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DEL AMORA v. METRO FORD SALES AND SERVICE INC.
June 25, 2002
MIKE DEL AMORA, PLAINTIFF,
METRO FORD SALES AND SERVICE, INC., DEFENDANT.
The opinion of the court was delivered by: Matthew F. Kennelly, District Judge.
MEMORANDUM OPINION AND ORDER
In early 2001, Plaintiff Mike Del Amora was in the process of getting a
divorce. His estranged wife's brother, Jesus Roman, worked as a salesman
for Defendant Metro Ford Sales and Service, Inc. In that position, Roman
was authorized to obtain and review credit reports in connection with
making car sales. Roman knew that he was only allowed to obtain the
credit reports of customers who were interested in purchasing vehicles
from Metro Ford and who gave Roman permission to check their credit
On January 31 and March 27, 2001, Roman used his position at Metro Ford
to obtain credit reports on Del Amora. Del Amora was not interested in
buying a car from Metro Ford and did not give Roman permission to check
his credit. Roman was motivated solely by personal reasons related to
his sister's separation, and not by any desire to further Metro Ford's
business. The parties acknowledge that Roman obtained both credit
reports without Metro Ford's knowledge or consent. When Del Amora learned
that Roman had obtained his credit report, he filed this lawsuit alleging
that Metro Ford willfully violated the Fair Credit Reporting Act
("FCRA"), 15 U.S.C. § 1681b(f) & 1681(q).
Metro Ford now seeks summary judgment on the grounds that it cannot be
vicariously liable for Roman's willful misconduct, relying on Judge James
Moran's decision in Kodrick v. Ferguson, 54 F. Supp.2d 788 (N.D.Ill.
1999). Del Amora initially failed to respond to Metro Ford's motion,
thereby admitting all the facts as set forth by the company in its
summary judgment submission. Local Rule 56.1(b)(3)(B); Hudson v. West
Harvey/Dixmoor Sch. Dist. No. 147, 168 F. Supp.2d 851, 852 (N.D.Ill.
2001). At our instruction that Del Amora address Metro Ford's legal
arguments in light of a conflicting Circuit-level decision, Jones v.
Federated Fin. Reserve Corp., 144 F.3d 961 (6th Cir. 1998), he filed a
cross-motion for summary judgment seeking to hold Metro Ford liable for
Roman's actions pursuant to that case.
The FCRA prohibits any person from using or obtaining a consumer report
for other than permissible purposes. 15 U.S.C. § 1681b(f). Any
person who willfully or negligently fails to comply with any requirement
of the Act with respect to any consumer is liable to that consumer for
actual damages, attorneys' fees and costs. 15 U.S.C. § 1681no.
Willful violations may also result in punitive damages.
15 U.S.C. § 1681n. In addition, any person who knowingly obtains a
credit report under false pretenses shall be fined, imprisoned or both.
15 U.S.C. § 1681q.
In this case, the parties agree that Roman, a non-supervisory
employee, obtained Del Amora's credit reports for an improper purpose
under false pretenses in violation of these sections. The only question
is whether Metro Ford can be vicariously liable for Roman's willful
misconduct. Metro Ford argues that Del Amora should not be able to
proceed on this theory because he failed to allege it in his complaint.
The Court disagrees. The Federal Rules of Civil Procedure do not require
a plaintiff to plead a legal theory. Kirksey v. R.J. Reynolds Tobacco
Co., 168 F.3d 1039, 1041 (7th Cir. 1999). The complaint plainly
says that Metro Ford violated the FCRA. Fairly read, this allegation
encompasses the possibility of a theory of vicarious liability: corporations
necessarily act through their agents. Shager v. Upjohn Co., 913 F.2d 398,
404 (7th Cir. 1990). Metro Ford is in no way unfairly prejudiced or
surprised by Del Amora's argument; indeed, it affirmatively raised the
issue in its summary judgment motion. (Def. Memo, p. 4) (". . . Metro
Ford cannot be held liable for Jesus Roman's independent actions in this
case"). On these facts, it would be inappropriate to preclude Del Amora
from raising the argument. See Barbian v. Panagis, 694 F.2d 476, 487 n.
9 (7th Cir. 1982) (the court must construe a complaint liberally on a
motion for summary judgment).
A. Vicarious Liability Under the FCRA
The FCRA does not specifically provide for vicarious liability. Del
Amora argues that we should follow the lead of Jones and fill in this
statutory gap with common law agency principles. Metro Ford urges us
instead to follow Kodrick and leave such gap-filling to Congress.
Although neither case is binding on this Court, we find it useful to
review both here.
In Jones, the plaintiff's ex-husband pressured his friend Janice
Caylor, an employee of the defendant, to procure the plaintiff's credit
report for personal reasons related to his divorce. Caylor was
authorized to request credit reports from clerks who operated the
company's credit report request system, as long as she supplied a
customer name, address and social security number. There was no evidence
suggesting that any other employee knew of Caylor's improper request on
behalf of the plaintiff. 144 F.3d at 962-63.
On appeal from verdicts in favor of the defendant, the Sixth Circuit
considered only whether a principal may be vicariously liable for an
agent's tortious conduct under the FCRA based upon an apparent authority
theory. Id. at 965. After concluding that such a theory is compatible
with the Act's purposes of protecting consumers from improper use of
credit reports and deterring violations, the court found that the company
could be liable for Caylor's actions if it "created an appearance of
authority that caused the credit reporting agency reasonably and
prudently to believe that Caylor had made a proper request for a
permissible purpose, and there was reliance on Caylor's apparent
authority." Id. at 966. The court viewed this theory as a basis for
finding either a willful or negligent violation on the part of the
In Kodrick, defendant Cheryl Ferguson worked for co-defendant Accubanc
Mortgage as a senior loan officer. In that position, Ferguson was
authorized to obtain and review confidential credit histories of
Accubanc's customers. On two occasions, Ferguson used her authority to
obtain the plaintiff's credit report, ostensibly to process a real estate
loan. However, the plaintiff had not applied for a loan, nor did she
have any business relationship with Accubanc. Rather, Ferguson wanted
information on the plaintiff because the plaintiff was married to
Ferguson's ex-husband. Ferguson acted without supervisory approval and
did not have a high rank sufficient to deem her Accubanc's alter ego.
54 F. Supp.2d at 789.
The court rejected the theory of vicarious liability for subscribers
with rogue employees on the grounds that the FCRA is silent on the issue
and places the duty to prevent impermissible uses of credit reports not
on subscribers, but on consumer reporting agencies and individuals who
knowingly violate the law. Id. at 794. However, the court ultimately
holding to the particular scenario at issue in the case:
We hold only that a subscriber is not liable under
§ 1681n or § 1681o for its employee's
unauthorized willful violations of the Fair Credit
Reporting Act, where the employee of the subscriber
obtained the report under false pretenses and for
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