Rasmusson v. Bloomington, City of et al
Filing
154
MEMORANDUM OPINION AND ORDER: 1. Defendants Chisago County, Pine County, Jay Belisle, Blake Fjosne, and Rebecca Lawrence's Motion to Dismiss [Doc. No. 106] is GRANTED; 2. Defendant Dan Vosika's Motion to Dismiss [Doc. No. 121] is GRANTED ; 3. Defendant Millicent Tompa's Motion to Dismiss or for Judgment on the Pleadings [Doc. No. 97] is GRANTED; 4. Plaintiff's First Amended Complaint (Third Revision) [Doc. No. 90] is DISMISSED with prejudice as to Defendants Chisago Coun ty, Jay Belisle, Rebecca Lawrence, Dan Vosika, and Millicent Tompa; and 5. Counts II, III, and IV of Plaintiff's First Amended Complaint (Third Revision) [Doc. No. 90] are DISMISSED with prejudice as to Defendants Pine County and Blake Fjosne (Written Opinion). Signed by Judge Susan Richard Nelson on 1/10/14. (LPH)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Anne Marie Rasmusson,
Case No. 12-cv-0632 (SRN/JSM)
Plaintiff,
v.
MEMORANDUM OPINION
AND ORDER
Chisago County, et al.,
Defendants.
Jonathan A. Strauss, Lorenz F. Fett, Jr., Sonia Miller-Van Oort, and Kenneth H. Fukuda,
Sapientia Law Group PLLC, 12 South Sixth Street, Suite 1242, Minneapolis, MN 55402,
on behalf of Plaintiff.
Margaret A. Skelton and Timothy A. Sullivan, Ratwik, Roszak & Maloney, P.A., 730
Second Avenue South, Suite 300, Minneapolis, Minnesota 55402, for Defendants
Chisago County, Pine County, Jay Belisle, Blake Fjosne, Rebecca Lawrence, and Dan
Vosika.
Philip G. Villaume and Lisa McLeod Lofquist, Villaume & Schiek, P.A., 2051 Killebrew
Drive, Suite 611, Bloomington, Minnesota 55425, for Defendant Millicent Tompa.
SUSAN RICHARD NELSON, United States District Judge
I.
INTRODUCTION
This matter is before the Court on Defendants Chisago County, Pine County, Jay
Belisle, Blake Fjosne, and Rebecca Lawrence’s Motion to Dismiss [Doc. No. 106];
Defendant Dan Vosika’s Motion to Dismiss [Doc. No. 121]; and Defendant Millicent
Tompa’s 1 Motion to Dismiss or for Judgment on the Pleadings [Doc. No. 97]. For the
reasons set forth below, the Court grants these motions.2
II.
BACKGROUND
Plaintiff Anne Marie Rasmusson (“Plaintiff”) initially filed this action on March 12,
2012. (See Compl. [Doc. No. 1].) On March 15, 2013, Plaintiff filed a First Amended
Complaint (Third Revision) (“Amended Complaint”) in which she added new parties,
including Defendants Chisago County, Pine County, Jay Belisle, Blake Fjosne, Rebecca
Lawrence, Dan Vosika (collectively, the “County Defendants”), and Millicent Tompa.
(First Amended Complaint (Third Revision) (“Am. Compl.”) ¶¶ 5–11, 13 [Doc. No. 90].)
In Count I of her Amended Complaint, Plaintiff asserts a claim under the Driver’s Privacy
Protection Act (“DPPA”), 18 U.S.C. § 2721, et seq., against all defendants. (Id. ¶¶ 95–112.)
In Counts II and III, Plaintiff brings claims under 42 U.S.C. § 1983 against the individual
defendants and the entity and supervisor defendants, respectively. (Id. ¶¶ 113–49.) And, in
Count IV, Plaintiff asserts a claim for common law invasion of privacy against all
defendants. (Id. ¶¶ 150–55.)
1
Based on statements made by counsel for Defendant Millicent Tompa at the
hearing on this matter and based on Defendant Tompa’s motion papers, it appears that
Defendant Tompa’s correct last name is “Kirby.” However, for purposes of consistency
with the Amended Complaint and the docket in this matter, the Court will continue to
refer to her as “Defendant Tompa.”
2
In their proposed order, Defendants Chisago County, Pine County, Belisle, Fjosne,
Lawrence, and Vosika, contemplate that the Court’s granting of their motion will dispose
of all claims except for a single claim under Count I against Defendant Fjosne. However,
they do not contest Plaintiff’s allegation that Fjosne was an employee of Pine County at
the time of the acts alleged in the First Amended Complaint. (See Am. Compl. ¶ 9 [Doc.
No. 90].) Therefore, as discussed herein, the Court finds that Plaintiff’s claim against
Defendant Fjosne under Count I and Plaintiff’s claim against Pine County under Count
2
Plaintiff’s claims are centered on allegations that law enforcement personnel viewed
her private driver’s license information in the Minnesota Department of Vehicle Services
(“DVS”) driver’s license database without a legitimate purpose. (See id. ¶¶ 1, 34, 95–155.)
