Rosco v. Equifax

Filing 32

OPINION AND ORDER re 14 MOTION for Leave to Amend Complaint and Joiner of Parties re 13 State Court Claim by Pla Russell D. Rosco. Motion GRANTED IN PART in that Pla may file a revised proposed amended complaint for the Court's review on or before 4/2/2015, only incorporating the provisions naming First Bank INC as an additional dft; Pla's Motion is OTHERWISE DENIED. Once the Court is satisfied that Pla's revised proposed amended complaint complies with this Order, it will direct the Clerk to show it filed. Signed by Magistrate Judge Susan L Collins on 3/25/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
RUSSELL D. ROSCO,
Plaintiff,
v.
EQUIFAX,
Defendant.

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CAUSE NO. 1:14-CV-141

OPINION AND ORDER
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.
C. Discussion
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

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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 is,
Rosco fails to claim that his social security number was viewed by any member of the public.
Rather, Rosco’s only allegation is that the transmission of his social security number in
an unencrypted email puts him at increased risk of identity theft. But the complaint does not

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allege that other entities obtained and attempted to use his social security number. Therefore,
nothing in Rosco’s complaint suggests that his personal information was divulged to the extent it
was “substantially certain to become one of public knowledge.” In re Matthys, No. 09-16585AJM-13, 2010 WL 2176086, at *3 (Bkrtcy. S.D. Ind. May 26, 2010) (dismissing plaintiff’s tort
claim of invasion of privacy based on defendant’s filing of plaintiff’s social security number on
the bankruptcy court docket); see Sexton v. Runyon, No. 1:03-cv-291, 2005 WL 2030865, at *910 (N.D. Ind. Aug. 23, 2005) (“To the extent a federal constitutional right of privacy against the
disclosure of personal matters exists, it has not been extended to the information disclosed in this
case, the Plaintiff’s address and social security number.”). As a result, Plaintiff’s claim seeking
relief and damages for the tort of public disclosure of private facts would not survive a motion to
dismiss, and therefore, is futile. See Sexton, 2005 WL 2030865, at *9 (“[T]he contention that
disclosure of a social security number violates the right to privacy has been consistently
rejected.”).
Perhaps realizing this, Rosco argues in his reply brief that “sending unencrypted
information constitutes unfair or deceptive acts or practices, in or affecting commerce, in
violation of Section 5(a) of the Federal Trade Commission Act.” (Pl.’s Reply 4.) But in support
of this assertion, he cites only actions brought by the Federal Trade Commission, not cases in
which a plaintiff brought a private right of action. Indeed, the Federal Trade Commission Act
does not create a private right of action, and thus, this argument also fails to defeat a finding of
futility. See 15 U.S.C. § 45(m)(1)(A); Int’l Tax Advisors, Inc. v. Tax Law Assocs., LLC, No. 08 C
2222, 2011 WL 612093, at *5 (N.D. Ill. Feb. 15, 2011) (articulating that the Federal Trade
Commission Act is “enforced exclusively” by the Federal Trade Commission, and thus, “there is

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no private right of action under the statute”); Stanley v. Select Portfolio, No. 07-cv-775, 2008
WL 2020509, at *3 (S.D. Ill. May 9, 2008) (same); Carrel v. George Weston Bakeries
Distribution, Inc., No. 1:05-cv-01769, 2006 WL 1005041, at *1 (S.D. Ind. Apr. 13, 2006)
(same).
2. Rosco’s Claim Against First National Bank
Rosco further alleges in his proposed amended complaint that First Bank Mortgage “gave
the false impression that” his home went through foreclosure, rather than a short sale; that he
disputed this information to Equifax on or about May 9, 2014, and that he was harmed by the
purportedly erroneous reporting. (Proposed Am. Compl. ¶¶ 7-10.) As such, Rosco seems to be
alleging that First Bank Mortgage violated its duty as a furnisher imposed by the FCRA to
investigate disputed information. See 15 U.S.C. § 1681s-2(b); see, e.g., Ori v. Fifth Third Bank,
674 F. Supp. 2d 1095, 1097 (E.D. Wis. 2009) (denying defendant’s motion to dismiss claim
against furnisher); Brown v. Bank One Corp., No. 01 C 4698, 2002 WL 31654950, at *2 (N.D.
Ill. Nov. 22, 2002). Because Equifax apparently does not oppose the motion to amend with
respect to naming this additional defendant, and because the Court should “freely give leave
when justice so requires,” Fed. R. Civ. P. 15(a)(2), Rosco’s motion to amend will be GRANTED
with respect to naming First Bank Mortgage as an additional defendant.
3. Rosco’s Claim Against The Advantage Group
Finally, Rosco alleges that The Advantage Group “falsely reported collection accounts as
currently active months after filing bankruptcy.” (Proposed Am. Compl. ¶ 12.) But Rosco does
not allege that he notified Equifax that he disputed this information in his file, which is a
required element of the claim. See 15 U.S.C. §§ 1681i(a)(2), 1681s-2(b). Therefore, Rosco’s

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proposed claim against The Advantage Group would not withstand a motion to dismiss, and
thus, is futile.
Accordingly, Rosco’s motion to amend will be GRANTED with respect to naming First
Bank INC as an additional defendant, but will otherwise be DENIED.
D. Conclusion
For the foregoing reasons, Plaintiff’s Motion for Leave to Amend Complaint and
Join[d]er of Parties (Docket # 14) is GRANTED IN PART in that Plaintiff may file a revised
proposed amended complaint for the Court’s review on or before April 2, 2015, only
incorporating the provisions naming First Bank INC as an additional defendant; Plaintiff’s
Motion is OTHERWISE DENIED. Once the Court is satisfied that Plaintiff’s revised proposed
amended complaint complies with this Order, it will direct the Clerk to show it filed.
SO ORDERED.
Enter for this 25th day of March 2015.
/s Susan Collins
Susan Collins,
United States Magistrate Judge

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