Ramones v. Experian Information Solutions, LLC

United States District Court

for the

Southern District of Florida

Francisco Javier Perez Ramones, )

Plaintiff, )

)

v. ) Civil Action No. 19-62949-Civ-Scola

)

Experian Information Solutions, )

LLC and others, Defendants. )

Omnibus Order on ARR’s Motion to Dismiss and the Parties’ Motions in

Limine

This matter is before the Court upon Defendant AR Resources, Inc.’s

motion to dismiss for lack of standing (ECF No. 120), as well the Defendant’s

renewed motion in limine (ECF No. 115) and the Plaintiff’s motion in limine

(ECF No. 114). As to the motion to dismiss, the Plaintiff responded (ECF

No. 127), and the Defendant replied (ECF No. 134). The Defendant’s renewed

motion in limine was also fully briefed; the Plaintiff filed a response on July 28,

2021 (ECF No. 116) and the Defendant submitted a reply on August 4, 2021

(ECF No. 118). As to the Plaintiff’s motion in limine (ECF No. 114), the

Defendant did not respond, despite having the opportunity to do so. Having

considered the parties’ briefing, the record, and the relevant legal authorities,

the Court denies the Defendant’s motion to dismiss (ECF No. 120), grants the

Plaintiff’s motion in limine (ECF No. 114), and grants in part and denies in

part the Defendant’s renewed motion in limine (ECF No. 115).

1. Motion to Dismiss

A. Background

The parties are familiar with the facts of the case. As relevant here, the

Plaintiff, Francisco Javier Perez Ramones, alleges that the Defendant,1 AR

Resources, Inc. (“ARR”), violated the Fair Credit Reporting Act (“FCRA”), 15

U.S.C. § 1681, et seq., for reporting certain debts to Credit Reporting Agencies

(“CRAs”) and representing that those debts belonged to Ramones. (ECF No. 83

at ¶ 45.) However, the debts at issue belonged to Ramones’s father, Francisco

1 The Plaintiff settled with Defendants Trans Union, LLC (ECF No. 40) and Experian

Information Solutions, LLC (ECF No. 45).

Perez Gonzalez. (Id. at ¶¶ 18, 33.) Ramones disputed the inaccurate

information with CRAs. (Id. at ¶¶ 22, 37.)

ARR, a collection agency, received notice of Ramones’s disputes and

investigated. (Id. at ¶¶ 25–26, 40–41.) ARR transmitted the results of its

investigation back to the CRAs, which updated the Plaintiff’s accounts at issue

using the information provided by ARR. (Id. at ¶¶ 26–27, 41–42.) The

inaccurate reports have been reviewed by third parties and have caused harm

to the Plaintiff. (Id. at ¶¶ 19–21, 34–36, 46.)

B. Legal Standard

ARR raises a challenge to subject-matter jurisdiction, bringing a facial

attack on the Amended Complaint and alleging that there is no jurisdiction.

(ECF No. 120 at 1.) Facial challenges to subject-matter jurisdiction are based

solely on the allegations in a complaint. Carmichael v. Kellogg, Brown & Root

Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). Thus, courts will “look at

the face of the complaint and determine whether the plaintiff has alleged a

sufficient basis for subject matter jurisdiction.” Scelta v. Delicatssen Support

Servs., Inc., No. 98–2578–CIV–T–17B, 1999 WL 1053121, at *4 (M.D. Fla. Oct.

7, 1999) (citations omitted).

C. Analysis

ARR contends that Ramones has not established Article III standing.

Standing is the sine qua non of federal courts—federal courts only have

jurisdiction where there is a “case” or “controversy” within the meaning of

Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–60 (1992).

Establishing standing is of such importance that it can be raised at any time

by any party—even by the court on its own. See Arbaugh v. Y&H Corp., 546

U.S. 500, 506 (2006) (“The objection that a federal court lacks subject-matter

jurisdiction . . . may be raised by a party, or by a court on its own initiative, at

any stage in the litigation[.]”); Trichell v. Midland Credit Mgmt., Inc., 964 F.3d

990, 996 (11th Cir. 2020).

To establish standing, a plaintiff must show an “injury in fact” (1) that is

“concrete, particularized, and actual and imminent”; (2) that is fairly traceable

to the defendant’s conduct; and (3) that is likely to be redressed by a court. See

Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at

560–61). ARR only challenges whether Ramones has adequately shown a

concrete injury sufficient to confer standing. (ECF No. 120 at 8.)