Specifically, Plaintiff alleges that she “began having suspicions that law enforcement
officers were taking an uncomfortable interest in her starting approximately in 2007”
because “numerous officers who asked her for dates knew where she lived or what kind of
car she drove.” (Id. ¶ 37.) In addition, Plaintiff alleges that, on May 5, 2010, she was pulled
over for a potential speeding violation and three other squad cars arrived and left without
performing any law enforcement duties. (Id. ¶ 39.) Based on these suspicions and
incidents, Plaintiff contacted the Minnesota Department of Public Safety (“DPS”) and asked
for the identity of officers who had run her name on the DVS database. (Id. ¶ 41.) On
August 30, 2011, Plaintiff alleges that she learned from DPS that officers from 18 different
departments and agencies had accessed her driver’s license information since 2007. (Id.
¶ 42.) Plaintiff claims that, during discovery in this case, she learned that the defendants at
issue in the present motions accessed her driver’s license information without a permissible
reason as follows:
I—to the extent that it is related to the actions of Defendant Fjosne—survive.
3
Entity
Chisago County
Individual
defendant
Jay Belisle
Pine County
02/04/06
02/08/06
02/23/06
04/13/06
04/11/11
07/11/06
11/16/06
11/22/06
12/07/06
06/15/06
04/17/07
Blake Fjosne
Rebecca Lawrence
Dan Vosika
Federal Bureau of
Investigation
Date accessed
Millicent Tompa
Number of times
accessed
3
2
1
1
1
1
2
1
1
1
1
(Id. ¶ 53 & Ex. A.)
Plaintiff describes the driver’s license information at issue in three paragraphs in her
Amended Complaint. First, she alleges that the law enforcement officers accessed her
“private personal and highly-restricted personal information from her State-issued driver’s
license including her home address, color photograph or image, and driver identification
number.” (Id. ¶ 35.) Later, she states that she “provided personal information to the DPS
including her address, color photograph, date of birth, weight, height and eye color for the
purpose of acquiring and utilizing a State of Minnesota driver’s license.” (Id. ¶ 96.) She
also asserts that the DPS database included her driving record. (Id. ¶ 97.)
Defendants Pine County, Chisago County, Belisle, Fjosne, and Lawrence filed a
partial motion to dismiss Plaintiff’s Amended Complaint [Doc. No. 106] and a supporting
memorandum [Doc. No. 108]. Defendant Vosika later joined in the motion [Doc. No. 121].
The County Defendants argue that the majority of Plaintiff’s claims are barred by the
applicable statutes of limitations, (see Defs. Pine County, Chisago County, Belisle, Fjosne,
4
and Lawrence’s Mem. of Law in Supp. of Partial Mot. to Dismiss (“County Defs.’ Supp.
Mem.”) at 5–17 [Doc. No. 108]); DPPA violations are not actionable through § 1983,
(see id. at 17–19); the facts do not state the existence of an actionable violation of
Plaintiff’s constitutional rights enforceable through § 1983, (see id. at 19–27); § 1983
cannot be used to enforce violations of state law, (see id. at 27); and Plaintiff has failed to
state a common law invasion of privacy claim, (see id. at 27–28). Plaintiff filed an
opposition memorandum [Doc. No. 122], along with two affidavits and several exhibits
[Doc. Nos. 123–24], and County Defendants filed a reply brief [Doc. No. 132].
In addition, Defendant Tompa filed a motion to dismiss or for judgment on the
pleadings [Doc. No. 97] and a supporting memorandum 3 [Doc. No. 133]. She argues that
she is entitled to qualified immunity from liability, (see Def. Tompa’s Mem. in Supp. of
Mot. to Dismiss or for J. on the Pleadings (“Def. Tompa’s Supp. Mem.”) at 10–14 [Doc.
No. 133]); Plaintiff’s DPPA and common law invasion of privacy claims are barred by the
applicable statutes of limitations, (see id. at 14–19, 24–25); and Plaintiff has failed to state
3
Plaintiff argues that Defendant Tompa’s motion to dismiss should be denied for
failure to comply with Local Rule 7.1. (See Pl.’s Mem. of Law in Opp. to Mot. to
Dismiss by Def. Tompa (“Pl.’s Opp. to Def. Tompa”) at 6–9 [Doc. No. 142].) Plaintiff
argues that Defendant Tompa failed to simultaneously file her memorandum of law with
her motion in accordance with Local Rule 7.1(c), and that she failed to meet and confer
as required by Local Rule 7.1(a). (See id.) Defendant Tompa filed her motion and notice
of motion on April 19, but she did not file her supporting memorandum until May 31.
