Motion in Limine: Moore v. Equifax, et al

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Motion in Limine: Moore v. Equifax, et al

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UNITED STATES DISTRICT COURT
IN AND FOR THE EASTERN DISTRICT OF TEXAS
Marshall Division

DEBORAH F. MOORE, :
Plaintiff, : CASE NO. 2-02CV-303[TJW]
:
vs. :
:
CSC CREDIT SERVICES, INC. and :
EQUIFAX INFORMATION : JURY DEMANDED
SERVICES, LLC. :
Defendants :

PLAINTIFF’S MOTION IN LIMINE

NOW INTO COURT, through undersigned counsel, comes Plaintiff who respectfully seeks to exclude any effort by defendant, Equifax Information Services, LLC, to offer comment, reference or any evidence on various matters and issues, as follows:
1.
Plaintiff seeks to exclude any testimony or reference by counsel for Equifax to settlement discussions and negotiations in this lawsuit or any others involving the same counsel in this case. Plaintiff likewise seeks to exclude any reference to settlement or dismissal of the defendants, CSC Credit Services, Inc., and Northeast Texas Credit Bureau, Inc. Further, those agreements contain confidentiality clauses which would place plaintiff in a precarious position unless the court orders disclosure. Equifax is not entitled to any offset or credit for settlements made with those defendants.
2.
Plaintiff seeks to exclude any testimony or reference by counsel for Equifax to any alleged defense of mitigation of damages, or third party fault, or impostor liability. Equifax has argued for mitigation defense in its Answer and in the pre-trial order. Equifax is not entitled to raise such a defense as its own Rule 30[b][6] witness, Alicia Fluellen, designated on such topics, could not articulate a single fact to support the alleged defenses placed in Answer by counsel.
3.
Equifax failed to produce its online combine logs for the relevant period of time though Equifax was ordered to produce such records. Plaintiff seeks to exclude any testimony or reference by counsel for Equifax to Equifax’s secondary evidence, the online combine logs, to support any of its contention that it did not online combine the files, since Equifax failed to adequately and diligently search for such materials and/or produce such materials and, in fact, may have purposefully destroyed such records, which were required to be disclosed during discovery and which Equifax possessed. Plaintiff further seeks to exclude any non-disclosed document which Equifax may try to show at trial to suggest that it now knows who combined the files together. Equifax has not produced such information and cannot deny that the data in its possession and control was mixed and Equifax is liable for that event.
4.
Plaintiff seeks to exclude any reference, evidence or argument by Equifax to the effect that its computer data files are “owned by” or the “responsibility” of its affiliates, CSC Credit Services, and sub-bureaus like NETCB. Plaintiff further seeks to exclude any reference, evidence or argument by Equifax to the effect that it has shifted away its FCRA duties and shifted reinvestigation “responsibility” to its affiliates and sub-bureaus.
5.
Plaintiff seeks to exclude any reference, evidence or argument by Equifax to the effect that it did not vault or take offline plaintiff’s credit file in retaliation for her suit filing. Plaintiff’s credit report was requested by multiple lenders and those lenders received an inaccurate message back and were denied access to the credit file which Equifax continued to maintain but in an offline status. These inaccurate message prompted the lenders to deny credit and benefits to plaintiff. Equifax has argued that the settled defendant CSC took the file offline, which has been fully briefed in Equifax’s motion to strike filed after denial of its motion for summary judgment. Irrespective of who took the file offline and vaulted it, after suit was filed a number of lenders attempted to gain access to plaintiff’s credit file, as did plaintiff, and on each occasion, Equifax refused to permit access and posted a nefarious message to the effect that the file was unavailable and to contact Equifax’s bureau manager. Equifax’s message report contained data from plaintiff’s credit file and included the message statement, thus it constitutes a consumer credit report under the FCRA, section 1681a.
6.
Plaintiff objects to and moves to exclude the following items which were not produced by Equifax but which Equifax has listed on its exhibit listing. The following items should be excluded for non-disclosure: Equifax’s Indicating Manual [pertinent version] [#75]; ACB’s Manual on FCRA compliance [#76]; ACB Metro 2 manual [#77].
7.
Plaintiff objects to and moves to exclude any effort by Equifax to introduce in its case any deposition as Equifax failed to timely submit deposition transcript designations, about two weeks ago when due. Equifax produced such proposed designations hours before the pre-trial order document was to be filed and plaintiff has not had an opportunity to intelligently review and consider those proposal and is prejudiced by the purposeful late production of the designations. This Honorable Court should exclude such references. Equifax’s pre-trial disclosures, due on May13th, but filed on May 17, 2004, failed to include any such designations.

