Dobruck v. Borders et al
Filing
63
ORDER: Defendants Grady Judd and Michael Music's Motion to Dismiss (Doc. # 24 ) is DENIED. Defendants Gary S. Borders and Donald Heath, Jr.'s Motion to Dismiss (Doc. # 25 ) is DENIED. Defendants City of Auburndale and Wall's Mot ion to Dismiss (Doc. # 28 ) is DENIED. Defendant Town of Lady Lake's Motion to Dismiss or for a More Definite Statement (Doc. # 38 ) is DENIED. Defendant Rita Ranize's Motion to Dismiss or for a More Definite Statement (Doc. # 39 ) is DENIED.Signed by Judge Virginia M. Hernandez Covington on 9/27/2016. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FAITH BAZEMORE DOBRUCK,
Plaintiff,
v.
Case No. 8:16-cv-1869-T-33JSS
GARY S. BORDERS, Lake County
Sheriff, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
five Motions to Dismiss by Defendants Grady Judd and Michael
Music (Doc. # 24), filed on August 9, 2016; Gary S. Borders
and Donald Heath, Jr. (Doc. # 25), filed on August 17, 2016;
the City of Auburndale and Wall (Doc. # 28), filed on August
19, 2016; the Town of Lady Lake (Doc. # 38), filed on August
24, 2016; and Rita Ranize (Doc. # 39), also filed on August
24, 2016. Plaintiff Faith Bazemore Dobruck filed responses in
opposition (Doc. ## 30, 47, 48, 51, 52). For the reasons that
follow, the Motions are denied.
I.
Background
In 2010, Dobruck’s husband filed a lawsuit against the
County of Lake, alleging embezzlement, money laundering, bid
rigging, and housing fraud, which was styled United States of
America & Walter Dobruck v. Lake County, No. 5:10-cv-79-OC32GRJ. (Doc. # 1 at ¶ 15). Thereafter, but fewer than four
years from the date this action was filed, Dobruck “discovered
that she and at least four other family members were being
stalked and otherwise harassed by law enforcement officers in
Central Florida.” (Id. at ¶ 16). Dobruck then realized that
her and her family members’ unlisted telephone numbers and
addresses could be accessed by law enforcement through the
Driver and Vehicle Information Database (DAVID). (Id.).
DAVID is a system whereby the Department of Highway
Safety and Motor Vehicles (DHSMV) and the Florida Department
of Law Enforcement make certain information available to law
enforcement. (Id. at ¶ 14). In this case, that information
included
“records
pertaining
to
motor
vehicle
operators’
permits, motor vehicle titles, motor vehicle registration,
color photograph or image, Social Security number, date of
birth,
state
information
mailing
of
and
detailed
description,
addresses,
contacts[’]
birth,
[and]
private
prior
emergency
and
vehicle
and
registration
current
contacts
highly-restricted
information.” (Id. at ¶¶ 13-14).
2
home
and
and
those
personal
Sometime in 2015, Dobruck contacted the DHSMV to check
if anyone was viewing her private information and, if so,
whom. (Id. at ¶ 16). In response, DHSMV provided Dobruck run
reports showing that the Defendants accessed and obtained her
personal
information
permissible
reasons.”
from
the
(Id.).
DAVID
“[I]n
system
accessing
“without
Plaintiff’s
information . . ., the individual Defendants did so – at least
in
part
–
with
the
intent
to
further
their
respective
employers[’] interests in such ways as protecting [them] from
public opprobrium, wreaking vengeance on the extended Dobruck
family
.
employers’
.
.,
or
increasing
employees.”
(Id.
the
at
¶
overall
19).
morale
of
Furthermore,
the
“the
individual Defendants were authorized to use their respective
employers’ premises and computers to access the DAVID system
. . ., and the individual Defendants utilized their respective
employers’
facilities
and
their
employment
status
during
their respective work hours to access Plaintiff’s information
on DAVID.” (Id. at ¶ 18). However, “[n]one of the Defendants’
accessing of Plaintiff’s personal DAVID information . . .
fell within the DPPA’s permitted exceptions.” (Id. at ¶ 17).
Dobruck maintains that “[a]t no time did [she] provide her
consent for any of the Defendants to obtain, disclose or use
3
her
private
information
for
anything
but
legitimate
law
enforcement business.” (Id. at ¶ 20).
