Michael R. Ray v. Equifax Information Services

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 13, 2009
No. 08-10879 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00482-CV-JOF-1
MICHAEL R. RAY,
Plaintiff-Appellant,
versus
EQUIFAX INFORMATION SERVICES, LLC,
MBNA AMERICA BANK, N.A.,
Defendants-Appellees,
ON-LINE INFORMATION SERVICES, INC., et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 13, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Michael R. Ray, a prisoner proceeding pro se, appeals the district court’s
grant of summary judgment in favor of Equifax Information Services, LLC
(“Equifax”) and MBNA America Bank, N.A. (“MBNA”) on his Fair Credit
Reporting Act (“FCRA”) claims as well as other non-dispositive rulings by the
district court.1 We previously remanded this case for failure to provide Ray with
notice as required by Federal Rule of Civil Procedure 56(c). Ray v. Equifax Info.
Services, LLC, 230 F. App’x. 871, 872 (11th Cir. 2007) (per curiam). Since then,
Ray has received proper Rule 56(c) notice.
On appeal, Ray first argues that the district erred in refusing to grant him
leave to amend his complaint. Second, he asserts that the district court erred in
stating that his second response to Equifax’s motion to dismiss was untimely when
it denied his motion for reconsideration because the court had granted him an
extension to file the response. Third, he argues that the district court abused its
discretion in denying his motion to extend discovery, refusing to reopen discovery,
1
In his complaint, Ray alleged that Equifax and MBNA and other defendants had been
negligent, breached fiduciary duties, violated the FCRA, 15 U.S.C. §§ 1681e(b), 1681i(a), and
violated the South Carolina Unfair Trade Practices Act, S.C. Code § 39-5-10. On appeal, he
only raises arguments in regard to his FCRA § 1681e(b) claim; therefore, the other claims have
been abandoned. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir.
2004) (stating that claims that have not been briefed are deemed abandoned and their merits will
not be addressed). Additionally, all defendants except Equifax and MBNA were dismissed.
2
not holding a Rule 26 discovery conference, and not requiring Equifax and MBNA
to make Rule 26 initial disclosures. Fourth, he contends that the district court
abused its discretion in denying his motion for judicial recusal because the judge
was prejudiced against him in his rulings after the case was reversed and
remanded. Lastly, he argues that the district court erred in granting summary
judgment in favor of Equifax and MBNA on his FCRA claims because Equifax did
not issue accurate reports and MBNA did not provide updated information on his
accounts to Equifax.
I. Denial of Leave to Amend
We review a district court’s denial of a motion to amend a complaint for an
abuse of discretion. Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1366
(11th Cir. 2007) (per curiam), cert. denied, 128 S. Ct. 2513 (2008).
Federal Rule of Civil Procedure 15(a) restricts the discretion of district
courts to dismiss complaints without providing an opportunity for amendment. See
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (per curiam). A plaintiff
may amend his complaint once as a matter of course before a responsive pleading
is served or “within 20 days after serving the pleading if a responsive pleading is
not allowed and the action is not yet on the trial calendar.” Fed. R. Civ. P.
15(a)(1). In all other cases, the court may grant leave for the plaintiff to amend his
3
complaint “[w]here a more carefully drafted complaint might state a claim.”
Bryant, 252 F.3d at 1163. Where a party’s motion to amend is filed after the
deadline for such motions as delineated in the court’s scheduling order, the party
must show good cause why leave to amend the complaint should be granted.
Fed.R.Civ.P. 16(b); Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11th Cir.
1998) (per curiam).
A district court need not allow an amendment, however, where (1) there has
been undue delay or bad faith; (2) allowing an amendment would cause undue
prejudice to the opposing party; or (3) an amendment would be futile. Bryant, 252
F.3d at 1163. In Maynard v. Board. of Regents of the Division of Universities of
the Florida Department of Education, 342 F.3d 1281 (11th Cir. 2003), we found
that a district court did not abuse its discretion in denying a plaintiff leave to
amend his complaint on the last day of an extended discovery period because it
“would have produced more attempts at discovery, delayed disposition of the case,
and likely prejudiced” the defendant, and there was no good reason why the
plaintiff could not have made the motion earlier. Id. at 1287. Further, we have
affirmed the denial of leave to amend where the plaintiff sought to raise an issue
for the first time after the defendant had moved for summary judgment. Layfield v.
