George v. Equifax Mortgage Services ( 2010 )

08-5365-cv
George v. Transunion Credit Bureau
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28 th day of April, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GERARD E. LYNCH,
9 Circuit Judge,
10 JANE A. RESTANI * ,
11 Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 CHARLES GEORGE,
15 Plaintiff-Appellant,
16
17 -v.- 08-5365-cv
18
19 EQUIFAX MORTGAGE SERVICES,
20 Defendant-Appellee,
21
22 EQUIFAX CREDIT BUREAU,
23 Defendant-Cross-Defendant,
*
The Honorable Jane A. Restani, Chief Judge of the
United States Court of International Trade, sitting by
designation.
1
1 TRANSUNION CREDIT BUREAU AND EXPERIAN
2 CREDIT BUREAU,
3 Defendants Cross-Defendants
4
5 JP MORGAN CHASE MANHATTAN BANK,
6 Defendant Cross-Defendant
7 Cross Claimant,
8
9 EQUIFAX INFORMATION SERVICES, LLC,
10 Defendant
11
12
13 - - - - - - - - - - - - - - - - - - - -X
14
15 APPEARING FOR APPELLANT: Charles George, pro se, New
16 York, New York.
17
18 APPEARING FOR APPELLEES: Barry Goheen, King & Spalding
19 LLP, Atlanta, Georgia.
20
21 Appeal from a judgment of the United States District
22 Court for the Eastern District of New York (Irizarry, J.).
23 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
24 AND DECREED that the judgment of said District Court be and
25 hereby is AFFIRMED in part and VACATED in part and the
26 action is REMANDED for further proceedings consistent with
27 this order.
28 Plaintiff-appellant Charles George appeals from a
29 judgment of the United States District Court for the Eastern
30 District of New York (Irizarry, J.) granting the motion for
31 summary judgment by Equifax Mortgage Services (“EMS”) and
32 denying George’s motion for sanctions pursuant to Fed. R.
33 Civ. P. 11(b), his motion to strike, and his cross-motion
2
1 for summary judgment. We assume the parties’ familiarity
2 with the facts, proceedings below, and specification of
3 appellate issues.
4 For substantially the reasons stated by the district
5 court, George’s motion for Rule 11 sanctions, his motion to
6 strike, and his cross-motion for summary judgment were all
7 properly denied.
8 The district court granted summary judgment to EMS on
9 the ground that George failed to demonstrate that he had
10 disputed with EMS the credit information at issue before
11 filing this action. See Casella v. Equifax Credit Info.
12 Servs., 56 F.3d 469, 474 (2d Cir. 1995) (“Prior to being
13 notified by a consumer, a credit reporting agency generally
14 has no duty to reinvestigate credit information.”). George
15 had argued, as the district court acknowledged, “that he had
16 notified Equifax [Information Services, LLC (“Equifax”)]
17 prior to initiating this lawsuit [in August 2005], and that
18 EMS, as a division of Equifax, therefore should have
19 knowledge of his notification. EMS . . . was a division of
20 Equifax.” George v. Equifax Mortg. Servs., 2008 U.S. Dist.
21 LEXIS 75785, at *6 (E.D.N.Y. Sept. 30, 2008). 1
1
George also has argued that letters he wrote in June
2006 and August 2006 demonstrate that he contested his
credit report prior to this action; as he commenced this
suit in March 2006, these demonstrate no such thing.
3
1 However, in ruling that George’s “attempt to impute
2 Equifax’s knowledge of his dispute to its subsidiary, EMS,
3 fails as a matter of law,” the district court no longer
4 referred to EMS as a “division of Equifax,” but rather as a
5 “subsidiary.” Id. It is undisputed that “Appellee Equifax
6 Mortgage Services . . . is a division of Equifax Information
7 Services LLC,” not a subsidiary. See Appellee’s Brief,
8 Corporate Disclosure Statement (emphasis added). It was
9 therefore error to apply here the rules that limit the
10 imputation of a parent corporation’s knowledge to its
11 subsidiary; the relevant question was whether a court can
12 impute knowledge from one division of a corporation to
13 another, a question to which different rules apply. Compare
14 Bank of China v. NBM LLC, 359 F.3d 171, 179 (2d Cir. 2004)
15 (courts presume that an agent’s knowledge is imputed to the
16 principal corporation) with 18B Am. Jur. 2d Corporations §
17 1454 (notice to a parent constitutes notice to a subsidiary
18 only under specific circumstances); see also Western
19 Diversified Servs. v. Hyundai Motor Am., Inc., 427 F.3d
20 1269, 1276 (10th Cir. 2005) (“[W]e see no reason in equity
21 or otherwise to exempt [defendant corporation] from the
22 general principle that an employee’s knowledge gained in the
23 course and scope of the employment is imputed to the
24 corporation, and, therefore, to all of its departments.”);
4
1 D.C. Comics, Inc. v. Powers, 465 F. Supp. 843, 849 n.8
2 (S.D.N.Y. 1978) (“Before a parent’s knowledge will be
3 imputed to its subsidiary, it must be shown that the
4 parent’s employees informed of the infringement were under a
5 duty to report that information to the subsidiary.”).
6 As this error underlies the determination that George
7 had inadequately alerted EMS of his dispute before
8 commencing this action, we must vacate in part and remand.
9 EMS briefly argues that there is another possible
10 ground for summary judgment, specifically, the lack of proof
11 of actual damages. We decline to decide that question in
12 the first instance, and remand to the district court to
13 consider whether this or any other alternative grounds
14 support its grant of summary judgment.
15 Accordingly, the judgment of the district court is
16 hereby AFFIRMED in part and in part VACATED and REMANDED for
17 further proceedings consistent with this order.
18
19
20 FOR THE COURT:
21 CATHERINE O’HAGAN WOLFE, CLERK
22
5