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John Gagliardi v. Equifax Information Services

February 3, 2011

JOHN GAGLIARDI, PLAINTIFF,
v.
EQUIFAX INFORMATION SERVICES, LLC, DEFENDANT.



The opinion of the court was delivered by: Senior Judge Donetta W. Ambrose

MEMORANDUM OPINION AND ORDER OF COURT

I. Synopsis

This matter comes before the Court on a motion for summary judgment filed by theDefendant. ECF No. 34. For the reasons that follow, that motion will be granted.

II. Background

Defendant Equifax Information Services, LLC ("Equifax"), is a limited liability company maintaining its principal place of business in Atlanta, Georgia. ECF Nos. 38 & 45 at ¶ 1. Equifax is a "consumer reporting agency" within the meaning of the Fair Credit Reporting Act ("FCRA") [15 U.S.C. § 1681 et seq.].*fn1 Id. at ¶ 2. As a consumer reporting agency, Equifax prepares credit reports based on information received from creditors, public records, merchants and other sources. Id. The credit reports are provided to subscribers with legitimate reasons for seeking the relevant information. Id. Equifax maintains credit history files covering more than 200 million consumers. Id. at ¶ 3. Thousands of data-furnishers provide Equifax with over one billion updates during the course of a typical month. Id.

On June 6, 2008, Plaintiff John Gagliardi ("Gagliardi") commenced an action against Equifax, Experian Information Solutions, Inc. ("Experian"), Transunion, Inc. ("Transunion"), Verizon of Pennsylvania ("Verizon"), AT&T, Inc. ("AT&T"), and Allied Interstate ("Allied") in the Court of Common Pleas of Allegheny County, Pennsylvania, alleging violations of the FCRA, the Fair Debt Collection Practices Act ("FDCPA") [15 U.S.C. § 1692 et seq.], Pennsylvania‟s Unfair Trade Practices and Consumer Protection Law ("UTPCPL") [73 PA. STAT. § 201-1 et seq.], and the tort law of Pennsylvania. Civil Action No. 08-892, ECF No. 1. Equifax was involved in the case because of its alleged failure to conduct a reasonable reinvestigation into account-related disputes that Gagliardi had with Verizon, AT&T and Allied. ECF Nos. 36 & 45 at ¶ 23. The action was removed to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. Civil Action No. 08-892, ECF No. 1. Gagliardi and Equifax settled their dispute on February 17, 2009. ECF Nos. 36 & 45 at ¶ 24. In accordance with the settlement agreement, Gagliardi reviewed a copy of his credit disclosure with Equifax and verified that it was true, accurate and complete. Id. This credit disclosure contained no credit accounts, collections, or public records. Id. at ¶ 25. All claims against Equifax in that action were dismissed with prejudice on March 11, 2009. Id. at ¶ 26.

Columbia Gas of Pennsylvania ("Columbia Gas") is one of Equifax‟s subscribers. Id. at ¶ 47. In order to become a subscriber, Columbia Gas was required to complete Equifax‟s credentialing procedure. Id. at ¶ 48. As a part of its subscriber agreement with Equifax, Columbia Gas certified that it would comply with all FCRA requirements, and that it would seek consumer reports only for purposes that were permissible under the FCRA. Id. at ¶ 49. EquifaX follows procedures that are designed to ensure that consumer reports and credit reviews are provided only to those entities deemed to have a permissible purpose for obtaining the relevant information.*fn2 Id. at ¶ 82.

Gagliardi resided at 735 Waddell Avenue in Clairton, Pennsylvania, during the spring of 2009. Id. at ¶ 4. Natural gas service for the residence was provided by Columbia Gas. On April 24, 2009, Columbia Gas discontinued natural gas service for Gagliardi‟s residence. Id. at ¶ 5. In a "credit/service denial statement" dated April 27, 2009, Columbia Gas informed Gagliardi that he owed $1,487.70 for services provided to the residence through March 30, 2009. ECF No. 36-2 at 85. The statement from Columbia Gas further declared:

Based on the credit score obtained from Equifax, a national credit-reporting agency, you failed to meet our credit guidelines.

