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Beseke v. Equifax Information Services LLC

United States District Court, D. Minnesota

January 13, 2020

Kurt A. Beseke, Plaintiff,
v.
Equifax Information Services LLC Defendant.

          E. Michelle Drake, Esq., and John G. Albanese, Esq., Berger & Montague, PC; and John H. Goolsby, Esq., Goolsby Law Office, LLC, counsel for Plaintiff.

          Billie B. Pritchard, Esq., Meryl W. Roper, Esq., and Zachary Andrew McEntyre, Esq., King & Spalding LLP; and Christopher J. Haugen, Esq., Joseph W. Lawver, Esq., and Terri A. Running, Esq., Messerli & Kramer P.A., counsel for Defendant.

          ORDER

          DONOVAN W. FRANK, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Equifax Information Services LLC's (“Equifax”) Motion to Certify Interlocutory Appeal (Doc. No. 140) pursuant to 28 U.S.C. § 1292(b). Plaintiff Kurt A. Beseke (“Beseke”) opposes Equifax's motion.[1] (Doc. Nos. 150, 155.) For the reasons set forth below, the Court denies Equifax's motion.

         The factual background for the above-entitled matter is clearly and precisely set forth in the Court's November 22, 2019 Order and is incorporated by reference here. (See Doc. No. 138 (“November Order”).) The Court notes particular facts relevant to this Order below.[2]

         On October 11, 2018, Beseke sued Equifax on behalf of himself and two putative nationwide classes. (Doc. No. 1.) The Court bifurcated the case with discovery and motion practice on Beseke's individual claims to precede class certification discovery. (Doc. No. 22.) Beseke alleged on behalf of himself and a putative class that Equifax willfully and/or negligently violated the “obsolescence” provision of the Fair Credit Reporting Act (“FCRA”) pursuant to 15 U.S.C. § 1681c(a) by including information about his Chase Mortgage in one or more consumer reports after the period allowed by statute. (Doc. No. 32 (“Sec. Am. Compl.”) ¶¶ 66-70 (“Count I”); see also 15 U.S.C. § 1681c(a).) Beseke also alleged on behalf of himself and a putative class that Equifax willfully and/or negligently violated the “accuracy” provision of the FCRA pursuant to § 1681e(b) by failing to include a “Date of First Delinquency” in consumer reports. (Sec. Am. Compl. ¶¶ 71-75 (“Count II”); see also 15 U.S.C. § 1681e(b)). Finally, Beseke alleged on behalf of himself that Equifax willfully and/or negligently violated the “reinvestigation” provision of the FCRA pursuant to § 1681i by failing to conduct a reasonable reinvestigation when Beseke disputed the accuracy of information about his Chase Mortgage and by failing to modify his file thereafter. (Sec. Am. Compl. ¶¶ 76-80 (“Count III”); see also 15 U.S.C. § 1681i).

         On May 14, 2019, Beseke moved for summary judgment on Count I (Doc. No. 61) and Equifax moved for summary judgment on all counts (Doc. No. 76). On November 22, 2019, the Court granted in part Beseke's Motion for Partial Summary Judgment (Doc. No. 61) and denied Equifax's Motion for Summary Judgment (Doc. No. 76).[3] (November Order.) In the November Order, the Court found that Equifax negligently violated § 1681c(a)(4) of the FCRA pursuant to 15 U.S.C. § 1681, et seq.[4](See November Order.) The Court found that whether Equifax violated § 1681c(a)(4) willfully was a question of fact for the jury. (November Order at 32.) The Court denied Equifax's motion because it found that there were questions of material fact with respect to Counts II and III. (Id.)

         Equifax now moves to certify the November Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Beseke opposes the Motion. While Equifax does not clearly define the question it wishes to certify, the Court understands that Equifax seeks appellate review on whether it can be liable under § 1681c(a)(4) when it was not notified that Beseke's mortgage account was placed for collection.[5] (Doc. No. 141 (“Equifax Memo.”) at 1-2.)

         Section 1292(b) creates a narrow exception to the final judgment rule and allows district courts to certify orders for interlocutory appeal if certain criteria are satisfied and the district court determines that certification is appropriate. See 28 U.S.C. § 1292(b); see also TCF Banking and Sav., F.A. v. Arthur Young & Co., 697 F.Supp. 362, 366 (D. Minn. 1988). The statute provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

28 U.S.C. § 1292(b). Section 1292 is “to be used only in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation. It was not intended merely to provide review of difficult rulings in hard cases.” Union Cnty., Iowa v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008) (quotation omitted). Thus, a motion for certification for interlocutory appeal “must be granted sparingly, and the movant bears the heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted.” White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994) (noting that “[i]t has . . . long been the policy of the courts to discourage piece-meal appeals because most often such appeals result in additional burdens on both the court and the litigants”).

         Here, Equifax argues that its question satisfies the criteria for interlocutory appeal because Plaintiff's putative class claims hinge on its outcome, the scope of the second phase of litigation and eventual trial depend on the proper resolution of the issue, and the Court's conclusion conflicts with other court opinions and legal authority. (Equifax Memo. at 5, 7-16.) Beseke opposes Equifax's motion, arguing that it should be denied because there is no controlling question of law, appellate review will not materially advance the ultimate termination of litigation, and there is no substantial ground for difference of opinion. (Doc. No. 150 (“Beseke Opp.”) at 6-13.)

         Having reviewed the parties' submissions, the Court finds that Equifax has failed to demonstrate that the circumstances here warrant the extraordinary relief of interlocutory review. As a threshold matter, the Court finds that Equifax's framing of its question misconstrues the court's holding as an improper attempt to seek review of a ruling it does not agree with.

         The November Order addressed Equifax's argument that it was not liable under § 1681c(a)(4) because it was not properly notified that the account was placed in collection. The November Order did not find that a consumer reporting agency's knowledge of whether an account has been placed for collection was irrelevant to whether it violated § 1681c(a)(4); rather, the November Order found that Chase provided Equifax with all information required pursuant to the FCRA, and that the onus was on Equifax to use that information appropriately.[6] In short, the Court found that while Equifax had sufficient information to comply with ยง 1681c(a)(4) of the FCRA, Equifax ...


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