Watson v. CarusoWatson v. Caruso
HAIGHT, Senior United States District Judge:
Pro se Plaintiff Adrien Watson (“Plaintiff” or “Watson”) brings this action seeking damages from Mind Your Business, Inc. (“Defendant MYB” or “MYB”), and its founder and chief executive officer, Karen Caruso (“Defendant Caruso” or “Caruso”; and, collectively with MYB, “Defendants”). Doc. 1-2 (“Complaint”).1
MYB is a provider of employment screening, background investigations, equal opportunity in employment (“EEO”) investigations, and drug-screening services. Plaintiff alleges that MYB sold to Plaintiff‘s former employer a criminal background check that contained information about a prior conviction, even though a Connecticut state court had ordered the erasure of the criminal record because the offense had been decriminalized. Id. at 2. Defendants answered the Complaint. Doc. 10 (“Answer”). Plaintiff thereafter filed a response to Defendants’ Answer, which contained documents to support the allegations in his Complaint. Doc. 11 (“Plaintiff‘s Response”).
Defendants have now filed a motion for summary judgment. Doc. 25 (“Motion for Summary Judgment”); Doc. 25-6 (“Defendants’ Statement of Material Facts”); Doc. 25-11 (“Defendants’ Brief”). Defendants contend that Plaintiff‘s state law claims do not apply to the facts of this case, Doc. 25-11, at 9–13; Defendants did not violate the federal Fair Credit Reporting Act (“FCRA”), id. at 13–30; and, that Plaintiff‘s common law state claims, if any, are barred by the FCRA, id. at 31–32.2 Defendant
I. BACKGROUND
The facts herein are taken from Defendants’ Statement of Material Facts, which are accepted as true only for purposes of this Ruling.3
On or about October 23, 1998, Plaintiff pleaded guilty to sexual assault in the second degree in violation of
Plaintiff began working at St. Vincent DePaul Mission of Bristol (“SVDP”) on or around July 22, 2018. Id. ¶ 8. About four days later, the Catholic Diocese of Hartford engaged MYB‘s services to prepare a criminal background report relating to Plaintiff. Id. ¶ 9.4 MYB thereafter accessed the integrated platform of RapidCourt, LLC (“RapidCourt”), a third-party vendor,
On or about July 31, 2018, MYB provided the Diocese of Hartford/SVDP with a copy of the criminal background report it prepared concerning Plaintiff, which included the 1998 sexual assault record. Id. ¶ 19. SVDP subsequently issued a letter to Plaintiff informing him that it was “not able to move forward with your employment as a result of your Background Verification Report.” Id. ¶ 20.
II. STANDARD OF REVIEW
A motion for summary judgment may be granted only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See
The moving party bears the initial burden of demonstrating the absence of a disputed issue of material fact. See Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the initial burden is satisfied, the burden then shifts to the nonmoving party to present “specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., 781 F.3d 42, 34 (2d Cir. 2015) (internal quotation marks and citation omitted). While the Court must view the record in the light most favorable to the nonmoving party, and resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, see Anderson, 477 U.S. at 255, the nonmoving party nevertheless “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmovant must support any assertion disputing the veracity of a fact or existence of an alleged dispute with specific citation to the evidentiary record. See
Because Plaintiff is proceeding pro se, the Court must read his submissions “liberally” and interpret them “to raise the strongest arguments” that they suggest. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Nonetheless, “[p]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party‘s bald assertions unsupported by evidence, are insufficient to overcome a motion for summary judgment.” Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348 (S.D.N.Y. 2002) (internal quotation marks omitted).
III. DISCUSSION
A. Connecticut‘s Erasure Statute
Defendants claim that
Section 54-142e commands “[e]ach person”—including a consumer reporting agency—that has “purchased records of criminal matters of public record from the Judicial Department” to undertake two tasks prior to disclosing such records.
