Galbraith v. Ameritrust ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 13 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GLENN GALBRAITH,
Plaintiff-Appellant,
v.
No. 96-1437
AMERITRUST OF CLEVELAND, an (D.C. No. 95-WY-2458-AJ)
Ohio business; DARYL LEAKE, an (D. Colo.)
individual; SOCIETY NATIONAL
BANK, an Ohio corporation,
Defendants-Appellees.
and
JOSEPH GORMAN, an individual;
MICHAEL JOPLIN, an individual;
THE EDUCATION RESOURCES
INSTITUTE, INC., a Massachusetts
corporation; TRW, Inc., an Ohio
corporation; WEST CAPITAL
FINANCIAL SERVICES
CORPORATION, a California
corporation, and DOE entity,
Defendants.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BRORBY, BARRETT, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant, appearing pro se, appeals the district court’s grant of
summary judgment in favor of defendants on all his claims. Because plaintiff has
not shown the existence of a genuine issue of material fact, and because
defendants Society National Bank (SNB), Daryl Leake, and Ameritrust of
Cleveland (Ameritrust) are entitled to judgment as a matter of law, we affirm the
summary judgment in favor of these defendants. We dismiss plaintiff’s appeal of
the orders resolving his claims against West Capital Financial Services
Corporation (West Capital) and Michael Joplin for lack of jurisdiction.
In late April 1995, plaintiff applied for a Law Access Program loan to
defray the costs of an educational program in Singapore during June and July.
Plaintiff intended to leave the country a month early to wed a woman in
Indonesia. On May 8, 1995, plaintiff contacted defendant SNB to determine the
status of his loan. Defendant Leake informed him that the loan had been denied
due to a “charge-off” debt on a credit report issued by TRW, Inc., and that he
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could not reveal the source of the alleged debt, but that such information could be
obtained from TRW. Upon being informed that plaintiff was leaving for
Indonesia the next day, Leake allegedly gave plaintiff the impression he could
reverse the denial if another credit report did not show the “charge-off” debt.
While plaintiff remained on the phone, Leake accessed at least one other credit
report which showed the alleged debt and a consumer statement disputing the
debt. Leake would not identify the credit reporting agency issuing this report, but
allegedly informed plaintiff that he would submit plaintiff’s application to its
guarantor, TERI, for approval.
On May 11, 1995, Leake submitted plaintiff’s application and credit reports
to TERI, and the application was approved on May 15, 1995. SNB disbursed the
loan to the University of Colorado, and a check was mailed to plaintiff’s parents,
who deposited the funds in plaintiff’s bank account. After leaving the country,
plaintiff made no further efforts to check on the status of his loan or rectify the
alleged error in his credit report until his return in August 1995.
When plaintiff returned to this country, he picked up a loan rejection letter
sent by SNB on May 8, 1995, informing him that the loan had been denied
because of a charge-off debt reported by “Trw Information Services,” and that
further information could be obtained by contacting the credit reporting agency.
Although the letter gave plaintiff a correct toll-free phone number, it listed an old
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address for the agency. Plaintiff called the listed phone number, but upon hearing
that he could only obtain a copy of his credit report by mail, did not listen to the
rest of the recording which contained a correct address. Plaintiff then located the
correct address through the library, and wrote to TRW, who supplied him with a
credit report. This credit report showed that plaintiff had been issued a loan in
May 1995 by Ameritrust, an entity related to SNB.
In September 1995, plaintiff filed this action against numerous defendants,
including SNB, Leake, and Ameritrust, as well as the parties allegedly responsible
for reporting the “charge-off” debt, West Capital and Michael Joplin. He claimed
that the denial of his loan and the impugnment of his credit caused his fiancee’s
family to withhold approval of his proposed marriage, required him to live in
unpleasant conditions in Singapore, and caused him severe emotional distress as a
result of the ongoing controversy. Plaintiff’s complaint sought damages for
willful violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681-1681u,
defamation, breach of contract, and products liability.
