Opinion
Case No. 21-CV-2169
2023-06-27
Wendi JEFFERS, Plaintiff, v. FIRST NATIONAL BANK OF OMAHA, Defendant.
Angie K. Robertson, Mary E. Philipps, David J. Philipps, Philipps & Philipps Ltd., Palos Hills, IL, Savannah Rose Theil, Costello Sury & Rooney, Oakbrook Terrance, IL, for Plaintiff. Cory J. Rooney, Law Firm of Cory J. Rooney, P.C., Omaha, NE, for Defendant.
Angie K. Robertson, Mary E. Philipps, David J. Philipps, Philipps & Philipps Ltd., Palos Hills, IL, Savannah Rose Theil, Costello Sury & Rooney, Oakbrook Terrance, IL, for Plaintiff. Cory J. Rooney, Law Firm of Cory J. Rooney, P.C., Omaha, NE, for Defendant. ORDER COLIN S. BRUCE, UNITED STATES DISTRICT JUDGE
Plaintiff, Wendi Jeffers, filed a Complaint (#1) on July 2, 2021, alleging that Defendant, First National Bank of Omaha, violated the Fair Credit Reporting Act ("FCRA") (15 U.S.C. § 1681, et seq.) and/or the Illinois common law right to privacy when it unlawfully requested and received a copy of Plaintiff's credit report from third parties TransUnion and Argus. The parties filed cross-Motions for Summary Judgment (#18, 19) on August 8, 2022.
On March 22, 2023, this court entered an Order (#32) on Defendant's Motion, granting it in part and denying it in part, and denying Plaintiff's Motion in full.
The court granted summary judgment in favor of Defendant on Plaintiff's negligence claims under the FCRA, finding that Plaintiff could not demonstrate a genuine issue of material fact as to whether she had incurred actual damages in the form of emotional distress due to Defendant's actions. Regarding Plaintiff's claim of a willful violation of the FCRA, the court found that both parties had presented sufficient facts for a reasonable jury to rule in favor of either. Thus, the court denied the parties' summary judgment motions on the issue of willfulness.
On April 21, 2023, Plaintiff filed a Motion for Reconsideration (#33), requesting the court reconsider its Order denying her Motion for Summary Judgment. Specifically, Plaintiff argues that the question of whether Defendant recklessly, as opposed to merely negligently, accessed Plaintiff's credit report is a matter of law that must be decided by the court. Plaintiff further argues that the court should find as a matter of law that Defendant acted recklessly. Next, Plaintiff argues that the court erred in its evaluation of Plaintiff's evidence of her emotional distress.
"Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence." Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985). "A motion for reconsideration would be appropriate where, for example, the court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Quaker Alloy Casting Co. v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). "A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the court." Quaker Alloy, 123 F.R.D. at 288. Such problems rarely arise and the motion to reconsider should be equally rare. Quaker Alloy, 123 F.R.D. at 288; Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). "This is because the court's orders are 'not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.' " Pruitt v. Personal Staffing Group, LLC, 2021 WL 197399, at *1 (N.D. Ill. Jan. 20, 2021), quoting Geraty v. Village of Antioch, 2015 WL 127917, at *3 (N.D. Ill. Jan. 8, 2015).
"A motion to reconsider 'is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.' " Pruitt, 2021 WL 197399, at *1, quoting Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269-70 (7th Cir. 1996).
Plaintiff, as the party seeking reconsideration "bears a heavy burden," and the decision whether to grant a motion to reconsider is a matter squarely within the district court's discretion. Pruitt, 2021 WL 197399, at *1, citing Patrick v. City of Chicago, 103 F.Supp.3d 907, 912 (N.D. Ill. 2015). I. Whether Willful Violation of FCRA Must Be Decided by Court As a Matter of Law
Concerning Plaintiff's first argument, there is a division between courts in this country over whether a willfulness determination under the FCRA is a question of fact for the jury, or a question of law for the court.