First, a consumer reporting agency must “purchase from the Judicial Department, on a monthly basis or on such other schedule as the Judicial Department may establish, any updated criminal matters of public record or information available for the purpose of complying with this section.” Id.7 Second, a consumer reporting agency must “update its records of criminal matters of
public record to permanently delete such erased records”; and, it must “not further disclose such erased records.” Id.
Similarly,
A principal contention of Defendants is that section 54-142e does not apply to the facts of this case because MYB “did not purchase Plaintiff‘s criminal records from the Judicial Department within the meaning of section 54-142e, but rather obtained them through a national search using” RapidCourt. Doc. 25-11, at 10 (emphasis added). Likewise, Defendants contend that section 31-51i does not apply because they did not “obtain Plaintiff‘s criminal history records from the Judicial Department,” and, therefore, the consumer report that MYB issued did not include “criminal matters of public record” within the meaning of the statute. Id. at 12 (emphasis added). Defendants do not cite to any case law—or any authorities, for that matter—to support these statutory interpretations. Nor do they cite any legislative history.
The core legal question is whether sections 54-142e and 31-51i apply (1) only when consumer reporting agencies purchase “criminal matters of public record” directly “from the Judicial Department”; or (2) if the statutes also apply when consumer reporting agencies purchase records from an intermediary (such as a contracted company, like RapidCourt). Presumably, the second statutory interpretation
This question of statutory interpretation is important because the answer significantly expands or contracts the statutes’ reach. If the Connecticut legislature intended the first interpretation—i.e., that the statutes apply only if consumer reporting agencies purchase criminal matters of public record directly from the Judicial Department—then agencies that purchase records from an intermediary are not subject to the statutes’ mandates. Under those circumstances, Defendants in the case at bar theoretically could not be held liable under those statutory provisions because they acquired Plaintiffs’ criminal records from RapidCourt, not the Judicial Department. On the other hand, if the statutes apply to any consumer reporting agency that has purchased criminal matters of public record that originally, at one point, came from the Judicial Department, then the Defendants in this case could be liable for violating those laws.
The provisions in question took effect in 2008. See 2008 Conn. Legis. Serv. P.A. 08-53 (S.B. 704); 2007 Conn. Legis. Serv. P.A. 07-243 (S.S.B. 1089). Over a decade later, there is a dearth of case law interpreting
In the absence of controlling state law, the Court might ordinarily interpret the state statute using the normal rules of statutory interpretation. See Sealed v. Sealed, 332 F.3d 51, 59 (2d Cir. 2003) (discussing how federal courts “may ordinarily interpret ambiguous state statutes using the normal rules of statutory interpretation, even in the absence of controlling state authority”). In other circumstances, the Court could consider certifying the question of law to the Connecticut Supreme Court. See id. (noting that certification may be appropriate if other “factors strongly suggest that [courts] defer to the Connecticut Supreme Court”); see also Elec. Contractors, Inc. v. Ins. Co. of Pennsylvania, No. 11-cv-1432 (VLB), 2012 WL 6021321, at *3 (D. Conn. Dec. 3, 2012) (certifying a question to the Connecticut Supreme Court because “Connecticut clearly ha[d] a compelling interest in the issue”). For the reasons discussed below, however, the Court need not engage in statutory interpretation or certify the question because the Court agrees with Defendants that the statutes do not provide Plaintiff with a private right of action. If the statutory schemes containing sections 54-142e and 31-51i do not confer upon a private party like Adrien Watson a right
As alluded to above, neither the Supreme Court of Connecticut nor the Connecticut Appellate Court has decided the issue of whether there is a right of private enforcement under sections 54-142e and 31-51i. Under Connecticut law, though, there is a “well settled fundamental premise . . . that private enforcement does not exist unless expressly provided in a statute.” Provencher v. Town of Enfield, 284 Conn. 772, 777 (2007). To overcome that presumption, “the plaintiff bears the burden of demonstrating that such an action is created implicitly in the statute.” Id. at 777–78.
