Henry Losch v. Experian Information Solutions, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12421
____________________
HENRY LOSCH,
a.k.a. John Losch,
Plaintiff-Appellant,
versus
NATIONSTAR MORTGAGE LLC
d.b.a. Cooper, Mr.,
Defendant,
EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant-Appellee.
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2 Opinion of the Court 22-12421
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:18-cv-00809-MRM
____________________
Before J ORDAN, L AGOA, and H ULL , Circuit Judges.
PER CURIAM:
In Losch v. Nationstar Mortgage LLC, 995 F.3d 937, 947–48
(11th Cir. 2021) (Losch I), we reversed the district court’s grant of
summary judgment in favor of Experian on Henry Losch’s claims
under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681e & 1681i
(“FCRA”), and remanded for a jury trial. The jury found in favor
of Experian, and Mr. Losch now appeals.
Following oral argument and a review of the record, we af-
firm. Because we write for the parties, we assume their familiarity
with the record and set out only what is necessary to explain our
decision.1
I
Mr. Losch argues that the district court erred in a number of
its evidentiary rulings. Reviewing for abuse of discretion, see Gen.
1As to any arguments not discussed, we summarily affirm.
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22-12421 Opinion of the Court 3
Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997), we discern no reversible
error.
First, the district court did not abuse its discretion in admit-
ting some of the filings from Mr. Losch’s bankruptcy proceedings.
Mr. Losch contends that the filings were irrelevant, but we disa-
gree. “Rule 401 adopts a very broad concept of relevance,” Roger
C. Park & Aviva Orenstein, Trial Objections Handbook 2d § 2:1
(Sept. 2023), and the filings were relevant to whether Experian’s
policy—to not review bankruptcy court dockets when faced with
a consumer’s claim of a bankruptcy discharge—was reasonable.
Although it is undisputed that Experian did not look at the record
in Mr. Losch’s bankruptcy case, the purported complexity of bank-
ruptcy filings to some degree supported Experian’s contention that
its do-not-review policy was reasonable under the FCRA. Moreo-
ver, given that the district court told the jury that the Nationstar
debt had been discharged, and that Experian’s reporting was incor-
rect, Mr. Losch was able to argue to the jury that the bankruptcy
filings did not matter with respect to reasonableness.
Second, the district court did not err in admitting into evi-
dence Mr. Losch’s second amended complaint, which was the op-
erative pleading. As a general matter, the pleading of a party (in-
cluding allegations or statements in a plaintiff’s complaint) may be
offered against him as the admission of a party opponent. See, e.g.,
Continental Ins. Co. of N.Y. v. Sherman, 439 F.2d 1294, 1298 (5th Cir.
1971). Here, Mr. Losch was unable to recall whether he had sued
Nationstar Mortgage, and his recollection was not refreshed when
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4 Opinion of the Court 22-12421
he was shown his operative complaint. That pleading was relevant
to whether Mr. Losch had sued Nationstar, and to whether it was
Nationstar or Experian (or both) which failed to act reasonably. It
was therefore admissible.
Third, we reject Mr. Losch’s argument that the district court
erred in failing to conduct Rule 403 balancing with respect to the
admission of the second amended complaint. Mr. Losch may be
right that Experian used that complaint for all it was worth (and
maybe even more), but a litigant is generally bound by the admis-
sions in his pleadings. See Dos Santos v. U.S. Att’y Gen., 982 F.3d
1315, 1319 (11th Cir. 2020). Under the circumstances, we do not
think that the complaint’s probative value was substantially out-
weighed by the danger of unfair prejudice. See Luxottica Grp., S.p.A.
v. Airport Mini Mall, LLC, 932 F.3d 1303, 1318 (11th Cir. 2019).
Fourth, the district court did not err in instructing the jury
on judicial notice with respect to the complaint. A court may, of
course, take judicial notice of a pleading. Cf. Bryant v. Avado Brands,
Inc., 187 F.3d 1271, 1278, 1278 n.10 (11th Cir. 1999). That means
that the court takes judicial notice that (a) the pleading was filed
and (b) the pleading contains certain allegations. The court does
not take judicial notice of the truth of the allegations contained in
the pleading. We have held, for example, that when a court takes
judicial notice of a judicial order, it does not do so for the purpose
of accepting what is stated in the order as true. See United States v.
Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (“[A] court may take no-
tice of another court’s order only for the limited purpose of
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22-12421 Opinion of the Court 5
recognizing the ‘judicial act’ that the order represents or the subject
matter of the litigation.”). And our sister circuits have come to a
similar conclusion with respect to the judicial notice of a party’s
complaint. See, e.g., Beauvoir v. Israel, 794 F.3d 244, 248 n.4 (2d Cir.
