Frank McKenna v. Dillon Transportation, LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0073p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FRANK MCKENNA,
Plaintiff-Appellant,
v.
DILLON TRANSPORTATION, LLC,
Defendant-Appellee.
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No. 23-5568
Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No. 3:22-cv-00129—Waverly D. Crenshaw, Jr., District Judge.
Argued: March 21, 2024
Decided and Filed: April 2, 2024
Before: GRIFFIN, THAPAR, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Gary D. Copas, Nashville, Tennessee, for Appellant. Jeffrey E. Cox, LAW
OFFICE OF SEATON & HUSK, LP, Vienna, Virginia, for Appellee. ON BRIEF: Gary D.
Copas, Nashville, Tennessee, for Appellant. Jeffrey E. Cox, Henry E. Seaton III, LAW OFFICE
OF SEATON & HUSK, LP, Vienna, Virginia, for Appellee.
_________________
OPINION
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NALBANDIAN, Circuit Judge. HireRight, LLC is a consumer reporting agency that
collects information about truck drivers and then provides that information to employers who are
thinking about hiring those drivers. Defendant Dillon Transportation, LLC gave HireRight a
report about one of its former drivers, Plaintiff Frank McKenna. McKenna later sued Dillon for
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defamation based on the report. On summary judgment, the district court found that the Fair
Credit Reporting Act preempted McKenna’s claim. The court also refused to defer its ruling to
let McKenna obtain additional discovery. McKenna appeals, but finding no error, we AFFIRM.
I.
Dillon Transportation, LLC is a motor carrier. Dillon employed Frank McKenna as a
truck driver. After McKenna’s tractor trailer overturned around January 5, 2017, Dillon fired
him in February 2017. Dillon later submitted a “DAC Report” about McKenna to a company
called HireRight, LLC. R.22-4, Koharik Affidavit, p. 1, PageID 181.1 Employers like Dillon
subscribe to HireRight’s services so they can use DAC Reports to perform background checks on
driver applicants.
Dillon stated that McKenna had an unsatisfactory safety record and noted that he had
been involved in an accident—information available to anyone who viewed HireRight’s report.
But according to HireRight’s records, no motor carriers have requested McKenna’s DAC report.
McKenna himself admitted he could not show that any carrier had requested the report.
In February 2022, McKenna sued Dillon under state law for defamation and tortious
interference with a business relationship. McKenna contends that, to the extent that the report
implies that he was responsible for the January 2017 accident and had an unsafe driving record
overall, it was defamatory and resulted in his inability to secure later employment. After some
discovery, Dillon moved for summary judgment. Dillon argued that the Fair Credit Reporting
Act, 15 U.S.C. § 1681 et seq., preempted McKenna’s claims.
McKenna responded that a Department of Transportation regulation, 49 C.F.R. § 391.23,
applied instead and permitted his defamation claim. McKenna also moved to defer consideration
of the motion under Federal Rule of Civil Procedure 56(d) so he could obtain documents about
McKenna’s accident that Dillon sent to its insurance carrier. In support, McKenna’s attorney
asserted that any communication to the insurer blaming McKenna for the accident “would be
false and injurious to [McKenna’s] reputation.” R.32-1, Copas Decl., p. 5, PageID 544.
1“DAC Report” apparently means “Drive-A-Check Report.” Appellant Br. at 7.

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The district court granted summary judgment, concluding that McKenna’s claims were
preempted by the Fair Credit Reporting Act. The district court also decided that more discovery
was unnecessary because McKenna was not diligent, and the discovery sought “has no bearing
and doesn’t change the outcome on summary judgment.” R.42, Tr., pp. 35–36, PageID 629–30.
II.
This case involves two issues: First, does the Fair Credit Reporting Act, 15 U.S.C.
§ 1681 et seq., as amended, preempt McKenna’s defamation claim?2 Second, did the district
court abuse its discretion in refusing McKenna additional discovery before summary judgment?
A.
We start with the Fair Credit Reporting Act (FCRA) and review the district court’s grant
of summary judgment de novo. Cash-Darling v. Recycling Equip., Inc., 62 F.4th 969, 974–75
(6th Cir. 2023). The FCRA provides that a “person shall not furnish any information relating to a
consumer to any consumer reporting agency if the person knows or has reasonable cause to
believe that the information is inaccurate.” 15 U.S.C. § 1681s-2(a)(1)(A). In addition, it
prohibits states from imposing a requirement or prohibition “with respect to any subject matter
regulated under” § 1681s-2. 15 U.S.C. § 1681t(b)(1)(F).3 We have concluded that
§ 1681t(b)(1)(F) “preempts state common law claims involving a furnisher’s reporting of
information to consumer reporting agencies.” Scott v. First S. Nat’l Bank, 936 F.3d 509, 519 (6th
Cir. 2019).
This preemption clause applies here. The district court found that, under the FCRA,
McKenna was a consumer, HireRight was a consumer reporting agency, and Dillon was “a
furnisher or provider of information.” R.42, Tr., p. 32, PageID 626. McKenna does not contest
those findings on appeal. We agree that “consumer reporting agency” generally includes
companies like HireRight that sell employment-history reports. See 15 U.S.C. § 1681a(d), (f);
Maiteki v. Marten Transp. Ltd., 828 F.3d 1272, 1273 (10th Cir. 2016) (calling HireRight a
2McKenna abandoned his tortious interference claim before the district court. And on appeal, he asks us to
reverse summary judgment on only the defamation claim.
315 U.S.C. § 1681t(b)(1)(F) provides two exceptions, but neither is relevant.

