United States District Court, Northern District of Indiana, Fort Wayne Division
RUSSELL D. ROSCO, Plaintiff,
OPINION AND ORDER
Susan Collins, United States Magistrate Judge
Before the Court is a motion to amend filed on December 29, 2014, by pro se Plaintiff Russell Rosco in this case against Defendant Equifax under the Fair Credit Reporting Act (“FCRA”). (Docket # 14.) In his proposed amended complaint, Rosco seeks to (1) add a tort claim of public disclosure of private facts against Equifax; its local counsel, James Riley; and its Atlanta-based counsel, King & Spalding, on the basis that Riley sent Rosco’s social security number to Rosco in a discovery request via an unencrypted email; and (2) name as additional defendants First Bank INC, d/b/a First Bank Mortgage Corporation, and The Advantage Group, a/k/a Albuquerque Collection Services, claiming they violated the FCRA by furnishing inaccurate or false information about Rosco’s credit to Equifax. (Docket # 14.)
Equifax filed a response on January 21, 2015, opposing Rosco’s motion to amend with respect to the tort claim against Equifax, Riley, and King & Spalding, claiming it is futile. (Docket # 21.) Rosco replied on January 29, 2015 (Docket # 24), and thus, the motion is now ripe for ruling. For the following reasons, the motion to amend will be GRANTED in part and DENIED IN PART.
A. Factual and Procedural Background
On April 1, 2014, Rosco filed a complaint against Equifax in Allen Superior Court, alleging that Equifax violated the FCRA by failing to provide him information from his credit file and correct inaccurate information therein. (Docket # 13.) Equifax timely removed the case to this Court. (Docket # 1.) The Court conducted a scheduling conference on November 24, 2014, setting January 7, 2015, as the last day for Rosco to seek leave to amend his complaint or add parties; and April 17, 2015, for the completion of all discovery. (Docket # 12.)
B. Standard of Review
“[T]he decision to grant or deny a motion to file an amended pleading is a matter purely within the sound discretion of the district court.” Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008) (alteration in original) (citation omitted). “The court ‘should freely give leave when justice so requires.’” Id. (quoting Fed.R.Civ.P. 15(a)(2)); see Foman v. Davis, 371 U.S 178, 182 (1962). “Although the rule reflects a liberal attitude towards the amendment of pleadings, courts in their sound discretion may deny a proposed amendment if the moving party has unduly delayed in filing the motion, if the opposing party would suffer undue prejudice, or if the pleading is futile.” Soltys, 520 F.3d at 743 (citation omitted); see Foman, 371 U.S. at 182.
As recited above, Rosco’s deadline for joining additional parties and amending the complaint was January 7, 2015. Thus, his motion is timely.
1. Rosco’s Additional Claim Against Equifax and Its Attorneys
Rosco seeks to amend his complaint to advance what appears to be a tort claim of public disclosure of private facts against Equifax and its attorneys. Equifax opposes that portion of the motion on the basis of futility.
“[F]utility is measured by the capacity of the amendment to survive a motion to dismiss.” Duthie v. Matria Healthcare, Inc., 254 F.R.D. 90, 94 (N.D. Ill. 2008) (citing Crestview Vill. Apartments v. U.S. Dep’t of Hous. & Urban Dev., 383 F.3d 552, 558 (7th Cir. 2004); Barry Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004)). “That means a proposed amendment must allege ‘enough facts to state a claim to relief that is plausible on its face.’” Duthie, 254 F.R.D. at 94 (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)).
The tort of public disclosure of private facts “occurs when a person gives ‘publicity’ to a matter that concerns the ‘private life’ of another, a matter that would be ‘highly offensive’ to a reasonable person and that is not of legitimate public concern.” Vargas v. Shepherd, 903 N.E.2d 1026, 1031 (Ind.Ct.App. 2009) (citation omitted). Rosco claims that Attorney Riley committed this tort when he sent to Rosco an unencrypted email with an attachment (a Medical Authorization and Release) that contained Rosco’s social security number, copying one other lawyer in Riley’s firm and three attorneys with King & Spaulding. (Pl.’s Reply 3.)
But Rosco fails to satisfy even the first element of the tort, as “[a] communication to a single person or to a small group of persons is not actionable because the publicity element requires communication to the public at large or to so many persons that the matter is substantially certain to become one of public knowledge.” Vargas, 903 N.E.2d at 1031. That ...