Id. Gagliardi was instructed to pay $1,813.70 in order to restore service to his residence. Id. This amount accounted for the $1,487.70 owed for past services, a security deposit in the amount of $302.00, and a reconnection fee in the amount of $24.00.*fn3 Id. The statement was electronically signed by a notation reading "u904159." Id.

Gagliardi mailed a copy of the statement to Equifax on April 30, 2009. Id. at 86-88. The statement was accompanied by a letter stating as follows:

Enclosed please see the credit/service denial statement dated April 27, 2009 by Columbia Gas of Pennsylvania. Note that your utility corporation customer did not include your address or telephone number or how otherwise how [sic] to contact you in its notice of adverse action. Please also notice that instead of having the letter signed by a human associate, the representative "happy to assist" me is a computerized cyber-niche known as "u904159."

According to Columbia Gas of Pennsylvania, an unfavorable credit score generated by you caused me to fail to meet credit guidelines needed to argue a restoration of my account with the utility service here.

I am over 75 years old, medically needy and require immediate restoration now. Please correct the false report so that I can receive the services that I require.

Please also send me a copy of the Equifax credit report used in this matter so that I may respond to it with my suggestions for corrections.

Id. at 86. Equifax received Galiardi‟s correspondence on May 12, 2009. ECF Nos. 36 & 45 at ¶ 30. Since Gagliardi had received an adverse-action letter from Columbia Gas, he was entitled to a free copy of his credit disclosure. Id. at ¶ 32. For this reason, Equifax proceeded to mail a copy of Gagliardi‟s credit disclosure to his residence by means of an automated process. Id. In a responsive letter to Equifax dated May 22, 2009, Gagliardi stated that either Columbia Gas was falsely claiming to have based its decision on a credit report supplied by Equifax or Equifax was "falsely concealing its participation in the Columbia Gas matter." ECF No. 36-3 at 1.

A few days after receiving the statement from Columbia Gas, Gagliardi disputed the accuracy of the bill and demanded more information. ECF Nos. 36 & 45 at ¶ 6. Columbia Gas quickly restored service to Gagliardi‟s residence. Id. Gagliardi and Columbia Gas entered into an agreement requiring Gagliardi to make ten monthly installment payments in the amount of $167.00 in addition to his regular gas bills in order to account for overdue payments and resulting fees. Id. at ¶ 10. The first installment was paid on August 5, 2009. Id. at ¶ 11. The second installment was never paid, since Gagliardi did not receive a bill from Columbia Gas for the month of September. Id. at ¶ 12. On September 21, 2009, Columbia Gas again terminated natural gas service for Gagliardi‟s residence. Id. at ¶ 13. The next day, Gagliardi moved to another residence that he owned. Id. at ¶ 14. It was located at 1407 Lovedale Hollow Road. ECF No. 36-2 at 25-26. Gagliardi apparently moved because he needed access to heat and hot water. ECF Nos. 36 & 45 at ¶ 14. Columbia Gas never restored natural gas service to Gagliardi‟s prior residence. Id. at ¶ 15.

Gagliardi underwent eye surgery in October 2009. Id. at ¶ 16. An acquaintance, Stacy Perry ("Perry"), transported Gagliardi to the residence located on Lovedale Hollow Road after the surgery. Id. at ¶ 17. Perry stayed at the residence for two nights, since Gagliardi had been advised that someone needed to be with him during the early stages of his recovery. Id. On one occasion, Perry apparently had to access the residence through a window, since Gagliardi had mistakenly locked the door that was normally used to enter and exit the residence. Id. at ¶ 18. Shortly after Perry‟s brief stay, the residence was burglarized. Id. at ¶ 19. The thieves stole a motorcycle, two money orders, and $3,700.00 in cash. Id. Gagliardi attributed the burglary to Perry and her boyfriend, Ron Beck ("Beck"). ECF No. 36-2 at 28-32. After the burglary, Gagliardi left the residence and moved into an industrial building that he owned at 191 Wall Road in Jefferson Hills, Pennsylvania. Id. at ¶ 22. A portion of the industrial building had evidently been set up like an apartment. Id.

