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NICHOLAS COSMAS v. AMERICAN EXPRESS CENTURION BANK

November 30, 2010

NICHOLAS COSMAS,
PLAINTIFF,
v.
AMERICAN EXPRESS CENTURION BANK, DEFENDANT.



The opinion of the court was delivered by: /s/ Freda Wolfson United States District Judge

**FOR PUBLICATION**

WOLFSON, United States District Judge:

OPINION

Plaintiff Nicholas Cosmas ("Cosmas") brought his action under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., and various state laws. In ruling on Defendant American Express Centurion Bank's ("AMEX's") previous motion for summary judgment, the Court directed the parties to file supplemental briefing addressing whether Plaintiff's state-law based negligence and "malicious and retaliatory conduct" tort claims were preempted by the FCRA. Having reviewed the parties' submissions, the Court now grants summary judgment on these claims.

I. BACKGROUND AND PROCEDURAL HISTORY The pertinent facts are recited in this Court prior written opinion on Defendant's initial motion for summary judgment. Hence only a brief summary is provided here.

While working for Tri State Environmental Co., Inc. ("Tri State"), from the early nineties through approximately 2004, Cosmas was issued and utilized a company AMEX credit card. By October 2003, the balance on the business card was approximately $48,000. Tri-State failed in 2004, and AMEX hired a collection agency to collect the unpaid balance from Cosmas. The collection agency filed suit against Cosmas in 2005. Ultimately, the suit was dismissed in August of 2006, and judgment entered in Cosmas' favor, because the collection agency could not demonstrate that Cosmas contractually assumed personal liability for the business debts.

After the judgment was entered in Cosmas' favor, Cosmas noticed that the business debt continued to be reported on his personal credit report. He complained to AMEX and the collection agency but the business debt was not removed from his credit report. According to Cosmas, issuers of his other credit cards obtained copies of his report and either increased, or refused to decrease, the interest rates on his credit cards on account of the derogatory AMEX business card report.

Cosmas brought this suit, in November of 2007, to compel AMEX to cease reporting the business card debt on his credit report. In his complaint, the First Count sought "specific performance" to enjoin AMEX from continuing to report the account as delinquent and to require AMEX to contact the credit reporting agencies to remove the prior derogatory reports. Plaintiff's Second Count alleges negligence, and the Third Court "malicious and retaliatory conduct" for AMEX's continued reporting to the credit bureaus after the state court judgment was entered in Cosmas' favor. Lastly, the Fourth Count asserts a FCRA violation, alleging that AMEX had "actual knowledge that its reports are inaccurate ...." Id. at ¶ 3.

In its prior decision of June 11, 2010, the Court granted Defendant's motion for summary judgment with respect to the First Count, and denied summary judgment with respect to the Fourth Count. As to the Second and Third Counts, this Court denied summary judgment without prejudice and permitted Defendant to re-file its motion with a brief addressing whether the Second and Third Counts were preempted by the FCRA, or otherwise infirm. Defendant complied with the Court's directive, and the Court now grants summary judgment on the Second and Third Counts.

II. STANDARD OF REVIEW

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n. 1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56(c). For an issue to be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). For a fact to be material, it must have the ability to "affect the outcome of the suit under governing law." Kaucher, 455 F.3d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Monroe v. Beard, 536 F.3d 198, 206-07 (3d Cir. 2008). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to material facts." Id. at 206 (quoting Matsushita, 475 U.S. at 586). Moreover, the non-moving party must present "more than a scintilla of evidence showing that there is a genuine issue for trial." Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.

Moreover, in deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Nonmoving party cannot defeat summary judgment simply by asserting that certain evidence submitted by the moving party is not credible. S.E.C. v. Antar, 44 Fed.Appx. 548, 554 (3d Cir. 2002). III. DISCUSSION Cosmas brings negligence and "malicious and retaliatory conduct" claims under New Jersey law in the Second and Third Counts of the Complaint, respectively. AMEX moves for summary judgment on preemption grounds with respect to both claims. AMEX further argues, inter alia, that Cosmas's "malicious ...


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