ARR’s motion falls short. ARR seeks to require Ramones to adequately

allege every element of defamation (a claim that Ramones hasn’t brought, no

less) in order to establish standing. (ECF No. 120 at 8.) In other words, ARR

argues that bringing a claim under the FCRA requires Ramones to “state[] a

claim” for defamation under Rule 8(a)(2), which requires alleging “a plausible

claim that every element of the cause of action is satisfied.” Sargeant v. Maroil

Trading Inc., No. 17-81070-CIV, 2018 WL 3031841, at *8 (S.D. Fla. May 30,

2018) (Reinhart, Mag. J.).

But in so arguing, ARR conflates the requirements of showing a concrete

injury for standing with Rule 8(a)(2)’s requirements for stating a claim. These

are separate inquiries. For purposes of standing, a plaintiff must “plausibly

and clearly allege a concrete injury.” Muransky v. Godiva Chocolatier, Inc., 979

F.3d 917, 924 (11th Cir. 2020). And to allege a concrete injury, a plaintiff must

“clearly and specifically set forth facts”; “[m]ere conclusory statements do not

suffice.” See Muransky, 979 F.3d at 924–25; Tsao v. Captiva MVP Rest.

Partners, LLC, 986 F.3d 1332, 1337–38 (11th Cir. 2021) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)).

This standard is different than that set out by the Supreme Court in

Twombly and Iqbal, which set forth the rules to “state[] a claim” and “show[]”

an entitlement to relief—in other words, to survive a motion to dismiss under

Rule 12(b)(6). See Fed. R. Civ. P. 8(a)(2); see also Iqbal, 556 U.S. at 678–79; Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). The Eleventh Circuit in

Muransky pointed to Twombly and Iqbal only in so far as those decisions define

what it means to “plausibly . . . allege.”2 Muransky, 979 F.3d at 924 (citing

Iqbal, 556 U.S. at 678–79 and Twombly, 550 U.S. at 555–56). Those citations

do not import Rule 8(a)(2)’s requirements into an Article III standing analysis.

Otherwise, courts would be required to sua sponte conduct an inquiry to

determine whether Rule 8(a)(2) has been met and whether a plaintiff pled every

element of each cause of action, even if without a motion brought under

Rule 12(b)(6).

Turning to the facts of this case, ARR relies on the Supreme Court’s

recent opinion in TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021).

Specifically, ARR argues that because Ramones has not pled, as a matter of

law, the elements of defamation (a “traditionally recognized” harm with a “close

2 ARR also points to Trichell for support. (ECF No. 134 at 5.) However, the court in Trichell did

not hold that the failure to allege every element of a common-law tort—the harm of which bears

a “close relationship” to the harm actually asserted—was fatal to establishing standing. Rather,

the court held that the mere allegation that certain collection letters were misleading, without

more (such as concomitant allegations of the “bedrock elements” of reliance or damages) failed

to allege a sufficient “injury in fact” under the Fair Debt Collection Practices Act. Trichell, 964

F.3d at 998; see also Susinno v. Work Out World Inc., 862 F.3d 346, 350–51 (3d Cir. 2017)

(holding that a “close relationship exist[s] even [if] the conduct alleged would not have given

rise to a cause of action under common law”).

relationship” to the harm pled under the FCRA), Ramones can have no

standing. (ECF No. 120 at 7.) Specifically, ARR argues that Ramones has not

pled that there was publication (an element of defamation), as the publication

here was allegedly invited. (ECF No. 120 at 8); see also Litman v. Mass. Mut.

Life Ins. Co., 739 F.2d 1549, 1560 (11th Cir. 1984) (noting that the issue of

“invited defamation” is treated as a failure to allege publication, an element of

slander).

Of course, Ramones has not brought a claim for defamation. Nor did ARR

raise the issue of invited publication prior to responding to the Amended

Complaint. In any event, ARR’s argument is a red herring. As explained above,

a plaintiff need not plead every element of a cause of action to establish a

concrete injury. See Muransky, 979 F.3d at 931 (warning against “hammering

square causes of action into round torts”). To adequately allege a concrete

injury, a plaintiff need only “plausibly and clearly allege a concrete injury.”