On December 8, 2009, Gagliardi sent Equifax a letter requesting a free annual credit disclosure. ECF No. 36-2 at 90. Enclosed with the letter was a copy of Gagliari‟s driver‟s license. Id. at 91. The request was received by Equifax on December 16, 2009. ECF Nos. 36 & 45 at ¶ 35. Equifax responded by mailing Gagliardi a copy of his credit disclosure by means of an automated process. Id. at ¶ 36. Shortly thereafter, Gagliardi requested an additional credit disclosure from Equifax by completing a standard request form. Id. at ¶ 38. Equifax responded by informing Gagliardi that the requested credit disclosure had already been sent. ECF No. 36-1 at ¶ 53.

Gagliardi commenced this action against Equifax and Columbia Gas in the Court of Common Pleas of Allegheny County, Pennsylvania, on November 2, 2009, alleging violations of the FCRA, the UTPCPL, the Racketeer Influenced and Corrupt Organizations ("RICO") Act [18 U.S.C. § 1961 et seq.], and the tort law of Pennsylvania. ECF No. 1-1 at ¶¶ 45-182. The case was removed to this Court on December 7, 2009. ECF No. 1. The claims against Columbia Gas were dismissed on January 14, 2010, pursuant to the terms of a settlement agreement entered into by Gagliardi and Columbia Gas. ECF No. 9 at ¶ 2. The next day, Gagliardi filed an amended complaint against Equifax, reasserting many of the same claims that had been included within his original complaint. ECF No. 10 at ¶¶ 45-143. Equifax filed a motion for summary judgment on August 26, 2010. ECF No. 34. That motion is the subject of this memorandum opinion.

III. Standard of Review

Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED. R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party‟s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the nonmoving party‟s burden of proof. Celotex Corp., 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories in order to show that there is a genuine issue of material fact for trial. Id. at 324. The nonmoving party cannot defeat a well-supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

IV. Discussion

Gagliardi‟s federal claims arise under the RICO Act and the FCRA. ECF No. 10 at ¶¶ 68-130. He also asserts claims under Pennsylvania law for intentional and/or negligent infliction of emotional distress and an alleged violation of the UTPCPL. Id. at ¶¶ 45-53, 131-138. The Court has jurisdiction over Gagliardi‟s federal claims pursuant to 15 U.S.C. § 1681p, 18 U.S.C. § 1964 and 28 U.S.C. § 1331. Supplemental jurisdiction over his state claims is predicated on 28 U.S.C. § 1367(a). Venue is proper under 28 U.S.C. § 1391(b).

A. The RICO Claims

Section 1962(c) of the RICO Act provides that "[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise‟s affairs through a pattern of racketeering activity or collection of unlawful debt."

18 U.S.C. § 1962(c). As used in this statute, the term "person" "includes any individual or entity capable of holding a legal or beneficial interest in property." 18 U.S.C. § 1961(3). The term "enterprise" "includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). The crime of mail fraud, as defined by 18 U.S.C. § 1341, constitutes "racketeering activity" within the meaning of the RICO Act.*fn4 18 U.S.C. § 1961(1). Conspiracies to violate § 1962(c) are proscribed by § 1962(d). 18 U.S.C. § 1962(d). Pursuant to § 1964(c), "[a]ny person injured in his business or property by reason of a violation of [§ 1962] . . . may sue therefor in any appropriate United States district court . . . ." 18 U.S.C. § 1964(c).

As the United States Supreme Court explained in Sedima v. Imrex Co., Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), a violation of § 1962(c) consists of (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. A "pattern of racketeering activity" cannot be established without a minimum of "two acts of racketeering activity" within a period of ten years. 18 U.S.C. § 1961(5); H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 238, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)(observing that ยง 1961(5) concerns only the minimum number of predicates necessary to establish a pattern," and that "there is something to a RICO pattern beyond simply the number of predicate acts involved")(emphasis in original). In order for two or more predicate acts of racketeering activity to ...


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