Gregory Bickley v. Dish Network LLC , 751 F.3d 724 ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0098p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GREGORY BICKLEY, ┐
Plaintiff-Appellant/Cross-Appellee, │
│
│ Nos. 13-5956/5979
v. │
>
│
DISH NETWORK, LLC, │
Defendant-Appellee/Cross-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Kentucky at Louisville
No. 3:10-cv-00678—John G. Heyburn II, District Judge.
Decided and Filed: May 13, 2014
Before: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Zachary L. Taylor, MURPHY & POWELL, PLC, Louisville, Kentucky, for
Appellant/Cross-Appellee. Shea W. Conley, Matthew T. Lockaby, Lauren D. Lunsford,
REMINGER CO., LPA, Lexington, Kentucky, for Appellee/Cross-Appellant.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. This is a case about identity theft and apparently reflects
the axiom that no good deed should go unpunished. The issue presented is whether a corporation
violates the Fair Credit Reporting Act when it obtains a “consumer report” in the name provided
by an imposter in order to verify a consumer’s identity and eligibility for a business service. As
we determine that Dish Network’s conduct complied with the Fair Credit Reporting Act, we
1
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AFFIRM the district court’s grant of summary judgment on the related claims. We also
AFFIRM the district court’s entry of judgment on Dish’s counterclaim for abuse of process.
I. FACTS
On October 7, 2009, American Satellite, an independent, third party retailer of satellite
television services for Dish Network (“Dish”), received a phone call from a potential consumer
interested in obtaining satellite television. For reasons that are not clear from the record, the
initial caller, Patrice Louis, was unable to open an account. She then placed her “cousin,” who
purportedly resided in the same household, on the phone. This second person, who identified
herself as “Gregina Dickley,”1 provided the American Satellite representative with what she
claimed to be her social security number. In actuality, the number belonged to Gregory Bickley,
the plaintiff in the present case. Dickley was an identity thief, and Bickley would have been the
victim, but for the actions taken by American Satellite.
The American Satellite representative then inputted Dickley’s name and social security
number into an interface that connects to three credit reporting agencies: Equifax, Experian, and
TransUnion. The agencies followed a “waterfall” process as they attempted to cross-verify that
the information matched. The basic process was as follows: the first agency assessed whether
the social security number corresponded to the consumer’s name. If a match was found, in this
instance by Equifax, it would inform American Satellite that the person was “Approved;” but if
the search revealed a “Declined No Hit” response, Equifax would send the consumer’s
information to a second agency, Experian, to run the information through a similar cross-
verification process. If this second search also returned a “Declined No Hit” response, Experian
would forward the information to a third credit agency, TransUnion, which would run the
information through its databases. If TransUnion also returned a “Declined No Hit” response, it
would forward this final determination to the requesting company.
In the present case, TransUnion responded to the American Satellite representative with
“Declined No Hit.” This indicated that, following the “waterfall” process, all three credit
agencies—Equifax, Experian, and Transunion—had been unable to find a positive match based
1
This name is also referenced by some of the documents as “Crgringrina Dickley.” R. 42-2, Decision
Detail Report, PageID # 469.
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on the information provided. After receiving the TransUnion notification, American Satellite
informed Dickley that her attempt to open a new account had been declined. This short
conversation between an identity thief attempting to open an account using fraudulent
information and the American Satellite representative provides the humble origins for the present
litigation.
On October 20, 2009, Bickley received a credit report indicating that “Dish” had
purportedly made an inquiry of some kind under his name. Whether Dish actually made the
inquiry or whether the credit report indicated that Dish had made the inquiry because American
Satellite contacted the credit agencies using Dish’s credit-agency interface is disputed.
Regardless, shortly after Bickley learned about the “Dish” inquiry, Dish contacted him and
informed him that someone had attempted to open an account in his name. Dish even provided
Bickley with a recording of the phone conversation between the American Satellite
representative and the identity thief, Dickley.
