SCOTT v. FULL HOUSE MARKETING, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK PEREZ SCOTT, )

)

Plaintiff, )

)

v. ) 1:21-cv-242

)

FULL HOUSE MARKETING, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Derrick Perez Scott (“Plaintiff”) alleges one claim against

Full House Marketing, Inc. (“Defendant”) for willful violation

of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.

§ 1681b(b)(3)(A), or, in the alternative, negligent violation of

15 U.S.C. § 1681b(b)(3)(A). (Doc. 23.) Defendant moves for

summary judgment, (Doc. 51), and moves for Rule 11 sanctions

against Plaintiff and his attorneys, (Doc. 53). Plaintiff moves

for partial summary judgment on his claim that Defendant

negligently violated the FCRA. (Doc. 55.) These motions,

(Docs. 51, 53, 55), are ripe for disposition. For the reasons

set forth herein, this court will deny both motions for summary

judgment and Defendant’s motion for sanctions.

I. FACTUAL BACKGROUND

When considering cross motions for summary judgment, “the

court must take care to resolve all factual disputes and any

competing, rational inferences in the light most favorable to

the party opposing that motion.” Rossignol v. Voorhaar, 316 F.3d

516, 523 (4th Cir. 2003) (citation and internal quotation marks

omitted). The following facts, except where noted, are

undisputed.

Defendant is an employment agency that offers marketing,

training, and staffing support for residential property

management organizations. (Ex. 1, Declaration of Rebecca Rosario

(“Rosario Decl.”) (Doc. 51-1) ¶ 3.) 1 As part of its hiring

process, Defendant uses background checks, or “consumer

reports.” (See id. ¶ 14.)

Employers who use consumer reports for employment purposes

must comply with several requirements under the Fair Credit

Reporting Act (“FCRA”). 15 U.S.C. §§ 1681a, 1681b. Relevant to

this case, an employer must comply with the pre-adverse action

notice requirement. 15 U.S.C. § 1681b(b)(3). “[B]efore taking

any adverse action based in whole or in part on the report,” an

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

employer must “provide to the consumer to whom the report

relates -- (i) a copy of the report; and (ii) a description in

writing of the rights of the consumer.” Id. § 1681b(b)(3)(A).

Defendant retained a third-party consumer reporting agency,

Resolve Partners, LLC (“Resolve”), to prepare consumer reports

and send pre-adverse action letters to applicants. (Rosario

Decl. (Doc. 51-1) ¶ 14.)

Plaintiff initially applied for employment with Defendant

in January 2019, but did not hear back. (Ex. A, First Deposition

of Derrick Perez Scott (“Scott Dep. 1”), Scott v. Resolve

Partners, LLC, No. 19-cv-1077, (M.D.N.C.), ECF No. 105-1 at 44—

45.) 2 Plaintiff applied again for a job with Defendant as a

leasing agent on March 15, 2019. (Rosario Decl. (Doc. 51-1) ¶ 6;

Ex. 4, Second Deposition of Derrick Perez Scott (“Scott Dep. 2”)

(Doc. 51-4) at 13.) Plaintiff authorized Defendant to procure a

consumer report for hiring purposes, which included a criminal

background check. (Scott Dep. 2 (Doc. 51-4) at 90–91.) Resolve

prepared an employment report which contained inaccurate

information about Plaintiff, namely that he had been previously

charged with three criminal offenses. (Ex. A, 30(b)(6)

Deposition of Rebecca Rosario on Behalf of Full House Marketing,

2 Case No. 19-cv-1077 and the present case were consolidated

for purposes of discovery and trial. See infra Part II.

Inc. (“Rosario Dep.”) (Doc. 61-2) at 31–32.) In reality, these

charges were associated with a Derrick Lee Scott. (Id.) On March

27, 2019, Resolve completed Plaintiff’s report and shared it

with Defendant. (Id. at 49.) Defendant did not hire Plaintiff in

March. (Scott Dep. 2 (Doc. 51-4) at 44; Rosario Dep. (Doc. 61-2)

at 14.)

Plaintiff applied again for employment with Defendant on

May 5, 2019. (Rosario Dep. (Doc. 61-2) at 15.) In reviewing

Plaintiff’s May application, Defendant used the same inaccurate

report from March. (Ex. E, Deposition of Simone Salazar

(“Salazar Dep.”), Scott v. Resolve Partners, LLC, No. 19-cv-

1077, (M.D.N.C.) ECF No. 105-5 at 237.) On May 6, 2019, one of

Defendant’s employees, Laurisa Brooks, who had been in

communication with Plaintiff about his application, texted

Plaintiff that his background was not within Defendant’s

guidelines and terminated the hiring process.3 (Scott Dep. 2

(Doc. 51-4) at 219—20.) Plaintiff replied, “Can you tell me

why?” and Defendant instructed him to direct any questions to

Resolve. (Ex. F (“Text Message”) (Doc. 55-7) at 2.) That same

day, Plaintiff contacted Resolve, and Resolve sent Plaintiff an

3 The parties dispute whether Brooks sent Plaintiff an

identical text message in March. However, as explained below,

this issue is not material for purposes of summary judgment. See

infra Section I.A.2.

email with a copy of his inaccurate consumer report. (Ex. G

(“May 6, 2019 Letter”) (Doc. 55-8) at 2, 6–12.) On May 7, 2019,

Plaintiff contacted Resolve to dispute his report. (Salazar Dep.

(Doc. 105-5) at 217.) Resolve removed the criminal charges from

Plaintiff’s report, and on May 31, 2019, Resolve emailed

Plaintiff a copy of his corrected report. (Id. at 223.)

There is conflicting evidence as to whether Defendant would

have hired Plaintiff if his consumer report did not contain the

inaccurate criminal offenses. Defendant’s representative

initially testified that she “felt confident in plaintiff before

requesting the background check.” (Rosario Dep. (Doc. 61-2)

at 46.) However, it was subsequently revealed that Plaintiff

included false statements on the resume that he included as part

of his application. (Scott Dep. 2 (Doc. 51-4) at 18, 23.)

Defendant’s representative stated in a declaration that if

Defendant “had learned that Plaintiff had lied on his job

application, [Defendant] would have stopped considering his

application immediately.” (Rosario Decl. (Doc. 51-1) ¶ 12.)

It is not disputed that Plaintiff received a copy of his

consumer report in May. (See Pl.’s Mem. of Law in Supp. of Mot.

for Partial Summ. J. Re. Def. Full House Marketing, Inc.’s

Liability as to Count 1 of the Second Am. Compl. (“Pl.’s Br.”)

(Doc. 56) at 15.) It is disputed whether Defendant, or Resolve,

acting on behalf of Defendant, sent Plaintiff a copy of his

consumer report in March.

There are multiple relevant documents in the record. The

first is a letter dated March 27, 2019, from Resolve to

Plaintiff, titled “Notice to Consumer of Request of Consumer

Report for Employment Purposes.” (Ex. B (“Contemporaneous

Notice”) (Doc. 51-1) at 8; Ex. I, Decl. of Hans W. Lodge (Doc.

55-10) at 2.) The Contemporaneous Notice informed Plaintiff that

Defendant requested a consumer report for employment purposes.

(Salazar Dep. (Doc. 105-5) at 158–59.)

The second document is attached to Defendant’s summary

judgment motion. It is an undated4 “Pre-Adverse Action Letter,”

from Defendant to Plaintiff. (Ex. C (“Pre-Adverse Action

Letter”) (Doc. 51-1) at 10.) The letter states:

We are writing to inform you that in evaluating your

application for employment we have received the

enclosed consumer report. This notification is

provided because we may make an adverse decision that

may be based, in whole or part, on this report. . . .

A summary of your rights as a consumer is enclosed.

(Id.)

The third document is a letter dated May 6, 2019, sent to

Plaintiff, after Plaintiff requested a copy of his consumer

4 Rosario states in her declaration that the Pre-Adverse

Action Letter was sent to Plaintiff the same day as the

Contemporaneous Notice. (Rosario Decl. (Doc. 51-5) ¶¶ 17, 19.)

Plaintiff disputes this.

report. The May 6, 2019 Letter states: “Attached is a copy of

your consumer report as you requested. Also attached is a

summary of your rights under the Fair Credit Reporting Act.”

(May 6, 2019 Letter (Doc. 55-8) at 2.)

Another document is Resolve’s internal report on Plaintiff.

(Ex. B (“Internal Report”) (Doc. 51-3) at 7–10.) Resolve uses a

third-party software, Tazworks, to generate consumer reports.

(Salazar Dep. (Doc. 105-5) at 136–37.) Tazworks also allows

Resolve to send notifications to consumers “relating to the

consumer’s background check.” (Ex. 2, Decl. of David Tanner

(“Tanner Decl.”) (Doc. 51-2) ¶ 4.) The Internal Report reflects

these notifications. (Ex. 3, Decl. of Michelle Bondurant

(“Bondurant Decl.”) (Doc. 51-3) ¶ 6.)

With its motion, Defendant attached a summary of rights and

a copy of Plaintiff’s consumer report to the Pre-Adverse Action

Letter. (See Pre-Adverse Action Letter (Doc. 51-1) at 10–18.)

