Petty v. Bluegrass Cellular, Inc.

• Decision Date: 12 February 2021
• Docket Number: CIVIL ACTION NO. 3:19-CV-193-RGJ
• Parties: MORGAN RAE PETTY Plaintiff v. BLUEGRASS CELLULAR, INC. Defendant
• Court: U.S. District Court — Western District of Kentucky

MORGAN RAE PETTY Plaintiff v. BLUEGRASS CELLULAR, INC. Defendant

CIVIL ACTION NO. 3:19-CV-193-RGJ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

February 12, 2021

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MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Plaintiff's Request for Leave of Court to Amend Pleadings and Join Additional Defendants [DE 23], Addendum to Plaintiff's Request For Leave to Amend Complaint and Join Defendants [DE 29], Defendant's Motion for Judgment on the Pleadings [DE 31], and Defendant's Motion For Leave to File Third-Party Complaint [DE 21]. The matter is ripe. [DE 22; DE 24; DE 27; DE 28; DE 30; DE 33; DE 37; DE 41; DE 44]. For the reasons below, Plaintiff's Request is GRANTED [DE 23], Plaintiff's Addendum is GRANTED [DE 29], Defendant's Motion for Judgment on the Pleadings is GRANTED IN PART, DENIED IN PART [DE 31], and Defendant's Motion for Leave is DENIED [DE 21].

I. BACKGROUND

In August 2016, Caleb Bland ("Bland"), attorney for Benjamin Adkins ("Adkins"), subpoenaed Bluegrass Cellular ("Defendant") to produce "any and all cell phone records, including but not limited to text messages" associated with Morgan Petty's ("Plaintiff") phone number from "January 1, 2015 to present." [DE 4-2]. Bland intended to use these phone records during a hearing in Grayson County Family Court in Morgan Rae Petty v. Benjamin Adkins. Defendant complied with the subpoena and produced the records to Bland. [DE 31 at 171].

On March 18, 2019, Plaintiff filed her pro se complaint. [DE 1]. In her complaint, Plaintiff alleges that Bluegrass Cellular "willfully violated the Stored Communications Act . . . when it knowingly divulged the complete contents of my text message correspondence to an opposing party in a Civil Action. . . . Bluegrass Cellular also committed Torts §652A (Invasion of Privacy) . . . The Defendant committed Torts §46 Outrageous Conduct causing Severe Emotional Distress." Id. at 4.

Defendant moved to dismiss, arguing that Plaintiff's claims must be dismissed because they are "barred by the applicable statute of limitations." [DE 4-1 at 11]. The Court denied the motion. [DE 8]. After Defendant answered [DE 12], the Magistrate Judge issued a scheduling order. [DE 15]. The Magistrate Judge later approved the parties' joint motion [DE 17] to extend the deadline for amendment of pleadings from April 30, 2020 until July 29, 2020. [DE 18].

On July 29, 2020, Defendant moved for leave to file a third-party complaint against Bland and Zanda Myers ("Myers"), Plaintiff's attorney in the family court case. [DE 21 at 113]. The next day, Plaintiff moved to amend her complaint to add Bland, Adkins, and the Birdwhistell Bland Law Firm as defendants. [DE 23 at 130-31].

On August 21, 2020, Plaintiff moved to add against Defendant claims of breach of contract and breach of explicit or implied covenant of good faith and fair dealing. [DE 29 at 160]. A few days later, Defendant moved for judgment on the pleadings, attaching to its motion four documents related to Plaintiff's family court case: (1) the subpoena duces tecum issued by Bland to Defendant [DE 31-1]; (2) Plaintiff's affidavit from April 2017 [DE 31-2]; (3) a pro se brief Plaintiff filed in September 2018 [31-3]; and (4) a pro se motion to vacate Plaintiff filed in March 2019 [DE 31-4]. In her response, Plaintiff attached an affidavit she filed in the family court case in July 2020. [DE 37-1].

II. DISCUSSION¹

A. Motion to Amend Complaint

Federal Rule 15 provides that "a party may amend the party's pleading only by leave of court . . . and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). In determining whether the interests of justice support a grant of leave to amend, courts consider several factors, including "undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, or futility of the amendment." Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th Cir. 2005) (citing Coe v. Bell, 161 F.3d 320, 341-42 (6th Cir. 1998)). "The grant or denial of leave to amend is within the discretion of the trial court, and review is for abuse of discretion." Sec. Ins. Co. of Hartford v. Kevin Tucker & Assocs., Inc., 64 F.3d 1001, 1008 (6th Cir. 1995) (citing Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983)).