2015); In re Omincare, Inc. Sec. Litig., 769 F.3d 455, 468–69 (6th Cir.
2014).
Mr. Losch’s counsel agreed that there was no “legitimate ba-
sis” for opposing judicial notice, and therefore acquiesced to the
taking of such notice. And though the judicial notice instruction
pertaining to the complaint might have at first been a bit loose, we
conclude that there is no reversible error, especially given the final
instruction. The final instruction told the jury that the court “did
not take judicial notice that any facts alleged in the Second
Amended Complaint have been proven,” only that the complaint
was filed. See Tr. Vol. V. at 108.2
Fifth, we agree with Mr. Losch that the district court erred
in ruling that evidence that other credit reporting agencies
(“CRAs”) had accurately reported on the status of his debt was ir-
relevant. The evidence was relevant to whether Experian—itself a
CRA—had acted reasonably. But we can affirm an evidentiary rul-
ing on a ground present in the record even if that ground was not
relied upon by the district court. See, e.g., United States v. McGlothin,
705 F.3d 1254, 1266 n.17 (10th Cir. 2013); United States v. Provenzano,
620 F.2d 985, 993 (3d Cir. 1980); United States v. Rosenstein, 474 F.2d
2 Given this instruction, we also fail to see how Mr. Losch was prejudiced by
the admission of the complaint.
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6 Opinion of the Court 22-12421
705, 711–13 (2d Cir. 1973). And here Experian correctly argued that
the proposed testimony would have constituted hearsay because it
sought to reveal the contents of reports by the other CRAs that
were not in evidence and that were not within Mr. Losch’s personal
knowledge. See, e.g., United States v. Shiver, 414 F.2d 461, 463–64
(5th Cir. 1969) (testimony by detective that a car was stolen from
Miami Beach, Florida, was hearsay because it was based on a report
and not his own knowledge). If Mr. Losch wanted to introduce the
reports of the other CRAs, he should have tried to move them in
as business records or tried to call representatives of those CRAs as
witnesses.
II
Mr. Losch also asserts that the district court erred in failing
to give certain jury instructions and in not preventing Experian’s
counsel from denigrating his counsel. Conducting abuse of discre-
tion review as dictated by cases like Brink v. Direct General Ins. Co.,
38 F.4th 917, 922–23 (11th Cir. 2022), we again find no basis for re-
versal.
First, we reject the argument that the district court erred in
instructing the jury that Mr. Losch had the burden of establishing
that Experian acted unreasonably. As we explained in Losch I, to
“state a claim under § 1681e, the plaintiff must show that the
agency’s report contained factually inaccurate information, that
the procedures it took in preparing and distributing the report
weren’t ‘reasonable,’ and that damages followed as a result.” 995
F.3d at 944. And our sister circuits similarly have held that it is the
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22-12421 Opinion of the Court 7
plaintiff in an FCRA case who must demonstrate that the agency’s
procedures were not reasonable. See Wright v. Experian Info. Sols.,
Inc., 805 F.3d 1232, 1239 (10th Cir. 2015); Dalton v. Cap. Assoc. Indus.,
Inc., 257 F.3d 409, 416 (4th Cir. 2001); Sepulvado v. CSC Credit Servs.,
Inc., 158 F.3d 890, 896 (5th Cir. 1998).
Second, we conclude that the district court did not abuse its
discretion in failing to give the jury a curative instruction with re-
spect to the alleged disparagement of Mr. Losch’s counsel by Ex-
perian’s counsel. Mr. Losch is correct that Experian’s counsel had
no business highlighting the fact that his trial counsel had also been
his bankruptcy counsel, and we suspect that Experian’s counsel en-
gaged in this tactic to argue—as they did expressly at closing argu-
ment—that it was Mr. Losch’s counsel who were somehow re-
sponsible for Experian’s own inaccurate report. The better course
of action would have been for the district court provide an instruc-
tion, as it initially said it would do, that the jury should disregard
any suggestion by Experian that Mr. Losch’s counsel were to blame
for the error in the report. But the abuse of discretion standard
gives a district court a “range of choice,” and under that deferential
standard “there will be occasions in which we affirm the district
court even though we would have gone the other way had it been
our call.” In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994). That is
the situation here.
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8 Opinion of the Court 22-12421
III
Mr. Losch has not established reversible error. We therefore
affirm the district court’s entry of judgment on the jury verdict in
favor of Experian.
AFFIRMED.
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