Suzanne Aleshire v. Harris, N.A. , 586 F. App'x 668 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 12, 2013
Decided October 15, 2013
Before
DIANE P. WOOD, Chief Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12-1735 Appeal from the United States District
Court for the Northern District of
SUZANNE ALESHIRE, Illinois, Eastern Division
Plaintiff-Appellant, No. 08-cv-7367
v. Sharon Johnson Coleman, Judge.
HARRIS, N.A.,
Defendant-Appellee.
ORDER
Suzanne Aleshire leases out real property that she has rehabilitated and
improved. She was a customer at Villa Park Bank, where in December 2005 she
No. 12-1735 Page 2
maintained five separate loans with a total principal amount of $3,840,000.1 In December
2005, Harris, N.A., a federally chartered bank, acquired Villa Park Bank and Aleshire’s
loans. According to Aleshire, Harris began reporting the loans incorrectly to the
national consumer credit reporting agencies. Specifically, Aleshire alleges that Harris
double-reported each loan (once as a Villa Park Bank loan and once as a Harris loan),
misreported the amounts of each loan (including one of the loans as $9,999,999), and
reported each loan as over Aleshire’s available credit limit. Naturally, these errors
adversely affected Aleshire’s credit score and ability to borrow money or refinance the
loans. In June 2006, Aleshire met a Harris official who allegedly stated that the errors
would be corrected. Nonetheless, Harris failed to correct the prior erroneous reports
and even continued to erroneously report the loans.
In December 2008, Aleshire sued Harris and asserted various federal and state
law claims relating to Harris’s alleged errors concerning the loans. One of her federal
claims was for violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et
seq., arising out of Harris’s inaccurate reports to the national consumer credit reporting
agencies. One of her state law claims was a breach of contract claim brought under the
theory that the Harris official had orally agreed to correct the reporting errors at the
2006 meeting.
Harris moved to dismiss and Aleshire was granted leave to amend her
complaint. In June 2009, she filed her second complaint and added a second FCRA
claim wherein she alleged that Harris had improperly accessed her credit report. Harris
moved to dismiss, and the district court dismissed all of Aleshire’s claims except the
second FCRA claim. Because the dismissal was without prejudice, Aleshire had the
opportunity to re-plead her dismissed claims. Instead, in January 2010, she filed a third
complaint asserting her second FCRA claim and three new state law tort
claims—negligent misrepresentation, defamation per se, and negligent infliction of
emotional distress. Aleshire’s third complaint did not include her original FCRA claim
or state law breach of contract claim. Harris again moved to dismiss, and the district
court dismissed Aleshire’s three new state law tort claims, but allowed the second
FCRA claim to proceed.
1
We take the underlying facts from Aleshire’s allegations in her complaints, and we
treat those allegations as true.
No. 12-1735 Page 3
Then, in June 2011, Aleshire sought leave to file a third amended complaint (that
is, a fourth complaint) and proposed to assert four new state law claims arising out of
the 2006 meeting between Aleshire and the Harris official. The district court denied
Aleshire’s motion for leave to amend. Thereafter, Harris moved for summary judgment
on the one remaining count (that is, the second FCRA claim). Aleshire did not respond,
and the district court granted Harris’s motion for summary judgment. Aleshire appeals.
On appeal, Aleshire does not challenge the grant of summary judgment on her
second FCRA claim. Rather, Aleshire challenges the dismissal of her three state law
claims asserted in her third complaint and the denial of her motion for leave to file a
third amended complaint.
The district court dismissed Aleshire’s three state law tort claims on the ground
that they are preempted by the FCRA—specifically, 15 U.S.C. § 1681t(b)(1)(F). We
review that determination de novo. See Toney v. L’Oreal USA, Inc., 406 F.3d 905, 907–08
(7th Cir. 2005). Section 1681t(b) provides in pertinent part that “No requirement or
prohibition may be imposed under the laws of any State … with respect to any subject
matter regulated under … section 1681s-2 of this title, relating to the responsibilities of
persons who furnish information to consumer reporting agencies … .” Because
Aleshire’s state law tort claims arise out of Harris’s reports to consumer credit reporting
agencies, they relate to a matter regulated under section 1681s-2. Aleshire argues,
however, that section 1681t(b) should be read to preempt only state statutory law
claims, not state common law claims such as her three state law tort claims. Of course,
the distinction between state statutory law and statutory common law does not appear
on the face of section 1681t(b). Nonetheless, Aleshire argues, her construction of section
1681t(b) is necessary to avoid an inconsistency with section 1681h(e), which provides:
Except as provided in sections 1681n and 1681o of this title, no consumer
may bring any action or proceeding in the nature of defamation, invasion
of privacy, or negligence with respect to the reporting of information
against any consumer reporting agency, any user of information, or any
person who furnishes information to a consumer reporting agency, based
on information disclosed pursuant to section 1681g, 1681h, or 1681m of
this title, or based on information disclosed by a user of a consumer report
to or for a consumer against whom the user has taken adverse action,
based in whole or in part on the report except as to false information
furnished with malice or willful intent to injure such consumer.