WHEREFORE PLAINTIFF PRAYS THAT this motion be granted and that an appropriate order excluding such documents, testimony, reference or comment by entered.

Respectfully submitted:

Bodenheimer, Jones, Szwak


By: ___________________________________
David A. Szwak, LBR #21157, T.A.
416 Travis Street, Suite 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400[318] 424-1400
FAX 221-6555
COUNSEL FOR PLAINTIFF

CERTIFICATE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been mailed, by first class mail, properly addressed, with prepaid postage affixed, to opposing counsel of record, on this the _____ day of ___________________________, 2004.


___________________________________
David A. Szwak


UNITED STATES DISTRICT COURT
IN AND FOR THE EASTERN DISTRICT OF TEXAS
Marshall Division

DEBORAH F. MOORE, :
Plaintiff, : CASE NO. 2-02CV-303[TJW]
:
vs. :
:
CSC CREDIT SERVICES, INC. and :
EQUIFAX INFORMATION : JURY DEMANDED
SERVICES, LLC. :
Defendants : :

MEMO IN SUPPORT OF
PLAINTIFF’S MOTION IN LIMINE

MAY IT PLEASE THE COURT:

Plaintiff respectfully seeks to exclude any effort by defendant, Equifax Information Services, LLC, to offer evidence on various issues, as follows:
Matter 1:
Plaintiff seeks to exclude any testimony or reference by counsel for Equifax to settlement discussions and negotiations in this lawsuit or any others involving the same counsel in this case. Affiliated Mfrs., Inc. v. Aluminum Co. of Am., 56 F.3d 521, 526-30 [3d Cir. 1995]; FRE 408. Plaintiff likewise seeks to exclude any reference to settlement or dismissal of the defendants, CSC Credit Services, Inc., and Northeast Texas Credit Bureau, Inc. Equifax is not entitled to any offset or credit for settlements made with those defendants and the case law under the FCRA is clear and uniform in that regard. Three courts have directly addressed this specific issue. In McMillan v. Equifax Credit Information Services, 153 F.Supp.2d 129 [U.S.D.C. Conn. 2000], the Judge would not allow the defendants, in a credit reporting case arising from application fraud, to implead and join the imposter, plaintiff’s son, as a defendant in an effort to lay off liability or to seek contribution. The same result haled in another identity theft case in Texas: Maricela Mendoza v. Experian, et al, CIV-H-02-2465 [U.S.D.C. S.D. Tex.]. The Judge denied the motion and held that the imposter did not cause the Bank [movant] to violate the Fair Credit Reporting Act requirements. This opinion is consistent with earlier cases refusing to permit contribution claims where a defendant violated the FCRA. It served no purpose to permit a defendant to lay off its liability for violating the Act. In Paul Cooley v. Experian Information Solutions, cause no. 2:02CV149-TJW [U.S.D.C. E.D. Tex. 12/02] [unreported], Your Honor considered the same scenario and essentially the same motion to implead for the purposes of contribution. Your Honor verbally ruled, in the initial status conference, that you would allow the alleged imposter to be added as a defendant but specifically held that the addition of the imposter as a third party defendant did not mean that you would allow the imposter to be a party to whom an assessment of fault would be assigned and Your Honor reserved decision on that issue for a later date, if the case went to trial. That case settled pre-trial. Other courts have refused to permit indemnification or contribution to defendants in FCRA cases. Any right of contribution for liability arising from the violation of a federal statute is a matter of federal law and not state law. Northwest Airlines v. Transport Workers, 451 U.S.77, 67 L.Ed.2d 750, 101 S.Ct. 1571 [1981]; Doherty v. Wireless Broadcast Systems, 151 F.3d 1129 [9th Cir. 1998]; Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456 [1st Cir. 1985]. The Doherty, supra, court found that rights to indemnification or contribution can arise only through an affirmative grant of such rights by statute by Congress. This grant must be express or implied. The only other way is through federal common law. Thus far, the courts have found no such rights. The Northern District of Illinois in Kay v. First Continental Trading, 966 F.Supp. 753 [U.S.D.C. N.D. Ill. 1997], held that there is no right to contribution to a defendant who has violated the Fair Credit Reporting Act. Likewise, the Northern District of California in Irwin v. Mascott, 94 F.Supp.2d 1052 [U.S.D.C. N.D. Cal. 2000], found no contribution right available to a defendant who violated the sister statue to the FCRA, the Fair Debt Collection Practices Act [FDCPA], which is also contained in the Consumer Credit Reform Act of 1968, 15 U.S.C. 1600, et, seq. The same result haled in Wiggins v. Phillip Morris, Inc., 853 F.Supp. 470 [U.S.D.C. D.C. 1994].