Dobruck then brought suit against Borders, Heath (an
employee of the Lake County Sheriff’s Office), Judd, Music
(an employee of the Polk County Sheriff’s Office), the City
of Auburndale, Wall (an employee of the City of Auburndale),
the Town of Lady Lake, and Ranize and Fazekas (employees of
the Town of Lady Lake) on June 27, 2016. Heath, Music, Wall,
Ranize,
and
Fazekas
are
being
sued
in
their
individual
capacities, whereas Borders and Judd are being sued in their
official capacities. The one-count Complaint alleges each
Defendant violated the Driver’s Privacy Protection Act, 18
U.S.C. § 2721, et seq., and seeks compensatory damages,
punitive
damages
against
the
individual
defendants,
and
attorney’s fees and costs.
Defendants now move the Court to dismiss the Complaint
pursuant to Rule 12(b)(6). (Doc. # 24, 25, 28, 38, 39). In
the alternative, Borders, Heath, the City of Auburndale, and
Wall request that the Court sever them from this action and
require Dobruck to file her case against them in the division
of the Middle District of Florida where the alleged accesses
occurred. (Doc. # 25 at 7; Doc. # 28 at 5-10). Defendant
Fazekas has not yet appeared as of the date of this Order,
4
nor is there an indication in the record that service has
been effected. Dobruck has filed her responses and the Motions
are ripe.
II.
Legal Standard
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this
Court
favors
the
plaintiff
with
all
reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (stating “[o]n a motion to dismiss, the facts
stated
in
[the]
complaint
and
all
reasonable
inferences
therefrom are taken as true”). However:
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
5
of
review
must
be
limited
to
the
four
corners
of
the
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Analysis
A. Dobruck has sufficiently stated a claim under the DPPA
“Concerned that personal information collected by States
in the licensing of motor vehicle drivers was being released—
even sold—with resulting loss of privacy for many persons,
Congress provided federal statutory protection. It enacted
the Driver’s Privacy Protection Act of 1994, referred to here
as the DPPA.” Maracich v. Spears, 133 S. Ct. 2191, 2195 (2013)
(citation omitted). “The DPPA creates a private right of
action against persons who knowingly obtain, disclose or use
personal information, from a motor vehicle record, for a
purpose not permitted under the DPPA. 18 U.S.C. § 2724.”
McCrae
v.
Broward
Sheriff’s
Office,
No.
15-61927-CIV-
ZLOCH/HUNT, 2016 WL 1055093, at *3 (S.D. Fla. Mar. 15, 2016).
“In a straightforward fashion, section 2724(a) sets forth
three
elements
giving
rise
to
liability,
i.e.,
that
a
defendant (1) knowingly obtained, disclosed or used personal
information, (2) from a motor vehicle record, (3) for a
purpose not permitted.” Thomas v. George, Hartz, Lundeen,
6
Fulmer, Johnstone, King, and Stevens, P.A., 525 F.3d 1107,
1111 (11th Cir. 2008).
All Defendants argue that Dobruck has failed to state a
claim under the DPPA. However, upon review, the Court finds
the Complaint sufficiently alleges facts to state a plausible
claim to relief. The Complaint alleges Dobruck’s information
was made available by the DHSMV and the Florida Department of
Law Enforcement to the named Defendants through DAVID; that
the individual Defendants accessed her information in their
course of employment; that the individual Defendants used
their employer’s facilities and equipment to access DAVID;
and that the Defendants did not have a permitted reason to
access her information through DAVID. These allegations are
sufficient to withstand the present Motions. See Santarlas v.
Minner, No. 5:15-cv-103-Oc-30PRL, 2015 WL 3852981, at *3-4
(M.D. Fla. June 22, 2015) (denying motion to dismiss in DPPA
case where plaintiff alleged individual defendants, acting in
the
scope
of
their
employment,
accessed
plaintiff’s
information through DAVID when they did not have a legitimate
law enforcement purpose or other permitted purpose).
The Complaint’s failure to allege the specific dates on
which Dobruck’s information was accessed is not fatal given
the other allegations. See Watts v. City of Port St. Lucie,
7
Fla., No. 2:15-cv-14192-ROSENBERG/LYNCH, 2016 WL 633716, at
*3 (S.D. Fla. Feb. 17, 2016) (“The failure to allege the dates
does not, alone, render the claims implausible under Twombly,
given the other factual allegations in the First Amended
Complaint”).
Nor
do
the
lack
of
dates
render
Dobruck’s
Complaint an impermissible “shotgun” pleading, for which it
is “virtually impossible to know which allegations of fact
are intended to support which claim(s) for relief.” Anderson
v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364,
366 (11th Cir. 1996). The Complaint puts Defendants on notice
of the conduct supporting Dobruck’s claim: the individual
Defendants accessed Dobruck’s information, in the scope of
their employment, for the impermissible purpose of harassing
Dobruck.
