MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on defendant Cypress Media LLC's motion for summary judgment on plaintiff Ebbie Colston, Sr.'s state law claim for defamation per se (Doc. 8) and Colston's motion for leave to amend the complaint (Doc. 13).

In this case, Colston complains that Cypress, doing business as the Belleville News Democrat ("BND"), published a notice erroneously stating that he had been arrested by the Highland Police Department on warrants for failure to appear in court on drug charges. He had not been arrested at all and had no outstanding warrants or drug charges against him.

I. Summary Judgment Motion

In its summary judgment motion, BND argues that the notice about Colston was a fair and accurate statement of official information it had received from the Highland Police. Since the notice accurately reflected information it had received, BND argues it is protected by the "fair report privilege" affirmative defense to a defamation claim under Illinois law. The Illinois Supreme Court has adopted the articulation of the privilege in the Second Restatement of Torts:

Solaia Tech., LLC v. Specialty Publ'g Co., 852 N.E.2d 825, 842 (Ill. 2006) (quoting Restatement (Second) of Torts § 611 (1977)). The privilege is based on "the interest of the public in having information made available to it as to what occurs in official proceedings and public meetings." Restatement (Second) of Torts § 611 cmt. a. A defamatory statement is not actionable if it is covered by this privilege even if the publication of the defamatory statement was made with malice. Solaia Tech., 852 N.E.2d at 842-43. There are two requirements for the privilege to apply: "(1) the report must be of an official proceeding; and (2) the report must be complete and accurate or a fair abridgement of the official proceeding." Id. at 843.

Colston did not respond in a timely manner to BND's summary judgment motion, so the Court ordered him to show cause why the Court should not construe his failure to timely respond as an admission of the merits of the motion pursuant to Local Rule 7.1(c) (Doc. 16). Colston responded by filing a response to the summary judgment motion in which he expressly concedes the merits of the motion as to his claim for monetary damages (Doc. 17). He notes, however, that he has asked the Court for leave to amend his complaint to allege a cause of action for declaratory relief.

The Court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). Colston having conceded that there are no genuine disputes of material fact and that the fair report privilege protects BND's publication of the false notice of his arrest, the Court finds BND is entitled to summary judgment on the defamation per se claim pled in the complaint. The Court now turns to Colston's motion for leave to amend that complaint.

II. Motion for Leave to Amend Complaint

Apparently understanding summary judgment will be granted for BND on his defamation per se claim pled in his complaint, Colston seeks leave of Court to file an amended complaint asserting a declaratory judgment action (Doc. 13).1 He seeks a declaration from the Court that the BND published a false news article about him. In its response (Doc. 15), BND argues that the declaration Colston seeks would be an impermissible advisory opinion regarding no justiciable legal claim. BND also notes that it has offered to publish a correction of the offending notice, attributing the mistaken information to the Highland Police and clarifying that Colston's son, Ebbie Colston, Jr., was the real person arrested.

Rule 15(a) governs amendments to pleadings. A plaintiff may amend its pleading once as a matter of course within 21 days of serving it or within 21 days after service of a response or a motion to dismiss, for a more definite statement or to strike. Fed. R. Civ. P. 15(a)(1). Otherwise, a plaintiff may amend his pleading only with the opposing party's written consent, which the plaintiff has not obtained, or leave of court, which the Court should freely give when justice requires. Fed. R. Civ. P. 15(a)(2). Although the text of the rule has changed in recent years, the rule still "reflects a policy that cases should generally be decided on the merits and not on the basis of technicalities." McCarthy v. Painewebber, Inc., 127 F.R.D. 130, 132 (N.D. Ill. 1989). Generally, the decision whether to grant a party leave to amend a pleading is a matter left to the discretion of the district court. Orix Credit Alliance v. Taylor Mach. Works, 125 F.3d 468, 480 (7th Cir. 1997). A court should allow amendment of a pleading except where there is undue delay, bad faith, dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment. Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (citing Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007)). An amendment is futile if it would not survive a motion to dismiss for failure to state a claim, General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997), or a motion for summary judgment, Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860 (7th Cir. 2001).

The Court declines to allow Colston's amendment because it would not survive a motion to dismiss. The Declaratory Judgment Act ("the Act"), 28 U.S.C. § 2201, states, in pertinent part: "In a case of actual controversy within its jurisdiction..., any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such." 28 U.S.C. § 2201(a). However, a court may not use its discretion to issue a declaration under the Act where there is no "actual controversy" between the parties. Id. The Act's language "tracks the `cases' or `controversies' requirement of Article III, [and] saves the statute from unconstitutionally expanding the federal courts' jurisdiction." Deveraux v. City of Chi., 14 F.3d 328, 330-31 (7th Cir. 1994) (internal quotations omitted).

It is often difficult to determine whether an actual controversy exists; the distinction between a "controversy" and an abstract question of law is one of degree. Id. (citing Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)). Consequently, there is no precise test for determining if a complaint presents a controversy in the constitutional sense, and each case must be considered on its own facts. Id. However, the Supreme Court has given guidance as to when such a controversy exists:

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937). The Court of Appeals for the Seventh Circuit has noted:

Deveraux, 14 F.3d at 330 (parallel citations omitted).

