The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Michael Raymond has sued his former spouse, Cecelia Raymond,
her attorneys, Joseph Mirabella, George Fredrick, Lynn Mirabella,
and John Kincaid, the law firm Mirabella & Kincaid, P.C.
(collectively, "Mirabella & Kincaid"), Frank Rabbito, and
Professional Claims Bureau, Inc., alleging that the defendants
violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681,
et seq., by illegally obtaining and using Michael Raymond's
credit report in connection with the Raymonds' divorce
proceedings. This case is before the Court on the Mirabella &
Kincaid defendants and Professional Claims Bureau's motions for
summary judgment. For the reasons stated below, the Court grants
Professional Claims Bureau's motion for summary judgment and
denies the Mirabella & Kincaid defendants' motion for summary
This case is the product of a highly contentious divorce
between Michael and Cecelia Raymond. In April 2001, Cecelia filed
for divorce in the Circuit Court of DuPage County, Illinois. She
retained Mirabella & Kincaid to represent her in the proceedings.
During the course of discovery, Cecelia turned over a box of
documents to her attorneys, which, according to the defendants,
included a five-page document that appears to be a portion of
Michael's credit report. As these motions do not involve Cecelia,
the Court need not delve into how she might have acquired the
report. Michael seems to suggest that the law firm knew about the
existence of the credit report prior to this time. Regardless of
the timing, it is undisputed that Mirabella & Kincaid possessed a
copy of the document. The partial report does not contain
Michael's name, a date, or any indication of what company issued
the report. See Pl's Ex. 14.
Michael contends that Mirabella & Kincaid used information
obtained from the report to issue deposition subpoenas in April
2002 to several third parties in the divorce matter, including
Circuit City and Homemaker's Furniture. Michael reasons that
defendants could not otherwise have known that he maintained
accounts with these companies, thus, they must have obtained this
knowledge from the credit report. In addition, Ben Raymond,
Cecelia and Michael's son, testified during a deposition that in
January or February 2002, he observed what appeared to be
Michael's credit report on his mother's dining room table and
that he overheard a telephone conversation between his mother
and, he believes, her attorney, during which his mother referred
to Michael's credit report. See Ben Raymond's Dep. at 14-16.
Mirabella & Kincaid maintain that the subpoenas they issued
were not based on information learned from Michael's credit
report and that the firm did not use the credit report in any manner. These defendants assert that they issued a subpoena
to Homemaker's Furniture because Cecelia told her attorneys that
Michael loved the store's furniture and sometimes purchased
furniture from the store. Similarly, they claim to have issued a
subpoena to Circuit City based on information from Cecelia that
Michael had recently purchased a large-screen television from the
Professional Claim Bureau's connection to this lawsuit is less
clear. PCB is a billing and collection agency based in New York.
In his complaint, Michael submits that on December 18, 2001,
Frank Rabbitto, a former employee of PCB, obtained a copy of
Michael's credit report from Experian without Michael's consent.
This contention is based on an October 23, 2003 Experian credit
report that lists an inquiry made on December 18, 2001 by someone
using PCB's access code. See Pl's Ex. 15. PCB's president
states that PCB never authorized any employee or agent to access
Michael's credit report; he acknowledges that Michael does not
have a collection account that is, or has ever been, managed or
accepted by PCB. Marcus Affid. ¶¶ 9-10. PCB denies that it ever
accessed Michael's credit report in connection with any business
or services being performed. Id. ¶ 11.
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
determining whether a genuine issue of material fact exists, the
Court must construe all facts and draw all reasonable and
justifiable inferences in favor of Michael, the non-moving party
on these motions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
The FCRA imposes civil liability on any person who willfully
fails to comply with any of FCRA's requirements.
15 U.S.C. § 1681n(a). Though Michael's complaint indicates that he seeks to
hold defendants liable for violations of § 1681q, his response
brief clarifies that he is suing for violations of § 1681b(f).
Reliance on § 1681q, a criminal liability statute, is
unnecessary, as the civil liability provisions now cover the act
of obtaining a consumer report without a permissible purpose.
See Phillips v. Grendahl, 312 F.3d 357, 364 (8th Cir. 2002).
Specifically, § 1681b(f) provides that "a person shall not use or
obtain a consumer report" unless it is obtained for an authorized
purpose. Id. Michael's failure to identify the applicable FCRA
section in his complaint is not fatal to his complaint, as his
allegations were sufficient to state a claim under § 1681b(f).
See id. at 364; Pl's Compl. ¶¶ 15, 23.
To establish liability under § 1681n(a), Michael must prove
that there was a consumer report, that defendants used or
obtained the report without a permissible statutory purpose, and
that the defendants willfully violated the statute. See
Phillips, 312 F.3d at 364; see also Hinton v. Trans Union LLC,
No. 03 C 2311, 2004 WL 1114744, at *2 (N.D. Ill. May 4, 2004).
1. Professional Claims Bureau's motion for summary judgment
PCB argues that it is entitled to summary judgment because
Michael has failed to produce any evidence showing that PCB
obtained a copy of his credit report, much less that it obtained
the report for an impermissible purpose. The Court agrees.
Michael speculates that the partial credit report at issue in
this case is the Experian credit report purportedly requested by
Rabbitto. But he has provided no evidence to support this belief.
The report does not contain any indication that it was issued by
Experian, nor does it appear to include a date that would tie it to the December 18, 2001 inquiry
made by someone at PCB. Moreover, Rick Haas, the custodian of
records at Experian testified that because the document is not a
full report, he could not ascertain whether the document is from
Experian or some other company. See Haas Dep. at 65, 75. Thus,
Michael has failed to provide evidence from which a jury could
infer a link between PCB and the document he claims was obtained
for unlawful purposes.
The only evidence Michael has provided that suggests a
connection between PCB and this case is the October 2003 Experian
report showing that PCB made a credit inquiry about him on
December 18, 2001. But Haas testified that this listing alone
does not reflect that PCB ever ...