While this separate filing technically violates Rule 7.1(c)’s requirement that the
documents be filed simultaneously, the memorandum was filed the requisite 42 days
prior to the hearing. In addition, Defendant Tompa did file a belated meet-and-confer
statement [Doc. No. 147], in which she indicated that she engaged in a meet-and-confer
with opposing counsel on June 16 and 24. Thus, the Court finds that Plaintiff has not
been so prejudiced as to warrant denial of Defendant Tompa’s motion on these bases or
an award of attorney’s fees as requested by Plaintiff, and the Court will consider the
5
a common law invasion of privacy claim, (see id. at 26–27). 4 Plaintiff filed an opposition
memorandum [Doc. No. 142] and an affidavit [Doc. No. 143], and Defendant Tompa filed a
reply brief [Doc. No. 146]. Both the County Defendants’ and Defendant Tompa’s motions
were heard on July 12, 2013 [Doc. No. 150].
III.
DISCUSSION
A.
Standard of Review
Defendants move to dismiss Plaintiff’s Amended Complaint, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which
relief can be granted. Defendant Tompa also moves for judgment on the pleadings pursuant
to Rule 12(c). When evaluating a motion to dismiss, the Court assumes the facts in the
Complaint to be true and construes all reasonable inferences from those facts in the light
most favorable to Plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). However,
the Court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of
Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions Plaintiff draws
from the facts pled. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). In
addition, the Court ordinarily does not consider matters outside the pleadings on a motion to
dismiss. See Fed. R. Civ. P. 12(d). The Court may, however, consider exhibits attached to
the complaint and documents that are necessarily embraced by the pleadings, Mattes v.
merits of Defendant Tompa’s motion.
4
Defendant Tompa also argued that Plaintiff failed to state a claim against her under
§ 1983. (See Def. Tompa’s Supp. Mem. at 20–23 [Doc. No. 133].) However, Plaintiff’s
§ 1983 claim against Defendant Tompa (Count II) has since been dismissed with
prejudice pursuant to the parties’ stipulation [Doc. No. 145]. Therefore, the Court will
not address Defendant Tompa’s arguments regarding § 1983.
6
ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003), and may also consider public
records. Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).5
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative level.”
Id. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” will not pass muster. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550
U.S. at 556. These same standards apply to a motion for judgment on the pleadings.
Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009); Gallagher v. City of Clayton,
699 F.3d 1013, 1016 (8th Cir. 2012).
B.
The Claims
Plaintiff has failed to state a cognizable claim for relief in Counts II through IV of
her Amended Complaint, and the applicable statute of limitations bars most of the claims
5
In opposition to the County Defendants’ motion to dimiss, Plaintiff submitted
copies of the following documents: a pdf downloaded from the DPS website, (Strauss
Aff., Ex. A [Doc. No. 123-1]); several letters between counsel for Plaintiff and various
entities, (id., Exs. B–J); a letter from the Minnesota Department of Natural Resources to a
Minnesota resident unrelated to this case, (id., Ex. K); and an affidavit of an individual
unrelated to this case, (see Prozinski Aff. [Doc. No. 124]). The Court may properly
consider the document obtained from the DPS website because it is a public record.
However, the Court will not consider the remainder of the documents because they are
neither public records nor the type of documents that are considered to be necessarily
embraced by the pleadings. See Mattes, 323 F.3d at 697 n.4 (finding that a contract upon
7
asserted against the County Defendants and Defendant Tompa in Count I. The Court will
address the claims in that order.
1.
Section 1983 Claims
Counts II and III of Plaintiff’s Amended Complaint state causes of action under 42
U.S.C. § 1983. (Am. Compl. ¶¶ 113–49 [Doc. No. 90].) Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State . . . , subjects, or causes to be subjected, any citizen of
the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .
In Count II, Plaintiff alleges that the individual defendants in this lawsuit, acting under color
of state law, violated her statutory rights under the DPPA, her constitutional rights under the
Fourth and Fourteenth Amendments, and her rights under the laws of the State of
Minnesota. (See Am. Compl. ¶¶ 115–22.) In Count III, Plaintiff alleges that the entity and
supervisor defendants are liable for the individual defendants’ custom and practice of
improperly accessing information; their own failure to monitor and enforce the rules; and
their failure to train, supervise, and impose proper discipline. (See id. ¶¶ 130–36.)
The County Defendants assert four arguments relating to Plaintiff’s § 1983 claims.
First, they argue that the § 1983 claims are barred by the applicable statute of limitations.
(See County Defs.’ Supp. Mem. at 16 [Doc. No. 108].) Second, they argue that Plaintiff’s
§ 1983 claims based on their alleged DPPA violations fail because the DPPA is not
separately enforceable under § 1983. (See id. at 17–19.) Third, the County Defendants
which a claim was based was embraced by the pleadings).
8
assert that Plaintiff’s § 1983 claims based on alleged violations of her constitutional rights
fail because Plaintiff has not stated a legally-cognizable deprivation of a constitutional right.
