On October 24, 2011, defendant Miguel Palacios ("defendant" or "Palacios") filed objections to the confidential settlement reached between plaintiff and defendants April Realty, Ernesto Garcia, Jenny Chipe, Bank of America, N.A., and Bank of America Corp. (ECF 53). (ECF 60.) Palacios asks that the court not dismiss these defendants unless the settlement is disclosed and setoff against any future award adjudged against the non-settling defendants. Plaintiff filed his response to Palacios's objections on November 7, 2011 (ECF 66); defendant Jenny Chipe filed her response on November 9, 2011 (ECF 68); and defendants Bank of America, N.A. and Bank of America Corp. filed their response on November 10, 2011 (ECF 69). The settling parties contend that there is no right to setoffs under the Fair Credit Reporting Act ("FCRA"), the basis for plaintiff's sole claim against defendants. Palacios filed his reply on November 17, 2011. (ECF 71.)
Palacios relies on McDermott, Inc. v. AmClyde and River Don Castings Ltd., 511 U.S. 202 (1994) and Jordan v. Equifax Info. Servs., LLC, 2008 U.S. Dist. LEXIS 23318 (N.D. Ga. Mar. 25, 2008), which are inapposite. The Court in McDermott found that "the liability of non-settling defendants should be calculated with reference to the jury's allocation of proportionate responsibility" in an admiralty case. 511 U.S. at 204. Palacios has not provided controlling authority to show this proposition is applicable to the present case. The court in Jordan considered "whether the liability of the non-settling defendants should be calculated in reference to the settling defendants regardless of [calculation] method used" in determining an award of attorney's fees. 2008 U.S. Dist. LEXIS 23318, at *6. Thus, Jordan did not apply McDermott's reasoning to the FCRA broadly, as Palacios intimates; rather, the Jordan court applied McDermott's reasoning to the allotment of attorney's fees in a case where an underlying claim was based on FCRA. Palacios does not cite to any authority specifically on point.
There are specific factors indicating whether a statute provides a right of contribution, and there is "no implied cause of action for indemnification in a federal statute where there was no such express right in the statute." Irwin v. Mascott, 94 F. Supp. 2d 1052, 1058-59 (N.D. Cal. 2000). Here, FCRA does not provide that a non-settling joint tortfeasor is entitled to any sort of credit as Palacios implies; rather, the language of the statute essentially provides that "any person" who is liable will pay any and all damages. See 15 U.S.C. § 1681n.
The court hereby overrules Palacios's objection and finds that the non-settling defendants are not entitled to disclosure of the settlement at this time, or to a setoff under FCRA. See Brim v. Midland Credit Mgmt., 2011 U.S. Dist. LEXIS 75714, *24 (N.D. Ala. May 4, 2011) ("There is no right to offset or contribution under the FCRA."); Jansen v. Equifax Info. Servs., LLC, 2010 U.S. Dist. LEXIS 79760, **5-6 (D. Or. Aug. 6, 2010) (finding no right to contribution or indemnification under FCRA); Nelson v. Equifax Info. Servs. LLC, 522 F. Supp. 2d 1222, 1239 (C.D. Cal. 2007) (stating that FCRA is distinct cause of action from the Fair Debt Collection Practices Act and "[t]here is no equitable offset for either of these causes of action");
McMillan v. Equifax Credit Info. Servs., Inc., 153 F. Supp. 2d 129, 132 (D. Conn. 2001) ("Courts have found that the FCRA does not provide a right to indemnification.").
Accordingly, the court DISMISSES defendants April Realty and Ernesto Garcia with prejudice as provided by the parties' stipulation of December 5, 2011. (ECF 74.) In addition, the court ORDERS plaintiff and defendants Bank of America Corp., Bank of America, N.A., and Jenny Chipe to file dispositional documents within thirty (30) days of the entry of this order.
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