COX v. EXPERIAN INFORMATION SOLUTIONS, INC. (D.Kan. 2004)

SAM CROW, Senior District Judge

This Fair Credit Reporting Act case comes before the court on three matters: plaintiff's motion for summary judgment, defendant's motion for summary judgment, and plaintiff's response to the court's order to show cause why defendant's summary judgment motion should not be considered and decided as an uncontested motion. The court addresses this latter response first.

When plaintiff filed no response to defendant's motion for summary judgment, the court, in an abundance of caution, ordered plaintiff to show cause why defendant's motion should not be considered and decided as uncontested. Plaintiff timely responded to the show cause order, stating that his failure to file a response was because he was "confused by the title" of defendant's motion. (Dk. 45, p. 1). Plaintiff states that he misconstrued defendant's motion and its accompanying memorandum of law as a response to plaintiff's previously-filed summary judgment motion. Plaintiff states that he received defendant's motion for summary judgment and its accompanying memorandum of law, as well as defendant's response to plaintiff's previously-filed summary judgment motion, and related exhibits (Dks. 36-40) all on one day.

The court has reviewed the record and the documents that comprise it. Well aware of plaintiff's status as a pro se litigant and of the rules governing such cases, the court is nonetheless convinced that plaintiff has not demonstrated excusable neglect. Plaintiff is no stranger to this courthouse or others, and has demonstrated a fundamental ability to read pleadings and understand the nature of the proceedings in which he is involved.

The pretrial order established March 10, 2004, as the deadline for filing dispositive motions in this case. On that date, defendant filed not only a response to plaintiff's motion for summary judgment (Dk. 38), but also a motion for summary judgment (Dk. 36) and a memorandum in support thereof (Dk. 37.) The court has reviewed these pleadings and their related exhibits, and finds them to be clearly titled, separately bound, and unambiguous in nature. Plaintiff's belief that one voluminous pleading was a motion and the other was a memorandum and both were in opposition to his own summary judgment motion is not justifiable and constitutes insufficient cause for plaintiff's failure to respond. Accordingly, the court shall decide defendant's summary judgment motion as an uncontested motion.

A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will . . . preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947 (1987).

The rule regarding a party's failure to file and serve motion papers provides: "If a respondent fails to file a response within the time required by [the rules of this court], the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." D.Kan. Rule 7.4. The rules of this court further specifically state that "all material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." D.Kan. Rule 56.1(a).

Here, the defendant has complied with its duty under the relevant rules of practice to submit its summary judgment motion and memoranda, containing a concise statement of material facts as to which it contends no genuine issue exists. The facts set forth by the defendant refer with particularity to the portion of the record upon which defendant relies, and are supported by affidavits, and/or relevant portions of pleadings, depositions, answers to interrogatories and responses to requests for admission. Id. In short, the defendant has complied with its burden to show that summary judgment is warranted. Plaintiff has done nothing to show that it is not.

But even if the court had found excusable neglect, the result would have been no different. Nothing stated in plaintiff's 34-page response to the court's show cause order, Dk. 45, which appears to include plaintiff's response to defendant's motion for summary judgment, gives the court any pause in granting defendant's motion for summary judgment and denying plaintiff's motion for the same.

Highly summarized, the uncontested facts show that plaintiff applied for, received, and used two credit cards: a Sears Gold Mastercard and a Discover Card. At some point, plaintiff failed to pay the outstanding balances on these accounts, the amount of which is not disputed. The basis for plaintiff's refusal to pay, and for his claims in this case, is his assertion that he is the creditor and not the debtor on these accounts. Pretrial Order, Dk. 35, p. 3.

Only one claim is stated by plaintiff in the pretrial order — a claim under the Fair Credit Reporting Act. Defendant has properly stated the elements of this claim, and has shown that plaintiff has failed to produce any evidence sufficient to create a genuine issue of material fact on one or more of the required elements. Plaintiff offers nothing in response but his conclusory affidavit, which states few facts but asserts many unintelligible legal theories. Because the record shows no disputes over facts that might affect the outcome of the suit under the governing law, summary judgment in favor of defendant is warranted.

The court makes this ruling cautiously, aware that a pro se litigant's pleadings are construed liberally and judged against a less stringent standard than pleadings drawn by attorneys. Hall v. Bellmon, 935 F.2d 1106, 1110 (1991). However, "it is not the proper function of the district court to assume the role of advocate for the pro se litigant." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). The court is not to "construct arguments or theories for the plaintiff in the absence of any discussion of those issues." Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). Defendant's motion for summary judgment cannot be denied unless the court constructs not only the arguments and theories for plaintiff, but also facts which do not appear of record. Under the rules of this court, which are binding not only upon the court and the defendant, but also upon the plaintiff, defendant's motion for summary judgment must be granted.

By necessity, since the court is granting defendant's motion for summary judgment, it shall deny plaintiff's motion for summary judgment. Nonetheless, even had defendant not filed a motion for summary judgment, the court could not have granted plaintiff's motion for summary judgment.

Despite the fact that the pretrial order includes only a claim under the Fair Credit Reporting Act, plaintiff's motion for summary judgment fails to mention this law, let alone address any elements of a claim thereunder. Instead, plaintiff's summary judgment motion asserts two controlling "facts": that he has exhausted his administrative remedies, and that he has established "administrative judgment in estoppel" against defendant. (Dk. 31, p. 1-2). From the attachments to this pleading, it appears that plaintiff seeks to estop defendant based upon language included in documents which plaintiff sent to defendant and to which defendant allegedly failed to respond. An example of such language follows:

If you fail to make these corrections and corrected reports, you will be knowingly and intentionally causing me a damage and agree to pay me $1,500 per day for every day the inaccurate information is contained in your reports.

Even assuming that plaintiff sent and defendant received but failed to respond to the "notice to cure fault," and/or other documents containing similar language, the facts shown by plaintiff do not meet all the elements of a claim under the FCRA, thus plaintiff is not entitled to summary judgment.

IT IS THEREFORE ORDERED THAT defendant's motion for summary judgment (Dk. 36) is granted, and that plaintiff's motion for summary judgment (Dk. 31) is denied.