LIBBY v. LAKE et al
Filing
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ORDER denying 22 Motion to Amend. By MAGISTRATE JUDGE JOHN H. RICH III. (jlg)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
EDWARD LIBBY,
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Plaintiff
v.
ERIC LAKE, et al.,
Defendants
No. 2:11-cv-152-JAW
MEMORANDUM DECISION ON MOTION FOR LEAVE TO AMEND COMPLAINT
In this action alleging a violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et
seq., intentional infliction of emotional distress, and invasion of privacy, the plaintiff moves for
leave to amend his complaint for the third time by adding three new counts, for conversion, civil
conspiracy, and punitive damages. Second Motion for Leave to File an Amended Complaint
(“Motion”) (Docket No. 22). I deny the motion because the proposed amendments would be
futile.
I. Applicable Legal Standard
The First Circuit has explained:
A motion to amend a complaint will be treated differently depending on its timing
and the context in which it is filed. A plaintiff is permitted to amend a complaint
once as a matter of right prior to the filing of a responsive pleading by the
defendant. Thereafter, the permission of the court or the consent of the opposing
party is required. The default rule mandates that leave to amend is to be freely
given when justice so requires, unless the amendment would be futile, or reward,
inter alia, undue or intended delay.
As a case progresses, and the issues are joined, the burden on a plaintiff seeking
to amend a complaint becomes more exacting. Scheduling orders, for example,
typically establish a cut-off date for amendments[.] Once a scheduling order is in
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place, the liberal default rule is replaced by the more demanding “good cause”
standard of Fed. R. Civ. P. 16(b). This standard focuses on the diligence (or lack
thereof) of the moving party more than it does on any prejudice to the partyopponent. Where the motion to amend is filed after the opposing party has timely
moved for summary judgment, a plaintiff is required to show “substantial and
convincing evidence” to justify a belated attempt to amend a complaint.
Steir v. Girl Scouts of the USA, 383 F.3d 7, 11-12 (1st Cir. 2004) (citations, footnotes, and
internal quotation marks omitted).
“The appropriateness vel non of a district court decision denying a motion to amend on
the ground of futility depends, in the first instance, on the posture of the case.” Hatch v.
Department for Children, Youth & Their Families, 274 F.3d 12, 19 (1st Cir. 2001). The First
Circuit has clarified:
If leave to amend is sought before discovery is complete and neither party has
moved for summary judgment, the accuracy of the “futility” label is gauged by
reference to the liberal criteria of Federal Rule of Civil Procedure 12(b)(6). In
this situation, amendment is not deemed futile as long as the proposed amended
complaint sets forth a general scenario which, if proven, would entitle the plaintiff
to relief against the defendant on some cognizable theory. If, however, leave to
amend is not sought until after discovery has closed and a summary judgment
motion has been docketed, the proposed amendment must be not only
theoretically viable but also solidly grounded in the record. In that type of
situation, an amendment is properly classified as futile unless the allegations of
the proposed amended complaint are supported by substantial evidence.
Id. (citations omitted).1
In this case, discovery is not complete and none of the parties has moved for summary
judgment. The criteria of Rule 12(b)(6), applicable under these circumstances, are the following:
With respect to Rule 12(b)(6), as the Supreme Court has clarified:
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With respect to the Rule 12(b)(6) standard, the Supreme Court has elaborated: “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation and internal quotation marks omitted). “The
plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (citation and internal quotation omitted). Thus, faced with a motion to dismiss,
a court must examine the factual content of the complaint and determine whether it can reasonably infer “that the
defendant is liable for the misconduct alleged.” Id.
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While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations
must be enough to raise a right to relief above the speculative level.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted).
“In ruling on a motion to dismiss [under Rule 12(b)(6)], a court must accept as true all the
factual allegations in the complaint and construe all reasonable inferences in favor of the
plaintiffs.” Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.
2001).
Ordinarily, in weighing a Rule 12(b)(6) motion, “a court may not consider any
documents that are outside of the complaint, or not expressly incorporated therein, unless the
motion is converted into one for summary judgment.”
Id. “There is, however, a narrow
exception for documents the authenticity of which are not disputed by the parties; for official
public records; for documents central to plaintiffs’ claim; or for documents sufficiently referred
to in the complaint.” Id. (citation and internal quotation marks omitted).
II. Discussion
The plaintiff filed his second amended complaint with the court’s permission, nunc pro
tunc, on July 14, 2011. Docket Nos. 11, 14. This motion was filed on October 21, 2011, which
was the deadline for amendment of the pleadings. Docket Nos. 17 & 22. The plaintiff’s
deadline for designating expert witnesses was November 18, 2011, and the discovery deadline is
February 13, 2012. Docket No. 25.
The plaintiff seeks to add two counts alleging conversion and civil conspiracy, and a third
count to recover punitive damages, in this action currently alleging violation of 15 U.S.C.
§1681n, intentional infliction of emotional distress, and invasion of privacy. Second Amended
Complaint (Docket No. 11). The defendants oppose the motion, contending that they will be
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unduly prejudiced by the proposed additional counts, that the claims for conversion and civil
conspiracy are futile, and that the plaintiff has had enough time and attempts to cure any
deficiencies in his complaint and should not be allowed any more. Opposition of Defendants
Eric and Shelly Lake to Plaintiff’s Motion for Leave to File a Third Amended Complaint
(“Opposition”) (Docket No. 26) at 2-6; Defendant Tenant-Net, Inc.’s Opposition to Plaintiff’s
Second Motion for Leave to File an Amended Complaint (Docket No. 27) (joining in Lake
defendants’ motion).
