Remsburg v. Docusearch, Inc. CV-00-211-B 04/04/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Helen Remsburg. Administrator of the Estate of Amy Lynn Bover
v. Civil No. 00-211-B Opinion No. 2002 DNH 080 Docusearch, Inc., et al.
MEMORANDUM AND ORDER
On October 15, 1999, Liam Youens fatally shot Amy Lynn Boyer
as she left work. Plaintiff Helen Remsburg, administrator of
Boyer's estate, has sued defendants Docusearch, Inc.
("Docusearch"); Wing and a Prayer, Inc.; Daniel Cohn; Kenneth
Zeiss; and Michele Gambino for providing Youens with Boyer's
social security number ("SSN") and work address prior to the
shooting. By separate memoranda and orders, I have denied the
corporate defendants' motion to dismiss for lack of personal
jurisdiction and proposed to certify several unresolved issues of
state law raised by defendants' motions for summary judgment to
the New Hampshire Supreme Court. Because I have set forth the background of this case in those memoranda and orders, I shall
assume familiarity with the facts and focus on matters germane to
defendants' motions for summary judgment challenging Remsburg's
claim under the federal Fair Credit Reporting Act ("FCRA"), 15
U.S.C. § 1681a .et seq.1
Defendants concede that, in response to Youens' July 30,
1999 request that defendant Docusearch provide him with Boyer's
SSN, Docusearch obtained the SSN from Information Resource
Service Company ("IRSC"), a reporting agency that offers, inter
alia, credit reports. Defendants assert, without contradiction
from Remsburg, that Docusearch did not procure a full credit
report from IRSC, but "may have received a so-called 'credit
header' that listed Boyer's name, address, SSN, and telephone
number." Docusearch Defendants' Motion for Summary Judgment, at
2, 5 7. On August 2, 1999, Docusearch sold Youens Boyer's SSN.
On September 6, 1999, Youens used Boyer's SSN to place an order
with Docusearch for Boyer's work address. On September 8, 1999,
Docusearch sold Youens Boyer's work address, which defendant
1 The "Docusearch defendants" - Docusearch, Wing and a Prayer, Inc., and Daniel Cohn - have filed the motion, but all defendants other than Michele Gambino join in it.
-2- Gambino, Docusearch's agent, obtained by means of a "pretext"
telephone call to Boyer. Just over five weeks later, Youens
killed Boyer as she left work.
In her amended complaint, Remsburg asserts that Docusearch's
procurement of Boyer's credit header and subsequent sale to
Youens of Boyer's SSN and work address violated the FCRA in two
respects. Remsburg's first theory assumes that Docusearch
provided Youens with a "consumer report," 15 U.S.C. § 1681a(d)
(defining "consumer report"), or an "investigative consumer
report," 15 U.S.C. § 1681a(e) (defining "investigative consumer
report"). Under this theory, Docusearch ran afoul of the FCRA by
preparing an investigative consumer report concerning Boyer
without providing her notice that it was doing so, see 15 U.S.C.
§ 1681d(a) (requiring notice to the subject of such a report);
providing Youens with a consumer report and/or an investigative
consumer report for an impermissible purpose, see 15 U.S.C. §
1681b(a) (specifying the permissible uses of consumer reports);
and failing to maintain adequate procedural safeguards to avoid
the unlawful dissemination of such reports, see 15 U.S.C. §
1681e(a) (requiring reasonable procedures to ensure compliance
with § 168lb) .
-3- Remsburg's second theory assumes that Docusearch procured a
consumer report from IRSC. Under this theory, Docusearch
violated the FCRA by procuring such a report for resale of
information contained within the report without identifying to
IRSC the end user and the permissible purpose under § 1681b for
which the report was to be furnished, 15 U.S.C. § 1681e(e)(1)
(requiring such identification by procurer for resale); and
without maintaining reasonable procedures to avoid the unlawful
dissemination of information in consumer reports, see 15 U.S.C. §
1681e(e)(2) (requiring reasonable procedures to ensure compliance
Defendants have moved for summary judgment on both of
Remsburg's FCRA theories. With respect to the first theory,
defendants contend that, as a matter of law, the information that
they furnished to Youens was not a consumer report (or, by
extension, an investigative consumer report). With respect to
the second theory, defendants contend that, as a matter of law,
the information they obtained from IRSC was not a consumer
report. Both arguments are persuasive.
-4- The FCRA defines a "consumer report" as
any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for-
___________ (A) credit or insurance to be used primarily for personal, family, or household purposes; ___________ (B) employment purposes; or ___________ (C) any other purpose authorized under section 1681b of this title.
15 U.S.C. § 1681(a) (d) (1) (emphasis supplied).2 Pointing to the
highlighted language, defendants contend that there is no
evidence that they collected, used, or expected the information
provided to Youens to be used for any of the purposes specified
2 An "investigative consumer report" is a
consumer report or portion thereof in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom [s]he is acquainted or who may have knowledge concerning any such items of information.