Almost a year after learning about the “Dish” inquiry, and despite knowing that the
inquiry had prevented the theft of his identity, on November 3, 2010, Bickley filed a complaint
initiating the present litigation. The complaint alleged that Dish wilfully and negligently violated
the Fair Credit Reporting Act (“Fair Credit Act”), 15 U.S.C. § 1681b, by requesting and using
his credit report without having a “permissible purpose.” Despite this allegation, or perhaps
precisely because this allegation hinges on the existence of a “permissible purpose,” neither the
complaint nor the amended complaint make any mention of the attempted identity theft. When
asked at his deposition whether the identity theft, which triggered the credit inquiry in the first
place, was an important aspect to this case, Bickley responded, “Possibly. I’m not too sure.” R.
36-2, Bickley Dep. at 87, PageID # 306. We are not so lukewarm, and find the conspicuous
underdevelopment of this key factual detail in Bickley’s complaint and in the briefs bordering on
deceitful.
Not content with merely alleging a statutory violation, Bickley also contended in the
complaint that Dish intentionally inflicted emotional distress through its conduct. That is,
Bickley alleged that, despite having more than one dozen other credit inquiries on his report, he
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“suffer[ed] severe mental and emotional distress, anguish, humiliation, and loss of privacy”2
because Dish allegedly received a consumer report that enabled it to prevent the theft of
Bickley’s identity.
Following Bickley’s complaint, Dish filed a counterclaim for abuse of process. Dish
contended that Bickley lacked good faith in bringing his Fair Credit Act claim because he knew
that the credit score inquiry had actually been undertaken by American Satellite, not Dish, and
that any indication that Dish had made the inquiry was due to the fact that American Satellite
contacted the credit agencies using Dish’s credit-agency interface. Dish also argued that Bickley
had brought suit against it, instead of American Satellite, which was then defunct, in order to
extort settlement money. Dish subsequently moved for summary judgment on all of Bickley’s
claims and further requested that the district court enter a default judgment in its favor or, in the
alternative, grant summary judgment on its counterclaim because Bickley had failed to answer or
respond. Bickley contested the motion for summary judgment and, in turn, moved for judgment
on the pleadings with regard to Dish’s counterclaim.
The district court granted Bickley’s motion for judgment on the pleadings with regard to
the abuse of process claim, as well as Dish’s motion for summary judgment on the Fair Credit
Act claims. Bickley then moved the court to reconsider, and after granting an extension of time
for additional discovery, the district court affirmed the original grant of summary judgment for
Dish on the Fair Credit Act claims. Bickley now appeals the grant of summary judgment, and
Dish has cross-appealed the entry of judgment on the pleadings as to Dish’s abuse of process
counterclaim.
II. ANALYSIS
We review the district court’s grant of summary of judgment de novo. Newell
Rubbermaid, Inc., v. Raymond Corp., 676 F.3d 521, 526 (6th Cir. 2012). When reviewing such a
grant, we draw all inferences in the light most favorable to the nonmoving party and assess
whether the “record taken as a whole could not lead a rational trier of fact to find for the non-
moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In
2
Bickley made similar allegations against the credit agency Equifax. The district court dismissed these
claims following notice of a settlement.
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other words, summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. Pro. 56(a).
The Fair Credit Reporting Act of 1970, 15 U.S.C. § 1681, is designed to accomplish dual
goals: “to promote efficiency in the Nation’s banking system and to protect consumer privacy.”
TRW Inc. v. Andrews, 534 U.S. 19, 23 (2001); see also 15 U.S.C. § 1681(a)(4). Towards this
end, the Fair Credit Act regulates the permissible uses of “consumer reports,” which summarize
credit history and credit worthiness, see 15 U.S.C. § 1681b, and creates a private right of action
allowing injured consumers to recover for negligent and willful violations of the Fair Credit Act.