Plaintiff attached a summary of rights and a copy of Plaintiff’s

consumer report to the May 6, 2019 Letter. (See May 6, 2019

Letter (Doc. 55-8).) Plaintiff argues that May 6, 2019, was the

first time Plaintiff was provided a copy of his consumer report.

(Pl.’s Br. (Doc. 56) at 15.) Defendant argues Plaintiff’s

consumer report was attached to the Pre-Adverse Action Letter

sent March 27, 2019. (Mem. in Supp. of Mot. for Summ. J.

(“Def.’s Br.”) (Doc. 52) at 11–13.) Plaintiff argues in turn

that the Pre-Adverse Action Letter “purportedly emailed to

Plaintiff in March 2019 did not include a copy of Plaintiff’s

consumer report.” (Pl.’s Br. (Doc. 56) at 21.)

A. Factual Disputes

The parties’ motions for summary judgment revolve around

two disputed facts: (1) whether a consumer report was sent to

Plaintiff in March; and (2) whether Defendant’s employee,

Laurisa Brooks, sent a text message to Plaintiff in March

telling him he did not pass the background check.

1. Evidence of the Consumer Report

Defendant points to the following evidence in support of

its argument that Plaintiff’s consumer report was sent to him in

March.5

Rebecca Rosario (“Rosario”) is the President and owner of

Full House. (Rosario Decl. (Doc. 51-1) ¶ 2; Rosario Dep. (Doc.

61-2) at 5.) She made the following statements in a declaration

dated September 8, 2022:

16. Resolve prepared and sent a pre-adverse

action letter to Plaintiff and billed [Defendant] for

doing so.

17. On March 27, 2019, Resolve sent a letter

called a “Contemporaneous Notice” via email to

5 Both Plaintiff and Defendant lodge numerous evidentiary

objections as to whether this court may consider certain

evidence on their respective motions for summary judgment. Those

objections will be addressed infra Section III.B.

Plaintiff Derrick Scott. A copy of this letter is

attached as Exhibit B.

18. A “pre-adverse action” letter was also sent

to Plaintiff on the same day. A copy of the

pre-adverse action letter is attached as Exhibit C.

19. That pre-adverse action letter contained a

copy of the criminal background report reviewed by

[Defendant] and a copy of the Statement of Rights

prepared by the Consumer Financial Protection Bureau.

(Rosario Decl. (Doc. 51-1) ¶¶ 16–19.)

David Tanner, a representative of Tazworks, stated in a

declaration:

4. Through the Tazworks platform, consumer

reporting agencies (CRAs) who have license versions of

the software, like Resolve, can send certain

notifications to consumers relating to the consumer’s

background check. These notifications may include a

copy of a consumer report, notifications from the

consumer reporting agency itself, or communications on

behalf of the employer end user.

. . . .

6. The software also has sample communications

(that can be customized by a CRA or its client) to

notify a consumer that an employer is considering

taking adverse action based in whole or in part on a

consumer report. This communication is generally

referred to as a Pre-Adverse Action with SOR, and as a

default includes a copy of the consumer’s consumer

report as well as a document entitled, “A Summary of

Your Rights Under the Fair Credit Reporting Act,”

(“Summary of Rights”) prepared by the Consumer

Financial Protection Bureau.

7. I do not know whether Resolve ever changed the

default settings to include a copy of the candidate’s

consumer report and Summary of Rights in its licensed

version of the software.

(Tanner Decl. (Doc. 51-2) ¶¶ 4, 6–7.)

Michelle Bondurant, an executive at Resolve, stated in a

declaration:

6. A Statement of Rights was also sent to

Plaintiff on March 27, 2019, along with a Pre-Adverse

Action letter. Resolve Partners' internal report for

Plaintiff indicates both of those items were sent to

Plaintiff (the “Internal Report”). A copy of the

internal report is attached as Exhibit B.

7. In the Pre-Adverse Action letter, the noted

enclosures state that a “Consumer Report” was

enclosed.

8. The Internal Report has five entries on March

27, 2019 and March 28, 2019 that indicate the

Pre-Adverse Action letter was sent to and received by

Plaintiff.

9. The Consumer Report that was noted in the

Pre-Adverse Action letter was sent to Plaintiff on

March 27, 2019 through use of the Tazworks software.

This is reflected by the entries in the Internal

Report.

(Bondurant Decl. (Doc. 51-3) ¶¶ 6–9.)

The declarations state the Internal Report shows that

Plaintiff was sent a copy of his consumer report on March 27,

2019. In contrast, Plaintiff argues the text of the Internal

Report shows a consumer report was not sent in March. (Pl.’s Br.

(Doc. 56) at 24.) The Internal Report shows the following

entries:

Client Notes, Viewable by Client

05-06-2019 11:06 PM MDT:

The Copy of Consumer Report and SOR disclosure was

viewed from IP address 67.197.140.58

05-06-2019 2:57 PM MDT:

The Copy of Consumer Report and SOR disclosure was

viewed from IP address 172.56.4.103

05-06-2019 2:53 PM MDT:

The Copy of Consumer Report and SOR disclosure was

viewed from IP address 172.56.4.103

05-06-2019 2:53 PM MDT Simone Salazar.

A QuickView™ email for Copy of Consumer Report and SOR

was sent to RICK8PEREZ3@GMAIL.COM.

03-28-2019 1:47 AM MDT:

The Contemporanious Notice - Use for Resolve - No

Consumer Copy disclosure was viewed from IP address

172.56.5.188

03-28-2019 1:46 AM MDT:

The Contemporanious Notice - Use for Resolve - No

Consumer Copy disclosure was viewed from IP address

172.56.5.188

03-27-2019 3:15 PM MDT:

The Pre-Adverse Action with SOR disclosure was viewed

from IP address 172.56.5.138

03-27-2019 7:19 AM MDT Simone Salazar:

A QuickView™ email for Contemporanious

Notice - Use for Resolve - No Consumer Copy was

sent to RICK8PEREZ3@GMAIL.COM.

03-27-2019 7:19 AM MDT Simone Salazar:

A QuickView™ email for Pre-Adverse Action with

SOR was sent to RICK8PEREZ3@GMAIL.COM.

Report Notes

10-28-2019 12:26 PM MDT:

Order status changed from complete to archived.

05-06-2019 2:53 PM MDT Simone Salazar:

System attachment uploaded to report: Copy of

Consumer Report and SOR.pdf

03-27-2019 7:19 AM MDT Simone Salazar:

System attachment uploaded to report:

Contemporanious Notice - Use for Resolve - No

Consumer Copy.pdf

03-27-2019 7:19 AM MDT Simone Salazar:

System attachment uploaded to report: Pre-

Adverse Action with SOR.pdf

03-27-2019 7:19 AM MDT Simone Salazar:

Opted out of sending report completed email.

03-27-2019 6:44 AM MDT Simone Salazar:

User manually removed jurisdiction York-South

Carolina.

03-27-2019 6:44 AM MDT Simone Salazar:

User manually removed jurisdiction Chester-South

Carolina.

03-15-2019 8:38 AM MDT Laurisa Brooks:

Order placed as requested by Laurisa Brooks from

IP address 98.26.89.135.

(Internal Report (Doc. 51-3) at 9–10.)

Plaintiff highlights that some of the Internal Report

entries from March state “No Consumer Copy,” in contrast to the

entries in May. (Pl.’s Br. (Doc. 56) at 24–26.) Plaintiff argues

that the Internal Report “unequivocally confirm[s] that neither

Resolve nor [Defendant] sent Plaintiff a copy of his report in

March 2019 before taking adverse action.” (Id. at 24.) Plaintiff

also highlights that an entry under Report Notes on 03-27-2019

reads: “Opted out of sending report completed email.” (Id.

at 13.)

In support, Plaintiff cites to various parts of the

deposition of Rebecca Rosario, which was taken as a

representative of Defendant in the prior consolidated case.6 (See

id. at 26.) While Rosario admits in part of her testimony that

the Internal Report seems to indicate that no consumer report

was sent to Plaintiff in March, in other testimony she states

that she does not know what the Report means. For example,

referring to the two March 28, 2019 entries, Plaintiff asks:

Q. [D]o either of those entries indicate that

Resolve Partners sent a copy of a consumer report

to — to plaintiff?

A. I don’t know that I’m qualified to answer

that.

(Rosario Dep. (Doc. 61-2) at 29.) Shortly thereafter, Plaintiff

asks:

Q. Do you see where it states that, on — “On 5/6/19 at

2:53 p.m., Simone Salazar made an entry that says, “A

quick view e-mail for copy of consumer report and SOR

was sent to RickAPerez3@Gmail.com”?

A. Yes.

Q: What do you understand this to mean?

6 Plaintiff filed two lawsuits in federal court arising from

the same sets of facts. He first filed a suit against Resolve,

(Derrick Perez Scott v. Resolve Partners, LLC, 1:19-cv-1077,

(“Scott I”)), and later filed a suit against Defendant, (Derrick

Perez Scott v. Full House Marketing, Inc., 1:21-cv-242,

(“Scott II”)). Pursuant to Federal Rule of Civil Procedure

42(a), Defendant filed a motion to consolidate Scott I and Scott

II. (Mot. to Consolidate (Doc. 19).) On September 13, 2021, this

court orally granted the motion to consolidate and ordered the

two cases consolidated for the purposes of discovery and trial.

