Letourneau v. Pembroke Pines et al

Filing 57

ORDER ON SUMMARY JUDGMENT. Order granting #38 Motion for Summary Judgment; granting #40 Motion for Summary Judgment; denying #44 Motion for Summary Judgment. Signed by Judge Beth Bloom on 12/5/2017. (kpe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-60082-BLOOM/Valle
CLAUDE LETOURNEAU,
and CINDY LYNN THIBAULT,
Plaintiffs,
v.
MELODIE CARPIO,
Defendants.
________________________________________/
ORDER ON SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Plaintiff Claude Letourneau’s Motion for
Summary Judgment, ECF No. [38], Plaintiff Cindy Lynn Thibault’s Motion for Summary
Judgment, ECF No. [40] (collectively “Plaintiffs’ Motions for Summary Judgment”), and
Defendant Melodie Carpio’s Motion for Summary Judgment, ECF No. [44] (“Defendant’s
Motion for Summary Judgment”).

The Court has carefully considered all Motions, all

supporting and opposing filings, the relevant authorities, and is otherwise duly advised. For the
reasons that follow, Plaintiffs’ Motions for Summary Judgment are granted and Defendant’s
Motion for Summary Judgment is denied.
I.

BACKGROUND
A.

Plaintiffs’ Statement of Facts

Plaintiffs Claude Letourneau (“Mr. Letourneau”) and Cindy Lynn Thibault (“Ms.
Thibault”) (collectively “Plaintiffs”) sued Melodie Carpio (“Defendant”) for violating the
Driver’s Privacy Protection Act of 1994, 18 U.S.C. §§ 2721-2725 (“DPPA”). See ECF No. [9].
Defendant did not dispute Plaintiffs’ respective Statements of Undisputed Material Facts filed in

Case No. 17-cv-60082-BLOOM/Valle

support of their Motions for Summary Judgment.

Local Rule 56.1(b) provides that “[a]ll

material facts set forth in the movant’s statement filed and supported as required above will be
deemed admitted unless controverted by the opposing party’s statement, provided that the Court
finds that the movant’s statement is supported by evidence in the record.” See S.D. Fla. L.R.
56.1(b).

To the extent that record evidence supports Plaintiffs’ Statements of Undisputed

Material Facts, ECF Nos. [39] and [41], these facts are deemed admitted and undisputed as set
forth below.
On May 16, 2016, Pembroke Pines Police Department Sergeant Scott Carris randomly
audited several police officers’ use of the Driver and Vehicle Information Database (“DAVID”).
See ECF Nos. [39] at [41] at ¶ 1.1 Defendant was one of the names selected for review as part of
the audit. Id. at ¶ 2. Sergeant Carris ultimately determined that Defendant improperly accessed
Mr. Letourneau’s information on the DAVID database 82 times and Ms. Thibault’s information
85 times. Id. at ¶ 3. Thereafter, on September 16, 2016, Defendant, under oath and with her
attorney present, voluntarily answered Sergeant Carris’s questions regarding her alleged
improper access of DAVID. Id. at ¶ 4. During the interview, Defendant admitted that she did
not access Plaintiffs’ information for any criminal justice reason or other legitimate business
purpose. Id. at ¶¶ 5-6. Instead, she accessed their information out of curiosity. Id. at ¶ 6.
B.

Defendant’s Statement of Facts

Defendant also submitted a Statement of Material Facts in support of her Motion for
Summary Judgment, which proffered additional facts. See ECF No. [44-2]. Plaintiffs did not
respond to Defendant’s Statement of Material Facts. As such, Defendant’s proffered facts are
1

Not only did Defendant not dispute Plaintiffs’ Statements of Undisputed Material Facts, but Defendant
did not oppose Plaintiffs’ Motions for Summary Judgment, admitting to liability. Given the lack of
opposition, the Court cites directly to Plaintiffs’ respective Statements of Undisputed Material Facts,
which are supported by the record.

