United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
WEBBER WRIGHT UNITED STATES DISTRICT JUDGE
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
Motion to Appoint Counsel
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.”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.
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 that she is capable of prosecuting her
claims without the benefit of counsel.
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
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).
Requests for Admission
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).
certificate of service filed July 5, 2017,  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.
Union also submits a declaration by Monica F. Ramirez, an
attorney from Texas, who serves as additional counsel for
Trans Union. 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.
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 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.
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.
Court finds that matters set forth in the requests for
admissions are deemed admitted.
following facts are undisputed. 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.
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
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:
period of several months, Biddle disputed the content of the
bankruptcy entry, ...