Some courts have concluded that it is a question of fact for the jury. See Edwards v. Toys "R" Us, 527 F.Supp.2d 1197, 1210 (C.D. Cal. 2007) ("Willfulness under the FCRA is generally a question of fact for the jury."); Martinez v. American Express National Bank, 2022 WL 16571194, at *5 (C.D. Cal. Nov. 1, 2022); Lara v. Experian Information Solutions, Inc., 625 F.Supp.3d 1062, 1074-75 (S.D. Cal. 2022); Starkey v. Experian Information Solutions, Inc., 32 F.Supp.3d 1105, 1111 (C.D. Cal. 2014); Manuel v. Wells Fargo Bank, National Association, 123 F.Supp.3d 810, 829 (E.D. Va. 2015); Langston v. Rizza Chevrolet, Inc., 2008 WL 5083111, at *9 (N.D. Ill. Nov. 24, 2008).
Other courts, however, have held that whether a violation of the FCRA is willful or reckless is purely a question of law, and cannot be submitted to a jury. See Humphrey v. Navient Solutions, 2020 WL 91007, at *2 (W.D. Wis. Jan. 8, 2020); Salem v. Legal Liaison Service, 2019 WL 1057371, at *7 (N.D. Ill. Mar. 6, 2019).
In Van Straaten v. Shell Oil Products Co. LLC, 678 F.3d 486 (7th Cir. 2012), the Seventh Circuit was determining whether an alleged violation of the FCRA under § 1681n was "willful." The plaintiff argued "that 'the law is settled' that willfulness cannot be decided on summary judgment but must be submitted to a jury." Van Straaten, 678 F.3d at 490. The court noted that the plaintiff "did not mention Safeco Insurance, in which the Supreme Court of the United States treated willfulness as a question of law and directed that judgment be entered in a defendant's favor without a trial." Van Straaten, 678 F.3d at 490-91, citing Safeco Ins. Co. v. Burr, 551 U.S. 47, 71, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007). The court determined that, as a matter of law, the defendant did not willfully violate the FCRA and could not be held liable under § 1681n. Van Straaten, 678 F.3d at 491. Judge Cudahy, in concurrence, wrote that "[f]ollowing Safeco, this may be determined as a matter of law and without trial." Van Straaten, 678 F.3d at 491 (Cudahy, J., concurring).
While it is clear, after Van Straaten, that a willfulness determination under the FCRA may be determined by the court as a matter of law, it appears to be an open question in the Seventh Circuit of whether the willfulness question must be determined by the court. Put another way, does Van Straaten mandate that district courts in the Seventh Circuit never submit claims of willful violations of the FCRA to a jury? Even after Van Straaten, courts that have granted summary judgment on claims of willful violations of the FCRA have done so via analyses that evaluated the evidence in the context of whether a reasonable jury could find the FCRA violation in question to be intentional or reckless. See Smith v. TransUnion, LLC, 2015 WL 1188189, at *6 (N.D. Ill. Mar. 12, 2015); Banno v. Experian Information Solutions, Inc., 2017 WL 3087726, at *6-8 (N.D. Ill. July 20, 2017); Matson v. Edfinancial Services LLC, 2015 WL 5010515, at *9 (E.D. Wis. Aug. 21, 2015); Redd v. Healthcare Revenue Recovery Group, 2022 WL 1988989, at *3 (N.D. Ill. June 6, 2022).
Even in Salem, decided after both Safeco and Van Straaten, the district court, in granting summary judgment for the defendant on the plaintiff's claim of a willful violation of the FCRA, analyzed the argument in the context of what a "reasonable jury could conclude" based on the facts. 2019 WL 1057371, at *7. The court found that the plaintiff had not "presented any additional facts that would support a finding of willfulness[,]" and that
While a reasonable jury could conclude that Equifax was obligated to perform additional investigation in this case, there is no genuine issue of material fact as to whether any violation of the FCRA that may have been committed was willful. That is, no reasonable jury could conclude that Equifax's belief that its exclusive reliance on the ACDV process was sufficient was "objectively unreasonable."Salem, 2019 WL 1057371, at *7, citing Van Straaten, 678 F.3d at 489.