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deemed admitted to the extent they are supported by the record.2 Such undisputed facts are set
forth below.
Police officers are limited by the databases they can access and the type of information
available to them on such databases. See ECF No. [44-1] at ¶ 13. In this case, neither Plaintiff
knew that his or her information had been accessed through DAVID or the Florida Crime
Information Centers (“FCIC”) databases until Plaintiffs requested information through the
Florida Department of Law Enforcement by requesting a “TAR.” See ECF No. [44-5] at 7.
There is no evidence that either Plaintiff was a victim of identity theft as a result of Defendant’s
searches. See ECF No. [44-5] at 15, 22; ECF No. [44-6] at 19-20. Some of the information
Defendant obtained from the database searches were known to Ms. Thibault’s ex-husband, Jared
Parke, who is currently engaged to Defendant, such as Ms. Thibault’s address and social security
number. See ECF No. [44-5] at 11 and 12. Ms. Thibault did not lose any job opportunities or
miss any work as a result of Defendant’s actions. See ECF No. [44-5] at 20. Mr. Letourneau
works as a pilot and testified that he missed two days from work as a result of Defendant’s
actions. See ECF No. [44-6] at 17. On one such occasion, he received a distressing call from
Ms. Thibault, which made him mentally unprepared to fly an airplane, so he was sent home from
Minneapolis. Id. On those occasions, he took personal time off and did not receive a deduction
in his pay. Id. at 35. Mr. Letourneau has not treated with a therapist and is not taking any
medications to treat psychological distress caused by Defendant’s actions. See ECF No. [44-6]
at 16. It is also undisputed that Defendant did not solicit or recruit other police officers to harass,

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The Court’s review of Defendant’s record citations reveals that some of the proffered facts were not
supported by the cited testimony, such as claims that Defendant did not harass Plaintiffs. The Plaintiffs’
testimony disputes this. Therefore, any unsupported facts are not discussed in this section. Other
proffered facts did not accurately characterize the cited testimony, and to that extent, the Court recharacterized the facts based on what is supported by the record, citing to the specific transcript.

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stalk or follow Plaintiffs and Mr. Letourneau admits that police officers did not deliberately
follow him over the last four years. See ECF No. [44-1]; ECF No. [44-6] at 29.
II.

LEGAL STANDARD
A court may grant a motion for 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). The parties may support their positions by citation to the record,
including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P.
56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the nonmoving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F. 3d 1235, 1243 (11th
Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is
material if it “might affect the outcome of the suit under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247-48). The court views the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in the party’s favor. See Davis v. Williams,
451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in support of
the [non-moving party’s] position will be insufficient; there must be evidence on which a jury
could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. The Court does
not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir.
2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir.
1986)).
The moving party shoulders the initial burden to demonstrate the absence of a genuine
issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant
satisfies this burden, “the non-moving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x

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819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each
essential element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must produce evidence, going
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designating specific facts to suggest that a reasonable jury could find in
the non-moving party’s favor. Shiver, 549 F.3d at 1343. But even where an opposing party
neglects to submit any alleged material facts in controversy, a court cannot grant summary
judgment unless it is satisfied that all of the evidence on the record supports the uncontroverted
material facts that the movant has proposed. See Reese v. Herbert, 527 F.3d 1253, 1268-69,
1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004).
III.

DISCUSSION
A.

Plaintiffs’ Motions for Summary Judgment

Plaintiffs seek summary judgment on the question of Defendant’s liability under the
DPPA and ask the Court to set this case for a hearing or a trial for a determination of their
damages. See ECF Nos. [38] and [40] at 4. Defendant admits liability and does not oppose
Plaintiffs’ Motions for Summary Judgment to the extent they seek an adjudication of fault. See
ECF No. [54] at 3 (“Since the issue of liability has been conceded . . .”); ECF No. [54] at 5
(“Liability has been admitted by the Defendant.”). Instead, the parties dispute whether Plaintiffs’
damages can be determined on summary judgment – a matter raised in Defendant’s Motion.
Thus, to the extent Defendant concedes liability for violations of the DPPA alleged in the

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Amended Complaint, Plaintiffs’ Motions for Summary Judgment are granted. The Court now
addresses the question of damages.
B.