See 15 U.S.C. § 1681n (willful violations); 15 U.S.C. § 1681o (negligent violations).
Bickley has brought claims against Dish under both 15 U.S.C. § 1681n and § 1681o. To
maintain a claim for improper use of a credit report, the plaintiff must prove that the defendant
acted with the specified level of culpability.3 The plaintiff must also show three elements:
“(i) that there was a ‘consumer report’ within the meaning of the statute; (ii) that the defendant
used or obtained it; and (iii) that the defendant did so without a permissible statutory purpose.”
Godby v. Wells Fargo Bank, N.A., 599 F. Supp. 2d 934, 937 (S.D. Ohio 2008); Phillips v.
Grendahl, 312 F.3d 357, 364 (8th Cir. 2002) abrogated on other grounds by Safeco Ins. Co. of
Am. v. Burr, 551 U.S. 47 (2007). If Bickley fails to demonstrate any element of this analysis, the
Fair Credit Act claim must fail. We address each element in turn.
1) Was there a “consumer report” within the meaning of the statute?
The district court sustained Dish’s motion for summary judgment after determining that
Bickley had failed to show enough evidence that Dish received a “consumer report” under the
Fair Credit Act. A “consumer report” is defined as the following:
The term “consumer report” means any written, oral, or other communication of
any information by a consumer reporting agency bearing on a consumer’s credit
worthiness, credit standing, credit capacity, character, general reputation,
3
Dish raises a number of defenses on appeal, such as arguing that it did not have an agency relationship
with American Satellite and that insufficient evidence has been presented that it had the requisite mental state. We
do not address these arguments because we find the presence of a “permissible purpose” to obtain a credit report to
be dispositive.
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personal characteristics, or mode of living which is used or expected to be used
or collected in whole or in part for the purpose of serving as a factor in
establishing the consumer's eligibility for--
(A) credit or insurance to be used primarily for personal, family, or
household purposes;
(B) employment purposes; or
(C) any other purpose authorized under section 1681b of this title.
15 U.S.C. § 1681a(d)(1) (emphasis added). Bickley contests the district court’s determination
that Dish did not receive a “consumer report.” Although there is compelling evidence that
American Satellite contacted the credit agencies using Dish’s credit-agency interface, and that
Dish only accessed Bickley’s “consumer report” when it investigated and provided discovery
responses in the present case, “at the summary judgment stage the judge’s function is not himself
to weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Bickley points to several different pieces of evidence as proof that Dish obtained a
“consumer report.” (1) Bickley’s “credit report” from Equifax indicates that “Dish Network”
made an “inquiry”4 on October 7, 2009. (2) Internal records from Equifax vaguely indicate that
Dish made an “identification inquiry” and a “credit report inquiry” on October 7, 2009. (3) An
email from counsel for Equifax indicates that Dish received only “header” information on
October 7, 2009. (4) A report produced by Dish during discovery and titled the “Decision Detail
Report,” which was purportedly created on October 7, 2009, shows Bickley’s Echostar Risk
number, which is discussed further infra. (5) On the motion to reconsider the grant of summary
judgment, Bickley presented to the district court an interrogatory response from Equifax, which
provides, “[o]n or about October 7, 2009, Dish Network requested a consumer report from
Equifax for an individual that Dish Network identified as Crgringrina Dickley . . . . Equifax
provided Dish Network with a copy of Plaintiff’s credit file because the file contained a
matching social security number and address.”
4
While the parties and the credit agencies may refer to some of these documents as “inquiries,” “credit
reports,” or “consumer reports,” the term “consumer report” has legal significance and is statutorily defined. We,
therefore, look at the contents of the reports themselves to assess whether they reach the threshold established in
15 U.S.C. § 1681a(d)(1), rather than conclusorily determining that something is a “consumer report” based upon the
parties’ idiosyncratic and self-serving nomenclature.