A. Factual Background
The second amended complaint alleges the following relevant facts. The plaintiff and
defendant Shelly Lake apparently are parents of a minor child. On January 26, 2010, the
plaintiff filed a motion to modify child support in the Maine District Court in Portland. Second
Amended Complaint (Docket No. 11) ¶ 8. On or about January 29, 2010, a rental application
was filled out on Padzilla.com, a service mark of defendant Tenant-Net, Inc., listing the plaintiff
as the applicant and defendant Shelly Lake as the landlord. Id. ¶¶ 5, 9-10.
The application authorized Tenant-Net, Inc. to pull the plaintiff’s credit report and past
criminal, credit, and rental history. Id. ¶ 11. Subsequently, the plaintiff’s credit report was
furnished to “elake@maine.rr.com.” Id. ¶ 12. The plaintiff did not fill out this or any other
rental application. Id. ¶ 13.
On or about November 18, 2010, the plaintiff, while making a
routine inspection of his credit report, detected an entry for this inquiry. Id. ¶ 14.
The defendants conspired to obtain a consumer report under false pretenses in order to
obtain financial information that would assist defendant Shelly Lake in defending against the
plaintiff’s motion to modify child support. Id. ¶ 17. The defendants knowingly and falsely
attested that the information supplied in the application was true and complete. Id. ¶ 18. The
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defendants’ actions have caused irreparable harm to the plaintiff’s credit score and placed him in
danger of identity theft. Id. ¶ 20.
B. Futility
The plaintiff asserts that he would like to add the three new counts “in response to”
defendant Eric Lake’s answer to the amended complaint, in which Lake “indicated that he alone
knowingly and falsely attested to the validity of the information provided on the Padzilla.com
site.” Motion at [2]. But that admission is not reflected in the proposed Third Amended
Complaint, which continues to allege that all of the defendants “knowingly and falsely attested
that the information supplied in the Application was true and complete[.]” [Proposed] Third
Amended Complaint (Docket No. 23) ¶ 19. Further, and more importantly, that admission does
not provide any basis for the proposed additional claims of conversion and civil conspiracy.
Thus, on the showing made, there is little justification for the proposed new causes of
action.
In addition, the proposed Counts IV and V for conversion and civil conspiracy,
respectively, fail to state claims upon which relief may be granted.
1. Conversion
Under Maine law, the tort of conversion does not include appropriation of information
that is not “customarily merged in or identified with some document.” Northeast Coating
Techs., Inc. v. Vacuum Metallurgical Co., 684 A.2d 1322, 1324 (Me. 1996). The information at
issue here, an individual’s credit rating and associated information, is not customarily merged in
or identified with a particular document. Accordingly, the proposed Count IV fails to state a
claim upon which relief may be granted, see Diamond Phoenix Corp. v. Small, No. 05-79-P-H,
2005 WL 1530264, at *7 (D. Me. June 28, 2005), and the doctrine of futility bars the plaintiff’s
attempt to add it to his complaint.
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2. Civil Conspiracy
Maine law2 requires the pleading of the commission of an independently recognized tort
to sustain a claim for civil conspiracy. Lariviere v. Bank of N.Y., Civil No. 09-515-P-S, 2010
WL 2399583, at *7 (D. Me. May 7, 2010). That requirement is met in this case by the allegation
of intentional infliction of emotional distress in Count II, Second Amended Complaint ¶¶ 21-25,
but civil conspiracy under Maine law is not a separate tort but rather a rule of vicarious liability.
Johnson v. Town of Gorham, Civil No. 07-188-P-S, 2008 WL 4816521, at *11 (D. Me. Oct. 31,
2008) (quoting Forbis v. City of Portland, 2003 WL 2120675, at *19 (D. Me. May 29, 2003)).
There are no allegations of vicarious liability in the proposed Third Amended Complaint. In any
event, civil conspiracy is generally not an independent tort under Maine law. Fiacco v. Sigma
Alpha Epsilon Fraternity, 484 F.Supp.2d 158, 176 (D. Me. 2007); Forbis v. City of Portland,
270 F.Supp.2d 57, 61 (D. Me. 2003).
Count V of the proposed Third Amended Complaint fails to state a claim upon which
relief may be granted and thus meets the test for futility.
3. Punitive Damages
The last proposed amendment at issue is presented as Count VI, a claim for punitive
damages. A claim for punitive damages is not a separate and distinct cause of action under
Maine law. Goldenson v. Steffens, __ F.Supp.2d __, 2011 WL 3424246, at *28 (D. Me. Aug. 4,
2011). The count, therefore, would be subject to dismissal, and thus the proposed amendment is
futile. Id.
However, the plaintiff should be allowed to seek punitive damages. Id. The trial judge
will decide whether this demand is already included in the general demand for damages in the
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The proposed Third Amended Complaint does not make clear whether the civil conspiracy claim is asserted under
federal law, which would be governed by 42 U.S.C. § 1983, or state law, but the allegations of the proposed new
Count V cannot be read to invoke federal law.
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second amended complaint or must be pleaded specifically in the damages demand. In the latter
case, such an amendment should be permitted.
III. Conclusion
For the foregoing reasons, the plaintiff’s motion for leave to amend the complaint a third
time is DENIED.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 29th day of December, 2011.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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