Foudy et al v. Port St. Lucie et al
ORDER Granting Defendan't Motion to Dismiss. Closing Case. Signed by Judge Robin L. Rosenberg on 9/8/2015. (cqs) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 2:14-CV-14318-ROSENBERG/LYNCH
TONI FOUDY and
CITY OF PORT ST. LUCIE et al.,
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
THIS CAUSE is before the Court sua sponte. On July 28, 2015, the Court entered an
Order Granting in Part and Denying in Part Defendants, City of Port St. Lucie, Meyer Ghobrial,
Michael Ryan Connor, Richard Giaccone, Steve Camara, and William van der Slike’s Motion to
Dismiss Plaintiffs’ Amended Complaint [DE 31]. See DE 47. Pursuant to that Order, Counts I, II,
III, and IV of Plaintiffs’ Amended Complaint [DE 29] were dismissed with prejudice on statute
of limitations grounds. 1 See id. at 13. The Court concluded, however, that dismissal of Plaintiffs’
Amended Complaint on statute of limitations grounds was otherwise inappropriate. See id. The
Court has reconsidered its prior Order and now revises that Order as follows: 2 Defendants’
Motion [DE 31] is GRANTED. In addition to Counts I, II, III, and IV, Counts V, VI, and VII are
DISMISSED WITH PREJUDICE on statute of limitations grounds.
The Court deferred ruling on all issues presented in Defendants’ Motion except those related to the statute of
limitations. See DE 47 at 1 n.1.
The Court may reconsider, revise, alter, or amend its prior Order on Defendants’ Motion at any time prior to
entering final judgment. See Fortran Grp. Int’l, Inc. v. Tenet Hospitals Ltd., 543 F. App’x 934, 936 (11th Cir. 2013)
(citing Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1232 (11th Cir. 2010); Hardin v. Hayes, 52 F.3d 934, 938
(11th Cir. 1995)).
This action was brought pursuant to 18 U.S.C. § 2721 et seq. and 42 U.S.C. § 1983 for
alleged violations of the Driver’s Privacy Protection Act of 1994 (“DPPA”) and related
violations of Plaintiffs’ civil rights. The Court set out the relevant procedural history in detail in
its prior Order on Defendants’ Motion to Dismiss, see DE 47 at 2–4, and will not repeat itself
In its prior Order, the Court concluded that a four-year statute of limitations period
applies both to Plaintiffs’ DPPA claims and to Plaintiffs’ § 1983 claims. See id. at 6, 11. With
respect to Plaintiffs’ DPPA claims, the Court further concluded that the four-year period began
to run as to each Defendant on the latest date that Defendant allegedly violated the DPPA. See id.
at 6–8. As a result, the Court determined that Plaintiffs’ DPPA claims are barred by the statute of
limitations. See id. at 8–11. On these points, the Court’s prior Order stands.
However, with respect to Plaintiffs’ § 1983 claims, the Court has reconsidered the
reasoning behind its conclusion that a four-year statute of limitations period applies. The Court
has also reconsidered its conclusion that the four-year period began to run when Plaintiffs
discovered Defendants’ alleged DPPA violations. See id. at 12. For the reasons set forth below,
the Court now concludes that the four-year period began to run as to each Defendant on the latest
date that Defendant allegedly violated the DPPA. Accordingly, Plaintiffs’ DPPA claims and
Plaintiffs’ § 1983 claims are barred by the statute of limitations.
“A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate ‘if it is
apparent from the face of the complaint that the claim is time-barred.’” Gonsalvez v. Celebrity
Cruises Inc., 750 F.3d 1195, 1197 (11th Cir. 2013) (quoting La Grasta v. First Union Sec., Inc.,
358 F.3d 840, 845 (11th Cir. 2004)). “Exhibits to the complaint are considered a part of the
complaint for all purposes, and may therefore be considered in deciding a motion to dismiss.”
Lawrence v. United States, 597 F. App’x 599, 602 (11th Cir. 2015) (internal citation omitted).
