Selvam v. Experian Information Solutions, Inc.

651 F. App'x 29
Court of Appeals for the Second Circuit·Decided June 7, 2016·No. 15-1264·Published·Cited by 12 cases

Opinion

SUMMARY ORDER

Appellant Kamaladoss Selvam, proceeding pro se, appeals from a judgment in favor of Experian Information Solutions, Inc. (“Experian”) in his suit under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-[31]*311681X.1 We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

We review de novo a District Court’s grant of summary judgment. Garcia v. Hartford Police Dept, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment must be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether a genuine dispute exists, we must “resolve all ambiguities and draw all inferences against the moving party.” Garcia, 706 F.3d at 127. A party, however, cannot overcome summary judgment by relying on “mere speculation or conjecture as to the true nature of the facts” because “conclusory allegations or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks omitted).

I. Reasonable Procedures and Reasonable Reinvestigation Claims

We conclude that the District Court properly granted summary judgment to Experian on Selvam’s reasonable procedures and reasonable reinvestigation claims under 15 U.S.C. §§ 1681(b) and 1681(i), though we reach this conclusion for different reasons than those stated by the court below. The District Court improperly held that Selvam failed to raise an issue of fact regarding the accuracy of the information in Experian’s reports. Sel-vam correctly argues that the District Court erroneously characterized his deposition testimony as admitting “that he may have been ‘mistaken’ about whether the accounts were the result of identity theft.” Appellant Br, 9; App’x 158. Selvam actually testified that he did not know whether Experian had made a mistake by putting someone else’s “genuine account” in his report or whether the account was the result of identity theft. Supp. App’x 10. Moreover, Selvam argues that Experian’s inclusion of the GE CRB/Care Credit account was inaccurate. For support, he submitted two letters addressed to him from GE Capital Retail Bank (“GE” or “GECRB”) from December 2012, which state: “[o]ur preliminary investigation has revealed that the above referenced account was opened without your knowledge or consent.” App’x 124-25. Selvam argues that after Experian was directed to delete the LVNV Funding account with the same account number as one of the GE accounts, in July 2012, Experian was put on notice that it should question the accuracy of the GE account because it is “extremely easy to discern” these were the same account. Appellant Br. 19.

The District Court did not mention the letters from GE Capital Retail Bank in its opinion, presumably because it agreed with Experian that they “are inadmissible hearsay that cannot defeat summary judgment.” Defendant’s Reply Br. in Support of Motion for Summary Judgment at 4 n. 8, Selvam v. Experian Info. Sols., Inc., 2013 WL 4547454 (E.D.N.Y. Aug. 28, 2013) (No, 12 CV 01828), ECF No. 81. But the summary judgment rule provides that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2) (emphasis added). We have said that the party [32] opposing summary judgment “cannot rely on inadmissible hearsay in opposing a motion for summary judgment[] absent a showing that admissible evidence will be available at trial.” Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) (internal citations omitted) (emphasis added). Where, as here, the party opposing summary judgment is acting pro se, the Court has a duty to construe his submissions with special solicitude. See, e.g., Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (noting that we must read pro se submissions with “special solicitude” and observing that this Court’s “policy of liberally construing pro se submissions is driven by the understanding that implicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training” (alterations and internal quotation marks omitted)). Affording Selvam the special solicitude that his submissions are due, we conclude that the GE letters themselves, as well as the underlying records leading GE to write the letters, would almost certainly fall within the hearsay exception for business records, Fed. R. Evid. 803(6), and thus would be available at trial.

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Selvam v. Experian Information Solutions, Inc., 651 F. App'x 29 (2d Cir. 2016).

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