MIRABAHN CAIROBE, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, INC.; EQUIFAX INFORMATION SERVICES, LLC; JP MORGAN CHASE & COMPANY dba JP MORGAN CHASE BANK, Defendants CIVIL ACTION FILE NO. 1:22-CV-02922-TWT-JEM United States District Court, N.D. Georgia, Atlanta Division Filed July 08, 2024 Counsel Gary Alan Hansz, Pro Hac Vice, Credit Repair Lawyers of America, Farmington Hills, MI, for Plaintiff. Rachel Krutz, Rebecca Marie Nocharli, Jones Day, Atlanta, GA, for Defendant Experian Information Solutions, Inc. Christopher Joseph Daniels, Barnes & Thornburg LLP, Atlanta, GA, for Defendant JP Morgan Chase & Company. McBath, J. Elizabeth, United States Magistrate Judge UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION *1 Pending before the Court are summary judgment motions filed by both Plaintiff and Defendant JP Morgan Chase & Company (“Chase”). (Docs. 73; 77.) Also pending is Defendant Chase's motion to exclude evidence under Federal Rule of Civil Procedure 37(c). (Doc. 82.) For the below reasons, the Court RECOMMENDS that Plaintiff's motion for summary judgment, (Doc. 73), be DENIED; Defendant's motion for summary judgment, (Doc. 77), be GRANTED; and Defendant's motion to exclude evidence, (Doc. 82), be GRANTED IN PART and DENIED IN PART. The Court further RECOMMENDS that Defendants Experian and Equifax be dismissed as parties to this action. I. BACKGROUND Plaintiff's complaint, filed on July 25, 2022, alleges that the three above-named Defendants negligently and willfully violated the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, et seq. (Doc. 1.) Though they have not yet been dismissed as parties to this action, Plaintiff settled her claims against Defendants Equifax and Experian. On October 25, 2022, Plaintiff filed a notice of voluntary dismissal with prejudice of her claims against Equifax, (Doc. 15), and because Equifax had not yet filed an answer to the complaint, dismissal is proper under Rule 41(a)(1)(A)(i), which provides that a plaintiff may voluntarily dismiss an action without a court order if the notice of dismissal is filed before the opposing party serves either an answer or a summary judgment motion. See Fed. R. Civ. P. 41(a)(1)(A)(i). Plaintiff reached a settlement with Experian after participating in mediation, and on October 23, 2023, Plaintiff and Experian filed a joint stipulation of dismissal with prejudice. (Doc. 74.) Rule 41(a)(1)(A)(ii) provides that a plaintiff may voluntarily dismiss an action without a court order by filing “a stipulation of dismissal signed by all parties who have appeared.” See Fed. R. Civ. P. 41(a)(1)(A)(ii). A notation on the docket indicates that the stipulation document does not comply with Rule 41(a)(1)(A)(ii), but the stipulation of dismissal is clear that it is between Plaintiff and Experian, and counsel for both parties signed it. (Doc. 74 at 1-2; see also Dkt entry at Doc. 74.) The Court, therefore, RECOMMENDS that Defendants Experian and Equifax be dismissed as parties to this action. The discovery period was initially set to end on March 6, 2023, but was extended through June 20, 2023. (Docs. 12; 32; 49.) The Court granted the parties' request for a stay of the dispositive motion deadline pending mediation, and later granted an extension of the deadlines for filing and responding to dispositive motions. (Docs. 58; 59; 76; 79.) Plaintiff and Defendant Chase timely filed the pending motions for summary judgment, and Defendant Chase also filed the pending motion to exclude evidence. (Docs. 73; 77; 82.) All three motions have been fully briefed and are ripe for review. (Docs. 80; 81; 84; 85; 86; 87; 88; 90.) II. SUMMARY JUDGMENT STANDARD Summary judgment shall be granted when the movant shows 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). Material facts are the facts that “might affect the outcome of the suit under the governing law,” and accordingly, “the substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (explaining that “[a]n issue of fact is ‘material’ if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case”). “A factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Peppers v. Cobb Cnty., Georgia, 835 F.3d 1289, 1295 (11th Cir. 2016) (internal quotations omitted). *2 The movant carries the initial burden 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,” or the “absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-325 (1986). If the movant fails to meet this initial burden, then the motion must be denied, and the Court need not consider any showing that the non-movant has made. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)). But if the movant meets the initial burden, the burden then shifts to the non-movant to show that there is indeed a genuine issue of material fact, which precludes summary judgment. Clark, 929 F.2d at 608. The non-movant must “go beyond the pleadings” and present competent evidence in the form of affidavits, depositions, admissions, and the like, designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. “The mere existence of a scintilla of evidence” in support of the non-movant's case is insufficient to defeat a motion for summary judgment. Anderson, 477 U.S. at 252. In other words, when the movant has carried its initial burden under Rule 56(c), the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 380 (citations omitted). If the record taken as a whole could not lead a rational trier of fact to find for the non-movant, then there is no “genuine issue for trial.” Id. The Court must view the evidence and factual inferences in the light most favorable to the non-movant only if there is a “genuine” dispute as to those facts. Scott, 550 U.S. at 380; United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc). To the extent that material facts are genuinely in dispute, the Court must resolve the disputes in the non-movant's favor. Scott, 550 U.S. at 380; Vaughan v. Cox, 343 F.3d 1323, 1326 n.1 (11th Cir. 2003). If the record does not blatantly contradict the non-movant's version of events, the Court must determine whether reasonable jurors could find by a preponderance of the evidence that the non-movant is entitled to a verdict. Scott, 550 U.S. at 380 (when opposing parties tell two different stories, and one is blatantly contradicted by the record, so that no reasonable jury could believe it, then the Court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment); Anderson, 477 U.S. at 252. “A district court has broad discretion in determining the admissibility of evidence” on a motion for summary judgment. See Hetherington v. Wal-Mart, Inc., 511 F. App'x 909, 911 (11th Cir. 2013) (evidentiary rulings are reviewed for an abuse of discretion) (citing Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1243 (11th Cir.2009)). In determining if evidence is admissible, the Court applies the same rules and standards that would apply to admissibility at trial. Munoz v. Int'l All. of Theatrical Stage Emp. & Moving Picture Mach. Operators of U. S. & Canada, 563 F.2d 205, 207 (5th Cir. 1977).[1] Generally, inadmissible hearsay cannot be considered on a motion for summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999). In Celotex, the Supreme Court held that the nonmoving party is not required to “produce evidence in a form that would be admissible at trial in order to avoid summary judgment,” which the Eleventh Circuit has interpreted “as simply allowing otherwise admissible evidence to be submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form.” McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996) (emphasis in original) (citation omitted). For example, a hearsay statement might be admissible because it falls within an exception to the hearsay rule, it does not constitute hearsay at all (because it is not offered to prove the truth of the matter asserted), or it is used solely for impeachment and not as substantive evidence. Macuba, 193 F.3d at 1323-24. “The most obvious way that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (citing Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996) (an affidavit “can be reduced to admissible form at trial” by having the affiant testify as a witness)). But the possibility that unknown witnesses will emerge to provide testimony, when the record contains no such indication, is insufficient to establish that the hearsay statement could be reduced to admissible trial evidence. Jones, 683 F.3d at 1294. *3 Affidavits and deposition testimony, as required by Rule 