In Humphrey, the plaintiff claimed the defendant willfully violated § 1681s-2(b)(1)(A) of the FCRA by failing to reasonably investigate notices it received from credit reporting agencies that the plaintiff was disputing the accuracy of his credit reports. Before considering whether the defendant willfully violated the statute, the court noted "an issue that the parties didn't address before trial, which is whether willfulness should be decided by the court or the jury." Humphrey, 2020 WL 91007, at *2. The court stated that, "[a]lthough both sides assumed that willfulness is a question of fact for the jury, in Van Straaten v. Shell Oil Product Co. LLC, the court stated that Safeco 'treated willfulness as a question of law[,]' " and that "questions of law are reserved for the court." Humphrey, 2020 WL 91007, at *2, quoting Van Straaten, 678 F.3d at 491. The court's conclusion was "supported by the language of the FCRA itself, which states that a defendant who violates the statute willfully may be required to pay 'such amount of punitive damages as the court may allow.' " Humphrey, 2020 WL 91007, at *2, quoting 15 U.S.C. § 1681n(a)(1)(B)(2) (emphasis added by Humphrey).
The import of this statutory language to the argument that the court must decide as a matter of law whether a violation was willful is somewhat dubious. Other courts have held that this language "is merely a codification of the Court's duty to review excessive verdicts, not a congressional command for a bench trial in lieu of a jury." Armeni v. TransUnion LLC, Inc., 2016 WL 7046839, at *1 (W.D. Va. Dec. 2, 2016); Saunders v. Branch Banking and Trust Co. of Virginia, 526 F.3d 142, 145 (4th Cir. 2008); Northrop v. Hoffman of Simsbury, Inc., 12 Fed. Appx. 44, 50 (2d Cir. June 14, 2001) ("Punitive damages are a question for the jury, subject to the court's duty to review excessive verdicts."); Collins v. Retail Credit Co., 410 F.Supp. 924, 933 (E.D. Mich. 1976).
Even so, the court pulled back from definitively holding that whether a defendant willfully violated the FCRA was always a question of law that must be decided by a court, stating "[b]ut regardless whether willfulness is a question of law or a question of fact, the court concludes that Navient is entitled to judgment as a matter of law because no reasonable jury could find that Navient's violation of § 1681s-2(b)(1)(A) was willful." Humphrey, 2020 WL 91007, at *2.
Likewise, in Matson v. Edfinancial Services LLC, where the plaintiff alleged the defendant willfully violated the FCRA, the court noted that the plaintiff "argue[d], without any legal citation, that '[t]he question of willfulness is a jury question[,]' " but the court wrote that "[i]n light of various cases finding in fact the opposite, the plaintiff's argument is either disingenuous or inadequately researched—neither of which are satisfactory to this Court." 2015 WL 5010515, at *9. Still, the court went on to state that "[c]ertainly, the question of willfulness may be a jury question in some cases, see, e.g., Scheel-Bagg[s] v. Bank of Am., 575 F.Supp.2d 1031, 1044 (W.D. Wis. 2008), but it is hardly a foregone conclusion." Matson, 2015 WL 5010515, at *9. The court ultimately granted summary judgment in favor of the defendant. Matson, 2015 WL 5010515, at *9.
In the Scheel-Baggs case, decided after Safeco but before Van Straaten, the district court concluded that whether the defendant recklessly violated the plaintiff's rights under § 1681n(a) of the FCRA and was therefore entitled to punitive damages was a fact question for the jury to decide. Scheel-Baggs, 575 F.Supp.2d at 1043-44; see also Shames-Yeakel v. Citizens Financial Bank, 677 F.Supp.2d 994, 1006 (N.D. Ill. 2009).