Matter 2:
Plaintiff seeks to exclude any testimony or reference by counsel for Equifax to any alleged defense of mitigation of damages, or third party fault, or impostor liability. Equifax has argued for mitigation defense in its Answer and in the pre-trial order. Equifax is not entitled to raise such a defense as its own Rule 30[b][6] witness, Alicia Fluellen, designated on such topics, could not articulate a single fact to support the alleged defense placed in Answer by counsel. See, Pages 18-19, Deposition of Equifax’s Rule 30[b][6] witness, Alicia Fluellen, taken on January 6, 2004 (admitting Equifax does not know of any such facts to support the third party fault defense its counsel alleged). Equifax goes on to suggest third party fault as a defense. Equifax is not entitled to argue the defense of third party fault where Equifax again testified that there are no facts to support such a contention. See, Pages 17-18, Deposition of Equifax’s Rule 30[b][6] witness, Alicia Fluellen, taken on January 6, 2004 (admitting Equifax does not know of any such facts to support the third party fault defense its counsel alleged). This is not an “impostor” case, as Equifax suggests one of its proposed jury charges, and Equifax has not alleged such. See, Pages 17-18, Deposition of Equifax’s Rule 30[b][6] witness, Alicia Fluellen, taken on January 6, 2004 (admitting Equifax does not know of any such facts to support the third party fault defense its counsel alleged).

Matter 3:
Equifax failed to produce its online combine logs for the relevant period of time though Equifax was ordered to produce such records. These online combine logs would show that Equifax’s computer system actually combined plaintiff’s credit file with that of Deborah L. Moore. Equifax intends to testify that one of its employees checked the logs but the logs were not produced despite repeated requests. Plaintiff seeks to exclude any testimony or reference by counsel for Equifax to Equifax’s secondary evidence, the online combine logs, to support any of its contention that it did not online combine the files, since Equifax failed to adequately and diligently search for such materials and/or produce such materials and, in fact, may have purposefully destroyed such records, which were required to be disclosed during discovery and which Equifax possessed. Cartier v. Jackson, 59 F.3d 1046, 1048 [10th Cir. 1995]; Petty v. Ideco, Div. of Dresser Industries, Inc., 761 F.2d 1146 [5th Cir. 1998] [Tex.]. Plaintiff further seeks to exclude any non-disclosed document which Equifax may try to show at trial to suggest that it now knows who combined the files together. Equifax has not produced such information and cannot deny that the data in its possession and control was mixed and Equifax is liable for that event.