Nos. 13-5956/5979 Bickley v. Dish Network Page 7
While we agree with the district court that the credit inquiries resulting in a “Declined No
Hit” response (1 & 2) and that the ambiguously termed “Header Information” (3) are not
“consumer reports,” the Decision Detail Report (4) appears to be a consumer report. Both
parties acknowledge that the Decision Detail Report contains an “Echostar Risk” number, which
is “based on the number of consumer initiated inquiries in the past 12 months, length of time
bank revolving accounts have been opened, length of time accounts have been opened, and the
percent of accounts opened in the past 24 months versus total accounts reported in the past
12 months.” R. 42-2, Decision Detail Report, PageID # 471. The Echostar Risk number clearly
has bearing on a consumer’s credit worthiness, and therefore is a “consumer report” as defined
under 15 U.S.C. § 1681(d).5 As to when Dish allegedly received the report, under the
“Summary Section,” the document states, “Date Created 10/07/2009.” This is the same date that
Dickley attempted to fraudulently open a Dish account. In addition to the Decision Detail
Report, Equifax’s admission (5) that it “provided Dish Network with a copy of Plaintiff’s credit
file” also suggests that Dish might have been provided a “consumer report.” See R. 37-1,
Picchione Dep. at 35-36, PageID # 360–61.
Taken altogether, there is sufficient evidence for a rational trier of fact to find that there
was a “consumer report” within the meaning of the statute, meaning that Bickley has satisfied the
first element of his claim for improper use of a credit report.
2) Did Dish “use or obtain” the “consumer report”?
We next turn to the “use or obtain” element. This is more easily disposed of. The district
court found that Dish “use[d] or obtain[ed]” a “consumer report.” See R. 56, Op. & Order, at 7
n.7, PageID # 578. Dish does not contest this allegation on appeal, see Def. Br. at 17, and even
if it did, the aforementioned evidence in the record creates a genuine issue of material fact
5
The District Court also concluded that the Decision Detail Report might be a “consumer report,” but
nonetheless found that that the Decision Detail Report was “irrelevant” to the litigation because Bickley had “not
contest[ed] that Dish Network only accessed [the Decision Detail Report] the day before the deposition.” The
determination that the issue was uncontested is not borne out by the record. Bickley spent several pages of his
“Opposition to Dish Network’s Motions for Default and Summary Judgment,” which was presented to the district
court, arguing that Dish Network had previously received Bickley’s “consumer report.” Bickley also attached the
Decision Detail Report as an exhibit to his motion. While Bickley certainly could have been clearer as to when Dish
Network obtained his “consumer report”—one might even argue that his language is purposefully opaque—we
cannot say that he conceded that the Decision Detail Report was only accessed one day before the deposition.
Nos. 13-5956/5979 Bickley v. Dish Network Page 8
regarding whether Dish obtained Bickley’s “consumer report” on October 7, 2009. Thus, the
second element is also established.
3) Did Dish use the “consumer report” without a permissible statutory purpose?
The final and dispositive question presented is whether Dish used the alleged “consumer
report” without a permissible statutory purpose.6 Under the Fair Credit Act, any consumer
reporting agency may furnish a “consumer report” to a person that it has reason to believe will
use the information for one of several permissible purposes detailed in 15 U.S.C. § 1681b. One
such “permissible purpose” arises when the person “otherwise has a legitimate business need for
the information . . . in connection with a business transaction that is initiated by the consumer.”
15 U.S.C. § 1681b(a)(3)(F)(i). Accordingly, we first look into whether there was a legitimate
business need, and second whether it was in connection with a business transaction initiated by
the consumer.
i. Was there a legitimate business need?
Dish contends that it had a legitimate need: “verifying the identity and qualification of the
caller for satellite television service.” Def. Br. at 20. While this is an issue of first impression
before this circuit, like the district court, we are persuaded that verifying the identity of a
consumer and assessing his eligibility for a service is a “legitimate business need,” and therefore
constitutes a permissible statutory purpose. It also seems beyond dispute that a “legitimate
business need” exists to prevent identity theft.