No. 12-1735 Page 4
According to Aleshire, section 1681h(e) allows for state law claims alleging wilfully or
maliciously false reports to credit reporting agencies.2 But, Aleshire reasons, section
1681t(b) would bar all such claims—and thereby render section 1681h(e) a legal
nullity—unless it is read narrowly to apply only to state statutory claims.
Aleshire’s argument has garnered some sympathy among district courts. See, e.g.,
Manno v. Am. Gen. Fin. Co., 439 F. Supp. 2d 418, 425 (E.D. Pa. 2006); Johnson v.
Citimortgage, Inc., 351 F. Supp. 2d 1368, 1376 (N.D. Ga. 2004); Carlson v. Trans Union,
LLC, 259 F. Supp. 2d 517, 521 (N.D. Tex. 2003). However, in an appeal that is strikingly
similar to the instant one, we recently rejected the argument that section 1681t(b) should
be read narrowly to apply only to state statutory claims, and we held that section
1681t(b)’s preemptive force applies equally to state common law claims. Purcell v. Bank
of Am., 659 F.3d 622, 623–26 (7th Cir. 2011); see also Premium Mortgage Corp. v. Equifax,
Inc., 583 F.3d 103, 106–07 (2d Cir. 2009).3 Purcell controls here, and Aleshire offers no
compelling reason for us to reconsider our decision in that case. See Santos v. United
States, 461 F.3d 886, 891 (7th Cir. 2006).
At oral argument, Aleshire asserted that Purcell did not consider the possibility
that state law tort claims are not “requirement[s] or prohibition[s]” within the meaning
of section 1681t(b). But Aleshire forfeited this argument because she did not raise it in
her opening brief. See United States v. Banas, 712 F.3d 1006, 1010 n.1 (7th Cir. 2013).
Moreover, Aleshire’s argument does not depend upon any change in the law occurring
after we decided Purcell. So the mere fact that Purcell did not expressly address this
argument is no reason for us to abandon our holding in that decision. And finally,
Aleshire’s argument is without merit because state law tort claims are “requirement[s]”
for preemption purposes. See Lynnbrook Farms v. Smithkline Beecham Corp., 79 F.3d 620,
627–28 (7th Cir. 1996) (citing Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 522 (1992)).
2
The parties dispute whether Aleshire alleges willfulness and malice in her complaint.
We do not reach that question.
3
Purcell is controlling precedent in the Seventh Circuit, and yet counsel for Aleshire
failed to cite Purcell in her opening brief. We remind counsel that Rule 3.3(a) of both the Illinois
Rules of Professional Conduct and the Model Rules of Professional Conduct states: “A lawyer
shall not knowingly … fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel … .”
No. 12-1735 Page 5
Turning to Aleshire’s motion for leave to file a third amended complaint, we
observe that “district courts have broad discretion to deny leave to amend where there
is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue
prejudice to the defendants, or where the amendment would be futile … .” Arreola v.
Godinez, 546 F.3d 788, 796 (7th Cir. 2008). We review the district court’s denial of
Aleshire’s motion for abuse of discretion. Airborne Beepers & Video, Inc. v. AT & T
Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007). Aleshire concedes that the facts
underlying the proposed new claims were known to Aleshire at the time she filed her
original complaint. Thus, Aleshire had ample opportunity to assert her proposed claims
in either her original complaint or two successive complaints. Additionally, Aleshire’s
motion was filed over two years after she commenced the lawsuit, and after Harris bore
the burden of filing three motions to dismiss as well as of performing discovery on an
unrelated claim. The district court certainly did not abuse its discretion in denying
Aleshire’s motion for leave to file a third amended complaint. See, e.g., Hukic v. Aurora
Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (holding that district court did not abuse its
discretion in denying the plaintiff’s motion for leave to amend “late in the game” based
on information that was “available long before he sought leave to amend”).
Assuming Aleshire’s allegations are true, Harris’s incorrect reports to the credit
reporting agencies may well have caused Aleshire substantial harm. This is unfortunate,
but the district court did not err in dismissing Aleshire’s state law tort claims and did
not abuse its discretion in denying her motion for leave to file a third amended
complaint. Therefore, we must AFFIRM the judgment of the district court.