The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING DEFENDANTS' MOTION TO FILE COUNTERCLAIM (Doc. 84)
Defendants Sangeeta Kumar, Rajendra Kumar, Rajhesh Kumar, and Vijma Kumar moved, pursuant to F.R.Civ.P. 13(e) and 15(d), for leave to file a counterclaim against Plaintiff Amit Mahajan. This court has reviewed the papers and has determined that this matter is suitable for decision without oral argument pursuant to Local Rule 78-230(h). Having considered all written materials submitted, this Court denies Defendants' motion.
In this action, transferred to this District from the District of New Jersey on November 30, 2006, Plaintiff alleges that, at the direction of Defendant Sangeeta Kumar, whom he believed to be a real estate agent, Plaintiff transferred approximately $130,000.00 to several bank accounts held by Sangeeta and her family members (Defendants. Sangeeta represented to Plaintiff that she would apply the funds as deposits toward Plaintiff's purchase of a California house. When Plaintiff became aware that Sangeeta had not made the deposits on his behalf, he requested that the money be returned to him. Although Sangeeta agreed to return the funds, she never did so.
The Defendants contend that Plaintiff transferred the funds to Sangeeta, whom he had met on an Indian matchmaking computer site, as gifts in consideration of their agreement to marry. Defendants maintain that they are not required to return gifts.
The parties do not dispute that the bank accounts into which Plaintiff transferred the money at Sangeeta's direction are owned by all four Defendants. Neither Sangeeta nor any of the other Defendants returned any funds in response to Plaintiff's requests.
II. Defendants' Motion for Leave to File a Counter-Claim
On June 23, 2009, Defendants brought this motion for leave to file a counter-claim against Plaintiff alleging the tort of intrusion on privacy. Their claims arise from Plaintiff's revealing, in his June 3, 2009, deposition, that, while making a deposit to Defendants' bank account in April 2005, he saw the bank teller's computer screen and was able to identify the names and personal information of the Defendants as the account's co-owners. Plaintiff testified that he used this information in deciding to sue all four defendants as co-owners of the account. Defendants allege that Plaintiff's actions constitute a violation of the common law tort of intrusion on privacy.
Plaintiff responds that Defendants' motion is frivolous and untimely. Pointing out that he first alleged that all Defendants were owners of one or more of the bank accounts into which he deposited sums for the house purchase in his 2006 complaint (Doc. 1-2, pp. 118, 119, 122) and that he identified the Defendants as co-owners of the bank accounts into which he deposited money in paragraphs 15 and 16 of his August 7, 2006, declaration (Doc. 1), Plaintiff argues that the applicable two-year limitation period for privacy actions is long past. Cal. Code Civ. Proc. § 335.1. He notes further that Sangeeta herself disclosed the ownership of the accounts, pointing to an e-mail appended to his August 7, 2006, declaration in which Sangeeta transmitted the account number of her father, Defendant Rajendra Kumar, into which Plaintiff was to deposit $2000.00 (Doc. 1, p. 53). Plaintiff adds that Defendants' delay in addressing his obvious awareness of the bank accounts' ownership is prejudicial, having derailed the trial scheduled for August 2009 and posing the likelihood of further significant delays in case that is already nearly four years old.
Even if Defendants could file a timely action for intrusion of privacy, Plaintiff argues, their proposed counter-claim is not cognizable. Plaintiff points out that confirming the identity of the owners of the account into which he deposited funds was unlike the types of invasions generally found to constitute intrusion on privacy.
"The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by a party after serving an earlier pleading." F.R.Civ.P. 13(e). "A motion for leave to amend may be denied if it appears to be futile or legally insufficient." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). In evaluating a proposed amendment to the pleadings, the court should apply the same test of sufficiency employed when evaluating a challenge pursuant to F.R.Civ.P. 12(b)(6). Id. "[A] proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller, 845 F.2d at 214.
"One who intentionally intrudes, physically or otherwise, 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, if the intrusion would be highly offensive to a reasonable person." Restatement (Second) of Torts § 652B. The tort of intrusion "encompasses unconsented-to physical intrusion into the home, hospital room or other place of which privacy is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying." Shulman v. Group W Productions, Inc., 18 Cal.4th 200, 230-31 (1998). An action for intrusion arises from (1) an intrusion into a private place, conversation or matter (2) in a manner highly offensive to ...