UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gregg Henry and Linda Henry
v. Civil No. 02-395-JD Opinion No. 2003 DNH 178 Fleet Boston f/k/a BankBoston, N.A. and Chase Manhattan Bank USA, N.A.
O R D E R
The plaintiffs, Gregg and Linda Henry, bring claims under
the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et
seg., and state law defamation and negligent infliction of
emotional distress claims, arising from a banking error that
resulted in a partially unpaid credit card bill owed to Chase
Manhattan Bank USA. Chase moves for partial summary judgment on
the state claims. Fleet Boston moves for summary judgment on the
negligent infliction of emotional distress claim, which is the
only claim brought against it. The Henrys object to summary
judgment.
Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See id. at 255.
Background1
The dispute began when Gregg Henry attempted to pay his
Chase credit card bill with a check written on his Fleet checking
account. On June 24, 1999, Gregg wrote a check to Chase for
$7,425.93, the amount owed on the monthly statement. Fleet
erroneously encoded the check as $1,425.93, leaving a balance
owed on the credit card of $6,000.
After Gregg notified Fleet of the error. Fleet debited his
account for the remaining $6,000 and credited that amount to
Chase. Chase, however, did not credit that amount to Gregg
1Neither Chase nor the Henrys provided a properly supported factual statement. See LR 7.2(b). Therefore, the facts are taken from the complaint and from the materials provided by Fleet.
2 Henry's account. Chase continued its attempts to collect $6,000
from Gregg Henry as a delinguent debt and reported the
uncollected amount to credit reporting agencies as a delinguent
debt. Chase's erroneous reports have damaged the Henrys' credit.
Discussion
In its motion for partial summary judgment. Chase contends
that the FCRA preempts the Henrys' state law claims and that
their negligent infliction of emotional distress claim fails
because they cannot prove physical injury caused by Chase's
negligence. Fleet moves for summary judgment in its favor as to
the Henrys' negligent infliction of emotional distress claim.
A. Chase - FCRA Preemption
The Henrys allege FCRA claims against Chase and allege that
Chase published false and defamatory statements to consumer
reporting agencies by reporting that Gregg Henry owed a debt to
Chase and that he was delinguent in paying the debt. That
report, the Henrys contend, was erroneous. They also allege that
they and their counsel notified Chase of the error, but that
Chase nevertheless reported the debt as delinguent. Those
actions, the Henrys assert, were defamatory and negligently
caused them emotional distress. Chase argues that those claims
3 are preempted by the FCRA.
The FCRA has two preemption provisions. The more general
provision, 15 U.S.C. § 1681t(b)(1)(F), states that state law may
not impose requirements or prohibitions as to the
responsibilities of those who furnish information to consumer
reporting agencies under § 1681s-2.2 The more specific
provision, § 1681h(e), limits claims "in the nature of
defamation, invasion of privacy, [and] negligence" against a
consumer reporting agency, a user of information, or a furnisher
of information, based on information disclosed pursuant to §
1681g, § 1681h, § 1681m, or based on information disclosed by a
user of a report, "except as to false information furnished with
malice or willful intent to injure such consumer." Chase
contends that both provisions apply here and bar the Henrys'
claims.
Courts are divided as to the appropriate analysis and
interpretation of the two FCRA preemption statutes. See, e.g.,
Jeffery v. Trans Union, LLC, 273 F. Supp. 2d 725, 727 (E.D.Va.
2003); Mattice v. Equifax, 2003 WL 21391679, at *3-4 n.2 (D.
Minn. June 13, 2003). Neither the First Circuit nor this court
2The cited part of the statute exempts certain Massachusetts and California statutes. There are limitations on the application of § 1681t(b)(1)(F) in § 1681t(d), which has not been cited by the Henrys.
4 has addressed these statutes. The Henrys do not address the
provisions of the FCRA asserted by Chase. Instead, the Henrys
contend that Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749
(1985), holds that their claims are not preempted by the FCRA.
Dun & Bradstreet, however, did not involve the FCRA and does not
apply here. See id.; see also 15 U.S.C. § 1681a(c) (defining
consumer for purposes of the FCRA as an individual).