When considering whether an implied private right of action exists, courts must not “go beyond the text of the statute and its relationship to other statutes unless there is some textual evidence that the legislature intended, but failed to provide expressly, a private right of action.” Id. at 778. Examples of such “textual evidence” include “language granting rights to a discrete class without providing an express remedy or language providing a specific remedy to a class without expressly delineating the contours of the right.” Id.
1. Section 54-142e
Turning first to section 54-142e(b), its express language sets out the statute‘s affirmative command—for example, purchase from the Judicial Department “any updated criminal matters of public record or information available for the purpose of complying with this section.”
Plaintiff has not submitted any case law in support for recognizing a private right of enforcement. For their part, Defendants argue that the statute “does not provide for any penalties relating to a violation” of the section. Doc. 25-11, at 10. In support of that argument, Defendants primarily cite to Ferdinand v. City of New Haven, No. cv97-0401180S, 2003 WL 283814, at *2 (Conn. Super. Ct. Jan. 28, 2003), where the court concluded that a comparable statute,
In so concluding, the Ferdinand court emphasized that the statute‘s language was “straightforward”—that is, it lacked an “express authorization for a private cause of action for a violation of the statutory erasure provisions.” Id. at *3. According to
In this case, 54-142e(b)‘s language is also straightforward and does not provide for a private right of action. This Court is therefore similarly unprepared to fashion a private remedy, particularly when the Connecticut Supreme Court has cautioned against it in analogous circumstances. See Provencher, 284 Conn. at 778.
This conclusion is also consistent with reported cases that have addressed comparable statutes, several of which Defendants have cited. See, e.g., Ferdinand, 2003 WL 283814, at *3
(“Since the legislature has not provided for a private cause of action [in section 54-142a], this court cannot allow for one.”); Ericksen v. Town of Rocky Hill, No. cv93-0529218S, 1995 WL 681551, at *3 (Conn. Super. Ct. Nov. 3, 1995) (“Section 54-142a(b) and (c) explicitly provide that the arrested person or his or her heirs may come into court to have the records erased. Under a statutory scheme like this it would be difficult to imagine that the legislature would have intended to create a private cause of action.”); Saccente v. Town of Rocky Hill, No. cv93-0529219, 1995 WL 31202, at *2 (Conn. Super. Ct. Jan. 19, 1995), as corrected (Feb. 1, 1995) (“The claim that a private cause of action may be brought under General Statutes § 54-142a(2) or 54-142(c)(b) is rejected.”).
As there is no private right of enforcement under
2. Section 31-51i
Defendants contend that the statute does not provide for a private right of action because it only permits individuals to “file a complaint with the Labor Commissioner,” rather than a lawsuit in court, and the individual must be “alleging an employer‘s violation” of the statute, not a consumer reporting agency‘s violation. Doc. 25-11, at 12 (emphasis added). According to Defendants, therefore, “[t]he remedy provided to individuals under [the] statute is exclusively administrative and exclusively against employers as provided in the [plain] language of the statute.” Id. (internal quotation marks omitted).
To support this argument, Defendants primarily cite to Saccente, 1995 WL 31202. That case is inapposite in the present context, however. In Saccente, 1995 WL 31202, at *2, the court concluded that sections 54-142a(a) and 54-142c(b) did not create a private cause of action for their violation because “[a]bsent from the text of either of [those] statutes is the explicit authorization for a private cause of action.” Saccente, 1995 WL 31202, at *2, therefore, supports Defendants’ argument that the Court addressed above—namely, that section 54-142e(b) does not explicitly authorize a cause of action because the text of that statute lacks an explicit authorization for a private cause of action. But the case does not stand for the separate proposition that a
Nonetheless, the Court agrees that section 31-51i, like section 54-142e, does not provide for a private cause of action. Although the Court has not found a case addressing this statute, the court in Thompson v. Bridgeport Hospital, No. cv98-0352686S, 2001 WL 1378829 (Conn. Super. Ct. Oct. 23, 2001) undertook a comparable analysis. In that case, the court analyzed a Connecticut statute governing an “[e]mployee‘s right to obtain copies,” which provides that “[e]ach employer shall, within a reasonable time after receipt of a written request from an employee, provide such employee with a copy of all or part of his personnel file.”