56, “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(4); Macuba, 193 F.3d at 1323 (the rule for affidavits applies to testimony given on deposition); see also Joassin v. Murphy, 661 F. App'x 558, 559 (11th Cir. 2016) (declarations based on personal knowledge are admissible summary judgment evidence); Pritchard, 92 F.3d at 1135. For documents “[t]o be admissible in support of or in opposition to a motion for summary judgment, a document must be authenticated by and attached to an affidavit that meets the requirements of Rule 56 and the affiant must be a person through whom the exhibits could be admitted into evidence.” Barrow v. United States, No. 1:18-CV-5858-CAP, 2021 WL 9720798, at *3 (N.D. Ga. Feb. 25, 2021) (alteration omitted) (citing Saunders v. Emory Healthcare, Inc., 360 F. App'x 110, 113 (11th Cir. 2010)). Unsworn statements, on the other hand, do not meet the requirements of Rule 56, and the Court will not consider them. Dudley v. City of Monroeville, Ala., 446 F. App'x 204, 207 (11th Cir. 2011); see also Carr v. Tatangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003) (because the preliminary report submitted was without attestation, it had no probative value and properly was not considered by the district judge in ruling on the summary judgment motions) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17 (1970)). III. STATEMENT OF FACTS Unless otherwise indicated, the Court draws the following facts from Plaintiff's statement of undisputed material facts, (PSMF, Doc. 73-1); Defendant's response to Plaintiff's statement of undisputed material facts, (DRPF, Doc. 81); Defendant's statement of undisputed material facts, (DSMF, Doc. 77-2); Plaintiff's response to Defendant's statement of undisputed material facts, (PRDF, Doc. 86 at 1-14); Plaintiff's additional statement of undisputed material facts, (PASF, Doc. 86 at 14-23); and Defendant's response to Plaintiff's additional statement of undisputed material facts,[2] (DRAF, Doc. 89 at 18-39). As indicated, and as needed, the Court may draw some facts directly from the record. See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record”). The Court deems admitted and accepts as true those facts submitted by the parties that: (1) are supported by citations to admissible record evidence; (2) are not disputed and refuted by the other party with citations to admissible record evidence or a valid objection; and (3) do not make credibility determinations or state legal conclusions. See LR 56.1(B), NDGa; see also E.E.O.C. v. Atlanta Gastroenterology Assocs., LLC, No. CIV. A. 1:05-CV-2504-TWT, 2007 WL 602212, at *3 n.2 (N.D. Ga. Feb. 16, 2007). The Court has nevertheless viewed all evidence and factual inferences in the light most favorable to the non-movant, as required on a motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir. 1993). *4 The Court has excluded any assertions of fact by any party that are immaterial, presented as arguments or legal conclusions, are unsupported by a citation to admissible evidence in the record, or are asserted only in a party's brief and not in the statement(s) of facts.[3] See LR 56.1(B)(1), NDGa; see also LR 56.1(B)(2)(b), NDGa (non-movant's statement of additional facts must also comply with LR 56.1(B)(1)). But the Court includes certain facts that are not necessarily material if they are helpful to present context. The Court will not rule on each objection or dispute presented by the parties, and will discuss those objections and disputes only when necessary to do so regarding a genuine dispute of a material issue of fact. A. Chase Slate credit card On October 31, 2014, Plaintiff applied for and obtained a Chase “Slate” credit card with Chase Bank (Defendant). (PSMF¶¶1-2; DRPF ¶¶1-2; PASF ¶28; DRAF ¶28.) Plaintiff's daughter, Afsaneh Cairobe, was an authorized user on the account. (DSMF ¶2; PRDF ¶2; Doc. 69 at 45:5-7; Doc. 73-3 (Ex. 1).) The email address provided on the application was: mirabahn.cairobe@rehabcare.com. (Doc. 73-3 (Ex. 1).) B. Chase Amazon credit card On January 15, 2021, a credit card application for a Chase Amazon card—account no. 7425/8848—which named Plaintiff as the primary obligor and included Plaintiff's correct name, home address, social security number, and birthdate, was submitted, and the account was opened on January 19, 2021. (PSMR ¶¶3, 7; DRPF¶¶3, 7; DSMF ¶1; PRDF ¶1; Doc. 69 at 78:25-79:11.) The email address provided on the application was: cairobeholdings.com@pm.me. (PSMF ¶3; DRPF ¶3; DSMF ¶1; PRDF ¶1; Doc. 73-4 (Ex. 2) at 1.) Plaintiff's son, Tariq Cairobe, was an authorized user on the account, and he was issued a credit card in his name.[4] (PSMF ¶¶8, 23, 37; DRPF ¶¶8, 23, 37; DSMF ¶2; PRDF ¶2; PASF ¶36; DRAF ¶36; Doc. 83 at 2:02.) A paper notice of the account opening was mailed to Plaintiff's home address.[5] (DSMF ¶3; PRDF ¶3; PASF ¶34; DRAF ¶34.) Between February 14, 2021, and November 14, 2021, Defendant sent 10 monthly credit card statements for the Chase Amazon account to the email address on the application: cairobeholdings.com@pm.me.[6] (PSMF ¶¶9-10; DRPF ¶¶9-10.) From February 2021, through October 2021, Tariq incurred charges and made payments on the Chase Amazon account. (PSMF ¶16; DRPF ¶16; DSMF ¶4; PRDF ¶4; PASF ¶29; DRAF ¶29.) Three of the payments made on the account were “Special Assisted” payments, meaning the payments were made by telephone. (PSMF ¶¶17, 23; DRPF ¶¶17, 23; PASF ¶30; DRAF ¶30.) Eight of the payments made on the account were made through a mobile app. (PSMF ¶18; DRPF ¶18; PASF ¶31; DRAF ¶31.) On November 17, 2021, Defendant re-commenced sending paper credit card statements, and the December 14, 2021, paper statement for the account was mailed to Plaintiff's home address. (PSMF ¶¶11-12; DRPF ¶¶11-12; DSMF ¶4; PRDF ¶4; Doc. 77-3 (Ex. A) at 24 (“CHASE-000403”).) The December 14, 2021, statement listed a new balance of $5,586.06, with a minimum payment of $200.92 due. (Docs. 73-6 (Ex. 4) at 10; 77-10 (Ex. H) at 10.) Tariq Cairobe passed away on December 20, 2021. (PSMF ¶13; DRPF ¶13; DSMF ¶20; PRDF ¶20.) *5 Plaintiff called Defendant on December 22, 2021, to dispute the Chase Amazon account, having been “made aware of” the account when she noticed the new tradeline on the credit reports she obtained in December 2021.[7] (PSMF ¶¶14, 21-22; DRPF ¶¶14, 21-22; DSMF ¶¶5, 10; PRDF ¶¶5, 10; PASF ¶34; DRAF ¶34; Doc. 69 at 16:1-17; Doc. 73-13 (Ex. 11) at 4; Doc. 83.) Plaintiff was informed during the call that Defendant's record of the account showed that: the billing address for the account was 10984 Highridge Court, Hampton, GA, which Plaintiff confirmed was her correct home address; Tariq had been added as an authorized user on the account one month after the account was opened, but Plaintiff was shown as the owner of the account; as an authorized user, Tariq was sent a credit card in his name; Tariq had enrolled a digital wallet for the account; the last charges made on the account occurred in September 2021, but then charges stopped after that because the credit limit had been reached; Tariq had called in on November 21, 2021, to make a payment, and the last payment shown on the account was on November 24, 2021; there was a balance owed on the account; and at Plaintiff's request, the account would be closed.