United States District Court, E.D. New York
KAMALADOSS V. SELVAM, pro se, Plaintiff,
EXPERIAN INFORMATION SOLUTIONS, INC., Defendant.
MEMORANDUM AND ORDER
L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE
se plaintiff Kamaladoss V. Selvam
(“Plaintiff”) commenced this action against
consumer reporting agency defendant Experian Information
Solutions, Inc. (“Defendant”) alleging violations
of the Fair Credit Reporting Act, 15 U.S.C. § 1681,
et seq. (“FCRA”) and New York Fair
Credit Reporting Act, N.Y. Gen. Bus. L. § 380, et
seq. (“NY FCRA”). Defendant moved for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Plaintiff opposed. This Court granted
Defendant's motion in its entirety. See Selvam v.
Experian Info. Sols., Inc., No. 12-cv-1828 (DLI) (JO),
2015 WL 1321615 (E.D.N.Y. Mar. 24, 2015) (“Selvam
I”). Plaintiff appealed to the Second Circuit Court of
Appeals. See Notice of Appeal, Dkt. Entry No. 92.
The Circuit Court affirmed in part, vacated in part, and
remanded for further proceedings. See Dkt. Entry No.
sole remaining claim after the Circuit Court's decision
is that Defendant failed to disclose clearly and accurately
to Plaintiff all of the information in Plaintiff's credit
file as required by FCRA § 1681g. See Selvam v.
Experian Info. Sols., Inc., 651 F. App'x 29 (2d Cir.
2016). On remand, this Court granted Defendant leave to move
for summary judgment based on issues of damages and
timeliness. See Min. Entry, Jan. 9, 2017. Defendant
so moved on March 21, 2017. See Def.'s Mot. for
Summ. J., Dkt. Entry No. 109; Def.'s Mem. of Law in Supp.
of Def.'s Mot. for Summ. J. (“Def.'s Mem. of
Law”), Dkt. Entry No. 110. For the reasons that follow,
Defendant's motion is granted in part and denied in part.
claim stems from erroneous consumer credit reports that were
furnished to him by Defendant in 2011. On February 24, 2011,
Defendant was notified by another consumer reporting agency
that Plaintiff had contacted it to dispute inaccurate items
on his credit report due to possible fraudulent activity.
Decl. of Jason Scott dated Jan. 31, 2014 (“Scott Decl.
1”) ¶¶ 30, 33, 35, Ex. 2 to Decl. of Andrew
S. Kleinfeld in Supp. of Def.'s Mot. for Summ. J.
(“Kleinfeld Decl.”), Dkt. Entry No. 113-1. Also
on February 24, 2011, Defendant sent Plaintiff a letter
explaining that a security alert had been added to his file,
and enclosing a copy of Plaintiff's consumer credit
report. Id. ¶¶ 31, 33, 36; Security Alert
Letter, Ex. D to Scott Decl. 1, Dkt. Entry No. 113-1.
Plaintiff acknowledges receiving the letter and consumer
credit report. Excerpts from Dep. of Kamaladoss V. Selvam
(“Selvam Dep.”) at 110:22-25, Ex. 1 to Kleinfeld
Decl., Dkt. Entry No. 113. However, the February 24, 2011
credit report did not contain any credit account information
because Defendant had mistakenly assigned Plaintiff two
personal identification numbers (PINs) and one of the numbers
did not contain credit information for
Plaintiff. Decl. of Kimberly Hughes (“Hughes
Decl.”) ¶¶ 15-18, 25-28, Ex. 5 to Kleinfeld
Decl.; Scott Decl. 1 ¶¶ 28, 32, 34, 37; Security
Alert Letter. As a result, Plaintiff did not contact
Defendant to dispute any credit information because
“[the report] [did] not have anything that [he] thought
could be damaging towards [him][.]” Selvam Dep. at
163:8-9. This issue was not remedied until March 31, 2011, or
thereabouts, when Defendant discovered the two PINs during
the ordinary course of business and deleted the PIN that was
missing Plaintiff's credit information. Hughes Decl.
¶ 31. However, as discussed infra, Defendant
did not inform Plaintiff of the issue, and Plaintiff did not
learn of it until June 2011.
applied for a car loan for approximately $25, 000-$30, 000
from the Municipal Credit Union (“MCU”) in or
about January 2011 (“the car loan”). Am. Compl.
