has notified the furnisher of a consumer dispute regarding information provided by the furnisher. Upon receiving notice of a dispute, the furnisher is to conduct an investigation and report the results to the appropriate consumer reporting agencies.”[24] “To recover under section 1681s-2(b), a Plaintiff must demonstrate that (1) she notified a consumer reporting agency of inaccurate information; (2) the consumer reporting agency notified the Defendant of the dispute; and (3) the Defendant failed to conduct an investigation, correct any inaccuracies and failed to notify the consumer reporting agency of the results of the investigation.”[25]

         “It is a prerequisite to investigative action that the furnisher receive some type of notice from the consumer reporting agency.”[26] Pursuant to 15 U.S.C. § 1681s-2(b)(1), duties are imposed on furnishers of information “[a]fter receiving notice pursuant to section 1681i(a)(2) ….” 15 U.S.C. § 1681i(a)(2) in turn provides that “[b]efore the expiration of the 5-business-day period beginning on the date on which a consumer reporting agency receives notice of a dispute from any consumer or a reseller in accordance with paragraph (1), the agency shall provide notification of the dispute to any person who provided any item of information in dispute, at the address and in the manner established with the person.” Considering these statutory provisions, the Fifth Circuit has explained that in order to trigger a furnisher of information's duties under §1681s-2(b), the credit reporting agency must provide notice of the dispute to the furnisher of information “within five business days from the time the consumer notices the consumer reporting agency of the dispute, ”[27] and that “any private right of action [the consumer] may have under § 1681s-2(b) would require proof that a consumer reporting agency…had notified [the furnisher of information] pursuant to § 1681i(a)(2).”[28] Where a plaintiff can point to no evidence tending to prove that a furnisher of information “received notice of a dispute from a consumer reporting agency within five days, as is required to trigger [the furnisher's] duties under Section 1681s-2(b)…[plaintiff's] FCRA claims fail as a matter of law.”[29] In Young, because plaintiff had “not pleaded nor proffered evidence that [the furnisher] received the notice pursuant to Section 1681i(a)(2) that would give rise to duties under Section 1681s-2(b), ” the Fifth Circuit affirmed summary judgment in favor of the furnisher of information.[30]

         Here, in response Baton Rouge General's assertion that Plaintiff “is unable to provide any proof that Baton Rouge General ever received the requisite notice from a consumer agency, ”[31]Plaintiff only asserts that “[b]ecause she did report the inaccurate information directly to General Health System, Mrs. Kaufman does possess a private right of action under 15 U.S.C. § 1681s-2(b)….”[32] Although the parties dispute whether Plaintiff actually provided any notice to Baton Rouge General, [33] the dispute is not material. Even if Plaintiff did provide such notice directly to Baton Rouge General, that is not sufficient to trigger a furnisher of information's duties under § 1681s-2(b). To find otherwise is not in keeping with the controlling law of this Circuit, [34] nor is it consistent with the statutory language of the FCRA.[35] At least one court in this Circuit has consistently held that a consumer's notification to the furnisher of information of a dispute does not meet the requirements of the statute.[36] Plaintiff has failed to submit any evidence that any consumer reporting agency contacted Baton Rouge General at any time.[37] In light of Plaintiff's burden to establish such notice and her failure to proffer any evidence tending to indicate such notice occurred, summary judgment in favor of Baton Rouge General on Plaintiff's FCRA claims is warranted.[38]

         II. ...


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