[8] (Doc. 83.) Plaintiff was asked during the call if she knew an individual named Tariq Cairobe, and she responded that she had a “family member” by that name. (Doc. 83.) Defendant sent Plaintiff a letter the same day, dated December 22, 2021, confirming that the account was closed, and acknowledging Plaintiff's dispute of the Chase Amazon account. (PSMF ¶¶15, 24; DRPF ¶¶15, 24; DSMF ¶5; PRDF ¶5; PASF ¶37; DRAF ¶37; Doc. 77-3 (Ex. A) at 2-9 (“CHASE-000010–000017”); Doc. 83.) Two months later, on March 2, 2022, Defendant sent Plaintiff a letter stating its decision to hold Plaintiff responsible for the charges on the Chase Amazon account. (PSMF ¶25; DRPF ¶25.) Plaintiff sent a handwritten dispute letter to Experian on March 15, 2022, claiming that the Chase Amazon account was procured via theft of Plaintiff's identity, and she attached a copy of her Federal Trade Commission identity theft report, dated March 10, 2022. (PSMF ¶26; DRPF ¶26; Doc. 73-9 (Ex. 5) at 8-9.) Experian added a fraud alert to Plaintiff's file on March 30, 2022. (PSMF ¶27; DRPF ¶27.) On April 13, 2022, Experian sent Plaintiff the dispute results, which showed that Defendant had removed the Chase Amazon account from her credit file. (PSMF ¶28; DRPF ¶28.) But on April 22, 2022, Defendant re-inserted the Chase Amazon account back onto Plaintiff's Experian credit file. (PSMF ¶29; DRPF ¶29.) Plaintiff, through counsel, sent a second letter to Experian on May 20, 2022, disputing the Chase Amazon account, and she attached a copy of the police report she filed with the Clayton County Police Department on April 17, 2022, alleging that she was a victim of identity fraud. (PSMF ¶30; DRPF ¶30; Doc. 73-13 (Ex. 11) at 2-4.) The police report stated that, according to Plaintiff, credit reports she obtained on December 7, 2021, showed that two small business loans and four credit cards, including a Chase card, had been opened by “someone [who] used her identity without her consent,” and that “[s]he did not know how the suspect/suspects obtained her personal information.” (Doc. 73-13 (Ex. 11) at 4.) Experian sent Defendant an Automated Credit Dispute Verification Form (ACDV) regarding the Chase Amazon account on June 13, 2022, and Defendant responded on June 22, 2022, confirming that the account belonged to Plaintiff. (PSMF ¶¶31-32; DRPF ¶¶31-32; DSMF ¶¶6, 15-17; PRDF ¶¶6, 15-17; Doc. 73-14 (Ex. 12).) Experian sent another ACDV to Defendant regarding the Chase Amazon account on October 30, 2022, and Defendant again confirmed that the account was Plaintiff's responsibility.[9] (PSMF ¶¶33-34; DRPF ¶¶33-34; DSMF ¶¶6, 15-17; PRDF ¶¶6, 15-17; Doc. 73-15 (Ex. 13).) Both disputes had been referred to Defendant's Fraud Department for investigation, and Defendant ultimately determined that Plaintiff was responsible for the account based on its findings that: (1) between March 2021, and November 2021, payments on the Chase Amazon account had been regularly made from another account that was owned by Plaintiff; and (2) Plaintiff's name, address, and social security number were correct and matched the information on the application for the Chase Amazon account.[10] (PSMF ¶35; DRPF ¶35; DSMF ¶¶6, 9, 11-14, 22-23; PRDF ¶¶6, 9, 11-14, 22-23; PASF ¶¶38-39; DRAF ¶¶38-39). C. Plaintiff's Damages *6 Plaintiff testified that she has suffered anxiety, crying spells, embarrassment, chest pains, hair loss, weight loss, depression, loss of sleep, and nightmares; she has lost job opportunities; her credit score decreased from the 700s to the 400s; the credit limit on her Chase Slate card was decreased from $7,000 to $2,100; and her lifestyle has been degraded.[11] (PSMF ¶38; DRPF ¶38; PASF ¶40; DRAF ¶40; Doc. 69 at 42:21-44:24, 49:25-50:7, 52:4-17; 54:17-24, 58:21-63:12.) Plaintiff's credit score is higher now, however, than it was before the alleged false reporting. (DSMF ¶24; PRDF ¶24.) And since she discovered the Chase Amazon account, Plaintiff has not sought new employment, nor has Plaintiff sought new housing or lost current housing. (DSMF ¶¶25-26; PRDF ¶¶25-26.) Plaintiff also has not identified any living expenses that she is unable to pay. (DSMF ¶27; PRDF ¶27.) IV. DISCUSSION A. Defendant's motion to exclude evidence[12] The complaint, filed on July 25, 2022, alleges that “[a]s a direct and proximate cause” of Defendant's negligent and willful “failure to perform its duties under the FCRA, Plaintiff has suffered damages, mental anguish, suffering, humiliation, and embarrassment.” (Doc. 1 at ¶23 (count one), ¶29 (count two).) The complaint further alleges that Plaintiff has “experienced undue stress, anxiety, crying spells, embarrassment, and frustrations due along with loss of sleep, weight loss, and nightmares ... as a result of the Defendants' violations of the FCRA.” (Doc. 1 at ¶18.) During Plaintiff's deposition on June 15, 2023—five days before the discovery period ended—Plaintiff testified generally about the emotional distress she had suffered that was caused by Defendant, but she also testified specifically that she sought medical treatment and counseling for the emotional distress, visiting (1) Dr. Carol Pisserello “two or three times” in 2023, because she “needed medication”; (2) a “private counselor” “[a]bout three, four times”; and (3) a “spiritual counselor”—Sister Saptieu—“weekly” for “over a year.” (Doc. 69 at 54:25–55:1-10, 56:7-11, 56:18–58:10; see also Doc. 49.) Plaintiff further testified that she possessed records showing her medical treatment, including that she had been prescribed both Sertraline and Trazodone for depression and sleep “for the first time” in February 2023. (Doc. 69 at 55:8-10, 116:18–117:5.) Defendant seeks to exclude Plaintiff's testimony about this treatment, which Plaintiff cites in her summary judgment motion, as well as any related treatment records, because Plaintiff omitted the existence of medical records, medical providers, and counselors from her initial disclosures; Plaintiff responded “[n]one” to interrogatories that asked Plaintiff for that information; and Plaintiff failed to provide the treatment records, despite Defendant asking for them in both a written production request and again at Plaintiff's deposition. (Doc. 69 at 55:11–56:5; 73-2 at 16; Doc. 82-1 at 3-7; Doc. 82-2; Doc. 82-4 ¶9; Doc. 82-5 ¶¶13-15.) *7 In response to Defendant's motion, Plaintiff argues only that Defendant failed to comply with its “meet and confer obligation” for a discovery dispute under Rule 37(a) and the Court's Scheduling Order, so Defendant's motion must be denied. (Docs. 87; 87-1.) Plaintiff does not dispute defense counsel's averment that Plaintiff did not provide documents responsive to Defendant's production request—i.e., the treatment records. (Id.; Doc. 82-3 ¶¶5-7.) Plaintiff also does not dispute that her response to interrogatories asking for the referenced information was “[n]one”; her initial disclosures omitted the existence of medical records, medical providers, and counselors; and she never amended or supplemented her disclosures and discovery responses, despite later testifying at her deposition that she had received treatment and had medical records showing that treatment.[13] (Id.; Doc. 69 at 55:8–56:5.) Defendant replies that Plaintiff failed to show that her disclosure omissions and discovery responses, which contradict her later testimony, were substantially justified or harmless; and also, Defendant asserts that it was unaware of any discovery dispute that it could have addressed during the discovery period because Plaintiff's disclosures and discovery responses indicated that the information did not exist. (Doc. 73-2 at 16; Doc. 82-1 at 6-7; Doc. 90 at 1-8.) Rule 26(a) requires disclosure of, among other items, “each individual likely to have discoverable information,” and a copy or description of “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” See Fed. R. Civ. P. 26(a)(1)(A)(i) and (ii); see also LR 26.1(A), NDGa (providing that “parties to civil actions shall make the initial disclosures required by Fed. R. Civ. P. 26(a)(1) at or within thirty (30) days after the appearance of a defendant by answer or motion”). Rule 26(e) requires supplementation or correction of any Rule 26(a) disclosures, or responses to interrogatories, requests for production, or requests for admission “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing ...” See Fed. R. Civ. P. 26(e)(A); see also LR 26.1(C), NDGa (providing that “[t]he duties of a party to supplement and amend prior initial, expert or pretrial disclosure are set forth in Fed. R. Civ. P. 26(e)”). Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” See Fed. R. Civ. P. 37(c)(1). “A substantial justification exists if there is justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure request, and the failure to disclose is harmless when there is no prejudice to the party entitled to receive the disclosure.” Hayes v. Deluxe Mfg. Operations LLC, No. 1:16-CV-02056-RWS-RGV, 2018 WL 1461690, at *3 (N.D. Ga. Jan. 9, 2018), report and recommendation adopted, No. 1:16-CV-2056-RWS, 2018 WL 1869825 (N.D. Ga. Feb. 21, 2018) (citations and internal quotations omitted). Rule 37(c) is “the more effective enforcement mechanism of the disclosure requirement when the party required to make the disclosure would need the material to support its own contentions.” Barron v. Fed. Rsrv. Bank of Atlanta, 129 F. App'x 512, 519 (11th Cir. 2005) (citing Fed. R. Civ. P. 37, advisory committee's note (1993)) (internal quotations omitted). Exclusion as a sanction under Rule 37(c) is not automatic or mandatory; it is a matter within the Court's broad discretion. Henderson v. Ford Motor Co., 72 F.4th 1237, 1243 (11th Cir. 2023) (“[t]he district court has considerable discretion in determining whether exclusion is proper” under Rule 37(c)(1)); Taylor v. Mentor Worldwide LLC, 940 F.3d 582, 593 (11th Cir. 2019); Pitts v. HP Pelzer Auto. Sys., Inc., 331 F.R.D. 688, 696 (S.D. Ga. 2019). *8 Here, Defendant attaches a copy of Plaintiff's Rule 26 initial disclosure, which indeed, does not list any medical providers or counselors as “individual[s] likely to have discoverable information,” nor list any medical or other treatment records as documents Plaintiff “may use to support [her] claims or defenses.” (Doc. 82-2 at 4-5, 7-10); Fed. R. Civ. P. 26(a)(1)(A)(i) and (ii). Nor does it appear that Plaintiff ever amended her initial disclosure during the discovery period to include them, as required by Rule 26(e). (Docs. 87; 87-1; see also Dkt.) Similarly, it does not appear that Plaintiff ever amended or supplemented her written discovery responses, which stated that there was no responsive information. (Id.) Specifically, in interrogatory 13, Defendant asked Plaintiff to identify “every disease, illness, injury, disability, defect, allergy, medical symptom, or other physical or mental condition(s) suffered” for which Plaintiff sought to recover damages from Defendant, and Plaintiff responded that she “has suffered stress, anxiety, frustration, worry, anger and other forms of emotional distress. This has resulted in Plaintiff's frequent crying spells, which exacerbates her humiliation and embarrassment. Moreover, said anxiety has caused Plaintiff many sleepless nights, weight loss, and nightmares.” (Doc. 82-5 ¶13.) Then, in interrogatories 14 and 15, Defendant asked Plaintiff to identify any provider who had informed her that any injury identified in interrogatory 13 was caused by Defendant, or had provided any treatment to her for any injury identified in interrogatory 13, and Plaintiff responded “[n]one” to both interrogatories. (Doc. 82-5 ¶¶14-15.) Plaintiff has made no showing that her failure to disclose the existence of treatment providers and treatment records, and her discovery responses stating that there were none, are substantially justified or harmless. (Docs. 87; 87-1.) Nor can the Court find that they are harmless, given that Plaintiff's contradictory testimony that she in fact received medical treatment and counseling for emotional distress caused by Defendant, and that treatment records exist, was given only five days before the discovery period ended, leaving Defendant no real opportunity to conduct proper discovery regarding that treatment Plaintiff claimed to have received, which supports her emotional distress claim. (Doc. 69); Perdum v. Wells Fargo Bank, N.A., No. 1:17-CV-972-SCJ, 2020 WL 1467252, at *3 (N.D. Ga. Jan. 6, 2020) (granting defendant's motion to exclude evidence that plaintiff failed to disclose under Rule 26 because defendant's lack of opportunity to conduct thorough discovery regarding it was prejudicial, and explaining that proper disclosure during discovery “is fundamental and critical to civil litigation for purposes of putting a party on notice of the evidence that it must understand and contend at trial, as well as allowing a party to assess its case”); Hayes, 2018 WL 1461690, at *3. Accordingly, the Court RECOMMENDS that Defendant's motion, (Doc. 82), be GRANTED IN PART, as to excluding Plaintiff's testimony and any related records regarding medical treatment and counseling Plaintiff received for emotional distress allegedly caused by Defendant. See Barron, 129 F. App'x at 519; Perdum, 2020 WL 1467252, at *3 United States v. Easements & Rts.-Of-Way Over a Total of 15.66 Acres of Land, More or Less, in Gordon Cnty., Georgia, 315 F. Supp. 3d 1353, 1371 (N.D. Ga. 2018) (excluding testimony under Rule 37(c)(1) for failure to disclose it as required under Rule 26); Sweet v. Lockheed Martin Corp., No. 1:08-CV-2094-WBH-SSC, 2010 WL 11493761, at *2 (N.D. Ga. Jan. 28, 2010), report and recommendation adopted in part, No. 1:08-CV-2094-WBH, 2010 WL 11493760 (N.D. Ga. Mar. 31, 2010) (sustaining defendant's objection to witness's affidavit because plaintiff never identified the witness as someone likely to have discoverable information as required by Rule 26); Kramer v. Gwinnett Cnty., Georgia, 306 F. Supp. 2d 1219, 1224–25 (N.D. Ga.), aff'd sub nom. Kramer v. Gwinnett Cnty., Ga., 116 F. App'x 253 (11th Cir. 2004) (striking affidavit of inmate witness from consideration on summary judgment because he was not identified as required by Rule 26, and finding that counsel's attempt to excuse the failure based on “the large number of inmates” who may possess relevant information was insufficient to “obviate counsel's duty to determine and disclose with due diligence what evidence supports Plaintiff's causes of action”). To be clear, the Court is not recommending that all of Plaintiff's testimony that she suffered emotional distress be excluded, only the testimony that she received medical treatment, including prescribed medication, and counseling for the emotional distress, as well as any related treatment records, given her failure to disclose that information as required by Rule 26. See Benjamin v. Experian Info. Sols., Inc., 561 F. Supp. 3d 1330, 1342–43 (N.D. Ga. 2021) (rejecting defendant's argument that plaintiff's uncorroborated testimony should not be sufficient, by itself, to create an issue of material fact regarding emotional distress damages, and that the Court needed some additional basis to conclude that plaintiff was injured); King v. Asset Acceptance, LLC, 452 F. Supp. 2d 1272, 1281 (N.D. Ga. 2006) (explaining that “[i]n FCRA cases, a plaintiff is not required to produce evidence of emotional distress beyond his own testimony,” and finding that, based on plaintiff's testimony that he suffered embarrassment, frustration, and irritability as a result of defendant's FCRA violations, the Court could not say, as a matter of law, that plaintiff was not entitled to recover damages for emotional distress) (citing Moore v. Equifax Info. Servs. LLC, 333 F. Supp. 2d 1360, 1365 & n. 3 (N.D. Ga. 2004) (Shoob, J.) (noting that mental distress damages are recoverable under the FCRA even if the consumer has not suffered out-of-pocket losses)). *9 The Court RECOMMENDS that Defendant's motion, (Doc. 82), be DENIED IN PART, to the extent that Defendant seeks attorney fees incurred for filing the motion to exclude evidence. Defendant has not shown that sanctions in addition to exclusion are warranted. See Fed. R. Civ. P. 37(c)(1) (providing that “[i]n addition to or instead of [exclusion] the court, on motion and after giving an opportunity to be heard ... may order payment of the reasonable expenses, including attorney's fees ...”) (emphasis added); Morrison v. Mann, 244 F.R.D. 668, 676 (N.D. Ga. 2007) (explaining that while Rule 37 grants the Court the power to impose sanctions, including an award of attorney's fees, “[w]hether to wield this power” is a matter of discretion, and finding that sanctions beyond evidentiary exclusion were inappropriate given that plaintiffs' conduct was neither deliberate nor malicious, and was not part of a larger pattern of conduct); Seals v. Sprint/United Mgmt. Co., No. 1:17-CV-3019-MLB-CCB, 2019 WL 13060748, at *8 (N.D. Ga. Sept. 30, 2019), report and recommendation adopted, No. 1:17-CV-03019, 2019 WL 13061227 (N.D. Ga. Nov. 25, 2019) (denying defendant's motion for costs and fees because Plaintiff had already been subjected to Rule 37(c)(1)'s exclusionary sanction, and had not shown that additional sanctions were appropriate). B. FCRA—15 U.S.C. §§ 1681s-2(b); 1681n; 1681o The FCRA was enacted to require consumer reporting agencies to adopt reasonable procedures for meeting the needs of commerce for consumer credit in a manner that is fair and equitable to the consumer in regard to the confidentiality, accuracy, relevancy, and proper utilization of consumer credit information. Chipka v. Bank of Am., 355 F. App'x 380, 382 (11th Cir. 2009). The FCRA places distinct obligations on three types of entities in order to achieve its purpose: consumer reporting agencies, users of consumer reports, and furnishers of information to consumer reporting agencies. Id. Furnishers of information to consumer reporting agencies (CRAs) are required to: “(1) report accurate information to CRAs regarding consumers, see 15 U.S.C. § 1681s–2(a); and (2) conduct an investigation after receiving notice from a CRA of a dispute lodged by a consumer regarding information provided by the furnisher, see id. § 1681s–2(b).” Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1312 (11th Cir. 2018). There is no private right of action under § 1681s-2(a). Id.; Green v. RBS Nat. Bank, 288 F. App'x 641, 642 n. 2 (11th Cir. 2008) (enforcement of § 1681s-2(a) is limited to federal agencies, federal officials, and state officials). There is a private right of action under § 1681s-2(b), which requires furnishers—here Defendant—to investigate and respond promptly to notices of consumer disputes. Felts, 893 F.3d at 1312; Nawab v. Unifund CCR Partners, 553 F. App'x 856, 861 (11th Cir. 2013); Green, 288 F. App'x at 642. The complaint alleges that Defendant negligently failed to conduct a proper investigation of Plaintiff's dispute, in violation of §§ 1681s-2(b) and 1681o (count one); and after being informed that Plaintiff disputed the accuracy of the information it was providing, Defendant willfully failed to conduct a proper reinvestigation of Plaintiff's dispute, in violation of §§ 1681s-2(b) and 1681n (count two).[14] (Doc. 1 at 4-6.) In the pending motions, Plaintiff and Defendant each assert that they are entitled to judgment as a matter of law on Plaintiff's two FCRA claims. (Docs. 73; 77.) Plaintiff argues that Defendant willfully, or at least negligently, failed to conduct reasonable investigations of Plaintiff's two disputes that were sent to Defendant from Experian on June 13, 2022, and October 30, 2022. (Docs. 73-2 at 5-15; 84; 85.) According to Plaintiff, Defendant's investigations were unreasonable because it failed to consider all of the information in its possession, including the “admissions” Defendant made in the December 22, 2021, phone call with Plaintiff, and the fact that Plaintiff had a Chase Slate credit card, for which she had never made late payments. (Docs. 73-2 at 5-11, 14-15; 84 at 1-2, 5-7, 10-13.) Also, although it is true that the payments made on the Chase Amazon account came from another account owned by Plaintiff, Defendant failed to investigate and learn that Tariq also had access to the payment account, and Defendant failed to discuss the matter with Plaintiff in order “to get other important and exculpating facts.” (Id.) *10 Defendant argues that Plaintiff's disputes challenged her legal liability for the account, and she cannot show that the information Defendant furnished is factually inaccurate, nor can she show that Defendant's investigation was unreasonable based on the information that was available, and Tariq's “apparent authority.” (Docs. 77-1 at 1-3, 6-20; 80; 88.) Defendant further argues that, even if Plaintiff is permitted to proceed on her FCRA claim, its actions were not willful, and “at a minimum,” Defendant is entitled to partial judgment on Plaintiff's claim of willful violation of the FCRA (count two). (Docs. 77-1 at 20-22; 80 at 23-24.) Consumers can dispute the accuracy or completeness of information in their credit reports in one of two ways: “(1) directly with the furnisher or (2) indirectly with the credit reporting agency (who then forwards the dispute to the furnisher).” Milgram v. Chase Bank USA, N.A., 72 F. 4th 1212, 1217–18 (11th Cir. 2023). Here, Plaintiff's FCRA claims are based on Defendant failing to conduct reasonable investigations of her indirect disputes—i.e., the two disputes that were sent to Defendant from Experian on June 13, 2022, and October 30, 2022. (Docs. 1 at 4-6; 73-2 at 5-15); 15 U.S.C. § 1681s-2(b). Upon receiving notice of a dispute from a CRA, the furnisher must conduct a “reasonable investigation” into the information's accuracy. Milgram, 72 F.4th at 1218; Felts, 893 F.3d at 1312. That investigation will produce one of three outcomes, requiring the furnisher to do one of three things: “(1) verify the information as accurate; (2) determine that the information is wrong or incomplete, or (3) determine that the information cannot be verified.” Milgram, 72 F.4th at 1218; Felts, 893 F.3d at 1312. “This framework reflects the fact that § 1681s–2(b) is designed not only to exclude false information from credit reports, but also to prevent the reporting of unverifiable information.” Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295, 1304 (11th Cir. 2016). If the furnisher finds that the information is wrong or incomplete, or that it cannot be verified, then the furnisher must modify or delete the information, or permanently block reporting it. Milgram, 72 F.4th at 1218; Felts, 893 F.3d at 1312. “What constitutes a ‘reasonable’ investigation varies based on the circumstances.” Milgram, 72 F.4th at 1218. Determining if a furnisher's investigation is reasonable depends in part on the identity of the furnisher—i.e., whether it is “an original creditor, a collection agency collecting on behalf of the original creditor, a debt buyer, or a down-the-line-buyer.” Felts, 893 F.3d at 1312. It also depends in part on the information available to the furnisher, including the quality of documentation available, and the steps the furnisher takes to gather the information. Milgram, 72 F.4th at 1218; Felts, 893 F.3d at 1312 (a furnisher may verify accuracy by “uncovering documentary evidence that is sufficient to prove that the information is true,” or by “relying on personal knowledge sufficient to establish the truth of the information”); Hinkle, 827 F.3d at 1303 (explaining that “when a furnisher does not already possess evidence establishing that an item of disputed information is true, § 1681s–2(b) requires the furnisher to seek out and obtain such evidence before reporting the information as ‘verified’ ”). As discussed above, “consumers cannot sue furnishers for providing inaccurate information—only for conducting unreasonable investigations.” Milgram, 72 F.4th at 1218; Felts, 893 F.3d at 1312 (there is no private right of action against furnishers for reporting inaccurate information to CRAs). But if a furnisher verifies an account, as happened in the present case, then “the question of whether the furnisher behaved reasonably will turn on whether the furnisher acquired sufficient evidence to support the conclusion that the information was true.” Milgram, 72 F. 4th at 1218. Thus, to succeed on her § 1681s-2(b) claims here, Plaintiff “must establish (at least) two things.” Milgram, 72 F. 4th at 1218. First, Plaintiff must identify “inaccurate or incomplete information that the furnisher [Defendant] provided to the reporting agency.” Milgram, 72 F. 4th at 1218; Felts, 893 F.3d at 1313. Second, “to prove an investigation was unreasonable, [Plaintiff] must point out ‘some facts [Defendant] could have uncovered that establish that the reported information was, in fact, inaccurate or incomplete.’ ” Milgram, 72 F. 4th at 1218; Felts, 893 F.3d at 1313. Defendant is entitled to judgment as a matter of law if the undisputed facts show that Plaintiff has not met this threshold requirement. Felts, 893 F.3d at 1313. *11 Here, like Milgram, which is factually almost identical to the present case, Plaintiff has not met the threshold requirement to show that Defendant's investigation was unreasonable, and her FCRA claims, therefore, fail as a matter of law. In Milgram, the plaintiff, Shelly Milgram, owned a business, Yolo Interiors, and in 2013, she hired Jean Williams to be an officer manager. Milgram, 72 F. 4th at 1214. Williams later opened three credit cards in Milgram's name—a Chase personal card, a Capital One card, and a Comenity Bank card—without Milgram's knowledge or permission. Id. at 1215. The Chase personal card was set up with Milgram as the owner, and Williams as an authorized user. Id. Between 2014 and 2016, Williams made personal purchases on all three of the new credit cards, and she also made personal purchases on Milgram's already existing Chase business card. Id. Williams made payments on all of the cards from Yolo Interiors's checking accounts. Id. In May 2016, Milgram noticed a charge paid from Yolo Interiors's checking account that she did not recognize, which ultimately led her to discover the three unauthorized credit cards in her name. Id. Milgram reported the fraudulent personal card and the fraudulent charges on the business card, to Chase, and she supported her fraud claim with text messages from Williams admitting the fraud, the police report she had filed, and bank account screenshots. Id. Chase's fraud team investigated the fraud claim, and determined that Milgram was liable for the charges based on its findings that: (1) Milgram owned Yolo Interiors; and (2) payments on the cards had been made from bank accounts that Milgram controlled—Yolo Interiors's Suntrust and Bank