Lavender v. Driveline Retail Merchandising, Inc.

          OPINION

          SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

         This cause is before the Court on Plaintiff's Motion for Leave to Substitute Class Representative and for Leave to File an Amended Class Action Complaint in Accordance with the Substitution (d/e 34). Defendant objects, asserting that Defendant will be unfairly prejudiced if the Motion is granted and that Plaintiff unduly delayed filing the Motion. Because Defendant has not shown undue delay or prejudice, the Motion is GRANTED.

         I. PROCEDURAL BACKGROUND

         In April 2018, Plaintiff Shirley Lavender filed a Class Action Complaint (d/ 1) on behalf of herself and all others similarly situated against Defendant Driveline Retail Merchandising, Inc. Plaintiff alleges that her name, address, zip code, date of birth, wage and withholding information, and Social Security number, along with that of over 15, 800 other employees of Defendant, were released by Defendant to an unknown third party. Defendant sent the affected employees a Notice of Data Breach and offered its employees 12 months of credit monitoring services through AllClear Id. See Compl. ¶¶ 9, 57 Ex. A (d/e 1-1). Plaintiff brings claims for negligence; invasion of privacy; breach of implied contract; breach of fiduciary duty; violations of the Illinois Personal Information Protection Act, 815 ILCS 530/1 et seq.; and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq. Plaintiff seeks to represent a nationwide class defined as “[a]ll current and former Driveline employees whose [personally identifying information] was compromised as a result of the Data Disclosure.” Compl. ¶ 63.

         On June 4, 2018, Defendant filed its Answer to the Complaint (d/e 4). In July 2018, Magistrate Judge Tom Schanzle-Haskins entered a Scheduling Order (d/e 10) setting various deadlines, including January 7, 2019 as the deadline to join other parties or amend the pleadings. Id. ¶ 2. Discovery was set to close on August 2, 2019.

         Defendant asserts in its response in opposition to the Motion for Leave that Defendant served written discovery on Plaintiff in November 2018. Plaintiff was deposed on February 22, 2019. In March 2019, Defendant served a second set of written discovery requests on Plaintiff. Plaintiff has identified three experts but has not provided expert reports on the merits. The deadline to provide expert reports expired June 10, 2019.

         On April 8, 2019, Plaintiff filed her Motion for Class Certification (d/e 17). On June 3, 2019, Defendant filed an objection to Plaintiff's Motion for Class Certification (d/e 26). Defendant argued the Motion for Class Certification should be denied because (1) Plaintiff failed to satisfy Federal Rule of Civil Procedure 23(b)(3)'s predominance requirement; (2) Plaintiff is not an adequate class representative; (3) partial class certification is unworkable; and (4) the injunctive relief Plaintiff seeks on behalf of the class is not appropriate. Resp. at 1. Regarding the adequacy of Plaintiff as a class representative, Defendant argued that she suffered a different injury from many members of the proposed class, her choice to bring the case in Illinois impermissibly limits potential class members' options, and she is subject to defenses distinct from other potential class members.

         Defendant also argued that Plaintiff suffered from “major credibility issues which could well hijack the presentation of issues applicable to the class.” Obj. at 29. Defendant pointed to Plaintiff‘s criminal history and alleged lies by Plaintiff at her deposition about her criminal history.

         On July 12, 2019, Plaintiff filed her Motion for Leave to Substitute Class Representative and for Leave to File an Amended Class Action Complaint in Accordance with the Substitution at issue herein. Plaintiff originally sought to substitute two class representatives for Plaintiff. However, after Defendant filed its objections to the Motion for Leave, Plaintiff now only seeks to substitute Lynn McGlenn for Plaintiff Shirley Lavender.

         The Court directed Plaintiff to file her proposed amended complaint for the Court's review pending a ruling on the Motion for Leave. The proposed amended complaint (d/e 39) reflects that Plaintiff seeks only to substitute Lynn McGlenn as a plaintiff and include specific information regarding McGlenn, such as her citizenship (¶ 1) and specific facts regarding the alleged harm she suffered following the disclosure of her personally identifiable information by Defendant (¶¶ 17, 18). This alleged harm includes that she was alerted that someone used her personally identifiable information to open a new credit card account with Capital One.

         II. JURISDICTION

         Plaintiff invokes jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d) (CAFA). The CAFA provides federal courts with jurisdiction over certain class actions if the class has more than 100 members, the parties are minimally diverse, and the amount in controversy exceeds $5 million, exclusive of interest and costs. 28 U.S.C. § 1332(d)(2), (5)(B); Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013). The claims of the individual class members are aggregated to determine whether the amount in controversy threshold is met. 28 U.S.C. § 1332(d)(6).

         Plaintiff alleges that the aggregate amount in controversy exceeds $5 million, exclusive of interest and costs, that there are more than 100 class members, and that at least one class member is a citizen of a state different from Defendant. Compl. ¶ 3. Plaintiff is a citizen of Georgia. Id. Defendant has indicated that Defendant is a citizen of New Jersey and Texas because Defendant is incorporated in New Jersey and has its principal place of business in Texas. See Defendant Driveline Merchandising, Inc.'s Declaration of State of Incorporation and Principal Place of Business (d/e 42). Therefore, this Court has jurisdiction.

         III. ...