Defendant’s Motion for Summary Judgment

This case stems from Defendant’s admitted violation of the DPPA, which provides as
follows:
(a) Cause of action.--A person who knowingly obtains, discloses or uses personal
information, from a motor vehicle record, for a purpose not permitted under this
chapter shall be liable to the individual to whom the information pertains, who
may bring a civil action in a United States district court.
(b) Remedies.--The court may award—
(1) actual damages, but not less than liquidated damages in the amount of
$2,500;
(2) punitive damages upon proof of willful or reckless disregard of the
law;
(3) reasonable attorneys' fees and other litigation costs reasonably
incurred; and
(4) such other preliminary and equitable relief as the court determines to
be appropriate.
18 U.S.C. § 2724.
Defendant’s Motion for Summary Judgment seeks to limit each Plaintiff to an award of
$2,500 in liquidated damages under the DPPA. See ECF No. [44]. In support of this position,
Defendant argues there is no evidence of actual damages; therefore, a liquidated damages award
of $2,500 must be awarded. Id. In addition, Defendant seeks to limit Plaintiffs’ liquidated
damages to one award of $2,500 for each Plaintiff as opposed to an award of $2,500 per Plaintiff
per violation. Id. Finally, Defendant requests summary judgment on Plaintiffs’ claim for
punitive damages. Id. Plaintiffs, on the other hand, dispute that any of their damages can be

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decided on summary judgment and instead request an evidentiary hearing for a damages
determination.3 See ECF No. [51].
1.

Actual Damages

As to the first element of Plaintiffs’ damages, actual damages, Defendant seeks summary
judgment in her favor, arguing that Plaintiffs cannot demonstrate they suffered any such damages
and are, therefore, limited to $2,500 in liquidated damages. As proof of Plaintiffs’ lack of actual
damages, Defendant argues that neither Plaintiff knew their information had been accessed
through DAVID or FCIC until they made a public records request, Plaintiffs were not victims of
identity theft, Plaintiffs did not lose any income, and Mr. Letourneau has not treated with a
therapist and is not taking any medications to treat psychological distress caused by Defendant’s
actions. See ECF No. [44] at 4-5. Although Plaintiffs claim damages such as “disruption, fear,
suspicion, loss of sleep, damage to reputation, stress and time spent trying to protect family,”
Defendant argues these do not qualify as “actual damages” under the DPPA.

Id. at 5-6.

According to Defendant, this is because the “DPPA does not provide for violations of one’s
privacy as an actual damage.” Id. at 5. In support of this conclusion, Defendant asks the Court
to analogize the Privacy Act to the DPPA and find that emotional distress damages are not
recoverable as “actual damages,” much like the Supreme Court did when analyzing damages

3

In the Amended Complaint, Plaintiffs demanded a trial by jury for their DPPA claims against Defendant.
See ECF No. [15], Counts I and V. Likewise, in her Answer and Affirmative Defenses, Defendant
demanded “a trial by jury on all issues so triable.” ECF No. [35] at 5. However, in their summary
judgment briefs, the parties inconsistently suggest that damages can be determined by way of an
evidentiary hearing or trial. In either event, the parties have not filed anything in the record waiving their
respective rights to a jury trial. The parties are entitled to have the issue of punitive damages under the
DPPA determined by a jury if a genuine issue of material fact exists. See Pichler v. UNITE, 542 F.3d
380, 390 (3d Cir. 2008) (“In sum, where there is a genuine issue of material fact regarding the willfulness
or recklessness of a defendant’s conduct, we hold that the Seventh Amendment requires a trial by jury on
the issue of punitive damages under the DPPA.”). At the upcoming calendar call on Tuesday, January 2,
2018, the parties should be prepared to address whether they have agreed to waive their right to a jury
trial on the issue of Plaintiffs’ damages.

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under the Privacy Act in F.A.A. v. Cooper, 566 U.S. 284, 294 (2012). Id. at 5-6. Notably,
Defendant does not cite to any decisions in which courts have accepted this analogy under the
DPPA, and, to the contrary, other district courts have considered and rejected this precise
argument. See Potocnik v. Carlson, No. 13-cv-2093 (PJS/HB), 2016 WL 3919950, *12 (D.
Minn. July 15, 2016).
In Potocnik, the defendant asked the district court to apply the same conclusion from the
Supreme Court’s analysis of the Privacy Act in Cooper to the DPPA. Id. Rejecting such an
approach, the district court explained that, in Cooper, the Supreme Court analyzed the scope of
the federal government’s sovereign immunity waiver, which required a narrow reading of the
term “actual damages.” Id. The DPPA presents no such sovereign immunity waiver concerns.
Id. Instead, consideration must be given to the purpose and context in which the DPPA was
enacted - a “crime-fighting, privacy-protecting measure that was enacted partly in response to the
murder of actress Rebecca Schaeffer, who was killed after a deranged fan obtained her address
from a motor-vehicle database.” Id. Although invasions of privacy under the DPPA will rarely
result in an economic loss, they are likely to cause emotional distress. Id. As the Potocnik court
concluded, “[i]t is highly unlikely that Congress intended to deprive the very type of victim who
inspired the passage of the DPPA – that is, victims like Rebecca Schaeffer - from any recovery
under the Act” simply because they did not sustain an economic loss. Id. See also Karasov v.
Caplan Law Firm, P.A., No. 14-CV-1503 (SRN/BRT), 2016 WL 6836930, *15 (D. Minn. Nov.
18, 2016) (adopting analysis in Potocnik). Here, Defendant has not directed this Court to any
contrary authority concluding that “actual damages” under the DPPA is limited to pecuniary
damages, much less any binding authority within the Eleventh Circuit. Finding that the DPPA’s