Bickley presents multiple arguments on appeal as to why Dish did not have a “legitimate
business need.” 15 U.S.C. § 1681b(a)(3)(F)(i). None of them are compelling, nor are they
supported by the case law. Beginning with the statutory terms, the term “legitimate business
needs” refers to the person who has requested the report—in this instance, it refers to Dish—not
to the consumer. See Pappas v. City of Calumet City, 9 F. Supp. 2d 943, 949 (N. D. Ill. 1998);
6
The parties hotly contest whether American Satellite or Dish requested the “consumer report.” We
assume for purposes of our analysis that Dish requested the report, but in either event, our analysis is the same.
There is no question that Dickley, the imposter, requested Dish satellite service, albeit through American Satellite.
Thus, the issue of whether either company had a “permissible purpose” in requesting the “consumer report” is
identical. Both American Satellite and Dish were acting as satellite television service providers. For this reason, we
reject Bickley’s disingenuous argument that American Satellite, a third-party retailer of Dish services, might have
had a permissible purpose in requesting his “consumer report,” but not Dish itself.
Nos. 13-5956/5979 Bickley v. Dish Network Page 9
Fernandez v. Retail Credit Co., 349 F. Supp. 652, 654–55 (E.D. La. 1972). We thus review
whether Dish had a “legitimate business need” for the information.
The case law makes clear that a company has a “legitimate business need” when it
assesses a consumer’s eligibility for a business service. See Smith v. Bob Smith Chevrolet, Inc.,
275 F. Supp. 2d 808, 816–17 (W.D. Ky. 2003) (“Congress primarily envisioned consumer
reports being disseminated for the purposes of assessing ‘eligibility.’”); Godby, 599 F. Supp. at
940–41 (similar); FTC Informal Staff Opinion Letter, William Haynes (Mar. 2, 1998) (similar).
For example, in Estiverne v. Sak’s Fifth Avenue, the Fifth Circuit held that a retail store had a
“legitimate business need” when it requested a credit report to determine whether or not to
accept or reject a consumer’s check. 9 F.3d 1171, 1173 (5th Cir. 1993); accord Ewing v. Wells
Fargo Bank, No. CV11–8194–PCT–JAT, 2012 WL 1844807, *5 (D. Az. May 21, 2012);
Williams v. AT&T Wireless Services, Inc., 5 F. Supp. 2d 1142, 1152 (W.D. Wash. Feb. 23,
1998). Just as the retailer in Estiverne had a legitimate business interest in attempting to avoid
being defrauded, other service providers, like Dish, have a legitimate interest in confirming that
prospective consumers are who they claim to be and are eligible for services. This prevents the
corporation from providing services that might not be reimbursed and protects innocent
consumers like Bickley whose identity might otherwise be stolen. The case law, thus, points to
one inescapable conclusion: Dish had a “legitimate business need” when it allegedly obtained the
Bickley’s consumer report.
Bickley does not address any of these cases, though many were relied upon by the district
court, preferring instead to draw this court’s attention to dicta in Andrews v. TRW Inc., 225 F.3d
1063 (9th Cir. 2000), reversed on other grounds, 534 U.S. 19 (2001). Andrews focused on
whether a credit agency had “reasonable grounds” under 15 U.S.C. § 1681b(a)(3)(A) for
providing a credit report to an imposter, claiming to be the plaintiff. We are concerned here
with whether a business, not a credit agency, had a “legitimate business interest” in requesting
and obtaining a report under 15 U.S.C. § 1681b(a)(3)(F). Not only are these distinct statutory
sections, but they also contain distinct standards on the basis that a credit reporting agency,
unlike a regular business, provides a gatekeeper function for sensitive credit information. See R.
