Schuchart v. La Taberna Del Alabardero, Inc.

• Decision Date: 20 April 2004
• Docket Number: No. 03-7105.,03-7105.
• Citation: 365 F.3d 33
• Parties: Catherine SCHUCHART and Valerie Rheinstein, Appellants, v. LA TABERNA DEL ALABARDERO, INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

365 F.3d 33

Catherine SCHUCHART and Valerie Rheinstein, Appellants, v. LA TABERNA DEL ALABARDERO, INC., Appellee.

No. 03-7105.

United States Court of Appeals, District of Columbia Circuit.

Argued April 1, 2004.

Decided April 20, 2004.

Appeal from the United States District Court for the District of Columbia (No. 03cv01166).

Rodney R. Sweetland III argued the cause and filed the briefs for appellants.

Daniel R. Lanier argued the cause and filed the brief for appellee.

Before: RANDOLPH, ROGERS and GARLAND, Circuit Judges.

Opinion for the court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The disposition of this appeal depends on the proper application of District of Columbia common law. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Although the District of Columbia has long recognized the common law tort of invasion of privacy and relied on the Restatement (Second) of Torts' formulation in "determining the appropriate contours of a cause of action for invasion of that right," Vassiliades v. Garfinckel's, 492 A.2d 580, 587 (D.C.1985); see Restatement § 652A (1977), District of Columbia law is "genuinely uncertain," see Dial A Car, Inc. v. Transp., Inc., 132 F.3d 743, 746 (D.C.Cir.1998), concerning whether, under the constituent tort of intrusion upon seclusion, a business may be held liable when it discloses to a third person its customer's credit card information or details about its patrons' dining habits. Because, under the circumstances, it would be inappropriate for this court to speculate on a matter of "local doctrine," East v. Graphic Arts Indus. Joint Pension Trust, 107 F.3d 911, 911 (D.C.Cir.1997) (quoting Delahanty v. Hinckley, 845 F.2d 1069, 1070 (D.C.Cir.1988)), we certify several questions of law to the District of Columbia Court of Appeals.

This appeal is before the court following the grant of judgment on the pleadings. See Fed.R.Civ.P. 12(c). Thus, the facts on appeal are those alleged in the complaint, which must be read in the light most favorable to the non-moving parties, here appellants, granting them all reasonable inferences. See Henthorn v. Dept. of Navy, 29 F.3d 682, 684 (D.C.Cir.1994). On January 31, 2003, appellants Catherine Schuchart and Valerie Rheinstein, who are residents and citizens of Virginia, ate lunch at appellee restaurant La Taberna del Alabardero in Washington, D.C. Schuchart paid for the lunch with her personal credit card. On or about February 3, 2003, Taberna provided a copy of Schuchart's credit card receipt to appellants' employer, Mauro Mujica, without appellants' consent. This receipt contained confidential, personal financial information. The dissemination of this information was highly offensive to them. They were injured by the disclosure of the financial information and the details about their dining habits. Invoking 28 U.S.C. § 1332, they sued appellee Taberna, with each seeking $250,000 in compensatory damages, and $500,000 in punitive damages. Although appellants' complaint generally alleged the tort of invasion of privacy, in opposing Taberna's motion for judgment on the pleadings, appellants simply argued that they had pleaded one of the four invasion of privacy torts, intrusion upon seclusion. The district court ruled that if there was any intrusion into appellants' seclusion, it was perpetrated not by appellee Taberna, but by their employer, who is not named as a defendant, and granted appellee's motion for judgment under Rule 12(c).