Our decisional law makes clear the doctrine of primary jurisdiction dictates the employee‘s claim be heard first by the Labor Commissioner whose expertise in this specialized area of the law is unquestioned. . . . No authority for the proposition this plaintiff has a private cause of action under
Connecticut General Statute § 31-128g is provided; nor is there the allegation in Count Six this plaintiff made a written request that the employer provide her . . . personnel file (much less that such written request particularized the documents she wished) or that she had exhausted the administrative remedy available to her when the employer did not respond to her.
Id.
The case at bar is analogous. The Court agrees with Defendants that
B. Fair Credit Reporting Act
1. Section 1681e(b)
Defendants also claim that they are entitled to summary judgment on a potential FCRA claim. “The FCRA creates a private right of action against credit reporting agencies for the negligent . . . or willful . . . violation of any duty imposed under the statute.” Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 473 (2d Cir. 1995) (citations omitted). For any such violation, “the credit reporting agency is liable to the consumer for actual damages sustained, the costs of the action together with reasonable attorney‘s fees and, in the case of willful noncompliance, punitive damages.” Id. (citations and internal quotation marks omitted).9
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.”
Defendants first argue that Plaintiff‘s FCRA claim should fail because “the information provided relative to the 1998 conviction was factually accurate,” which Plaintiff “admits . . . in his own Complaint.” Doc. 25-11, at 15. Plaintiff, on the other hand, claims that MYB‘s inclusion of the conviction in the background check constituted “inaccurate information.” Doc. 1-2, at 2.
The Second Circuit has “yet to address” the definition of accuracy within the meaning of
Obabueki v. International Business Machines Corporation, 145 F. Supp. 2d 371 (S.D.N.Y. 2001), affirmed, 319 F.3d 87 (2d Cir. 2003) exemplifies these principles. In Obabueki, which involved a set of circumstances that are analogous to the case at bar, Choicepoint, a credit reporting agency, provided the plaintiff‘s employer, International Business Machines Corporation (“IBM”), with a background check report that contained information relating to a criminal misdemeanor. See id. at 377. Choicepoint relied on one of its contractors, Inquest, to provide Choicepoint with information relating to the plaintiff‘s criminal record, but Inquest evidently did not mention to Choicepoint that the plaintiff‘s misdemeanor had been “vacated” and “dismissed” pursuant to a state statute. See id. Choicepoint thereafter provided the plaintiff‘s report to IBM after IBM had extended to plaintiff a conditional offer of employment. See id. The report failed to mention the dismissal of the conviction, and, after some deliberation, IBM withdrew the plaintiff‘s conditional offer of employment. See id.
[I]ssues of fact exist with regard to the nature of Choicepoint‘s investigatory procedures as applied to the instant case so as to prevent a judgment as a matter of law as to their reasonableness. Moreover, even assuming they are unreasonable, the jury must determine whether Choicepoint intentionally maintained such unreasonable procedures, or knew or should have known this to be the case.
Id.; cf., e.g., Wenning v. On-Site Manager, Inc., No. 14-cv-9693 (PAE), 2016 WL 3538379, at *14 (S.D.N.Y. June 22, 2016) (denying the defendant‘s motion for summary judgment on a FCRA claim because a background check requested by a landlord that reported a possessory judgment against a tenant in housing court was materially misleading: the report omitted key information, including that the judgment had been entered on consent pursuant to a stipulation signed before the proceedings commenced, and that the tenant had fully complied with the terms of that stipulation).
