Stephanie McAfee v. Early Warning Services, LLC

Summary

The court considers Early Warning Services, LLC’s motion to dismiss or, alternatively, for summary judgment in a Fair Credit Reporting Act action concerning disclosure of a consumer file under 15 U.S.C. § 1681g. The court converts the motion to one for summary judgment, holds that mailing the disclosure would satisfy the statutory disclosure obligation even if the consumer did not receive it, and denies summary judgment because a factual dispute may remain about whether the disclosure was mailed. The court permits limited discovery on that issue and denies the plaintiff’s motion for leave to file a surreply.

Holdings

1. A motion to dismiss that presents matters outside the pleadings must be treated as a motion for summary judgment under Rule 12(d); because defendant expressly moved in the alternative for summary judgment and the court considered the supporting affidavit, conversion was appropriate.
2. Proof that a consumer reporting agency properly mailed the consumer's file is sufficient to satisfy the disclosure obligation under 15 U.S.C. § 1681g, independent of whether the consumer actually received the mailed disclosure.
3. Summary judgment was premature because the evidence did not establish without genuine dispute that Early Warning actually mailed the disclosure, and limited discovery was warranted on that issue.
4. Plaintiff did not establish good cause for leave to file a surreply because the reply raised no materially new evidence or argument requiring a response and did not mischaracterize the record.

Questions Presented

1. Whether the motion to dismiss should be converted to a motion for summary judgment under Federal Rule of Civil Procedure 12(d) because the court considered matters outside the pleadings.
2. Whether mailing a consumer's file, without proof that the consumer actually received it, satisfies a consumer reporting agency's disclosure obligation under 15 U.S.C. § 1681g.
3. Whether summary judgment should be granted before discovery when the record leaves a factual question as to whether the disclosure was actually mailed.
4. Whether plaintiff showed good cause for leave to file a surreply under Southern District of Ohio Civil Rule 7.2(a)(2).

Disposition

other