162 F.Supp.2d 396
United States District Court,
HOMESIDE LENDING, INC., et al.
CIV.A. No. DKC 2000-2253.
Aug. 30, 2001.
Consumer brought state court action for defamation, invasion of privacy, alleging that lender had falsely indicated in credit report that she had been involved in, or had filed bankruptcy. After removal to federal court, lender moved for summary judgment. The District Court, Chasanow, J., held that: (1) statement was true, and (2) consumer had no reasonable expectation of privacy in credit report.
Presently pending and ready for resolution are the following motions: (1) Plaintiff's Motion for leave to file Amended Complaint; (2) A Motion by Defendant Homeside Lending, Inc. for Summary Judgment; (3) Plaintiff's Motion for leave to file surreply; and (4) Plaintiff's Motion for leave to file response to supplemental declaration. The issues are fully briefed, and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary.
Plaintiff originally filed suit in the Circuit Court for Prince George's County in August 1999. Homeside Lending, Inc. removed the case to this court on July 24, 2000, after Plaintiff amended her complaint a fourth time and added a federal claim. In the Fourth Amended Complaint, Plaintiff alleged that, in March, 1998, while in the process of purchasing a car, she learned that an adverse credit report contained comments "to the effect" that she had filed for bankruptcy, based on information from Bank One Mortgage Corporation, which was alleged to be a predecessor in interest to Homeside Lending, Inc. She was required to pay a higher interest rate as a result. Eventually, a correction was made. Later, in November 1998, the complaint alleged that Homeside had "redefamed" her "by falsely indicating, through her credit report, that she had been involved in, or had filed bankruptcy." Pl.'s Fourth Am. Compl. at 3. Despite agreements to correct the report, Homeside, by March 1999, was still maintaining the allegedly false report. The other defendants were alleged to have published false reports concerning the bankruptcy. That complaint contained claims for defamation, invasion of privacy, and violation of the Fair Credit Reporting Act.
After some of the claims were dismissed, and the parties conducted discovery, Plaintiff resolved her claims against some of the defendants and moved for leave to amend to delete the claims against them. The remaining defendant, Homeside Lending, has moved for summary judgment as to the two remaining claims against it, one for defamation and the other for the intrusion upon seclusion type of invasion of privacy.
Plaintiff asserts two claims against Homeside: defamation and invasion of privacy arising out of the alleged false indication that she had been involved in or had filed bankruptcy. Homeside's motion contends that it is a large national mortgage company and serviced the mortgage loan that Plaintiff and her husband had on their home. Plaintiff's husband, Gerald Trundle, filed a bankruptcy petition, identifying the mortgage as one of his obligations. Thus, it contends that stating that the mortgage was "included in" a bankruptcy was truthful. It also contends that the Fair Credit Reporting Act bars the state common law claims, a portion of which are barred by the statute of limitations. Def.'s Mem. Supp. Summ. J. at 1,2.
Plaintiff's opposition takes issue with the sufficiency of the exhibits attached to Defendant's motion, but does not undertake to support her claims at all. [FN1] As stated above, a party that will have the burden of proof at trial must resist a summary judgment motion with evidence. Regardless of whether Defendant's exhibits are or were properly supported,
Plaintiff still was responsible for submitting her own evidence. She did not do so in her opposition. As to those aspects of the claims that Defendant challenged her to support, if the record fails to reflect evidence that would support her claims, then summary judgment is to be granted.
FN1. Plaintiff's motion to file a surreply or to strike will be granted, although it does not change the result. Her motion for leave to file response to Defendant's supplemental declaration will be denied. The time for providing evidence was in her initial opposition and she puts forth no reason that the material now sought to be added was unavailable at that time. (In any event, the material attached does not contradict any material fact.)
*400 As stated in Shapiro v. Massengill, 105 Md.App. 743, 772, 661 A.2d 202, 216-217 (1995):
In a case involving a plaintiff who is not a public figure, a prima facie case of defamation requires proof of the following elements: (1) that the defendant made a defamatory communication--i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement as being defamatory; (2) that the statement was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffered harm. Kairys v. Douglas Stereo Inc., 83 Md.App. 667, 678, 577 A.2d 386 (1990) (citing Hearst Corp. v. Hughes, 297 Md. 112, 466 A.2d 486 (1983) and Gooch v. Md. Mechanical Systems, Inc., 81 Md.App. 376, 567 A.2d 954, cert. denied, 319 Md. 484, 573 A.2d 807 (1990)).
Two of those elements are at issue. While not conceding elements (3) and (4), Homeside specifically challenges the evidence as to the defamatory nature and the falsity of the communications made.
The burden of proof is on Plaintiff to demonstrate that the allegedly defamatory statement was false. See Batson v. Shiflett, 325 Md. 684, 726, 602 A.2d 1191, 1212 (1992). "A false statement is one that is not substantially correct." Id., citing Piracci v. Hearst Corp., 263 F.Supp. 511, 513 (D.Md.1966), aff'd 371 F.2d 1016 (4th Cir.1967). Therefore, unless Plaintiff put forth evidence that the statement in the credit report was not substantially correct, there is no need to assess whether the statement could be considered defamatory.
Plaintiff did not specify the form in which the allegedly defamatory communication took place in her complaint. Defendant's exhibit one states that electronic data was transmitted indicating that the mortgage loan was included in a bankruptcy. [FN2] Homeside has also provided evidence supporting the literal truth of that statement. The mortgage loan was a joint obligation of Plaintiff and her husband. Def.'s Mem. Supp. Summ. J. at 4. Her husband filed for bankruptcy and the loan was included in that filing. Def.'s Mem. Supp. Summ. J. at 4, Seiler Decl., Ex. 2, 4; see also Trundle Dep., Ex. 3, at 122- 25. The communication from Homeside did not identify a debtor; but only the loan. Thus, Plaintiff has not demonstrated that the communication was false. Accordingly, because only a false communication can be defamatory as a matter of law, it is not necessary to address Defendant's alternative argument as to the defamatory nature of the communication.
FN2. Plaintiff attaches the computer print out in her supplementary response.
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