(See Minute Entry and Oral Order entered on 09/13/2021 in Scott

I.) On August 12, 2020, Rosario was deposed in Scott I on behalf

of Full House Marketing, a third-party at the time, pursuant to

Federal Rule of Civil Procedure 30(b)(6). (See Rosario Dep.

(Doc. 61-2) at 6.)

A. Oh boy. I really — let’s see, “A quick view e-mail

for copy of consumer report.”

I don’t know what their internal language means, I’d

have to speculate on that on —

. . . .

Q. Would it surprise you to learn that Resolve

Partners has testified in this case that a copy of the

consumer report was not sent to plaintiff in March

2019? Would that surprise you, Ms. Rosario?

A. Looking at this it — it would appear that they

didn’t, so . . .

Q. But they contracted with you to do so, correct?

A. Yeah. Wow, okay.

. . . .

Q. And it has now come to your attention that Resolve

Partners didn’t bring — or didn’t give a copy of the

consumer report to plaintiff in March either, correct?

A: That is correct.

(Id. at 29-30.)

Plaintiff later asks:

Q. According to Exhibit 11 [the Internal Report], is

it indicated anywhere in these client notes that a

copy of the consumer report was provided to plaintiff

prior to May 6th, 2010, yes or no?

A. There’s nothing that specifically states a copy of

the consumer — the words “a copy of the consumer

report” is — is not listed anywhere before that — that

time in the notes.

Q. So that would be a “no” to my question?

A. That is correct.

(Id. at 44.)

However, earlier in Rosario’s deposition, she testifies a

consumer report was sent to Plaintiff in March:

Q. [T]his adverse, pre-adverse action letter was sent

to Mr. Scott by Resolve Partners on behalf of Full

House Marketing; is that correct?

A. To my knowledge, yes.

Q. Okay. . . . [A] consumer rights notification and

consumer report were included with this pre-adverse

action letter; is that correct?

A. Right.

(Id. at 19.)

Finally, Plaintiff testified in his first deposition that

he never received a copy of his consumer report in March 2019:

Q. Did you receive a copy of a background check report

from Resolve Partners or Full House Marketing in March

of 2019.

A. No. In March I didn’t but in May I did.

(Scott Dep. 1 (Doc. 105-1) at 108.) Plaintiff testified in his

second deposition that he never received any email at all from

Resolve or Defendant in March 2019:

Q. [referring to the Internal Report] Okay. Now, if

you go down to the bottom of the list, it says March

27, 2019, at 7:19 a.m. A quick view e-mail for pre-

adverse action with DOR was sent to

rick8perez3@gmail.com.

A. Yeah.

Q. Did you get an e-mail from Resolve on March 27th?

A. No. I never received that e-mail.

Q. All right. Now, you never received it, but do you

have any reason to believe it wasn’t sent?

A. Yes. I believed it wasn’t sent because I never seen

it. At least not at that time, I didn’t. I seen in

May.

Q. Okay. So do you see that if you look at the third

one up, it says at 3:15 p.m. on March 27th, that pre-

adverse action was viewed from an IP address?

A. Yes, I see that.

Q. Do you know why this report would say that somebody

opened the e-mail that was -- first of all, is this

your e-mail address, rick8perez3@gmail.com?

A. Yes, that’s right.

Q. And do you know why this report said that someone

opened this e-mail that was sent to

rickperez3@gmail.com at 3:15 p.m.?

A. Yes, I see that.

Q. But do you know why it says about?

A. I don’t know why. I don’t know whose IP address

that is. Because I’ve [n]ever seen that e-mail until

my lawyer showed it to me, like last week.

Q. Right. But you said you rarely check your spam

filter; right?

A. Yes, that’s right, because I just -- I didn’t think

that a job e-mail would go to spam.

. . . .

Q. Okay. So I guess the answer is you don’t know

whether this e-mail went to the spam filter or not;

right?

A. No, I don’t think so, no. I don’t think it came at

all. I don’t know what happened.

Q. Right. You don’t know what happened; right?

A. Yeah.

Q. Okay. And you don’t know what was in it, right,

because you never saw it?

A. Right.

Q. Okay. It could have contained your report; right?

It could have had your consumer report in it?

A. Yeah, it could have. But I never got it.

(Scott Dep. 2 (Doc. 51-4) at 30—33.)

Neither party cited to the deposition of Simone Salazar in

support of their explanation of the Internal Report; however,

her testimony is relevant because she was the employee at

Resolve who prepared Plaintiff’s consumer report.7 (Salazar Dep.

(Doc. 105-5) at 72.)

As an initial observation, the entries in the Internal

Report titled “Contemporanious [sic] Notice” would not

necessarily have a consumer report attached to them because the

purpose of the contemporaneous notice was to simply inform

Plaintiff that Defendant requested a consumer report for

employment purposes. (Id. at 159.) Thus, those entries do not

weigh against Defendant’s argument that it sent Plaintiff his

consumer report in March.

Additionally, Salazar testified about the meaning of the

03-27-2019 entry under Report Notes that reads: “Opted out of

sending report completed email.”

Q. And then what does it mean where at 7:19 a.m. on

March 27th, 2019 you — you enter, opted out of sending

report completed email?

A. Okay. So what that means is after each portion on

the report is completed, there’s an automatic e-mail

button on the bottom that automatically e- — e-mails

the client, hey, this portion’s been completed. I just

opted out of sending that completed against because we

have a lot of clients that would get upset if they

received a lot of e-mails about the report. That’s the

only reason that was opted out.

7 This court has discretion to consider other evidence in

the record not cited by the parties pursuant to Fed. R. Civ. P.

56(c)(3) (“The court need consider only the cited materials, but

it may consider other materials in the record.”). Salazar’s

deposition is on the record in Scott I, which was consolidated

with this case for purposes of discovery and trial. See infra

Part II.

(Id. at 153.) Thus, the fact that Salazar “opted out” of sending

an email notifying Plaintiff that his consumer report was

completed does not suggest that Salazar “opted out” of sending

Plaintiff his consumer report entirely.

Excluding the entries that reflect a notification was

viewed from an IP address, the only entries from which to infer

that a consumer report was sent in May, but not March are:

Client Notes, Viewable by Client

. . . .

05-06-2019 2:53 PM MDT Simone Salazar:

A QuickView™ email for Copy of Consumer Report and SOR

was sent to RICK8PEREZ3@GMAIL.COM.

. . . .

03-27-2019 7:19 AM MDT Simone Salazar:

A QuickView™ email for Pre-Adverse Action with

SOR was sent to RICK8PEREZ3@GMAIL.COM.

. . . .

Report Notes

. . . .

05-06-2019 2:53 PM MDT Simone Salazar:

System attachment uploaded to report: Copy of

Consumer Report and SOR.pdf

. . . .

03-27-2019 7:19 AM MDT Simone Salazar:

System attachment uploaded to report: Pre-Adverse

Action with SOR.pdf

(Internal Report (Doc. 51-3) at 9–10.) Salazar testified about

pre-adverse action notices:

Q. Okay. What’s a pre-adverse action notice?

A. Pre-adverse action notice is letting the applicant

know, hey, we re- — we received this request that you

wanted to apply for this job, Resolve’s been retained

to do your credit/criminal report, and it’s just

giving them notification of that.

. . . .

Q. I’m curious. In — does Resolve always send a pre-

adverse action notice to every consumer or just

certain consumers?

A. It’s for preemployment to my knowledge.

. . . .

Q. Do you know why pre-adverse action notices are

sent?

A. To notify the applicant before — or that their

information’s being accessed, that they’re applying

for this position or this property to let them know.

And if they don’t give consent to that, they have the

right to stop it.

(Salazar Dep. (Doc. 105-5) at 154–56.) After reviewing the

Internal Report, Plaintiff asked, based on that Report:

Q. Does that page — are you able to tell me whether

Derrick Perez Scott received a copy of his Resolve

consumer report before May 6th, 2019?

A. Yes.

Q. When did he receive it?

. . . .

A. . . . So March 28th the consumer report was sent

two times and it says it was viewed from an IP

address.

. . . .

Q: Okay. Is the typical — is the standard procedure to

e-mail a copy of the report to the consumer?

A. Yes. Yes.

(Id. at 161–62.)

2. The Text Message

The parties dispute whether Defendant’s employee, Laurisa

Brooks, sent a text message to Plaintiff in March. Defendant

argues the timing of the text message is relevant because the

only way Plaintiff could have found out about the adverse action

taken against him was through an email sent with the consumer

report. (Def.’s Br. (Doc. 52) at 16-18.) Plaintiff argues he

never received the consumer report and found out he was not

hired in March through a text message from Brooks. (Pl.’s Br.

(Doc. 56) at 10.) However, whether or not the text message was

sent to Plaintiff in March is not material for purposes of

summary judgment.

“As to materiality, the substantive law will identify which

facts are material. Only disputes over facts that might affect

the outcome of the suit under the governing law will properly

preclude the entry of summary judgment. Factual disputes that

are irrelevant or unnecessary will not be counted.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Although not necessarily irrelevant, resolving whether a

text message was sent to Plaintiff in March is not material to

the issue of whether Plaintiff’s consumer report was sent to him

in March. Defendant states: “the only way Plaintiff could have

known about any adverse action in March of 2019 was by reading

the email that Resolve sent on Full House’s behalf on March 27,

2019. Without that email, Plaintiff had no way of knowing that

Full House had even reviewed his application for the position,

let alone denied him work.” (Def.’s Br. (Doc. 52) at 17.)

