JOHN C. BERKERY, SR. v. TRANS UNION, LLC
No. 21-1250
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AUGUST 15, 2023
PRATTER, J.
Case 2:21-cv-01250-GEKP Document 105 Filed 08/15/23
PRATTER, J. AUGUST 15, 2023
Pending before the Court are various motions relating to John C. Berkery‘s pro se claim that Trans Union, LLC violated the Fair Credit Reporting Act (FCRA) and Trans Union‘s counterclaim that Mr. Berkery breached a settlement agreement he entered into with Trans Union. Trans Union moves for summary judgment on Mr. Berkery‘s FCRA claim and on its breach of contract counterclaim against Mr. Berkery. Trans Union also moves to exclude evidence which Mr. Berkery attempts to submit in support of his response to the motion for summary judgment. Mr. Berkery moves for summary judgment on Trans Union‘s breach of contract counterclaim. For the reasons set forth below, the Court grants Trans Union‘s motion to exclude, grants Trans Union‘s motion for summary judgment in full, and denies Mr. Berkery‘s motion for summary judgment.
BACKGROUND
On August 1, 2018, Mr. Berkery filed a lawsuit against Trans Union, LLC, among others, alleging violations of the FCRA. Mr. Berkery and Trans Union reached a settlement agreement to resolve that litigation. In fact, Mr. Berkery executed a settlement agreement and release with Trans Union (the “Settlement Agreement“)—the terms of which Mr. Berkery agreed to keep
By executing the Settlement Agreement, Mr. Berkery agreed that the information included in his January 24, 2020 Trans Union consumer disclosure was accurate and that TruMark‘s reporting of its account as “charged off” on the Trans Union consumer disclosure was accurate.12 He further confirmed that any reporting of this information by Trans Union would not serve as the basis for any future claims against Trans Union.3 Under the Settlement Agreement, Mr. Berkery was also required to
[p]rovide Trans Union written notice of any claim or anticipated lawsuit against Trans Union at least thirty (30) days prior to its filing with any Court. This written notice shall provide the basis for the claim or proposed lawsuit and include the specific facts relating to Plaintiff‘s claim, the specific laws (statutory, including specific code sections, or common law) alleged to have been violated by Trans Union and the specific relief requested. Plaintiff agrees not to bring any legal action against Trans Union should Trans Union address and remedy the matter as requested in such notice within thirty (30) days of receipt.
Redacted Settlement Agreement ¶ 7; Def.‘s Statement of Material Facts ¶ 14. Finally, Mr. Berkery agreed that if Trans Union became involved in a litigation arising out of his breach of the Settlement Agreement, he would be responsible for Trans Union‘s reasonable attorneys’ fees incurred during the course of such litigation.4
On March 12, 2021, Mr. Berkery initiated this action by filing a complaint against Trans Union and other major credit reporting agencies, most of which have since been dismissed from this action.6 Mr. Berkery initially alleged that Trans Union reported false or misleading information regarding a TruMark account on his credit report in violation of the FCRA. During this litigation, Mr. Berkery has apparently narrowed his claims against Trans Union, and his only remaining claim is that Trans Union violated the FCRA by failing to delete the TruMark account upon receipt of the August 2020 AUD and allegedly continuing to report the account even after receipt of the AUD. Mr. Berkery takes issue with Trans Union‘s failure to delete the TruMark account, not with the accuracy of the account information reported.
Trans Union answered Mr. Berkery‘s complaint and filed a counterclaim alleging that Mr. Berkery breached the terms of the Settlement Agreement. Trans Union argued that Mr. Berkery violated the Settlement Agreement because he (1) did not contact Trans Union regarding any
Trans Union filed a motion for summary judgment as to Mr. Berkery‘s FCRA claim, and as to its counterclaim for breach of contract against Mr. Berkery. Mr. Berkery filed a response to the motion for summary judgment to which he attached multiple documents including, inter alia: (1) an August 2021 Veterans United Home Loans letter to Mr. Berkery and unidentified and undated pages relating to Mr. Berkery‘s credit score; (2) a December 23, 2020 letter addressed to Trans Union and a January 1, 2021 letter addressed to Trans Union; and (3) a Declaration of John E. Monari. Trans Union filed an objection and a motion to exclude these documents because Trans Union argues that Mr. Berkery did not previously produce or identify them, making the documents inadmissible evidence. Mr. Berkery filed a motion for summary judgment as to Trans Union‘s counterclaim for breach of contract. Each motion is ripe for resolution.
