United States District Court, W.D. Texas, Austin Division
THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
ORDER AND REPORT AND RECOMMENDATION OF THE UNITED
STATES MAGISTRATE JUDGE
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
the Court are Defendant's Motion for Summary Judgment
(Dkt. No. 20); Plaintiff's Response (Dkt. No. 21); and
Defendant's Reply (Dkt. No. 25); and Plaintiff's
Motion to Strike (Dkt. No. 21). The District Court referred the
above-motions to the undersigned Magistrate Judge for Report
and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B),
Federal Rule of Civil Procedure 72 and Rule 1(c) of Appendix
C of the Local Rules.
Walters brings this suit against Sentry Link, LLC for
promissory estoppel, negligence and gross negligence, and
violations of the Fair Credit Reporting Act (FCRA), Tex. Bus.
& Commerce Code § 20.06, and Texas Deceptive Trade
Practices Act (DTPA). In December 2015, Walters was allegedly
denied a consulting contract with a “Fred Lewis”
of Kava Kava Austin due to an allegedly inaccurate criminal
background report performed by Sentry Link. Following the
denial of the contract, Walters filed a written dispute to
Sentry Link stating that the background check contained
inaccurate information. He delineated several alleged errors
directly on the report, and requested a reinvestigation of
the information. Sentry Link responded, and sixteen days
later produced a revised report, but according to Walters, it
still contained the same alleged inaccuracies as the original
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is “genuine” if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). If the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential
to its case and on which it will bear the burden of proof at
trial, summary judgment must be granted. Celotex,
477 U.S. at 322-23.
brings claims under the FCRA, for failure to reinvestigate
his criminal background report and failure to include the
notices required by law, as well as the Tex. Bus. & Comm.
Code and DTPA for the same violations. He additionally
alleges claims for negligence, gross negligence, and
promissory estoppel. Sentry Link filed this motion for
summary judgment seeking dismissal of Walters' claims.
U.S.C. § 1681i(a) provides that if a customer disputes
completeness or accuracy of any item of information contained
in a consumer's file at a consumer reporting agency . . .
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.
consumer reporting agency willfully or negligently fails to
comply with this provision, the agency is liable to the
plaintiff for either actual damages suffered as a result of
the failure, or statutory damages. Id. §§
1681n & 1681o. To demonstrate a claim under §
1681i(a), a plaintiff must show that: (1) his consumer report
contained inaccurate information; (2) he disputed the
accuracy of the information, either directly or indirectly
through a reseller, (3) the credit reporting agency (CRA)
failed to conduct a reasonable reinvestigation free of charge
and either record the current status of the disputed
information or delete the item from the file; (4) the
CRA's noncompliance was negligent or willful; (5) the
plaintiff suffered an injury; and (6) the injury was caused
by the CRA's failure to reinvestigate. Saunders v.
Equifax Info. Servs. LLC, 2017 WL 3940942, at *3 (W.D.
Tex. Aug. 3, 2017) (citing Norman v. Experian Info.
Sols., Inc., 2013 WL 1774625, at *3 (N.D. Tex. Apr. 25,
2013). Any violations of § 1681i require ...