copy of the report," or if a consumer filed a dispute with respect to an item and TRW retained a copy of the report sent to the consumer. Currie Aff. P 6.
Turning now to the merits of plaintiffs' claim against TRW, TRW disputes that inaccurate information appeared on the Whelans' credit report based on the fact that "plaintiffs have not produced any evidence that TRW reported inaccurate information" and, as explained above, TRW alleges that it is unable to retrieve a copy of the Whelans' credit report as it appeared in January 1992. See Memorandum of Law in Support of Defendant TRW Inc.'s Motion for Summary Judgment ("TRW Mem.") at 9. In response, plaintiffs argue that based on the actual credit reports available and the sworn testimony of both plaintiffs, "this court must assume that the derogatory information appeared on a TRW credit report during the time in issue; to wit January 1992 through April 15, 1993." See Memorandum of Law in Opposition to Defendant TUC's Defendant IAG's and Defendant TRW's Motions for Summary Judgment ("Pls.' Mem.") at 4. The court notes that plaintiffs' allegation that the derogatory information remained on the report until April 15, 1993 is inconsistent with Mrs. Whelan's statement at deposition that the TRW report had been corrected in August 1992. M. Whelan Dep. at 74. In addition, the court notes that the only TRW credit report that appears in the record is dated January 7, 1992, and it is not apparent that this report reflects derogatory credit information.
However, based on the fact that IAG alleges it sent TRW "Bullseye Reports" dated January 13, 1992 and March 3, 1992, purportedly to correct inaccurate information appearing on TRW's reports, and based on the Whelans' testimony at deposition, and construing all evidence in a light most favorable to plaintiffs for purposes of this summary judgment motion, the court concludes that plaintiffs have shown that there is a question of material fact concerning whether the TRW report contained inaccurate information within the meaning of § 1681e(b).
As stated above, even assuming the TRW report contained inaccurate information, the FCRA does not make reporting agencies strictly liable for all inaccuracies. Cahlin, 936 F.2d at 1156. Rather, "the agency can escape liability if it establishes that an inaccurate report was generated by following reasonable procedures[.]" Id. The standard for evaluating the reasonableness of an agency's procedures is "'what a reasonably prudent person would do under the circumstances.'" Houston, 707 F. Supp. at 693 (citation omitted); see also Pinner v. Schmidt, 805 F.2d 1258, 1263 (5th Cir. 1986), cert. denied, 483 U.S. 1022, 97 L. Ed. 2d 766, 107 S. Ct. 3267 (1987). Evaluating the reasonableness of an agency's procedures involves balancing the potential harm from the inaccuracy against the burden on the agency of safeguarding against such inaccuracy. Houston, 707 F. Supp. at 693; Wiggins v. Equifax Servs., Inc., 848 F. Supp. 213, 219 (D.D.C. 1993).
The Whelans do not dispute that they failed to avail themselves of the mechanisms TRW offers to consumers to challenge information contained in their credit reports, nor do they challenge the general reasonableness of those procedures, as outlined above. They nonetheless argue that TRW failed to follow reasonable procedures to correct their credit reports once IAG notified TRW about the inaccurate information. TRW alleges that it has no record of receiving any correspondence from the Whelans or from any subscribers or other third parties relating to either plaintiff prior to the date of the lawsuit. Currie Aff. PP 9-11. IAG maintains that it sent Bullseye Reports relating to the Whelans' credit reports to TRW in January and March 1992. See Goodnough Aff. Ex. I, J. Thus a question of fact exists as to whether TRW was on notice that inaccurate information was contained in the Whelans' credit reports, which precludes granting summary judgment to TRW on the issue of the reasonableness of its procedures with respect to the Whelans.
TRW also argues that it is entitled to summary judgment on the ground that plaintiffs have failed to establish any basis for an award of damages based on TRW's alleged violation of § 1681e(b). More specifically, TRW contends that plaintiffs have failed to produce any documentary evidence establishing monetary loss due to TRW's allegedly unreasonable procedures, and that in any event, their unsupported "itemization of special damages" was produced outside of the discovery period; and that plaintiffs have failed to show that TRW's acts proximately caused their alleged injury because plaintiffs have conceded that they never actually applied to refinance the Bedford Property.