Additionally, Judd and Music argue that the Complaint
fails
to
sufficiently
allege
a
vicarious-liability
claim
against Judd. “[T]he DPPA implicitly recognizes a respondeat
superior theory of liability . . . . [And,] federal courts
nationwide have adopted” the reasoning of Margan v. Niles,
250 F. Supp. 2d 63, 72-75 (N.D.N.Y. 2003). Watts v. City of
Hollywood, Fla., 15-61123-CIV-ALTONAGA/O'Sullivan, 2015 WL
7736532, at *9 (S.D. Fla. Nov. 17, 2015) (citation omitted).
“An employee’s conduct is considered to be within the scope
8
of employment if it (1) is of the kind he or she is employed
to perform, (2) occurs substantially within the authorized
time and space limits of the workplace, and (3) is actuated,
at least in part, by a purpose to serve the employer.”
Santarlas
v.
Minner,
No.
5:15-cv-103-Oc-30PRL,
2015
WL
5896243, at *2 (M.D. Fla. Oct. 7, 2015) (citation omitted).
Judd and Music argue that Dobruck has not stated a
plausible claim that Music accessed her information to serve
the Polk County Sheriff’s Office. (Doc. # 24 at 11). The Court
disagrees.
The
Complaint
alleges
that
the
individual
Defendants accessed Dobruck’s information on DAVID “at least
in part . . . with the intent to further their respective
employers[’] interests in such ways as protecting [them] from
public opprobrium . . ., or increasing the overall morale of
the employers’ employees.” (Doc. # 1 at ¶ 19). Accordingly,
the allegations are sufficient to survive the Motion. See
Watts
v.
City
of
ALTONAGA/O’Sullivan,
Hollywood,
at
*4-6
Fla.,
(S.D.
No.
Fla.
15-61123-CIV-
Jan.
11,
2016)
(unpublished), available at (Doc. # 61).
Judd and Music further argue that the Complaint fails to
allege
sufficient
facts
to
support
punitive
damages.
In
furtherance of their argument, Judd, Music cite English v.
Parker, No. 6:09-cv-1914-Orl-31GJK, 2011 WL 1842890, at *5
9
(M.D. Fla. May 16, 2011). However, English was decided at the
summary judgment stage. In contrast, this case is currently
in its preliminary stages and the Complaint need only state
a plausible claim to relief, which it has done. While Dobruck
may require more evidence in light of English at the summary
stage, the Complaint is sufficient for present purposes.
B. The statute of limitations is an affirmative defense
Defendants Town of Lady Lake and Ranize argue that
Dobruck’s claims against them are time-barred because DAVID
run reports they acquired show that these Defendants did not
access
Dobruck’s
personal
information
through
the
DAVID
system in the four years prior to the initiation of this
lawsuit. (Doc. # 38 at 5-7; Doc # 39 at 4-8). The Eleventh
Circuit has held that the statute of limitations for DPPA
claims begins to run at the date of access, rather than the
date that access was discovered. Foudy v. Miami-Dade Cty.,
Fla., 823 F.3d 590, 593 (11th Cir. 2016). However, Foudy
reserved the question of whether equitable tolling may apply
to DPPA claims. Id. at 594 n.1 (“Because the record is void
of any mention of equitable tolling in the district court, we
decline to address the argument.”). Thus, it is not clear
that dates of access more than four years prior to the filing
of this action would be fatal to Dobruck’s claim.
10
Regardless,
as
discussed
in
the
previous
section,
allegations of specific dates are not required to state a
claim under the DPPA. See Watts, 2016 WL 633716, at *3.
Defendants’
argument
that
the
four-year
statute
of
limitations has run is an affirmative defense. See id. at *2
(“[A] statute of limitations bar is an affirmative defense,
and a plaintiff is not required to negate an affirmative
defense in its complaint.”). It is not obvious from the face
of the Complaint that the statute of limitations has run. See
La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th
Cir.
2004)(“[A]
Rule
12(b)(6)
dismissal
on
statute
of
limitations grounds is appropriate only if it is 'apparent
from the face of the complaint' that the claim is timebarred.”).
In the alternative, Town of Lady Lake and Ranize request
that the Court treat their Motions to Dismiss as Motions for
More
Definite
Statement.
Under
Federal
Rule
of
Civil
Procedure 12(e),
A party may move for a more definite statement of
a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the
party cannot reasonably prepare a response.
Fed. R. Civ. P. 12(e). “The federal system employs notice
pleading and therefore, motions for more definite statement
11
are disfavored.” Lucibello v. Gulf Coast Energy, L.L.C., No.
2:05-cv-274-FTM-33DNF, 2005 WL 5954963, at *3 (M.D. Fla.