15 U.S.C. § 1681(e).
-5- in subsections (A) through (C). Plaintiff makes no response to
this argument, and no basis for a counter-argument is evident in
the record. Therefore, Remsburg's first FCRA theory is not
viable.
Remsburg's second FCRA theory is also flawed. As defendants
point out, until July 1, 2001, when the Gramm Leach Bliley Act of
1999 ("GLB Act"), Pub. L. 106-102, Nov. 12, 1999, became fully
effective, the prevailing view was that the sale of credit header
data3 was not limited by statute or regulation. See
International Reference Servs. Group, 145 F. Supp.2d at 17-22
(detailing the legislative and regulatory history of the GLB Act
and noting (at page 20) that, prior to the full implementation of
the GLB Act's regulations in 2001, the Federal Trade Commission
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Remsburg v. Docusearch, Inc. CV-00-211-B 04/04/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Helen Remsburg. Administrator of the Estate of Amy Lynn Bover
v. Civil No. 00-211-B Opinion No. 2002 DNH 080 Docusearch, Inc., et al.
MEMORANDUM AND ORDER
On October 15, 1999, Liam Youens fatally shot Amy Lynn Boyer
as she left work. Plaintiff Helen Remsburg, administrator of
Boyer's estate, has sued defendants Docusearch, Inc.
("Docusearch"); Wing and a Prayer, Inc.; Daniel Cohn; Kenneth
Zeiss; and Michele Gambino for providing Youens with Boyer's
social security number ("SSN") and work address prior to the
shooting. By separate memoranda and orders, I have denied the
corporate defendants' motion to dismiss for lack of personal
jurisdiction and proposed to certify several unresolved issues of
state law raised by defendants' motions for summary judgment to
the New Hampshire Supreme Court. Because I have set forth the background of this case in those memoranda and orders, I shall
assume familiarity with the facts and focus on matters germane to
defendants' motions for summary judgment challenging Remsburg's
claim under the federal Fair Credit Reporting Act ("FCRA"), 15
U.S.C. § 1681a .et seq.1
Defendants concede that, in response to Youens' July 30,
1999 request that defendant Docusearch provide him with Boyer's
SSN, Docusearch obtained the SSN from Information Resource
Service Company ("IRSC"), a reporting agency that offers, inter
alia, credit reports. Defendants assert, without contradiction
from Remsburg, that Docusearch did not procure a full credit
report from IRSC, but "may have received a so-called 'credit
header' that listed Boyer's name, address, SSN, and telephone
number." Docusearch Defendants' Motion for Summary Judgment, at
2, 5 7. On August 2, 1999, Docusearch sold Youens Boyer's SSN.
On September 6, 1999, Youens used Boyer's SSN to place an order
with Docusearch for Boyer's work address. On September 8, 1999,
Docusearch sold Youens Boyer's work address, which defendant
1 The "Docusearch defendants" - Docusearch, Wing and a Prayer, Inc., and Daniel Cohn - have filed the motion, but all defendants other than Michele Gambino join in it.
-2- Gambino, Docusearch's agent, obtained by means of a "pretext"
telephone call to Boyer. Just over five weeks later, Youens
killed Boyer as she left work.
In her amended complaint, Remsburg asserts that Docusearch's
procurement of Boyer's credit header and subsequent sale to
Youens of Boyer's SSN and work address violated the FCRA in two
respects. Remsburg's first theory assumes that Docusearch
provided Youens with a "consumer report," 15 U.S.C. § 1681a(d)
(defining "consumer report"), or an "investigative consumer
report," 15 U.S.C. § 1681a(e) (defining "investigative consumer
report"). Under this theory, Docusearch ran afoul of the FCRA by
preparing an investigative consumer report concerning Boyer
without providing her notice that it was doing so, see 15 U.S.C.
§ 1681d(a) (requiring notice to the subject of such a report);
providing Youens with a consumer report and/or an investigative
consumer report for an impermissible purpose, see 15 U.S.C. §
1681b(a) (specifying the permissible uses of consumer reports);
and failing to maintain adequate procedural safeguards to avoid
the unlawful dissemination of such reports, see 15 U.S.C. §
1681e(a) (requiring reasonable procedures to ensure compliance
with § 168lb) .