The court would also note a recent decision from the Southern District of Illinois, where, in denying summary judgment on a claim that the defendant violated the FCRA by failing to properly report the plaintiff's debt to consumer reporting agencies or to investigate his dispute of the debt, the court concluded that a jury could reasonably find that the defendant's investigation was inadequate under the FCRA, and further held that "whether [the defendant's] investigation or protocol may qualify as a willful violation giving rise to statutory or punitive damages is an issue for a jury as well." Fickel v. Clearwater Credit Union, 2023 WL 2456116, at *3 (S.D. Ill. Mar. 10, 2023).
As the above survey of case law demonstrates, there is no clear, definitive answer as to whether the court must decide, as a matter of law, whether a defendant's violation of the FCRA was reckless. Even the courts that have directly held that the issue is a matter of law to be determined by the court, not a jury, have still analyzed the facts under the traditional summary judgment analysis as to what a reasonable jury could conclude. Other federal courts outside of the Seventh Circuit have plainly held that willfulness under the FCRA can, in certain circumstances, be a question for the jury. However, this court is in the Seventh Circuit, and bound by its precedents. The court agrees with the Humphrey court that a fair reading of Van Straaten holds that the U.S. Supreme Court in Safeco " 'treated willfulness as a question of law.' " Humphrey, 2020 WL 91007, at *2, quoting Van Straaten, 678 F.3d at 491. Although the Humphrey court (and courts in Matson and Salem, for example) seemed to hedge its bets on whether willfulness can ever be determined by a jury, this court will follow its example, and the example of the other courts in this district post-Van Straaten, and determine the issue as a matter of law. Plaintiff's Motion is granted in this respect.
The court now turns to whether Defendant's violation of the FCRA in this case was willful or, as Defendant argues, merely negligent. A willful violation is one that is committed with actual knowledge or reckless disregard for the FCRA's requirements. Persinger v. Southwest Credit Systems, L.P., 20 F.4th 1184, 1195 (7th Cir. 2021). "A company recklessly violates the FCRA when it commits 'a violation under a reasonable reading of the statute's terms,' and its erroneous reading '[runs] a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.' " Persinger, 20 F.4th at 1195, quoting Safeco, 551 U.S. at 69, 127 S.Ct. 2201. "So, 'only a reading that is "objectively unreasonable" can be deemed a "willful" violation.' " Myers v. Equifax Information Services, LLC, 2022 WL 4292179, at *19 (S.D. Ind. Sept. 16, 2022), quoting Van Straaten, 678 F.3d at 489.
In its summary judgment Order, the court began its analysis on this issue with a discussion of the Seventh Circuit's decision in Persinger. In Persinger, the plaintiff filed for bankruptcy, which resulted in much of her debt being discharged, including her debt with the defendant. Persinger, 20 F.4th at 1189. However, due to a glitch in the defendant's reporting system, and the fact that the plaintiff's debt was under a former last name, the defendant was unaware that the plaintiff's debt had been discharged, and thus for several months thereafter, but prior to the defendant being accurately informed, the defendant continued its collection efforts against the plaintiff. Persinger, 20 F.4th at 1189. This led to the plaintiff filing a claim that the defendant violated the FCRA, and did so willfully. Persinger, 20 F.4th at 1197. The Seventh Circuit held that the defendant's "procedures - whether for handling bankruptcy notifications or ordering bankruptcy scrubs - were reasonable compliance efforts, not willful violations of the FCRA[,]" and further held that the defendant "lacked actual knowledge of the bankruptcy, and it did not recklessly disregard the possibility that debt had been discharged," as required for a willful violation of the FCRA. Barker v. Midland Credit Management, Inc., 2022 WL 17490985, at *2 (N.D. Ind. Nov. 1, 2022), citing Persinger, 20 F.4th at 1197-98.