Matter 4:
Plaintiff seeks to exclude any reference, evidence or argument by Equifax to the effect that its computer data files are “owned by” or the “responsibility” of its affiliates, CSC Credit Services, and sub-bureaus like NETCB. Plaintiff further seeks to exclude any reference, evidence or argument by Equifax to the effect that it has shifted away its FCRA duties and shifted reinvestigation “responsibility” to its affiliates and sub-bureaus. Equifax has established a fictional scenario by contract with other entities. Equifax signs up countless data furnishers as suppliers of credit data. It takes in data and places it into the credit reporting database. That information is assembled, automatedly, into credit reports upon: [1] data posting to data files, and [2] data files [preliminary collections of data] are then joined together upon an actual inquiry by a user/subscriber into the form of a credit report. Equifax and its various web of affiliated credit bureaus sell these files in the form of complete credit reports and derivative reports [including mere credit scores and risk factors/denial codes/adverse action codes] continuously. The data never leaves Equifax’s credit database and computer system. Equifax permits certain affiliates, like CSC Credit Services, to access data and also to perform manual maintenance on data files in Equifax’s computer system. Equifax contracts with CSC to “contract away” the reinvestigation function for certain geographic allotments [zip codes] of data files where the consumer’s current address on file is in a zip code in that allotment. The same contracts exist with other Equifax affiliated credit bureaus. For example, historically, Credit Bureau of Lake Charles had zip code allotments in the western portion of Louisiana. CSC then contractually agrees to perform reinvestigations on incoming consumer disputes for those geographic areas. Equifax mails or e-mails consumer disputes to CSC, if received by Equifax. Equifax is the ultimate gatekeeper of its computer and decides who can access it, who can sell data from it and who can manipulate data in the computer. Equifax takes in, assembles and sells data in the subject files all day long without an affiliated credit bureau ever touching any of the data in such files. The only time an affiliate would touch the file data is upon manual maintenance. Equifax does not have a direct contract for reinvestigation with NETCB. CSC actually subcontracted the reinvestigation function to NETCB to further “contract away” those FCRA duties, ostensibly. NETCB owns nothing other than a slice of the profit pie for the sale of data from one of the subject files in an allotment it received from CSC for reinvestigation purposes. Thus, NETCB performs reinvestigations in exchange to be permitted to be a credit bureau and access data in Equifax’s database and to share in the profit for the sale of a data file in that allotment.

Matter 5:
Plaintiff seeks to exclude any reference, evidence or argument by Equifax to the effect that it did not vault or take offline plaintiff’s credit file in retaliation for her suit filing. Some of plaintiff’s credit denials occurred after Equifax or CSC removed the only remaining negative and false account reporting, that being TU Electric. Equifax wrongfully and in violation of the FCRA took plaintiff’s credit file offline to retaliate against her for filing a lawsuit against Equifax. This is a systemic and conscious decision by Equifax. Plaintiff’s credit report was requested by multiple lenders and those lenders received an inaccurate message back and were denied access to the credit file which Equifax continued to maintain but in an offline status. These inaccurate message prompted the lenders to deny credit and benefits to plaintiff. In fact, Equifax cites Mrs. Moore’s testimony in support of this factual contention yet that is not what Mrs. Moore said. Equifax has argued that the settled defendant CSC took the file offline, which has been fully briefed in Equifax’s motion to strike filed after denial of its motion for summary judgment. Irrespective of who took the file offline and vaulted it, after suit was filed a number of lenders attempted to gain access to plaintiff’s credit file, as did plaintiff, and on each occasion, Equifax refused to permit access and posted a nefarious message to the effect that the file was unavailable and to contact Equifax’s bureau manager. Equifax’s message report contained data from plaintiff’s credit file and included the message statement. As noted by the Middle District of Alabama in LA Thompson, another instance where Equifax did the same, exact thing, such a report may constitute a consumer report since data from the file and the message are misleading at best, violate 1681e[b], and not accurate. Further, refusal to provide plaintiff her own report violates the FCRA’s section 1681g, which mandates disclosure of “all information” contained in Equifax’s possession.