¶ 34; Selvam Dep. at 371:21-22. In April 2011, Plaintiff
received a denial letter from MCU. Letter dated April 28,
2011 from MCU, Ex. W to Pl.'s Opp. to Def.'s Mot. for
Summ. J. in Selvam I (“Pl.'s Selvam I Opp.”),
Dkt. Entry No. 78-19. Plaintiff does not know if MCU received a
credit report from Defendant in connection with the
application process, Selvam Dep. at 96:10-19, but the letter
refers to information provided by Defendant. See Ex.
W to Pl.'s Selvam I Opp.
applied for a home loan for approximately $500, 000-$600, 000
from Wells Fargo Bank in or about May or June 2011
(“the home loan”). Am. Compl. ¶ 54; Selvam
Dep. at 298:7-11. The home loan was denied orally because
there were too many delinquencies on Plaintiff's credit
report. Selvam Dep. at 313:24-25. The credit report in
question was provided by Rels Credit, which Defendant
concedes included information from Defendant. See
Rels Report, Ex. 8 to Kleinfeld Decl., Dkt. Entry No. 113-7;
Def.'s Mem. of Law at 8-9. After that denial, Plaintiff
contacted Defendant in June 2011 to dispute items on his
report. Local Civ. R. 56.1 Statement of Material Facts in
Supp. of Def.'s Mot. for Summ. J. (“Def.'s 56.1
Statement”) ¶ 39, Dkt. Entry No. 111. Only then
did Plaintiff receive corrected disclosures from Defendant
that contained credit account information. Id.
se pleadings are held “to less stringent standards
than formal pleadings drafted by lawyers.” Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts
should “interpret [such papers] to raise the strongest
arguments that they suggest.” Forsyth v. Fed'n
Emp't & Guidance Serv., 409 F.3d 565, 569 (2d
Cir. 2005) (citation and internal quotation marks omitted).
judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c). The court must
view all facts in the light most favorable to the nonmoving
party, but “only if there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007). “When opposing parties tell
two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”
Id. A genuine issue of material fact exists if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmoving party, however, may not rely on “[c]onclusory
allegations, conjecture, and speculation, ” Kerzer
v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), but
must affirmatively “set out specific facts showing a
genuine issue for trial, ” Fed.R.Civ.P. 56(e).
“When no rational jury could find in favor of the
nonmoving party because the evidence to support its case is
so slight, there is no genuine issue of material fact and a
grant of summary judgment is proper.” Gallo v.
Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l
Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).
Civil Rule 56.1 requires that a party moving for summary
judgment include with the motion a “separate, short,
and concise statement of the material facts to which the
moving party contends there is no genuine issue to be
tried.” Local Civ. R. 56.1(a). “When a party has
moved for summary judgment . . . and has, in accordance with
local court rules, served a concise statement of the material
facts as to which it contends there exist no genuine issues
to be tried, those facts will be deemed admitted unless
properly controverted by the nonmoving party.”
Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.
1992). In cases involving a pro se litigant, Local
Civil Rule 56.2 requires that: “[a]ny represented party
moving for summary judgment against a party proceeding
pro se shall serve and file as a separate document,
together with the papers in support of the motion, a
‘Notice to Pro Se Litigant Who Opposes a Motion for
Summary Judgment' with the full texts of Fed.R.Civ.P. 56
and Local Civil Rule 56.1 attached.” Local Civ. R.
56.2. “The notice referred to in the rule advises the
pro se litigant of the possibility that the
complaint may be dismissed and informs the litigant that she
must submit evidence countering the facts asserted by the
defendant and raising issues of fact for trial.”
Arum v. Miller, 304 F.Supp.2d 344, 349 (E.D.N.Y.
2003). In the instant case, Defendant submitted a Rule 56.1
statement and Rule 56.2 notice. Thus, Defendant's motion
is properly before this Court.
FCRA § 1681g
FCRA requires that a consumer reporting agency, upon request,
clearly and accurately disclose to a consumer all information
in a consumer's file. 15 U.S.C. § 1681g(a)(1). It
also grants a consumer “a right…to obtain a copy
of a consumer report.” 15 U.S.C. § 1681g(c). A
claim arising under the FCRA must be brought “not later
than the earlier of: (1) 2 years after the date of discovery
by the plaintiff of the violation that is the basis for such
liability; or (2) 5 years after the date on which the
violation that is the basis for such liability occurs.”
15 U.S.C. § 1681p. To sue a consumer reporting agency
under this section, a violation may be willful or negligent.
See 15 U.S.C. §§ 1681n & 1681o;
Ritchie v. N. Leasing Sys., Inc., 14 F.Supp.3d 229,
233-34 (S.D.N.Y. 2014) (“In general, the FCRA provides
a cause of action against any person who willfully fails to
comply or who is negligent in failing to comply with an FCRA
requirement”) (internal quotations omitted). If ...