Smitherman v. Experian Information Solutions, Inc., et al., No. 2:2020cv00579 - Document 63 (D. Nev. 2023)
Court Description: ORDER Granting 62 Joint Pretrial Order. Calendar Call set for 7/19/2023 at 01:30 PM in LV Courtroom 6A before Judge James C. Mahan. Jury Trial set for 7/24/2023 at 09:00 AM in LV Courtroom 6A before Judge James C. Mahan. Signed by Judge James C. Mahan on 3/13/2023. (Copies have been distributed pursuant to the NEF - LOE)
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Smitherman v. Experian Information Solutions, Inc., et al. Doc. 63 Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 1 of 12 1 2 3 Price Law Group, APC 5940 S. Rainbow Blvd., Suite 3014 Las Vegas Nevada, 89118 Phone: 702-794-2008 alpert@pricelawgroup.com 4 5 6 Steven A. Alpert, NV Bar #8353 Attorneys for Plaintiff, Mark Smitherman 7 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 8 9 MARK A. SMITHERMAN, 10 11 Case No.: 2:20-cv-00579-JCM-DJA Plaintiff, JOINT PRETRIAL ORDER v. 12 13 14 15 EXPERIAN INFORMATION SOLUTIONS, INC, EQUIFAX INFORMATION SERVICES, LLC, TRANS UNION, LLC, AND PLUSFOUR, INC. Defendants. 16 17 18 19 After pretrial proceedings in this case, IT IS ORDERED: 20 I. Nature of the Action: 21 22 This is an action against Defendant PlusFour, Inc. (“Defendant”) for alleged violations of 23 the Federal Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681s-2(b)(1)(A) by failing to fully and 24 properly investigate Plaintiff Mark A. Smitherman’s (“Plaintiff”) disputes regarding his debt. 25 26 Plaintiff alleges that Defendant violated the FCRA by repeatedly refusing to reasonably investigate Plaintiff’s bona fide disputes and was therefore willfully and negligently liable under 27 28 §§ 1681n and 1681o, respectively. Plaintiff claims that Defendant furnished information to credit -1- Dockets.Justia.com Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 2 of 12 1 reporting agencies (“CRAs”) that inaccurately indicated that Plaintiff had an open, unpaid 2 collections account with Defendant (“the Account”). Plaintiff further alleges that this failure to 3 investigate caused damage to Plaintiff’s credit, loss of access to his deserved credit terms, delay 4 in purchasing a home, emotional and mental distress, great humiliation, embarrassment, 5 6 7 8 frustration, anxiety, headaches, and sleeplessness. Plaintiff seeks declaratory judgment that Defendant violated the FCRA, statutory, actual, and punitive damages, attorney’s fees and costs, as well as any other such relief permitted by 15 U.S.C. § 1681n and § 1681o. II. Statement of Jurisdiction: 9 10 11 The District Court has federal question jurisdiction over these claims pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1681p because Plaintiff alleges a violation of the FCRA. Venue 12 in this District is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events 13 14 15 16 17 18 or omissions giving rise to the claim occurred in this District. Defendant transacts business in this district and as such, personal jurisdiction is established. Plaintiff and Defendant agree that this Court has jurisdiction over Plaintiff’s federal question claims. III. Admitted Issues of Fact 19 The following facts are undisputed by the parties, and require no proof: 20 21 On or about February 29, 2016, (the “date of service”), Plaintiff received radiology 22 services at Desert Radiology in Las Vegas, Nevada. (ECF Nos. 44 at 2; 45 at 3 ¶ 1). Zotec 23 Partners, LLC (“Zotec”) was Desert Radiology’s billing company during the relevant time period, 24 (ECF Nos. 44 at 2; 48 at 6:19–20), and Defendant handled Desert Radiology’s collection accounts 25 (ECF No. 45 at 3 ¶ 2). In or about October 2016, Defendant sent Plaintiff a letter regarding 26 27 outstanding debt related to the services performed on the date of service at Desert Radiology. 28 -2- Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 3 of 12 1 (ECF Nos. 44 at 2; 45 at 3 ¶ 4). 