Bazemore v. Judd et al

Filing 30

ORDER: Defendants Grady Judd, Michael Music, and Omar E. Saenz's Motion to Dismiss (Doc. # 17 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 9/15/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JANE BAZEMORE,
Plaintiff,
v.

Case No. 8:16-cv-1871-T-33JSS

GRADY JUDD, Polk County Sheriff,
et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendants Grady Judd, Michael Music, and Omar E. Saenz’s
Motion to Dismiss (Doc. # 17), filed on August 9, 2016.
Plaintiff Jane Bazemore filed a response in opposition on
August 23, 2016. (Doc. # 24). For the reasons below, the
Motion is denied.
I.

Background
In 2010, Bazemore’s son-in-law 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-79OC-32GRJ. (Doc. # 1 at ¶ 12). Thereafter, but fewer than four
years

from

the

date

this

action

was

filed,

Bazemore

“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 ¶ 13). Bazemore 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 ¶ 11). 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 of birth, detailed 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 ¶¶ 10-11).
Sometime in 2015, Bazemore contacted the DHSMV to check
if anyone was viewing her private information and, if so,
whom. (Id. at ¶ 13). In response, DHSMV provided Bazemore
with

“reports

of

Defendants

accessing

and

obtaining

her

private and restricted information from the DAVID system

2 

without

permissible

reasons.”

(Id.).

“[I]n

accessing

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 . . ., or increasing the overall
morale

of

the

employers’

employees.”

(Id.

at

¶

16).

Furthermore, “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 ¶ 15).
However, “[n]one of the Defendants’ accessing of Plaintiff’s
personal DAVID information . . . fell within the DPPA’s
permitted

exceptions,”

and

“[a]t

no

time

did

Plaintiff

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 ¶¶ 14, 17).
Bazemore then brought suit against Judd, the City of
Winter Haven, Beckham (an employee of Winter Haven), Music
(an employee of the Sheriff’s Office), Saenz (an employee of
the Sheriff’s Office), and Lindsey Schell (an employee of the

3 

Sheriff’s Office) on June 27, 2016. Beckham, Music, Saenz,
and Schell are being sued in their individual capacities,
whereas Judd is being sued in his official capacity. The onecount 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.
Judd, Music, and Saenz now move the Court to dismiss the
Complaint

pursuant

to

Rule

12(b)(6).

(Doc.

#

17).

The

remaining Defendants have not yet appeared as of the date of
this Order, nor is there an indication in the record that
service has been effected as to Winter Haven, Beckham, and
Schell. Bazemore has filed her response and the Motion is
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

4 

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).
III. Analysis
“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

5 

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, and Stevens, P.A., 525 F.3d 1107,
1111 (11th Cir. 2008).
Judd, Music, and Saenz first argue that Bazemore 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
Bazemore’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

6 

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

Complaint

permitted
does

not

purpose).
allege

the

Furthermore,
specific

although

dates

the

Bazemore’s

information was accessed, that is not fatal given the other
allegations. 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 does
not, alone, render the claims implausible under Twombly,
given the other factual allegations in the First Amended
Complaint”).
Judd, Music, and Saenz next 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).

7 

“An employee’s conduct is considered to be within the scope
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, Music, and Saenz focus on the third prong and,
while they correctly note that “[t]he mere fact that the
individual

defendants

had

access

to

DAVID

through

their

employment . . . is insufficient to establish that the conduct
was actuated by a purpose to serve the employer,” see (Doc.
# 17 at 11 (quoting Santarlas, 2015 WL 5896243, at *2-3)),
the

argument

ignores

other

relevant

allegations.

The

Complaint, in addition to alleging the individual Defendants
had access to DAVID through their employment, also alleges
that

the

individual

Defendants

accessed

Bazemore’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 moral of the employers’ employees.”
(Doc.

#

1

at

¶

16).

Accordingly,

the

allegations

are

sufficient to survive the Motion. See Watts v. City of

8 

Hollywood, Fla., No. 15-61123-CIV-ALTONAGA/O’Sullivan, at *46 (S.D. Fla. Jan. 11, 2016) (unpublished), available at (Doc.
# 26-2).
Judd, Music, and Saenz further argue that the Complaint
fails to allege sufficient facts to support punitive damages.
In furtherance of their argument, Judd, Music, and Saenz cite
English

v.

Parker,

No.

6:09-cv-1914-Orl-31GJK,

2011

WL

1842890, at *5 (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. As stated above, the
Court finds the Complaint to plausibly state such a claim to
relief. While Bazemore may require more evidence in light of
English at the summary stage, the Complaint is sufficient for
present purposes.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendants

Grady

Judd,

Michael

Music,

and

Omar

E.

Saenz’s Motion to Dismiss (Doc. # 17) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
15th day of September, 2016.

9