Lillie M. Middlebrooks v. Equifax, Inc., et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11086
Non-Argument Calendar
____________________
LILLIE M. MIDDLEBROOKS,
Plaintiff-Appellant,
versus
EQUIFAX, INC.,
EQUIFAX INFORMATION SERVICES,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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2 Opinion of the Court 23-11086
D.C. Docket No. 1:20-cv-01825-SCJ
____________________
Before: WILSON , J ILL PRYOR , and L UCK , Circuit Judges.
PER CURIAM:
Lillie Middlebrooks, proceeding pro se, appeals from the dis-
trict court’s orders granting summary judgment in favor of
Equifax, Inc. (“EFX”) and Equifax Information Services, LLC
(“EIS”) (collectively, “Equifax”) and denying her Federal Rule of
Civil Procedure 60(b) motion to vacate the district court’s order
placing unredacted documents filed by Equifax under seal and or-
dering Equifax to file reacted copies of the documents. She also
challenges the district court’s denial of her motions for sanctions
against Equifax for Equifax’s failure to timely identify witnesses
and file initial disclosures. After careful review, we affirm.
I.
Middlebrooks is a consumer. In 2018, she disputed two ac-
counts on her Equifax credit report and sought to obtain a home
mortgage. This case arises out of these events.1
1 Because we review the district court’s grant of summary judgment in favor
of Equifax, we recount the facts in evidence in the light most favorable to Mid-
dlebrooks, the nonmovant. See Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253,
1263–64 (11th Cir. 2010). We note where facts are disputed.
Much of the evidence we describe here comes from a declaration by
Equifax’s Litigation Support Manager, Celestine Gobin. Middlebrooks argues
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23-11086 Opinion of the Court 3
EFX, a holding company, owns EIS and uses it as a store-
house of consumer credit information. Together, they comprise
Equifax, which has three functions relevant here. First, Equifax col-
lects and stores consumer credit information. Equifax collects
credit information from “data furnishers”—entities that report con-
sumer credit information. Doc. 122-1 at 6.2 Data furnishers are sub-
ject to a due diligence process, must certify that they will abide by
the Fair Credit Reporting Act (“FCRA”), and must sign an agree-
ment with Equifax in which they agree to provide accurate data,
update data regularly, and have a process for verifying information.
EIS stores the data Equifax collects from data furnishers.
Second, Equifax responds to requests for a consumer’s credit
information. Equifax provides “consumer disclosures” in response
to requests by consumers. And it provides “consumer reports,” or
“credit reports,” in response to requests by third parties, such as a
credit grantor. These reports and disclosures summarize the con-
sumer’s credit history. Doc. 122-1 at 5.
Third, Equifax investigates consumer disputes about credit
information. A consumer may contact Equifax to dispute infor-
mation reported on her consumer report or disclosure. When
Equifax receives a dispute, EIS makes an electronic record of it and
any of Equifax’s subsequent actions relating to it. Equifax
in this appeal that the district court erred in considering this declaration. For
the reasons set forth in Part III, we reject Middlebrooks’s challenge to the
court’s consideration of this evidence.
2 “Doc.” numbers are the district court’s docket entries.
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4 Opinion of the Court 23-11086
investigates the dispute, including by reviewing information and
documents the consumer supplies and, if necessary, by asking the
data furnisher to investigate and advise as to whether the infor-
mation it has provided is accurate. If upon investigation Equifax
learns that a consumer’s credit information needs to be changed,
Equifax changes it. Regardless of whether it changes a consumer’s
information upon the conclusion of its investigation, Equifax noti-
fies the consumer of the results of the investigation.
Middlebrooks sent a letter to Equifax disputing two collec-
tion accounts from data furnisher Fair Collections & Outsourcing
(“FCO”) that were being collected on behalf of a creditor, Lasalle
Investment Management. Middlebrooks stated that two FCO col-
lection accounts, one for $1,000 and one for $189, were not hers
and were fraudulently placed in her consumer credit information
file, as she had never entered into a contract with Lasalle. Middle-
brooks did not include any documentation like a police report to
support her fraud allegation.