Matter 6:
Plaintiff objects to and moves to exclude the following items which were not produced by Equifax but which Equifax has listed on its exhibit listing. The following items should be excluded for non-disclosure: Equifax’s Indicating Manual [pertinent version] [#75]; ACB’s Manual on FCRA compliance [#76]; ACB Metro 2 manual [#77].

Matter 7:
Plaintiff objects to and moves to exclude any effort by Equifax to introduce in its case any deposition as Equifax failed to timely submit deposition transcript designations, about two weeks ago when due. Equifax produced such proposed designations hours before the pre-trial order document was to be filed and plaintiff has not had an opportunity to intelligently review and consider those proposal and is prejudiced by the purposeful late production of the designations. This Honorable Court should exclude such references. Equifax’s pre-trial disclosures, filed on May 17, 2004, failed to include any such designations.

This motion should be granted and that an appropriate order excluding such documents, testimony, reference or comment by entered.

Respectfully submitted:

Bodenheimer, Jones, Szwak


By: ___________________________________
David A. Szwak, LBR #21157, T.A.
416 Travis Street, Suite 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400[318] 424-1400
FAX 221-6555
COUNSEL FOR PLAINTIFF

CERTIFICATE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been mailed, by first class mail, properly addressed, with prepaid postage affixed, to opposing counsel of record, on this the _____ day of ___________________________, 2004.


___________________________________
David A. Szwak

---------------
UNITED STATES DISTRICT COURT
IN AND FOR THE EASTERN DISTRICT OF TEXAS
Marshall Division

DEBORAH F. MOORE, :
Plaintiff, : CASE NO. 2-02CV-303[TJW]
:
vs. :
:
CSC CREDIT SERVICES, INC. and :
EQUIFAX INFORMATION : JURY DEMANDED
SERVICES, LLC. :
Defendants :

O R D E R

CONSIDERING THE FOREGOING MOTION, OPPOSITION AND ARGUMENT:
IT IS HEREBY ORDERED that Plaintiff’s Motion in Limine is GRANTED.
This the _________ day of _________________, 2004, Marshall, Texas.


______________________________________
Honorable T. John Ward
United States District Judge


--------------------------------------------------------------------------------

BRIEF IN SUPPORT OF

PLAINTIFF’S MOTION IN LIMINE

TO EXCLUDE EVIDENCE OR ARGUMENT OF OTHER SETTLEMENTS, SETTLEMENT NEGOTIATIONS

Introduction

A motion in limine is a preliminary motion that serves a gate-keeping function and permits the Court to eliminate from further consideration evidentiary submissions that clearly would be inadmissible. Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). "The prudent use of the in limine motion sharpens the focus of later trial proceedings and permits the parties to focus their preparation on those matters that will be considered..." Jonasson, 115 F.3d at 440.

A motion in limine also avoids the inevitable drawback of having the trial process interrupted with unscheduled objections and having the jury shuffled in and out of the courtroom or subjected to noise-interference in order to address matters which can be handled pre-trial. Further, it avoids the prejudice and affect of the jury hearing improper remarks, questions, argument and objections arising therefrom thereby causing the jury to focus attention and emphasis to evidence, testimony and commentary sought to be made and introduced in their presence. A motion in limine helps keep the trial moving by resolving issues in advance of and before reaching the jury. It necessarily results in fewer objections, offers of proof, motions to strike, and curative and limiting instructions during trial. The granting of a motion in limine is within the sound discretion of the trial judge. United States v. Jackson, 757 F.2d 1486, 1491 (4th Cir. 1985); Cole v. Bertsch Vending Co., Inc., 766 F.2d 327 (7th Cir. 1985).