2 Plaintiff communicated with Defendant in 2018 and 2019 via telephone to inform it that 3 Desert Radiology had billed the wrong insurance policy. (ECF Nos. 1 at 5 ¶ 7; 45 at 4). In 4 response, Defendant requested that Plaintiff mail to Defendant the explanation of benefits 5 (“EOB”) from his insurance company to confirm. (ECF Nos. 44-17 ¶ 10; 45 at 4 ¶ 11).1 6 Shortly following Plaintiff’s filing of this lawsuit on March 24, 2020, Plaintiff’s account 7 8 was removed from collections and the debt was no longer included on Plaintiff’s credit reports. 9 (ECF Nos. 44 at 6; 44-2 at 65:12–15; 45 at 5 ¶ 23). 10 IV. Uncontested Issues of Fact 11 The following facts, though not admitted, have already been determined by this Court’s 12 January 25, 2022, Order to be undisputed, and will not be contested at trial by evidence to the 13 14 contrary: 15 On or about December 13, 2019, Plaintiff sent three letters to each of the CRAs (Experian, 16 Equifax, and TransUnion) asserting that the outstanding debt owed for medical services received 17 from Desert Radiology was an error, that it was errantly billed to the wrong insurance, and that 18 19 once it was properly billed to the correct insurance his insurance policy had paid the bill in full. (ECF No. 44-12). On or about February 6, 2020, Defendant received a “written verification 20 21 request” from the CRAs to confirm or correct Plaintiff’s outstanding debt. (ECF No. 45 at 4 ¶ 22 15). At least one of those notices from the CRAs included Plaintiff’s dispute letter. (ECF No. 44- 23 2 at 21–22). 24 25 26 27 28 The timing surrounding receipt of Plaintiff’s EOB is disputed. Plaintiff alleges to have sent the EOB via certified mail (See ECF 44-17 ¶ 9), but Defendant contends that it only accepts “standard mail,” so the EOB would have been rejected and was purportedly never received until November 2020, approximately one month before close of discovery (See ECF Nos. 45 at 4 ¶ 14; 52 at 4:5–6). 1 -3- Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 4 of 12 1 Defendant accessed Desert Radiology’s internal online billing platform to verify the 2 balance on Plaintiff’s account and responded to the CRAs’ written verification requests indicating 3 that the debt was indeed still outstanding. (ECF No. 45 at 4–5). However, Defendant never spoke 4 to Desert Radiology directly to verify the information. (ECF No. 55 at 11). 5 V. Contested Issues of Fact 6 1. The following issues of fact to be tried and determined at trial. 7 8 9 10 11 2. Plaintiff’s Actual Damages: one of the issues to be decided at trial is the issue of actual damages Plaintiff suffered. 3. The amount of statutory damages Plaintiff is entitled to. 4. Whether Defendant failed to conduct an investigation of the FCRA dispute. 12 5. Whether any breach by Defendant caused Plaintiff economic harm, mental or physical 13 14 pain, emotional distress, anguish, stress, and/or embarrassment. 15 6. Whether Defendant furnished inaccurate information to credit reporting agencies. 16 7. Whether Defendant's conduct was willful. 17 18 19 VI. Uncontested Issues of Law This Court has already decided that Defendant is not liable for furnishing inaccurate information under the FCRA as it pertains to Plaintiff’s § 1681s-2(a)(1)(A). (ECF No. 55 at 11). 20 21 22 This Court stated that Congress explicitly denied a private cause of action for any violations under § 1681s-2(a). (Id.). 23 This Court concluded that Defendant is negligently liable for noncompliance under the 24 FCRA. Defendant’s investigation in response to Plaintiff's dispute letter regarding the Desert 25 Radiology bill which was sent to the wrong insurance company. Defendant did not remove the 26 27 debt from Plaintiff’s consumer report after Desert Radiology had corrected the mistake and the 28 -4- Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 5 of 12 1 bill was paid in full. (See ECF No. 44-13; 55 at 11). Defendant searching the Desert Radiology 2 billing portal is not a reasonable investigation as required by 15 U.S.C. § 1681s-2(b)(1)(A). 