Appellants contend on appeal that "[t]he pleadings alone in this case do not foreclose the possibility as a matter of law there was an intrusion into [appellants'] zone [of privacy]," Appellants' Br. at 12, and the district court therefore erred in granting judgment in favor of appellee Taberna, because a Rule 12(c) motion, like a Rule 12(b)(6) motion, should be granted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). First, they maintain their employer, to whom the confidential personal information was provided, and appellee Taberna are jointly liable for the intrusion upon their seclusion. Citing Leiken v. Wilson, 445 A.2d 993, 999 (D.C.1982), for the proposition that any single joint tortfeasor may be sued for the full amount of a plaintiff's injuries, and their motion to disqualify, which argued that a reasonable defense attorney would seek to join appellants' employer as a third party defendant, see Fed.R.Civ.P. 14(a), they argue the district court erred in dismissing for failure to sue the proper party. Second, they maintain that the disclosures of both confidential personal financial information and their dining habits fall within the bounds of the tort. They argue that the nature of the Taberna restaurant rebuts any notion that they did not enjoy a zone of privacy while dining there. Appellants also maintain that the district court abused its discretion in failing to grant them leave to amend their complaint, an issue we do not reach because the need for amendment hinges on whether, under District of Columbia law, appellants have stated a claim for intrusion upon seclusion or another common law tort. Similarly, although appellee Taberna contends on appeal that the complaint fails to state a claim for intrusion upon seclusion because it did not allege sufficient facts to establish the tort's first two elements, consistent with the requirements of Federal Rule of Civil Procedure 8(a), the complaint is sufficient, see Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004), depending on District of Columbia law, insofar as the elements of intrusion and seclusion are implicit in appellants' claims that Taberna disclosed confidential personal information to their employer without their consent.

The Restatement (Second) of Torts § 652B sets forth three elements for the tort of intrusion upon seclusion: "[1] One who intentionally intrudes, physically or otherwise, [2] upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, [3] if the intrusion would be highly offensive to a reasonable person." The leading case in this jurisdiction on intrusion upon seclusion is Wolf v. Regardie, 553 A.2d 1213 (D.C.1989). In describing the kinds of intrusions this tort seeks to redress, the District of Columbia Court of Appeals in Wolf illustrated circumstances where a defendant's liability rested on an investigation or examination that offensively pried into a plaintiff's zone of privacy. For instance, liability could exist for: peeping through windows at a location where the plaintiff secluded herself; opening personal mail; eavesdropping on personal conversations; searching personal belongings without permission; and examining the plaintiff's private bank account. Id. at 1217-18. Addressing a claim based on the use of publicly known or accessible information in the preparation of a magazine article that the plaintiff sought to discourage, the District of Columbia Court of Appeals explained:

This tort [of intrusion upon seclusion] was not created to protect against ... the garnering of information from third parties, and the culling of facts from public records. Gathering information about [the plaintiff] from third parties, "even if pursued using subterfuge and fraud, cannot constitute ... an intrusion upon [the plaintiff's] solitude or seclusion. The Court has found no authority, nor has [the plaintiff] cited any, which suggests the contrary."

Id. at 1218 (quoting Rifkin v. Esquire Publishing, 8 Media L. Rptr. (BNA) 1384, 1386 (C.D.Cal.1982)).

Notwithstanding Wolf's guidance that a party requesting information is not subject to tort liability, the opinion does not settle the question of whether liability exists for a third party who discloses information lawfully obtained but which may be impliedly limited to use for only certain purposes, such as to secure payment for a purchase. Although courts applying state common law have found defendants liable for invasion of privacy where they exceeded the scope of a plaintiff's implied limited consent, see, e.g., O'Brien v. Papa Gino's of America, Inc., 780 F.2d 1067, 1072 (1st Cir.1986) (applying New Hampshire law); see also David A. Elder, The Law of Privacy § 2:12, at 72 (1991), the states are far from unanimous about whether the intrusion upon seclusion tort encompasses not only wrongful procurement of information, see, e.g., Restatement (Second) of Torts § 652B, cmt. b, illus. 4 (recommending tort liability for a party who uses a forged court order to obtain a plaintiff's bank records), but also its wrongful disclosure (e.g., holding a bank liable for disclosing financial records to a third party not engaging in deceit). Cf. Thomas McCarthy, The Rights of Publicity and Privacy § 5.10(A)(1) & n.9 (1993). Some courts reject intrusion upon seclusion liability in such circumstances, although they may identify other torts, such...