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consumer reporting agency). So, on its face, § 1681t bars McKenna’s defamation suit, since it
preempts state causes of action based on providing information to HireRight.
McKenna points to a different source of law that he says authorizes his lawsuit. A federal
regulation requires motor carriers to investigate a driver’s “safety performance history with
Department of Transportation regulated employers” when they hire that driver. 49 C.F.R.
§ 391.23(a)(2). Presumably to facilitate the flow of truthful information, the regulation generally
preempts certain state-law claims against the motor carriers and the providers of the information
that could arise out of the furnishing of those safety performance records. § 391.23(l). That
preemption clause closely resembles the governing statute, 49 U.S.C. § 508, which provides:
Limitation on liability. No action or proceeding for defamation, invasion of
privacy, or interference with a contract that is based on the furnishing or use of
safety performance records in accordance with regulations issued by the Secretary
may be brought against—
(1) a motor carrier requesting the safety performance records of an
individual under consideration for employment as a commercial motor
vehicle driver as required by and in accordance with regulations issued
by the Secretary;
(2) a person who has complied with such a request; or
(3) the agents or insurers of a person described in paragraph (1) or (2).
§ 508(a).4 But importantly, unlike the FCRA, § 508 does not exempt from suit those “who
knowingly furnish false information.” § 508(b)(3). Because his case involves a motor carrier,
McKenna argues that his suit can be brought under this statute.
McKenna’s argument runs into several problems. First, § 508(a) protects a person
supplying safety performance records “of an individual under consideration for employment.”
No motor carriers requested McKenna’s DAC report, so for purposes of the statute he may never
449 C.F.R. § 391.23(l) was promulgated in response to the enactment of 49 U.S.C. § 508. See
Transportation Equity Act for the 21st Century, Pub. L. 105-178, § 4014, 112 Stat. 107, 410 (1998) (codified at
49 U.S.C. § 508); Safety Performance History of New Drivers, 68 FR 42339, 42350, 42359–60 (July 17, 2003)
(supplemental notice of proposed rulemaking); Safety Performance History of New Drivers, 69 FR 16684, 16721
(March 30, 2004) (final rule, codified at 49 C.F.R. pts. 390–391). While McKenna looks primarily to the regulation,
we focus on the statute, which has the same operative terms.