At summary judgment, Plaintiff argued that, unlike the defendant in Persinger, Defendant here had no processes or procedures in place to prevent its error in sending Plaintiff's information to TransUnion and starting the process that led to Plaintiff's updated credit information being disclosed to Defendant, despite Defendant having no right to view that information following Plaintiff's debt to Defendant being discharged in bankruptcy. Defendant argued that Plaintiff has no evidence that it acted willfully or recklessly. Defendant argued that the pilot program was new, that the error was inadvertent, and that as soon as Defendant learned the pilot program was not excluding bankruptcy accounts like Plaintiff's, Defendant enacted a procedure to ensure that accounts like Plaintiff's were no longer included in the batch requests.
In ruling on the parties' summary judgment motions, the court held the following:
The court agrees with Plaintiff that this case is distinguishable from Persinger. There, the defendant had a procedure in place before the incident in question, and the defendant in that case lacked actual knowledge of the plaintiff's bankruptcy. Persinger, 20 F.4th at 1197-98. Here, there was no protective procedure implemented until after Defendant learned that it had impermissibly inquired into Plaintiff's credit. Moreover, it is undisputed that Defendant had actual knowledge of Plaintiff's bankruptcy. Taking all the evidence in the light most favorable to Plaintiff, and drawing all reasonable inferences therefrom, a factfinder could conclude that Defendant's violation of the FCRA was willful or reckless. Defendant's summary judgment motion is denied on this ground. Turning to Plaintiff's motion, the court finds that summary judgment should be denied for her, as well. The court now takes all the evidence and reasonable inferences in the light most favorable to Defendant. Defendant admits that the inclusion of Plaintiff's account in the batch sent to TransUnion for the account inquiry was in error, but argues that this was inadvertent. Edwards stated in her declaration that Defendant "did not intend to include Plaintiff due to her recent bankruptcy filing." A factfinder could view that as evidence that
Defendant did not intend to send her information to TransUnion, and that doing so was simple negligence on Defendant's part, but was not willful or reckless. A factfinder could also consider that the Fraud Score program was new at the time this happened, indeed it was a "pilot program," and that, while operation of the program was unfortunately not mistake free, the inadvertent inclusion of Plaintiff's account in the batch inquiry to TransUnion was not reckless or willful. A factfinder could also view Defendant's implementation of a procedure to prevent the kind of inquiry at issue in this case immediately after being notified of Plaintiff's Complaint as evidence that Defendant did not act willfully or recklessly, but rather was only a negligent violation of the FCRA.
The court also noted that Plaintiff, in her Response (#25) at page 15, argued that Defendant's "conduct here amounted to negligent, willful, and/or reckless violations of the FCRA, having failed to even bother to consider the impact of its Fraud Score/Malicious Intent Score program with TransUnion and Argus, recklessly violating" Plaintiff's rights. (Emphasis added).
Thus, taking the facts presented in the light most favorable to Defendant, and drawing all reasonable inferences therefrom, the court concluded that a factfinder could opt for the first level of conduct suggested by Plaintiff, and find that Defendant's actions in requesting the inquiry were merely inadvertent or negligent, but did not rise to a willful level, and therefore denied Plaintiff's summary judgment motion on this ground.
"The Supreme Court has explained that the term 'willfully' as used in § 1681n includes both knowing and reckless violations of the FCRA." Myers, 2022 WL 4292179, at *19, citing Safeco, 551 U.S. at 56-60, 127 S.Ct. 2201. In her Motion for Reconsideration, Plaintiff does not argue that Defendant's violation of the FCRA was willful because it was "knowing," but that it was willful because Defendant conducted the Fraud Score pilot program with reckless disregard of the fact that any account subject to bankruptcy discharge would be included in the program. Plaintiff argues that Defendant was reckless in that it did not bother to take any steps to make sure its deliberate act did not violate the law. Although its inclusion of Plaintiff's discharged account in the Fraud Score program was not intentional, Defendant maintained no precautions to prevent her account from being included. Plaintiff argues that Defendant's misconduct rose above mere negligence, as Defendant did not make a clerical error or technical mistake in implementing the program, but rather entirely disregarded the requirements of the FCRA by failing to remove accounts subject to bankruptcy from its program.