LEGAL STANDARD
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.”
The Court views the evidence presented in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255. However, “[u]nsupported assertions, conclusory allegations, or mere suspicions are insufficient to overcome a motion for summary judgment.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).
The Court notes that Mr. Berkery‘s pro se pleading should be “liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). That admonition does not demand that the Court ignore or discount reality, however, even given the indulgent nature of the Court‘s review of pro se pleadings. “[M]erely because a non-moving party is proceeding pro se does not relieve him of
DISCUSSION
Trans Union argues that it is entitled to summary judgment on Mr. Berkery‘s FCRA claim and its counterclaim that Mr. Berkery breached the terms of the Settlement Agreement. Mr. Berkery argues that he is entitled to summary judgment on Trans Union‘s breach of contract counterclaim. Before the Court can address these arguments, however, it must address Trans Union‘s motion to exclude the documents Mr. Berkery submitted in support of his response to Trans Union‘s motion for summary judgment.
I. Trans Union‘s Motion to Exclude Evidence
In its motion to exclude, Trans Union makes two principal arguments. First, it argues that three of the documents Mr. Berkery attaches to his response to Trans Union‘s motion for summary judgment—the August 2021 Veterans United Home Loans letter, and the December 23, 2020 and the January 1, 2021 letters addressed to Trans Union—were submitted in violation of Federal Rules of Civil Procedure 26(a) and 26(e), were not previously identified or produced during discovery, were confirmed not to exist during Mr. Berkery‘s deposition, and so, pursuant to Rule 37(c)(1), should be excluded. Second, Trans Union argues that the declaration of John E. Monari was submitted in violation of Rules 26(a) and 26(e), is objectionable under Rule 56(c)(2), and is inadmissible because Mr. Monari was not previously identified, making the declaration without foundation, and, hence, hearsay.
Rule 26(a) provides that “within 14 days after the parties’ Rule 26(f) conference,” the parties must provide to each other their initial disclosures, including “(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information . . . that the disclosing party may use to support its claims or defenses” and “(ii) a copy or a
[a] party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response . . . if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless.”
- the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or wilfulness in failing to comply with a court order or discovery obligation.
Nicholas v. Pa. State Univ., 227 F.3d 133, 148 (3d Cir. 2000).
A. The 2021 Loan Denial Letter, the December 2020 Letter to Trans Union, and the January 2021 Letter to Trans Union
Trans Union argues that before Mr. Berkery filed his response to Trans Union‘s motion for summary judgment, he never identified or produced the following documents: the August 2021 Veterans United Home Loans letter to Mr. Berkery, the December 2020 letter to Trans Union, and the January 2021 letter to Trans Union. Trans Union argues that Mr. Berkery did not identify or
On the other hand, Mr. Berkery argues that he was not required to turn over initial disclosures to Trans Union under Rule 26(a) because the parties never had a Rule 26(f) conference. He further argues that he was not required to turn over the documents in question—the 2021 loan denial letter and the December 2020 and the January 2021 letters to Trans Union—because these documents were already in Trans Union‘s possession. Pl.‘s Resp. to Def.‘s Mot. to Strike at 3, 5 (“The documents complained of were three letters from Plaintiff to Trans Union which were already in Defendant‘s possession and therefore not a discovery obligation and a denial of credit on a VA loan from Veteran‘s United Mortgage Company.“). Mr. Berkery also argues that Trans Union‘s arguments based on Rule 26(e) are “misplaced” because he contends that his case did not change such that he would be required to supplement his disclosures or responses. Thus, Mr. Berkery asserts that any argument that these documents must be excluded under Rule 37(c)(1) is “frivolous.”
