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Dotson v. Energy Future Holdings Corp.

United States District Court, W.D. Oklahoma

June 13, 2018

VANCE DOTSON, Plaintiff,
v.
ENERGY FUTURE HOLDINGS CORP. d/b/a TXU ENERGY, et al., Defendants.

          ORDER

          TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion for Summary Judgment filed by the remaining TXU Energy Defendants [Doc. No. 32].[1] Plaintiff did not file a response within the allotted time or thereafter. See LCvR 7.1(g), 56.1(c). Accordingly, TXU Energy Defendants' motion is now at issue.

         STANDARD OF DECISION

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Hiatt v. Colorado Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (quoting Fed. R. Civ. P. 56(a)). A dispute is genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way, ” and it is material “if under the substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). At the summary judgment stage, the Court views the facts and all reasonable inferences in the light most favorable to the nonmoving party. Williams v. FedEx Corporate Services, 849 F.3d 889, 896 (10th Cir. 2017).

         “The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-671 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the movant meets that burden, the nonmovant must “go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671; see also Fed. R. Civ. P. 56(c)(1)(A). To accomplish this, the nonmovant must identify facts by reference to the pleadings, depositions, other discovery materials, exhibits or affidavits. Id. The Court is not limited to the cited materials, but rather may consider other materials in the record. Fed.R.Civ.P. 56(c)(3). The Court's inquiry is whether the facts and evidence of record present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). Unsupported conclusory allegations are not sufficient to defeat summary judgment. Matthiesen v. Banc One Mortgage Corp., 173 F.3d 1242, 1247 (10th Cir. 1999).

         Although the Court generally views the evidence in the light most favorable to Plaintiff as the nonmoving party, Plaintiff did not respond to TXU Energy Defendants' motion, and thus he did not specifically controvert the statement of material facts set forth therein. Therefore, those facts are “deemed admitted for the purpose of summary judgment.” See LCvR 56.1(c), (e). Even without a response from Plaintiff, the Court still must determine whether judgment for the moving party is appropriate under Fed.R.Civ.P. 56. Reed v. Bennett, 312 F.3d 1190, 1194-1195 (10th Cir. 2002). When a nonmoving party does not respond to a motion for summary judgment, he “waives the right to respond or to controvert the facts asserted in the summary judgment motion. The court should accept as true all material facts asserted and properly supported …. But only if those facts entitle the moving party to judgment as a matter of law should the court grant summary judgment.” Reed, 312 F.3d at 1195.

         BACKGROUND

         Plaintiff brought this action on May 19, 2017, against 16 defendants, alleging multiple violations of the Fair Credit Reporting Act (“FCRA”). [Doc. No. 1]. All Defendants, except Experian Information Solutions, Inc. (“Experian”), filed a Notice of Bankruptcy [Doc. No. 11] requesting the Court stay the proceedings during the pendency of bankruptcy proceedings[2] involving Energy Future Holdings Corporation (“EFH”). Plaintiff filed a response in opposition [Doc. No. 12], asserting that the instant action was not one that could have commenced prior to EFH's filing of bankruptcy.

         On June 27, 2017, Plaintiff voluntarily dismissed Defendants EFH, TXU Energy Retail Company LLC, and TXU Energy Solutions Company LLC. [Doc. No. 14].

         The Court entered an Order [Doc. No. 22] on September 19, 2017, concluding that 11 U.S.C. § 362(a)(1) did not operate to stay Plaintiff's claims against Defendants. Based on the allegations in the Complaint, the Court concluded that TXU Energy Defendants' conduct giving rise to Plaintiff's claims occurred sometime after May 5, 2016, which was two years after the bankruptcy petition was filed.[3]

         The 12 remaining TXU Energy Defendants have now filed a Motion for Summary Judgment [Doc. No. 32]. TXU Energy Defendants reassert their position that Plaintiff's claims arose pre-petition and that the bankruptcy court has jurisdiction. In support of this argument, TXU Energy Defendants point to facts that were not previously part of the record. TXU Energy Defendants also argue that the FCRA statute of limitations bars this action. Finally, TXU Energy Defendants assert that they are not proper parties to this action as they are no longer legal business entities because of conversion, dissolution or merger.

         UNDISPUTED AND MATERIAL FACTS

         A. Corporate Status of Remaining TXU Energy Defendants

         The remaining TXU Energy Defendants are no longer legal business entities because of conversion, dissolution or merger. The following table illustrates their status:

Named Defendant Status
TXU Energy Industries Company Merged into EFH in 2003. Plaintiff dismissed EFH on June 27, 2017

TXU Energy Services Company LLC

Merged into TXU Energy Retail Company LP in 2001. TXU Energy Retail Company LP converted to TXU Energy Retail Company LLC in 2007. Plaintiff dismissed TXU Energy Retail Company LLC on June 27, 2017.