A. Statute of Limitations for § 1983 Claims
Plaintiffs’ § 1983 claims are predicated exclusively on Defendants’ alleged violations of
the DPPA. Plaintiffs do not allege “the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” 3 other than the statutory rights to which Plaintiffs claim
they are entitled under the DPPA. See DE 29, Am. Compl. ¶¶ 97–132. In other words, Plaintiffs’
§ 1983 claims are made possible by the DPPA, a federal statute enacted in 1994. See Pub. L. No.
103-322, §§ 300001–03, 108 Stat. 2099 (1994).
The statute of limitations period applicable to Plaintiffs’ § 1983 claims is therefore
determined not by reference to Florida’s personal injury statute of limitations, but by reference to
28 U.S.C. § 1658(a). 4 Section 1658 provides a uniform federal statute of limitations for all civil
actions arising under federal statutes enacted after December 1, 1990. See 28 U.S.C. § 1658(a);
Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 380 (2004). A cause of action need not be
“based solely upon” a post-1990 enactment for § 1658 to apply. Jones, 541 U.S. at 383. Rather,
“a cause of action ‘aris[es] under an Act of Congress enacted’ after December 1, 1990—and
therefore is governed by § 1658’s 4-year statute of limitations—if the plaintiff’s claim was made
possible by a post-1990 enactment.” Id. at 382.
42 U.S.C § 1983.
“Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the
enactment of this section may not be commenced later than 4 years after the cause of action accrues.”
The Supreme Court has suggested that a § 1983 claim predicated on the violation of a
federal statute enacted after December 1, 1990 is “made possible by” a post-1990 enactment and
is therefore governed by § 1658’s 4-year statute of limitations.
The statute of limitations for a § 1983 claim is generally the applicable state-law
period for personal-injury torts. . . . It may be, however, that this limitations
period does not apply to respondent’s § 1983 claim. In 1990, Congress enacted 28
U.S.C. § 1658(a), which provides a 4-year, catchall limitations period applicable
to “civil action[s] arising under an Act of Congress enacted after” December 1,
1990. In [Jones], we held that this 4-year limitations period applies to all claims
“made possible by a post–1990 [congressional] enactment.” Since the claim here
rests upon violation of the post–1990 [Telecommunications Act of 1996], § 1658
would seem to apply.
City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 123 n.5 (2005). Relying in part on
this language, the Eleventh Circuit Court of Appeals has concluded that § 1658’s 4-year statute
of limitations governs a § 1983 claim for violations of § 1981, as amended in 1991. See Baker v.
Birmingham Bd. of Educ., 531 F.3d 1336, 1338 (11th Cir. 2008) (quoting Jones, 541 U.S. at 382)
(citing Abrams, 544 U.S. at 123 n.5) (“In this case, [plaintiff’s] claims arise under a post-1990
Act of Congress. Were it not for the 1991 Act, [plaintiff’s] complaint would fail to state a claim
under § 1983. . . . [Plaintiff’s] claims against [defendant] were ‘made possible by a post-1990
enactment’ and ‘therefore [are] governed by § 1658’s 4-year statute of limitations.”).
In the instant case, Plaintiffs’ § 1983 claims are predicated on Defendants’ alleged
violations of the post-1990 DPPA. Thus, Plaintiffs’ claims are “made possible by a post-1990
enactment” and “therefore [are] governed by § 1658’s 4-year statute of limitations.” See Jones,
541 U.S. at 382; Abrams, 544 U.S. at 123 n.5; Baker, 531 F.3d at 1338.
B. Accrual of § 1983 Claims
Plaintiffs’ § 1983 claims accrued for statute of limitations purposes at the time the alleged
violations of Plaintiffs’ statutory rights under the DPPA occurred, not at the time Plaintiffs
discovered the facts constituting the alleged violations. This conclusion is consistent with
Supreme Court precedent and with the text and structure of 28 U.S.C. § 1658:
(a) Except as otherwise provided by law, a civil action arising under an Act of
Congress enacted after the date of the enactment of this section may not be
commenced later than 4 years after the cause of action accrues.
