United States District Court, D. Minnesota
Kurt A. Beseke, Plaintiff,
Equifax Information Services LLC Defendant.
Michelle Drake, Esq., and John G. Albanese, Esq., Berger
& Montague, PC; and John H. Goolsby, Esq., Goolsby Law
Office, LLC, counsel for Plaintiff.
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.
DONOVAN W. FRANK, UNITED STATES DISTRICT JUDGE.
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. (Doc. Nos. 150, 155.) For the reasons set
forth below, the Court denies Equifax's motion.
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.
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).
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). (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.(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.)
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. (Doc. No. 141 (“Equifax
Memo.”) at 1-2.)
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
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
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.)
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
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. In short, the Court found that while
Equifax had sufficient information to comply with §
1681c(a)(4) of the FCRA, Equifax ...