                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
KARL-MARX EDWARD OKEKE-       )
VONBATTEN,                    )
                              )
               Plaintiff,     )
                              )
               v.             )     Civil Action No. 08-2116 (RWR)
                              )
GREATER WASHINGTON MORTGAGE   )
LLC et al.,                   )
                              )
               Defendants.    )
______________________________)


                  MEMORANDUM OPINION AND ORDER

     Pro se plaintiff Karl-Marx Edward Okeke-VonBatten brings

claims under the Fair Credit Reporting Act (“FCRA”), codified at

15 U.S.C. §§ 1681 et seq., alleging that defendant Justin Murphy

employed defendant Jerry Burton, a process server, to obtain

impermissibly a copy of the plaintiff’s credit report from a

credit reporting agency.   Murphy has moved for summary judgment,

arguing, in part, that he is not vicariously liable for any

violations of the FCRA that Burton may have committed.   Because

material facts are not in dispute and there was no principal-

agent relationship between Murphy and Burton, Murphy’s motion for

summary judgment will be granted.

                            BACKGROUND

     Murphy represented in the D.C. Court of Appeals a client

prosecuting an appeal of a Superior Court civil protection order
                                - 2 -

entered against her in favor of Okeke-VonBatten.     (Def.’s Mot.

for Summ. J. (“Def.’s Mot.”) at 5-6 ¶¶ 1-2.1)     The Court of

Appeals reversed the Superior Court’s order and remanded the case

for reconsideration of the client’s motion for attorneys’ fees.

(Id. at 6 ¶ 2.)    On remand, the Superior Court judge ordered the

client to re-file her application for attorneys’ fees and to mail

a copy of the application to Okeke-VonBatten.     (Id. at 7 ¶ 5.)

Murphy contacted Burton, a process server for B&B Process

Servers.    He asked Burton to obtain Okeke-VonBatten’s current

mailing address but did not direct the particular way in which

Burton should find it.    (Id. at 7-9 ¶¶ 7-10.)   Burton obtained

the address and billed Murphy $98 for his services.     (Id. at 10-

11 ¶ 14.)

     Okeke-VonBatten brings claims against Murphy under the FCRA,

alleging that Burton worked for Murphy, and that based upon a

request from Murphy, Burton asked an employee of Greater

Washington Mortgage LLC to check Okeke-VonBatten’s credit

report.2    (Compl. ¶¶ 5, 13-14.)   Murphy has moved for summary


     1
       Okeke-VonBatten filed an opposition in which he contests
some of Murphy’s factual allegations and asserts the need for
further discovery with respect to other factual allegations.
(See Pl.’s Resp. to Murphy Request for Summ. J.) All facts cited
in this opinion from Murphy’s Statement of Material Facts are
uncontested by Okeke-VonBatten.
     2
       Although the complaint alleges that the defendants are
liable under 15 U.S.C. § 1681q, that provision does not provide a
civil right of action. See infra pp. 4-5. However, the
complaint will be construed liberally to allege a cause of action
                                 - 3 -

judgment, arguing that he did not personally obtain Okeke-

VonBatten’s credit report and that he did not willfully or

negligently violate the FCRA, that Burton had a permissible

purpose for obtaining Okeke-VonBatten’s credit report, and that

Murphy is not vicariously liable even if Burton violated the

FCRA.    (Def.’s Mot. at 13, 17, 20-21.)

                              DISCUSSION

        Summary judgment may be granted when the pleadings, the

discovery and disclosure materials on file, and any affidavits

show “that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”       Fed.