Despite his arguments to the contrary, Mr. Berkery has failed to comply with his discovery obligations under Rule 26(a) and (e). Having responded to Trans Union‘s discovery requests, Mr. Berkery has an obligation under Rule 26(e) to supplement his responses to Trans Union‘s discovery requests upon learning that his responses were incomplete or inaccurate. It is evident from Mr. Berkery‘s inclusion of these three documents in his response to the motion for summary judgment that at some point during this litigation, Mr. Berkery became aware of these documents and understood their import and relevance to this case. In its discovery requests, Trans Union
Under Rule 37(c)(1), because Mr. Berkery failed to provide information required by Rule 26(e), he “is not allowed to use that information . . . to supply evidence on a motion,” including a response in opposition to a motion for summary judgment, “unless [his] failure was substantially justified or is harmless.”
During his deposition, Mr. Berkery testified that he was not aware of, and did not have any documents in his possession, related to this dispute with Trans Union over the TruMark account, other than a copy of the August 2020 AUD sent to Trans Union by TruMark. Mr. Berkery also testified that he did not have any copies of his correspondence with Trans Union. Further, in his
Based on Mr. Berkery‘s deposition testimony, the Court cannot find that his failure to produce the three documents at issue “was substantially justified or . . . harmless.”
Allowing Mr. Berkery to rely on these letters would unfairly prejudice Trans Union because if Trans Union had been provided these documents by Mr. Berkery in a timely fashion, it may well have prepared its defense of the FCRA claim differently. See Nicholas, 227 F.3d at 148. The documents speak directly to the elements of Mr. Berkery‘s FCRA claim. To cure the resulting prejudice, the Court arguably would need to allow Trans Union to re-file its motion for summary judgment. And allowing this evidence would not only disrupt the efficient adjudication of this matter but also is not warranted given Mr. Berkery‘s apparently repeated failures to comply with his discovery obligations throughout this litigation, as set forth above. See id. Thus, Mr. Berkery‘s failure to comply with his discovery obligations warrants the exclusion of this evidence under Rule 37(c)(1). See, e.g., Estes Express Lines v. U.S.A. Lamp & Ballast Recycling, Inc., No. 21-cv-609, 2023 WL 3766020, at *8 (W.D. Pa. June 1, 2023) (“The Court has carefully considered ‘whether
For these reasons, the Court grants Trans Union‘s motion to exclude the August 2021 loan denial letter, the December 2020 letter to Trans Union, and the January 2021 letter to Trans Union. Under Rule 37(c)(1), Mr. Berkery “is not allowed to use that information . . . to supply evidence on a motion.”
B. Declaration of Mr. Monari
Trans Union argues that Mr. Monari‘s declaration regarding Mr. Berkery‘s TruMark account must be excluded because it provides no authentication or foundation for the statements made therein, it was not produced during discovery, it is inadmissible hearsay because it is being offered for the truth of the matter asserted, and it is facially contradictory. Trans Union also points out that Mr. Monari was not identified by Mr. Berkery in his initial disclosures or in his discovery responses. The first time Mr. Berkery mentioned Mr. Monari was during his deposition, and when discussing Mr. Monari during his deposition, Mr. Berkery testified that he had no written statements from Mr. Monari. Trans Union thus argues that like the three letters discussed above, because Mr. Berkery did not identify or disclose Mr. Monari or this declaration prior to his inclusion of the document in his response to Trans Union‘s motion for summary judgment, it should be excluded under Rule 37(c)(1).
Trans Union also objects to the declaration under Rule 56(c)(2), which provides that at the summary judgment stage, “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
Mr. Monari‘s declaration, as submitted by Mr. Berkery and apparently executed by Mr. Monari on November 21, 2022, states as follows:
DECLARATION OF JOHN E. MONARI
I am John E. Monari, Vice President, Collections for TruMark Financial Credit Union and state the following under penalty of perjury;
- The account number 00212135060004 is the same as account number 1000212135060004
- This is the same number I sent to all three credit bureaus
- It was accepted by Experian and Equifax
- The account is to be deleted as of 8/19/2020
- Post submission of AUD 100567525 no response was received from Trans Union suggesting there was an error
Monari Decl., Ex. A to Pl.‘s Resp. to Mot. for Summ. J. Trans Union argues that because the affidavit “fails to state that [Mr.] Monari has personal knowledge of the facts included in the Declaration, . . . his statements are provided without foundation” and thus the declaration should be excluded under Rule 56(c)(4) because it was not “made on personal knowledge.” Def.‘s Mot. to Exclude, at 5.