Equifax opened a case for investigation based on Middle-
brooks’s letter, notified FCO of the dispute, and sent FCO Auto-
mated Consumer Dispute Verification (“ACDV”) forms requesting
investigations into each account. FCO returned the ACDV forms
with its investigation results, advising that the $1,000 debt should
be deleted from Middlebrooks’s file but that the $198 debt be-
longed to Middlebrooks and was reported accurately. On both
forms, FCO listed its “Responder” as “Cristina Manalo.” Doc. 122-
1 at 18, 20. FCO provided Equifax with the consumer information
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23-11086 Opinion of the Court 5
it relied upon to conclude that the $198 collection account was
valid, and Equifax, as part of its investigation, confirmed that the
information FCO provided matched information it had collected
on Middlebrooks. Equifax then informed Middlebrooks that it had
deleted the $1,000 debt but not the $198 debt.
Middlebrooks then filed a complaint alleging that Equifax vi-
olated the FCRA’s requirements that a credit reporting agency fol-
low reasonable procedures (1) “to assure maximum possible accu-
racy of the information” about a consumer in her credit report, 15
U.S.C. § 1681e, and, (2) when a consumer initiates a dispute as to
the accuracy of information, “conduct a reasonable reinvestigation
to determine whether the disputed information is inaccurate,” id.
§ 1681i(a)(1)(A). The complaint alleged that Middlebrooks sought
a home mortgage from three lenders and that Equifax provided
each lender a credit report with the $198 delinquent and unpaid
collection account, an amount resulting in a lower credit score than
should have been reported. As a result of this incorrect credit score,
the complaint alleged, Middlebrooks received unfavorable mort-
gage interest rates and borrowing limits. The complaint also al-
leged that Middlebrooks again disputed the $198 account in 2020
and that Equifax deleted the charge from her credit file.
This case thereafter “followed a frustrating path,” Doc. 142
at 4, and we recount only the events relevant to this appeal. Dis-
covery began, closed, was reopened, and then closed again. Even-
tually, with Equifax’s motion for summary judgment pending,
Middlebrooks moved for sanctions against Equifax. Middlebrooks
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6 Opinion of the Court 23-11086
asserted that Equifax failed to timely provide initial disclosures as
required by Federal Rule of Civil Procedure 26(a)(1) and also failed
to produce any documents in discovery, thereby depriving her of
the opportunity to prepare an effective defense to the summary
judgment motion. Specifically, Middlebrooks argued that Equifax
failed to provide initial disclosures until after the close of discovery
and in so doing failed to identify a key witness, Equifax’s Litigation
Support Manager Celestina Gobin. Middlebrooks asked the district
court to strike Gobin’s declaration, several paragraphs in Equifax’s
statement of material facts, and documents supporting the motion
for summary judgment, including the ACDV forms.
Equifax admitted that it had failed to provide initial disclo-
sures until after the close of discovery. But, it argued, the oversight
was inadvertent, and, in any event, it had identified Gobin as a po-
tential witness in interrogatory responses provided before the close
of discovery. Thus, Equifax argued, Middlebrooks was on notice
that Gobin was likely to have discoverable information. Equifax
stated that it was willing to withdraw its pending motion for sum-
mary judgment and refile it after Middlebrooks was afforded an op-
portunity to conduct additional discovery.
A magistrate judge concluded that Equifax’s failure to make
initial disclosures by the deadline was not “substantially justified”
but “at least arguably harmless.” Doc. 96 at 6. The judge further
noted that Equifax had offered to withdraw its pending motion for
summary judgment and reopen discovery for Middlebrooks. This
remedy, the judge found, “would substantially eliminate any
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23-11086 Opinion of the Court 7
prejudice” Middlebrooks suffered. Id. Thus, the judge ordered that
Equifax’s pending motion for summary judgment be withdrawn,
that discovery be reopened “for the sole purpose of allowing [Mid-
dlebrooks] the opportunity to depose any witnesses listed in
Equifax’s belatedly provided initial disclosures,” and otherwise de-
nied Middlebrooks’s motions. Id. at 8. Over Middlebrooks’s objec-
tions, the district court adopted the magistrate judge’s order.