Defendant responds that its actions were, at most, negligent or merely careless. Defendant argues that the program in question was a brand new pilot program, and that the bankrupt accounts were not removed from the program at its inception due to mere oversight, as opposed to being left in intentionally or recklessly. Defendant contends that an oversight in developing a brand new program is not a reckless disregard or misreading of the FCRA necessary to demonstrate a willful violation.
As detailed above and in the court's Order on summary judgment, it was not the court's original intention to decide this issue at summary judgment. Rather, the court found that there were sufficient facts on both sides of the argument so as to establish a genuine issue of material fact to send this case to a jury. Plaintiff moved to reconsider, arguing that the court had to decide this issue as a matter of law, and could not send it to a jury. Defendant, in its Response, did not respond to Plaintiff's argument that the issue of willfulness could not be determined by a jury, and, therefore, tacitly conceded Plaintiff's argument. Plaintiff's argument is supported by Seventh Circuit case law and subsequent interpretation by courts in this circuit. Thus, the court is bound to decide this issue as a matter of law.
The court finds this question to be a close one. There are facts supporting both a finding of recklessness, and a finding of mere negligence or carelessness on the part of Defendant. However, the court must choose between one or the other. Being compelled to so choose, the court finds that Defendant's actions rise to the level necessary for a finding of recklessness.
As has already been stated, "[r]eckless disregard means that 'the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.' " Johnson v. US Bank Home Mortgage, 2020 WL 6801847, at *3 (N.D. Ill. Nov. 19, 2020), quoting Safeco, 551 U.S. at 69, 127 S.Ct. 2201. " 'Knowing the risk and failing to take any precaution against it' is 'indicative of willful violation.' " Johnson, 2020 WL 6801847, at *3, quoting Redman v. RadioShack Corp., 768 F.3d 622, 638 (7th Cir. 2014). The question, then, is whether in developing the Fraud Score pilot program but failing to remove or scrub bankrupt accounts from the program, Defendant knowingly ran a greater-than-careless risk that it would violate the FCRA. See Johnson, 2020 WL 6801847, at *3.
In Persinger, the Seventh Circuit found no reckless disregard because the defendant had reasonable procedures in place for handling bankruptcy notifications and scrubs and that, additionally, the defendant lacked actual knowledge of the bankruptcy and did not recklessly disregard the possibility that the debt had been discharged. Persinger, 20 F.4th at 1197-98. Here, by contrast, Defendant had actual knowledge of Plaintiff's bankruptcy and admittedly had no processes or procedures in place to prevent accounts that were subject to notices of bankruptcy and bankruptcy discharges from being included in the Fraud Score program. Such procedures were put in place after the receipt of Plaintiff's Complaint in the instant case, but were not in place for the pilot program because they were not yet in writing, and thus were "overlooked." Defendant's failure to maintain policies and procedures for compliance with the FCRA militate against any finding of a negligent violation. See Monfort v. CKCG Health Care Services, Inc., 2020 WL 9599752, at *5 (N.D. Ga. Sept. 12, 2020) ("It also is undisputed that Defendant did not maintain policies and procedures for compliance with the FCRA and provided no training in its application, which militate against any finding of a negligent violation.").
Defendant has provided no authority for its claim that the fact that the Fraud Score program was a "brand-new pilot program" supports a finding that its conduct was negligent, as opposed to reckless. Whether the program was a pilot program or an established, official program, Plaintiff was still harmed by Defendant's failure to have a procedure in place to prevent bankrupt accounts from being included in the program. Moreover, the testimony of Defendant's employee Susan Edwards that the proper procedures were not yet in place for the pilot program because they were not yet in writing, as well as Defendant's argument in its Response (#36) that it "failed to consider" scrubbing bankrupt accounts when implementing the new program, indicates that Defendant did understand its obligations under the FCRA in this respect, but took no steps to secure those obligations. This may have been an "oversight" or "mistake," but it implies that Defendant did not take seriously those obligations because it was "only" a pilot program, which the court finds is more akin to reckless disregard than negligence. See Matson, 2015 WL 5010515, at *9.
