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O'DIAH v. NEW YORK CITY

August 28, 2003

AROR ARK O'DIAH, PLAINTIFF, V NEW YORK CITY, THE PURO WATER GROUP, RICHARD EHLERS, NEW YORK STATE, NASSAU COUNTY, TSUNIS & GASPERIS, SEARS ROEBUCK AND COMPANY, VILLAGE OF FLOWER HILL, NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, PA TRANSIT PORT AUTHORITY OF ALLEGHENY COUNTY IN PITTSBURGH, EQUIFAX CREDIT INFORMATION, EXPERIAN, IPC INTERNATIONAL CORP., TRANS UNION, ALLIED SPECTAGUARD, COLLECTECH, INC., CREDIT MANAGEMENT COMPANY, MERCY HOSPITAL OF PITTSBURGH, SOUTH HILLS ENT., I.C. SYSTEMS, INC., JAE CHIL KIM REHAB., FORD MOTOR CREDIT CORPORATION, MICHIGAN STATE UNIVERSITY, PIERCE HAMILTON AND STERN, NORTHERN GLEN APARTMENT HOMES, VOLKSWAGEN CREDIT INC., VOLKSWAGEN OF AMERICA INC., NASSAU COUNTY ATTORNEY, NASSAU DISTRICT ATTORNEY, THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, NCO FINANCIAL SYSTEMS, MERCY PROVIDENCE, NEW YORK STATE WORKERS COMPENSATION BOARD, BRAUNSTEIN AND CHASE, L.L.P., CITY OF BOSTON, U.S. FILTER INC., PIPING ROCK NATURAL WATER, AND LEONARD WEXLER, DEFENDANTS


The opinion of the court was delivered by: Denise Cote, District Judge [ Page 2]

OPINION AND ORDER

Plaintiff pro se Aror Ark O'Diah ("O'Diah") brought this action on January 11, 2002, against thirty-eight defendants alleging, inter alia, violations of 42 U.S.C. § 1983, the Civil Rights Act of 1964, and the Fair Credit Reporting Act. The claims against most of the defendants were dismissed in an Opinion and Order of August 21, 2002 ("August 21 Opinion"). Three defendants who have answered the complaint now move for summary judgment, and their motions are granted.

BACKGROUND

Defendants Experian Information Solutions Inc. ("Experian"), Trans Union LLC ("Trans Union") and Equifax Information Services LLC ("Equifax") are all credit reporting agencies. Trans Union filed an answer to O'Diah's complaint on March 20, 2002, Experian [ Page 3]

on April 16 and Equifax on June 19. None of these three defendants filed a dispositive motion prior to the Court's rendering of the August 21 Opinion. A scheduling order, also issued on August 21, 2002, set out a period for discovery and permitted these three defendants to file any pretrial motion by February 14, 2003. As no motion was filed by that date, the Court, by Order of March 14, set a schedule for plaintiff and these defendants to submit pretrial statements. Following correspondence from these defendants, the March 14 Order was vacated in the Order of March 31. The March 31 Order set a new briefing schedule for any pretrial motion, with which the parties complied. When serving their summary judgment motions, each of these defendants served O'Diah with a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment," which explains the operation of Rule 56, Fed.R. Civ. P., and specifically that a plaintiff:

may NOT oppose summary judgment simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial.
As discussed in the August 21 Opinion, plaintiff's complaint asserts many unrelated claims arising from alleged physical injuries, injuries to his reputation, and numerous instances of discrimination. O'Diah also generally alleges a conspiracy among the various defendants to deprive him of his rights. See O'Diah [ Page 4]

v. New York City, et al., 2002 WL 1941179 (S.D.N.Y. Aug. 21, 2002). Familiarity with the factual background and legal principles discussed in the August 21 Opinion is assumed.

The only specific allegations against these defendants appear to be attempts to plead claims under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681e(b), and a common law claim for defamation. O'Diah states:

On August 24, 2001, plaintiff discovered that the defendants, Equifax Credit Information, Experian, Trans Union . . . went ahead to misrepresent the plaintiff to the general public that plaintiff is a bad debtor, even though these defendants knew that the reports they made public against the plaintiff were false, in violation of the federal fair credit reporting act, denying the plaintiff equal protection and due process, since plaintiff [sic] consent was not sought, and when plaintiff discovered the false information against him and called it to attention of the defendants, the defendant willfully and recklessly disregarded the plaintiff. The false reports made public by the defendants defamed the plaintiff via libel, and slander, and the plaintiff and his businesses suffered great financial supporters [sic], and inability to raise fund [sic]. Plaintiff reputation [sic] was severely damaged within the financial communities worldwide, and nationwide.
Attached to the complaint are documents that appear to be the credit reports issued by these defendants. One of the credit reports has annotations, presumably made by O'Diah, indicating that many of the outstanding debts listed on the report are disputed.

Experian has submitted an affidavit in connection with this motion describing its interaction with plaintiff. Experian's representative affirms that in September 2001, O'Diah informed it [ Page 5]

of alleged inaccuracies in its credit report. After following standard industry procedure for confirming disputed entries on a credit report, Experian reissued its report, removing two entries for which the underlying creditor could not provide confirmation. Equifax has submitted an affidavit attesting to its regular procedures for collecting credit information, and stating that "[i]n the two years preceding the filing of this civil action, Equifax has not knowingly or willfully issued a consumer report containing false information regarding plaintiff O'Diah." Trans Union has not submitted an affidavit in conjunction with its motion for summary judgment, although it has submitted a Rule 56.1 Statement of Material Facts, stating that there is "no evidence Trans Union reported false, inaccurate or misleading information about plaintiff" or "that Trans Union acted in willful contravention of Plaintiff's rights, or that Trans Union acted with malice or willful intent to injure Plaintiff." O'Diah submitted a four-page affidavit in opposition to these motions.

DISCUSSION

Summary judgment may not be granted unless the submissions of the parties taken together "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." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the [ Page 6]

absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R. Civ. P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002). Thus, in determining whether to grant summary judgment, this Court must ...


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