Mr. Monari‘s declaration fails to comply with Rule 26(a) and (e) because Mr. Monari was not disclosed prior to Mr. Berkery‘s deposition, during which he testified that he had no written
Even if Mr. Berkery had previously disclosed Mr. Monari‘s declaration, he still would not be able to rely on the declaration in support of his response to Trans Union‘s motion for summary judgment. Based on Mr. Berkery‘s deposition testimony that he had no written documents related to Mr. Monari, given the lack of authentication of the declaration as being that of Mr. Monari, and given that the declaration lacks any language affirmatively certifying that the statements were made with personal knowledge of the declarant Mr. Monari, the Court finds that the declaration was not “made on personal knowledge,” and thus, Mr. Berkery cannot rely on the declaration in support of his response to the motion for summary judgment.
For these reasons, the Court grants Trans Union‘s motion to exclude the declaration of Mr. Monari. Mr. Berkery will not be permitted to rely on this declaration in opposing the motion for summary judgment.8
Turning to the motions for summary judgment, the Court first addresses whether Trans Union is entitled to summary judgment on Mr. Berkery‘s claim that it violated the FCRA by failing to delete the TruMark account after receiving the August 2020 AUD.
In Count II of Mr. Berkery‘s complaint, he alleges that Trans Union falsely reported the TruMark account after receiving notice that the account should be deleted. He alleges that (1) Trans Union was notified that the account was settled in full and ordered deleted by TruMark, (2) Trans Union “refused” to delete the account, and (3) Trans Union is falsely reporting the TruMark account allegedly in violation of
Section 1681e(b) requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
CRAs can negligently or willfully violate the FCRA. To establish a negligent violation of § 1681e(b), the plaintiff must establish: “(1) inaccurate information was included in a consumer‘s credit report; (2) the inaccuracy was due to defendant‘s failure to follow reasonable procedures to
“[I]n order to show a willful violation of the FCRA, a plaintiff must prove that the defendant knowingly and intentionally” or recklessly “committed an act in conscious disregard for the rights of others.” Hutchinson v. Carco Grp., Inc., No. 15-cv-1570, 2015 WL 5698283, at *6 (E.D. Pa. Sept. 29, 2015) (quoting Cushman v. Trans Union Corp., 115 F.3d 220, 226 (3d Cir. 1997)) (internal quotation marks omitted). “A defendant‘s conduct is reckless only if it was objectively unreasonable in light of legal rules that were clearly established at the time.” Fuges v. Sw. Fin. Servs., Ltd., 707 F.3d 241, 249 (3d Cir. 2012) (internal quotation marks omitted).
Essential for a § 1681e(b) claim is an allegation that the CRA‘s report included an inaccuracy. See Berkery v. Equifax Info. Servs., LLC, No. 18-cv-3417, 2019 WL 1958567, at *3 (E.D. Pa. May 2, 2019) (holding that Mr. Berkery‘s § 1681e(b) claim failed where, even construing all of the facts in his favor, he failed to allege that the consumer reporting agencies reported any inaccuracy); see also Schweitzer v. Equifax Info. Sols. LLC, 441 F. App‘x 896, 902 (3d Cir. 2011) (“In order to make out a prima facie violation of section [1681e(b)], the [FCRA] implicitly requires that a consumer must present evidence tending to show that a credit reporting agency prepared a
Trans Union asserts five primary arguments with respect to Mr. Berkery‘s FCRA claim: (1) accuracy is a complete defense under the FCRA and Mr. Berkery admitted, by signing the January 30, 2020 Settlement Agreement, that Trans Union‘s reporting was accurate; (2) Mr. Berkery did not produce required evidence demonstrating that Trans Union provided an inaccurate credit report to a third party; (3) Trans Union‘s reporting policies and procedures were reasonable; (4) Mr. Berkery did not produce required evidence of damages; and (5) Mr. Berkery introduced no evidence that Trans Union acted with malice or with a conscious disregard for his rights, as required for his punitive damages claim.