of America checking accounts. Id. Chase, therefore, concluded that Williams had apparent authority to use the cards, and it held Milgram liable for the outstanding balance, which at that time was around $ 30,000. Id. Chase considered the fact that a state attorney was prosecuting Williams for identity theft, but concluded that did not overcome the apparent authority. Id. Milgram filed a dispute with the CRAs—Equifax, Transunion, and Experian—and they, in turn, forwarded the dispute to Chase. Id. Chase's dispute verification team confirmed that Milgram owed the money based on verifying that Chase's data on Milgram, including her birthdate, social security number, and other personal information, matched the CRA data. Id. at 1215-1216. In October 2018, Williams pled guilty to seven counts of grand theft in the second and third degree, criminal use of personal identification information, and defrauding a financial institution, and she was sentenced to three years of incarceration and 10 years of probation. Id. at 1216. A state court issued an order recognizing that Williams fraudulently opened the Chase personal card and transferred money to pay the balances without Milgram's permission, and it recommended that the CRAs remove the associated negative information from Milgram's credit file. Id. In November 2018, Milgram filed another dispute with Chase, submitting the state court order, but Chase re-verified that Milgram was responsible for the account. Id. Milgram then filed suit against Chase, claiming that it violated the FCRA, which required furnishers of information to conduct reasonable investigations of disputes. Id. The Eleventh Circuit held that in order for the plaintiff to prevail on her § 1681s-2(b) claim, she must show both “(1) that the error in her credit report—that she owed Chase money for the charges on the credit card—is a cognizable inaccuracy under the FCRA and (2) that Chase's investigation into her dispute was unreasonable.” Milgram, 72 F. 4th at 1220. The Court assumed, without deciding, that legal inaccuracies could “be so clearly erroneous as to raise a claim under the FCRA,” satisfying the first element, but affirmed the grant of summary judgment to the defendant because plaintiff failed to satisfy the second element of meeting the threshold requirement to show that the investigation was unreasonable. Id. The Court explained that apparent authority is a form of estoppel,[15] and it arises when “the principal holds out the agent as having authority, but the principal doesn't intend to vest the agent with authority.” Id. at 1220-21 and n.7 (citation omitted). “Actual authority,” on the other hand, exists when the principal “actually provides an agent authority to act on her behalf.” Id. at 1220 n.7 (citation omitted). To prove apparent authority, the following must be shown: “(a) a representation by the purported principal, (b) a reliance on that representation by a third party, and (c) a change in position by the third party in reliance on the representation.” Id. at 1220-21; see also Popham v. Landmark Am. Ins. Co., 340 Ga. App. 603, 608 (2017) (“To prove apparent agency, the evidence must show: (1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury”). In Milgram, Chase determined that Milgram had vested Williams with apparent authority to use the card because: “(a) bank accounts controlled by Milgram had consistently paid down balances on the card; (b) Chase had furnished credit to an authorized user on the card; and (c) Chase had paid money to third-party vendors based on that reliance.” Id. at 1221. Milgram attempted to challenge Chase's conclusion of apparent authority with the criminal judgment that proved Williams was guilty, but the Court found that the judgment, which proved that Williams did not have “actual authority,” was not relevant to Chase's apparent authority determination. Id. at 1220-21. The payments that came from bank accounts Milgram controlled led Chase to believe that the charges were made with authority, and the fact that Williams did not actually have that authority “doesn't undercut that conclusion; it doesn't go to apparent authority at all.”[16] Id. at 1221. Milgram did not explain what Chase should have done differently—i.e., “whom it should have talked to or what documents it should have considered that might have affected its apparent-authority analysis,” which the Court found “doom[ed]” Milgram's claim because “a plaintiff cannot demonstrate that a reasonable investigation would have resulted in the furnisher concluding that the information was inaccurate or incomplete without identifying some facts the furnisher could have uncovered that establish that the reported information was, in fact, inaccurate or incomplete.” Id. (citing Felts, 893 F.3d at 1313). *12 Milgram's facts are similar to the facts in this case. Here, Plaintiff asserts that her son, Tariq Cairobe, “appears” to have opened the Chase Amazon card, he incurred charges on the card, and he made payments on the card, without Plaintiff's knowledge or permission, and that Defendant—Chase Bank—failed to conduct reasonable investigations of the disputes sent to Defendant from Experian on June 13, 2022, and October 30, 2022, despite the fact that Plaintiff provided information—her own statements to Chase and a police report—that she was purportedly a victim of identity theft. (Doc. 73-2 at 5-15; Doc. 83; see also Supra, Section III(B).) But like in Milgram, Chase determined in this case that Plaintiff was responsible for the Chase Amazon account based on its findings that: (1) between March 2021, and November 2021, payments on the Chase Amazon account had been regularly made from another account that was owned by Plaintiff; and (2) Plaintiff's name, address, and social security number were correct and matched the information on the application for the Chase Amazon account. (PSMF ¶35; DRPF ¶35; DSMF ¶¶6, 9, 11-14, 22-23; PRDF ¶¶6, 9, 11-14, 22-23; PASF ¶¶38-39; DRAF ¶¶38-39). Also similar to Milgram, Defendant determined that Plaintiff vested her son, Tariq Cairobe, with apparent authority to use the Chase Amazon card because: (a) payments on the card were regularly made from a bank account owned by Plaintiff, which Plaintiff does not dispute, (PRDF ¶¶11-12); (b) Defendant had furnished credit to an authorized user on the card; and (c) Defendant had paid money to third-party vendors based on that reliance. See Supra, Section III(B). Plaintiff argues that “there is a laundry list of things that [Defendant] failed to consider,” but it is not enough to show that Defendant failed to consider certain facts. (Doc. 85 at 10.) To meet the threshold requirement of showing that an investigation was unreasonable, Plaintiff “must point out ‘some facts [Defendant] could have uncovered that establish that the reported information was, in fact, inaccurate or incomplete.’ ” Milgram, 72 F. 4th at 1218 (emphasis added); Felts, 893 F.3d at 1313. First, Plaintiff argues that Defendant failed to consider the fact that Plaintiff had a Chase Slate credit card, for which she had never made late payments. (Docs. 73-2 at 5-10; 84 at 1-2, 5-7.) But Plaintiff does not explain how review of a different account, even assuming that timely payments were made on that account, would have changed Defendant's conclusion that the information it reported about the Chase Amazon account was inaccurate or incomplete. (Id.); Felts, 893 F.3d at 1313. Indeed, Plaintiff's daughter, Afsaneh Cairobe, was an authorized user on Plaintiff's Chase Slate account, (DSMF ¶2; PRDF ¶2; Doc. 69 at 45:5-7; Doc. 73-3 (Ex. 1)), and Plaintiff does not challenge her daughter's status as an authorized user on the Chase Slate account, (Doc. 69 at 45:5-46:7); so review of the Chase Slate account would have shown another example of Plaintiff having a family member as an authorized user on her accounts. Second, Plaintiff argues that Defendant failed to consider the following “admissions” made by Defendant in the December 22, 2021, phone call with Plaintiff: Tariq had been issued a credit card in his name; Tariq had the ability to discuss the account with Defendant; Tariq called about reversing a late fee on the account; Tariq called to make payments on the account; Tariq had enrolled a digital wallet for the account; and all of the payments made on the account were made by Tariq. (Docs. 73-2 at 5-10; 84 at 1-2, 5-7.) But all of those facts, even assuming that Defendant did not consider them, support rather than rebut, a finding that Tariq