1. Other Settlements are Irrelevant to this case if there is no settlement or contribution allowed under the FCRA.

Throughout the later phases of this case, the Defendant has made much ado about settlements with other parties to this action. As such, it appears that Defendant is preparing to argue to the jury that it should be relieved of liability based on the funds already paid to Plaintiffs. As a general proposition, these arguments could only be permitted if they were supported by evidence. This assumes that such evidence is relevant and properly admitted. FRE 402 and 403.

To the extent that this evidence bears on neither on liability or damages, such evidence would be wholly irrelevant and therefore inadmissable. Consequently, any argument or implication that Plaintiffs had received other settlements should be barred along with any similar evidence.

2. Defendant is not entitled to setoff or contribution, because the FCRA does not provide any right of setoff or contribution.

Any right of contribution for liability arising from the violation of a federal statute is a matter of federal law and not state law. Northwest Airlines v. Transport Workers, 451 U.S. 77, 67 L.Ed.2d 750, 101 S.Ct. 1571 (1981); Doherty v. Wireless Broadcast Systems, 151 F.3d 1129 (9th Cir. 1998); Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456 (1st Cir. 1985). The Doherty, supra, court found that rights to indemnification or contribution can arise only through an affirmative grant of such rights by statute by Congress. This grant must be express or implied. The only other way is through federal common law.

At this point, there is virtual unanimity among the district courts that there is no right of contribution or indemnity under the FCRA. Since the first of these opinions, every court to have reviewed the issues has arrived at the unremarkable proposition that the FCRA represents a comprehensive scheme for regulating liability from use of credit information, and as such there can be in implication of a right of contribution or setoff without an express grant of that right. Kay v. First Continental Trading, 966 F.Supp. 753 ( N.D. Ill. 1997). Since that decision, cases have lined up squarely behind this fundamental principal of federal law. In re Ameriquest Mortg. Co. Mortg. Lending Practices Litigation, 2008 WL 630883, *3 (N.D.Ill.,2008)(agreeing with the raft of other decisions holding that the FCRA's "structure really negates any inference" that contribution or indemnification are permitted); Nelson v. Equifax Information Services, LLC, 522 F.Supp.2d 1222, 1239 (C.D.Cal.,2007)(no right of contribution under either FCRA or FDCPA); Meyers v. Freedom Credit Union, 2007 WL 2753172 (E.D.Pa.,2007)(reviewing prior cases);Kudlicki v. MDMA, Inc., 2006 WL 1308617 (N.D. Ill. May 10, 2006)( federal common law cannot be the basis for a cause of action for contribution under the FCRA); McSherry v. Capital One FSB, 236 F.R.D. 516, 522 (W.D.Wash.2006)(no implied right of indemnification or contribution for furnishers of credit information); Connor v. Howe, 344 F.Supp.2d 1164, 1171 (S.D.Ind.2004); McMillan v. Equifax Credit Information Services, Inc., 153 F.Supp.2d 129, 132 (D.Conn.,2001)(courts have found no right of indemnity under the FCRA); Irwin v. Mascott, 94 F.Supp.2d 1052, 1058 (N.D.Cal.2000)(no express or implied right to contribution or indemnification under Fair Debt Collection Practices Act).

Conclusion


Because there is no right to contribution or indemnity under the FCRA, evidence and argument of other settlements can have not bearing on either liability or damages. Such settlements would not tend to show liability or negate it. As such that testimony. has no conceivable relevance and any proffered testimony on this topic should be excluded. At the same time, any mention of these settlement could present the opportunity to confuse the jury or mislead it into believing that the acts of another have some bearing on the Defendant's liability. Because case law negatives this very idea, any mention of such settlements, either in evidence or argument should be excluded.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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