(See id. at 19–27.) Finally, the County Defendants argue that Plaintiff’s § 1983 claims
based on violations of Minnesota law fail because § 1983 cannot be used to enforce state
law. (See id. at 27.) Because the Court agrees with the County Defendants’ latter three
arguments, each of which is dispositive, it declines to address the statute of limitations issue.
a.
DPPA basis
Plaintiff’s § 1983 claims fail to the extent that they are based on alleged violations of
the DPPA. As noted above, a plaintiff may generally use § 1983 to enforce federal statutory
rights. In order to determine “whether a statute creates an individually enforceable federal
right,” a plaintiff must demonstrate that “‘(1) Congress intended the statutory provision to
benefit the plaintiff; (2) the asserted right is not so vague and amorphous that its
enforcement would strain judicial competence; and (3) the provision clearly imposes a
mandatory obligation upon the states.’” Midwest Foster Care & Adoption Ass’n v.
Kincade, 712 F.3d 1190, 1195 (8th Cir. 2013) (citation omitted). A statute that meets these
criteria is presumed to be enforceable under § 1983. Id. at 1195–96 (citing Blessing v.
Freestone, 520 U.S. 329, 341 (1997)). However, “[a defendant] can rebut this presumption
by showing either that Congress explicitly foreclosed a remedy under § 1983 or implicitly
did so, ‘by creating a comprehensive enforcement scheme that is incompatible with
individual enforcement’” under § 1983. Id. at 1196 (quoting Blessing, 520 U.S. at 341); see
Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999) (“Courts should presume
9
that Congress intended that the enforcement mechanism provided in the statute be
exclusive.”).
According to the U.S. Supreme Court, in the cases in which it has held that a § 1983
claim is available for violation of a federal statute, the federal statute provided no private
judicial remedy. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121 (2005)
(citations omitted). However, “the existence of a more restrictive private remedy for
statutory violations has been the dividing line between those cases in which [the Court has]
held that an action would lie under § 1983 and those in which [the Court has] held that it
would not.” Id. For example, in City of Rancho Palos Verdes v. Abrams, the Court found
that enforcement of the Telecommunications Act (“TCA”) through § 1983 is precluded
because the TCA has a shorter limitations period than § 1983, requires judicial review on an
expedited basis, and does not provide for attorney’s fees and costs. Id. at 122–27.
Even if Plaintiff were able to demonstrate that the DPPA constitutes a protectable
“right” under the relevant three-prong test and, therefore, that it is presumptively
enforceable under § 1983, that presumption is rebutted because Congress has explicitly
foreclosed a remedy under § 1983 by creating a comprehensive enforcement scheme. The
DPPA makes the following remedies available in a civil action: (1) actual damages (not
less than liquidated damages of $2,500), (2) punitive damages, (3) reasonable attorneys’
fees and costs, and (4) other appropriate equitable relief. 18 U.S.C. § 2724(b). It also
provides for criminal fines and civil penalties. Id. § 2723.
10
In addition, the private remedy contained in the DPPA’s comprehensive enforcement
scheme is more restrictive than that provided under § 1983, in terms of the category of
persons from whom a plaintiff may seek a remedy and the period of time in which a
plaintiff may seek a remedy. First, like the DPPA, § 1983 allows for recovery of damages
and injunctive relief, as well as costs and a reasonable attorney’s fee, in a private cause of
action. See 42 U.S.C. §§ 1983, 1988(b). However, while an individual may seek injunctive
relief under § 1983 against a state official acting in his official capacity, the DPPA expressly
excludes civil suits against states and state agencies. See Heartland Acad. Cmty. Church v.
Waddle, 427 F.3d 525, 530 (8th Cir. 2005) (stating, in a § 1983 case, that there is an
exception to sovereign immunity for state officials acting in their official capacity “where
the relief sought is prospective and not compensatory”); 18 U.S.C. § 2724(a) (stating that a
“person” who violates the Act shall be liable); id. § 2725(2) (stating that, for purposes of the
DPPA, “‘person’ means an individual, organization or entity, but does not include a State or
agency thereof”).
Second, as discussed in more detail below, DPPA claims are subject to a four-year
statute of limitations. On the other hand, the parties agree that the § 1983 claims in this case
are subject to a six-year statute of limitations. (County Defs.’ Supp. Mem. at 5–6 [Doc.
No. 108]; Pl.’s Mem. of Law in Opp. to Mot. to Dismiss by Defs. Pine County, Chisago
County, Belisle, Fjosne, Lawrence, and Vosika (“Pl.’s Opp. to County Defs.”) at 21
[Doc. No. 122].) Thus, allowing Plaintiff to pursue her DPPA claim through § 1983
11
would allow her to enlarge the applicable statute of limitations. Accordingly, like the
TCA in City of Rancho Palos Verdes, the DPPA cannot be enforced through § 1983.