had apparent authority to use the Chase Amazon card. Third, Plaintiff argues that, although it is true that the payments made for the Chase Amazon card came from another account owned by Plaintiff, Defendant failed to investigate and learn that Tariq also had access to the payment account, and Defendant failed to discuss the matter with Plaintiff in order “to get other important and exculpating facts.” (Doc. 73-2 at 10-11, 14-15.) Again, even assuming its truth, the fact that Tariq had access to the account from which the payments came, supports rather than rebuts, a finding that Tariq had apparent authority. And Plaintiff's vague conclusory assertion that Defendant might have learned “other important and exculpating facts,” by speaking to Plaintiff, even assuming that Defendant should have spoken further with her, which the Court does not find, is insufficient to show that Defendant would have reached a different conclusion. See Milgram, 72 F. 4th at 1221; Felts, 893 F.3d at 1313. Indeed, though Plaintiff now asserts in her present filings that her son, Tariq Cairobe, was “the fraudster,” she did not previously make that allegation, either to police on April 17, 2022, nor as of the date of her deposition on June 15, 2023; thus, Defendant would not have gotten that information by speaking further with Plaintiff. (Docs. 73-2 at 14; 85 at 2, 6, 17, 21; see also Supra, Section III(B); Doc. 69 at 42:9-11 (Plaintiff's deposition testimony: Q. “Do you have any knowledge as to who opened the account in question?” A. “I do not”); Doc. 73-13 (Ex. 11) at 4 (police report provided to Defendant, dated April 17, 2022, which includes that Plaintiff reported “someone used her identity without her consent,” and “she does not know how the suspect/suspects obtained her personal information”);[17] Doc. 83 (audio recording between Plaintiff and Chase Bank on December 22, 2021, during which Plaintiff was informed that Tariq Cairobe was an authorized user on the account, he had enrolled a digital wallet for the account, and he made payments on the account; and when asked if she knew an individual named Tariq Cairobe, Plaintiff responded only that she had a “family member” by that name).) Plaintiff argues that it was not her “duty to identify who the identity thief was,” yet her entire “unreasonable investigation” argument is founded on her insistence that Defendant should have somehow figured out that Plaintiff's son, Tariq, was not in fact authorized to use, or make payments, on the Chase Amazon account, and if it had figured that out, Defendant would have then concluded that Plaintiff is not responsible for the account. (Docs. 73-2; 84 at 1-2; 85 at 21.) Defendant could not have “uncovered” that fact, however, without Plaintiff at some point identifying her son as the perpetrator of the alleged identity fraud. Regardless, as the Eleventh Circuit held in Milgram, even a criminal conviction for identity theft shows only a lack of actual authority, not apparent authority. Milgram, 72 F.4th at 1221. Plaintiff has not identified any facts that Defendant “could have uncovered that establish that the reported information”—that Plaintiff is responsible for the Chase Amazon account— “was, in fact, inaccurate or incomplete” based on Tariq's apparent authority. Milgram, 72 F.4th at 1218; Felts, 893 F.3d at 1313 (holding that defendant is entitled to judgment as a matter of law on § 1681s–2(b) claim when plaintiff has not met the “threshold requirement” of identifying some fact in the record establishing that the information the furnisher reported was inaccurate or incomplete). Accordingly, Plaintiff's § 1681s-2(b) claims fail as a matter of law, and judgment in favor of Defendant is appropriate.[18] V. CONCLUSION For the above reasons, the Court RECOMMENDS that Plaintiff's motion for summary judgment, (Doc. 73), be DENIED; Defendant's motion for summary judgment, (Doc. 77), be GRANTED; and Defendant's motion to exclude evidence, (Doc. 82), be GRANTED IN PART and DENIED IN PART. The Court further RECOMMENDS that Defendants Experian and Equifax be dismissed as parties to this action. As all matters referred to the undersigned have been ruled upon, the Clerk is DIRECTED to terminate the reference of this matter to the undersigned Magistrate Judge. SO RECOMMENDED and DIRECTED July 8, 2024. Footnotes [1] In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit that were issued before October 1, 1981. [2] Defendant objects to Plaintiff's additional statement of undisputed material facts, asserting that “nothing in Local Rule 56.1(B)(2) permits it.” (Doc. 89 at 18.) Defendant is incorrect, and its objection is overruled. A respondent's additional statement of facts is expressly permitted by subsection (b) of Local Rule 56.1(B)(2). Specifically, Local Rule 56.1(B)(2) states that: “A respondent to a summary judgment motion shall include the following documents with the responsive brief.” Then, subsection (a) states: “A response to the movant's statement of undisputed facts”; and subsection (b) states: “A statement of additional facts which the respondent contends are material and present a genuine issue for trial. Such separate statement of material facts must meet the requirements set out in L.R. 56.1(B)(1).” See LR 56.1(B)(2)(b) (emphasis added). In turn, Local Rule 56.1(B)(3) states: “If respondent provides a statement of additional material facts, then, within the time allowed for filing a reply, the movant shall file a response to each of the respondent's facts ...” See LR 56.1(B)(3) (emphasis added). [3] In addition to Local Rule 56.1, the Court's Scheduling Order expressly states that all facts asserted in the parties' briefs must be supported by citations to the statement(s) of material fact, and briefs that cite directly to the record evidence rather than to the statement(s) of material fact are not acceptable. (Doc. 20 at 6-7.) [4] The parties dispute whether or not the Chase Amazon account was opened by Plaintiff. Plaintiff asserts that it was not, that the email address on the application was not hers, that the account “appears” to have been opened by her “mentally ill and estranged” son, Tariq Cairobe, and that she is not responsible for the account. (PSMF ¶¶3-4, 6, 8, 14, 16-23, 26-27, 30; DRPF ¶¶3-4, 6, 8, 14, 16-23, 26-27, 30; DSMF ¶¶1-2, 18-19, 21; PRDF ¶¶1-2, 18-19, 21; PASF ¶¶32-33; DRAF ¶¶32-33; Doc. 68 ¶¶3, 7, 10.) Defendant asserts that it has never been determined who opened the account, and indeed, even at Plaintiff's deposition, taken June 15, 2023, Plaintiff denied knowing who opened the account; but regardless, Tariq was an authorized user. (PSMF ¶¶3-4, 6, 8, 16-23, 25, 29, 31-34; DRPF ¶¶3-4, 6, 8, 16-23, 25, 29, 31-34; DSMF ¶¶1-2, 18-19, 21; PRDF ¶¶1-2, 18-19, 21; PASF ¶¶32-33; DRAF ¶¶32-33; Doc. 68 ¶¶3, 10; Doc. 69 at 42:9-11.) [5] Plaintiff “denie[s]” this fact, but does not cite evidence that “directly refutes” it, and it is, therefore, admitted for purposes of summary judgment. See LR 56.1(B)(2)(a)(2)(i). In support of the fact, Defendant cites to its internal document, and the testimony of both Plaintiff and Defendant's witness, Kevin Kesterson. (DSMF ¶3.) Kesterson testified that the account statements, including notice of the original account opening, are sent to the address on file associated with the primary card member according to how the communication preference is set, and Plaintiff testified that “10984 Highridge Court, Hampton, GA” is her correct address. (DSMF ¶3, citing Doc. 72-1 (Kesterson depo) at 23:17-21, and Doc. 69 (Plaintiff depo) at 79:3-11.) The internal document provides that the address of record for the account was “10984 Highridge Court, Hampton, GA,” and the “Statement Type” for the account was “Paper (1/19/2021-1/24/2021) EBill (1/25/2021-11/16/2021) Paper (11/17/2021-Till Date),” which shows that on the date of the account opening—January 19, 2021—the statement type was “paper,” and would, therefore, be mailed to Plaintiff's 10984 Highridge Court address. (Doc. 77-3 (Ex. A) at 24 (“CHASE-000403”).) In support of her denial of the fact, Plaintiff cites Kesterson's testimony, asserting that he did not know if the statements were sent by email or mail, and her own testimony, asserting that “she never received this [account opening] notice from Chase.” (PRDF ¶3.) When asked how the statements were sent, Kesterson testified “I don't recall.” (Doc. 72-1 at 23:17-24). Plaintiff, however, testified only that she did not “recall” receiving a paper notice of the account