Bruce Nelson v. American Express Company

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 3, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-14861
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D. C. Docket No. 08-00438-CV-LSC-S
BRUCE NELSON,
Plaintiff-Appellant,
versus
EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 3, 2010)
Before DUBINA, Chief Judge, ANDERSON, Circuit Judge, and MOODY,*
District Judge.
PER CURIAM:
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*Honorable James S. Moody, Jr., United States District Judge for the Middle District of Florida,
sitting by designation.

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After oral argument and careful consideration, we conclude that the
judgment of the district court is due to be affirmed. In the proceedings below, the
plaintiff admitted that American Express charged off his accounts, meaning that
Experian’s reporting of these charge-offs was not inaccurate. Plaintiff argues on
appeal that his admission should not be binding because the “totality” of his
Complaint and his response to the Motion for Summary Judgment shows that his
true position is that American Express did not charge off the accounts but instead
falsely reported that it did so. Plaintiff further argues that American Express did
not actually charge off the accounts because, by doing so, it would have violated its
own policies as well as federal law and regulations. We conclude that plaintiff is
incorrect on both points. It was not error for the district court to hold the plaintiff
to the admissions he made through his pleadings, and plaintiff’s evidence shows at
best that American Express should not have charged off the accounts, not that it did
not. Since plaintiff has presented no substantial evidence that Experian issued an
inaccurate credit report, neither his claims under the Fair Credit Reporting Act nor
his state law claims can survive summary judgment.
In the alternative, plaintiff might have argued that Experian’s reporting was
inaccurate because he presented evidence that American Express should not have
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charged off the accounts, even if it did. We do not reach the question of whether
this theory is viable, however, because plaintiff has failed to make the argument.
An appellant’s brief must include an argument containing “appellant’s contentions
and the reasons for them, with citations to the authorities and parts of the record on
which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). In this Circuit, “a legal
claim or argument that has not been briefed before the court is deemed abandoned
and its merits will not be addressed.” Access Now, Inc. v. Southwest Airlines, Co.,
385 F.3d 1324, 1330 (11th Cir. 2004). Because Nelson does not squarely argue in
his brief that Experian’s reporting should be considered inaccurate on the grounds
that American Express should not have charged off the accounts, this contention
has been waived.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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