In the present case, the Court cannot agree with Defendants that MYB‘s background check report regarding Plaintiff was accurate as a matter of law. Specifically, and, like Obabueki, the Court finds that the information provided to the Diocese of Hartford/SVDP was not accurate under section 1681e(b), given MYB‘s inclusion of Plaintiff‘s 1998 conviction for sexual assault. MYB‘s inclusion of an erased conviction—which, pursuant to section 54-142e(b), ought not to have been disclosed—could very clearly have an adverse effect on an individual‘s employment prospects and render the report materially misleading to an employer. See Wenning, 2016 WL 3538379, at *14.11
Defendants cite to McPhee v. Chilton Corp., 468 F. Supp. 494 (D. Conn. 1978) for the proposition that “cases have refused to find that omissions in reports otherwise true render those reports inaccurate within the meaning of s[ection] 1681e and thus trigger an inquiry into the procedures by which the reports are compiled.” McPhee, 468 F. Supp. at 497. In McPhee, District Judge Newman, as he then was, concluded that a credit report did not run afoul of section 1681e‘s accuracy standards even
This Court is not persuaded by Defendants’ citation to McPhee for several reasons. As an initial matter, McPhee is not completely on point because it addressed the accuracy of a credit report that referenced a petition of bankruptcy—not an erased criminal record. See McPhee, 468 F. Supp. at 495. Additionally, the case that Judge Newman cited in McPhee that did address a criminal record, Middlebrooks, is from outside of this District, and this Circuit, for that matter. While Middlebrooks may be well-reasoned, I am not bound by it.12 Instead, I am persuaded by the analysis in Obabueki—where a credit agency‘s failure to report a dismissal of a criminal matter was inaccurate under the FCRA—which the Second Circuit affirmed, in a per curiam opinion that now-Circuit Judge Newman also presided over. See Obabueki v. Int‘l Bus. Machines Corp., 319 F.3d 87, 88 (2d Cir. 2003). Defendants’ arguments, therefore, do not alter the Court‘s determination. The Court cannot conclude as a matter of law that MYB‘s report was accurate within the meaning of the FCRA.
Defendants next contend that MYB did not violate the FCRA because it “followed reasonable procedures in preparing Plaintiff‘s report.” Doc. 25-11, at 21. These reasonable procedures consisted of obtaining information about Plaintiff from RapidCourt—“a well-established, reputable, and reliable third party vendor which it had thoroughly vetted and used for about five years without difficulty.” Id. This argument is misguided. If this were the case, then consumer reporting agencies could insulate themselves from liability under section 1681e, so long as they outsource their work to contractors like RapidCourt. The FCRA‘s remedial purpose could not be achieved under that theory. See Wilson v. Corelogic SafeRent, LLC, No. 14-cv-2477 (JPO), 2017 WL 4357568, at *4
(S.D.N.Y. Sept. 29, 2017) (“Congress surely did not intentionally weave an exception into the fabric of the FCRA that would destroy its remedial scheme by allowing a credit reporting agency to escape responsibility for its carelessness whenever misleading information finds its way into a credit report through the agency of a third party.” (citation and internal quotation marks omitted)).13
previous argument, “severely undermine FCRA‘s remedial purpose.” Id. The Court therefore rejects this argument, as well.14
Lastly, Defendants argue that Plaintiff “has proffered no evidence whatsoever from which a trier of fact could infer that Defendant failed to follow reasonable procedures in preparing his background report.” Doc. 25-11, at 21. As a result, according to Defendants, Plaintiff cannot defeat summary judgment. Id. As noted above, however, the Court must construe Plaintiff‘s submissions liberally because he is a pro se litigant. See Rodriguez, 209 F. Supp. 2d at 348. Plaintiff has alleged that MYB “managed to prepare a background check with mentioned docket [number] and sold this inaccurate information to a third party which is now my former employer.” Doc. 1-2, at 2. Construing this statement liberally, Plaintiff is alleging that there “managed” to be some breakdown in the background check preparation process—or a lack of process altogether—that resulted in MYB‘s failure to undertake “reasonable procedures to assure maximum possible accuracy of the information.”
Defendants also argue that Plaintiff‘s section 1681e(b) claim should fail for the additional reason that Defendants’ negligence did not proximately cause Plaintiff‘s injury. Doc. 25-11, at 23-27. The Court disagrees. A reasonable jury could find that MYB‘s actions caused Plaintiff‘s injury—specifically, that SVDP would not have revoked its contingent offer but for MYB‘s inclusion of the erased conviction in the background check report that it prepared.