Numerous discovery disputes arose during this litigation, in which plaintiff
alleged that defendants had not complied with his requests. In August 1996,
defendants SNB, Leake, and Ameritrust filed a motion for summary judgment,
and plaintiff responded. On September 17, 1996, the district court granted this
motion, and plaintiff filed a notice of appeal on September 20, 1996. On
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September 26, 1996, the district court entered an order granting summary
judgment in favor of defendant West Capital and dismissing defendant Michael
Joplin without prejudice.
We examine first whether we have jurisdiction over this appeal. Plaintiff’s
September 20, 1996 notice of appeal identified the decision appealed from as the
“JUDGEMENT and ORDER granting two (2) illegally-filed motions for summary
judgement by defendants Ameritrust of Cleveland, Daryl Leake, and Society
National Bank entered in this action on September 16, 1996.” Supplemental
App., doc. 106. The notice of appeal was premature, however, as it was filed
while the claims against West Capital and Michael Joplin remained outstanding.
Upon the district court’s disposal of these claims, the notice of appeal ripened,
providing us with jurisdiction over plaintiff’s appeal. See Lewis v. B.F. Goodrich
Co., 850 F.2d 641, 645 (10th Cir. 1988). Our jurisdiction does not extend,
however, to the district court’s dismissal of the claims against West Capital and
Michael Joplin, as plaintiff did not file a second notice of appeal designating
these orders and judgments as the subject of his appeal. See Fed. R. App. P. 3(c)
(requiring timely notice of appeal designating “the judgment, order, or part
thereof appealed from”); Nolan v. United States Dep’t of Justice, 973 F.2d 843,
845-47 (10th Cir. 1992) (holding that although premature notice of appeal ripened
when order adjudicating outstanding claims was filed, court lacked jurisdiction to
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consider merits of subsequent order absent second notice of appeal or its
functional equivalent).
We review a grant of summary judgment de novo, applying the same
standards as those used by the district court. See Universal Money Ctrs., Inc. v.
American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Summary
judgment is appropriate if “there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We examine the record and reasonable inferences
therefrom in the light most favorable to the nonmoving party. See Applied
Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). The nonmoving party may not simply rely on allegations in the pleadings,
however, but must set forth, by affidavits or other evidence, specific facts
sufficient to show a genuine issue for trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); Flight Concepts Ltd. Partnership v. Boeing Co., 38
F.3d 1152, 1156 (10th Cir. 1994).
Plaintiff argues first that summary judgment was improper because the
evidence showed that defendants willfully violated the Fair Credit Reporting Act.
Under the Act, upon defendants’ denial of plaintiff’s loan application based on
information in a credit report, they were required to disclose that fact to him and
to supply him the name and address of the consumer reporting agency making the
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report. See 15 U.S.C. § 1681m(a) (1995). Plaintiff argues that defendants
violated this duty by failing to identify the producers of those credit reports relied
upon to “confirm the denial” of his loan. See Appellant’s Br. at 23. The statute
does not require such disclosure, however, requiring only that defendants identify
the producer of any credit report actually relied on in denying credit, as was done
here, without regard to subsequent events. Further, plaintiff failed to produce
any evidence that the other credit reports were used to “confirm the denial,”
merely speculating that Leake had some type of authority to override the denial if
other credit reports did not contain the same information. See Appellant’s App.,
doc. 88, ex. D, pp. 9-13. Summary judgment was appropriate on this issue.
Plaintiff also argues that defendants violated the Act by supplying an
incorrect name and address for TRW, Inc. The district court held that defendants
substantially complied with the requirements of the Act, citing Kiblen v. Pickle,
653 P.2d 1338, 1343 (Wash. Ct. App. 1982). On the undisputed facts, we agree.
The information provided by defendants accomplished the Act’s purpose of
identifying the agency issuing the adverse credit report and giving plaintiff a
method of contacting them. Based on this information, plaintiff, in fact, did
contact TRW. Further, there is no evidence that defendants acted willfully in
sending plaintiff the outdated address.