Trans Union first argues that Mr. Berkery has failed to prove that any reporting of the TruMark account was inaccurate, and that Trans Union published an inaccurate consumer report to a third party. Trans Union argues that by signing the January 30, 2020 Settlement Agreement, Mr. Berkery agreed that the TruMark account was accurately reported as “charged off” on the Trans Union consumer disclosure. In relevant part, the Settlement Agreement provides that Mr. Berkery “agrees that all information contained within the [Trans Union consumer] [d]isclosure is
Even viewing the facts in the light most favorable to Mr. Berkery, there is no evidence that Trans Union‘s reporting of the TruMark account was inaccurate, meaning Mr. Berkery has failed to satisfy his burden of establishing a prima facie case of a violation of § 1681e(b). See Schweitzer, 441 F. App‘x at 902; Cortez, 617 F.3d at 708; Philbin, 101 F.3d at 963.
Trans Union additionally argues that Mr. Berkery failed to produce evidence demonstrating that Trans Union provided an inaccurate credit report to a third party. Specifically, Trans Union points out that Mr. Berkery “has not and cannot produce, as required, a Trans Union consumer report furnished to anyone which contained the alleged inaccurate [a]ccount.” Def.‘s Mot. for Summ. J. at 13. Mr. Berkery attempted to introduce evidence to this effect—the August 2021 Veterans United Home Loans letter to Mr. Berkery and unidentified and undated pages relating to Mr. Berkery‘s credit score—in support of his response in opposition to the motion for summary judgment. However, for the reasons set forth above, Mr. Berkery is precluded from relying on this evidence to oppose Trans Union‘s motion for summary judgment under Rule 37(c)(1).
Moreover, Mr. Berkery‘s response to Trans Union‘s summary judgment motion failed to sufficiently identify with specificity any third party to which Trans Union had published an inaccurate credit report. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“[T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.‘“) (quoting
[a]ny potential creditor, and possibly others such as insurance and mortgage companies who requested a copy of Plaintiff‘s credit report during the 21 month period Trans Union refused to delete the TruMark account were given false and outdated information. A partial list is provided herein on credit report from Trans Union during the period.
Pl.‘s Reply to Def.‘s Mot. for Summ. J. at ECF 4. However, Mr. Berkery fails to sufficiently identify which third parties received a copy of his credit report from Trans Union during the relevant time frame.
Mr. Berkery fails to establish that Trans Union violated § 1681e(b) because he identified no inaccuracies in the report and failed to specify which third party, if any, received an allegedly inaccurate report from Trans Union. For these reasons, the Court will grant Trans Union‘s motion for summary judgment as to Mr. Berkery‘s FCRA claim against it.10
III. Breach of Settlement Agreement Counterclaim
In its motion for summary judgment, Trans Union also argues that Mr. Berkery breached the Settlement Agreement he entered into with Trans Union by (1) bringing a lawsuit that arises from Trans Union‘s reporting of the TruMark account which he agreed in the Settlement Agreement would not serve as the basis for future lawsuits, (2) failing to provide Trans Union with the required written notice of his intent to sue and allowing Trans Union an opportunity to remedy
In his motion for summary judgment, Mr. Berkery argues that he is entitled to summary judgment on Trans Union‘s breach of contract counterclaim because (1) he believes that there was no contract in force between the parties as of March 12, 2021, when he initiated the present lawsuit, that would impact his claims related to Trans Union‘s failure to delete the TruMark account in response to the AUD; and (2) he argues that paragraph 5 of the settlement agreement—which states that the information in the January 24, 2020 Trans Union consumer disclosure “will not provide the basis for any future claims against Trans Union“—does not extend to bind the parties beyond the date of the execution of the Settlement Agreement, which is January 30, 2020.