And, because Plaintiff failed to correct the record, according to Defendants, “any injuries, including . . . the termination of his employment, would be due solely to Plaintiff‘s own negligent failure to act.” Id.
This argument is misguided. As an initial matter, Defendants seem to conflate the causation and damages elements of a FCRA claim. Whether or not Plaintiff attempted to mitigate his damages might be an affirmative defense and it might affect the ultimate calculation of damages, but it is unrelated to the causation element of the claim. Cf. Marcinski v. RBS Citizens Bank, N.A., 36 F. Supp. 3d 286, 291 (S.D.N.Y. 2014) (“[T]he failure of the consumer to mitigate his damages by filing suit [for a FCRA violation] when he is first injured . . . should have a bearing only on the calculation of damages.” (citation and internal quotation marks omitted)).16 Furthermore, and, in any event, there is no evidence in the record indicating that Plaintiff received such a “pre-adverse action” letter. It is, rather, speculation at this point. Viewing the record in a light most favorable to Plaintiff, the nonmoving party, the Court rejects Defendants’ argument for purposes of this motion. See Anderson, 477 U.S. at 255.17
Defendants make an additional proximate cause argument.18
[REDACTED]
[REDACTED]
[REDACTED]
In support of that argument, Defendants cite to Neclerio, 983 F. Supp. 2d at 215. In that case, this Court noted that “[t]o demonstrate an actual injury, a plaintiff generally cannot stand on his subjective testimony alone, but must set forth other evidence that such an injury occurred. Plaintiff must present ‘concrete evidence’ of such distress.” Neclerio, 983 F. Supp. 2d at 215 (citations and internal quotation marks omitted). Although this statement of the law is correct, this Court must still read Plaintiff‘s pleadings liberally given his pro se status, and interpret the pleadings to raise the strongest arguments that they suggest. See Claude v. Wells Fargo Bank, N.A., No. 13-cv-535 (VLB), 2015 WL 5797007, at *7 (D. Conn. Sept. 30, 2015) (“Where the party opposing summary judgment is proceeding pro se, the court must read the party‘s pleadings liberally and interpret them to raise the strongest arguments that they suggest.” (citing Belpasso v. Port Authority of New York and New Jersey, 400 Fed. Appx. 600, 601 (2d Cir. 2010))). In that regard, the Court does not believe that it can resolve the issue of damages as a matter of law on the record before it. Plaintiff explained that he previously “endure[d] the emotional devastation as well as traumatic embarrassment of being labeled a sex offender,” and that the erasure of his criminal record was an opportunity to move forward and “rebuild” his life. Doc. 1-2, at 3. Construing Plaintiff‘s allegations liberally, a reasonable juror could conclude that Plaintiff was injured when SVDP revoked its contingent offer of employment for the contract analyst position; and that Plaintiff is now experiencing a similar type of emotional devastation and he cannot rebuild his life in the same manner. Id. at 2-3. Whether that is actually the case is, of course, a question for the jury.
A general issue of material fact therefore exists as to this element of Plaintiff‘s section 1681e(b) FCRA claim. As a result, the Court cannot conclude that Defendants are entitled to summary judgment on such a claim.
2. Section 1681k
Plaintiff‘s Complaint could also potentially allege a violation of
In the case at bar, the threshold requirements for the application of this section are clearly met, as the information concerning Plaintiff‘s criminal history was reported for employment purposes, was a matter of public record, and was certainly likely to have an adverse impact on him. When a consumer reporting agency furnishes such a report, it is obligated to do one of two things: the agency must either (1) at the time the report is transmitted, notify the consumer that public record information is being reported; or (2) maintain “strict procedures” designed to ensure that whenever public record information which is likely to have an adverse effect on a consumer‘s ability to obtain employment
“The logical starting point for an analysis of Section 1681k is whether the information provided was complete and up to date. If this is so, then an inquiry into the agency‘s procedures is unnecessary.” Obabueki, 145 F. Supp. 2d at 396 (collecting cases). In the context of a section 1681k analysis, the Obabueki court concluded that the information that a credit reporting agency provided to the plaintiff‘s employer was “neither complete nor up to date.” Id. at 396-97. The court reasoned:
[The background check report,] dated October 1, 1999, reflected plaintiff‘s 1995 conviction, but not its subsequent dismissal in 1997 [pursuant to a state statute]. Leaving aside whether the omission of the information was the fault of Choicepoint‘s contractor or some other entity (e.g. the court), and whether the conviction itself should have been disclosed given the disposition under [the statute], the information provided to IBM was clearly deficient because the dismissal was not mentioned.