There is no definitive point at which actions veer from merely negligent to reckless. Indeed, the Supreme Court stated that "there is no need to pinpoint the negligence/recklessness line[.]" Safeco, 551 U.S. at 69, 127 S.Ct. 2201. However, in this case, the court finds that the weight of the evidence indicates that Defendant knew the risk and failed to take any precaution against it, which is indicative of a willful violation. See Johnson, 2020 WL 6801847, at *3. Plaintiff's Motion to Reconsider is GRANTED in this regard. Summary judgment is GRANTED in favor of Plaintiff on her claim that Defendant willfully violated the FCRA. II. Whether the Court Erred In Its Evaluation of Plaintiff's Evidence of Emotional Distress
Plaintiff next argues that the court erred in its evaluation of the evidence proffered on her claim of emotional distress. Plaintiff's argument on this issue does not establish that the court has misunderstood her, has made a decision outside the adversarial issues presented to the court by the parties, has made an error of apprehension, or that there has been a controlling or significant change in the law or facts since the submission of the issue to the court. See Quaker Alloy, 123 F.R.D. at 288. Rather, Plaintiff is rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion, and as such has not met her "heavy burden" in demonstrating that the court should reconsider its ruling on this issue. See Pruitt, 2021 WL 197399, at *1. Plaintiff's Motion is DENIED with respect to its request the court reconsider its ruling on emotional distress. III. Damages
Having found summary judgment should be granted for Plaintiff on her claim that Defendant willfully violated § 1681b(f)(1) of the FCRA, Plaintiff is entitled to statutory or punitive damages pursuant to § 1681n. Punitive damages under the FCRA may be available even where a plaintiff has sustained no actual damages. Persinger, 20 F.4th at 1194-95; Casella v. Equifax Credit Information Services, 56 F.3d 469, 476 (2nd Cir. 1995); Saunders v. Equifax Information Services, LLC, 469 F.Supp.2d 343, 348 (E.D. Va. 2007) ("The Act allows for such an award predicated on either sufficient proof of actual damages or, in the alternative, an award of statutory damages."); Yohay v. Alexandria Employees Credit Union, Inc., 827 F.2d 967, 972 (4th Cir. 1987) (an award of actual damages is not necessary to support an award of punitive damages under the FCRA); Owner-Operator Indep. Driver Association, Inc. v. USIS Commercial Services, Inc., 2006 WL 2164661, *2 (D. Colo. July 31, 2006) ("[A] plaintiff who has proven that the defendant willfully failed to comply with the FCRA may recover statutory and punitive damages without proof of actual damages.").
The court would note that, regardless of the availability of punitive damages, in cases where damages caused by the FCRA violation are small or difficult to ascertain, statutory damages are available. See Meyers v. Nicolet Restaurant of De Pere, LLC, 843 F.3d 724, 729 n.5 (7th Cir. 2016).
However, at this point, the court cannot make a damages determination without further briefing. Therefore, the court directs the parties to file briefs addressing the following points: (1) whether damages should be decided by the court or a jury; (2) whether Plaintiff is entitled to punitive damages, or only statutory damages; and (3) what those damages should be.
IT IS THEREFORE ORDERED:
(1) Plaintiff's Motion for Reconsideration (#33) is GRANTED in part and DENIED in part. Summary judgment is GRANTED for Plaintiff on her claim of a willful violation of the FCRA. (2) Plaintiff's damages brief is due on July 21, 2023. Defendant's response is due August 4, 2023. Plaintiff's reply brief is due August 14, 2023. (3) This case remains set for a final pretrial conference on December 4, 2023, at 11:30 AM, and a jury trial on December 19, 2023, at 9:00 AM.