Dobruck v. Borders et al
Filing
81
ORDER: Defendant Edward Fazekas's Motion to Dismiss or for a More Definite Statement (Doc. # 78 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 12/8/2016. (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
Defendant Edward Fazekas’s Motion to Dimiss or for More
Definite Statement (Doc. # 78), filed on November 15, 2016.
Plaintiff Faith Bazemore Dobruck filed a response on November
28, 2016. (Doc. # 79). For the reasons that follow, the Motion
is 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
1
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). Here, that information included
“records
motor
pertaining
vehicle
to
titles,
motor
vehicle
vehicle
motor
operators’
permits,
registration,
color
photograph or image, Social Security number, date of birth,
state of birth, detailed vehicle registration information and
description, prior and current home and mailing addresses,
[and] emergency contacts and those contacts[’] private and
highly-restricted personal information.” (Id. at ¶¶ 13-14).
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.).
2
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
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
3
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.
Before Fazekas appeared, the remaining Defendants moved
the Court to dismiss the Complaint pursuant to Rule 12(b)(6),
or find that joinder is improper. (Doc. # 24, 25, 28, 38,
39). The Court denied those motions on September 27, 2016.
(Doc. # 63).
Fazekas now moves the Court to dismiss the Complaint
pursuant to Rule 12(b)(6), find that Dobruck’s claim is barred
by qualified immunity, and hold that joinder is improper.
(Doc. # 78). Alternatively, Fazekas moves for a more definite
statement of Dobruck’s claim. (Id. at 18). Dobruck filed her
response on November 28, 2016. (Doc. # 79). The Motion is
ripe for review.
II.
Legal Standard
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
4
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)(“On 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
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).
5
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,
Fulmer, Johnstone, King, & Stevens, P.A., 525 F.3d 1107, 1111
(11th Cir. 2008).
Fazekas argues that Dobruck has failed to state a claim
under
the
DPPA.
However,
the
6
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
information
Defendants,
in
their
including
course
of
Fazekas,
accessed
employment;
her
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 Motion. See Santarlas v. Minner, No. 5:15-cv-103-Oc30PRL,
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).
Regarding the third element, Fazekas argues that, as a
former
law
enforcement
officer,
he
is
entitled
to
a
presumption that he accessed Dobruck’s information for a
permitted purpose, and that Dobruck has failed to allege
sufficient facts to overcome that presumption. (Doc. # 78 at
14-15); see also McDonough v. Anoka Cty., 799 F.3d 931, 948
7
(8th Cir. 2015), cert. denied 136 S. Ct. 2388 (2016)(finding
that “[w]hatever weight the ‘presumption of regularity’ might
otherwise have at this stage in the litigation, Drivers have
sufficiently rebutted it” to survive a motion to dismiss).
Fazekas notes that “[w]ithin the Eleventh Circuit, the burden
of proof lies with the plaintiff to show that the defendant
obtained
his
personal
information
‘for
a
purpose
not
permitted under the Act.’” Barker v. Bay Cty. Sheriff’s
Office, No. 5:14-cv-102-RS-GRJ, 2015 WL 300431, at *3 (N.D.
Fla. Jan. 22, 2015)(quoting Thomas, 525 F.3d at 1112, and
granting
summary
refuted
the
judgment
defendant’s
because
alleged
plaintiff
legitimate
had
neither
purpose
nor
presented evidence to support his theory of an impermissible
purpose).
While ultimately proving her DPPA claim will require
greater factual support, Dobruck has sufficiently alleged an
impermissible purpose for Fazekas’s accessing her information
in the DAVID system to state a claim. See Santarlas, 2015 WL
3852981, at *3 (denying motion to dismiss where plaintiff
alleged
that
defendants
“did
not
have
a
legitimate
law
enforcement purpose or other purpose permitted under the law”
and that plaintiff “was not the subject of a law enforcement
investigation”); Rollins v. City of Albert Lea, 79 F. Supp.
8
3d 946, 974 (D. Minn. 2014)(“Plaintiff need only plausibly
allege that for whatever purpose Defendants obtained or used
her information, it was not a permitted purpose under the
statute.”); Welch v. Theodorides-Bustle, 677 F. Supp. 2d
1283, 1287 (N.D. Fla. 2010)(denying motion to dismiss and
stating
“it
is
hard
to
plead
a
negative
with
great
specificity; that there was no permissible purpose for the
disclosure is about as precise as one could be”). Dobruck
alleges that Fazekas and the other individual Defendants
accessed
Dobruck’s
embarrassment
caused
information
by
Mr.
to
retaliate
Dobruck’s
for
the
whistleblowing—an
impermissible purpose. (Doc. # 1 at ¶ 19). At this juncture,
such
allegations
are
sufficient
to
establish
the
third
element of Dobruck’s DPPA claim.