68, Op. & Order at 7 n.5, PageID # 749. Bickley’s attempt to recharacterize the Andrews
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holding as focusing on “the legitimate business need” standard is clearly belied by the fact that
the words “legitimate business need,” or any combination thereof, are never used in the opinion,
nor is there any discussion on the point. As Andrews addressed a different standard and credit-
agency focused issues, which are not raised here, we do not find the court’s dicta to be
persuasive or relevant to the present inquiry.
Finally, Bickley argues that once Dish received the “Declined No Hit” response, it no
longer had any need to request his credit report. But this broadly overstates the case. A
“Declined No Hit” response is not the same as a “Fraud Alert” response, which raises the
immediate specter of identity theft. From Dish’s perspective, it was still dealing with a potential
consumer. This is why after receiving the “Declined No Hit” response, the American Satellite
representative still discussed other promotions with Dickley; there was not yet a reason to
suspect identity theft. We are left then with an initial inquiry and an alleged subsequent request
for a “consumer report” that were made on the same day and were for the same purpose. As both
requests were prompted by legitimate business needs—specifically, the need to clarify the
consumer’s identity and to ascertain his eligibility for service—the alleged request for a
“consumer report” was supported by a permissible statutory purpose.
In sum, on October 7, 2009, at the time Dish allegedly accessed Bickley’s credit report, it
believed that he was a potential consumer. Following the relevant case law, Dish had a
“legitimate business need” to request his consumer report. We reject the contention that a
company, dealing with an imposter purporting to be the consumer, should be held liable when
the company attempts in good-faith to verify the consumer’s identity and eligibility for
commercial services. To hold otherwise would twist the underlying purpose of the statute and
punish companies for preventing identity theft.7 The Fair Credit Act was not intended to be used
as a sword against businesses protecting consumers’ identities, and we decline to grant such a
weapon to a party as litigious and seemingly insensible of the benefit that he has received as
Bickley.
7
Even Bickley acknowledges that the October 7, 2009 inquiry was undertaken to verify the consumer’s
identity in a transaction purportedly initiated by the consumer. R. 36-2, Bickley Dep., PageID # 307–08.
Nos. 13-5956/5979 Bickley v. Dish Network Page 11
ii. Was this business transaction initiated by the consumer?
Bickley next contends that he did not “initiate” the business transaction with Dish, and
therefore, that it cannot be said that Dish “otherwise ha[d] a legitimate business need for the
information—in connection with a business transaction that is initiated by the consumer.”
15 U.S.C. § 1681b(a)(3)(F)(i). We reject such a hollow argument. Bickley is suggesting that
Dish violated the statute when it attempted to verify that it was in compliance with the statute by
ensuring that the transaction had in fact been initiated by the consumer. This cannot be accurate,
which is perhaps why there is, unsurprisingly, no case law to support the position. The
requirement that a consumer “initiate” a business transaction is designed to protect a consumer’s
privacy and credit-related data by preventing companies from running credit checks that are
unrequested by the consumer. It is readily apparent that such malfeasance did not occur in the
present case. To the contrary, by executing a cross-verification process, Dish safeguarded the
integrity of Bickley’s data and identity.
Bickley’s reading of the statute blithely ignores that a consumer did initiate the
transaction, and that Dish believed in good faith that Bickley was “the consumer.” It also
overlooks that Dish’s alleged conduct conferred a benefit to Bickley. He did not become the
victim of identity theft precisely because of Dish’s precautions. Other courts have noted that it is
reasonable to “infer the consumer’s implicit waiver or consent” where the business’ conduct “is
exactly the sort of thing the Fair Credit Act seeks to promote.” TransUnion Corp. v. F.T.C.,
8 F.3d 228, 234 (D.C. Cir. 1996); see also Smith, 275 F. Supp. 2d at 817 (“Congress intended to
allow access to a consumer report either when that access would benefit a consumer or would
facilitate the collection of a pre-existing debt.”). Here, Dish’s alleged conduct is perfectly
consonant with the underlying purpose of the consumer-initiated business transaction. Dish
attempted to protect a consumer, while simultaneously providing a service that is permitted by
the Fair Credit Act.
