Opinion
Civil Action No. 00-A-270-N
February 15, 2001
ORDER
This matter comes before the court on Plaintiff's Motion to Reconsider the Court's Order Dismissing Defendant Providian Financial Services (doc. # 36) filed on February 12, 2001.
Plaintiff does not state in her Motion to Reconsider whether she brings this Motion pursuant to Federal Rule of Civil Procedure 59(e) or 60(b). If Plaintiff brings this Motion pursuant to Rule 59(e), it would be untimely because Plaintiff filed this Motion more than ten days after entry of the court's January 19, 2001 order. Thus, the court will construe Plaintiff's Motion as a Rule 60(b) motion.
Plaintiff requests the court to reconsider its decision to dismiss Plaintiff's Fair Credit Reporting Act ("FCRA") claim, 15 U.S.C. § 1681et seq., against Defendant Providian Financial Corporation ("Providian"). The court in its order dated January 19, 2001, dismissed Plaintiff's FCRA claim based on a violation of 15 U.S.C. § 1681s-2 (a) "because no private right of action exists for a violation of§ 1681s-2(a)." In her Motion to Reconsider, Plaintiff contends that most federal district courts have held that a consumer may maintain a private action against furnishers of information based on a violation of § 1681s-2(b). Compare McMillian v. Experian Info. Servs., Inc., 119 F. Supp.2d 84, 86 (D. Conn. 2000) (holding that a consumer may maintain a private action against furnishers of information based on a violation of§ 1681s-2(b)); DiMezza v. First USA Bank. Inc., 103 F. Supp.2d 1296, 1301 (D.N.M. 2000) (same); Dornhecker v. Ameritech Corp., 99 F. Supp.2d 918, 927 (D. Ill. 2000) (same) with Carnev v. Experian Info. Solutions, Inc., 57 F. Supp.2d 496, 502 (W.D. Tenn. 1999) (holding that a consumer has no private right of action against furnishers of information for a violation of§ 1681s-2(b)).
The court rejects Plaintiff's request for reconsideration of its order dismissing the FCRA claim against Providian for two reasons. First, Plaintiff raises for the first time in her Motion to Reconsider the argument that Providian violated § 1681s-2(b). In her summary judgment briefs, Plaintiff did not present any argument that Providian violated § 1681s-2(b). Instead, Plaintiff only contended that Providian violated § 1681s-2(a). As is the case for a motion to alter or amend a judgment under Rule 59(e), a motion for reconsideration brought under Rule 60(b) is not at the disposal of parties who want to raise new arguments for the first time. Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 404 (7th Cir. 1986) ("Although the defendants attempted to raise the argument in their motion for reconsideration, a motion for reconsideration is an improper vehicle to introduce evidence previously available or to tender new legal theories."); See also Hashwani v. Barbar, 822 F.2d 1038, 1041 (11th Cir. 1987) (holding that a district court did not abuse its discretion by not considering arguments raised for the first time on a motion to amend a summary judgment order);American Home Assurance Co. v. Glenn Estess Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985) (same). Therefore, the court will not consider Plaintiff's argument that Providian violated § 1681s-2(b).
Second, even assuming that Plaintiff could raise the § 1681 s-2(b) argument for the first time on a motion to reconsider, the court finds that Plaintiff has not produced sufficient evidence to create a genuine issue of material fact as to whether Providian violated § 1681s-2 (b). A furnisher of information, such as Providian, has a duty under § 1681s-2(b) after it receives notice of a dispute pursuant to § 1681i(aX2). 15 U.S.C. § 1681s-2 (bXl). Section 1681i(a)(2) requires a consumer reporting agency to notify a furnisher of information of a dispute where a consumer has notified the consumer reporting agency of the dispute. 15 U.S.C. § 1681i(a)(2). Therefore, a furnisher of information has no duty under § 1681s-2(b) until a consumer reporting agency, and not a consumer, provides notice to the furnisher of information of a dispute. DiMezza. 103 F. Supp. 2d at 1300; Carney, 57 F. Supp. 2d at 502. Plaintiff does not allege in her complaint, nor has she presented any evidence to show, that any consumer reporting agency provided Providian with notice of her dispute. Therefore, even assuming that the court would consider this argument raised for the first time on Plaintiff's Motion to Reconsider, the court finds that Plaintiff has failed to establish a claim under § 1681s-2(b) against Providian.
The court also notes that although some federal courts have recognized a private right of action for a consumer under subsection (b) of § 1681 s-2, the plain language of the statute clearly provides that no private right of action exists for a violation under subsection (a) of § 1681 s-2. 15 U.S.C. § 1681s-2 (c).
Accordingly, Plaintiff's Motion to Reconsider the Court's Order Dismissing Defendant
Providian Financial Services (doc # 36) is DENIED.