As an initial matter, there is conflicting evidence in the

record as to whether Plaintiff had knowledge, either through

text or email, that his application was rejected by Defendant in

March. (Compare Scott Dep. 1 (Doc. 105-1) at 46, 89–91

(testifying that Brooks texted him in March) with Scott Dep. 2

(Doc. 51-4) at 45, 51-52 (testifying that he didn’t know in

March that he had been rejected and found out for the first time

in May that he was not hired because of his background), 219-20

(testifying that he never got a text on March 27, 2019 from

Brooks, only on May 6, 2019).)8

Furthermore, Plaintiff could have learned of the potential

adverse action through the Pre-Adverse Action Letter sent in

March, even if his consumer report was not attached.

Plaintiff’s knowledge or lack of knowledge as to whether

Defendant rejected his application in March is not material for

purposes of summary judgment on whether Defendant sent him a

copy of his consumer report in March.

II. PROCEDURAL HISTORY

Plaintiff filed two lawsuits in federal court arising from

the same sets of facts. He first filed a complaint against

Resolve, (Derrick Perez Scott v. Resolve Partners, LLC, 1:19-cv-

8 In a declaration in support of Plaintiff’s response to

Defendant’s motion for sanctions, filed September 29, 2022,

Plaintiff attached an “Errata Sheet” for Plaintiff’s second

deposition, which was held on July 11, 2022. (Doc. 61-1 at 2.)

Plaintiff attempts to substantively change his answers to the

deposition through the Errata Sheet. (See id.) Fed. R. Civ. P.

30(e) permits a deponent to correct typographic errors or errors

related to incorrect reporting within thirty days of being

notified that the transcript is available. Fed. R. Civ. P.

30(e)(1); Estate of Rink by Rink v. VICOF II Trust, No. 20-CV-

39, 2022 WL 1445233, at *1 (W.D.N.C. May 6, 2022). This process

is not available to substantively contradict or modify the sworn

deposition. Estate of Rink, 2022 WL 1445233, at *1. The Errata

Sheet here does not appear to comply with the procedures

outlined in Rule 30(e) and attempts to substantively change

Plaintiff’s sworn deposition. Accordingly, this court will not

consider it.

1077, (“Scott I”)), and later filed a suit against Defendant,

(Derrick Perez Scott v. Full House Marketing, Inc., 1:21-cv-242,

(“Scott II”)). Pursuant to Federal Rule of Civil Procedure

42(a), Defendant filed a motion to consolidate Scott I and Scott

II. (Mot. to Consolidate (Doc. 19).) On September 13, 2021, this

court orally granted the motion to consolidate and ordered the

two cases consolidated for the purposes of discovery and trial.

(See Minute Entry and Oral Order entered on 09/13/2021 in Scott

I.)

On September 16, 2023, Plaintiff filed a second amended

complaint alleging a willful, or, in the alternative, a

negligent violation of 15 U.S.C. § 1681b(b)(3)(A). (Second Am.

Compl. (Doc. 23).) Defendant filed a motion for summary

judgment, (Full House Marketing, Inc.’s Mot. for Summ. J.

(“Def.’s Mot.”) (Doc. 51)), a brief in support, (Def.’s Br.

(Doc. 52)), and a motion for Rule 11 Sanctions, (Mot. for Rule

11 Sanctions (“Sanctions Mot.”) (Doc. 53)), with an accompanying

brief, (Mem. in Supp. of Mot. for Rule 11 Sanctions (“Sanctions

Mem.”) (Doc. 54)). Plaintiff moved for partial summary judgment,

(Pl.’s Mot. for Partial Summ. J. Re. Def. Full House Marketing,

Inc.’s Liability as to Count I of the Second Am. Compl. (“Pl.’s

Mot.”) (Doc. 55)), and filed a brief in support, (Pl.’s Br.

(Doc. 56.)).9

III. PROCEDURAL AND EVIDENTIARY OBJECTIONS

A. Timeliness of Plaintiff’s Motion for Partial Summary

Judgment

Defendant argues that Plaintiff’s motion for partial

summary judgment should not be considered because it is

untimely. (Mem. in Opp. to Pl.’s Mot. for Summ. J. (“Def.’s

Resp.”) (Doc. 65) at 1.) Plaintiff argues that his motion was

timely, or, in the alternative, any potential delay in filing

was the result of excusable neglect. (Pl.’s Reply to Def. Full

House Marketing, Inc.’s Mem. in Opp. to Pl.’s Mot. for Summ. J.

(“Pl.’s Reply”) (Doc. 68) at 1–3.)

A court may extend the time deadline “on motion made after

the time has expired if the party failed to act because of

excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). To determine

whether a party’s neglect of a deadline is excusable, the court

considers “the danger of prejudice to the [opposing party], the

length of the delay and its potential impact on judicial

proceedings, the reason for the delay, including whether it was

9 On September 28, 2022, Plaintiff filed an “Amended

Declaration” in support of his motion for partial summary

judgment. (Doc. 60.) Multiple exhibits are attached to the

declaration, but these exhibits appear to be the same exhibits

attached to Plaintiff’s original motion. (See Doc. 55.)

within the reasonable control of the movant, and whether the

movant acted in good faith.” Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).

On June 16, 2022, this court orally granted a motion to

amend the scheduling order, allowing an additional sixty days

for discovery, with the deadline for filing motions for summary

judgment due thirty days after the close of discovery. (Oral

Order entered 06/16/2022.) Thus, Plaintiff was required to file

his motion for summary judgment by September 14, 2022.10

Plaintiff filed his motion for summary judgment on September 15,

2022. (See Pl.’s Mot. (Doc. 55) at 2.)

There is no danger of prejudice against Defendant.

Defendant has not pointed to any reason why the one-day delay

was prejudicial, and both parties have fully briefed the issues.

Additionally, there is no indication that Plaintiff acted in bad

faith in failing to timely file.

Furthermore, there is a strong preference in the Fourth

Circuit for deciding cases on the merits. See Colleton

Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413,

417 (4th Cir. 2010) (“We have repeatedly expressed a strong

10 Plaintiff states that the corresponding text order from

the June 16 hearing was not entered on the docket until June 17,

2022, and thus he believed the deadline was September 15, 2022.

(Pl.’s Reply (Doc. 68) at 2.) Regardless, the court will

consider Plaintiff’s motion for partial summary judgment.

preference that, as a general matter, defaults be avoided and

that claims and defenses be disposed of on their merits.”).

Thus, this court will decide Plaintiff’s motion for partial

summary judgment on the merits.

B. Evidentiary Objections

Both Plaintiff and Defendant lodge numerous evidentiary

objections as to whether this court may consider certain

evidence on their respective motions for summary judgment. As

noted above, Scott I and Scott II were consolidated for purposes

of discovery and trial pursuant to Rule 42(a). (See Minute Entry

and Oral Order entered on 09/13/2021 in Scott I.) When two cases

are consolidated, discovery from one case is available to

parties in the other case. See Aldridge v. Goodyear Tire &

Rubber Co., Inc., 223 F.3d 263, 266 (4th Cir. 2000) (explaining

discovery from prior consolidated actions was available to the

current party); Zaya v. Adducci, No. 20-10921, 2020 WL 4816200,

at *2 (E.D. Mich. Aug. 19, 2020) (“Pursuant to Federal Rule of

Civil Procedure 42, the Court may formally consolidate this case

with [case 1], allowing the Court to consider the expert

evidence on the record in [case 1] when adjudicating the motion

for summary judgment in [this case].”). Thus, as a starting

point, this court assumes discovery from Scott I is available to

either party in the current action, Scott II.

“A district court may consider materials at the summary

judgment stage that would be inadmissible at trial if the

proponent ‘shows that it will be possible to put the information

into an admissible form.’” Bank of America, N.A. v. Jericho

Baptist Church Ministries, Inc., No. 20-1725, 2022 WL 11112695,

*2 (4th Cir. Oct. 19, 2022) (quoting Humphreys & Partners

Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th

Cir. 2015); see also Fed. R. Civ. P. 56(c)(2) (“A party may

object that the material cited to support or dispute a fact

cannot be presented in a form that would be admissible in

evidence.”).

1. Deposition of Rebecca Rosario, on behalf of

Defendant, in Scott I

Plaintiff relies on the deposition of Rebecca Rosario,

taken on behalf of Defendant in Scott I, in support of his

motion for partial summary judgment and in his response in

opposition to Defendant’s motion for summary judgment.

Plaintiff relies on the Rosario Deposition to argue that:

(1) Defendant admitted that it did not send Plaintiff his

consumer report in March; (2) Resolve’s client notes from its

internal Tazworks software system (Internal Report) establish

that Resolve did not sent Plaintiff a copy of his report; and

(3) Laurisa Brooks, Defendant’s employee, sent Plaintiff a text

message in March stating his background did not meet Defendant’s

guidelines for employment. (See generally Pl.’s Br. (Doc. 56).)