R. Civ. P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66

(D.C. Cir. 2009).    A court considering a motion for summary

judgment must draw all “justifiable inferences” from the evidence

in favor of the nonmovant.    Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).    Moreover, a “[c]ourt gives pro se parties

the benefit of the doubt and may ignore some technical

shortcomings of their filings.”    Voinche v. FBI, 412 F. Supp. 2d

60, 70 (D.D.C. 2006) (applying at the summary judgment stage

Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999),

which held in the context of a motion to dismiss that “[c]ourts



under sections 1681n and 1681o, which provide for civil
liability. See Kaemmerling v. Lappin, 553 F.3d 669, 676 (D.C.
Cir. 2008) (noting that pro se complaints are to be construed
liberally).
                               - 4 -

must construe pro se filings liberally”).   The nonmovant must

either “come forward with specific facts showing that there is a

genuine issue for trial[,]” Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation

marks and emphasis omitted), or show that the materials cited by

the movant do not establish the absence of a genuine dispute.

Fed. R. Civ. P. 56(c)(1)(B).

     Sections 1681n and 1681o create a civil cause of action

against defendants who willfully or negligently violate the

FCRA’s requirements.   While § 1681q provides explicit criminal

penalties –– but not explicit civil liability –– for “[a]ny

person who knowingly and willfully obtains information on a

consumer from a consumer reporting agency under false

pretenses[,]” courts have held that a violation of § 1681q can

also result in civil liability under §§ 1681n or 1681o.3   See,

e.g., Wiggins v. Philip Morris, Inc., 853 F. Supp. 470, 477


     3
       “‘Whether a consumer report has been obtained under false
pretenses will ordinarily be determined by reference to the
permissible purposes for which consumer reports may be obtained,
as enumerated in § 1681b.’” Wiggins v. Philip Morris, Inc., 853
F. Supp. 470, 477 (D.D.C. 1994) (quoting Zamora v. Valley Fed.
Sav. & Loan Ass'n of Grand Junction, 811 F.2d 1368, 1370 (10th
Cir. 1987)). Although § 1681b(a) lists circumstances under which
consumer reports may be furnished by “consumer reporting
agenc[ies],” its provisions have been interpreted equally to
restrict users of credit reports to the listed permissible
circumstances. See, e.g., Korotki v. Thomas, Ronald & Cooper,
P.A., No. 96-1877, 1997 WL 753322, at *2 (4th Cir. 1997); Hansen
v. Morgan, 582 F.2d 1214, 1216 (9th Cir. 1978) (concluding that
the “FCRA authorizes a civil remedy against a user of a credit
report”).
                               - 5 -

(D.D.C. 1994); Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir.

1978) (concluding that a violation of § 1681q “forms a basis of

civil liability under either § 1681n or § 1681o”).   “[W]hen

Congress creates a tort action, it legislates against a legal

background of ordinary tort-related vicarious liability rules and

consequently intends its legislation to incorporate those rules.”

Meyer v. Holley, 537 U.S. 280, 285 (2003).   Although the D.C.

Circuit has not addressed the issue, other circuits have applied

to the FCRA this statutory presumption and concluded that

principals may be vicariously liable for the FCRA violations of

their agents.   See, e.g., Chanler v. Stonich, 156 Fed. Appx. 945,

946-47 (9th Cir. 2005) (acknowledging that “traditional agency

principles imposing vicarious liability of an employer for the

torts of the employee” could apply to a claim under the FCRA if

the defendant acted under the apparent authority of his

employer); Jones v. Federated Fin. Reserve Corp., 144 F.3d 961,

965 (6th Cir. 1998) (holding that “a principal may be liable for

a violation of the FCRA by an agent”).

     As construed to incorporate common law vicarious liability

rules, the FCRA offers Okeke-VonBatten no relief.    Murphy argues

that even if Burton obtained a copy of Okeke-VonBatten’s credit

report under false pretenses, Murphy is not vicariously liable

for any violation of the FCRA because “any relationship they may

have had was not one of agency.”   (Def.’s Mot. at 18.)   Under the
                               - 6 -

doctrine of respondeat superior, an employer may be liable for

the wrongful acts or omissions of its employee if an agency

relationship exists between them and the employee acted in the

scope of his employment at the time of the prohibited act.

Greene v. Amritsar Auto Servs. Co., 206 F. Supp. 2d 4, 7-8

(D.D.C. 2002).   Conversely, when the employer-employee

relationship is not one of agency, many cases refer to an

employee as an independent contractor.4   See, e.g., Sturdivant v.

