Aubert v. Russell Collection Agency, Inc.

215 F. Supp. 3d 583, 2016 WL 5430184, 2016 U.S. Dist. LEXIS 134248
CourtDistrict Court, E.D. Michigan
DecidedSeptember 29, 2016
DocketCase No. 2:15-cv-10703
StatusPublished
Cited by2 cases

This text of 215 F. Supp. 3d 583 (Aubert v. Russell Collection Agency, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aubert v. Russell Collection Agency, Inc., 215 F. Supp. 3d 583, 2016 WL 5430184, 2016 U.S. Dist. LEXIS 134248 (E.D. Mich. 2016).

Opinion

OPINION AND ORDER DENYING PLAINTIFF’S FED. R. CIV. P. 60(b)(6) MOTION FOR RECONSIDERATION (DE 23)

ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE

I. OPINION

A. The Court’s Opinion, Order and Judgment

This case is brought pursuant to the Fair Credit Reporting Act (“FCRA”). The parties to this case — Plaintiff on her own behalf and Defendant via counsel — appeared for trial on August 19, 2016. Plaintiffs proofs consisted of her testimony and the admission of Exhibits (A)-(E).1

At the close of Plaintiffs proofs, Defendant made an oral motion under Fed. R. Civ. P. 52(c) for judgment on partial findings. The Court granted this motion and stated its findings, legal authority and reasoning from the bench. As reflected in its bench ruling and the written opinion which followed, the Court’s findings and conclusions mandated that Defendant’s Rule 52(c) motion be granted, because: (1) There is no private cause of action under 15 U.S.C. § 1681s-2(a) (“Duty of furnish-ers of information to provide accurate information”); and (2) Although the Sixth Circuit has recognized a private cause of action under 15 U.S.C. § 1681s-2(b) (“Duties of furnishers of information upon notice of dispute”), Plaintiff did not actually plead for relief under this statutory section, and in any case, failed to establish a violation of the same. (DE 21.) Along with this opinion and order, the Court entered judgment in favor of Defendant and against Plaintiff. (DE 22.)

B. Plaintiffs Fed. R. Civ. P. 60(b) Motion

Currently before the Court is Plaintiffs August 24, 2016 motion (DE 23) for reconsideration of this Court’s August 19, 2016 ruling, August 23, 2016 opinion and order (DE 21) and August 23, 2016 judgment (DE 22). Plaintiff brings her motion pursuant to Fed. R. Civ. P. 60, which governs requests for relief from a judgment or order. As to the grounds for such a motion, the rule provides: “On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

[586]*586(6) any other reason that justifies relief. Fed. R. Civ. P. 60(b).

In the instant motion, Plaintiff specifically seeks relief under Subsection (b)(6), which “permits courts to grant relief from judgment for ‘any other reason that justifies relief.’ ” Taylor v. Streicher, 469 Fed.Appx. 467, 468 (6th Cir. 2012). As to this subsection, the Sixth Circuit has observed: “We have held that Rule 60(b)(6) should apply ‘only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule.’ ” Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990) (quoting Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989) (emphasis added)). “Courts, however, must apply subsection (b)(6) only ‘as a means to achieve substantial justice when ‘something more’ than one of the grounds contained in Rule 60(b)’s first five clauses is present.’ ” Olle, 910 F.2d at 365 (quoting Hopper, 867 F.2d at 294).2

C. Discussion of Plaintiffs Arguments

At the outset of her motion, Plaintiff claims that this Court “failed to recognize the relevance of verification in conducting a reasonable investigation pursuant to FCRA[,]” and “increased the plaintiffs burden of proof beyond that of the relevant substantive law concerning FCRA.” (DE 23 at 1.) Although these appear to be Plaintiffs two overriding arguments, this opinion is framed consistent with the five arguments listed in the table of contents and argument sections of Plaintiff’s brief. (DE 23 at 2, 4-8.)

1. Whether verification is a requisite function in conducting a reasonable investigation?

Answering this question in the affirmative, Plaintiff cites a Senate Report, which provides:

Currently, the FCRA does not apply to those entities that furnish information to consumer reporting agencies. The Committee believes that this gap in the FCRA’s coverage weakens the accuracy of the consumer reporting system. The consumer reporting agencies may dutifully respond to inquiries from consumers and attempt to verify disputed information by contacting the furnisher. If the furnisher of the information acts irresponsibly in verifying the information however, inaccurate information may remain on the report and the consumer is left with little or no recourse.

S. REP. 103-209, 6 (Dec. 9, 1993) (emphasis added). It is Plaintiffs position that verification “is a crucial function in conducting a reasonable investigation pursuant to FCRA[,]” presumably referring to the furnisher’s (Defendant’s) duties under Subsection 1681s-2(b)(l)(A), and “in no way invokes 15 USC § 1692g ... of the Fair Debt Collection Practices Act (FDCPA).” Here, Plaintiff explains that she refers to “verification” to the extent that “Congress intended to provide [a] private remedy against furnishers that perform ‘irresponsible verifications’ pursuant to FCRA.” (DE 23 at 4) (emphasis added). Nonetheless, whatever is stated in this Senate Report, the Court’s rulings are guided by the terms of the statute itself— [587]*58715 U.S.C. § 1681s-2 (“Responsibilities of furnishers of information to consumer reporting agencies”) — under which Plaintiff admits to bringing her lawsuit (see DE 1 at 5-7, DE 19 at 5). As the Supreme Court has “ ‘stated time and again... courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’ ” Arlington Cent. School Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 296, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006) (citing Connecticut Nat. Bank v. Germain,

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Cite This Page — Counsel Stack

Bluebook (online)
215 F. Supp. 3d 583, 2016 WL 5430184, 2016 U.S. Dist. LEXIS 134248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aubert-v-russell-collection-agency-inc-mied-2016.