As Dish reasonably believed the transaction was initiated by the consumer, and as Dish’s
subsequent conduct was undertaken to protect the consumer and pursue a legitimate business
need, we conclude that Dish had a “legitimate business need” for the information and a
Nos. 13-5956/5979 Bickley v. Dish Network Page 12
“permissible purpose” to obtain Bickley’s “consumer report.” Thus, we AFFIRM the district
court’s grant of summary judgment on the Fair Credit Act claims.
4) Did the District Court err in entering judgment on the pleadings as to Dish’s
counterclaim for abuse of process?
The final question presented is whether the district court erred in entering a judgment on
the pleadings as to Dish’s abuse-of-process counterclaim. Dish alleges that Bickley lacked good
faith in bringing his Fair Credit Act claim and that it was entitled to either a default judgment
because Bickley failed to respond, or alternatively, to summary judgment. The district court
addressed Dish’s counterclaim on the pleadings, not on a motion for summary judgment or on a
motion for default. R. 54, Op. & Order at 5, PageID # 570 (“IT IS HEREBY ORDERED that
Bickley’s Motion for Judgment on the Pleadings is SUSTAINED.”) On appeal, our jurisdiction
is limited to the “final decisions of the district court of the United States.” 28 U.S.C. § 1291. We
therefore limit our analysis to whether the district court properly granted Bickley’s Rule 12(c)
motion to dismiss.
We review a district court’s motion for judgment on the pleadings de novo. Commercial
Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327. In assessing the pleadings, we take as
true “all well-pleaded material allegations.” United States v. Moriarty, 8 F.3d 329, 332 (6th Cir.
1993). “The motion [for judgment on the pleadings] is granted when no material issue of fact
exists and the party making the motion is entitled to judgment as a matter of law.” Paskvan v.
City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991).
Under Kentucky law, “[t]he essential elements of an action for abuse of process are (1) an
ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of
the proceeding.” Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky. 1998). In its counterclaim, Dish
formulaically repeated these same elements without any additional explanation. “Plaintiff had an
ulterior purpose, lacking good faith, for filing this groundless action against Dish Network. In
filing an action against Dish Network which he knew was meritless, the Plaintiff acted wilfully
and intentional in the use of process not proper in the regular conduct of legal proceedings.” R.
34, First Amended Counterclaim, at 8, PageID # 211. The district court rejected Dish’s
counterclaim after determining that it “consist[ed] of a recitation of the language comprising the
Nos. 13-5956/5979 Bickley v. Dish Network Page 13
essential elements of the tort of abuse of process without further divulgence of any factual
allegations or inferences that tend to prove the existence of those elements.” R. 54, Op. & Order
at 7, PageID # 569. We agree. It is not enough to allege an ulterior purpose without explaining
what that purpose actually was. Dish now contends that Bickley’s ulterior purpose was to extort
money from it by abusing the legal process, but this allegation was not clear from Dish’s
complaint.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” in pleading a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As
Dish has offered only a formulaic recitation of the elements of the cause of action, we AFFIRM
the district court’s dismissal of the counterclaim on the pleadings.
Although we dismiss Dish’s claim for abuse of discretion, we want to make clear that we
are not addressing the propriety of Rule 11 sanctions. Whether Bickley’s suit and then
subsequent motion for reconsideration and then subsequent appeal following a well-considered
district court judgment were intended for an impermissible purpose, such as to extort settlement
money from Dish Network, or whether Bickley’s claims constituted frivolous arguments because
they were unsupported by any case law, or whether Bickley’s mischaracterization or omission of
key factual contentions were intended to purposefully mislead the court, are not properly before
us.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM the district court’s grant of summary
judgment on the Fair Credit Act claims, and we also AFFIRM the district court’s entry of
judgment on the pleadings for the abuse of process claim.