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Langston v. Rizza Chevrolet

November 24, 2008

LEONARD LANGSTON, SR., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
RIZZA CHEVROLET, INC., AN ILLINOIS CORPORATION, JOE RIZZA FORD, INC., AN ILLINOIS CORPORATION, AND RIZZA CADILLAC/BUICK/HUMMER, INC., AN ILLINOIS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Plaintiff Leonard Langston, Sr. brings this action against Defendants Rizza Chevrolet, Inc., Joe Rizza Ford, Inc., and Rizza Cadillac/Buick/Hummer, Inc., for alleged violations of the Fair Credit Reporting Act ("FRCA"), 15 U.S.C. § 1681 et seq. (Count I), and the Illinois Consumer Fraud and Deceptive Practices Act ("CFA"), 815 ILCS 505/2 et seq. (Count II). Defendant Rizza Chevrolet brings an action against third party Defendant Joyce Sledge, Plaintiff's sister, alleging common law fraud. Before the Court now are five outstanding motions: Defendant Sledge's Motion to Dismiss Rizza Chevrolet's Third Party Complaint; Defendants Rizza Cadillac/Buick/Hummer's and Joe Rizza Ford's Motion for Summary Judgment; [all] Defendants' Motion for Summary Judgment; Plaintiff's Motion for Summary Judgment; and Plaintiff's Motion for Class Certification.

For the reasons stated below, (1) the motion to dismiss [64] is DENIED, (2) summary judgment [94] is GRANTED for all Defendants on Count II, (3) summary judgment [79] is GRANTED on Counts I and II for Defendants Rizza Cadillac/Buick/Hummer and Joe Rizza Ford, (4) summary judgment [134] is DENIED on Count I, and (5) class certification [70] is DENIED.

I. JURISDICTION AND VENUE

Federal question jurisdiction exists under 27 U.S.C. § 1331 because Plaintiff asserts a claim under the FRCA, a federal statue. Jurisdiction also exists under 15 U.S.C. § 1681p and under 15 U.S.C. § 1691e. Supplemental jurisdiction exists for the state law claims pursuant to 28 U.S.C. § 1367. Venue in this district is proper pursuant to 28 U.S.C. § 1391(b) as the acts and transactions giving rise to this lawsuit occurred in the district and because Defendants can be found, have agents, and transact substantial business within this district, and the interests of justice require maintenance of this action in this district.

II.BACKGROUND

Plaintiff Leonard Langston, Sr., resides in Cook County, Illinois. Defendants Rizza Chevrolet, Inc., Joe Rizza Ford, Inc., and Rizza Cadillac/Buick/Hummer, Inc. are Illinois corporations doing business in Illinois, including Cook County.

On or about May 22, 2007, Joyce Sledge, Plaintiff's sister, visited Defendant Rizza Chevrolet. Pl.'s Local Rule 56.1 Statement of Undisputed Material Facts in Support of His Mot. for Summ. J. ("SOF") ¶ 9. Sledge spoke with Denise Beanland, an employee of Rizza Chevrolet, regarding the purchase of a new vehicle. SOF ¶ 10. With Sledge was her co-worker and friend, Robert Hunter. Def.'s Resp. to Pl.'s Local 56.1 Statement of Undisputed Material Facts ("Def.'s SOF") ¶ 1. On that day, Sledge filled out and signed a credit application authorizing Rizza Chevrolet to obtain her credit report. However, that credit report, once obtained by Beanland, showed that Sledge did not possess the requisite level of creditworthiness to secure financing with Rizza Chevrolet without a co-signer. SOF ¶ 11; Def.'s SOF ¶ 6. Sledge had filed for bankruptcy a few years prior. Def.'s SOF ¶ 2. Beanland told Sledge that if Sledge could find someone willing to act as her co-signer for the purchase of the vehicle, she should just "call her and come back" to Rizza Chevrolet. Def.'s SOF ¶ 8.

On or about May 26, 2007, Sledge returned to Rizza Chevrolet, this time speaking with employee Rocco Ruffolo because Beanland was occupied. SOF ¶ 12-13; Def.'s SOF ¶ 11. Ruffolo asked Sledge whether she had thought of someone who could co-sign for the vehicle. Sledge Dep. 23:4-8 (May 28, 2008). Sledge suggested her two brothers. Id. Sledge provided Ruffolo with personal information pertaining to Plaintiff, but not his Social Security number. SOF ¶ 16-17. It was Ruffolo's practice to enter a consumer's information into the computer that was connected with a credit reporting agency and submit a request to obtain a consumer credit report without the consumer's Social Security number. SOF ¶ 26-27. Using Rizza Chevrolet's credit reseller's software, Ruffolo obtained Plaintiff's consumer credit report. SOF ¶ 18-19. Ruffolo was able to access Plaintiff's credit report without his Social Security number due to a quirk of the software, which permitted access to credit reports "as long as [the person accessing the report] [entered] nine digits for a Social." SOF ¶ 29; Ruffolo Dep. 21:20-22:7 (June 3, 2008).