This Court’s determination that Plaintiff may not use § 1983 to enforce her rights
under the DPPA is in line with decisions from several other courts, including multiple
district courts within the Eighth Circuit. For example, in Roberts v. Source for Public
Data, the U.S. District Court for the Western District of Missouri dismissed the plaintiffs’
claim because, “[g]iven [the DPPA’s] comprehensive remedial scheme, the [c]ourt must
presume that Congress intended that the enforcement scheme it created in the DPPA
would be the exclusive remedy for violations, precluding resort to § 1983.” 606 F. Supp.
2d 1042, 1046 (W.D. Mo. 2008). And, in Kraege v. Busalacchi, the U.S. District Court
for the Western District of Wisconsin found that § 1983 allows for injunctive relief
against state officials in their official capacities and, therefore, that the plaintiffs’ § 1983
claim to enforce their rights under the DPPA was barred because the DPPA provided a
more restrictive private remedy. 687 F. Supp. 2d 834, 840 (W.D. Wis. 2009). Similarly,
in Nelson v. Jesson, a judge in this District noted that state officials acting in their official
capacity cannot be held liable for injunctive relief under the DPPA and went on to hold
that “the DPPA’s remedial scheme, which is both comprehensive and more restrictive
than § 1983, expresses Congress’s intent to preclude other means of enforcement.” Civ.
No. 13-340 (RHK/JJK), 2013 WL 5888235, at *7 (D. Minn. Nov. 1, 2013); see also
Kiminski v. Hunt, Civ. No. 13-185 (JNE/TNL), Order [Doc. No. 66], at *24 (D. Minn.
Sept. 20, 2013) (finding that the DPPA precludes a § 1983 action because the inability to
12
sue state officials in their official capacity under the DPPA is “significant, especially in
light of the statute’s overall comprehensive remedial scheme”).
Plaintiff urges the Court to follow two cases in which the courts have determined
that the DPPA is separately enforceable under § 1983: Collier v. Dickinson and
Arrington v. Richardson. (See Pl.’s Opp. to County Defs. at 28 [Doc. No. 122].) In
Collier, the Eleventh Circuit Court of Appeals determined that the relief provided under
the DPPA and § 1983 is “complementary” rather than “conflicting.” 477 F.3d 1306,
1311 (11th Cir. 2007). The court did not examine the nature of the available remedies;
instead, it merely stated generally that the DPPA did not create so many statutory
remedies as to make it unlikely that Congress intended to preserve a § 1983 claim. Id. In
Arrington, the U.S. District Court for the Northern District of Iowa similarly found that
the remedial schemes of the two statutes are complementary. 660 F. Supp. 2d 1024, 1035
(N.D. Iowa 2009). In fact, that court found that the DPPA actually provides “more
extensive” remedies than those available under § 1983. Id. at 1032. Thus, the court
noted that Congress did not preclude a plaintiff from obtaining a remedy under the DPPA
that is otherwise available under § 1983. Id. at 1035.
This Court respectfully disagrees with the reasoning set forth in Collier and
Arrington because neither court addressed the fact that, under the DPPA, a plaintiff is
precluded from obtaining relief from state officials acting in their official capacity (as
opposed to the limited availability of such relief under § 1983), or the difference between
the statutes of limitations applicable to each cause of action. As noted above, the Court
13
finds that these considerations, along with the comprehensive nature of the DPPA’s
remedial scheme, indicate Congress’ intent to foreclose a remedy under § 1983. Therefore,
Plaintiff’s § 1983 claims as stated in Counts II and III of the Amended Complaint fail to the
extent that they are based on an underlying DPPA violation.
b.
Federal constitutional bases
Plaintiff’s § 1983 claims also fail to the extent that they are based on alleged
violations of her constitutional rights. “The essential elements of a constitutional claim
under § 1983 are (1) that the defendant acted under color of state law, and (2) that the
alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.”
L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, 673 F.3d 799, 805 (8th Cir. 2012) (citation
omitted). Here, Plaintiff alleges that the individual County Defendants, acting under color
of state law, violated her Fourteenth Amendment right to privacy, as well as her Fourth
Amendment right to be free from an unconstitutional search, by obtaining her personal
driver’s license information without a legitimate purpose. (See Am. Compl. ¶¶ 116–18
[Doc. No. 90].) However, the facts alleged by Plaintiff do not raise a right to relief under
either basis.
As for the Fourteenth Amendment:
“[T]o violate the constitutional right of privacy the information disclosed
must be either a shocking degradation or an egregious humiliation . . . , or a
flagrant bre[a]ch of a pledge of confidentiality which was instrumental in
obtaining the personal information.” . . . . “To determine whether a particular
disclosure satisfies this exacting standard, [the court] must examine the nature
of the material . . . to assess whether the person had a legitimate expectation
that the information would remain confidential while in the state’s
possession.”