4
Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979) (per curiam).2
Here, the district court did not abuse its discretion in denying Ray leave to
amend his complaint because an amendment would have resulted in undue delay as
Ray requested leave to amend two years after discovery ended, after the parties
filed substantive motions, and after the case had been remanded. Further, an
amended complaint would have prejudiced Equifax and MBNA because the
discovery period had expired. Because Ray did not present good cause to justify
the delay in the request, the district court was within its discretion in denying Ray’s
motion for leave to amend. Therefore, we discern no reversible error in this
respect.
II. Motion for Reconsideration
We review the denial of a motion for reconsideration for an abuse of
discretion. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004). “An
abuse of discretion occurs if the judge fails to apply the proper legal standard or to
follow proper procedures in making the determination, or bases an award upon
findings of fact that are clearly erroneous.” In re Hillsborough Holdings Corp.,
127 F.3d 1398, 1401 (11th Cir. 1997) (internal quotation marks and citation
omitted). Additionally, we give “great deference” to a district court’s
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), this court adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,
1981.
5
interpretation of its local rules and review a district court’s application of local
rules for an abuse of discretion. Reese v. Herbert, 527 F.3d 1253, 1267 n.22 (11th
Cir. 2008).
Here, Ray does not challenge the district court’s denial of his motion for
reconsideration, but rather challenges the district court’s finding that his second
response to Equifax’s motion to dismiss was untimely because the court granted
him an extension to respond to the motion to dismiss nunc pro tunc. Ray had
previously filed a timely response to the motion to dismiss, and the district court
ultimately found that the second response was a sur-reply not contemplated by the
local rules. Assuming arguendo that the district court erred in finding his second
response untimely, it did not abuse its discretion in denying the motion for
reconsideration because it considered the second response and found that it did not
“contain new evidence, an intervening change in the law, or explain any clear error
in the court’s previous ruling” to warrant reconsideration. Thus, there is no
reversible error in finding the response untimely.
III. Discovery Orders
We review the denial of a discovery motion for abuse of discretion.
Moorman v. UnumProvident Corp., 464 F.3d 1260, 1264 (11th Cir. 2006).
“District judges are accorded wide discretion in ruling upon discovery motions,
6
and appellate review is accordingly deferential.” Iraola & CIA, S.A. v. Kimberly-
Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (quoting Harris v. Chapman,
97 F.3d 499, 506 (11th Cir. 1996)). “Rather than viewing each discovery request
in isolation, we begin by considering the scope of discovery previously granted by
the [d]istrict [c]ourt.” Id. We will not overturn discovery rulings unless the ruling
resulted in substantial harm to the appellant’s case. Id.Additionally, we have stated:
A plaintiff’s entitlement to discovery prior to a ruling on a motion for
summary judgment is not unlimited. When the record becomes clear
enough to disclose that further discovery is not needed to develop
significant aspects of the case and that such discovery is not likely to
produce a genuine issue of material fact, discovery should be ended.
Aviation Specialties, Inc. v. United Technologies, Corp., 568 F.2d 1186, 1190 (5th
Cir. 1978).
According to the local rules for the Northern District of Georgia, motions for
a discovery extension “must be made prior to the expiration of the existing
discovery period” and “will be granted only in exceptional cases where the
circumstances on which the request is based did not exist or. . . could not have
[been] anticipated. . . .” N.D. Ga. R. 26.2(B).
Federal Rule of Civil Procedure 26(a)(1) requires that parties to civil actions
make initial disclosures. Fed. R. Civ. P. 26(a)(1)(A). The rule, however, exempts
7
proceedings brought under Fed. R. Civ. P. 26(a)(1)(B). Id. One such proceeding
is “an action brought without an attorney by a person in the custody of the United
States, a state, or a state subdivision.” Fed. R. Civ. P. 26(a)(1)(B)(iv). Thus,
defendants in civil actions brought by pro se prisoners are not subject to the initial
disclosure requirements. Id. Likewise, proceedings exempt from initial
disclosures under Fed. R. Civ. P. 26(a)(1)(B) are not subject to the Rule 26(f)
discovery conference rules. Fed. R. Civ. P. 26(f)(1).
Here, the district court did not abuse its discretion in denying Ray’s requests
to extend discovery and to reopen discovery upon remand because he had
previously received two discovery extensions. Discovery lasted approximately one
year, and Ray has not specified what information he was unable to obtain during the
discovery period or how further discovery would have been helpful in resolving the
issues. Additionally, the district court was not required to conduct a Rule 26(f)
discovery conference or order the defendants to submit initial disclosures because
Ray was in state custody and he brought the action without an attorney.