At the close of the reopened discovery period (during which
time Middlebrooks did not depose Gobin), Equifax again moved
for summary judgment. As relevant to this appeal, Equifax argued
that both of Middlebrooks’s FCRA claims could succeed only if she
had put forth evidence that her credit report contained an inaccu-
racy, and she had offered only conclusory allegations to that effect.
Equifax attached to its motion several unredacted, unsealed docu-
ments that contained personal identifying information, including
Middlebrooks’s full social security number and date of birth. Upon
a motion by Middlebrooks, the magistrate judge ordered the of-
fending documents sealed and further ordered Equifax to file re-
dacted versions of the documents in compliance with the court’s
relevant standing order and Federal Rule of Civil Procedure 5.2.
Middlebrooks moved for relief from the magistrate judge’s
order under Rule 60(b), arguing that the judge had erred in permit-
ting Equifax to file (and rely upon) redacted and sealed documents.3
3 Middlebrooks moved for relief pursuant to Rule 60(b)(1), which permits a
district court to relieve a party from a final judgment, order, or proceeding
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8 Opinion of the Court 23-11086
The proper relief, she argued, would have been for the exhibits to
be “completely stricken” from the court’s docket. Doc. 129 at 2.
She also argued that “the district court was mandated to destroy
and expunge” the documents. Id. at 16. The magistrate judge de-
nied Middlebrooks’s motion, reasoning that because courts have
authority to order documents to be sealed or redacted either by
motion or sua sponte, the court did not err in ordering the exhibits
sealed or filed redacted.
The magistrate judge also issued a report and recommenda-
tion (“R&R”) recommending that Equifax’s motion for summary
judgment be granted. The judge concluded that despite Middle-
brooks’s many protestations about Equifax’s litigation strategy,
“she offers no evidence that there was an inaccuracy in her report.”
Doc. 131 at 9.
Middlebrooks objected to both orders. The district court,
however, adopted the R&R, granted summary judgment in favor
of Equifax, and denied Middlebrooks’s Rule 60(b) motion. As to the
summary judgment motion, the district court agreed with the mag-
istrate judge that Middlebrooks “did not provide the Court with
any evidence showing that the Credit Report was inaccurate so as
to create a material dispute of fact.” Doc. 142 at 29. Because both
of Middlebrooks’s claims could succeed only upon a finding that
Equifax’s report contained factually inaccurate information, the
because of “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ.
P. 60(b)(1).
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23-11086 Opinion of the Court 9
court concluded that she could not as a matter of law succeed on
either claim.
The district court concluded that Middlebrooks’s Rule 60(b)
motion was due to be denied. The court explained that sealing and
ordering redaction of the offending documents remedied Middle-
brooks’s harm and that “there is no additional benefit in destroying
or expunging these documents.” Id. at 33. Plus, the court explained,
destroying documents “is inconsistent with the common-law right
of access to judicial proceedings.” Id. at 34. Finally, the court con-
cluded that the magistrate judge, “pursuant to his inherent author-
ity to control his docket, could sua sponte seal documents” and did
not clearly err in ordering other documents filed redacted. Id.
Middlebrooks has appealed, challenging the district court’s
refusal to exclude Gobin’s declaration and related documents, de-
nial of Rule 60(b) relief, and grant of summary judgment in favor
of Equifax.
II.
We review a district court’s decision on whether and how to
sanction a party under Federal Rule of Civil Procedure 37(c)(1) for
an abuse of discretion. Hearn v. McKay, 603 F.3d 897, 903 (11th Cir.