Defendant responds that the Rosario Deposition from Scott I

cannot be used as evidence in this action pursuant to Federal

Rule of Civil Procedure 32(a)(8). Alternatively, Defendant

argues that Rosario’s statements regarding whether Brooks sent

Plaintiff a text in March are inadmissible because Rosario did

not have personal knowledge of the interactions between Brooks

and Plaintiff. (Def.’s Resp. (Doc. 65) at 5–6.) Defendant

further argues that Rosario’s commentary about the Internal

Report is inadmissible because she did not have specialized

knowledge about the report. (Id. at 8–9.)

Rosario was deposed in Scott I on behalf of Defendant

pursuant to Federal Rule of Civil Procedure 30(b)(6). (See

Rosario Dep. (Doc. 61-2) at 6.)

Federal Rule of Civil Procedure 30(b)(6) provides:

[a] party may in the party's notice and in a subpoena

name as the deponent a public or private corporation

. . . and describe with reasonable particularity the

matters on which examination is requested. In that

event, the organization so named shall designate one

or more officers, directors, or managing agents, or

other persons who consent to testify on its behalf,

and may set forth, for each person designated, the

matters on which the person will testify. . . . The

persons so designated shall testify as to matters

known or reasonably available to the organization.

Fed. R. Civ. P. 30(b)(6). “If the persons designated by the

corporation do not possess personal knowledge of the matters set

out in the deposition notice, the corporation is obligated to

prepare the designees so that they may give knowledgeable and

binding answers for the corporation.” U.S. v. Taylor, 166 F.R.D.

356, 361 (M.D.N.C. 1996). “Moreover, the designee must not only

testify about facts within the corporation’s knowledge, but also

its subjective beliefs and opinions. The corporation must

provide its interpretation of documents and events.” Id.

(internal citation omitted).

Although Rule 30(b)(6) deposition testimony is sometimes

described as “binding,” testimony given in a Rule 30(b)(6)

deposition is evidence, which, like any other deposition

testimony, can be contradicted. See United States v. Tailwind

Sports Corp., 292 F. Supp. 3d 211, 217 (D.D.C. 2017) (“[T]he

broad principle that testimony of a Rule 30(b)(6) representative

binds the designating entity has been expressly repudiated by

every court of appeals to consider the issue.”) “[T]he testimony

of the representative designated to speak for the corporation

are admissible against it. But as with any other party

statement, they are not ‘binding’ in the sense that the

corporate party is forbidden to call the same or another witness

to offer different testimony at trial.” Id. (quoting 8A Charles

Alan Wight & Arthur R. Miller, Federal Practice and Procedure

§ 2103 (3d ed. 2017).)

Defendant’s 30(b)(6) representative was required to

address, among other things:

1. The complete process used by or on behalf of Full

House Marketing to place a candidate for employment.

. . . .

5. The complete investigation by or on behalf of Full

House Marketing regarding Plaintiff’s March 2019

application for employment.

. . . .

12. Any communication between Plaintiff and Full House

Marketing.

13. Any communication between Full house Marketing and

Defendant Resolve Partners, LLC in 2019 regarding

Plaintiff’s employment application with Full House

Marketing.

(Ex. 1 (Defendant’s Notice of Rule 30(b)(6) Deposition)

(Doc. 65-1) at 6—7.)

Plaintiff is seeking to admit the Rosario Deposition

against Defendant, thus in addition to the Civil Rules governing

30(b)(6) deposition testimony, Federal Rule of

Evidence 801(d)(2)(A) is relevant. Federal Rule of Evidence

801(d)(2)(A) provides that an opposing party’s statement is not

hearsay if offered against an opposing party and made in an

individual or representative capacity. Plaintiff is offering the

Rosario Deposition, taken as a representative of Defendant,

against Defendant. Personal knowledge or first-hand knowledge is

not required for statements offered as opposing party

statements. See U.S. v. Goins, 11 F.3d 441, 443–44 (4th Cir.

1993) (holding that the personal knowledge requirement of Rule

602 does not apply to statements of a co-conspirator admissible

as non-hearsay under Rule 801(d)(2)(E)); see also 8A Wright,

Miller & Marcus, Fed. Prac. & Proc. Civ. § 6782 (3d ed.)

(“Personal knowledge is clearly not required for statements

offered under Rule 801(d)(2)(A) and (B) — true party

statements.”).

The combination of Civil Rule 30(b)(6) and Evidence Rule

801(d)(2)(A) gives this court great latitude to consider the

Rosario Deposition. This court finds the deposition testimony

may be considered for purposes of summary judgment for the

reasons that follow.

a. Rule 32 Objection

Defendant argues Rosario’s deposition from Scott I may not

be used as evidence in this case because, under Federal Rule of

Civil Procedure 32(a)(8),11 a deposition taken in a prior action

may only be used “in a later action involving the same subject

matter between the same parties.” (Def.’s Resp. (Doc. 65) at 2.)

Defendant argues Scott I and Scott II do not involve the same

subject matter between the same parties. (Id. at 2–3.) Plaintiff

replies that Civil Rule 32(a)(3)12 applies and permits

consideration of Rosario’s deposition. (Pl.’s Reply (Doc. 68)

at 4–5.)

Noncompliance with Civil Rule 32 will not bar the court’s

consideration of a deposition on summary judgment. Webb v.

Butler, No. 18-CT-3127, 2021 WL 10364882, at *6 (E.D.N.C. Sept.

14, 2021); 8A Wright, Miller & Marcus, Fed. Prac. & Proc. Civ.

§ 2142 (3d ed.). Rule 32 applies to using depositions in court

proceedings. See Fed. R. Civ. P. 32 (“Using Depositions in Court

Proceedings.”). If a deposition does not comply with the

requirements of Rule 32, it may be treated as an affidavit for

purposes of summary judgment under Federal Rule of Civil

11 Rule 32(a)(8) provides: “A deposition lawfully taken and,

if required, filed in any federal- or state-court action may be

used in a later action involving the same subject matter between

the same parties, or their representatives or successors in

interest, to the same extent as if taken in the later action. A

deposition previously taken may also be used as allowed by the

Federal Rules of Evidence.”

12 Rule 32(a)(3) provides: “An adverse party may use for any

purpose the deposition of a party or anyone who, when deposed,

was the party's officer, director, managing agent, or designee

under Rule 30(b)(6) or 31(a)(4).”

Procedure 56(c)(4). Butler, 2021 WL 10364882, at *6 (“[W]hile

the Fourth Circuit has not addressed this issue in a published

decision, the majority rule is that testimony from a deposition

that technically violates Rule 32 remains admissible as

affidavit testimony in the context of a motion for summary

judgment.”); see also Alexander v. Casino Queen, Inc., 739 F.3d

972, 978 (7th Cir. 2014); Vondriska v. Cugno, 368 F. App’x 7, 8–

9 (11th Cir. 2010); Tingey v. Radionics, 193 F. App’x 747, 765–

66 (10th Cir. 2006); Palm Bay Imports, Inc. v. Miron, 55 F.

App’x 52, 57 (3d Cir. 2003); Gulf USA Corp. v. Federal Ins. Co.,

259 F.3d 1049, 1056 (9th Cir. 2001); Diamonds Plus, Inc. v.

Kolber, 960 F.2d 765, 768 (8th Cir. 1992). Thus, Rule 32(a)(8)

does not categorically bar this court from considering Rosario’s

deposition on summary judgment. Trial evidentiary issues will be

resolved at trial.

b. Rosario’s Statements Concerning Brooks’s

Text Message

Defendant argues that even if Rosario’s deposition is

admissible, Rosario’s statements about whether Laurisa Brooks

sent a text message to Plaintiff in March are inadmissible

because the statements are not based on personal knowledge of

the matter and constitute hearsay. (Def.’s Resp. (Doc. 65) at 5–

7.) Plaintiff replies that the personal knowledge requirement

does not apply to a witness testifying pursuant to Rule

30(b)(6). (Pl.’s Reply (Doc. 68) at 10.)

As explained supra Section I.A.2, whether Brooks sent

Plaintiff a text message in March is not material for purposes

of summary judgment, thus this court need not resolve whether

Rosario’s recounting of Brooks’ text message is admissible at

this time.

c. Specialized Knowledge Objections

Defendant argues that Rosario’s statements regarding the

Internal Report generated through Tazworks, (see Rosario Dep.

(Doc. 61-2) at 19, 29–30, 44), are inadmissible because Rosario

does not have scientific, technical, or other specialized

knowledge about the report, and thus was not qualified to state

what the notations on the report meant. (Def.’s Resp. (Doc. 65)

at 8–9.) Defendant claims that “those statements are not

admissions, they are speculation,” and, regardless, “are barred

from evidence as Plaintiff’s attempt to offer expert testimony

through an opinion witness.” (Id. at 9.) Plaintiff replies that

Defendant’s use of the Tazworks system was within the scope of

matters known or reasonably available to Defendant. (Pl.’s Reply

(Doc. 68) at 12.)

The Fourth Circuit has not ruled on whether opposing party

statements must comply with the Evidentiary Rules governing lay

and expert testimony.13 However, the same theory that excludes

statements admitted under Evidence Rule 801(d)(2)(A) from the

personal knowledge requirement should exclude opposing party

statements from the requirements of Rule 701 in this

circumstance. Evidence Rule 701 states:

If a witness is not testifying as an expert, testimony

in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.

