Younger v. Experian Information Solutions, Inc.

          MEMORANDUM OPINION

          STACI G. CORNELIUS U.S. MAGISTRATE JUDGE

         On May 23, 2018, the court entered a final judgment in this case on the jury's verdict in favor of the plaintiff, Shaun J. Younger, and against the defendant, Experian Information Solutions, Inc. (Doc. 122). Presently pending are: (1) Experian's "Combined Renewed Motion for Judgment as a Matter of Law, Motion to Alter or Amend the Judgment, and Motion for New Trial" (Doc. 133); (2) Experian's Motion for Credit on Judgment (Doc. 132); and (3) Plaintiff's motion to alter or amend the final judgment (Doc. 128). The motions are fully briefed and ripe for adjudication. (Docs. 135, 138, 139, 142). As explained below: (1) Experian's combined motion will be granted to the extent it seeks remittitur but denied in all other respects; (2) Experian's motion for credit on judgment will be granted as to compensatory damages but denied as to punitive damages; and (3) Plaintiff's motion to amend will be denied as moot.

         I. BACKGROUND AND PROCEDURAL HISTORY

         This matter arises under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. The parties unanimously consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. 16). The complaint named Experian, Equifax Information Services, LLC, and Portfolio Recovery Associates, LLC ("PRA"). (Doc. 1). PRA entered into a pro tanto settlement with Plaintiff prior to the dispositive motion deadline, and all claims against it were dismissed. (Docs. 34, 35).

         The remaining parties subsequently filed cross-motions for summary judgment. (Docs. 36, 38, 39). On September 22, 2017, the court: (1) partially granted Plaintiff's motion for summary judgment on the issues of Experian's duty and breach under 15 U.S.C. § 1681i but denied the motion regarding Plaintiff's damages and Experian's intent; and (2) denied Experian's and Equifax's motions for summary judgment. (Doc. 58). Experian moved for reconsideration (Doc. 65), which the court denied on November 30, 2017 (Doc. 73). Prior to trial, Equifax entered into a pro tanto settlement with Plaintiff, and the claims against Equifax were dismissed. (Docs. 82, 83). This left Experian as the sole defendant for trial.

         Plaintiff's claims against Experian arise from its failure to delete inaccurate information from his credit report. The inaccurate information concerned credit card debt which was sold to PRA. PRA subsequently sued Plaintiff on the debt in Jefferson County District Court. The small claims court dismissed the case on January 12, 2015. On March 30, 2015, Plaintiff pulled his Experian credit report; it listed both the original credit card debt and the debt to PRA. That same day, with the assistance of his lawyer, Plaintiff wrote a letter to Experian identifying the misreported debt and attaching the state court order dismissing the lawsuit concerning the contested debt.

         Experian employs a suspicious mail policy ("SMP") in an effort to ensure correspondence it receives concerning a consumer was sent by the consumer rather than a third-party. Experian determined Plaintiff's letter was suspicious and, on April 15, 2015, sent Plaintiff a form "suspicious mail notification letter" ("Suspicious Mail Letter"). The Suspicious Mail Letter stated Experian would not investigate his dispute because it had determined someone other than Plaintiff had sent the letter. Included in the Suspicious Mail Letter was a 1-800 number (the "Dispute Hotline") Plaintiff could call to report inaccurate credit information. Experian had no further contact with Plaintiff until he filed this lawsuit. On June 10, 2015, in the normal course of business, Experian removed the contested debt from Plaintiff's credit report. (See Doc. 58 at 2-3, 6).

         This matter proceeded to trial on Plaintiff's claims for negligent and willful FCRA violations against Experian. At the close of Plaintiff's case in chief, Experian moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure; the motion was denied. (Doc. 130 at 36-39; see Doc. 115). After the close of evidence, Experian renewed its motion, which the court denied. (Doc. 130 at 75). The jury subsequently returned a verdict for Plaintiff. The verdict reflects the jury determined Experian's failure to reinvestigate Plaintiff's dispute had caused Plaintiff harm, awarding $5, 000 in actual damages. The jury further found Experian's violation of the FCRA was willful, assessing $3, 000, 000 in punitive damages. (Doc. 121). The instant post-trial motions followed.

         II. STANDARD OF REVIEW

         Experian's combined motion seeks: (1) judgment as a matter of law under Rule 50(b); (2) to alter or amend the judgment under Rule 59(e); and/or (3) a new trial under Rule 59(a)(1)(A). (Doc. 133). These grounds for relief may be asserted in a single, combined motion. Fed.R.Civ.P. 50(b). The applicable standards are recited in turn.