Muransky, 979 F.3d at 924. A plaintiff need not “state[] a claim” or “show[]”

entitlement to relief under Twombly and Iqbal simply to establish standing.

The Supreme Court in Ramirez did not change this rule. Nor did Ramirez

hold that an FCRA plaintiff must adequately allege every element of a tort not-

pled just because the harm “traditionally recognized” in that tort bears a “close

relationship” to the actually-asserted harm. See Ramirez, 141 S.Ct. at 2204.

Indeed, the Court did not require the harm alleged to be an “exact duplicate,”

so the elements need not be an exact duplicate either. See id. at 2209.

In all, this is an easy matter. The Supreme Court in Ramirez already

recognized that the harm claimed here is sufficient for standing. The Court

held that it had “no trouble” finding that plaintiffs pled a concrete injury when

they alleged that a CRA provided third parties with misleading information. See

Ramirez, 141 S.Ct. at 2209. The Court held that such harm was adequate for

standing because the alleged harm bore a “sufficiently close relationship” to a

“traditionally recognized” harm, namely the injury arising from a defamatory

statement. Id. Similarly, Ramones alleged that he submitted a dispute, which

was then investigated by ARR, and that ARR submitted the results of its

investigation, which contained false information, to third parties. (See ECF

No. 83 at ¶¶ 24–27, 39–42, 45.) This, as recognized in Ramirez, is a concrete

harm. See Ramirez, 141 S.Ct. at 2209.

The Court notes that ARR’s proposed rule to establish standing would

render the Section 1681s-2(b) of the FCRA inaccessible to swaths of individuals

who dispute incorrect information and cause an investigation into that

inaccuracy. Such a rule would defeat the purpose of the FCRA and render a

concrete harm—the provision of false or misleading credit information to third

parties—no longer actionable.

For the reasons above, the Court denies the Defendant’s motion to

dismiss. (ECF No. 120.)

2. Plaintiff’s Motion in Limine

On July 13, 2021, the Plaintiff filed the motion in limine (ECF No. 114),

seeking to exclude argument and evidence as to: (I) any witness’s residential or

immigration status; (II) any settlements, lawsuits, or claims; (III) the

Defendant’s putative affirmative defense concerning bona fide error; (IV) any

attorney’s fees or costs; (V) any witness who lacks personal knowledge of the

facts testified to; and (VI) any opinion testimony by a witness who has not been

designated and admitted as an expert. (ECF No. 114.) The Defendant only

objects to the third motion in limine. However, the Defendant did not file a

response to the motion. The Court grants the motion in limine. (ECF No. 114.)

The parties all agree to exclude argument and evidence as to motions in

limine I, II, IV, V, and VI, and therefore those are granted. Additionally, the

Court grants motion in limine III; the “bona fide” defense does not appear in

ARR’s answer (ECF No. 86). See Stone Tech. (HK) Co., Ltd. v. GlobalGeeks, Inc.,

No. 20-cv-23251-BLOOM/Louis, 2021 WL 86776, at *8 n.10 (S.D. Fla. Jan. 11,

2021) (Bloom, J.) (“[W]here a party files an amended pleading, the original

pleading is no longer the operative pleading in the case.”). In any event, the

“bona fide” defense is not applicable to claims under the FCRA, and therefore

the Court will not permit such an argument. See Robinson v. Nat’l Credit Sys.,

Inc., No. 2:17-cv-386-FTM-99CM, 2018 WL 1877462, at *4 (M.D. Fla. Apr. 19,

2018) (“The bona fide defense is available under the FDCPA and the FCCPA,

but not under the FCRA.”).

In total, the Court grants the Plaintiff’s motion in limine. (ECF No. 114.)

3. Defendant’s Motion in Limine

On July 13, 2021, the Defendant filed a renewed motion in limine (ECF

No. 115), seeking to exclude argument and evidence as to: (I) credit reports not

produced during discovery; (II) credit reports and other documents received

from CRAs if used for hearsay purposes; (III) damages suffered by the Plaintiff

regarding his credit rating, credit score, or credit reputation; (IV) undisclosed

witnesses; (V) documents received from third parties if used for hearsay

purposes; (VI) damages related to the Plaintiff’s alleged emotional distress,

physical distress, and medical expenses; (VII) testimony intended to elicit

prejudice, sympathy, or excessive emotion from the jury; and (VIII) testimony

asking the jury to put itself in the place of the Plaintiff. (ECF No. 115.) The

Plaintiff filed a response, objecting to all but the last motion in limine. (ECF

No. 116.) The Defendant filed a reply in support of its motion. (ECF No. 118.)