2010). We also review the district court’s denial of a Rule 60(b) mo-
tion for an abuse of discretion. Fed. Trade Comm’n v. Nat’l Urological
Grp., Inc., 80 F.4th 1236, 1241 (11th Cir. 2023). This standard gives
the district court a “range of choice[,] so long as that choice does
not constitute a clear error of judgment.” Fuentes v. Classica Cruise
Operator Ltd, Inc., 32 F.4th 1311, 1321 (11th Cir. 2022) (alteration and
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10 Opinion of the Court 23-11086
internal quotation marks omitted). “In other words, a district court
has broad, yet not unbridled, discretion in deciding whether to im-
pose evidentiary sanctions.” Id. (internal quotation marks omitted).
“A district court abuses its discretion only when it misapplies the
law or bases its decision on findings of fact that are clearly errone-
ous.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292,
1313 (11th Cir. 2011).
We review the district court’s grant of summary judgment
de novo. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1263 (11th Cir.
2010). Summary judgment is appropriate if, construing the evi-
dence in the light most favorable to the nonmovant, the movant
shows that there is no genuine dispute of material fact, and the mo-
vant is entitled to judgment as a matter of law. Id. at 1263–64. The
party moving for summary judgment “bears the initial responsibil-
ity of informing the district court of the basis for its motion and
identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits,
if any, which it believes demonstrate the absence of a genuine issue
of material fact.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1292
(11th Cir. 2012) (alteration and internal quotation marks omitted).
“The burden then shifts to the non-moving party to rebut that
showing by producing affidavits or other relevant and admissible
evidence beyond the pleadings.” Id. (internal quotation marks
omitted). A plaintiff must point to “specific facts in the record that
could lead a rational trier of fact to find in his favor.” Beard v. Banks,
548 U.S. 521, 535 (2006) (internal quotation marks omitted).
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23-11086 Opinion of the Court 11
III.
Middlebrooks mounts three challenges on appeal. First, she
argues that because Equifax failed to timely disclose Gobin as a wit-
ness as required by the Federal Rules of Civil Procedure, the district
court should have excluded from the record Gobin’s declaration
and exhibits like the ACDV form attached to it when the court con-
sidered Equifax’s motion for summary judgment. Second, Middle-
brooks challenges the district court’s grant of summary judgment
in favor of Equifax, arguing that she did not bear the burden to
prove that her credit report contained an inaccuracy.4 Third, she
challenges the district court’s denial of her Rule 60(b) motion, ar-
guing that Equifax had attempted a “trial by ambush” and so it
4 Middlebrooks also argues that the district court erred in treating EFX and EIS
as one entity for purposes of determining whether either, or both, was a credit
reporting agency and therefore subject to the FCRA. Middlebrooks misses the
point. It is true that EFX maintained in the district court that it was not a credit
reporting agency, and that Middlebrooks disputed that fact. But it is also true,
as the magistrate judge noted, that Equifax—that is, both EFX and EIS—would
be entitled to summary judgment even if EFX was a credit reporting agency
because Middlebrooks failed to present any evidence showing that her credit
report contained an inaccuracy. In other words, even construing the disputed
fact regarding EFX’s status as a credit reporting agency in the light most favor-
able to Middlebrooks, Middlebrooks could not prevail. Because, as we explain
above, we agree that Middlebrooks offered no evidence of an inaccuracy, we
can make the same assumption in Middlebrooks’s favor regarding EFX’s status
as a credit reporting agency.
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12 Opinion of the Court 23-11086
should have been subject to greater sanctions. Appellant’s Br. at 53.
As we explain below, we reject Middlebrooks’s arguments.5
Federal Rule of Civil Procedure 26 requires a party to dis-
close via initial disclosures any individual likely to have discovera-
ble information that the party may use to support its claims or de-
fenses. Fed. R. Civ. P. 26(a)(1)(A)(i); see Fed. R. Civ. P. 26(e) (requir-
ing parties to supplement incomplete disclosures in a timely man-
ner). The district court, by adopting the magistrate judge’s order,
found Equifax in violation of Rule 26. Federal Rule of Civil Proce-
dure 37 gives a district court “discretion to decide how to respond
to a litigant’s failure to make a required disclosure under Rule 26.”