14
Van Zee v. Hanson, 630 F.3d 1126, 1128 (8th Cir. 2011) (internal citations omitted). Thus,
the “protection against public dissemination of information is limited and extends only to
highly personal matters representing ‘the most intimate aspects of human affairs.’” Eagle v.
Morgan, 88 F.3d 620, 625 (8th Cir. 1996) (citation omitted). According to the Eighth
Circuit, these standards “set a high bar . . . and many disclosures, regardless of their nature,
will not reach the level of a constitutional violation.” Cooksey v. Boyer, 289 F.3d 513, 516
(8th Cir. 2002). Similar to the Fourteenth Amendment standards, “[a] search occurs under
the Fourth Amendment when . . . ‘the government violates a subjective expectation of
privacy that society recognizes as reasonable.’” Arnzen v. Palmer, 713 F.3d 369, 372 (8th
Cir. 2013) (quoting Kyllo v. United States, 533 U.S. 27, 31–33 (2001)).
The few courts that have analyzed these standards in the context of driver’s license
information have found that an individual does not have a legitimate expectation of privacy
in such information. For example, in Travis v. Reno, the court concluded that there is no
legitimate expectation of confidentiality—and, therefore, no constitutional right to
privacy—in an individual’s name, address, telephone number, photograph, social security
number, driver identification number, and medical or disability information. 12 F. Supp. 2d
921, 925 (W.D. Wis. 1998), rev’d on other grounds, 163 F.3d 1000 (7th Cir. 1998); see also
Pryor v. Reno, 171 F.3d 1281, 1288 n.10 (11th Cir. 1999) (stating that “there is no
constitutional right to privacy in motor vehicle record information”), rev’d on other
grounds, 528 U.S. 1111 (2000); Condon v. Reno, 155 F.3d 453, 464 (4th Cir. 1998) (stating
that motor vehicle record information “is the very sort of information to which individuals
15
do not have a reasonable expectation of privacy”), rev’d on other grounds, 528 U.S. 141
(2000). Similarly, in Kiminski v. Hunt, a judge within this District determined that “[n]one
of that data qualifies as so extremely personal as to trigger constitutional—as opposed to
statutory—privacy protections.” Civ. No. 13-185 (JNE/TNL), Order [Doc. No. 66], at *25
(noting that “[n]ot even statutory protection existed for [driver’s license record
information] until 1994, when Congress passed the DPPA”); see also Nelson, 2013 WL
5888235, at *5 (finding no reasonable expectation of privacy in the information the
plaintiff alleged was contained in his motor vehicle records, which included his name,
date of birth, driver’s license number and status, address, photograph, weight, height, and
eye color).
Plaintiff argues that the Supreme Court’s decision in Maracich v. Spears, 133 S.
Ct. 2191 (2013), demonstrates “the importance of the privacy rights created by the
DPPA.” 6 (Pl.’s Opp. to Def. Tompa at 19 [Doc. No. 142].) In that case, the Court
considered whether an attorney’s solicitation of clients constitutes a permissible purpose
for disclosure under the DPPA. See Maracich, 133 S. Ct. at 2195–96. In doing so, it
noted that:
If (b)(4) were read to permit disclosure of personal information whenever any
connection between the protected information and a potential legal dispute
could be shown, it would undermine in a substantial way the DPPA's purpose
of protecting an individual's right to privacy in his or her motor vehicle
records.
6
Plaintiff makes this argument in regard to whether Defendant Tompa asserted a
violation of a federal statutory right for purposes of a qualified immunity analysis. (See
Pl.’s Opp. to Def. Tompa at 15–21 [Doc. No. 142].) Even so, the Court will address the
relevance of this case to determining the existence of a constitutional right.
16
....
An additional reason to hold that (b)(4) does not permit solicitation of clients
is because the exception allows use of the most sensitive kind of information,
including medical and disability history and Social Security numbers. To
permit this highly personal information to be used in solicitation is so
substantial an intrusion on privacy it must not be assumed, without language
more clear and explicit, that Congress intended to exempt attorneys from
DPPA liability in this regard.
Id. at 2200, 2202. However, Maracich is not dispositive because the Court did not address
whether an individual has a constitutional right to privacy in driver’s license record
information. That issue was not before the Court, and the statements regarding privacy that
the Court did make cannot be understood to refer to a constitutional right rather than to a
statutory right.