opening at her home address, and she acknowledged that “it's a possibility. I can't say.” (Doc. 69 at 16:18-17:8.) And Plaintiff cites nothing that refutes the document showing that the “Statement Type” for the account was “Paper” on January 19, 2021, which would have been mailed to the address of record. (PRDF ¶3.) [6] Plaintiff submitted a declaration dated October 6, 2023, in which she avers that “I never used the email address of Cariobeholdings.com@pm.me [sic].” (Doc. 68 ¶10.) The Court notes that in another case filed in this District, in which she challenged a $15,000 debt incurred on an American Express credit card based on alleged identity theft, she submitted a declaration, in which she averred that “I am the incorporator of Cairobe Holdings, LLC in 2019.” See Mirabahn Cairobe v. Zwicker & Associates, P.C., NDGA Case No. 1:23-CV-00486-CAP-JKL at (Doc. 30-2.) Plaintiff ultimately withdrew that declaration, however, because it contained other sworn testimony that she later admitted was false—namely, Plaintiff later admitted that the American Express account at issue was hers. Id. at (Docs. 30-2; 45; 46; 56); see also (Doc. 73-13 (Ex. 11) at 4 (police report including two American Express cards as having been opened by someone using her identity without her consent).) [7] Plaintiff testified at her deposition that she became aware of the account when she looked at her credit report at the end of the year in December 2021. (Doc. 69 at 16:1-6.) In Plaintiff's reply brief, she states that she became aware of the account “after her son died and she began to receive paper statements at her home.” (Doc. 84 at 4, citing Plaintiff's Declaration (Doc. 68) ¶5.) Paragraph 5 of Plaintiff's Declaration states “As soon as I discovered that the Bogus Account was on my credit file, I contacted Defendant Chase by telephone on or about December 22, 2021.” (Doc. 68 ¶5.) Defendant, citing its own fact, objects to the characterization that Plaintiff only learned about the account in December 2021, because “Plaintiff received notice” of the account's opening when it was mailed to her home address in January 2021. (DRPF ¶21, citing DSMF ¶3.) Though, as noted above, the evidence establishes that a paper notice of the account opening was mailed to Plaintiff's home address, the fact that it was mailed does not “directly refute” Plaintiff's deposition testimony that she was not “aware” of the account until December 2021. (Doc. 69 at 16:1-6); see LR 56.1(B)(2)(a)(2)(i). As discussed, though Plaintiff acknowledged the possibility that a paper notice was mailed to her address, she testified that she did not “recall” receiving a notice of the account opening. (Doc. 69 at 16:18-17:8.) The statement in Plaintiff's brief gives a different reason for her becoming aware of the account in December, but the Court recognizes that the statement in the brief is counsel's statement, and though it cites to Plaintiff's Declaration, the cite does not support the statement. (Doc. 84 at 4.) This fact is admitted for purposes of summary judgment. [8] The audio recording of the call indicates that, after the initial representative provided this information about the account, and closed the account, Plaintiff was transferred to Defendant's security/fraud department, but there is no recording of that later interaction, if it occurred, in the present record. (Doc. 83.) [9] After the June 2022 ACDV, and before the October 2022 ACDV, Plaintiff filed the present complaint on July 25, 2022, alleging that Defendant violated the FCRA. (Doc. 1.) The October ACDV states that the matter is “involved in litigation cons[umer] claims this is a fraudulent account.” (Doc. 73-15 (Ex. 13) at 1) (caps omitted). [10] The parties dispute whether or not Defendant's investigation was reasonable. (PSMF ¶36; DRPF ¶36; DSMF ¶¶7-9, 22-23; PRDF ¶¶7-9, 22-23; PASF ¶38; DRAF ¶38.) [11] Defendant objects to this evidence of emotional distress on the ground that it is supported only by Plaintiff's testimony, but plaintiffs are not required to produce evidence of emotional distress beyond their own testimony, and Defendant's objection is overruled. Benjamin v. Experian Info. Sols., Inc., 561 F. Supp. 3d 1330, 1342–43 (N.D. Ga. 2021); King v. Asset Acceptance, LLC, 452 F. Supp. 2d 1272, 1281 (N.D. Ga. 2006). Defendant's objection to Plaintiff's testimony that she received medical treatment, including prescribed medication, and counseling for the emotional distress caused by Defendant is sustained, however, given Plaintiff's failure to disclose that information as required by Rule 26, and those facts are not admitted for purposes of summary judgment. See Infra, Section IV(A). [12] Though the motion to exclude evidence could be considered moot given the recommendation that Defendant's motion for summary judgment be granted, the undersigned nevertheless addresses the motion on the merits because it includes a request for attorney fees, which the undersigned recommends denying. [13] At her deposition, when Plaintiff testified that she had medical records showing the treatment she received, Defendant asked again that they be produced, as it had previously requested them in written discovery. (Doc. 69 at 55:8–56:5.) Plaintiff's counsel's only response was to ask if there was a protective order in place, but he did not indicate that he had any objection to producing the records. (Id.) [14] Section 1681n of the FCRA governs civil liability for willful violation of any duty imposed under the statute, and § 1681o governs liability for negligent violation of any duty imposed under the statute. Lockett v. Experian Info. Sols., Inc., No. 1:20-CV-1427-ELR-JCF, 2021 WL 4815898, at *3–4 (N.D. Ga. June 30, 2021), report and recommendation adopted, No. 1:20-CV-01427-ELR, 2021 WL 4815891 (N.D. Ga. Sept. 9, 2021); Carlisle v. Nat'l Com. Servs., Inc., No. 1:14-CV-515-TWT-LTW, 2017 WL 1075088, at *14 (N.D. Ga. Feb. 22, 2017), report and recommendation adopted, No. 1:14-CV-515-TWT, 2017 WL 1049454 (N.D. Ga. Mar. 20, 2017), aff'd, 722 F. App'x 864 (11th Cir. 2018). [15] In Milgram, the Court discussed apparent authority under Florida law because Milgrim lived in Florida, but the analysis applies under Georgia law as well. Milgram, 72 F. 4th at 1220-21; Morris v. Williams, 214 Ga. App. 526, 527 (1994) (“Apparent authority is that which the principal's conduct leads a third party reasonably to believe the agent has; it creates an estoppel allowing third parties to bind a principal to the agent's acts on account of the principal's conduct, reasonably construed by third parties acting in innocent reliance thereon”). [16] Plaintiff attempts to distinguish Milgram on the ground that Milgram had authorized automatic payments of $350 per month from her checking account to her Chase business credit card, and Plaintiff here says that she did not authorize any of the payments that were made on the Chase Amazon card. (Doc. 84 at 3-5.) But in Milgram, Williams also made unauthorized payments on all of the cards, including the Chase business card and the Chase personal card, and in any event, the apparent authority conclusion was based only on the fact that payments came from accounts that Milgram controlled, with no distinction made between authorized payments and unauthorized payments. Milgram, 72 F.4th at 1214-15. (“Williams used the three credit cards [a Chase personal credit card, a Capital One card, and a Comenity Bank card], as well as Yolo Interiors's Chase business card, for personal purchases. When the bills came due, Williams made payments on the cards from Yolo Interiors's checking accounts”). [17] It appears, based on the fact that she was informed of Tariq's involvement with the Chase Amazon account on December 22, 2021, that Plaintiff was not fully forthcoming to police on April 17, 2022, when she reported the alleged identity theft. (Docs. 73-2 at 14; 85 at 2, 6, 17, 21; see also PSMF ¶¶8; 30; DRPF ¶¶8, 30; Doc. 83.) But even to the extent that the statements in the report should not be considered for the truth of the statements, the police report and the statements may nevertheless be considered to the extent that the report, which Plaintiff provided to Defendant in support of her dispute, did not inform Defendant, or in any way put Defendant on notice, that her son, Tariq, was not authorized to use the card. [18] Because Plaintiff's claims fail as matter of law, the Court need not address the parties' arguments about damages, nor whether Defendant's conduct was willful or negligent.