The Court grants in part and denies in part the Motion. (ECF No. 115.)

As the parties agree as to motion in limine VIII, the Court grants motion

in limine VIII. Moreover, ARR withdrew motion in limine VII; therefore, the

Court will deny without prejudice motion in limine VII. The Court will turn to

the rest in turn.

A. Legal Standard

A motion in limine is made before a trial has begun for the purpose of

excluding or including certain evidence. See 20 Am. Jur. Trials 441 § 2 (1973).

In limine rulings are not binding on a trial court and remain subject to

reconsideration during trial. Stewart v. Hooters of Am., Inc., 04-40-T-17, 2007

WL 1752873, at *1 (M.D. Fla. June 18, 2007). The purpose of a motion in

limine is to give the trial judge notice of the movant’s position in order to avoid

the introduction of damaging evidence, which may irretrievably affect the

fairness of the trial. Id. Courts only have the power to exclude evidence in

limine if that evidence is “clearly inadmissible on all potential grounds.” Id.

B. Motion in Limine I

The Court denies without prejudice motion in limine I. ARR seeks to

exclude all credit reports that were not produced, on the basis that those credit

reports are not self-authenticating and that Ramones would need a witness

from a CRA to establish that the reports fall within the business-records

exception to the hearsay rule. (ECF No. 115 at 4–5.) However, the Court will

not forbid any and every use of such credit reports before it is known for what

purpose such reports will be used. See Powers v. Target Corp., No. 19-cv-

60922-BLOOM/Valle, 2020 WL 1986968, at *7 (S.D. Fla. Apr. 27, 2020). The

Plaintiff has represented that it does not know for what purpose it may use

credit reports that were not produced. (ECF No. 116 at 5.) Therefore, Gannon is

not applicable, as the plaintiff in Gannon explicitly sought to admit credit

reports using the business-records exception. See Gannon v. IC Sys., Inc., No.

09-60302-CIV, 2009 WL 3199190, at *1–2 (S.D. Fla. Sept. 25, 2009) (Cohn, J.).

If Ramones attempts to use a credit report that has not been authenticated for

a purpose that would require an exception to the hearsay rule, ARR can raise

this objection at that time. See Zurich Am. Ins. Co. by Md. Cas. Co. v. European

Tile and Floors, Inc., No. 8:16-cv-729-T-AAS, 2017 WL 3582744, at *3 (M.D.

Fla. Aug. 18, 2017) (“Rather than explore every possible hypothetical in a

preemptive attempt to address admissibility, the Court will be in a better

position to address hearsay challenges at trial.”).

C. Motion in Limine II

The Court denies without prejudice motion in limine II. ARR again asks

the Court to exclude evidence—namely, credit reports or other documents

received from third parties—that could be used for hearsay purposes. (ECF

No. 115 at 6.) However, the Plaintiff has represented that he will not use these

documents, to the extent known, to prove the truth of the matter asserted.

(ECF No. 116 at 6.) If an authenticated document is used for a non-hearsay

purpose, there is no need for a records custodian to testify regarding the

procedures used to create the record, as the business-records exception to the

hearsay rule would not be implicated. If Ramones attempts to use a document

in a manner that would require authentication or the testimony of a custodian,

ARR can raise this argument at that time. See Zurich Am. Ins., 2017 WL

3582744, at *3.

D. Motion in Limine III

The Court denies without prejudice motion in limine III. ARR argues

that evidence or testimony regarding Ramones’s damages to his credit rating,

credit score, or credit reputation (such as that he was denied credit or forced to

pay a higher rate of interest) is irrelevant and hearsay. (ECF No. 115 at 7–9.)

First, the Court finds that this potential evidence is relevant, as Ramones can

recover actual damages under the FCRA. See Gannon, 2009 WL 3199190,

at *2; Fed. R. Evid. 401. And the Court will not foreclose Ramones from

introducing testimony regarding damages on the theory that certain testimony

could be used in a manner that would implicate the rules against hearsay. See

Zurich Am. Ins., 2017 WL 3582744, at *3. Ramones represented that he intends

to offer testimony regarding damages to his credit rating for a non-hearsay

purpose, such as to show his state of mind when he received adverse action

letters and the effect of such letters on him. (ECF No. 116 at 7.) If Ramones

introduces testimony that constitutes hearsay, then ARR can raise this

argument at that time.