Fed. R. Evid. 701.

The Advisory Committee’s Note to Evidence Rule 801 suggests

opposing party statements are not admitted based on their

reliability or trustworthiness, but rather as “the result of the

adversary system.” Fed. R. Evid. 801 Advisory Committee Notes to

Subdivision (d)(2) Admissions (1972).

No guarantee of trustworthiness is required in the

case of an admission. The freedom which admissions

have enjoyed from technical demands of searching for

an assurance of truthworthiness in some against-

interest circumstance, and from the restrictive

influences of the opinion rule and the rule requiring

firsthand knowledge, when taken with the apparently

prevalent satisfaction with the results, calls for

generous treatment of this avenue to admissibility.

13 Neither party addresses whether statements admitted under

Rule 801(d)(2)(A) are subject to the requirements of Rule 701.

Id. One commentator has explained that “[a]dmissions of a party-

opponent are not admitted because the person making the

statement possesses expertise in the particular area. Whether

the person possesses or does not possess expertise is itself

completely irrelevant to whether a statement qualifies as an

admission of a party-opponent.” 6 Handbook of Fed. Evid.

§ 801:15 (9th ed.) n.12.14

Thus, even assuming arguendo that Rosario’s statements

about the Internal Report are impermissible opinion testimony

under Rule of Evidence 701, her statements are admissible as an

opposing party statement.

The court will consider the Rosario Deposition to the

extent it contains relevant and otherwise proper evidence for

14 This view was rejected in Aliotta v. Nat’l R.R. Passenger

Corp., 315 F.3d 756, 763 (7th Cir. 2003) (holding opposing party

statements are not “always” “free from the requirements of Rule

701(c), Rule 702, and Daubert”). However, Aliotta appears to

depart from cases outside of the 7th Circuit. See Owens v.

Atchison, Topeka & Santa Fe Ry. Co., 393 F.2d 77, 79 (5th Cir.

1968) (“[I]t is well settled that the opinion rule does not

apply to a party’s admissions.”); Wood v. Hartford Ins. Co. of

the Midwest, No. 20-cv-212, 2021 WL 6882444, *3 (N.D. Fla. Oct.

22, 2021) (“[T]he evidentiary rules restricting the use of

opinion testimony do not apply to party-opponent statements.”);

Bensen v. Am. Ultramar Ltd., No. 92 CIV. 4420, 1996 WL 422262,

*9 (S.D.N.Y. 1996) (“A statement may qualify as an admission

even if is in the form of an opinion.”); 2 McCormick on Evidence

§ 256 (8th ed.) (“If the lack of firsthand knowledge of the

party does not exclude an admission, then neither should the

opinion rule. . . . [T]he prevailing view is that admissions in

the form of opinions are competent.”).

purposes of summary judgment. This court notes there are several

different ways Rosario’s testimony can be understood, some

favorable to Plaintiff and some favorable to Defendant. At

trial, the parties will have an opportunity to present evidence

and testimony to clarify any ambiguities or explain Rosario’s

knowledge.

2. Declarations of David Tanner and Michelle Bondurant

In support of its motion for summary judgment, Defendant

attached the declarations of David Tanner, (Tanner Decl. (Doc.

51-2)), and Michelle Bondurant, (Bondurant Decl. (Doc. 51-3)).

David Tanner is “the VP Software Engineer of MeridianLink.”

(Tanner Decl. (Doc. 51-2) ¶ 2.) MeridianLink sold its software

to Resolve to generate consumer reports, and Tazworks is the

platform that runs the software. (Id. ¶¶ 3, 4.) Michelle

Bondurant served as the Controller or Chief Financial Officer of

Resolve at all relevant times. (Bondurant Decl. (Doc. 51-3)

¶ 2.)

a. The Tanner Declaration

Plaintiff argues that the Tanner Declaration is untimely

because Defendant failed to identify David Tanner pursuant to

Fed R. Civ. P. 26(a)(1)(A)(i), and this court should exclude the

declaration from the record pursuant to Rule 37(c). (Pl.’s Mem.

of Law in Opp. to Def. Full House Marketing, Inc.’s Mot. for

Summ. J. (“Pl.’s Resp.”) (Doc. 63) at 30–32.) Defendant argues

Plaintiff’s objection is frivolous because Plaintiff identified

a Tazworks representative in his initial disclosures. (Reply to

Pl.’s Opp. to Full House’s Mot. for Summ. J. (“Def.’s Reply”)

(Doc. 66) at 2.)

Plaintiff’s initial disclosures identified “TazWorks’

managers, employees, representatives, and agents” as “likely to

have knowledge relating to . . . public records software

solutions in connection with Resolve Partners’ preparation of

consumer reports for employment purposes . . . . TazWorks is in

possession of contact information for these individuals.” (Ex.

1, Pl.’s Fed. R. Civ. P. 26(a)(1) Initial Disclosures (Doc. 66-

1) at 5.) Defendant’s disclosures “incorporate[d] by reference

any . . . individuals disclosed by other parties in this

matter.” (Ex. 2, Def.’s Initial Disclosures Pursuant to Fed. R.

Civ. P. 26(a)(1) (Doc. 66-2) at 3.) Defendant states that “the

information provided by David Tanner is not unique or specific

to him as an individual; his affiliation with Tazworks is what

enables him to provide his declaration. He offers his sworn

statement as an officer of Tazworks, not in his individual

capacity.” (Def.’s Reply (Doc. 66) at 4.)

“Rule 37(c)(1) provides that a party who fails to identify

a witness as required by Rule 26(a) . . . is not allowed to use

that witness to supply evidence on a motion.” Hoyle v.

Freightliner, LLC, 650 F.3d 321, 329 (4th Cir. 2011). “A party

must make its initial disclosures based on the information then

reasonably available to it.” Fed. R. Civ. P. 26(a)(1)(E).

During initial disclosures, Plaintiff did not disclose the

name of the witness, but did disclose the identity of the

anticipated witness by position and subject matter. Defendant’s

disclosure then incorporated that disclosure by reference. The

parties were free to obtain additional information about the

identity of the Tazworks witness through discovery. This court

will not exclude the declaration of David Tanner.15

b. The Bondurant Declaration

Plaintiff argues the Bondurant Declaration is inadmissible

hearsay because it was based on the Tanner Declaration. (Pl.’s

Resp. (Doc. 63) at 33–35.)

The Bondurant Declaration references the Tanner Declaration

in two sentences: “I have read the Declaration of David Tanner.

The notices sent to Plaintiff were consistent with the system

15 Plaintiff alternatively “requests leave to take discovery

to ensure the Court is deciding Full House’s motion on a full

and complete record that has been fairly subject to the

adversarial process.” (Pl.’s Resp. (Doc. 63) at 28–29.) This

court, on the current record, is not persuaded discovery should

be reopened and therefore declines Plaintiff’s request as

untimely. The parties will have an opportunity to complete the

record with testimony and conduct cross-examination at trial.

defaults described by Mr. Tanner, and included a copy of his

criminal background report.” (Bondurant Decl. (Doc. 51-3)

¶¶ 10, 11.)

Under Civil Procedure Rule 56(c), “[a]n affidavit or

declaration used to support or oppose a motion [for summary

judgment] must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Fed.

R. Civ. P. 56(c)(4).

The Bondurant Declaration complies with Civil Procedure

Rule 56(c). As an employee of Resolve, Bondurant had personal

knowledge about the content and meaning of Resolve’s Internal

Report. Additionally, regardless of any reference to the Tanner

Declaration, the underlying facts would be admissible in

evidence. Plaintiff does not argue that Bondurant is not

competent to testify on the matters stated. Thus, this court

will consider the Bondurant Declaration on the pending motions

for summary judgment.

3. Defendant’s Supplemental Responses

Plaintiff argues this court should not consider Defendant’s

supplemental responses, which were submitted after the close of

discovery. (Pl.’s Reply (Doc. 68) at 13.) Defendant served its

response to Plaintiff’s first set of requests for admission on

January 17, 2022, where it “admitted that Laurisa Brooks sent a

text message to Plaintiff on or after March 27, 2019, and that

message is the best evidence of its content.” (Ex. C, Def.’s

Resps. to Pl.’s First Set of Reqs. for Admiss. (“Def.’s Resp. to

Pl.’s Reqs.”) (Doc. 55-4) ¶ 8.) On July 11, 2022, Defendant took

the second deposition of Plaintiff, where Plaintiff stated that

Laurisa Brooks only sent the text message about his background

not meeting Defendant’s guidelines in May, not March. (Scott

Dep. 2 (Doc. 51-4) at 219–20.) Discovery closed on August 15,

2022. (Text Order entered 06/16/2022.) On August 30, 2022,

Defendant served its supplemental response to Plaintiff’s

requests for admissions, where it clarified its earlier

response: “It is further admitted that Laurisa Brooks sent this

text message to Plaintiff on May 6, 2019, which is after March

27, 2019, and that message is the best evidence of its content.

Except as expressly admitted, denied.” (Ex. 2, Def.’s First

Suppl. and Corrected Resps. to Pl.’s First Set of Reqs. for

Admiss. (“Def.’s Suppl. Resp. to Pl.’s Reqs.”) (Doc. 65-2)

at 3.)