That said, when the deadline established by the court's scheduling order has passed, "a plaintiff must first show good cause under Rule 16(b) for failure earlier to seek leave to amend" and the court "must evaluate prejudice to the nonmoving party 'before a court will [even] consider whether amendment is proper under Rule 15(a).'" Commerce Benefits Grp., Inc. v. McKesson Corp., 326 Fed. App'x 369, 376 (6th Cir. 2009) (quoting Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.2003).

Plaintiff moves to amend her complaint to assert state-law claims of abuse of process, intentional infliction of emotional distress, and invasion of privacy against Bland and Birdwhistell Bland Law Firm, and intentional infliction of emotional distress and invasion of privacy against Adkins. [DE 23]. Having considered the relevant Fed. R. Civ. P. 15(a) factors, and hearing no objection from Defendant [DE 27], the Court finds that Plaintiff may amend her complaint to add state-law claims against Bland, Adkins, and Birdwhistell Bland Law Firm.

Plaintiff also moves the Court to allow her to file an "addendum" to her motion to amend to add two additional state-law claims against Defendant: "[u]pon new information obtained through the course of discovery, Ms. Petty supplements her July 30, 2020 motion for leave to amend pleadings by request leave to state the following claims against Bluegrass Cellular: (1) Breach of contract; and (2) Breach of explicit or implied covenant of good faith and fair dealing." [DE 29 at 160]. Defendant objects, arguing Plaintiff's request is untimely and procedurally deficient. [DE 30 at 167].

Plaintiff asserts that, although she filed her addendum weeks after the filing deadline, it is not untimely because she filed it based on information she learned during deposition testimony on August 20, 2020. [DE 33 at 213-14]; [DE 33-3 at 228-29]. Plaintiff attached a copy of her proposed amended complaint to her reply. [DE 33-2; DE 33-3]. Plaintiff has shown good cause why she filed her addendum one month after the deadline. See Amalu v. Stevens Transp., Inc., No. 115CV01116STAEGB, 2018 WL 6839036, at *3 (W.D. Tenn. Mar. 27, 2018) ("Delay alone is insufficient to deny a proposed modification under Rule 16") (citing Moore v. City of Paducah, 790 F.2d 557, 559-62 (6th Cir. 1986). Defendant has not argued prejudice, and the Court finds that adding two state law claims, based on its own employee's deposition testimony, will not unduly prejudice it. See Permasteelisa CS Corp. v. Airolite Co., LLC, No. 2:06-CV-0569, 2007WL 1683668, at *2 (S.D. Ohio June 8, 2007) (finding good cause because "[P]laintiff, in its reply memorandum, has pointed to specific deposition testimony which it allegedly relies on in asserting its . . . claim . . . [I]t appears that plaintiff did not discover that Mr. Murray actually purchased those shares until after that date. Thus, if these are the facts being used by plaintiff to support its new theory, they were not discovered until after the deadline had passed").

Moreover, because Rule 15 mandates that leave should be freely given, the Court chooses to exercise its discretion to allow Plaintiff to amend her complaint to add state-law claims of breach of contract and breach of explicit or implied covenant of good faith and fair dealing against Defendant. Plaintiff has provided notice to the Defendant. Plaintiff did not unduly delay. See Mersen USA - Midland-MI Inc. v. Graphite Machining Servs. & Innovations, LLC, No. 12-10961, 2012 WL 3060922, at *2 (E.D. Mich. July 26, 2012) ("Undue delay is typically found where years have passed, discovery has been substantially conducted, and dispositive motion deadlines have passed"). Defendant has not established that Plaintiff acted in bad faith, and there have not been repeated failures to cure deficiencies by previous amendments. The Court has found above that Defendant is not unduly prejudiced. Finally, the motion to amend is not futile.

B. Motion For Judgment on the Pleadings²

Fed. R. Civ. P. 12(c) provides that "a party may move for judgment on the pleadings." A court is to apply the same standard to a motion for judgment on pleadings that it applies to a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Warrior Sports, Inc. v. Nat'l Collegiate Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010) (citing EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001)). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). A motion for judgment on the pleadings may be "granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law." Id. (quoting Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991)).

Although a court's decision on a motion for judgment on the pleadings rests primarily on the allegations of the complaint, "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint also may be taken into account." Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)) (...