Opinion
Civil Action 4:22-cv-3669-SAL-TER
05-03-2023
CHARLES RAY THOMAS, II, aka Adebisi Ali, Plaintiff, v. TRANS UNION, LLC and EQUIFAX INFORMATION SERVICES, LLC, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff brings this action pro se, alleging Defendants violated the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. Presently before the court are Plaintiff's Motions for Default Judgment (ECF Nos. 15, 16) and Plaintiff's Motion for Summary Judgment (ECF No. 28). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
II. PROCEDURAL HISTORY
Plaintiff filed this action on October 21, 2022, and requested leave to proceed in forma pauperis, which was granted. Order (ECF No. 8). Service was authorized and summonses were issued on November 1, 2022. Order (ECF No. 7, 10). Service was completed by the United States Marshal's Service on November 29, 2022. Summonses Returned Executed (ECF No. 23). Defendant Trans Union, LLC (Trans Union) filed an Answer (ECF No. 17) on November 28, 2022. Defendant Equifax Information Services, LLC (Equifax) filed an Answer (ECF No. 24) on December 20, 2022. Plaintiff filed the present Motions for Default Judgment (ECF Nos. 15, 16) on November 22, 2022. He filed his Motion for Summary Judgment (ECF No. 28) on December 27, 2022.
III. DISCUSSION
It is not clear whether Plaintiff is truly seeking default judgment in the two motions filed as such. The documents (ECF Nos. 16, 16) are both captioned "Default Summary Judgment,” and are directed to Mark Begor, with Equifax and Chris Cartwright, with Trans Union. Both motions state “you have been presented and served with affidavit of proof of claim, a notice to cure, and you have failed to respond in the allotted time given. You are now in default Mr. Cartwright for silence is acquiescence.” Nevertheless, the court will analyze this motion pursuant to Federal Rule of Civil Procedure 55. As an initial matter, neither Begor nor Cartwright are parties to this action. They were not named as Defendants in Plaintiff's Complaint (ECF No. 1), nor were they served with the Summons and Complaint (ECF No. 23). Default judgment may only be entered when a party against whom a judgment for affirmative relief is sought has failed to timely plead or otherwise defend the case. Fed.R.Civ.P. 55(a). Plaintiff has not sought any affirmative relief against Begor or Cartwright in this action. Therefore, default judgment against them is not proper. Further, to the extent Plaintiff seeks default judgment against Equifax and Trans Union, the record reflects that both Defendants timely filed Answers in this case. A defendant must serve an answer or otherwise plead within 21 days after being served with the summons and complaint. Fed.R.Civ.P. 12(a)(1)(A)(i). As set forth above, official service by the United States Marshal's service occurred on both Defendants on November 29, 2022. Trans Union filed an answer prior to official service on November 28, 2022. Equifax filed an answer on the 21st day after service on December 20, 2022. Thus, neither party is in default and default judgment is not proper.
Both motions state “Mr. Cartwright” even though one (ECF No. 15) is directed to Mark Begor.
Plaintiff also moves for summary judgment. Therein, he argues that Defendants have disregarded all communication sent via certified mail. Plaintiff states that he has requested a certified statement of account from both parties as well as “the contract” from both parties and his requests have been ignored. He argues that Defendants are in default and breach of public trust and “Plaintiff has provided more than enough evidence to the court to prove status and jurisdiction.” Pl. Motion p. 2 (ECF No. 28). Defendants argue that Plaintiff's Motion is procedurally deficient and premature.
Rule 56 requires a movant for summary judgment to “identify each claim or defenseCor the part of each claim or defenseCon which summary judgment is sought.” Fed.R.Civ.P. 56(a). Further, the movant is required to support his factual positions by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or show “that the materials cited do not establish that the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). Plaintiff has failed to identify in his motion the specific claims or defenses for which he seeks summary judgment, nor has he pointed to specific evidence in the record to support his argument that summary judgment is proper.
In addition, Rule 56(b) provides “a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.” However, “[g]enerally speaking, summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Investors Title Ins. Co. v. Bair, 232 F.R.D. 254, 256 (D. S.C. October 24, 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). Indeed, while a party is able to move for summary judgment prior to the close of discovery, courts often deny such motions as premature when no discovery has been conducted. See e.g., McCray v. Maryland Dept. of Trans., Maryland Transit Admin., 741 F.3d 480, 483-484 (4th Cir. 2014) (summary judgment should only be granted “after adequate time for discovery”. At the time Plaintiff filed his motion, the deadline for the Rule 26(f) conference had not yet passed and the parties had yet begun to conduct discovery. Therefore, in addition to being procedurally deficient, Plaintiff's motion for summary judgment is premature. For these reasons, summary judgment in Plaintiff's favor is not proper at this time.
III. CONCLUSION
For the reasons discussed above, it is recommended that Plaintiff's Motions for Default Judgment (ECF Nos. 15, 16) be denied and Plaintiff's Motion for Summary Judgment (ECF No. 28) be denied.