Id.
The Court agrees with the above analysis. Whether or not MYB should have disclosed that Plaintiff‘s criminal record was erased—or omit the criminal record entirely in accordance with Connecticut law—the report that MYB provided was clearly deficient because it contained information related to Plaintiff‘s 1998 conviction.
The next question is whether MYB maintained “strict procedures.”
[T]he Court cannot find that Choicepoint clearly maintained such strict procedures, in order to warrant an award of summary judgment to Choicepoint. Rather, there are issues of fact related to Choicepoint‘s investigatory procedures which would affect the determination of whether Choicepoint violated Section 1681k in the conduct of their investigations. . . . Choicepoint contracts with various “suppliers” to conduct searches . . . [including] independent contractors. . . . [and] Choicepoint assumes the accuracy of the search performed by the supplier.
Id.
The observations in Obabueki are relevant to the case at bar. This Court cannot find that MYB clearly maintained such “strict procedures,” in order to warrant an award of summary judgment. If anything, there is plausible, if not compelling, evidence that MYB failed to maintain “strict procedures.” After all, Defendants essentially concede that MYB‘s procedures solely involved relying on RapidCourt. There is no evidence in the record that suggests that MYB took any other action to ensure that Plaintiff‘s information was complete and up to date.
Accordingly, for these reasons and those discussed in supra Section III.B.1, the Court declines to grant summary judgment to Defendants on this claim.
C. Claims Against Defendant Caruso
Defendant Caruso argues that summary judgment ought to be granted as to the individual claims against her. Doc. 25-11, at 30-31. The FCRA indeed provides
Caruso claims that Plaintiff has not made any factual allegations of any kind to support a claim for individual liability against her. Doc. 25-11, at 30. Caruso further claims that besides for naming her in the Complaint, there is no evidence that she was personally involved in any alleged wrongdoing. Id. The Court agrees. The allegations in Plaintiff‘s submissions state only that MYB engaged in the preparation and transmittal of Plaintiff‘s background check report. For example, Plaintiff states that:
- Mind Your Business Inc. managed to prepare a background check . . . and sold this inaccurate information to a third party. Doc. 1-2, at 2.
- The background report prepared by the defendant (Mind Your Business Inc.). Doc. 11 ¶ 1.
- Notice of termination based upon the results of the background report provided by the defendant (Mind Your Business Inc.). Id. ¶ 3.
Even reading Plaintiff‘s submissions liberally, as the Court must, there is no indication that Caruso played any role in “prepar[ing] a consumer report,”
D. State Common Law Claims
Lastly, Defendants seek summary judgment on possible state common law tort claims—such as defamation, invasion of privacy, and negligence. Doc. 25-11, at 31-32. Section 1681h(e) provides qualified immunity to consumer reporting agencies protecting them from certain tort claims. It states, in relevant part:
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 . . . 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.
This Court has previously discussed section 1681(h)(e)‘s “malice or willful intent” standard. Judge Hall described the standard in the following way:
Because the term “malice” is not defined in the FCRA, “courts have borrowed the definition used in the context of libel litigation, see New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964), which establishes that a statement will be deemed to have been made with malice when [the] speaker either knew that it was false or acted in reckless disregard of its truth or falsity.” Frost v. Experian, 1999 WL 287373, at *6 (S.D.N.Y. May 6, 1999). Further, under New York Times, to show “reckless disregard,” a plaintiff must put forth “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
Adams, 620 F. Supp. 2d at 335.