Sept. 19, 2005)(citing Scarfato v. National Cash Register
Corp., 830 F. Supp. 1441, 1443 (M.D. Fla. 1993)). “The basis
for
granting
a
unintelligibility,
motion
not
for
lack
more
of
definite
detail;
as
statement
long
as
is
the
defendant is able to respond, even if only with simple denial,
in good faith, without prejudice, the complaint is deemed
sufficient.” Securities and Exchange Commission v. Digital
Lightwave, Inc., 196 F.R.D. 698, 700 (M.D. Fla. 2000).
The Court finds that the Complaint’s allegations are not
“so vague or ambiguous” that Town of Lady Lake and Ranize
could
not
reasonably
frame
a
responsive
pleading.
Here,
Dobruck’s Complaint is intelligible without the dates of
access listed as she alleges the three elements of a DPPA
claim: Defendants knowingly obtained, disclosed or used her
personal information from a motor vehicle record for a purpose
not permitted under the DPPA. See Thomas, 525 F.3d at 1111
(“[S]ection 2724(a) sets forth three elements giving rise to
liability, i.e., that a defendant (1) knowingly obtained,
disclosed or used personal information, (2) from a motor
vehicle record, (3) for a purpose not permitted.”). On the
basis of the Complaint, Defendants are able to deny in good
12
faith that they accessed Dobruck’s information in the DAVID
system for the impermissible purpose alleged. Defendants may
learn the dates on which the alleged impermissible accesses
occurred through discovery. See Home Mgmt. Sols., Inc. v.
Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *5
(S.D.
Fla.
Aug.
21,
2007)(“[T]he
narrowing
down
of
the
allegation to certain specific instances is a task to be
undertaken through discovery. A motion for a more definite
statement
is
not
a
substitute
for
discovery.”)(quotation
omitted). As the statute of limitations is an affirmative
defense and Defendants are able to respond to the Complaint
without specific dates of access, the Court will not require
Dobruck
to
re-plead
to
negate
Defendants’
affirmative
defenses. See Watts, 2016 WL 633716, at *2 (“[A] statute of
limitations bar is an affirmative defense, and a plaintiff is
not
required
to
negate
an
affirmative
defense
in
its
complaint”).
C. Joinder is proper
Defendants Borders and Heath, as well as the City of
Auburndale and Wall, argue that they should be severed from
the other Defendants, if the claims against them are not
dismissed.
They
argue
that
Dobruck
should
refile
her
Complaint against them in the division of the Middle District
13
of Florida where these Defendants are located and their
supposedly impermissible DAVID accesses occurred.
The Court finds that Defendants Borders, Heath, City of
Auburndale, and Wall are properly joined in this action. Under
Federal Rule of Civil Procedure 20(a), permissive joinder of
defendants is appropriate if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same transaction,
occurrence,
or
series
of
transactions
or
occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20(a)(2). In evaluating joinder, courts ask
whether a logical relationship exists between the claims,
meaning that “the claims rest on the same set of facts or the
facts, on which one claim rests, activate additional legal
rights supporting the other claim.” Smith v. Trans-Siberian
Orchestra, 728 F. Supp. 2d 1315, 1319 (M.D. Fla. 2010)(citing
Republic Health Corp. v. Lifemark Hosp. of Fla., 755 F.2d
1453, 1455 (11th Cir. 1985)).
Dobruck
argues
that
all
the
allegedly
impermissible
accesses of her personal information by the Defendants arise
out of her husband’s whistleblower lawsuit. According to
Dobruck, the Defendants were motivated to access Dobruck’s
14
information by a desire to retaliate for the embarrassment
caused by Mr. Dobruck’s whistleblowing. (Doc. # 1 at ¶ 19).
Thus,
the
information
different
by
the
accesses
different
of
Dobruck’s
Defendants
bear
personal
a
logical
relationship to one another. Furthermore, Dobruck’s claims
share a common question of law, as her claims against each
Defendant share the same elements. The Court finds that
joinder is appropriate in this case and declines to sever
Borders, Heath, the City of Auburndale, and Wall from this
action.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants Grady Judd and Michael Music’s Motion to
Dismiss (Doc. # 24) is DENIED.
(2)
Defendants
Gary
S.
Borders
and
Donald
Heath,
Jr.’s
Motion to Dismiss (Doc. # 25) is DENIED.
(3)
Defendants
City
of
Auburndale
and
Wall’s
Motion
to
Dismiss (Doc. # 28) is DENIED.
(4)
Defendant Town of Lady Lake’s Motion to Dismiss or for
a More Definite Statement (Doc. # 38) is DENIED.
(5)
Defendant Rita Ranize’s Motion to Dismiss or for a More
Definite Statement (Doc. # 39) is DENIED.
15
DONE and ORDERED in Chambers in Tampa, Florida, this
27th day of September, 2016.
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?