IV. Recusal
We review for abuse of discretion a district court judge’s decision not to
recuse him or herself. United States v. Berger, 375 F.3d 1223, 1227 (11th
8
Cir.2004) (per curiam).
Two federal statutes, 28 U.S.C. §§ 144 and 455, govern recusal. See Hamm
v. Bd. of Regents, 708 F.2d 647, 651 (11th Cir. 1983). Sections 144 and 455 of
Title 28 are construed in pari materia. In re Corrugated Container Antitrust Litig.,
614 F.2d 958, 965 (5th Cir. 1980).
Section 144 of Title 28 provides: “Whenever a party to any proceeding in a
district court makes and files a timely and sufficient affidavit that the judge before
whom the matter is pending has a personal bias or prejudice either against him or
in favor an adverse party, such judge shall proceed no further therein . . . .” 28
U.S.C. § 144. The affidavit must be filed “not less than ten days before the
beginning of the term at which the proceeding is to be heard . . . .” Id. Further, it
must be accompanied by a “certificate of counsel of record stating that it is made in
good faith.” Id. “To warrant recusal under § 144, the moving party must allege
facts that would convince a reasonable person that bias actually exists.” Christo v.
Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000) (per curiam). “Properly pleaded
facts in a § 144 affidavit must be considered as true.” Id.
Section 455(a) of Title 28 instructs a federal judge to disqualify himself if
“his impartiality might reasonably be questioned,” and § 455(b) requires
9
disqualification when a judge, inter alia, has a “personal bias or prejudice
concerning a party.” 28 U.S.C. § 455(a) and (b). Under 455(a), the test is
“whether an objective, disinterested, lay observer fully informed of the facts
underlying the grounds on which recusal was sought would entertain a significant
doubt about the judge’s impartiality.” Parker v. Connors Steel Co., 855 F.2d 1510,
1524 (11th Cir. 1988). Further, to disqualify a judge under § 455, the bias “must
stem from extrajudicial sources, unless the judge’s acts demonstrate ‘such
pervasive bias and prejudice that it unfairly prejudices one of the parties.’” United
States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999) (per curiam) (quoting United
States v. Ramos, 933 F.2d 968, 973 (11th Cir. 1991)). Thus, the bias must be
personal, as opposed to judicial in nature. United States v. Archbold-Newball, 554
F.2d 665, 682 (5th Cir. 1977). “Precedent clearly holds that adverse rulings alone
do not provide a party with a basis for holding that the court’s impartiality is in
doubt.” Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001).
Moreover, “opinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a deep-
seated favoritism or antagonism that would make fair judgment impossible.”
10
Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994). In
Liteky, the Supreme Court found that adverse rulings, and a judge’s post-trial
refusal to allow petitioners to appeal in forma pauperis, among other things, were
“judicial rulings, routine trial administration efforts, and ordinary admonishments,”
which were insufficient to require a judge’s recusal. Liteky, 510 U.S. at 556, 114
S. Ct. at 1158.
Here, the district court judge did not abuse his discretion in denying Ray’s
motion for recusal. Ray did not show that the district court judge was impartial or
had a personal bias or prejudice against him. The adverse rulings (the grant of
summary judgment in favor of MBNA and Equifax and the denial of several
motions, including the request to re-open discovery) and the fact that the judge
presided over previous proceedings was not enough to show impartiality. Because
Ray did not show a bias stemming from an extrajudicial source and the Judge’s
acts did not show that he was prejudiced, the district court did not abuse its
discretion in denying the motion for judicial recusal.
V. FCRA Claims
We review a district court’s grant of a motion for summary judgment de
novo. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002).
11
Summary judgment is proper if the pleadings, depositions, and affidavits show that
there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S. Ct. 2548 (1986) (citing Fed. R. Civ. P. 56(c)). The evidence and all inferences
drawn from facts must be viewed in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S. Ct. 1348 (1986). In order to defeat summary judgment, however, the non-
moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Id. at 586, 106 S. Ct. 1348. The non-moving party
must make a sufficient showing on each essential element of the case for which he
has the burden of proof. Celotex, 477 U.S. at 322, 106 S. Ct. at 2548.