While the Eighth Circuit has not ruled on this exact issue, either, it has determined
that the disclosure of similar information is insufficient to state a claim for a violation of the
constitutional right to privacy. In McCaslin v. Campbell, the court determined that the
plaintiff had not asserted a constitutional violation despite allegations that her driver’s
license information, social security number, bank account numbers, criminal record,
previous landlords, previous names, and personal references were disclosed without her
consent. No. 95-4041, 1997 WL 148824, at *1 (8th Cir. Apr. 2, 1997). The court found
that much of the information was of public record and that “the remaining information did
not involve the most intimate aspects of human affairs.” Id. at *2. Therefore, the court
affirmed the district court’s dismissal of the plaintiff’s claim under Rule 12(b)(6). Id. at *1;
see also Cooksey, 289 F.3d at 516 (finding that disclosure of the fact that an individual was
17
receiving psychological treatment for stress was “neither shockingly degrading [n]or
egregiously humiliating”); Eagle, 88 F.3d at 628 (“Because [the plaintiff] has no legitimate
expectation of privacy in the contents of his criminal history file, [the court] cannot agree
that the officers violated his constitutional right when they engaged in an unwarranted
search of this material.”).
In this case, Plaintiff alleges a privacy interest in her driver’s license information.
However, the only information Plaintiff claims was accessed through her driver’s license
record was her address, color photograph, date of birth, weight, height, eye color, driver
identification number, and driving record. With the exception of Plaintiff’s driving record,
all of this information is included on the face of a driver’s license, and individuals show
their driver’s licenses to strangers on a daily basis. Moreover, much of this information can
be obtained by looking at an individual or by reviewing public records. Thus, the disclosure
of this information cannot be considered shockingly degrading or egregiously humiliating.
Nor could Plaintiff, based on the public nature of this information, legitimately expect that it
would remain confidential. Accordingly, as determined in Travis, Kiminski, and McCaslin,
this information does not warrant constitutional protection because an individual does not
have a legitimate expectation of privacy in it.
However, Plaintiff argues that, in addition to the information mentioned above,
Minnesota driver’s license records contain highly confidential medical information such as
seizure, diabetes, and vision information, and that such information has long been
recognized as protected. (See Pl.’s Opp. to County Defs. at 38–39 [Doc. No. 122].)
18
Although it is doubtful whether even this information could create a recognizable privacy
interest, Plaintiff’s claim still fails because she does not allege that such information was
obtained about her. Nor does Plaintiff’s argument that the alleged accesses were flagrant
breaches of a pledge of confidentiality save her claim. (See id. at 35.) Nowhere does she
allege that such confidentiality was crucial to her decision to supply her information.
Rather, she merely states that she provided personal information to the DPS in order to
obtain a driver’s license. Accordingly, Plaintiff has failed to state a claim against the
individual County Defendants under § 1983 because she has not alleged the existence of a
legally-cognizable deprivation of a constitutional right.
As noted above, Plaintiff also seeks to impose supervisory liability under § 1983 on
the “entity” and “supervisor” Defendants for an alleged failure to monitor and enforce the
rules or to train, supervise, and impose proper discipline. (See Am. Compl. ¶¶ 126–49
[Doc. No. 90].) However, because Plaintiff has failed to state a claim for an underlying
constitutional violation by any individual County Defendant, Plaintiff has also failed to state
a claim as to the entity and supervisor County Defendants. See Brockinton v. City of
Sherwood, 503 F.3d 667, 673 (8th Cir. 2007) (noting that a county sheriff could not be held
individually liable under § 1983 on a supervisory theory where the allegations did not
establish an underlying constitutional violation by the county deputy); McCoy v. City of
Monticello, 411 F.3d 920, 922 (8th Cir. 2005) (“[I]n order for municipal liability to attach,
individual liability first must be found on an underlying substantive claim.”). Therefore, to
19
the extent that Plaintiff’s § 1983 claims as stated in Counts II and III of the Amended
Complaint are based on an underlying constitutional violation, those claims fail.
c.
Minnesota state law bases
Finally, Plaintiff’s § 1983 claims in Counts II and III that are grounded on violations
of Minnesota state law also fail. Plaintiff does not identify in her Amended Complaint
which of “the laws of the State of Minnesota” she seeks to enforce through § 1983. (Am.
Compl. ¶¶ 116, 118 [Doc. No. 90].) However, as noted by the Eighth Circuit, “a violation
of state law, without more, does not state a claim under the federal Constitution or 42 U.S.C.
§ 1983.” Bagley v. Rogerson, 5 F.3d 325, 328 (8th Cir. 1993) (citation omitted).
For the foregoing reasons, Counts II and III of Plaintiff’s Amended Complaint fail to
state a claim for relief against the County Defendants and must be dismissed.
2.
Common Law Invasion of Privacy
The County Defendants and Defendant Tompa seek dismissal of Count IV of
Plaintiff’s Amended Complaint, which asserts a common law invasion-of-privacy claim for
intrusion upon seclusion. As a threshold matter, the Court notes that Plaintiff has failed to
address that portion of Defendants’ motions. Therefore, Defendants’ motions are
unrebutted in this regard. While the Court could dismiss Count IV on this basis, it will
briefly address Plaintiff’s claim on the merits.
Under Minnesota law, “[i]ntrusion upon seclusion occurs when one ‘intentionally
intrudes, physically or otherwise, upon the solitude or seclusion of another or his private
affairs or concerns . . . if the intrusion would be highly offensive to a reasonable person.’”