In the present case, the record contains no evidence indicating that MYB “entertained serious doubts as to the truth” of Plaintiff‘s 1998 conviction. St. Amant, 390 U.S. at 731. Rather, according to Defendants, MYB “had no reason to believe that the information received from RapidCourt . . . was inaccurate . . . or outdated,” particularly because MYB “had been utilizing RapidCourt‘s services since approximately July 2012” without issue. Doc. 25-11, at 22. Furthermore, even construing Plaintiff‘s submissions liberally, there are no allegations to the contrary. As such, there is no genuine dispute that MYB furnished information “with malice or willful intent” and summary judgment is granted with respect to possible claims of defamation, invasion of privacy, and negligence.
On the other hand, Plaintiff‘s Complaint might also be alleging a claim for negligent infliction of emotional distress, which is not necessarily barred by section 1681h(e). See Adams, 620 F. Supp. 2d at 335 (“[S]ection 1681h(e) only applies to claims of defamation, invasion of privacy, or negligence. . . . [T]he defendants are not entitled to qualified immunity from [the plaintiff‘s] NIED and IIED claims, regardless of whether [the plaintiff] can show malice or willful intent to injure on the part of the defendants.” (citation omitted)). To prevail on a claim of negligent infliction of emotional distress under Connecticut law, a plaintiff must show that: “(1) the defendant‘s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff‘s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant‘s conduct was the cause of the plaintiff‘s distress.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003).
Plaintiff has presented enough evidence to create a genuine issue of material fact as to each of the four elements. MYB‘s apparent failure to undertake any procedures to verify that Plaintiff‘s criminal conviction had not been erased—aside from assuming that RapidCourt‘s information was accurate—created an unreasonable risk of causing Plaintiff distress. It is also certainly foreseeable that sharing a criminal history report that included a prior criminal conviction would create distress for an individual. Plaintiff also presented evidence with respect to the third prong, in that he explained that he previously “endure[d] the emotional devastation as well as traumatic embarrassment of being labeled a sex offender,” and that the erasure of his criminal record was an opportunity to move forward and “rebuild” his life. Doc. 1-2, at 3. Indeed, Plaintiff knew of his past, but he was hopeful for the person “[h]e may be[come]” in the future.20 Lastly, as discussed above in supra Section III.B.1, there is a genuine dispute with respect to the cause of Plaintiff‘s termination. Plaintiff argues that he was terminated because of MYB‘s report.
As such, MYB is not entitled to summary judgment on Plaintiff‘s claim for negligent infliction of emotional distress.
IV. CONCLUSION
For the reasons discussed herein, the Court makes the following Rulings and Order:
- Defendants’ motion for summary judgment [Doc. 25] is GRANTED with respect to Plaintiff‘s possible claims under Connecticut‘s erasure statute.
- Defendants’ motion for summary judgment [Doc. 25] is DENIED with respect to Plaintiff‘s FCRA claims against Defendant MYB, and GRANTED with respect to Plaintiff‘s FCRA claims against Defendant Caruso individually. All claims against Defendant Caruso are DISMISSED.
- Defendants’ motion for summary judgment [Doc. 25] is GRANTED with respect to Plaintiff‘s possible common law claims of defamation, invasion of privacy, and negligence, and DENIED with respect to Plaintiff‘s potential claim of negligent infliction of emotional distress.
- The Parties are instructed to meet and confer for the purpose of proposing deadlines for all applicable remaining scheduling issues—e.g., the date by which the joint trial memorandum will be filed and the case will be ready for trial. See Form 26(f) Report of Parties’ Planning Meeting, C. Conn. L. Civ. R. Civil Appendix. The Parties are instructed to then submit to the Court a Form 26(f) Report in accordance with the local rules by December 20, 2019.
It is SO ORDERED.
Dated: New Haven, Connecticut
December 2, 2019
/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge