Owner-Operator Independent Drivers Association, Inc. et al v. Dunaski et al

Filing 275

MEMORANDUM OPINION AND ORDER. Motion Plaintiffs' Motion for an Order to Show Cause (Doc. No. 250 ) is DENIED.(Written Opinion). Signed by Judge Donovan W. Frank on 10/15/2012. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Owner-Operator Independent Drivers
Association, Inc., a Missouri non-profit
entity; and Stephen K. House, a natural
person,

Civil No. 09-1116 (DWF/LIB)

Plaintiffs,
v.

MEMORANDUM
OPINION AND ORDER

Mark Dunaski, Ken Urquhart, Christopher
Norton, James Ullmer, Doug Thooft, and
John Doe, Personally, Individually, and in
their Official Capacities,
Defendants.

Albert T. Goins, Sr., Esq., Goins Law Offices, Ltd.; and Daniel E. Cohen, Esq., Joyce E.
Mayers, Esq., Paul D. Cullen, Jr., Esq., and Paul D. Cullen, Sr., Esq., The Cullen Law
Firm, counsel for Plaintiffs.
Marsha Eldot Devine, and Thomas C. Vasaly, Assistant Attorneys General, Minnesota
Attorney General’s Office, counsel for Defendants.
Daniel J. Herber, Esq., and Sarah L. Brew, Esq., Faegre Baker Daniels LLP and
Ronald M. Jacobs, Esq., Venable LLP, counsel for Non-Party Commercial Vehicle
Safety Alliance.

INTRODUCTION
This matter is before the Court on a Motion for an Order to Show Cause
(Doc. No. 250) brought by Plaintiffs Owner-Operator Independent Drivers Association,
Inc. (“OOIDA”) and Stephen K. House (“House”) (collectively, “Plaintiffs”) for

purportedly violating the Court’s September 21, 2011 Final Order (“the September 2011
Order”) (Doc. No. 229). For the reasons set forth below, the Court denies the motion.
BACKGROUND
Plaintiffs brought this action against Defendants, who are officers and officials of
the Minnesota State Patrol (“MSP”), under 42 U.S.C. § 1983. In the September 2011
Order, the Court declared that: (1) during vehicle inspections, the MSP could not
“expand the driver portion of the inspection to determine impairment unless they have a
reasonable and articulable suspicion that the driver may be impaired”; (2) the MSP was
prohibited from ordering a driver out of service “unless there is probable cause to believe
that the driver, due to fatigue or illness, is unsafe to drive because there is an imminent
risk to public safety”; and (3) the MSP was enjoined from rescinding or modifying the
procedures established in General Order 10-25-002. 1 (Doc. No. 229 at 4-5.)

1

The Court adopted the two-tiered approach to vehicle inspections contained in
General Order 10-25-002, which provides in relevant part:
V. Procedure
(C)(2) Reasonable articulable suspicion is required to expand the routine
commercial motor vehicle driver portion of the Level 1, Level 2, or Level 3
inspection for the purposes of determining the absence or presence of driver
impairment. . . .
VI. Enforcement
(B)(1) Discretion: Before taking enforcement action for impairment due to
fatigue, Troopers and CVIs [commercial vehicle inspectors] must have
probable cause to believe the following:
a. The driver’s ability to safely operate the commercial vehicle is impaired,
and
b. The driver’s impairment is caused by fatigue, and
(Footnote Continued on Next Page)
2

The Commercial Vehicle Safety Alliance (“CVSA”) is a not-for-profit
organization based in Greenbelt, Maryland, that serves motor carrier safety officials and
industry representatives in the United States, Mexico, and Canada. (Doc. No. 22 at 2;
Doc. No. 253, Morris Decl. ¶ 18, Ex. 6.) The CVSA’s Statement of Purpose provides
that the “CVSA is a leader in this important safety area by providing a framework for
uniformity, compatibility, and reciprocity of inspections and motor carrier safety
throughout its member jurisdictions.” (Doc. No. 254, Cullen Aff. ¶ 2, Ex. B. at 1.) The
CVSA’s goals include “reduc[ing] fatalities, injuries, and incidents by improving safety
compliance of commercial vehicle operations through uniform and reciprocal standards,
practice, and enforcement throughout North America . . . [and] establish[ing] and
maintain[ing] . . . enforcement practices and penalties that provide the basis for
uniformity, compatibility, and reciprocity among CVSA’s member jurisdictions and
industry partners.” 2 (Id.) The purpose of the CVSA’s Driver-Traffic Enforcement
Committee is to “[p]rovide leadership though uniformity and conformity of driver related
safety issues and promote effective traffic enforcement strategies to reduce Commercial
Motor Vehicle (CMV) crashes.” Driver-Traffic Enforcement Committee,
(Footnote Continued From Previous Page)
c. The driver’s ability to safely operate the commercial vehicle is so
impaired as to make continued operation of the commercial vehicle an
imminent risk to public safety.
(Doc. No. 229, Ex. C at 2, 3) (emphasis added).
2

While the parties’ post-hearing letters may be viewed as encouraging, it is difficult
for the Court to understand why the CVSA did not adopt the MSP’s approach set forth in
the September 2011 Order. (Doc. Nos. 270, 271, 272.)
3

http://www.cvsa.org/committees/driver-traffic_enforcement.php (last visited
Sept. 27, 2012).
The MSP and the CVSA have entered into a Memorandum of Understanding
(“MOU”), which states, “Except where a member jurisdiction’s laws preclude
enforcement of a named item, signatories and their authorized governmental employees
party to this Memorandum of Understanding agree to implement policies and procedures
pursuant to the CVSA Bylaws and Operational Policies.” (Cullen Aff., Ex. B at 2.) In
August 2012, the CVSA held a four-day North American Inspectors Championship
(“NAIC”) in Minneapolis, Minnesota, attended by fifty North American roadside
inspectors. NAIC Recognizes Inspectors’ Dedication to Commercial Vehicle Safety,
http://www.cvsa.org/news/2012_press.php#aug14 (last visited Sept. 27, 2012).
MSP Captain Tim Rogotzke (“Captain Rogotzke”) is Minnesota’s voting
representative to the CVSA. (Doc. No. 260, Rogotzke Aff. ¶ 7; Morris Decl. ¶ 17, Ex. 5.)
OOIDA’s Director of Safety and Security Operations, Douglas Morris asserted that he
observed CVSA Executive Committee members possess and discuss the September 2011
Order at the CVSA’s national conference in September 2011. (Morris Decl. ¶¶ 8-10.)
No members of the MSP were part of the CVSA Driver Committee or Executive
Committee, which drafted the April 1, 2012 change to the North American Uniform Out
of Service Criteria (“April 1, 2012 OOS Criteria”). (Id. at ¶¶ 5-6, Doc. No. 260, Ex. A.)
Captain Rogotzke voted against the changes to the proposed OOS Criteria and asserts
that the MSP continues to be in full compliance with the orders of this Court. (Rogotzke
Aff. ¶¶ 7-10, 14-18, 21-26, Ex. B.)
4

On April 1, 2012, the CVSA adopted OOS Criteria on fatigue stating, “When so
fatigued that the driver of a commercial motor vehicle should not continue the trip based
on reasonable, articulable suspicion. (392.3) Declare the driver out-of-service until no
longer fatigued.” (Id. at ¶ 3, Ex. A at 3) (emphasis in original). The OOS Criteria
Policy Statement provides, “Except where state, provincial, territorial, or federal laws
preclude enforcement of a named item, motor carrier enforcement personnel and their
jurisdictions shall comply with these out-of-service violation standards.” (Id. at 2.) The
CVSA’s policies are codified into Minnesota law at Minn. Stat. § 221.605, subd. 3, which
provides: “Out-of-service criteria adopted by reference. The North American Uniform
Driver, Vehicle and Hazardous Materials Out-of-Service Criteria developed and adopted
by the Federal Highway Administration and the Commercial Vehicle Safety Alliance are
adopted in Minnesota.”
Plaintiffs contend that several times prior to the policy’s adoption, the CVSA
received actual notice of the Court’s September 2011 Order, which requires reasonable
suspicion to conduct a vehicle stop and probable cause to issue an out of service order.
(Morris Decl. ¶¶ 4-10.) 3 Without first contacting the MSP to notify it of the

3

As Chief Justice Rehnquist explained in Ornelas v. United States, 517 U.S. 690,
695-96 (1996):
Articulating precisely what “reasonable suspicion” and “probable cause”
mean is not possible. They are commonsense, nontechnical conceptions
that deal with “the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians act.” . . . We have
cautioned that these two legal principles are not “finely-tuned standards”
comparable to the standards of proof beyond a reasonable doubt or of proof
(Footnote Continued on Next Page)
5

inconsistency between the CVSA’s April 1, 2012 OOS Criteria, General Order 10-25002, and the Court’s September 2011 Order, Plaintiffs filed the instant motion on
June 12, 2012. On June 21, 2012, the MSP issued a memorandum to all enforcement
personnel stating:
As you know, the Court’s Order dated September 21, 2011 in the
OOIDA case states that a commercial motor vehicle driver cannot be
ordered out of service unless “there is probable cause to believe that the
driver, due to fatigue or illness, is unsafe to drive because there is an
imminent risk to public safety.” . . .
You may have heard or seen that the CVSA’s Out of Service Criteria
issued on April 1, 2012 states that only “reasonable articulable suspicion” is
necessary to declare a driver out of service for fatigue and/or illness.
This is to remind you that it is the Court’s Order dated September
21, 2011 in the OOIDA case that [the MSP] Troopers and CVIs who
conduct NAST driver inspections should rely upon when impairment
fatigue or illness is at issue.
(Rogotzke Aff. ¶ 3, Ex. D.)

(Footnote Continued From Previous Page)
by a preponderance of the evidence. They are instead fluid concepts that
take their substantive content from the particular contexts in which the
standards are being assessed.
Id. (internal citations omitted). Given the United States Supreme Court’s difficulty in
clearly distinguishing the concepts of reasonable suspicion and probable cause, the Court
is dubious of Plaintiffs’ claim that the MSP’s and the CVSA’s purported violation of its
September 21, 2011 could rise to the level of clear and convincing evidence, which is
required for an order of contempt. See Jake’s Ltd., Inc. v. City of Coates, 356 F.3d 896,
899-900 (8th Cir. 2004).

6

DISCUSSION
As a preliminary issue, the CVSA contends that this Court lacks personal
jurisdiction over it. Federal due process requires that a defendant have “certain minimum
contacts” with the forum state such that “maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Wash., 326 U.S.
310, 316 (1945) (internal quotations omitted). The defendant’s conduct and connection
with the forum state must be such that the defendant should reasonably anticipate being
hailed into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980). It is essential in each case that the defendant has purposefully availed itself of the
privilege of conducting activities within the forum state, thus invoking the benefits and
protections of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)
(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). Regardless of whether a court
employs a general or specific jurisdiction analysis, the Eighth Circuit applies a five-factor
test in determining whether the exercise of personal jurisdiction would pass constitutional
muster: (1) the nature and quality of the defendant’s contacts with the forum state;
(2) the quantity of contacts; (3) the source and connection of the cause of action with
those contacts; and, to a lesser degree, (4) the interest of the forum state; and (5) the
convenience of the parties. Wessels, Arnold & Henderson v. Nat’l Med. Waste, Inc.,
65 F.3d 1427, 1432 (8th Cir. 1995).
The CVSA’s ballot mailing to Captain Rogotzke, the undisputed existence of the
MOU between the MSP and the CVSA, the direct references to the CVSA’s policies in
Minnesota statute, and the CVSA’s four-day conference Minneapolis provide an ample
7

factual basis upon which the Court can conclude that it has specific jurisdiction over the
CVSA. Moreover, the instant motion and facts underlying this action arise directly out of
these knowing and voluntary contacts in Minnesota. The CVSA’s assertions that the lack
of an agency relationship between it and the MSP and the absence of any harm to
Plaintiffs resulting from the April 1, 2012 OOS Criteria precludes specific jurisdiction are
not availing. The Court has personal jurisdiction over the CVSA, which has purposefully
directed activities at individuals and entities in Minnesota.
Personal jurisdiction alone, however, is not enough to render a non-party subject
to the Court’s injunction. Plaintiffs brought the instant motion against the CVSA
pursuant to Fed. R. Civ. P. 65(d)(2), which extends the Court’s injunction to parties and
“other persons who are in active concert or participation with” parties to the action who
receive actual notice of the Court’s order. Rule 65(d)(2) prevents enjoined parties from
“nullify[ing] a decree by carrying out prohibited acts through aiders and abettors.”
Thompson v. Freeman, 648 F.2d 1144, 1147 (8th Cir. 1981) (citation omitted).
Generally, injunctions do not extend to non-parties that did not receive notice and did not
actively participate in a decision to violate the Court’s order. See Pediatric Specialty
Care, Inc. v. Ark. Dep’t of Human Servs., 364 F.3d 925, 933 (8th Cir. 2004); cf. Chicago
Truck Drivers v. Bhd. Labor Leasing, 207 F.3d 500, 507 (8th Cir. 2000). The Eighth
Circuit has held that a person had “actual notice” when an injunction was mailed to him
and he was informed of the order by telephone. Matter of Carter, 691 F.2d 390, 391
(8th Cir. 1982).

8

The MSP and the CVSA assert that Plaintiffs have failed to assert any facts
demonstrating that the CVSA acted together with the MSP to violate the September 2011
Order. The CVSA further asserts that it has not been served with notice of the September
2011 Order and argues that the motion is not ripe for adjudication because Plaintiffs have
not shown that they were harmed by the April 1, 2012 OOS Criteria.
Plaintiffs argue, based on Minn. Stat. § 221.605, subd. 3, that the MSP is obligated
to adopt the CVSA’s policies as a matter of law. They also contend that the MOU
between the MSP and the CVSA constitutes acting in concert sufficient to bring the
CVSA under the jurisdiction of the Court’s September 2011 Order pursuant to Rule 65.
The MSP and the CVSA point to the language “member jurisdiction’s laws” from the
MOU and “state, provincial, territorial, or federal laws” from the OOS Criteria Policy
Statement in arguing that the MSP is exempt from following the April 1, 2012 OOS
fatigue criteria because following the new policy would cause it to violate this Court’s
Order (federal law). (Cullen Aff., Ex. B at 2; Rogotzke Aff., Ex. A. at 2.)
Though the Court is satisfied that the CVSA had notice of its September 2011
Order, Plaintiffs have not met their burden to demonstrate that the MSP and the CVSA
were acting in concert. Captain Rogotzke, the MSP’s representative to the CVSA, voted
against the April 1, 2012 OOS change. Plaintiffs have asserted no facts to demonstrate
that the CVSA acted together with the MSP to violate the Court’s Order. Moreover, the
MSP’s June 21, 2012 memorandum and September 25, 2012 letter to the CVSA’s
Executive Director demonstrate the MSP’s continued commitment to complying with the
Court’s orders. Plaintiffs’ assertion that Minn. Stat. § 221.605, subd. 3 prevents the MSP
9

from following the jurisdictional exemptions contained in the MOU and the CVSA OOS
Criteria Policy Statement is unfounded and illogical. Nothing in the text of either
exemption suggests that the orders of this Court are distinguishable from state statutory
or case law. The Court sees no reason to depart from the black letter rule of
interpretation that the phrase “jurisdiction’s laws” refers to both state and federal
statutory and case law. Plaintiffs failed to satisfy their burden under Rule 65(d) to render
the CVSA subject to this Court’s September 2011 Order, and the Court finds no basis
upon which to hold the MSP in contempt.
CONCLUSION
It is difficult for the Court to understand why the CVSA, the central mission of
which is to achieve uniform national safety standards, rejected OOIDA’s proposal in
September 2011 to adopt fatigue standards congruent with those litigated by the MSP.
The CVSA Executive Committee’s decision to delete the reasonable suspicion standard
from the April 1, 2012 OOS Criteria is, in the Court’s view, a step backward because it
eliminates the specificity in fatigue standards necessary to prevent potential constitutional
violations. The decision of the CVSA is destined to create more litigation while
discouraging uniform national safety standards.
The Court continues to believe that a global resolution and settlement of these
issues by bringing all parties, including officials from the Federal Motor Carrier Safety
Administration, to the table will not only serve the best interests of all parties, but will
promote uniform national safety standards, and, in so doing, will serve the public interest.
For that reason, the Court encourages the parties to engage in a constructive dialogue.
10

ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiffs’ Motion for an Order to Show Cause (Doc.
No. [250]) is DENIED.
Dated: October 15, 2012

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

11