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have been “under consideration.” Second, we are not confident that McKenna created a genuine
issue of fact about whether Dillon acted “knowingly,” as opposed to negligently.5
But even if § 508 covers McKenna, that still leaves the FCRA preemption provision.
McKenna responds that we should harmonize the two preemption statutes by giving priority to
the more specific statute, essentially reading § 508 to create an exception to 15 U.S.C. § 1681t.
Appellant Br. at 25–27. Granted, we’ve said, “Where there is no clear intention otherwise, a
specific statute will not be controlled or nullified by a general one, regardless of the priority of
enactment.” United States v. Hunter, 12 F.4th 555, 567 (6th Cir. 2021) (emphasis omitted)
(quoting Morton v. Mancari, 417 U.S. 535, 550–51 (1974)). This general-specific canon applies
to statutes with conflicting provisions and statutes with “a specific provision that is swallowed by
[a] general one.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645
(2012). So conflict between the relevant provisions is key.
And in this vein, the Supreme Court has cautioned that “repeals by implication are not
favored.” Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1323 (2020) (quoting
Morton, 417 U.S. at 549). “Presented with two statutes, the Court will regard each as effective—
unless Congress’ intention to repeal is clear and manifest, or the two laws are irreconcilable.” Id.
(cleaned up). An implied repeal has occurred when “the latter Act covers the whole subject of
the earlier one and ‘is clearly intended as a substitute.’” Carcieri v. Salazar, 555 U.S. 379, 395
(2009) (quoting Branch v. Smith, 538 U.S. 254, 273 (2003) (plurality opinion)). But when
statutes complement each other, because “each has its own scope and purpose,” courts should let
them operate side-by-side. POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 115 (2014).
The two preemption statutes here complement each other, so they can coexist. 15 U.S.C.
§ 1681t stops states from regulating false reports to consumer reporting agencies, including
agencies that provide background checks. 49 U.S.C. § 508 blocks specific causes of action
against those who answer a motor carrier’s request for employment information. One regulates
the consumer reporting industry. Another regulates the hiring of commercial drivers.
5We are not even certain that 49 U.S.C. § 508(a)(2) covers an employer who uses a third-party
intermediary like HireRight. In that situation, who “complie[s] with” requests for records as they arise? The
original source of the records (Dillon), the immediate source of the records (HireRight), or both?

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The statutes have different textual purposes and scopes, and neither swallows the other.
Communications between motor carriers about driver applicants would only fall under § 508.
And only 15 U.S.C. § 1681t would cover cases without a request for records or an individual
under consideration for employment. That the FCRA is a more general law that covers more
conduct than 49 U.S.C. § 508 doesn’t change this. Greater specificity only matters if two
complementary acts cannot be implemented at the same time. POM Wonderful, 573 U.S. at 118.
And the statutes do not conflict—one simply provides more protection for companies in Dillon’s
position. So we give both statutes full effect rather than resorting to the specific-general canon.
Dillon can invoke one preemption clause even if it cannot invoke the other.
McKenna makes several arguments to the contrary, but none are persuasive. He invokes
the in pari materia canon. But even if we applied the canon and read the two statutes “as if they
were one law,” United States v. Soto, 794 F.3d 635, 654 (6th Cir. 2015) (quoting Wachovia Bank,
N.A. v. Schmidt, 546 U.S. 303, 316 (2006)), we would still give each provision its full effect.
McKenna also appeals to the Secretary of Transportation’s authority to enforce the FCRA. See
15 U.S.C. § 1681s(b)(1)(C). But the Secretary’s authority, however great, cannot alter the plain
meaning of 15 U.S.C. § 1681t. And McKenna’s argument that the district court misunderstood
49 C.F.R. § 391.23 is ultimately irrelevant to our ruling. Because § 1681t preempts McKenna’s
claim, we need not decide whether the regulation also applies to him.
B.
McKenna argues that the district court should not have ruled on Dillon’s summary
judgment motion until Dillon produced documents that it sent to its insurance carrier about
McKenna’s accident. Appellant Br. at 27–28. We review a district court’s ruling on a motion
under Federal Rule of Civil Procedure 56(d) for abuse of discretion. Doe v. City of Memphis,
928 F.3d 481, 486 (6th Cir. 2019).
A party cannot oppose summary judgment by asking to develop a new claim that does not
appear in the pleadings. Parties are not entitled to use discovery “to develop new claims or
defenses that are not already identified in the pleadings.” Fed. R. Civ. P. 26(b)(1) advisory
committee’s note to 2000 amendment; see also Wright & Miller, Federal Practice & Procedure

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§ 2008 (West 2023) (discussing the committee note). Nor can a plaintiff oppose summary
judgment by asserting new claims. Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394,
400 (6th Cir. 2007). It follows that parties cannot postpone summary judgment by requesting
supplemental discovery on a new claim. This fits our precedent that district courts can deny a
Rule 56(d) motion that asks for irrelevant discovery. See Doe, 928 F.3d at 490.
The district court did not err in denying McKenna’s motion. McKenna wanted
documents that Dillon sent to its insurer. The problem is that McKenna’s complaint alleged that
Dillon defamed him to prospective employers. See R.1, Compl., pp. 6–7, PageID 6–7. It never
mentioned Dillon’s insurer. So the complaint provided no notice that McKenna’s claims related
to communications with the insurer. See Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722
(6th Cir. 2010) (stating that factual allegations in the complaint must give sufficient notice to the
defendant). McKenna sought discovery on a new claim, and the district court rightly rejected
that request.
III.
For all these reasons, we AFFIRM the grant of summary judgment.

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