Wagner v. TRW Inc

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30601
Summary Calendar
_____________________
EMILY J. WAGNER,
Plaintiff-Appellant,
versus
TRW, INC.,
Defendant-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Western District of Louisiana
(95-CV-1865)
_______________________________________________________
March 4, 1998
Before REAVLEY, KING and DAVIS, Circuit Judges.
PER CURIAM:*
Emily Wagner sued TRW, Inc. for violations of the Fair
Credit Reporting Act (FCRA)1 seeking actual damages, punitive
damages, costs and attorneys fees. The trial court granted
summary judgment for TRW, Inc., and Wagner now appeals. We
affirm.
*
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this opinion should not be published and is not precedent except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.
1
15 U.S.C. §§ 1681 et seq. (1998).
In June 1994, Wagner requested a copy of her credit report
from TRW after being turned down for credit. The credit report
contained an entry which stated that Wagner had “5 or more” late
payments on an account with JC Penney. Wagner complained about
this entry. TRW sent a consumer dispute verification request
(CDV) to JC Penney; the CDV indicated that Wagner had been late
with payment “6+ times.” JC Penney confirmed that the report was
correct. Wagner complained again to TRW, another CDV was sent
out, and JC Penney again confirmed the information. At this
time, the employment line was changed from “psychological
services” to “Bottlecap Lounge.” Wagner complained, and the
employment information was corrected.
Discussion
This Court reviews a district court’s grant of summary
judgment de novo, applying the same standard as did the district
court.2 Summary judgment is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”3
2
Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th
Cir. 1995).
3
Fed. R. Civ. P. 56(c) (1997).
2
The FCRA requires 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.”4 The
FCRA is to be liberally construed in favor of the consumer.5
The legislative history of the FCRA reveals
that it was crafted to protect consumers from
the transmission of inaccurate information
about them, and to establish credit reporting
practices that utilize accurate, relevant,
and current information in a confidential and
responsible manner.6
This Court has previously noted the distinction between
“accurate information” and “maximum possible accuracy.”7 In
Pinner v. Schmidt, this Court found that a notation of
“Litigation Pending” was ambiguous, and could easily be construed
to indicate that the plaintiff was being sued by the company,
while the situation was actually the reverse.8 The Court found
that “[i]t would have been a simple matter to prevent this
ambiguity,” and that this was sufficient to uphold a jury verdict
4
15 U.S.C. § 1681e(b) (1998).
5
Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333
(9th Cir. 1995).
6
Id. (citations omitted).
7
Pinner v. Schmidt, 805 F.2d 1258, 1262 (5th Cir. 1986).
8
Id.3
in favor of the plaintiff.9 The standard used by the court was
“what a reasonably prudent person would do under the
circumstances.”10 Wagner argues that TRW’s use of “or more” was
unreasonably ambiguous because it could mean that she was late 6,
10, or 100 times. However, in contrast with the entry at issue
in Pinner, the “or more” notation, although imprecise, is neither
inaccurate nor open to an interpretation that is directly
contradictory to the true information.
Wagner also argues that TRW violated the FCRA by entering
incorrect employment information. However, Wagner has presented
no evidence that the erroneous information was ever disclosed to
a third party. No case has extended FCRA damages to include pain
and suffering damages based on information that a credit
reporting agency never provided to any third party .11
9
Id. at 1262-63.
10
Id. at 1263.
11
See Casella v. Equifax Credit Info. Servs., 56 F.3d 469,
474-75 (2d Cir. 1995) (holding that the plaintiff was not
entitled to any damages for pain and suffering simply because
plaintiff knew there was inaccurate information on plaintiff’s
credit report, because that information was not conveyed to any
third party); Hyde v. Hibernia Nat. Bank, 861 F.2d 446, 449 (5th
Cir. 1988) (“The statute does not allow suit against the credit
agency for creating, possessing, or revealing to a consumer
credit files containing erroneous information.”). Cf. Stevenson
v. TRW, Inc., 987 F.2d 288, 297 (5th Cir. 1993) (allowing
recovery where plaintiff was denied credit three times and
experienced considerable embarrassment from having to discuss his
problems with business associates and creditors).
4
Wagner also claims that TRW violated the FCRA by not
disclosing the source of this inaccurate employment information.
The FCRA states that “[e]very consumer reporting agency shall,
upon request [and proper identification of any consumer], clearly
and accurately disclose to the consumer . . . [t]he sources of
the information.”12 Courts have previously rejected attempts by
a credit agency to simply plead ignorance.13 Although this issue
was mentioned in the recitation of the facts in the complaint,
the plaintiff did not specifically plead a violation of §
1681g(a)(2) in the complaint, nor did the plaintiff raise the
issue in its response to TRW’s motion for summary judgment. This
Court will not consider arguments that were not presented to the
district court.14
Because Wagner has not presented evidence of an actionable
claim of actual damages, we do not reach the issue of punitive
damages.
AFFIRMED
12
15 U.S.C. § 1681g(a)(2); Guimond v. Trans Union Credit
Info. Co., 45 F.3d 1329, 1334 (9th Cir. 1995).
13
See Guimond, 45 F.3d at 1334.
14
Williams v. Time Warner Operation, Inc., 98 F.3d 179, 183
(5th Cir. 1996).
5