Moody v. Experian Information ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50590
Summary Calendar
LYDIA V. MOODY; LYDIA E. VALDES,
Plaintiffs-Appellants,
versus
EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(SA-00-CV-603)
January 8, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Lydia V. Moody and Lydia E. Valdes appeal the summary judgment
awarded Experian Information Solutions, Inc. (Experian).
(Appellants' motion to supplement the record with two law review
articles they cite as authority or, alternatively, for this court
to take judicial notice of the articles, is DENIED).
Appellants make various challenges to the denial of their FED.
R. CIV. P. 59(e) motion. Because they did not amend their notice
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
of appeal after the motion was denied, we are without jurisdiction
to consider the denial. See Bann v. Ingram Micro, Inc., 108 F.3d
625, 626 (5th Cir. 1997).
Appellants have provided only general assertions regarding
their contentions that: they were entitled to attorney’s fees;
the district court should have certified a state law question to
the Texas courts; the district court should have remanded the case
to the state courts; and the defendants were negligent. And,
Appellants do not assert on appeal that they were entitled to
punitive damages. Accordingly, these issues are deemed abandoned.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987)(issues not briefed on appeal are deemed
abandoned).
A summary judgment is reviewed de novo, with the evidence
examined “in the light most favorable to ... the nonmovant[s]”.
Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir.
1992). Such judgment is proper when, viewing the evidence in this
light, “there is no genuine issue as to any material fact and ...
the moving party is entitled to judgment as a matter of law”.
Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir.
1991) (quoting Fed. R. Civ. P. 56(c)).
Appellants maintain the district court erred in granting
summary judgment with respect to their claims under the Fair Credit
Reporting Act (FCRA). They alleged in district court that Experian
violated FCRA through original reports it submitted to lenders.
They did not, however, present any evidence regarding the means by
which Experian gathered and compiled such information. In the
light of this absence of evidence, summary judgment was proper on
this ground. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76
(5th Cir. 1994) (en banc) (summary judgment appropriate where
evidence weak or tenuous on an essential fact such that it could
not support judgment in favor of nonmovant).
Appellants also challenge the summary judgment with respect to
their claims arising under the Texas Deceptive Trade Practices-
Consumer Protection Act (DTPA). They have not established,
however, that they are “consumers” as that term is defined under
DTPA. See TEX. BUS. & COM. CODE ANN. § 17.45(4) (2002); Riverside
Nat’l Bank v. Lewis, 603 S.W.2d 169, 174-75 (Tex. 1980).
Appellants further contend the district court erred in denying
relief on their negligence per se claims. The FCRA bars relief on
common-law claims unless the movant shows malice or willfulness on
the part of defendant. See 15 U.S.C. § 1681h(e). Appellants have
not done so.
Finally, Appellants maintain the district court denied their
constitutional right to a jury trial. Because a summary judgment
requires that no genuine issues of material fact exist for a jury
to try, “the right to trial by jury does not prevent a court from
granting summary judgment”. Plaisance v. Phelps, 845 F.2d 107, 108
(5th Cir. 1988).
MOTION DENIED; AFFIRMED
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