Although persuasive arguments might have been made to the
contrary, based on the present record, either the general
preemption of § 1681t(b)(1)(F) or the more specific preemption of
§ 1681h(e) appears to bar the Henrys' defamation and negligent
infliction of emotional distress claims against Chase. The
Henrys have not sustained their burden on summary judgment to
come forward with evidence showing a trialworthy issue as to
whether Chase acted with malice or willful intent to injure, as
would be necessary to avoid § 1681h(e). They also have shown no
factual or legal basis for not preempting their state law claims
under § 1681t(b)(1)(F). Therefore, Chase is entitled to summary
judgment with respect to the Henrys' defamation and negligent
infliction of emotional distress claims.3
3Because the state tort claims against Chase are resolved under the FCRA, the court does not reach the alternative ground for summary judgment on the negligent infliction of emotional distress claim.
5 B. Fleet - Negligent Infliction of Emotional Distress
The Henrys allege only a claim of negligent infliction of
emotional distress against Fleet. Fleet moves for summary
judgment on the ground that expert witness testimony is necessary
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gregg Henry and Linda Henry
v. Civil No. 02-395-JD Opinion No. 2003 DNH 178 Fleet Boston f/k/a BankBoston, N.A. and Chase Manhattan Bank USA, N.A.
O R D E R
The plaintiffs, Gregg and Linda Henry, bring claims under
the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et
seg., and state law defamation and negligent infliction of
emotional distress claims, arising from a banking error that
resulted in a partially unpaid credit card bill owed to Chase
Manhattan Bank USA. Chase moves for partial summary judgment on
the state claims. Fleet Boston moves for summary judgment on the
negligent infliction of emotional distress claim, which is the
only claim brought against it. The Henrys object to summary
judgment.
Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See id. at 255.
Background1
The dispute began when Gregg Henry attempted to pay his
Chase credit card bill with a check written on his Fleet checking
account. On June 24, 1999, Gregg wrote a check to Chase for
$7,425.93, the amount owed on the monthly statement. Fleet
erroneously encoded the check as $1,425.93, leaving a balance
owed on the credit card of $6,000.
After Gregg notified Fleet of the error. Fleet debited his
account for the remaining $6,000 and credited that amount to
Chase. Chase, however, did not credit that amount to Gregg
1Neither Chase nor the Henrys provided a properly supported factual statement. See LR 7.2(b). Therefore, the facts are taken from the complaint and from the materials provided by Fleet.
2 Henry's account. Chase continued its attempts to collect $6,000
from Gregg Henry as a delinguent debt and reported the
uncollected amount to credit reporting agencies as a delinguent
debt. Chase's erroneous reports have damaged the Henrys' credit.
Discussion
In its motion for partial summary judgment. Chase contends
that the FCRA preempts the Henrys' state law claims and that
their negligent infliction of emotional distress claim fails
because they cannot prove physical injury caused by Chase's
negligence. Fleet moves for summary judgment in its favor as to
the Henrys' negligent infliction of emotional distress claim.
A. Chase - FCRA Preemption
The Henrys allege FCRA claims against Chase and allege that
Chase published false and defamatory statements to consumer
reporting agencies by reporting that Gregg Henry owed a debt to
Chase and that he was delinguent in paying the debt. That
report, the Henrys contend, was erroneous. They also allege that
they and their counsel notified Chase of the error, but that
Chase nevertheless reported the debt as delinguent. Those
actions, the Henrys assert, were defamatory and negligently
caused them emotional distress. Chase argues that those claims
3 are preempted by the FCRA.
The FCRA has two preemption provisions. The more general
provision, 15 U.S.C. § 1681t(b)(1)(F), states that state law may
not impose requirements or prohibitions as to the
responsibilities of those who furnish information to consumer
reporting agencies under § 1681s-2.2 The more specific
provision, § 1681h(e), limits claims "in the nature of
defamation, invasion of privacy, [and] negligence" against a
consumer reporting agency, a user of information, or a furnisher
of information, based on information disclosed pursuant to §
1681g, § 1681h, § 1681m, or based on information disclosed by a
user of a report, "except as to false information furnished with
malice or willful intent to injure such consumer." Chase
contends that both provisions apply here and bar the Henrys'
claims.
