United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
the Court is a Motion for Summary Judgment filed by the
remaining TXU Energy Defendants [Doc. No. 32]. 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.
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).
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).
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
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 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.
27, 2017, Plaintiff voluntarily dismissed Defendants EFH, TXU
Energy Retail Company LLC, and TXU Energy Solutions Company
LLC. [Doc. No. 14].
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.
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.
AND MATERIAL FACTS
Corporate Status of Remaining TXU Energy Defendants
remaining TXU Energy Defendants are no longer legal business
entities because of conversion, dissolution or merger. The
following table illustrates their 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,
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
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.
December 2, 2012, a TXU Energy account was created for the
property located at XXXX 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.
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”).
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].
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.
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.
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.
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
16, 2013, TXU Energy notified the credit bureaus through the
Metro2 system that Plaintiff was disputing the debt.
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.
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.
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].
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.
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 ...