TXU Energy Services Company

Merged into TXU Transition Energy Services Company LLC in 2001. TXU Energy Services Company LLC merged into TXU Energy Retail Company LLC. Plaintiff dismissed TXU Energy Retail Company LLC on June 27, 2017.

TXU Energy Solutions Management Company LLC

Merged into TXU Energy Solutions Company LLC in 2007. Plaintiff dismissed TXU Energy Solutions Company LLC on June 27, 2017.

TXU Energy Solutions Company LP

Converted into TXU Energy Solutions Company LLC in 2007. Plaintiff dismissed TXU Energy Solutions Company LLC on June 27, 2017.

TXU Energy Retail Company LP

Merged into TXU Energy Retail Company LLC in 2007. Plaintiff dismissed TXU Energy Retail Company LLC on June 27, 2017.

TXU Portfolio Management Company LP

Converted to Luminant Energy Company LLC[4] in 2007.

TXU Portfolio Optimization Company LLC

Merged into Luminant Holding Company LLC in 2007.

TXU Energy Trading (Canada) Company

Dissolved in 2004.

TXU Energy Gas Asset Management Company

Dissolved in 2004.

TXU Energy Holdings Company

Dissolved in 2007.

TXU Energy Retail Management Company LLC

Dissolved in 2010.

         B. Pre-petition Conduct

         On December 2, 2012, a TXU Energy account was created for the property located at XXXX[5] Vantage Point Dr., Apt. XXX, Dallas, Texas 75243 in Plaintiff's name. TXU Energy assigned it a customer account number of XXXXXX573928 and began providing electric service to the property on December 3, 2012.

         On or about December 19, 2012, a person identified as Plaintiff called TXU Energy to request a move-out. The caller stated there was no forwarding address. TXU Energy discontinued service that day. On December 21, 2012, TXU Energy mailed an invoice for the $107.85 balance to the service address associated with the account. From December 2, 2012 until February 15, 2013, TXU Energy placed the account in its Early Out Program (“EOP”).[6]

         On January 23, 2013, TXU Energy sent a letter to Plaintiff, informing him that he owed an outstanding balance of $107.85. The letter also notified Plaintiff that if he failed to make payment arrangements within 10 days, TXU Energy could “report [his] account to one or more credit bureaus to make it part of [his] credit record where it may impact [his] ability to obtain credit.” [Doc. No. 32-2 at 12].

         After Plaintiff did not respond, TXU Energy mailed an account history to Plaintiff at the service address associated with the account. However, TXU Energy did not report Plaintiff at that time to any credit bureau.

         On April 24, 2013, after multiple notices to Plaintiff about his outstanding balance, TXU Energy reported Plaintiff's debt to the credit bureaus through the Metro2 system.

         TXU Energy received a letter from Plaintiff on June 19, 2013, requesting verification of the debt owed. TXU Energy responded that same day with a debt validation letter, which was mailed to Plaintiff's updated mailing address at XXXX Albany Ave., Oklahoma City, OK 73111.

         On June 26, 2013, Plaintiff called TXU Energy to dispute the outstanding balance. A member of the fraud management team spoke with Plaintiff. During the conversation, Plaintiff asserted that he had certain rights under the FCRA. The team member explained that the debt was valid until Plaintiff could provide documentation to the contrary. To facilitate Plaintiff's efforts to contest the debt, the team member mailed Plaintiff an identity theft dispute letter (which contemplated a police report, an identity theft affidavit, and other supporting documents), the final bill, and an account history.

         On July 16, 2013, TXU Energy notified the credit bureaus through the Metro2 system that Plaintiff was disputing the debt.

         On October 15, 2013, TXU Energy sent Plaintiff a letter requesting additional information. TXU Energy requested supporting documents, including a police report or identity theft affidavit, to help evaluate Plaintiff's dispute of the debt. Plaintiff never sent such information.

         On January 7, 2014, TXU Energy received another letter from Plaintiff requesting verification of the debt owed. TXU Energy again informed Plaintiff the $107.85 debt was valid.

         On February 5, 2014, Plaintiff faxed a letter to TXU Energy, stating in pertinent part:

“[Y]our firm has violated the law (including but not limited to) … the Fair Credit Reporting Act …. You have communicated and are continuing to communicate incorrect and defamatory information to third parties, including, but not limited to, Equifax, Experian, and TransUnion … I am now demanding the immediate and complete removal of this trade line from my credit reports (Equifax, Experian, and TransUnion).”

[Doc. No. 32-2 at 6, 25, 27].

         On April 1, 2014, Plaintiff called TXU Energy and again disputed the debt associated with the account. Plaintiff asked TXU Energy to eliminate the debt. A customer care agent advised Plaintiff that he still owed the debt.

         On April 21, 2014, TXU Energy received an automatic consumer dispute verification (“ACDV”) message that Plaintiff had filed a direct dispute with the credit bureaus. TXU Energy submitted a debt validation response to the ACDV. TXU Energy also mailed Plaintiff an identity theft letter, which addressed steps for Plaintiff to follow to facilitate his efforts to dispute the ...


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