3 Defendants also had a system where emails were sent weekly with which accounts needed to be 4 closed but it was not managed appropriately to continue receiving these reports. (ECF No. 44-2 5 at 41; ECF No. 55 at 13). Defendant’s snafu involving personnel issues and email account 6 7 8 9 10 mismanagement constitutes negligence in failing to comply with the FCRA’s investigation requirement. (ECF 55 at 12). Furthermore, the agency recall report was not difficult to understand and a layman outside the credit reporting industry would have been able to glean that the Account was sent in error and needed to be removed. (ECF 55 at 12-13). 11 Defendant should have known that Plaintiff’s Account should have been removed from 12 collections when it began its investigation. (ECF 55 at 13). Defendant therefore failed in its review 13 14 15 of all relevant information provided by the CRAs, which included Plaintiff’s dispute letter sufficiently detailing that his Account was sent to collections in error. (ECF 55 at 13). VII. 16 17 Contested Issues of Law The following are the issues of law to be tried and determined at trial. 18 1. Whether Defendant’s conduct constitutes a violation of 15 U.S.C. § 1681n. 19 2. Whether punitive damages under 15 U.S.C. § 1681n(a)(2) are appropriate. 20 VIII. 21 22 (a) The following exhibits are stipulated into evidence in this case and may be so marked by 23 24 25 26 27 the clerk No. 1. 2. 3. 4. Bates PLUS000003 PLUS000013 PLUS000014-15 PLUS000016-17 Description Plaintiff’s Dispute Letter Attached to Experian’s ACDV to Experian PlusFour’s Account Notes Equifax ACDV to PlusFour Trans Union ACDV to PlusFour 28 -5- Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 6 of 12 5. 1 PLUS000018-19 Experian ACDV to PlusFour 2 (b) As to the following exhibits, the party against whom the same will be offered objects to 3 their admission on the grounds stated, except for objections to lack of foundation or proper 4 5 authentication, which the parties hereby reserve the right to object to at the time of trial 6 based upon the testimony presented or otherwise in a motion in limine: 7 (1) Set forth the Plaintiff’s exhibits and objections to them 8 Trial Exhibits Schedules for Plaintiff 9 Bates Range Exhibits Expect/ May Offer Objections2 6. SMITHERMAN000012-33 Expect 801, 403 7. SMITHERMAN000034-36 Plaintiff’s Trans Union Credit Report – 11/7/2019 Plaintiff’s Dispute Letters to all CRAs Expect 401, 403 8. SMITHERMAN000039-70 Plaintiff’s Experian Credit Report – 11/7/2019 Expect 801, 403 9. SMITHERMAN000071 Plaintiff’s Equifax Credit Report – 11/7/2019 Expect 801, 403 10. SMITHERMAN000073-74 Trans Union Dispute Response Expect 801, 401, 403 11. SMITHERMAN000075 Experian Dispute Response Expect 801, 401, 403 12. SMITHERMAN000076-77 Equifax Dispute Response Expect 801, 401, 403 No. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s objections may be noted by referencing the applicable Federal Rule of Evidence cited as the basis for the objection. Defendant reserves the right to elaborate upon the objection, file a motion in limine for any objection listed, or take other action to preserve, maintain, or assert these objections at the time of trial, as appropriate. 2 -6- Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 7 of 12 1 13. ZOTEC000022-24 Zotec March 31, 2017 email Expect 14. ZOTEC000025-30 Zotec September 10, 2018 email Expect 2 3 4 5 Object-never disclosed pursuant to Fed. R. Civ. P. 26 and 37 Object-never disclosed pursuant to Fed. R. Civ. P. 26 and 37 6 7 (2) Set forth the Defendant’s exhibits and objections to them (3) Trial Exhibits Schedules for Defendant 8 9 No. Bates Range Exhibits/Description Objection(s) PLUS000001 Expect/May Offer Expect 10 15. Work Card 16. PLUS000002 Expect Credit Reporting 17. PLUS000004 – 005 Expect 15 18. Expect 16 19. PLUS000006 – 008 PLUS000009 – 012 PLUS000020 – 027 PlusFour Response to Dispute Letter with validation from Desert Radiology. Credit Bureau Reporting 401, 403, 801 (hearsay) 401, 403, 801 (hearsay) Bates 4 - 401, 403, Foundation Bates 5 - 401, 403, 801 401, 403, Foundation 401, 403, Foundation 401, 403, Foundation PLUS000028 – 031 Smitherman003738 Expect 11 12 13 14 17 20. 