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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 1, 2004 Decided April 20, 2004
No. 03–7105
CATHERINE SCHUCHART AND
VALERIE RHEINSTEIN,
APPELLANTS
v.
LA TABERNA DEL ALABARDERO, INC.,
APPELLEE
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.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: RANDOLPH, ROGERS and GARLAND, Circuit Judges.
Opinion for the court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The disposition of this appeal de-
pends on the proper application of District of Columbia
common law. See generally Erie R.R. Co. v. Tompkins, 304
U.S. 64 (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), concern-
ing 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 circum-
stances, 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 infer-
ences. See Henthorn v. Dept. of Navy, 29 F.3d 682, 684 (D.C.
Cir. 1994). On January 31, 2003, appellants Catherine Schuc-
hart 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 appel-
lants’ consent. This receipt contained confidential, personal
financial information. The dissemination of this information
3
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 compensato-
ry 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 plain-
tiff 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 (1957). First, they maintain their employer, to whom
the confidential personal information was provided, and ap-
pellee 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. Appel-
lants also maintain that the district court abused its discretion
4
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 con-
tends 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 seclu-
sion 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 1214
(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; eaves-
dropping on personal conversations; searching personal be-
longings 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:
5
This tort [of intrusion upon seclusion] was not creat-
ed to protect against TTT the garnering of informa-
tion 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 TTT an intru-
sion 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 Priva-
cy § 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., Re-
statement (Second) of Torts § 652B, cmt. b, illus. 4 (recom-
mending tort liability for a party who uses a forged court
order to obtain a plaintiff’s bank records), but also its wrong-
ful disclosure (e.g., holding a bank liable for disclosing finan-
cial 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 as breach of a confidential relation-
ship, that protect against, for instance, the disclosure of
information voluntarily given by a plaintiff to the disclosing
party. This was the case where a doctor disclosed a birth
mother’s identity to her child, whom she had given up for
adoption decades earlier. See Humphers v. First Interstate
6
Bank of Or., 696 P.2d 527, 532–33 (Or. 1985). Others take the
opposite approach, holding disclosing parties liable where
their handling of information exceeds the implied limited
consent given by the plaintiff. For instance, an employer
could be held liable for intrusion upon seclusion where it used
its employees’ confidential medical information to purchase
insurance policies payable to the employer upon an employ-
ee’s death. See Rice v. Wal–Mart Stores, Inc., 2003 DNH
166, 2003 U.S. Dist. LEXIS 17288 at *9–10 (applying New
Hampshire law) (unpublished); see also Remsburg v. Docu-
search, Inc., 816 A.2d 1001, 1008 (N.H. 2003); Pulla v. Amoco
Oil Co., 882 F. Supp. 836, 867 (S.D. Iowa 1994), aff’d in part
& rev’d in part on other grounds, 72 F.3d 648 (8th Cir. 1995)
(applying Iowa law). In either approach, the scope of any
implied consent may turn on local or general custom as well
as the conduct of the parties. See Elder, § 2:12 at 68.
In Wolf, the District of Columbia Court of Appeals stated
that ‘‘the acquisition of information is not a requisite element
of a § 652B [intrusion upon seclusion] cause of action. Rath-
er, it is the nature of the intrusion which initially fixes
liability.’’ 553 A.2d at 1217 (citations omitted). It is conceiv-
able, then, that the disclosure of private information to a third
party recipient already in possession of the information may
inform whether the disclosing party is liable, because the
third party’s preexisting state of knowledge may affect the
‘‘nature of the intrusion.’’ On the other hand, it is conceivable
that, because a plaintiff’s legal injury is not limited to harm
suffered indirectly as a result of an intrusion but also includes
the intrusion itself, a defendant disclosing information without
consent should not be shielded from liability merely because
the recipient of the information happens already to have come
into possession of the same information. Cf. Sutherland v.
Kroger Co., 110 S.E. 2d 716, 724 (W. Va. 1959); Terrell v.
Rowsey, 647 N.E. 2d 662, 669 (Ind. Ct. App. 1995) (Sullivan,
J., dissenting in part and concurring in part). In light of the
district court proceedings, it appears the effect of appellants’
employer’s possible prior knowledge of Schuchart’s credit
card information could become relevant.
7
Given the differing positions of the states concerning these
common law issues, it is unclear what approach the District of
Columbia Court of Appeals would endorse. See Nationwide
Mut. Ins. Co. v. Richardson, 270 F.3d 948, 956 (D.C. Cir.
2001). This is especially so with respect to appellant Schuc-
hart’s claim based on the disclosure of her personal financial
information, which is an area that some courts have singled
out for especially vigilant protection in light of the vast social
cost inflicted by identity theft. See, e.g., Remsburg, 816 A.2d
at 1008. Further, state courts are not unanimous on the
question of whether a restaurant’s disclosure of its patrons’
dining habits is actionable under the intrusion upon seclusion
tort. Cf. Stessman v. American Black Hawk Broadcasting
Co., 416 N.W.2d 685, 687 (Iowa 1987). The question of
whether businesses are legally bound to protect a customer’s
privacy interests arising from the payment for goods or
services is likely to recur.
Because the degree of protection afforded privacy interests
like those at issue is a matter of public importance, see
Richardson, 270 F.3d at 950; see also Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 563–64 (D.C. Cir. 1993), in which
the District of Columbia has a substantial interest in balanc-
ing the individual and societal interests, see Eli Lilly & Co. v.
Home Ins. Co., 764 F.2d 876, 884 (D.C. Cir. 1985), and
involves likely recurring questions of local common law that
are appropriately resolved by the District of Columbia’s
highest court, see Richardson, 270 F.3d at 950; Delahanty,
845 F.2d at 1070, the court exercises its discretion, see Joy,
999 F.2d at 563 (citing Lehman Bros. v. Schein, 416 U.S. 386,
391 (1974)), to certify, pursuant to D.C. Code § 11–723, the
following questions of law to the District of Columbia Court of
Appeals: Under District of Columbia law, does a customer
state a claim for intrusion upon seclusion, or another common
law tort, where (1) a business discloses without consent a
customer’s personal credit card information to a third party
not involved in processing payment (specifically, the custom-
er’s employer), and does the result differ if the credit card
information is disclosed to a party who already possesses that
information, and (2) a restaurant discloses to a third party the
8
dining habits of a patron without the patron’s consent? An
appropriate order will issue.