(b) Notwithstanding subsection (a), a private right of action that involves a claim
of fraud, deceit, manipulation, or contrivance in contravention of a regulatory
requirement concerning the securities laws, as defined in section 3(a)(47) of the
Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47)), may be brought not later
than the earlier of—
(1) 2 years after the discovery of the facts constituting the violation; or
(2) 5 years after such violation.
Plaintiffs’ § 1983 claims do not involve “fraud, deceit, manipulation, or contrivance in
contravention of a regulatory requirement concerning the securities laws.” Section 1658(b) and
the discovery rule embedded in that subsection are therefore inapplicable to these claims. Rather,
Plaintiffs’ § 1983 claims—like Plaintiffs’ DPPA claims—are governed by § 1658(a).
As the Court noted in its prior Order, § 1658(a) is silent as to when a cause of action
accrues for statute of limitations purposes. However, in 2002, Congress added 28 U.S.C.
§ 1658(b), which enumerates certain types of actions that may accrue upon discovery, and left
§ 1658(a) unchanged. See Merck & Co. v. Reynolds, 559 U.S. 633, 647–48 (2010). “Congress
can convey its refusal to adopt a discovery rule . . . by implication from the structure or text of
the particular statute. . . . Where Congress explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary
legislative intent.” TRW Inc. v. Andrews, 534 U.S. 19, 27–28 (2001). The Court therefore
concludes that Congress did not intend to apply the discovery rule to actions governed by
C. Defendants’ Alleged Violations of the DPPA
For the reasons set forth in the Court’s prior Order, Plaintiffs may seek relief under
§ 1983 only for DPPA violations alleged to have occurred on or after March 5, 2011—four years
prior to the date on which Plaintiffs’ Amended Complaint was filed. See DE 47 at 8–10.
However, it is apparent from the exhibits attached to Plaintiffs’ Amended Complaint that none of
the alleged DPPA violations occurred within that period of time. 5 Accordingly, all of Plaintiffs’
§ 1983 claims against the individual Defendants named in Counts V and VI are time-barred.
Likewise, Count VII against Defendant City of Port St. Lucie—which is predicated on the
individual violations alleged in Counts V and VI—is also barred. 6 Counts V, VI, and VII are
therefore DISMISSED WITH PREJUDICE.
For the foregoing reasons, it is ORDERED and ADJUDGED that Defendants, City of
Port St. Lucie, Meyer Ghobrial, Michael Ryan Connor, Richard Giaccone, Steve Camara, and
William van der Slike’s Motion to Dismiss Plaintiffs’ Amended Complaint [DE 31] is
GRANTED as follows:
1. In addition to Counts I, II, III, and IV, Counts V, VI, and VII of Plaintiffs’ Amended
Complaint [DE 29] are DISMISSED WITH PREJUDICE on statute of limitations
2. The Court will enter Final Judgment in favor of Defendants separately.
3. All pending motions are DENIED AS MOOT, all scheduled hearings are
CANCELLED, and all deadlines are TERMINATED.
The dates of Defendants’ alleged DPPA violations are set forth in the Court’s prior Order. See DE 47 at 11.
To the extent that Plaintiffs’ § 1983 claim against Defendant City of Port St. Lucie might be predicated on
individual DPPA violations that occurred within the statute of limitations period, the Court notes that Plaintiffs have
not alleged any such violations. If any DPPA violations occurred within the statute of limitations period, the Court
cannot fathom why Plaintiffs would not have alleged the same in their Amended Complaint. The Court therefore
concludes that no individual DPPA violations occurred within the statute of limitations period.
4. The Clerk of Court is instructed to CLOSE THIS CASE.
DONE AND ORDERED in Chambers, Fort Pierce, Florida, this 8th day of September,
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Counsel of record
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