Seaboard Serv. Sys., Ltd., 459 A.2d 1058, 1060 n.5 (D.C. 1983);

Smith v. Jenkins, 452 A.2d 333, 335 (D.C. 1982).   Determining

whether an agency relationship exists between an employer and

employee is a fact intensive inquiry that turns on “‘whether the

employer has the right to control and direct the servant in the

performance of his work and the manner in which the work is to be

done.’”   Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 860 (D.C.

1982) (emphasis omitted) (quoting LeGrand v. Ins. Co. of N. Am.,

241 A.2d 734, 735 (D.C. 1968)).   Factors that a court considers

include: 1) the manner in which the employer hired the alleged

employee, 2) whether the employer pays the alleged employee

wages, 3) whether the employer has the power to discharge the


     4
       However, the Restatement (Third) of Agency § 1.01 cmt. c
(2006) cautions that “the common term ‘independent contractor’ is
equivocal in meaning and confusing in usage because some termed
independent contractors are agents” while others are not. The
Restatement suggests that a more appropriate way to refer to an
employee who is not an agent of his employer is as a “nonagent
service provider.” Id.
                                 - 7 -

alleged employee, 4) whether the employer has the power to

control the alleged employee’s conduct, and 5) whether the work

is part of the regular business of the employer.    Schecter v.

Merchs. Home Delivery, Inc., 892 A.2d 415, 423 (D.C. 2006).

      Murphy has presented evidence –– uncontested by Okeke-

VonBatten –– that no employer-employee relationship existed

between Murphy and Burton.    Murphy did not hire Burton as an

employee.    Burton was already employed by B&B Process Servers.

Murphy, instead, retained Burton for the limited purpose of

obtaining Okeke-VonBatten’s address.     (Def.’s Mot. at 7-8 ¶¶ 7-

8.)   Burton billed Murphy for $98 based on an hourly rate that he

charged for his services; he did not receive wages from Murphy or

Murphy’s law firm.    (Id. at 10-11 ¶ 14.)   Additionally, “Murphy

did not direct Burton on how he should obtain Okeke’s address[.]”

(Id. at 9 ¶ 10.)     Finally, Okeke-VonBatten has presented no

evidence that Murphy as a regular part of his business as an

attorney obtains on his own addresses at which to serve

litigants.     Indeed, Murphy’s law firm had previously retained B&B

Process Servers to obtain the addresses of other individuals in

other litigation matters.    (Id. at 7-8 ¶ 7.)   The evidence does

not establish an employer-employee relationship between Murphy

and Burton.5


      5
       Okeke Von-Batten argues that Murphy is vicariously liable
for any intentional tort Burton committed. (Pl.’s Resp. to
Murphy Request for Summ. J. ¶ 11.) Even if a willful violation
                               - 8 -

     Because Murphy has presented uncontested evidence that

Burton is not his employee, Murphy is not vicariously liable for

any violations of the FCRA that Burton may have committed.6

Okeke-VonBatten does not allege in his complaint that Murphy

violated the FCRA in any way other than by retaining Burton.

Murphy’s motion for summary judgment will be granted.

                      CONCLUSION AND ORDER

     No material facts are in dispute, and Murphy has

demonstrated that there was no employer-employee relationship

between him and Burton.   Murphy is not vicariously liable for any

violations of the FCRA that Burton may have committed, and Murphy

is entitled to judgment as a matter of law.    Accordingly, it is

hereby

     ORDERED that Murphy’s motion [15] for summary judgment be,

and hereby is, GRANTED.   Judgment is entered for defendant

Murphy.

     SIGNED this 23rd day of February, 2011.


                               __________/s/_______________
                               RICHARD W. ROBERTS
                               United States District Judge




of the FCRA were to be analogized to an intentional tort, a
principal is not vicariously liable for the intentional torts of
nonagent service providers. See Sturdivant, 459 A.2d at 1060
n.5.
     6
       Whether Burton’s purpose was permissible under § 1681b,
therefore, need not be addressed.