Defendants did not have nor attempt to secure a signed credit application or any other form of permission from Plaintiff to access to his consumer credit report. SOF ¶ 23. Ruffolo testified, and Plaintiff disputes, that Sledge had represented to him that she had obtained Plaintiff's consent to access his credit report, and that he relied on this representation. Ruffolo Dep. 21:23-22:2, 24:3-6. Ruffolo told Sledge that Plaintiff's credit report was sufficient and that Plaintiff could be a co-signer for the purchase of the new vehicle. SOF ¶ 20; Def.'s SOF ¶ 23.

Ruffolo told Sledge that Plaintiff would have to come back to sign all the paperwork to finalize the purchase. Def.'s SOF ¶ 24. Ruffolo testified that Sledge told him she was authorized by Plaintiff to sign for the purchase on Plaintiff's behalf, but Ruffolo refused to go forward with the sale unless Sledge brought Plaintiff to the dealership. Ruffolo Dep. 18:13-22. Sledge then left the dealership. Def.'s SOF ¶ 26. Plaintiff was not present during this transaction. SOF ¶ 21.

Shortly after Sledge's second visit to Rizza Chevrolet, Plaintiff was informed by a letter from the credit reporting agency that his credit report had been accessed. Def.'s SOF ¶ 28. Plaintiff visited Rizza Chevrolet to complain that his credit report had been accessed, and Rizza Chevrolet then contacted the credit reporting agencies by letter to request that the inquiry by Rizza Chevrolet be removed from Plaintiff's credit report. Def.'s SOF ¶ 29-30. Plaintiff has failed to allege, plead, or introduce evidence of any actual damages attributable to Defendants' conduct. See Section IV.b, below.

At all relevant times, Defendants did not have any written policies or procedures regarding obtaining consumer credit reports. SOF ¶ 25. John DaMore, the general manager of Rizza Chevrolet, testified that Defendant Rizza Chevrolet had an "internal" (which the Court understands to mean unwritten) policy requiring a consumer to give permission before Rizza Chevrolet or its employees access that consumer's credit information. DaMore Dep. 40:21-41:3. Defendants contend that Ruffolo's actions contravened this internal policy. Def.'s SOF ¶ 22. Since accessing Plaintiff's credit report, Rizza Chevrolet has put in place procedures to limit access to consumer credit reports to managers only.*fn1 Def.'s SOF ¶ 31.

This relatively simple series of events has triggered an avalanche of litigation. First, on February 28, 2008, Rizza Chevrolet filed a third party complaint against Sledge, seeking damages resulting from her allegedly fraudulent behavior. Sledge moved on April 14, 2008, to dismiss the third party complaint. Second, on May 7, 2008, Defendants Rizza Cadillac/Buick/Hummer and Joe Rizza Ford filed for summary judgment on both of Plaintiff's claims, arguing that Plaintiff failed to present evidence sufficient to create a genuine issue of material fact as to whether those defendants were involved in the alleged violations of the FCRA and the CFA. Third, on May 16, 2008, all Defendants filed a motion for summary judgment on both of Plaintiff's claims. Fourth, on July 24, 2008, Plaintiff filed a motion for summary judgment on both of his claims. Finally, Plaintiff filed a motion for class certification on April 21, 2008. Plaintiff filed a motion to amend his motion for class certification, which was denied by the Court on July 31, 2008. The remaining motions have not been resolved, and are the subject of this memorandum opinion and order.

III. LEGAL STANDARD

On a motion to dismiss for failure to state a claim upon which relief can be granted, the district court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Fed. R. Civ. P. 12(b)(6). The purpose of a 12(b)(6) motion is to decide the adequacy of the complaint, not to determine the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). A complaint should not be dismissed "unless it appears beyond all doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Summary judgment is appropriate if "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts (a "scintilla of evidence" is insufficient) demonstrating that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 252; see also Celotex, 477 U.S. at 324. When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Schuster v. Lucent Tech., Inc., 327 F.3d 569, 573 (7th Cir. 2003).

IV. ANALYSIS

a. Defendant Sledge's Motion ...


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