Plaintiffs have an affirmative duty of coming forward with evidence in support of their claim that they were caused damage due to TRW's alleged inaccurate report. Cahlin, 936 F.2d at 1161; Neptune, 1993 U.S. Dist. LEXIS 17201, 1993 WL 505601, at *2. The court finds that even putting aside TRW's argument that plaintiffs have failed to present any independent documentation of their alleged damages and that their damages report should be precluded because it was produced outside of the discovery period, plaintiffs' proof on the issue of causation is grossly deficient. It is undisputed that plaintiffs never submitted an application to refinance the Bedford Property, and they therefore never were rejected for credit. Plaintiffs' argument -- based on the opinion of two mortgage brokers -- that if they had submitted an application, it would have been denied, is entirely speculative; indeed, Mrs. Gillespie -- upon whose testimony plaintiffs heavily rely -- states only that in January, she advised the Whelans "that it was most unlikely that they would be approved for a mortgage," and in July, she "recommended they clear up this situation before submitting an application and a $ 500 fee." Kelly Aff. Ex. 2. Moreover, plaintiffs have conceded that they never submitted an application for refinancing after August 1992, when, according to Mrs. Whelan, she was satisfied that the inaccurate information had been deleted from the TRW credit report.
Furthermore, plaintiffs' argument pursuant to Rule 56(f) of the Federal Rules of Civil Procedure that "should it become necessary in this Court's view, plaintiff [sic] can obtain further affidavits in support of their claim," Pls.' Mem. at 8, is without merit. A party seeking discovery pursuant to Rule 56(f) "must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir. 1989) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir. 1985)). In the first place, plaintiffs' failure to file an affidavit under Rule 56(f) "is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate," Paddington Partners v. Jean-Louis Bouchard, 34 F.3d 1132, 1994 U.S. App. LEXIS 22852, 1994 WL 451185 (2d Cir. Aug. 22, 1994); in the second place, plaintiffs generally have failed to satisfy the other requirements imposed under Rule 56(f). In short, plaintiffs have failed to meet their burden of showing that the alleged inaccurate information on TRW's credit report caused them damages, or that they are entitled to further discovery on this issue, and TRW is entitled to summary judgment on this basis. Accord Guimond v. Trans Union Credit Info. Co., 1993 U.S. Dist. LEXIS 3901, 1993 WL 102756, at *5 (N.D. Cal. Mar. 22, 1993) (granting defendant's motion for summary judgment where plaintiff failed to show how incorrect entries on her credit report proximately caused her any economic or emotional damage).
B. The 1681i(a) Claim
Plaintiffs' allegations also can be construed as alleging a claim against Trans Union and TRW under § 1681i(a).
In relevant part, that section provides:
If the completeness or accuracy of any item of information contained in his file is disputed by a consumer, and such dispute is directly conveyed to the consumer reporting agency by the consumer, the consumer reporting agency shall within a reasonable period of time reinvestigate and record the current status of that information unless it has reasonable grounds to believe that the dispute by the consumer is frivolous or irrelevant. If after such reinvestigation such information is found to be inaccurate or can no longer be verified, the consumer reporting agency shall promptly delete such information. . . .
15 U.S.C. § 1681i(a) (emphasis added).
Plaintiffs' claims under this section can be disposed of readily. The claims suffer from the same deficiencies discussed in the foregoing sections. In addition, plaintiffs have conceded that they failed to contact TRW and Trans Union directly to convey to them the dispute regarding the accuracy of the information on their credit reports. At most, there is a question regarding whether IAG provided this information to TRW and Trans Union; however, the FCRA requires that the information be conveyed by the consumer directly to the credit reporting agency. See Cahlin, 936 F.2d at 1160 (credit reporting agency has a duty under § 1681i(a) to investigate and correct inaccurate information brought to its attention "by the consumer"); Wiggins, 848 F. Supp. at 220 (noting that there was a disputed issue of fact regarding whether plaintiff consumer complained directly to credit reporting agency, "a requirement for liability under § 1681i(a)"). Hence TRW and Trans Union are entitled to summary judgment on plaintiffs' claim under § 1681i(a) that they failed to reinvestigate the current status of the derogatory credit information within a reasonable period of time.
C. Defamation and Invasion of Privacy Claims
Plaintiffs' claims for defamation and invasion of privacy are governed by 15 U.S.C. § 1681h(e), which provides in relevant part as follows:
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, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, except as to false information furnished with malice or willful intent to injure such consumer.