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Russell Corby v. American Express Co.

October 5, 2011


The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge

Order GRANTING in Part and DENYING in Part Defendant's Motion for Summary Judgment [42] [Filed 07/18/11], GRANTING Defendant's Motion to Strike Expert and Expert Report [45] [Filed 08/11/11], and DENYING Plaintiff's Motion for Relief [46] [Filed 08/15/11]


Pending before the Court is Defendant, American Express Bank, FSB's ("American Express" or "Defendant"), Motion for Summary Judgment. (Dkt. No. 45.) Plaintiff, Russell Corby ("Plaintiff"), filed an Opposition on August 22, 2011, to which Defendant filed a Reply on August 29, 2011. (Dkt. Nos. 49, 50.) Having considered the papers filed in support of and in opposition to the instant Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. For the following reasons, Defendant's Motion is GRANTED in Part and DENIED in Part. Additionally, Defendant's Motion to Strike the Expert Report of Thomas A. Tarter is GRANTED and Plaintiff's Motion for Relief form the Court's Scheduling and Case Management Order pursuant to Federal Rule of Civil Procedure 60(b)(1) is DENIED.*fn1


This case arises out of a dispute between Plaintiff and American Express regarding an outstanding amount due on Plaintiff's American Express Business Gold Card account (the "Account"), to which he allegedly made regular and timely payments until approximately mid-2008. (PSGI No. 1; DSUF No. 1.)*fn2 As of November 9, 2008, the Account balance was $41,166.92, with a past due amount of $22,515.07. (Garabedian Decl., Exh. B.) In an attempt to resolve Plaintiff's debt and return his account to current status, on November 23, 2008, American Express sent a letter to Plaintiff detailing a proposed payment plan (the "Payment Plan Letter"). (PSGI No. 3; DSUF No. 4.) The Payment Plan Letter states, in pertinent part:

We are writing to make you aware of a payment plan that may help you resolve your debt with American Express.

This is a unique opportunity in which you will be able to return your account to a current (non-delinquent) status through a payment plan, over a specified period of time. Also, as long as you comply with the terms of the plan, you will receive the following assistance:

* If applicable, your Annual Percentage Rate will be lowered, and

* You will not be charged for additional late fees or over-limit fees, if applicable, that may otherwise accrue on your account while you are covered by the plan We hope that you seriously consider the benefits of this offer.

Please call us today at the number on the back of your Card to discuss your participation. We are available to assist you with your account at any time. (Corby Decl., Exh. 1; Garabedian Decl., Exh. C.) In response to this letter, Plaintiff contacted American Express via telephone twice on November 26, 2008. (PSGI No. 5; Corby Decl, Exh. 2.) Plaintiff alleges that during the November 26, 2008 phone conversations, the parties reached an agreement whereby the Account was placed on a twelve-month payment plan, with reduced payments to begin on December 4, 2008. (PSGI Nos. 5, 6.) Plaintiff further alleges that the agreement provided that American Express would not report Plaintiff to any credit reporting agencies ("CRAs") during the twelve-month plan, provided that he made his payments. (PSGI No. 7.) While American Express concedes that an agreement was indeed reached, (DRPSGI No. 9; Corby Decl., Exh. 4 at 8), it disputes the terms of the agreement. Specifically, American Express asserts that it never agreed to any terms that were not set forth in the November 23, 2008 letter, including its alleged concession to refrain from reporting Plaintiff to the CRAs. (DRPSGI Nos. 5-9.)

Notwithstanding this dispute, Plaintiff made payments to the Account in the amount of $3,470.00 each month from December 2008 until July 2009. (PSGI No. 9; Garabedian Decl., Exh. B.) Plaintiff contends, and Defendant does not dispute, that American Express did not report any negative activity to any of the CRAs until July 2009. (PSGI No. 11; DRPSGI No. 11.) Plaintiff's credit report indicates that on July 3, 2009, American Express "charged off" the Account. (Corby Decl., Exh. 5.) Although Plaintiff contacted American Express on July 3, 2009 regarding the dispute, (PSGI No. 13; DRPSGI No. 13), he first informed Experian of the dispute in a letter dated April 4,

2010, (DSUF No. 17).

As a result of the foregoing events, on July 27, 2010, Plaintiff filed a Complaint in this Court against American Express, Transunion Corp., Equifax, Inc., and Experian Information Solutions, Inc. (collectively, "Defendants"),*fn3 alleging claims for violation of the Fair Credit Reporting Act (the "FCRA") and violation of the California Rosenthal Fair Debt Collection Practices Act (the "RFDCPA"). (Dkt. No. 1.) Thereafter, on May 9, 2011, pursuant to the parties' stipulation, the Court dismissed Defendants, Equifax, Inc.; Experian Information Solutions, Inc.; and TransUnion Corp. from the case. (Dkt. No. 41.) Consequently, American Express is the only remaining Defendant in this case.

Plaintiff contends that, as a result of American Express's alleged wrongful conduct, Plaintiff was unable to obtain credit, which, in turn, prevented him from "expanding his business." (Corby Decl. ¶ 19.) In this regard, Plaintiff claims that his inability to obtain credit prevented him from obtaining bidder bonds for and/or completing several projects, including:

1. The Fresno County Sheriff/Department of Homeland Security System Project in 2009, which had an "estimated potential net loss" of $350,000. (Corby Decl. ¶ 19a.)

2. The West L.A. College Project in November 2009, which had an estimated net loss of $55,000. (Corby Decl. ¶ 19b.)

3. The Apple Construction Project in February 2010, which had an estimated net loss of $23,000. (Corby Decl. ¶ 19c.)

4. The Bedrosians Marble & Tile Project in May 2010, which had an estimated loss of $25,000. (Corby Decl. ¶ 19d.)

Additionally, Plaintiff claims his inability to obtain credit caused the following:

1. Plaintiff's inability to lease a Toyota Camry in October 2009. (Corby Decl. ¶ 20a.)

2. Plaintiff's inability to send his two children to private high school. ...

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