B. The statute of limitations is an affirmative defense
Fazekas argues that Dobruck’s claim against him is timebarred because DAVID run reports show that Fazekas did not
access
Dobruck’s
personal
information
through
the
DAVID
system in the four years prior to the initiation of this
lawsuit. (Doc. # 78 at 3). 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
9
(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.
Regardless,
as
this
Court
previously
held,
“[t]he
Complaint’s failure to allege the specific dates on which
Dobruck’s information was accessed is not fatal given the
other allegations.” (Doc. # 63 at 7); see Watts v. City of
Port St. Lucie, 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
implausible
under
allegations
in
does
not,
alone,
Twombly,
the
First
given
Amended
render
the
the
other
claims
Complaint”).
factual
Fazekas’s
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, and dismissal is
therefore inappropriate. See La Grasta v. First Union Sec.,
10
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 time-barred.”).
In the alternative, Fazekas requests that the Court
treat his Motion to Dismiss as a Motion 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
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. Nat’l Cash Register Corp.,
830 F. Supp. 1441, 1443 (M.D. Fla. 1993)). “The basis for
granting
a
motion
unintelligibility,
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.” Sec. & Exch. Comm’n v. Dig. Lightwave, Inc., 196
F.R.D. 698, 700 (M.D. Fla. 2000).
11
The Court finds that the Complaint’s allegations are not
“so vague or ambiguous” that Fazekas 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:
Fazekas
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, Fazekas is able to deny
in good faith that he accessed Dobruck’s information in the
DAVID system for the impermissible purpose alleged. Fazekas
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
omitted).
12
for
discovery.”)(quotation
As the statute of limitations is an affirmative defense
and Fazekas is able to respond to the Complaint without
specific dates of access, the Court will not require Dobruck
to re-plead to negate Fazekas’s affirmative defense. 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. Qualified immunity does not apply at this stage
Fazekas next argues that Dobruck’s claim against him is
barred
by
protection
qualified
for
immunity.
government
“Qualified
officials,
immunity
acting
offers
within
their
discretionary authority, who are sued in their individual
capacities as long as ‘their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Collier v. Dickinson,
477
F.3d
1306,
1308
(11th
Cir.
2007)(quoting
Harlow
v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
The Eleventh Circuit has stated that “[t]he words of the
DPPA alone are ‘specific enough to establish clearly the law
applicable
to
particular
conduct
and
circumstances
and
overcome qualified immunity.’” Id. at 1312 (quoting Vinyard
v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002)); see also
Santarlas, 2015 WL 3852981, at *4 (declining to address
13
qualified immunity at the motion to dismiss stage because
plaintiff had stated a claim under the DPPA); Mallak v. Aitkin
Cty., 9 F. Supp. 3d 1046, 1063 (D. Minn. 2014)(concluding
that defendants were not entitled to qualified immunity at
the motion to dismiss stage where plaintiff has sufficiently
alleged a DPPA violation).
Therefore, as Dobruck has stated a claim under the DPPA,
“the Court declines to address the applicability of qualified
immunity at this time.” Santarlas, 2015 WL 3852981, at *4;
see also Collier, 477 F.3d at 1312 (reversing and remanding
dismissal
on
the
grounds
of
qualified
immunity
because
“Defendants are not entitled to qualified immunity on the
portion of Count I that asserts a violation of the DPPA”).
However,
as
the
case
proceeds,
Fazekas
may
be
able
to
establish that his access of Dobruck’s information was proper
and that he is entitled to qualified immunity. See Mallak, 9
F. Supp. 3d at 1063 (denying motion to dismiss but noting
that “[i]t may well be that, as this case proceeds, Defendants
will be able to establish that they are entitled to qualified
immunity”).
D. Joinder is proper
Finally,
Fazekas
argues
that
joinder
of
all
nine
Defendants in this action is improper. As the Court held in
14
its previous Order, all Defendants are properly joined. See
(Doc. # 63 at 14). 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, Fazekas and the other Defendants were motivated to
access Dobruck’s information by a desire to retaliate for the
embarrassment caused by Mr. Dobruck’s whistleblowing. (Doc.
# 1 at ¶ 19). Thus, the different instances of accessing
15
Dobruck’s personal information by the various Defendants bear
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
Dobruck’s claims.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Edward Fazekas’s Motion to Dismiss or for a
More Definite Statement (Doc. # 78) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of December, 2016.
16
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