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“actual damages” provision indeed includes both pecuniary and non-pecuniary damages, the
Court finds that an issue of fact exists as to whether Plaintiffs sustained “actual damages.”
Even if emotional harm damages were not considered “actual damages,” the record
contains evidence of at least some pecuniary loss, creating an issue of fact on this element of
Plaintiffs’ claim.

In particular, Defendant directs the Court to Plaintiffs’ Answers to

Interrogatory Number 3 as evidence regarding the lack of economic damages. However, in this
discovery response, Plaintiffs affirmatively state that they have incurred economic damages
consisting of the installation of “a home surveillance system and alarm system based on [their]
increasing suspicion and fear that [they] were being searched and harassed.” ECF Nos. [44-3]
and [44-4].

Defendant’s Statement of Facts also directed the Court to Mr. Letourneau’s

testimony wherein he described his “actual damages” as days he missed from work requiring that
he use his personal days for time off and the cost of an ADT security system and camera that he
installed, explaining that he “never had to put cameras . . . until now.” ECF No. [44-6] at 32-33.
Thus, at a minimum, Plaintiffs presented evidence of economic damages sufficient to create an
issue of fact on the existence of “actual damages.”
2.

Liquidated Damages

Defendant next asks the Court to limit any liquidated damages award to $2,500 per
Plaintiff. According to Defendant, a per-violation liquidated damages award would be “out of
step with the intent of th[e DPPA] statute and would automatically become punitive without
justification.” See ECF No. [44] at 8. In response, Plaintiffs argue that they are entitled to
$2,500 per DPPA violation; otherwise, “violators of the DPPA have a blank check in this regard
to continue violating after the first transgression.” ECF No. [51] at 7. Under this scenario, Mr.

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Letourneau would be awarded $205,000 in liquidated damages while Ms. Thibault would be
awarded $212,500.
The Eleventh Circuit recently analyzed whether the DPPA provides for a singular sum of
liquidated damages or a per-violation sum. See Ela v. Destefano, 869 F.3d 1198, 1202-03 (11th
Cir. 2017). In Ela, which is factually analogous to this case, the defendant police officer
accessed law enforcement databases to search the plaintiff without a legitimate business or law
enforcement purpose. Id. at 1200. The defendant never used or disclosed the information. Id.
At trial, a jury found the plaintiff had not sustained any actual damages, so the trial court
awarded her $2,500 in liquidated damages under the DPPA. Id. Deciding an issue of first
impression within the Eleventh Circuit, the appellate court was asked to determine whether the
liquidated damages provision of the DPPA applies on a global basis or a per-violation basis. Id.
at 1201. Recognizing that the text of § 2724 “does not explicitly require per violation awards,
but it does not seem to foreclose them either,” the Eleventh Circuit concluded that the district
court appropriately fashioned a damages award appropriate to the situation. Id. at 1202. The
statutory context of the DPPA further supported this interpretation as Congress required
cumulative damages under the criminal section of the DPPA, § 2723, but did not explicitly
require cumulative damages within the civil section, § 2724. Id. Thus, had Congress intended to
allow liquidated damages on a per-violation basis, it would have stated so. Id.
In their Response, Plaintiffs do not address Ela or otherwise attempt to distinguish it. See
ECF No. [51] at 6-7.4 Instead, Plaintiffs direct the Court to a single decision from the District of
Minnesota for the proposition that each individual database access is a DPPA claim even if they

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Plaintiffs simply cite to Ela and state that “if this Court somehow agrees with Defendant Carpio and
finds Plaintiffs did not suffer actual damages, the Court must award at least $2,500 in liquidated damages
if any DPPA violation is established.” ECF No. [51] at 6.

