United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH E. FOOTE JUDGE
L. HAYES MAG. JUDGE
the undersigned magistrate judge, on reference from the
District Court, are two motions: a motion to sever
Plaintiff's claims against Defendant, Equifax Information
Services LLC (“Equifax”) relating to the data
security incident Equifax announced on September 7, 2017 (the
“Data Breach”) [doc. # 94] filed by Equifax (the
“Motion to Sever”); and Plaintiff's motion
for leave to file a third amended complaint [doc. # 101] (the
“Third Motion to Amend”). For reasons assigned
below, the Motion to Sever is DENIED and the Third Motion to
Amend is GRANTED, in part, and DENIED, in part.
already lengthy procedural history of this matter through
January 10, 2018, is set out in the memorandum order filed
that date, in which the undersigned granted Plaintiff's
second motion for leave to amend in part, allowing Plaintiff
to amend his existing FCRA claims, to add claims for
negligence and defamation, and to add claims related to the
Data Breach, and denied the motion in part, prohibiting
Plaintiff from adding claims for injunctive relief [doc.
#82]. That same date, the undersigned filed a report and
recommendation recommending that Experian's motion to
dismiss be denied as moot [doc. #83]. On January 25, 2018,
the District Judge, adopting the report and recommendation,
denied the motion [doc. #90].
January 30, 2018, Equifax filed its Motion to Sever [doc.
#94] (the “Motion to Sever”), seeking to sever
Plaintiff's claims against it relating to the Data
Breach, and pointing out that it intends to have this case
“tagged” as a tag-along case in the
Multi-District litigation pending in the Northern District of
Georgia relating to the Data Breach (the “MDL”).
Plaintiff opposed the Motion to Sever [docs. 105 & 106].
February 9, 2018, Plaintiff filed his Motion for Leave to
File Third Amended Complaint [doc. #101] (the “Third
Motion to Amend”), seeking to “(a) cure defects
in [his] Second Amended Complaint; (b) add additional FCRA,
negligence, and gross negligence claims against all named
Defendants (to include those related to data breaches at
Equifax, Experian, and Trans Union); [and] (c) seek adequate
equitable relief as well as damages from all named
Defendants.” Third Motion to Amend, doc. # 101, p. 1.
Defendants oppose [doc. #107], arguing that the Court should
deny as futile both Plaintiff's request to add new claims
relating to various newly-alleged data security incidents
involving Equifax, Experian, and Trans Union (the “New
Privacy Claims”) and additional claims that the Court
previously held were futile. Defendants argue that the New
Privacy Claims are not credible, are based on incidents that
have been public knowledge for a long time, and that they
would unduly prejudice Defendants if they were added at this
time. Defendants further argue that Plaintiff's proposed
amendments to add claims for gross negligence and violations
of the Gramm-Leach-Bliley Act (“GLBA”), as well
as his proposed request for injunctive relief are duplicative
of proposed claims which the court has already denied as
Leave to Amend.
Federal Rule of Civil Procedure 15(a), a timely-filed leave
to amend shall be “freely [granted] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “‘Whether
leave to amend should be granted is entrusted to the sound
discretion of the district court . . . .'”
Quintanilla v. Texas Television Inc., 139 F.3d 494,
499 (5th Cir. 1998) (quoted source omitted). Yet,
“[i]n the context of motions to amend pleadings,
‘discretion' may be misleading, because
Fed.R.Civ.P. 15(a) ‘evinces a bias in favor of granting
leave to amend.'” Martin's Herend Imp. v.
Diamond & Gem Trading United States of Am. Co., 195
F.3d 765, 770 (5th Cir. 1999) (quoting Dussouy
v. Gulf Coast Inv. Corp., 660 F.2d 594, 597
(5th Cir. 1981)). A district court must have a
“substantial reason” to deny a request for leave
to amend. Lyn-Lea Travel Corp. v. Am. Airlines,
Inc., 283 F.3d 282, 286 (5th Cir. 2002)
Court considers the following factors in making its decision:
(1) undue delay; (2) bad faith or dilatory motive; (3)
repeated failure to cure deficiencies by previous amendments;
(4) undue prejudice to the opposing party; and (5) futility
of amendment. Rosenzweig v. Azurix Corp., 332 F.3d
854, 864 (5th Cir. 2003) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). Absent any of these
factors, leave should be granted. Smith v. EMC
Corp., 393 F.3d 590, 595 (5th Cir. 2004)
(citing, Foman, 371 U.S. at 182).
proposed claims are not credible on their face, leave to
amend should be denied as futile. See Adhikari v. Kellogg
Brown & Root, Inc., 845 F.3d 184, 214 (5th Cir.),
cert. denied, 138 S.Ct. 134, 199 L.Ed.2d 35 (2017) (“If
the allegations are ‘enough to raise a right to relief
above the speculative level and the claim for relief is
plausible on its face, . . . amendment would not have been
futile.'” (quoting Thomas v. Chevron U.S.A.,
Inc., 832 F.3d 586, 593 (5th Cir. 2016)).
New Privacy Claims
attack the credibility of the New Privacy Claims by asserting
that Plaintiff mined those claims from an internet article
titled “4 Credit Bureau Data Breaches that Predate the
2017 Equifax Hack” (the “Web Article”).
See Opposition to Amendment, doc. #107, pp. 3-4.
Defendants quote excerpts from and attach the Web Article to
support their assertions that Plaintiff modeled the New
Privacy Claims solely on the Web Article. See Id.