Arizona law: Acton v. Bank One

David A. Szwak

Arizona law: Acton v. Bank One

Postby David A. Szwak » Sun Dec 25, 2005 9:37 pm

Acton v. Bank One Corp.
293 F.Supp.2d 1092
D.Ariz.,2003.
Nov 07, 2003

Damages recoverable under the FCRA "include humiliation or mental distress, even if the consumer has suffered no out-of-pocket losses" due to a denial of credit. Stevenson v. TRW Inc., 987 F.2d 288, 296 (5th Cir.1993). "Courts have allowed recoveries where ... the plaintiff suffered mental anguish based on events other than a denial of credit." Zala, 2001 WL 210693, at *7 (citations omited). See Guimond, 45 F.3d at 1333 ("[N]o case has held that a denial of credit is a prerequisite to recovery under the FCRA.").
Plaintiff claims that Equifax's failure to correct his credit report and the continuing hassle to correct the error "devastated" him and his wife. Plaintiff claims he had to take unpaid leave from work so he could deal with the stress of the credit situation, had difficulty sleeping, and was required to take large amounts of Tylenol. Plaintiff also claims that he was embarrassed by the fact that others in the community unjustifiably perceived him and his wife as bankrupt.
Equifax contends that Plaintiff's allegations are insufficient evidence of emotional distress injury. Equifax cites to Cousin v. Trans Union Corp., 246 F.3d 359, 371 (5th Cir.2001), for the proposition that a Plaintiff alleging intangible loss must set forth evidence with "a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award." Id. (citations omitted). Other courts have disagreed. See, e.g., Kronstedt v. Equifax, 2001 WL 34124783, at *12 (W.D.Wis. Dec. 14, 2001) (distinguishing Cousin, recognizing *1101 that the Seventh Circuit "has held that the injured party's testimony alone may be sufficient to establish emotional distress, so long as the injured party reasonably and sufficiently explains the circumstances of his injury and does not resort to mere conclusory statements") (internal quotations, brackets, and citations omitted). The Kronstedt court concluded that the "evaluation of plaintiff's emotional distress claim is a task best left for the jury [.]" Id.
The Ninth Circuit has not addressed the type of evidence necessary to support an award of emotional distress damages under the FCRA, but has stated in other contexts that "[w]hile objective evidence requirements may exist in other circuits, such a requirement is not imposed by case law in the Ninth Circuit, or the Supreme Court." Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir.2003) (holding in a discrimination action that the plaintiff's "testimony alone is enough to substantiate the jury's award of emotional distress damages") (ellipsis and citations omitted). See also Johnson v. Hale, 13 F.3d 1351, 1352-53 (9th Cir.1994) (recognizing that "compensatory damages may be awarded for humiliation and emotional distress established by testimony or inferred from the circumstances, whether or not plaintiffs submit evidence of economic loss or mental or physical symptoms.").
Equifax also cites to Price v. City of Charlotte, 93 F.3d 1241, 1248-54 (4th Cir.1996), as support for its contention that emotional distress damages must be supported by evidence of genuine injury. The Ninth Circuit stated in Zhang, however, that the "holding of Price that 'the evidence of the emotional distress must be demonstrable, genuine, and adequately explained,' is not the law of this Circuit[.]" Zhang, 339 F.3d at 1040 (citing Price, 93 F.3d at 1251). The Court therefore declines to follow Price in this case.
[22] While the Plaintiff certainly has not offered overwhelming evidence of emotional distress damages, the evidence is sufficient to create a question for the jury, particularly when all factual disputes and possible inferences are resolved in the Plaintiff's favor. The Court will therefore deny Equifax's motion for summary judgment regarding emotional distress damages.
D. Other Damages.
[23] [24] Plaintiff has made a number of generalized statements in his pleadings concerning damages allegedly suffered as a result of Equifax's actions. These include his alleged inability to purchase a home from 1999 until April 2000, the termination of two credit accounts allegedly related to his bad credit, and damages suffered in relation to inaccurate credit reports he obtained on July 14, 1999 and September 17, 1999. Plaintiff has provided the Court with no specific information concerning these alleged injuries, and it is not the Court's duty to search the record for evidence on which to deny summary judgment. Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417- 18 (9th Cir.1988). Because Plaintiff has failed to support his generalized allegations of damages with specific evidence, they will be eliminated by summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Federal Rule of Civil Procedure 56(c) "mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.").

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