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Summary judgment was proper on plaintiff’s breach of contract claim.
Although plaintiff argues that judgment should not have been granted because
defendants breached a contractual duty by not approving his application, which
allegedly satisfied the Law Access Program’s criteria, he provided neither proof
of this contractual duty nor proof that he satisfied the criteria to the district court.
Plaintiff’s belated attempt to attach the contract to his brief will not save this
claim, as we do not consider evidence that was not presented to the district court.
See Allen v. Minnstar, Inc., 8 F.3d 1470, 1475-76 & nn.4, 5 (10th Cir. 1993)
(holding that appellate court will not, in reviewing summary judgment ruling,
consider evidence not before the district court).
Summary judgment was also proper on plaintiff’s products liability claim.
The district court granted judgment on the belief that Colorado would not
consider credit reports to be “products,” adopting the reasoning of L. Cohen &
Co. v. Dun & Bradstreet, Inc., 629 F. Supp. 1425, 1430-31 (D. Conn. 1986)
(holding that written materials were not products, and noting First Amendment
ramifications of imposing strict liability on protected speech). Plaintiff claims
that this holding ignores the law of the forum state, arguing that Colorado would
consider credit report to be products.
We need not decide this issue, however, because plaintiff failed to establish
that defendants manufactured such credit reports for sale, as is required to
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maintain a products liability claim under Colorado law. See Colo. Rev. Stat.
§ 13-21-402 (providing strict liability action may not be maintained unless
defendant was manufacturer of product); § 13-21-401 (defining manufacturer as
party who designs or produces product “prior to the sale of the product to a user
or consumer”). Although plaintiff argues that there is evidence that defendants
assembled their own report from raw data, he did not present any such evidence to
the district court. Further, there is no evidence that a report produced by
defendants was then sold to a user or consumer. Finally, Colorado has limited
products liability actions to instances where a product causes “physical harm” to a
consumer, which has not been shown here. See Hiigel v. General Motors Corp.,
544 P.2d 983, 989 (Colo. 1975) (limiting application of strict liability to physical
harm caused to person or property); see also Adams-Arapahoe Sch. Dist. No. 28-J
v. GAF Corp., 959 F.2d 868, 871 (10th Cir. 1992) (noting that Colorado expressly
limited doctrine to physical harm to person or property); Restatement (Second) of
Torts § 402A(1) (1965) (limiting liability to physical harm caused to ultimate
user or consumer).
Finally, the district court did not err in granting summary judgment before
discovery was completed. In his response to defendants’ motion for summary
judgment, plaintiff made no effort to notify the court that he was unable to
present his case absent additional discovery. See Appellant’s App., doc. 100.
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Nor did he take advantage of Fed. R. Civ. P. 56(f), which allows a party to obtain
a continuance pending further discovery, upon filing an affidavit identifying the
probable facts not available, the steps taken to obtain these facts, and how
additional time will enable plaintiff to rebut defendants’ allegations. See
Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1522-23 (10th
Cir. 1992). “Where a party opposing summary judgment and seeking a
continuance pending completion of discovery fails to take advantage of the shelter
provided by Rule 56(f) by filing an affidavit, there is no abuse of discretion in
granting summary judgment if it is otherwise appropriate.” Pasternak v. Lear
Petroleum Exploration, Inc., 790 F.2d 828, 832-33 (10th Cir. 1986).
Defendants have moved to strike portions of plaintiff’s brief. Because the
documents attached to plaintiff’s Opening and Reply briefs and certain statements
referenced in the briefs were not presented to the district court, we grant
defendants’ motion insofar as it relates to such documents, statements, and
arguments based thereon. See United States v. Farnsworth, 92 F.3d 1001, 1009
n.5 (10th Cir. 1996) (holding documents attached to appellate brief that were not
before district court will be stricken).
The portion of plaintiff’s appeal challenging the disposition of his claims
against West Capital Financial Services and Michael Joplin is DISMISSED for
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lack of jurisdiction, and the judgment of the United States District Court for the
District of Colorado is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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