Birmingham v. EXPERIAN INFORMATION SOLUTIONS, INC.
2011 U.S. App. LEXIS 2340
| 10th Cir. | 2011Background
- Birmingham, victim of identity theft, had fraudulent Verizon Wireless accounts opened in his name and disputed related charges with the credit bureaus.
- Verizon reports of unpaid charges were transmitted to Experian, Equifax, and TransUnion, triggering Birmingham’s FCRA dispute.
- Birmingham sued Experian and various Verizon entities, seeking FCRA and Utah-law remedies; the district court granted Experian summary judgment and dismissed the Verizon-related claims without leave to amend.
- The district court found Experian’s procedures reasonable and not willfully noncompliant; it concluded no evidence of intentional or reckless misconduct by Experian.
- Birmingham later sought to amend to name Cellco Partnership (d/b/a Verizon Wireless) as a defendant, arguing Cellco was the proper party; the court denied the amendment and dismissed the case for lack of a proper defendant.
- On appeal, the Tenth Circuit affirmed (1) the grant of summary judgment to Experian for lack of willful violation, and (2) the denial of the amendment to name Cellco and related dismissal of Verizon Defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Experian willfully violated the FCRA. | Birmingham contends willfulness based on inadequate investigation. | Experian followed reasonable procedures; no reckless disregard. | No willful violation; summary judgment for Experian affirmed. |
| Was Cellco a party to the litigation or should it have been joined under Rule 19? | Cellco was the reporting entity and should be treated as a party. | Cellco was not named; parent/partner relationships do not render it a party; Rule 19 inapplicable here. | Cellco was not a party; district court’s dismissal proper. |
| Was the district court's denial of the motion to amend to add Cellco an abuse of discretion? | Delay was justified by discovery and dispositive motions; amendment should relate back. | Delay undue; prejudice to defendants; no relation back. | Denial of amendment upheld; no abuse of discretion. |
| Were the Verizon Defendants properly dismissed given the discovery and joinder history? | Not all relevant entities were named; discovery confusion implicated Cellco. | Proper defendants identified; nonnamed entities could not be joined to salvage claims. | Verizon Defendants properly dismissed. |
Key Cases Cited
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (U.S. 2007) (recklessness defined by objective risk of harm)
- Benton v. Cameco Corp., 375 F.3d 1070 (10th Cir. 2004) (parent-subsidiary distinction; corporate veil principles)
- United States v. Bestfoods, 524 U.S. 51 (U.S. 1998) (corporate veil and parent liability)
- Taylor v. Sturgell, 553 U.S. 880 (U.S. 2008) (boundaries of nonparty preclusion; PR doctrine)
- Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379 (10th Cir. 1997) (Rule 19 indispensability considerations)
- Minter v. Prime Equipment Co., 451 F.3d 1196 (10th Cir. 2006) (timeliness and discretion in amending pleadings)
- FDIC v. Oaklawn Apartments, 959 F.2d 170 (10th Cir. 1992) (general appearance vs. proper party naming)
- Elf Atochem North America, Inc. v. Jaffari, 727 A.2d 287 (Del. 1999) (Delaware veil-piercing and corporate grouping)