E. Motion in Limine IV

The Court denies without prejudice motion in limine IV. ARR argues for

the exclusion of any evidence from undisclosed witnesses or documents

pursuant to Federal Rules of Civil Procedure 26(a) and 37(c). (ECF No. 115

at 9–11.) However, “[m]otions in limine should be limited to specific pieces of

evidence and not serve as reinforcement regarding the various rules governing

trial[.]” Powers, 2020 WL 1986968, at *7. If Ramones attempts to introduce

evidence from an undisclosed witness or documents, then ARR can renew this

motion, and the parties would have the benefit of a more specific objection in

order to determine whether the undisclosed witnesses or documents fell within

Rule 26(a)(1)(A) and whether the failure to disclose, if any, was substantially

justified or harmless under Rule 37(c).

F. Motion in Limine V

The Court denies without prejudice motion in limine V. ARR argues

that Ramones will utilize documents received from third parties Phoenix

Financial Services, FinWise Bank c/o Lending Point LLC, and Westside

Regional Medical Center, which ARR believes will implicate the hearsay-within-

hearsay rule. (ECF No. 115 at 11–12.) As noted above, “[m]otions in limine

should be limited to specific pieces of evidence and not serve as reinforcement

regarding the various rules governing trial[.]” Powers, 2020 WL 1986968, at *7.

Documents produced by the third parties above may be subject to the hearsay

rule, although Ramones may use these documents for a non-hearsay purpose,

as he argues. “Rather than explore every possible hypothetical in a preemptive

attempt to address admissibility, the Court will be in a better position to

address hearsay challenges at trial.” Zurich Am. Ins., 2017 WL 3582744, at *3.

G. Motion in Limine VI

The Court denies without prejudice motion in limine VI. The parties

dispute the evidentiary requirement necessary to make a claim for emotional

distress damages under the FCRA. (ECF No. 115 at 12–16; ECF No. 116 at 10–

13.) ARR argues that testimony regarding emotional damages should be

excluded because Ramones has not put forward a medical expert. (ECF

No. 115 at 12.) Ramones argues that plaintiffs may recover emotional-distress

damages under the FCRA and that expert testimony is not required. (ECF

No. 116 at 12–13.)

The Court holds that a plaintiff’s testimony alone can be sufficient to

claim emotional-distress damages under the FCRA and that an expert is not

required. The Eleventh Circuit’s decision in Marchisio is instructive, if not

determinative. See Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288

(11th Cir. 2019). In Marchisio, the plaintiff sought to recover, in part,

emotional-distress damages that resulted from the defendant’s inaccurate

reporting of the plaintiff’s debt. Id. at 1295–96. This had been the second time

that the defendant inaccurately reported the plaintiff’s debt—the first instance

resulted in an earlier suit and settlement. Id. at 1295. The Eleventh Circuit

reversed a grant of summary judgment in favor of the defendant, holding that

the plaintiff had adequately established emotional distress as it related to the

first inaccurate reporting and remanding to the district court to determine

whether the plaintiff also established an “exacerbatlion]” of his emotional

distress following the second inaccurate reporting. Jd. at 1304. In particular,

the court recognized that the plaintiff had established his emotional distress as

to the first incident based only on the plaintiffs testimony. Jd. While not as

explicit as some may like, Marchisio “necessarily concluded that [a plaintiffs

testimony] of emotional distress was sufficient[.]” Otwell v. Home Point Fin.

Corp., No. 4:19-cv-01120-ACA, 2021 WL 2587964, at *3 (N.D. Ala. Apr. 23,

2021).

Therefore, the Plaintiff need not provide expert testimony or abundant

corroborating evidence of emotional distress. The Plaintiff's testimony alone can

be sufficient, and therefore the Court denies without prejudice motion in

limine VI.

4. Conclusion

For the reasons stated above, the Court denies the Defendant’s motion

to dismiss (ECF No. 120), grants the Plaintiff's motion in limine (ECF

No. 114), and grants in part and denies in part the Defendant’s renewed

motion in limine (ECF No. 115).

Done and ordered, at Miami, Florida, on September 3, 2021.

foe N. fd Jr.

United States District Judge