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Biddle v. Trans Union LLC

United States District Court, E.D. Arkansas, Western Division

April 3, 2018




         Angela Renee Biddle (“Biddle”) brings this action under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., claiming that Defendant Trans Union LLC (“Trans Union”) reported erroneous information on her credit report regarding a Chapter 13 bankruptcy case. Now before the Court is Trans Union's motion for summary judgment [ECF Nos. 23, 24, 25], Biddle's response in opposition [ECF Nos. 30, 31, 34], and Trans Union's reply [ECF No. 42]. Also before the Court is Biddle's motion for appointment of counsel [ECF No. 32] and Trans Union's response in opposition [ECF No. 43]. After careful consideration, and for reasons that follow, Biddle's motion for appointment of counsel is denied, and Trans Union's motion for summary judgment is granted.

         I. Motion to Appoint Counsel

         Along with her response in opposition to summary judgment, Biddle filed a motion requesting that the Court appoint counsel “to take over litigation in this matter.”[1]An indigent pro se litigant has no statutory or constitutional right to have counsel appointed in a civil case, but a court may, in its discretion, appoint counsel if it is convinced that the litigant as well as the court will benefit from the assistance of counsel. See Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998); Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986). In making this determination, a court must weigh and consider the following factors: (1) the factual and legal complexity of the case; (2) the indigent litigant's ability to investigate the facts; (3) the presence or absence of conflicting testimony; and (4) the indigent litigant's ability to present his claims. Johnson, 788 F.2d at 1322-23. “These factors are ‘by no means an exclusive checklist, ' and the weight to be given any one factor will vary with each case.” Id. at 1323.

         The Court finds that appointment of counsel is unwarranted in this case. Biddle's claims are not legally or factually complex, and it is clear from her filings in this case and others[2] that she is capable of prosecuting her claims without the benefit of counsel.

         II. Summary Judgment

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As a prerequisite to summary judgment, a moving party must demonstrate “an absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

         The non-moving party may not rest on mere allegations or denials of his pleading but must come forward with ‘specific facts showing a genuine issue for trial. Id. at 587. “[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party.” RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).

         A. Requests for Admission

         As an initial matter, Trans Union asks the Court to deem admitted unanswered requests for admissions. Rule 36(a) of the Federal Rules of Civil Procedure permits a party to serve on any other party “a written request to admit, for the purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (1) facts, the application of law to fact, or opinions about either; and (2) the genuineness of any described documents.” Fed.R.Civ.P. 36(a). “A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection . . . .” Fed.R.Civ.P. 36(a)(3).

         By certificate of service filed July 5, 2017, [3] Harry S. Hurst, counsel of record for Trans Union, declared that on July 3, 2017, he mailed Biddle a copy of Trans Union's requests for admissions via the United States mail. Hurst's certificate of service shows that he mailed the requests to the address supplied by Biddle in a notice of address change filed in this case on May 24, 2017.

         Trans Union also submits a declaration by Monica F. Ramirez, an attorney from Texas, who serves as additional counsel for Trans Union.[4] On July 14, 2017, Ramirez filed a motion to appear pro hac vice, and the Court granted the motion the same day. Ramirez testifies that she and Biddle exchanged email correspondence on July 3, 2017, and copies of the emails show that Ramirez sent Biddle an additional copy of Trans Union's requests for admissions.[5]

         Biddle offers two reasons why she failed to respond to Trans Union's requests for admissions. First, she claims that she never received a mailed copy of the discovery requests. The Court finds that Biddle's unsupported denial[6] fails to rebut Hurst's certificate of service. Furthermore, even assuming that Biddle did not receive the requests in the mail, the Court finds that she failed to cooperate in the discovery process. The Court's electronic case filing service shows that the Clerk's Office sent Biddle notice of Hurst's certificate of service. After receiving that notice and Ramirez's email, which included a copy of the requests for admissions, Biddle was aware of the requests, and she failed to respond.

         Second, Biddle contends that Ramirez engaged in the unauthorized practice of law because she sent Biddle discovery requests before the Court granted her motion to appear in this case. According to Biddle, Ramirez's “unauthorized practice of law” should nullify and invalidate any action taken by her in this case prior to July 14, 2017. The Court finds that Biddle's argument is without merit. The Court's Local Rule 83.5(d) permits an attorney, who is a member in good standing of the Bar of any United States District Court, or the highest court of any state, to apply to appear and participate in a particular case. The Local Rule further provides that pleadings tendered to the Clerk for filing by an attorney who is not admitted to the Bar of this Court shall nevertheless be filed and the attorney shall be given thirty days to apply to appear pro hac vice. The Local Rule plainly indicates that some form of legal practice is permitted prior to appearing pro hac vice, and Ramirez tendered no pleadings or documents in this case before the Court granted her motion to do so.

         The Court finds that matters set forth in the requests for admissions are deemed admitted.

         B. Background

         The following facts are undisputed.[7] Information available on Public Access to Court Electronic Records (“PACER”), an electronic public access service that maintains case information from federal courts, shows that on February 11, 2014, Biddle filed a voluntary petition for Chapter 13 bankruptcy relief in the United States Bankruptcy Court for the Eastern District of Arkansas. PACER further shows that on June 30, 2014, the Bankruptcy Court dismissed Biddle's petition for failure to timely pay a filing fee.

         Trans Union, a credit reporting agency (“CRA”) as defined under the FCRA, includes public information on consumers' credit reports. Among other things, Trans Union obtains public information regarding bankruptcy filings. Under the heading “Public Records, ” Biddle's Trans Union credit report contained the following entry concerning her Chapter 13 bankruptcy petition:

ARKANSAS FED COURT-LITTL Docket #: 1410723 (300 W 2ND STREET, LITTLE ROCK, AR 72203, (501) 918-5500)
Date Filed: 02/11/2014 13 Type: CHAPTER 13 BANKRUPTCY DISMISSED Court Type: U.S. Bankruptcy Court
Date Paid: 06/30/2014 Responsibility: Individual Debt Plaintiff Attorney: PRO SE
Date Updated: 10/24/2014
Estimated month and year that this item will be removed: 01/2021[8]

         Over a period of several months, Biddle disputed the content of the bankruptcy entry, ...

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