-3- Remsburg's second theory assumes that Docusearch procured a
consumer report from IRSC. Under this theory, Docusearch
violated the FCRA by procuring such a report for resale of
information contained within the report without identifying to
IRSC the end user and the permissible purpose under § 1681b for
which the report was to be furnished, 15 U.S.C. § 1681e(e)(1)
(requiring such identification by procurer for resale); and
without maintaining reasonable procedures to avoid the unlawful
dissemination of information in consumer reports, see 15 U.S.C. §
1681e(e)(2) (requiring reasonable procedures to ensure compliance
Defendants have moved for summary judgment on both of
Remsburg's FCRA theories. With respect to the first theory,
defendants contend that, as a matter of law, the information that
they furnished to Youens was not a consumer report (or, by
extension, an investigative consumer report). With respect to
the second theory, defendants contend that, as a matter of law,
the information they obtained from IRSC was not a consumer
report. Both arguments are persuasive.
-4- The FCRA defines a "consumer report" as
any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for-
___________ (A) credit or insurance to be used primarily for personal, family, or household purposes; ___________ (B) employment purposes; or ___________ (C) any other purpose authorized under section 1681b of this title.
15 U.S.C. § 1681(a) (d) (1) (emphasis supplied).2 Pointing to the
highlighted language, defendants contend that there is no
evidence that they collected, used, or expected the information
provided to Youens to be used for any of the purposes specified
2 An "investigative consumer report" is a
consumer report or portion thereof in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom [s]he is acquainted or who may have knowledge concerning any such items of information.
15 U.S.C. § 1681(e).
-5- in subsections (A) through (C). Plaintiff makes no response to
this argument, and no basis for a counter-argument is evident in
the record. Therefore, Remsburg's first FCRA theory is not
viable.
Remsburg's second FCRA theory is also flawed. As defendants
point out, until July 1, 2001, when the Gramm Leach Bliley Act of
1999 ("GLB Act"), Pub. L. 106-102, Nov. 12, 1999, became fully
effective, the prevailing view was that the sale of credit header
data3 was not limited by statute or regulation. See
International Reference Servs. Group, 145 F. Supp.2d at 17-22
(detailing the legislative and regulatory history of the GLB Act
and noting (at page 20) that, prior to the full implementation of
the GLB Act's regulations in 2001, the Federal Trade Commission
took the position that credit header data "was not subject to the
FCRA because it 'does not bear on the creditworthiness, credit
capacity, credit standing, character, general reputation.
3 A credit header includes the names, addresses, SSNs, and telephone numbers of consumers and is typically printed at the top of credit reports. See Individual Reference Services Group v. FTC, 145 F. Supp.2d 6, 14 (D.D.C. 2001) (citing the sworn statement of the credit reporting agency involved in that litigation).
-6- personal characteristics, or mode of living, unless such terms
are given an impermissibly broad reading'") (quoting In the
Matter of Trans Union Corp., 2000 WL 257766, FTC Commission
Opinion No. 9255, slip op. at 30 (Feb. 10, 2000), petition for
review denied, 245 F.3d 809 (D.C. Cir. 2001) ) . Because the
transactions at issue occurred well prior to July 1, 2001,
defendants argue that they could not have violated the FCRA by
obtaining and researching Boyer's credit header information.
Again, Remsburg does not present a developed response to this
argument,4 and no counter-argument is evident in the record or
the case law. Remsburg's alternative FCRA theory therefore also
lacks merit.
For the reasons stated, I grant the Docusearch Defendants'
Motion for Summary Judgment (document no. 60) insofar as it
pertains to Remsburg's FCRA claim.5
4 Remsburg states, without elaboration, that "[t]o the extent that [Boyer's SSN] was obtained from a pre-existing 'credit header,' the resale of this information must comply with the FCRA." Plaintiff's Objection to Docusearch Defendants' Motion for Summary Judgment, at 30. But the two cases cited in support of this pronouncement (both of which involved consumer reports) stated or implied nothing of the sort.
5 In its objection to defendants' motion, Remsburg advances a third theory to support her FCRA claim: that Docusearch
-7- SO ORDERED.
Paul Barbadoro Chief Judge
April 4, 2 0 02
cc: David M. Gottesman, Esq. Dona Feeney, Esq. Carol L. Hess, Esq. Michael J. lacopino, Esq. Steven B. Ross, Esq.
violated the FCRA by obtaining Boyer's SSN from IRSC under false pretenses. See 15 U.S.C. §§ 1681q (making it a federal offense to willfully obtain information on a consumer from a consumer reporting agency under false pretenses) and 1681n (creating a private right of action for consumers victimized by violations of § 1681q). Specifically, Remsburg posits that Docusearch violated its subscriber agreement with IRSC because it "agreed to limit its requests to IRSC to those clients with permissible purposes." Plaintiff's Objection to Docusearch Defendants' Motion for Summary Judgment, at 28. Remsburg has not, however, explained why information not governed by the FCRA would have been treated by contract as though it were. Nor has she provided me with a full copy of the subscriber agreement, or even a citation to the provision(s) Docusearch allegedly violated. I therefore decline to deny defendants' motion on the basis of this newly raised theory.