Colston's proposed amended complaint describes no "case of actual controversy" within the Court's jurisdiction. Instead of pleading a valid cause of action for which declaratory judgment would be an available remedy, Colston seeks a freestanding declaration that BND published a false notice about him. To the extent this could be construed to be a defamation action, BND has already established a defense to such an action in the fair report privilege. The proposed amended complaint hints at no other justiciable cause of action.

Furthermore, Colston and BND do not disagree that BND published a false notice, so any actual dispute that may have existed is now moot. A Court declaration of a fact to which both parties already agree would be beyond the jurisdiction of the Court to decide cases or controversies.

For the foregoing reasons, amendment of Colston's complaint would be futile, so the Court will deny him leave to amend.

III. Conclusion

For these reasons, the Court:

IT IS SO ORDERED.

COMPLAINT FOR DECLARATORY JUDGMENT

COMES NOW, EBBIE COLSTON, SR., by his attorney, moving for a declaratory judgment pursuant to Fed. R.Civ.P. 57 and 28 U.S.C. § 2201, et seq. that CYPRESS MEDIA, LLC d/b/a BELLEVILLE NEWS DEMOCRAT, published a false news article on July 9, 2018 as related to EBBIE COLSTON, SR., to wit:

1. EBBIE COLSTON, SR. is a citizen and resident of Illinois residing in Highland, Illinois.

2. CYPRESS MEDIA, LLC, d/b/a BELLEVILLE NEWS DEMOCRAT, is a Delaware limited liability company with its principal place of business in Sacramento, California. The sole member of CYPRESS MEDIA, LLC is CYPRESS MEDIA, INC., a New York corporation with its principal place of business in Sacramento, California.

3. On July 9, 2018, CYPRESS MEDIA, INC., d/b/a BELLEVILLE NEWS DEMOCRAT, published an article attached as Exhibit "A" and incorporated herein, that stated, in part: "Ebbie Colston, 63, of Highland was arrested by HPD on July 4 on two warrants from Pontoon Beach Police, both for failure to appear in court on charges of possession of a controlled substance. Colston was turned over to Pontoon Beach Police."

4. EBBIE COLSTON, SR. was 63 years old on July 9, 2018.

5. EBBIE COLSTON, SR. resided in Highland, Illinois on July 9, 2018.

6. EBBIE COLSTON, SR. was not arrested by Highland Police Department on July 4, 2018 on any charge.

7. EBBIE COLSTON, SR. has never been charged with a controlled substance charge.

8. EBBIE COLSTON, SR. was not turned over to Pontoon Beach Police on July 4, 2018.

9. EBBIE COLSTON, SR. was not arrested on any warrants by anyone on July 4, 2018.

10. That CYPRESS MEDIA, LLC's July 9, 2018 article, attached as Exhibit "A", is entirely false as related to EBBIE COLSTON, SR. with the exception of listing a correct age and city of residence.

11. CYPRESS MEDIA, LLC d/b/a BELLEVILLE NEWS DEMOCRAT denies EBBIE COLSTON, SR. is 63 years of age. Answer, ¶2

12. CYPRESS MEDIA, LLC d/b/a BELLEVILLE NEWS DEMOCRAT denies EBBIE COLSTON, SR. is 63 years of age and lives in Highland, Illinois. Answer, ¶2 However, the Memorandum in Support of Summary Judgment on Page 2 admits those two points (Doc.9).

13. 11. CYPRESS MEDIA, LLC d/b/a BELLEVILLE NEWS DEMOCRAT denies EBBIE COLSTON, SR. was not arrested by Highland Police Department on two counts from Pontoon Beach Police Department for failure to appear in court on charges of possession of a controlled substance. Answer, ¶3

14. CYPRESS MEDIA, LLC d/b/a BELLEVILLE NEWS DEMOCRAT denies EBBIE COLSTON, SR. was not turned over to the Pontoon Beach Police Department related to two warrants for failure to appear in court on charges of a controlled substance. Answer, ¶4

15. CYPRESS MEDIA, LLC d/b/a BELLEVILLE NEWS DEMOCRAT denies EBBIE COLSTON, SR. has never been charged in his life on charges of possession of a controlled substance or failing to appear in court on charges of possession of a controlled substance. Answer, ¶5

16. That there exists an actual controversy between CYPRESS MEDIA, LLC d/b/a BELLEVILLE NEWS DEMOCRAT and EBBIE COLSTON, SR. as related to the accuracy or truthfulness of the article attached as Exhibit "A", as related to EBBIE COLSTON, SR.

17. That the article attached as Exhibit "A" was circulated in the Southern District of Illinois, including Madison County, Illinois.

WHEREFORE, EBBIE COLSTON, SR., by his attorney, moves for a declaratory judgment pursuant to Fed. R.Civ.P. 57 and 28 U.S.C. § 2201, et seq. that CYPRESS MEDIA, LLC d/b/a BELLEVILLE NEWS DEMOCRAT, published a false news article (attached Exhibit "A") on July 9, 2018 as related to EBBIE COLSTON, SR. so that he may clear his name in a public forum.