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occurred in rapid succession to one another. See Rollins v. City of Albert Lea, 79 F. Supp. 3d
946, 974 (D. Minn. 2014). The Rollins decision, however, does not support Plaintiffs’ assertion
that each DPPA violation entitles them to a separate liquidated damages award of $2,500. Id.
Much like Plaintiffs here, the plaintiff in Ela argued that such limited liquidated damages
would allow police officers to take advantage of their position of power to access private
information. Id. at 1203. However, that is not the case under the DPPA as the statute provides
for punitive damages specifically designed to deter this precise abuse of power. Id. Moreover,
“[r]eading ‘per violation’ into the statute’s liquidated damages clause to mandate cumulative
damages would enable unharmed plaintiffs to abuse this provision.” Id. As such, in applying the
Eleventh Circuit’s guidance from Ela to this case, the Court declines to read a “per violation”
requirement for liquidated damages under the DPPA. If Plaintiffs believe Defendant abused her
position as a police officer by repeatedly searching their records in the DAVID database,
Plaintiffs may raise such an argument in support of their claim for punitive damages. To find
otherwise would require this Court to read language into the DPPA that Congress did not
include.
3.

Punitive Damages

Finally, Defendant seeks summary judgment on Plaintiffs’ claim for punitive damages,
asking the Court to exercise its discretion to not award such damages. According to Defendant,
punitive damages are not warranted because she did not cause Plaintiffs any physical harm, did
not steal their identities, and there was no malice or trickery on her part. See ECF No. [44] at 1011. Put simply, Defendant believes punitive damages cannot be awarded unless she misused the
information once she obtained it. See ECF No. [44] at 11; ECF No. [54] at 5. Even if Defendant
did not misuse the information from the DAVID searches, this evidence does not dispose of a

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claim for punitive damages under the DPPA. The statute allows for the imposition of punitive
damages “upon proof of willful or reckless disregard of the law.” 18 U.S.C. § 2724. See also
Pichler v. UNITE, 542 F.3d 380, 397 (3d Cir. 2008) (“We cannot conceive of what willful or
reckless disregard for the DPPA could be other than where a ‘party appreciated it was engaging
in wrongful conduct’ under the DPPA). Compare with English v. Parker, No. 6:09-CV-1914ORL-31, 2011 WL 1842890, at *5 (M.D. Fla. May 16, 2011) (“The record is devoid of any
evidence that Ryan English knew of the existence of the DPPA, much less willfully or recklessly
disregarded it.”).

There is no statutory requirement that the violator improperly use the

information derived in violation of the DPPA – only that the individual knowingly or recklessly
violate the DPPA.
Here, it is undisputed that Defendant was accessing Plaintiffs’ information on DAVID
without any criminal justice or legitimate business purpose and was instead doing so out of
curiosity. See ECF No. [42-3] at 5. In fact, she accessed Mr. Letourneau’s information 82 times
and Ms. Thibault’s information 85 times. Defendant also admitted in her sworn statement that,
prior to using the DAVID database, she was required to take a test that informs her of the
database’s proper usage and that none of her searches fell within the permitted usage. Id. at 911. Such evidence creates an issue of fact as to whether Defendant willfully or recklessly
disregarded the DPPA given that she knew of the proper use of DAVID, was trained on the
permitted uses, and she repeatedly accessed Plaintiff’s information for non-permitted uses in
violation of the statute. Although Defendant argues that she has been punished enough by her
employer and should not be punished any further in this legal proceeding, such adverse
employment consequences do not dispose of Plaintiffs’ statutory right to seek punitive damages

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at trial. Given the disputed issues of fact surrounding Plaintiffs’ entitlement to punitive damages,
summary judgment on this claim in Defendant’s favor must be denied.
IV.

CONCLUSION
For all of the reasons stated herein, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff Claude Letourneau’s Motion for Summary Judgment, ECF No. [38], is
GRANTED;
2. Plaintiff Cindy Lynn Thibault’s Motion for Summary Judgment, ECF No. [40], is
GRANTED;
3.

Defendant Melodie Carpio’s Motion for Summary Judgment, ECF No. [44], is
DENIED.

DONE AND ORDERED in Miami, Florida, this 5th day of December, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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