United States District Court, C.D. Illinois, Springfield Division
SHIRLEY LAVENDER, on behalf of herself and all others similarly situated, Plaintiff,
DRIVELINE RETAIL MERCHANDISING, INC., Defendant.
MYERSCOUGH, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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
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
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.
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).
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.