Courts are divided as to the appropriate analysis and
interpretation of the two FCRA preemption statutes. See, e.g.,
Jeffery v. Trans Union, LLC, 273 F. Supp. 2d 725, 727 (E.D.Va.
2003); Mattice v. Equifax, 2003 WL 21391679, at *3-4 n.2 (D.
Minn. June 13, 2003). Neither the First Circuit nor this court
2The cited part of the statute exempts certain Massachusetts and California statutes. There are limitations on the application of § 1681t(b)(1)(F) in § 1681t(d), which has not been cited by the Henrys.
4 has addressed these statutes. The Henrys do not address the
provisions of the FCRA asserted by Chase. Instead, the Henrys
contend that Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749
(1985), holds that their claims are not preempted by the FCRA.
Dun & Bradstreet, however, did not involve the FCRA and does not
apply here. See id.; see also 15 U.S.C. § 1681a(c) (defining
consumer for purposes of the FCRA as an individual).
Although persuasive arguments might have been made to the
contrary, based on the present record, either the general
preemption of § 1681t(b)(1)(F) or the more specific preemption of
§ 1681h(e) appears to bar the Henrys' defamation and negligent
infliction of emotional distress claims against Chase. The
Henrys have not sustained their burden on summary judgment to
come forward with evidence showing a trialworthy issue as to
whether Chase acted with malice or willful intent to injure, as
would be necessary to avoid § 1681h(e). They also have shown no
factual or legal basis for not preempting their state law claims
under § 1681t(b)(1)(F). Therefore, Chase is entitled to summary
judgment with respect to the Henrys' defamation and negligent
infliction of emotional distress claims.3
3Because the state tort claims against Chase are resolved under the FCRA, the court does not reach the alternative ground for summary judgment on the negligent infliction of emotional distress claim.
5 B. Fleet - Negligent Infliction of Emotional Distress
The Henrys allege only a claim of negligent infliction of
emotional distress against Fleet. Fleet moves for summary
judgment on the ground that expert witness testimony is necessary
to prove that they suffered physical conseguences as a result of
emotional distress caused by Fleet. Fleet contends that because
the Henrys have stated that they will not have expert testimony.
Fleet is entitled to summary judgment on that claim.
"[B]efore a plaintiff can recover damages for emotional
distress pursuant to a negligence cause of action, he or she must
prove that physical injury resulted therefrom." Thorpe v. State,
133 N.H. 299, 304 (1990); accord Palmer v. Nan King Rest., Inc.,
147 N.H. 681, 683 (2002). Expert witness testimony is necessary
to establish the link between the negligence and the injury "if
any inference of the reguisite causal link must depend on
observation and analysis outside the common experience of
jurors." Thorpe, 133 N.H. at 304 (internal guotation marks
omitted).
The Henrys argue that they do not need expert testimony
because "it is within the common experience of the jurors to
comprehend and understand the nature of the failures on the part
of the Defendant and the subseguent foreseeable, reasonable and
actual emotional distress that the negative credit reporting
6 caused the Plaintiffs and the attendant physical manifestations
of the same." PI. Mem. at 4. However, they provide no record
support for any physical manifestations of their distress. For
that reason, no analysis is possible to determine whether the
necessary causal link between the negligence and physical injury
would be within the common experience of jurors. Therefore,
based on the record presented for summary judgment, the Henrys
have not shown a trialworthy issue remains as to the negligent
infliction of emotional distress claim against Fleet.
Conclusion
For the foregoing reasons, defendant Chase's motion for
partial summary judgment (document no. 17) is granted. Summary
judgment is granted in favor of Chase as to plaintiffs' claims of
defamation. Count III, and negligent infliction of emotional
distress. Count IV. Defendant Fleet's motion for summary
judgment (document no. 16) is granted. Summary judgment is
granted in favor of Fleet as to Count IV.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
October 20, 2003
cc: Jennifer R. Jones, Esguire Thomas J. Pappas, Esguire Rodney L. Stark, Esguire