“To state a claim for breach of contract under Pennsylvania law, a plaintiff must allege three things: (1) the existence of a contract, including its essential terms; (2) a breach of duty imposed by the contract; and (3) resultant damages.” Alpart v. Gen. Land Partners, Inc., 574 F. Supp. 2d 491, 502 (E.D. Pa. 2008); accord Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016). Here, it is undisputed that the Settlement Agreement signed by Mr. Berkery on January 30, 2020 is a valid and enforceable contract. Although Mr. Berkery appears to argue in his motion for summary judgment that the Settlement Agreement is not binding on the parties after the date of the execution of the agreement, he fails to cite anything whatsoever to support this understanding of contract law. Mr. Berkery points to no evidence in the record which would suggest that the Settlement Agreement was no longer binding when he filed the present lawsuit, nor does he cite to any caselaw which would suggest that the Settlement Agreement stopped being an enforceable contract after it was executed. Moreover, Mr. Berkery acknowledged during his deposition that the Settlement Agreement is a
The relevant material terms of the Settlement Agreement have also been established, including that (1) no further claims were to arise from Trans Union‘s reporting of the TruMark account; (2) Trans Union‘s reporting of the TruMark account as “charged off” was accurate; and (3) Mr. Berkery was to provide Trans Union notice of at least thirty days, and give the CRA an opportunity to resolve any issues, prior to Mr. Berkery initiating another lawsuit. See Redacted Settlement Agreement ¶¶ 5, 7.
Here, it is clear that Mr. Berkery breached the Settlement Agreement. First, the Settlement Agreement states that “Plaintiff acknowledges that he has reviewed the copy of his Trans Union consumer disclosure, dated January 24, 2020 . . . and Plaintiff agrees that all information contained within the Disclosure is accurate and will not provide the basis for any future claims against Trans Union.” Redacted Settlement Agreement ¶ 5 (emphasis added). Mr. Berkery‘s FCRA claim against Trans Union relates to Trans Union‘s failure to delete the TruMark account—which was reported in the January 24, 2020 Consumer Disclosure as “charged off“—after it received the AUD from TruMark in August 2020. By bringing the instant lawsuit, Mr. Berkery breached paragraph 5 of the Settlement Agreement.
Mr. Berkery also breached the Settlement Agreement by failing to notify Trans Union in writing at least thirty (30) days before initiating his present lawsuit. He testified during his
Finally, with respect to damages, Trans Union argues that it has incurred attorneys’ fees defending against Mr. Berkery‘s FCRA claim and pursuing this action for breach of contract. Trans Union argues that these attorneys’ fees constitute damages arising directly out of Mr. Berkery‘s breach of the Settlement Agreement. Trans Union points out that in the Settlement Agreement, Mr. Berkery “agree[d] that Trans Union may recover any and all reasonable attorneys’ fees, costs, and expenses incurred in enforcing any term of this Agreement or for breach thereof in addition to any other damages to which Trans Union may be entitled.” Redacted Settlement Agreement ¶ 13. Although Mr. Berkery denies Trans Union‘s statements regarding attorneys’ fees, he fails to point to any evidence which would suggest that Trans Union has not incurred attorneys’ fees in enforcing the terms of the Settlement Agreement. Moreover, his denials appear to confuse the issues at play in this litigation because he asserts that Trans Union‘s attorneys’ fees from a prior case (presumably the case resulting in the subject Settlement Agreement) are not relevant to the present matter, suggesting that he misunderstands Trans Union‘s arguments regarding the attorneys’ fees it has incurred in this lawsuit defending against Mr. Berkery‘s breach of the settlement agreement.12
CONCLUSION
For the reasons set forth above, the Court grants Trans Union‘s Objection and Motion to Exclude Previously Unproduced, Unidentified and Inadmissible Evidence Submitted in Support of Plaintiff‘s Opposition to Trans Union‘s Motion for Summary Judgment; grants Trans Union‘s Motion for Summary Judgment as to Mr. Berkery‘s FCRA claim and Trans Union‘s breach of contract counterclaim; and denies Mr. Berkery‘s Motion for Summary Judgment. Appropriate orders follow.
BY THE COURT:
s/ Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE