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WIGGINS v. EQUIFAX SERVS.

October 21, 1993

JAMES R. WIGGINS, et ux., Plaintiffs,
v.
EQUIFAX SERVICES, INC., et al., Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This matter comes before the court on defendants' motions for summary judgment and plaintiffs' cross-motions for partial summary judgment. For the reasons that follow, defendant ESI's motion will be granted in part and denied in part, defendant Madden's motion will be granted, and plaintiffs' motions for partial summary judgment will be denied.

 I. INTRODUCTION

 This is an action by James Russell Wiggins and Karen Wiggins against Equifax Services, Inc. ("ESI"), a consumer reporting agency, and one of its employees, D. Jaye Madden. Plaintiffs allege that defendants disseminated a report to Mr. Wiggins' then-employer, District Cablevision, Inc. ("DCI"), falsely stating that Mr. Wiggins had a felony conviction for possession of cocaine in the District of Columbia in 1989.

 The First Amended Complaint ("Complaint") is in nine counts. In Counts One through Four and Count Six, Mr. Wiggins asserts willful violations of the Fair Credit Reporting Act ("FCRA" or "the Act"), 15 U.S.C. §§ 1681-1681t. In Count Five Mr. Wiggins alleges a common-law claim of defamation. In Count Seven both plaintiffs assert a federal civil rights violation under 42 U.S.C. §§ 1981 and 1983. In Count Eight plaintiff Mrs. Wiggins asserts common-law claims of "loss of consortium, emotional distress and personal injury." Finally, in Count Nine both plaintiffs bring a claim for treble damages, interest, and attorneys' fees under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. Both defendants have moved for summary judgment on a variety of grounds with respect to all of the claims asserted against them. In addition, plaintiffs have moved for partial summary judgment with respect to three of the claims under the FCRA.

 II. FACTS

 In this case, lengthy and contentious discovery has resulted in a confused and diffuse record in which many key factual issues appear to be unresolved, making evaluation of the summary judgment motions exceedingly difficult. However, there is a core of facts which is not or cannot reasonably be disputed, and it is that core that will be set out here and that will form the basis for the Court's opinion.

 On January 2, 1990, the Cleveland Equicenter of ESI (the "Equicenter") was contacted by DCI and was requested to perform a criminal records check on Mr. Wiggins, who was an employee or potential employee of DCI. DCI provided the Equicenter with Mr. Wiggins' first and last names, middle initial, *fn1" social security number, address, and date of birth.

 On January 3, the Equicenter contacted the ESI regional office in McLean, Virginia and requested that the regional office perform the records check on Mr. Wiggins. The task was assigned to ESI part-time field officer Tami Plumer. Ms. Plumer, working out of her home, contacted a clerk at the Superior Court for the District of Columbia by telephone, and asked the clerk to search Superior Court records to determine whether James R. Wiggins had a criminal record. The clerk checked those records and informed Ms. Plumer that James R. Wiggins had a March 1989 drug conviction. *fn2" Ms. Plumer reported this information to the regional office, and on January 5, the regional office forwarded the information to the Equicenter. The Equicenter gave "clearance" of this information, by telephone, to DCI on or about January 10. *fn3"

 On January 11, DCI informed the Equicenter that Mr. Wiggins disputed ESI's report. ESI communicated this denial to the McLean regional office, and on January 12 Ms. Plumer was instructed by her supervisor, Sally Myers, to go to Superior Court personally and obtain a "hard copy" of the criminal record information that she had reported. Ms. Plumer obtained the hard copy and, on January 16, provided it to Ms. Myers. Upon reviewing this hard copy, Ms. Myers observed that the date of birth shown on the record of the conviction (December 15, 1963) did not match the birth date that ESI had been given for Mr. Wiggins. Further inquiry revealed that the individual who had been convicted of the alleged offense was James Ray Wiggins, not plaintiff James Russell Wiggins.

 On January 16 or 17, Ms. Myers informed the Cleveland Equicenter by telephone that a discrepancy had been found. On January 17, Ms. Myers asked Ms. Plumer to conduct a reinvestigation to determine whether, notwithstanding the mistake, James Russell Wiggins in fact had a criminal record. Also on January 17, however, the Cleveland Equicenter sent to DCI its initial written report (the "January 17 report") containing its finding that, as communicated in the telephone call on January 10, Mr. Wiggins had a drug conviction in the District of Columbia in 1989. *fn4" Mr. Wiggins' employment was terminated by DCI on January 18.

 On January 19, Mr. Wiggins visited the McLean regional office and requested disclosure of all information in his file relating to the criminal records check. Ms. Myers was not in the office at the time, and in her absence Mr. Wiggins was assisted by defendant Madden. Mr. Madden was unfamiliar with the Wiggins matter and did not know that a reinvestigation was in progress. In response to Mr. Wiggins' request for disclosure, Mr. Madden's secretary looked for but could not locate Mr. Wiggins' file, which was on Ms. Myers' desk at the time. Mr. Madden therefore contacted the Equicenter and asked that its file relating to the criminal records check on Mr. Wiggins be telecopied to the regional office so that disclosure could be made to Mr. Wiggins. The Equicenter responded to Mr. Madden's request by telecopying to him a copy of the January 17 report, which was the only written report concerning Mr. Wiggins that was in existence at that time. Mr. Madden then provided Mr. Wiggins with a copy of that January 17 report.

 On either Friday, January 19 or Monday, January 22, the McLean regional office completed its "reinvestigation" of Mr. Wiggins' criminal record and determined that in fact he had no criminal drug conviction in the District of Columbia. This information was communicated to the Equicenter, and on January 23 the Equicenter prepared a corrected report stating that Mr. Wiggins had no criminal convictions in Washington D.C. The parties appear to dispute, however, when this corrected report was sent to and actually received by DCI; plaintiffs contend that the report had not been received by DCI as of February 7, 1990. This lawsuit was commenced on January 29, 1990.

 III. DISCUSSION

 A district court may grant summary judgment if it is clear that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is appropriate only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Washington Post Co. v. U.S. Dep't of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). For purposes of evaluating a motion for summary judgment, the facts must be viewed in the light most favorable to the nonmoving party. Id. (citations omitted).

 A. The FCRA Counts.

 While investigative reports enable an employer to make informed evaluations about a possible employee's suitability for employment, the nature of credit reporting poses a great potential for abuse. In enacting the FCRA, Congress recognized "the need to insure that credit reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy." 15 U.S.C. § 1681(a)(4). The purpose of the FCRA is "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information . . . ." Id. § 1681(b).

 1. Count One.

 As described above, the Complaint contains five counts brought under the FCRA. The latter four-Counts Two, Three, Four, and Six-are each brought under a specific section of the FCRA, which is identified in the heading introducing that count. Unlike those counts, Count One contains no reference to any specific section. Instead, it is captioned merely "Violation of the Federal Credit Reporting Act."

 In the text under this general heading, however, plaintiffs assert that defendants "willfully fail[ed] to maintain and practice reasonable procedures that would have assured accuracy of reporting criminal records," Compl. at P 16, and "fail[ed] to maintain reasonable procedures to assure accurate reporting of criminal records . . . ." Id. at P 17. It is clear from these statements that Mr. Wiggins is alleging a "willful" violation *fn5" of 15 U.S.C. § 1681e(b); . Defendant ESI, in its memoranda, appears to assume that this is what is alleged. Moreover, Plaintiffs' Motion for Partial Summary Judgment only requested judgment for "willful and deliberate violations of the Fair Credit Reporting Act . . . ." Pls.' Mot. Summ. J. P 1. *fn6"

 Section 1681e(b) of the Act provides: "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." The Act does not hold consumer reporting agencies strictly liable for the dissemination of inaccurate information, id.; Stewart v. Credit Bureau, Inc., 236 U.S. App. D.C. 146, 734 F.2d 47 (D.C. Cir. 1984) ("[A] plaintiff cannot rest on a showing of mere inaccuracy . . . ."); Thompson v. San Antonio Retail Merchants Assoc., 682 F.2d 509, 513 (5th Cir. l982), but rather "establishes the broad minimum standard of 'reasonable procedures' and requires consumer reporting agencies to adopt procedures which meet that minimum standard." Hauser v. Equifax, Inc., 602 F.2d 811, 814 (8th Cir. 1979). In order to survive summary judgment, a plaintiff must "minimally present some evidence" from which it can be inferred that a consumer reporting agency failed to follow a minimum standard of reasonable procedures. Stewart, 734 F.2d at 51.

 Although the term "willful" is not defined in the Act, it is clear that neither malice nor evil motive need be established for a finding of "willfulness" to be made. See Stevenson v. TRW, Inc., 987 F.2d 288, 294 (5th Cir. 1993) (citing Fischl v. General Motors Acceptance Corp., 708 F.2d 143, 151 (5th Cir. 1983)). The Court therefore believes that "willful" under the Act is demonstrated by a showing of "knowingly and intentionally committed an act in conscious disregard for the rights of others." See id. at 293 (citing Pinner v. Schmidt, 805 F.2d 1258, 1263 (5th Cir. 1986), cert. denied, 483 U.S. 1022, 97 L. Ed. 2d 766, 107 S. Ct. 3267 (1987)).

 Upon a review of the record, the Court concludes that there are genuine disputes of fact concerning the existence and execution of the procedures of ESI, rendering summary judgment on this issue inappropriate for either side. For example, there is a dispute as to whether Ms. Plumer in fact "confirmed" the criminal record information with plaintiff's date of birth or used other procedural safeguards in determining the identity of Mr. Wiggins. There is also a dispute regarding ESI's interoffice information communications procedures-in this case, ...


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