Defendant argues this court should not consider Defendant’s

original responses without also considering its supplemental

responses under Evidence Rule 106.16 (Def.’s Resp. (Doc. 65)

at 11.) Defendant states it corrected its response after

Plaintiff stated in his second deposition that he only received

the text message in May, not March. (Id.) Plaintiff argues that

Defendant should not be allowed to supplement its responses

after discovery closed, and that its failure to supplement was

not substantially justified or harmless. (Pl.’s Reply (Doc. 68)

at 14.) This court finds Defendant’s failure to supplement its

response was harmless.

Under Rule 26(e), a party who has responded to a request

for admission must supplement or correct its response “in a

timely manner if the party learns that in some material respect

the disclosure or response is incomplete or incorrect, and if

the additional or corrective information has not otherwise been

made known to the other parties during the discovery process or

in writing.” Fed. R. Civ. P. 26(e)(1)(A). If a party violates

Rule 26(e), that party “is not allowed to use that information

. . . to supply evidence on a motion . . . unless the failure

16 Federal Rule of Evidence 106 provides: “If a party

introduces all or part of a statement, an adverse party may

require the introduction, at that time, of any other part--or

any other statement--that in fairness ought to be considered at

the same time. The adverse party may do so over a hearsay

objection.”

was substantially justified or is harmless.” Fed. R. Civ.

P. 37(c)(1).

Defendant supplemented its response two weeks after the

close of discovery, (see Def.’s Suppl. Resp. to Pl.’s Reqs.)

(Doc. 65-2) at 4), and over thirty days after Defendant became

aware of the new information disclosed in Plaintiff’s second

deposition, (see Scott Dep. 2 (Doc. 51-4) at 1). Defendant does

not offer a justification for not serving the supplemental

response before the close of discovery; however, the failure is

harmless.

“District courts are accorded ‘broad discretion’ in

determining whether a party's nondisclosure or untimely

disclosure of evidence is substantially justified or harmless.”

Bresler v. Wilmington Trust Co., 855 F.3d 178, 190 (4th Cir.

2017) (quoting Wilkins v. Montgomery, 751 F.3d 214, 222 (4th

Cir. 2014)). Four factors guide this inquiry:

(1) the surprise to the party against whom the

evidence would be offered; (2) the ability of that

party to cure the surprise; (3) the extent to which

allowing the evidence would disrupt the trial; (4) the

importance of the evidence; and (5) the nondisclosing

party's explanation for its failure to disclose the

evidence.

S. States Rack And Fixture, Inc. v. Sherwin-Williams Co., 318

F.3d 592, 597 (4th Cir. 2003).

The first four factors listed above relate primarily

to the harmlessness exception, while the last factor,

addressing the party's explanation for its

nondisclosure, relates mainly to the substantial

justification exception. The party failing to disclose

information bears the burden of establishing that the

nondisclosure was substantially justified or was

harmless.

Bresler, 853 F.3d at 190 (internal citations omitted).

Although Defendant served the supplemental responses after

the close of discovery, the delay was harmless. There was no

surprise to Plaintiff because the response merely echoed what

Plaintiff himself testified to a month and a half prior. (Scott

Dep. 2 (Doc. 51-4) at 219–20.) Furthermore, there is no

indication that allowing the evidence would disrupt the trial.

Admitting the supplemental responses would not require parties

to re-brief their motions. Roncales v. Cnty. of Henrico, No.

19cv234, 2021 WL 1738878, at *4 (E.D. Va. May 3, 2021) (holding

that two days was enough time to incorporate new disclosures

into defendant’s motion for summary judgment when there was a

small amount of updated materials and defendant was on notice of

plaintiff’s reliance on similar evidence). Plaintiff was aware

of Defendant’s argument that the text message was sent only in

May, was present at Plaintiff’s second deposition, and had

access to Defendant’s supplemental response before filing his

motion for partial summary judgment. (See Pl.’s Br. (Doc. 56) at

14 n.3.)

Finally, because the supplemental response only relates to

a non-material fact for purposes of summary judgment, the

“importance” factor does not weigh against considering

Defendant’s supplemental response.17 Because this court finds the

disclosure was harmless, this court need not address the last

factor and consider whether the delay was substantially

justified. Roncales, 2021 WL 1738878, *4 (“Because the Court

need only find that [the] nondisclosure was ‘substantially

justified’ or ‘harmless,’ the Court need not make a finding as

to substantial justification.”).

Thus, this court declines to exclude from consideration the

Rosario Deposition, the Tanner Declaration, the Bondurant

Declaration, or Defendant’s supplemental responses on the

parties’ respective motions for summary judgment.

17 The contested supplemental response only goes to the

issue of whether Brooks sent a text message to Plaintiff in

March. As discussed supra Section I.A.2, this is not a material

dispute of fact for purposes of summary judgment.

IV. STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). This court’s

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The moving

party bears the initial burden of demonstrating “that there is

an absence of evidence to support the nonmoving party’s case.”

Celotex Corp., 477 U.S. at 325. If the “moving party discharges

its burden . . ., the nonmoving party then must come forward

with specific facts showing that there is a genuine issue for

trial.” McLean v. Patten Cmtys., Inc., 332 F.3d 714, 718–19 (4th

Cir. 2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586–87 (1986)).

When facing cross-motions for summary judgment, this court

reviews “each motion separately on its own merits to determine

whether either of the parties deserves judgment as a matter of

law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)

(citations and internal quotation marks omitted). “When

considering each individual motion, the court must take care to

resolve all factual disputes and any competing, rational

inferences in the light most favorable to the party opposing

that motion.” Id. (citation and internal quotation marks

omitted).

V. SUBSTANTIVE ANALYSIS

Under the FCRA, before taking adverse action against a

consumer based in whole or in part on a consumer report, an

employer “shall provide to that consumer to whom the report

relates -- (i) a copy of the report; and (ii) a description in

writing of the rights of the consumer under this subchapter[.]”

15 U.S.C. § 1681b(b)(3)(A). An adverse action means “a denial of

employment or any other decision for employment purposes that

adversely affects any current or prospective employee.” Id.

§ 1681a(k)(1)(B)(ii). A consumer may recover actual damages for

a negligent FCRA violation, id. § 1681o(a)(1), and both actual

and punitive damages for willful violations, id. § 1681n(a).

Defendant does not deny it took adverse action against

Plaintiff based in whole or in part on a consumer report in

March 2019. (Def.’s Br. (Doc. 52) at 16.) The issue is whether

Defendant sent Plaintiff a copy of his consumer report in March

2019.18

A. Plaintiff’s Motion for Partial Summary Judgment

Plaintiff moves for partial summary judgment on the issue

of whether Defendant negligently violated the FCRA. Defendant

has presented evidence that creates a genuine dispute of fact as

to whether Plaintiff’s consumer report was sent to him in March.

The Bondurant Declaration, (Bondurant Decl. (Doc. 51-3) ¶ 9),

the Rosario Declaration, (Rosario Decl. (Doc. 51-1) ¶¶ 18–19),

and Salazar’s Deposition, (Salazar Dep. (Doc. 105-5) at 161–62),

all dispute Plaintiff’s argument that he never received his

consumer report in March.

Generally, if there is conflicting testimony between sworn

affidavits and deposition testimony, summary judgment is

inappropriate because it would require evaluating the

credibility of witnesses. See Davis v. Zahradnick, 600 F.2d 458,

460 (4th Cir. 1979) (“[Summary judgment] may not be invoked

where . . . the affidavits present conflicting versions of the

facts which require credibility determinations.”).

18 Despite Plaintiff’s testimony that he never received any

communication from Defendant or Resolve via email in March,

(Scott Dep. 2 (Doc. 51-4) at 30–33), Plaintiff’s argument is

that even if Plaintiff did receive an email in March, that

communication did not contain a copy of Plaintiff’s consumer

report. (See Pl.’s Br. (Doc. 56) at 22–26.)

While this court should be wary of so-called “sham

affidavits,” or an affidavit or declaration that clearly

contradicts the affiant’s prior deposition testimony, see

Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984)

(holding the sham affidavit did not create a genuine dispute of

material fact), this rule should only be applied “to situations

involving flat contradictions of material fact,” Altaweel v.

Longent, LLC, No. 19-CV-573, 2022 WL 1463059, *3 (E.D.N.C. May

9, 2022); see also Button v. Dakota Minn. & E. R. Corp., 936

F.3d 824, 830 (8th Cir. 2020) (“[I]f the affidavit merely

explains portions of a prior deposition that may have been

unclear, it is not a sham affidavit.”). Rosario testified

repeatedly during her deposition that she was not sure what the

entries on the Internal Report meant. (See, e.g., Rosario Dep.

(Doc. 61-2) at 29-30). Additionally, Rosario’s declaration is

supported by other evidence in the record. Thus, Rosario’s

declaration, among other evidence in the record, is sufficient

to create a genuine dispute of material fact and Plaintiff’s

motion for partial summary judgment will be denied.

However, on cross-motions, the fact that one party is

denied summary judgment does not automatically indicate the

opposing party should be granted summary judgment. See

Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (“When

faced with cross-motions for summary judgment, the court must

review each motion separately on its own merits.”)

B. Defendant’s Motion for Summary Judgment

Defendant moves for summary judgment on the issue of

whether it negligently or willfully violated the FCRA.