The “FCRA provides a private right of action against businesses that use
consumer reports but fail to comply” with its requirements. Safeco Ins. Co. of
America v. Burr, 551 U.S. 47, __, 127 S.Ct. 2201, 2206 (2007). The FCRA also
creates a private right of action against consumer reporting agencies and furnishers
of information for negligent or willful violations of these duties imposed by this
legislation. See 15 U.S.C. §§ 1681n, o.
A. FCRA Claims against Equifax: Section 1681e(b)
12
Section 1681e(b) of Title 15 of the FCRA provides that “[w]henever a
consumer reporting agency prepares a consumer report it shall follow reasonable
procedures to assure maximum possible accuracy of the information concerning
the individual about whom the report relates.” 15 U.S.C. § 1681e(b). To establish
a prima facie violation of § 1681e(b), a consumer must present evidence that (1) a
credit reporting agency’s report was inaccurate and (2) that the inaccurate report
was a causal factor in the denial of his credit application. Cahlin v. General
Motors Acceptance Corp., 936 F.2d 1151, 1156, 1161 (11th Cir. 1991). The
“failure to produce evidence of damage resulting from a FCRA violation mandates
summary judgment.” Nagle v. Experian Info. Solutions, Inc., 297 F.3d 1305, 1307
(11th Cir. 2002).
Here, Ray failed to produce the 2004 credit report which Ray claims
Citibank relied on when denying him credit. Ray also failed to present evidence
that the inaccurate information contained in his reports were the cause of his failure
to obtain credit.
Ray produced a letter from Citibank as evidence that an inaccurate credit
report caused him injury, but the Citibank letter itself stated that Ray had been
denied an account because a “credit obligation related to a bankruptcy . . . was
13
recorded on [his] credit bureau report.” Ray argues that the letter from Citibank
was referring to the missing positive entries and MBNA’s failure to report his
accounts as “discharged in bankruptcy.” However, because Ray failed to produce
the credit report from 2004 which Citibank would have relied on, he cannot show
that it was inaccurate, or even that the issues he complained of were not rectified.
Ray never produced any other evidence suggesting that Citibank or any
other creditor denied him credit because of inaccuracies in the credit report
produced by Equifax. Because Ray failed to produce the 2004 credit report, he did
not create a genuine issue of material fact that inaccurate information was reported
by Equifax or that it caused him harm, and he therefore failed to establish a prima
facie case of a violation of § 1681e(b).3
B. FCRA Claims against MBNA: Section 1681s-2
3
We acknowledge that different interpretations of what constitutes an “accurate” credit
report have led to the development of two differing judicial perspectives. These are the
“technically accurate” approach where a credit reporting agency satisfies its duty if it produces a
report containing “factually correct information about a consumer that might nonetheless be
misleading or incomplete in some respect,” Cahlin v. General Motors Acceptance Corp., 936
F.2d 1151, 1157 (11th Cir. 1991) (citing Todd v. Associated Credit Bureau, Inc., 451 F. Supp.
447 (E.D.Pa. 1977), aff’d mem., 578 F.2d 1376(3d Cir. 1978)), and the “maximum possible
accuracy” approach where a credit reporting agency is unable to prevail on summary judgment if
the agency “reported factually correct information that could also be interpreted as being
misleading or incomplete.” Cahlin, 936 F.2d at 1157 (citing Koropoulos v. Credit Bureau, Inc.,
734 F.2d 37, 42-45 (D.C. Cir. 1984)). While the district court in this case used the “technically
accurate” approach, this Court has not yet adopted either model. We do not reach the issue here,
however, because Ray has failed to produce any evidence of an inaccuracy that was a causal
factor in the denial of his credit application.
14
In his reply brief, Ray argues for the first time on appeal that MBNA had a
duty to conduct a reasonable investigation into his account after receiving notice
from Equifax that there was a dispute regarding the accounts, according to 15
U.S.C. § 1681s-2(b). However, “we do not address arguments raised for the first
time in a pro se litigant’s reply brief.” Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008) (per curiam) (citing Lovett v. Ray, 327 F.3d 1181, 1183(11th Cir. 2003).
Because Ray raised the issue for the first time in reply brief, it has been waived.
IV. Conclusion
Upon review of the record and consideration of the parties’ brief, we discern
no reversible error. Accordingly, we affirm the district court’s grant of summary
judgment in favor of Equifax and MBNA.
AFFIRMED.
15