18 19 20 21 21. 22. Expect May Expect Electronic Dispute Policy and Procedure Desert Radiology ThirdParty Collection Agreement PlusFour Compliance Agreement PlusFour Debt Validation 401, 403, Foundation 401, 403, Foundation 22 23 24 25 26 27 (c) Electronic evidence: The parties intend to present evidence in electronic format to jurors for the purposes of jury deliberations. However, a hard copy of each exhibit shall be made available for the jury at trial. (d) Depositions (1) Plaintiff will offer the following depositions: 28 -7- Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 8 of 12 1 2 3 4 5 6 7 8 9 10 11 12 The following depositions will be offered against Defendant. Tara Rodriguez: 6:14-17; 8:13-25; 9:1-2; 9:10-19; 10:1-25; 11:25; 12:1-10, 19-25; 13:1-8, 13-24; 14:1-25; 15:1-6; 9-25; 16:1-25; 17:1-6; 18:13-25; 19:1-24; 20:16-25; 21:1-25; 22:1-25; 23:1-6; 24:15-19; 25:1-4, 13-25; 26:1-24; 28:4-25; 29:1-17; 30:9-23; 31:12-25, 32:1-25; 38:3-25; 39:125; 40:1-25; 41-1-23; 47:1-25; 48:1-4; 51:14-21; 52:13-22, 25; 53:1-25; 54:1. Dean Thomas Burger: 4:9-11, 6:19-25; 7:1-25; 8:1-14; 9:1-19; 10:1-14; 11:21-25, 12:1-25; 13:125; 14:1-25; 15:1-24; 17:3-13; 18:10-21; 19:10-23; 20:16-25; 21:1-25; 22:1-10; 17-25; 23:1-16; 24:17-25; 25:1-25; 26:1-6; 28:1-25; 32:21-25; 33:1-18. Mitchell Guthrie: 5:6-25; 7:24-25, 8:1-24, 9:9-13, 24-24, 10:1-25; 11:16-25, 12:1-7; 15:15, 16:17, 16-24; 17:2-25; 18:1-2, 7-25; 19:1-25; 20:1-14, 17-18, 22-25; 21:1-6, 8-9, 23-25; 22:1-7, 2025; 23:1-25; 24:1-25; 25:1-25; 26:1-25; 27:1-25; 28:1-25; 29:1-25; 30:1-25; 31:1-25; 32:1-25; 33:1-25; 34:1-25; 35:1-25; 36:1-25; 37:1-25; 38:1-25; 39:1-25; 40:1-25; 41:15-24; 43:12-20; 44:1-25; 45:1-25; 46:1-25; 47:1-11; 48:1-25; 49:1-25; 50:1-12; 51:14-25; 52:1-2; 57:2-15; 58:1025; 59:1-14; 62:12-25; 63:1-25; 64:1-24; 65:6-25; 66:1-7, 9-25; 67:1-25; 68:1-25; 69:1, 25; 70:125; 71:1-2; 81:19-25; 84:5-25; 85:1-25; 86:1-25; 87:1-25; 88:1-25; 89:1-25; 90:1-25; 91:1-25; 92:1-25, 93:1-17; 96:11-25; 97:1-13; 98:9-25; 99:1-7; 100:15-25: 101:1-25; 102:1-14; 103:3-25; 103:23-25; 104:1-13, 15-25; 105:1-25; 106:1-16; 109:17-25: 110:1-25; 111:1-23; 112:9-25 13 14 15 (2) Defendant will offer the following depositions: Tara Rodriguez Depo Excerpts: 9:10-19; 10:1-25; 11:25; 12:1-10, 12:19-25; 13:1-8, 13:13-24; 14:1-25; 15:1-25; 16:1; 18:1-12; 19:11-13; 22:19-25; 23:1-6; 25:13-25; 26:1-13; 29:12-18; 41:1925; 42:1-25; 43:1-20; 46:4-7; 53:13-22; 55:5-9, 16-25; 56:1; 57:9-17, 25; 58:1-13, 15-20. 16 17 18 Dean Burger Depo Trans Excerpts; 6:19-25; 7:1-24; 8:3-14; 11:21-25; 12:1-14; 13:3-24; 15:25; 16:1-3, 16:18-25; 17:1-7, 17:21-25; 18:1-2; 19:16-25; 20:1; 22:17-25; 23:1-2, 23:24-25; 24:1-7, 21-25; 25:1-8; 29:25; 30:1-25; 31:4-24. (e) Objections to depositions: 19 (1) Defendant objects to Plaintiff’s depositions as follows: 20 21 Defendant maintains the objections as stated in the record. For the deposition of Tara 22 Rodriguez, these specifically include but are not limited to3 those objections stated on 23 the following pages of the transcript: 24 25 26 27 28 3 Defendant reserves the right to offer any additional clarification regarding these objections as is appropriate or necessary. -8- Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 9 of 12 1 • ambiguous and calling for speculation. 2 3 • 4 5 Page 24: Multiple objections to the line of questioning as being vague and Page 31: Objection to the form of the question as being vague and ambiguous and calling for speculation. • Page 38: Objection to the form of the question as being vague and ambiguous 6 and calling for speculation. 