Taylor v. Mentor Worldwide LLC, 940 F.3d 582, 593 (11th Cir. 2019).
Specifically, Rule 37 provides that “[i]f a party fails to provide infor-
mation or identify a witness as required by Rule 26(a) or (e),” the
district court may exclude that information or witness “unless the
failure was substantially justified or is harmless,” or, “instead of this
sanction, . . . may impose other appropriate sanctions.” Fed. R. Civ.
P. 37(c)(1), (c)(1)(C).
5 Middlebrooks advances several additional arguments on appeal, including
that the district court erroneously found that she had failed to alert the court
to Equifax’s discovery violations; that 45 days was insufficient time for her to
prepare to depose Gobin; that she would not have been able to depose Gobin
effectively because Equifax allegedly did not produce her complete credit file
or a complete copy of its FCRA compliance practices; that Gobin’s declaration
was inadmissible for summary-judgment purposes because her signature was
typed, not handwritten; and that Equifax waived any argument that its proce-
dures were reasonable. We have carefully considered these arguments and
find no merit in them.
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23-11086 Opinion of the Court 13
Here, the district court did not abuse its broad discretion in
fashioning a sanction lesser than exclusion. See Fuentes, 32 F.4th at
1321. Even assuming Equifax’s failure to timely disclose Gobin as a
witness was neither substantially justified nor harmless, the court
rendered it harmless by reopening the discovery period so that
Middlebrooks could depose Gobin. That Middlebrooks did not de-
pose Gobin during that period does not render the remedy to the
violation meaningless.
Middlebrooks argues that Equifax’s violation of the district
court’s scheduling order (failing to timely disclose Gobin as a wit-
ness) was not good cause for the court’s modification of the sched-
uling order. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified
only for good cause and with the judge’s consent.”). Good cause or
not, modification of the scheduling order was within the district
court’s inherent authority. Dietz v. Bouldin, 579 U.S. 40, 45 (2016)
(explaining that a district court possesses “inherent powers that are
governed not by rule or statute but by the control necessarily
vested in courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases” (internal quotation
marks omitted)). Indeed, nothing in the Federal Rules of Civil Pro-
cedure or our case law prohibited the district court from remedy-
ing a party’s harm from an opposing party’s violation of a schedul-
ing order by modifying the scheduling order to give the harmed
party (and the harmed party alone) more time to conduct discov-
ery. Even looking at the district court’s decision to reopen discovery
for Middlebrooks through the lens of Rule 16(b)’s good-cause re-
quirement, it is easy to see that Equifax’s discovery violation
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14 Opinion of the Court 23-11086
supplied good cause for a remedy. At bottom, Middlebrooks quib-
bles with the remedy the district court chose. But because the dis-
trict court’s sanction was squarely within its broad range of
choices, we will not second guess it. Fuentes, 32 F.4th at 1321.
Middlebrooks further argues that the Gobin declaration
should have been excluded because it relied upon the ACDV
forms, and the “Responder” listed on those forms, Manalo, was
never disclosed to Middlebrooks as a witness. For the same reason,
she similarly argues that the ACDV forms should have been ex-
cluded. As the district court explained, Manalo was not a witness,
and so Equifax was not required to disclose her under Rule 26. See
Fed. R. Civ. P. 26(a)(1) advisory committee’s note to 2000 amend-
ment (“A party is no[t] . . . obligated to disclose witnesses or docu-
ments, whether favorable or unfavorable, that it does not intend to
use.”). Rather, Manalo merely prepared business documents upon
which Gobin relied. And since Middlebrooks had an opportunity
to depose Gobin, she had the opportunity to question Gobin’s reli-
ance on those documents. We also note, as did the district court,
that Middlebrooks received a copy of the ACDV forms well before
the close of discovery, so she cannot argue that Equifax failed to
disclose the documents themselves.
Given that the district court permissibly declined to exclude
the Gobin declaration and ACDV forms, we consider those docu-
ments in reviewing the district court’s summary judgment order.