         A court presented with a renewed motion for judgment as a matter of law may: (1) allow judgment on the verdict; (2) order a new trial; or (3) direct entry of judgment as a matter of law. Fed.R.Civ.P. 50(b). A renewed motion for judgment as a matter of law may raise grounds asserted in, or closely related to, the issues raised in the original motion. McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241, 1261 (11th Cir. 2016). Judgment as a matter of law should be granted only when "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Commodores Entm't Corp. v. McClary, 879 F.3d 1114, 1130 (11th Cir. 2018). This review takes account of all of the evidence presented at trial and draws "all reasonable inference most favorable to the party opposed to the motion." Simon v. Shearson Lehman Bros., Inc., 895 F.2d 1304, 1310 (11th Cir. 1990).

         A district court may grant a new trial "for any reason for which a new trial has heretofore been granted in actions at law in federal court." Fed.R.Civ.P. 59(a)(1)(A). "A judge should grant a motion for a new trial when the verdict is against the clear weight of the evidence or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict." Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001) (internal quotation marks omitted). Courts "should give great deference to the jury's verdict and grant a new trial sparingly." Hooks v. GEICO Gen. Ins. Co., Inc., No. 13-891, 2016 WL 5415134, at *1 (M.D. Fla. Sept. 28, 2016).

         "The decision whether to alter or amend a judgment pursuant to Rule 59(e) is committed to the sound discretion of the district judge." Mincey v. Head, 206 F.3d 1106, 1137 (11th Cir. 2000) (internal quotation marks omitted). "The only grounds for granting a Rule 59 motion are newly-discovered evidence or manifest errors of law or fact." Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (alterations incorporated). "A Rule 59(e) motion cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Id. (alterations incorporated).

         III. DISCUSSION

         This opinion addresses Experian's combined post-trial motion before turning to Experian's motion for credit on judgment and Plaintiff's motion to alter or amend.

         A. Experian's Combined Post-Trial Motion

         Experian's combined motion seeks post-trial relief on the following grounds: (1) Plaintiff's reference to an Assurance of Voluntary Compliance; (2) Plaintiff's damages; (3) juror confusion caused by the court's summary judgment ruling; (4) the lack of evidence showing Experian acted willfully; and (5) excessive punitive damages. These issues are addressed in turn.

         1. Reference to Assurance of Voluntary Compliance

         Experian contends it is due post-judgment relief because Plaintiff's counsel referred to an "Assurance of Voluntary Compliance" ("AVC") entered into by attorneys general of thirty-one states and the three national credit reporting agencies ("CRAs"), including Experian. (Doc. 133 at 5-13). The AVC was not entered into evidence, but when cross-examining Experian's corporate representative, Plaintiff's counsel engaged in the following line of questioning.

Q. And then pursuant to this policy, if they call in, you process the dispute?

A. If the consumer calls in, confirms their identity, and states that they are in fact the person who initiated the dispute, yes, sir, we will.

Q. Well, I'm glad you mentioned the phone call again. There's a couple of purposes in the phone call that you told us about: to process the dispute, confirm ID; am I right? But isn't another purpose of the phone call to market to and sell items to the consumer?

A. No, sir.

Q. Has that ever been part of your practice that in a post-dispute consumer phone call, Experian will try to sell them items?

A. No, sir. Our dispute agents do not try to sell items.

Q. Not in a post-consumer dispute like this?

A. This is not post-consumer dispute, first of all.

Q. Post-dispute consumer phone call. Forgive my verbiage.

A. No, sir.

Q. Okay. Let me ask you this. Let's see here. Are you aware that on --what's the date on this? May 14, 2015. So a month after -- less than a month after y'all sent the letter to Mr. Younger, Experian entered into an assurance of compliance with 31 states including the State of Alabama in which you agreed or it was found that you engaged in improper disclosure or marketing practices relating to the sale of direct-to-consumer products to consumers during credit report dispute phone calls? Are you aware of that?

         (Doc. 130 at 64-65). At that point, counsel for Experian asked to see a copy of the AVC and discussed its terms with opposing counsel in front of the jury. (Id. at 66). No objections were lodged. Plaintiff's counsel continued cross-examination:

Q. All right. As a result of the findings of this multistate committee, according to this document that your lawyer and Experian signed -- or your lawyer's law firm, rather -- it says that y'all shall adopt a script for use in post-dispute marketing phone calls to communicate to consumers in a clear and comprehensible language when the dispute portion ends and when the marketing products and services begins. So I want to be very clear about this and give you another chance. Are you telling this jury in light of this that Experian's practice was not to try to market and sell items to consumers during dispute phone calls?

A. During this phone number -- this dedicated phone line? No, sir, I don't believe so.

Q. Not at all?

A. I can tell you that I have worked consumer disputes myself for about 14 of the 16 years and, no, I never marketed any products or anything like that on a consumer dispute phone line.

Q. Well, then, based on your own personal knowledge, is it surprising to you that Experian agreed that they would enter into this compliance order and change their business practices to make it clear that they were marketing?

MS. REYNOLDS: Objection, Your Honor. Relevance.

THE COURT: Overruled.

Q. (BY MR. SEALS:) Go ahead.

A. Can you ask the question again?

Q. I'll do my best. Because it was a ...