7 8 • 9 10 11 Page 39: Multiple objections to the line of questioning and the form of the specific questions as being vague and ambiguous and calling for speculation. For the deposition of Dean Burger, these specifically include but are not limited to those objections stated on p. 27 of the transcript regarding the scope of the line of 12 13 questioning by counsel for Plaintiff. For the deposition of Mitchell Gutherie, 14 Defendant includes all objections stated on the record within or pertaining to the 15 excerpts of the transcript identified by Plaintiff, and Defendant reserves the right to 16 offer specification with regard to any objection memorialized therein at the time of 17 18 trial. (2) Plaintiff objects to Defendant’s depositions as follows: Plaintiff maintains any and all 19 20 objections stated on the record. IX. 21 22 The following witnesses may be called by the parties at trial 23 (a) Provide names and addresses of Plaintiff’s witnesses 24 25 26 27 Mark A. Smitherman, Plaintiff c/o Tarek Chami Price Law Group 5940 South Rainbow Boulevard, Suite 3014 Las Vegas, Nevada 89118 Expects to present 28 -9- Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 10 of 12 1 2 3 4 5 6 7 8 9 Tara Rodriguez Cantey Hanger, LLP c/o Derek Carson 600 West 6th Street, Suite 300 Fort Worth, Texas 76102 May present live or by deposition designations Dean Thomas Burger Zotec Partners c/o Offer Korin The Emelie Building 334 North Senate Avenue Indianapolis, Indiana 46204 May present live or by deposition designations 10 11 12 13 14 15 Mitchell Gutherie c/o Garrett R. Chase VC2 Law 8985 South Eastern Avenue, Suite 100 Las Vegas, Nevada 89123 May present live or by deposition designations (b) Provide names and addresses of Defendant’s witnesses 16 17 18 19 Mark A. Smitherman, Plaintiff c/o Tarek Chami Price Law Group 5940 South Rainbow Boulevard, Suite 3014 Las Vegas, Nevada 89118 Expects to present 20 21 22 23 24 25 26 27 Corporate Designee for PlusFour, Inc. c/o Garrett R. Chase VC2 Law 8985 South Eastern Avenue, Suite 100 Las Vegas, Nevada 89123 Expects to present Tara Rodriguez Cantey Hanger, LLP c/o Derek Carson 600 West 6th Street, Suite 300 Fort Worth, Texas 76102 28 - 10 - Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 11 of 12 1 2 3 4 5 May present live or by deposition designations Dean Thomas Burger Zotec Partners c/o Offer Korin The Emelie Building 334 North Senate Avenue Indianapolis, Indiana 46204 May present live or by deposition designations 6 X. 7 8 9 10 11 The attorneys or parties have met and jointly offer these three trial dates: June 5, 2023, through June 8, 2023 July 24, 2023, through July 27, 2023 August 7, 2023, through August 10, 2023 12 It is estimated that the trial will take a total of 4 days. 13 14 15 // // 16 17 // 18 // 19 // 20 // 21 // 22 // 23 24 // 25 // 26 // 27 // 28 - 11 - Case 2:20-cv-00579-JCM-DJA Document 63 Filed 03/13/23 Page 12 of 12 APPROVED AS TO FORM AND CONTENT4 PRICELAW GROUP, APC 2 3 By: Isl Tarek N Chami T ai·ek N. Chami - (MI # P76407) Admitted Pro Hae Vice Only 22000 Michigan Ave, Suite 200 Dearborn, MI 48124 Phone: 313-444-5029 tai·ek@pricelawgroup.com DATED: Febrnaiy 15, 2023 4 5 6 7 Steven A. Alpe1t, (NV #8353) 5940 S. Rainbow Blvd., Suite 3014 Las Vegas Nevada, 89118 Phone: 702-794-2008 alpe1t@pricelawgroup.com Attorneys for Plaintiff, Mark Smitherman 8 9 10 11 VC2LAW 12 By: ls/Garrett R. Chase GaiTett R. Chase Nevada Bar No. 14498 8985 S. Eastern Ave. Suite 100 Las Vegas, Nevada 89 I 23 13 14 15 Attorneys for Defendant PlusFour, Inc. 16 XI. 17 ACTION BY THE COURT 18 This case is set for coUI1/jUiy tiial on the fixed/stacked calendar on July 24, 2023, at 9:00 a.m 19 20 Calendar call will be held on July 19, 2023, at 1:30 p.m. DATED: March 13, 2023 21 22 23 e_, ;4_a_£ D STATES DISTRICT JUDGE 24 25 26 27 28 4 Defendant PlusFour, Inc.'s approval of the fonn and content of this proposed Joint Pretrial Order is given in furtherance of PlusFour's obligations under the rules to assist in moving the case fo1ward and for professionalism and civility, and shall not be construed as a waiver of the arguments for dismissal of this matter set fo1th in PlusFour's Opposition to Plaintiffs Motion for Extension of Time to Fille the Pretrial Order, ECF No. 60. - 12 -
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