The FCRA provides that a credit reporting agency preparing a con-
sumer report must follow reasonable procedures to assure the
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23-11086 Opinion of the Court 15
maximum possible accuracy of the information relating to the per-
son about whom the report relates. 15 U.S.C. § 1681e(b). Further,
if a consumer disputes the completeness or accuracy of any infor-
mation contained in her file and she notifies the credit reporting
agency of the dispute, the agency must “conduct a reasonable rein-
vestigation to determine whether the disputed information is inac-
curate.” Id. § 1681i(a)(1)(A). To establish a violation of either of
these FCRA provisions, the consumer must present evidence tend-
ing to show that the agency prepared a report containing inaccu-
rate information. Losch v. Nationstar Mortg. LLC, 995 F.3d 937,
944 (11th Cir. 2021) (setting forth the elements of a prima facie vi-
olation of § 1681e); Cahlin v. Gen. Motors Acceptance Corp., 936 F.2d
1151, 1160 (11th Cir. 1991) (setting forth the elements of a claim
under § 1681i), superseded by statute on other grounds as recognized in
Santos v. Healthcare Revenue Recovery Grp., LLC., 90 F.4th 1144, 1156
(11th Cir. 2024).
We agree with the district court that, in response to
Equifax’s evidence that the $198 collection amount indeed be-
longed to Middlebrooks, Middlebrooks offered no evidence that
this was inaccurate. Although Middlebrooks alleged in her com-
plaint that Equifax deleted the $198 collection account a couple of
years after she disputed it and the $1,000 account, she offered no
evidence to support this allegation. And our case law refutes Mid-
dlebrooks’s argument that she was not required to offer any evi-
dence to show an inaccuracy. An inaccuracy on her credit report is
an essential element of both of Middlebrooks’s claims. 15 U.S.C.
§§ 1681e(b), 1681i(a)(1)(A). Equifax bore its initial burden to show
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16 Opinion of the Court 23-11086
that the report was accurate. At that point, the burden shifted to
Middlebrooks to offer some evidence to refute Equifax’s evidence.
Jones, 683 F.3d at 1292; Beard, 548 U.S. at 535. This she did not do.
Thus, the district court properly granted summary judgment in
Equifax’s favor. 6
Lastly, the district court did not abuse its discretion in deny-
ing Middlebrooks’s Rule 60(b) request to vacate the order sealing
Equifax’s unredacted filings and ordering Equifax to file redacted
versions of the documents. Middlebrooks argues that the district
court’s order permitting Equifax to file documents containing her
personal identifying information under seal and with redactions
constituted a “trial by ambush,” Appellant’s Br. at 53, but she fails
to explain how she was ambushed by the court’s order. Middle-
brooks knew the content of the filings when Equifax filed its mo-
tion for summary judgment. The court was within its authority to
order the offending documents sealed and redacted. See Perez-
6 For the first time in her reply brief, Middlebrooks argues that Equifax cannot
assert that she failed to show an inaccuracy in her credit report because
Equifax allegedly did not produce her credit file in discovery. She also argues
that the accuracy of the credit report is an “affirmative defense” that Equifax
waived. Reply Br. at 16. We will not consider arguments raised for the first
time in a reply brief. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682–
83 (11th Cir. 2014); see Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(explaining that our rule applies even to a brief filed by a pro se litigant). Even
if we were to consider these arguments, however, we would reject them. The
record shows that Middlebrooks was in possession of her credit file in June
2018, before she filed suit and long before the close of discovery. And, as we
set forth above, the existence of an inaccuracy is an element for stating a claim
under the FCRA, not an affirmative defense.
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23-11086 Opinion of the Court 17
Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1235 (11th Cir. 2013). Thus,
Middlebrooks has failed to show any abuse of the district court’s
discretion.
For the above reasons, we affirm.7
AFFIRMED.
7 Middlebrooks’s “Motion to Transfer Appeal to the Ninth Circuit Court of
Appeals” is DENIED. The appeal is properly in this Court because Middle-
brooks filed her action in the Northern District of Georgia.
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