1. Negligent Violation of the FCRA

Defendant has put forth evidence to show that, as a

default, a Pre-Adverse Action Letter contains a consumer report.

(See Tanner Decl. (Doc. 51-2) ¶ 6.) Defendant has also proffered

evidence to show that the Pre-Adverse Action Letter sent to

Plaintiff on March 27, 2019, included a copy of his consumer

report. (See Rosario Decl. (Doc. 51-1) ¶¶ 16–19.)

However, on consideration of the record as a whole, and

drawing all reasonable inferences in favor of Plaintiff,

Plaintiff has created a genuine dispute of material fact over

whether Defendant sent Plaintiff a copy of his consumer report

in March.

Defendant’s representative testified that, based on the

Internal Report, it appeared neither Resolve nor Defendant sent

Plaintiff a copy of his consumer report in March. (Rosario Dep.

(Doc. 61-2) at 44.)19 Additionally, Plaintiff testified that he

did not receive a copy of his consumer report in March. (Scott

Dep. 1 (Doc. 105-1) at 108; Scott Dep. 2 (Doc. 51-4) at 30—33.)

Although Defendant has put forth a great deal of evidence

disputing Plaintiff’s version of the facts, weighing evidence to

resolve factual disputes and making credibility determinations

is not an appropriate role for this court at the summary

judgment stage. Jacobs v. N.C. Admin. Off. of the Courts, 780

F.3d 562, 569 (4th Cir. 2015).

This court notes that neither the Bondurant Declaration or

the Rosario Declaration specifically explained why the Internal

Report’s entries are different from March to May. (See generally

Bondurant Decl. (Doc. 51-3); Rosario Decl. (Doc. 51-1).) More

importantly, this court cannot ignore testimony, even if

19 Plaintiff’s arguably misleading questioning in the

Rosario deposition has led to an unusual posture of the facts in

this case. Although Rosario said the Internal Report shows that

a consumer report was not sent to Plaintiff in March, she also

said that she may not be qualified to testify about the language

used in the Internal Report. (Rosario Dep. (Doc. 61-2) at 29—

30.) Defendant has offered the declaration of a Resolve employee

that specifically states a consumer report was sent to Plaintiff

in March, as reflected in the Internal Report. (Bondurant Decl.

(Doc. 51-3) ¶¶ 6–9.) Because assessing the credibility of

witnesses or assigning weight to testimony is a matter left for

the jury, Rosario’s deposition, although a close call, is

sufficient to create a genuine dispute of fact at summary

judgment. However, the issue of whether Rosario may be competent

to testify about the Internal Report is an issue that may be re-

visited closer to trial.

ambiguous testimony, from Defendant’s representative that

Plaintiff did not receive a consumer report in March. (Rosario

Dep. (Doc. 61-2) at 29–30.) Thus, Defendant is not entitled to

summary judgment on the issue of whether Defendant negligently

violated the FCRA.

2. Willful Violation of the FCRA

The Supreme Court in Safeco Ins. Co of Am. v. Burr defined

“willfulness” in the context of the FCRA to include both knowing

and reckless violations. 551 U.S. 47, 57 (2007). Safeco also

carved out a “safe harbor provision,” where if a defendant

adopts an objectively reasonable interpretation of the FCRA, a

defendant does not act willfully. See Milbourne v. JRK

Residential Am., LLC, 202 F. Supp. 3d 585, 591 (E.D. Va. 2016).

Defendant states: “Plaintiff is not entitled to actual

damages, and he has not shown any violation of the FCRA, let

alone one that is willful, so he is not entitled to punitive

damages.” (Def.’s Br. (Doc. 52) at 20.) In response, Plaintiff

states: “there is a genuine dispute as to whether such failure

was willful in light of [Defendant’s] admitted knowledge of the

FCRA’s clear statutory mandate.” (Pl.’s Resp. (Doc. 63) at 17.)

Here, Defendant does not argue that it adopted an

objectively reasonable interpretation of Section 1681b(b)(3)(A).

In fact, it does not cite to any cases or the record in support

of its argument that any alleged violation was only negligent

but not willful. Defendant merely argues it sent Plaintiff a

consumer report, and therefore did not violate the FCRA. (Def.’s

Br. (Doc. 52) at 20.) As explained supra, there is a genuine

dispute of fact over whether Defendant sent the consumer report

in March. Thus, this court will not grant summary judgment for

Defendant on the issue of willfulness.

C. Damages

Defendant argues that even if it violated the FCRA,

Plaintiff would not be entitled to actual damages because “his

dishonesty on his application would have been a valid basis for

Full House declining Plaintiff the position he applied for.”

(Id. at 19.) Plaintiff argues that Defendant’s argument that it

would not have hired Plaintiff “is not factually accurate,” and

Plaintiff is entitled to damages because he suffered “emotional

distress,” and “has sufficiently explained the circumstances of

his emotional distress and described how that distress

manifested.” (Pl.’s Resp. (Doc. 63) at 28, 29.)20

20 Plaintiff also argues that Defendant’s damages argument

is foreclosed by the “after-acquired evidence doctrine.” (Pl.’s

Resp. (Doc. 63) at 23–26.) Because this court rejects

Defendant’s damages argument on other grounds, it will not

address Plaintiff’s argument based on the “after-acquired

evidence doctrine.”

A consumer may recover actual damages for negligent FCRA

violations, 15 U.S.C. § 1681o(a)(1), and both actual and

punitive damages for willful violations, id. § 1681n(a). “Actual

damages may include not only economic damages, but also damages

for humiliation and mental distress.” Sloane v. Equifax Info.

Servs., LLC, 510 F.3d 495, 500 (4th Cir. 2007).

Plaintiff need not show that Defendant would have hired

Plaintiff but for the inaccurate consumer report to be entitled

to damages. See Dalton v. Cap. Associated Indus., Inc., 257 F.3d

409, 418 (4th Cir. 2001) (“Even though [defendant’s] false

report is not what prevented [plaintiff] from getting a job with

[plaintiff’s potential employer], we are hesitant to say that

the district court necessarily would have concluded that

[plaintiff] could not show that [defendant] caused him any

damages on his FCRA claims. . . . [Plaintiff] need only show

that he suffered damages from the false report, regardless of

how [plaintiff’s potential employer] reacted to the report.”).

Even assuming Plaintiff is not entitled to damages for lost

wages, Plaintiff testified at length about his emotional and

mental distress suffered as a result of the false report. (See

Scott Dep. I (Doc. 105-1) at 59–63.) Thus, Defendant’s argument

that Plaintiff is not entitled to any damages because it would

not have hired him regardless of the consumer report does not

require summary judgment for Defendant. As explained in the

order denying summary judgment in Scott I, the issue of damages

will have to be resolved during trial. (No. 19-cv-1077,

(Doc. 112) at 30–33.)

VI. MOTION FOR SANCTIONS

Defendant moves for Rule 11 sanctions against Plaintiff and

his attorneys “for filing a knowingly false complaint in this

action in the first place and, in the alternative, for failing

to dismiss the complaint after it became apparent that there was

no valid basis for proceeding against [Defendant].” (Sanctions

Mot. (Doc. 53) at 1.)

Under Rule 11, by filing a pleading or written motion to

the court, an attorney “certifies that to the best of [their]

knowledge, information, and belief, formed after an inquiry

reasonable under the circumstances . . . the factual contentions

have evidentiary support.” Fed. R. Civ. P. 11(b)(3). “If, after

notice and a reasonable opportunity to respond, the court

determines that Rule 11(b) has been violated, the court may

impose an appropriate sanction on any attorney, law firm, or

party that violated the rule or is responsible for the

violation.” Fed. R. Civ. P. 11(c)(1). “[W]here there is no

factual basis for a plaintiff's allegations, the complaint

violates Rule 11's factual inquiry requirement.” Brubaker v.

City of Richmond, 943 F.2d 1363, 1373 (4th Cir. 1991); Columbia

Gas Transmission, LLC v. Haas, No. 22-1504, 2023 WL 4787441, at

*4 (4th Cir. 2023) (“Sanctions are only warranted if an

allegation has no factual basis.”). The Advisory Committee Notes

to Rule 11 state: “if a party has evidence with respect to a

contention that would suffice to defeat a motion for summary

judgment based thereon, it would have sufficient ‘evidentiary

support’ for purposes of Rule 11.” Fed. R. Civ. P. 11 Advisory

Committee Notes to 1993 Amendments.

Defendant alleges Plaintiff violated Rule 11(b) by filing a

complaint with an insufficient factual basis, or, in the

alternative, pursuing the claim after discovery revealed no

factual support for his claim. (Sanctions Mem. (Doc. 54) at 5.)

As explained above, Plaintiff has produced sufficient

evidence to create a genuine dispute of material fact as to

whether Defendant sent Plaintiff a copy of his consumer report

in March. Sanctions are not warranted because Plaintiff’s

allegations have at least some factual basis.

VII. CONCLUSION

For the foregoing reasons, IT IS THEREFORE ORDERED that

Defendant’s motion for summary judgment, (Doc. 51), Defendant’s

motion to impose Rule 11 sanctions, (Doc. 53), and Plaintiff’s

motion for partial summary judgment, (Doc. 55), are DENIED.

This the 4th day of March, 2024.

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