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Walters v. Sentry Link, LLC

United States District Court, W.D. Texas, Austin Division

May 9, 2018

MARK WALTERS
v.
SENTRY LINK, LLC

          TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

          ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         Before 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).[1] 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.

         I. GENERAL BACKGROUND

         Mark 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 report.

         II. LEGAL STANDARD

         Summary 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.

         Once 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.

         III. ANALYSIS

         Walters 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.

         A. Reinvestigation Claims

         15 U.S.C. § 1681i(a) provides that if a customer disputes the

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.

         If the 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 ยง 1681i require ...


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