20
Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233 (Minn. 1998) (quoting Restatement
(Second) of Torts § 652B (1977)). “The tort has three elements: (a) an intrusion; (b) that is
highly offensive; and (c) into some matter in which a person has a legitimate expectation of
privacy.” Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 744 (Minn. Ct. App.
2001) (citation omitted).
Minnesota courts have indicated that plaintiffs must meet a high threshold of
offensiveness and expectation of privacy to have a viable claim for intrusion upon seclusion.
For example, while altering a medical information release form and then using that form to
obtain and publicize private medical information may be highly offensive, using improper
means to obtain information does not necessarily satisfy that prong of the test where the
information can be obtained in another, legitimate manner. Id. at 745. And, an individual
may have a reasonable expectation of privacy in nude photographs of herself or in her
private medical information, but she does not have a reasonable expectation of privacy in
discussing termination of her employment. See Lake, 582 N.W.2d at 235 (stating that
“[o]ne’s naked body is . . . generally known to others only by choice” and “is a type of
privacy interest worthy of protection”); Swarthout, 632 N.W.2d at 745 (reversing summary
judgment on an intrusion upon seclusion claim involving private medical information);
Groeneweg v. Interstate Enters., Inc., No. A04-1290, 2005 WL 894768, at *6 (Minn. Ct.
App. Apr. 19, 2005) (holding that an individual had no legitimate expectation of privacy at a
meeting with co-workers in which her termination was discussed).
21
There is only one case analyzing the viability of a claim for intrusion upon seclusion
under Minnesota law in the context of an alleged DPPA violation. In Nelson v. Jesson, the
plaintiff alleged that the defendant intruded upon his seclusion by accessing, or allowing
access to, his motor vehicle records. 2013 WL 5888235, at *8. The court found that the
expectation of privacy in, and the sensitive nature of, driver’s license information is low
because individuals frequently show their driver’s license to strangers and because most of
the information contained in driver’s license records is public: “[A] person can ascertain
another’s likeness, height, weight, and eye color upon viewing him or her and may be able
to ascertain another’s driver’s license status or address through public records.” Id.
Because there was no allegation that the records at issue contained a social security number
or financial or medical information, the court held that “no reasonable person could consider
the intrusion . . . highly offensive” and dismissed the plaintiff’s claim. Id.
Similarly, Plaintiff’s allegations in this case fail to meet the high threshold for
offensiveness and expectation of privacy established by Minnesota law. Count IV states
that, “[b]y improperly obtaining [Plaintiff’s] private personal information for impermissible
reasons, Defendants intentionally intruded upon the solitude or seclusion of [Plaintiff’s]
private affairs and concerns.” (Am. Compl. ¶ 151 [Doc. No. 90].) Like the plaintiff in
Nelson, Plaintiff here does not allege that the records at issue contained a social security
number or financial or medical information.7 Rather, the only private information Plaintiff
7
Even if the Court considers Plaintiff’s argument that Minnesota driver’s license
records contain medical information such as seizure, diabetes, and vision information—
which Plaintiff asserted in regard to her § 1983 claims based on federally-protected privacy
interests—Plaintiff’s claim still fails. As discussed in that part of this opinion, Plaintiff does
22
claims was accessed through her driver’s license record was her address, color photograph,
date of birth, weight, height, eye color, driver identification number, and driving record.
Most of this information is included on the face of a driver’s license and, as discussed
above, there is a low expectation of privacy in this type of information because individuals
show their driver’s licenses to strangers on a daily basis. Moreover, much of this
information can be obtained by looking at an individual or through public records.
Therefore, Plaintiff has failed to allege the existence of an intrusion that is “highly
offensive” or intrusion upon a matter in which she had a “legitimate expectation of privacy.”
Accordingly, Count IV is dismissed because Plaintiff has failed to state a common law
claim for intrusion upon seclusion.
3.
DPPA Claims
Finally, the County Defendants and Defendant Tompa argue that Plaintiff’s DPPA
claims are barred by the applicable statute of limitations.8 “[W]hen it ‘appears from the face
of the complaint itself that the limitation period has run,’ a limitations defense may properly
be asserted through a Rule 12(b)(6) motion to dismiss.” Varner v. Peterson Farms, 371 F.3d
1011, 1016 (8th Cir. 2004) (citation omitted). The DPPA does not contain its own statute
of limitations provision, and the parties agree that 28 U.S.C. § 1658(a)’s general fouryear limitations period for civil actions arising under federal law applies:
not allege that Defendants obtained such information about her.
8
Defendants also argue that Plaintiff’s § 1983 and common law invasion of privacy
claims are barred by the relevant statutes of limitations. Because those claims fail for the
reasons discussed above, the Court will only address Defendants’ statute of limitations
argument in regard to Plaintiff’s DPPA claims.
23
Except as otherwise provided by law, a civil action arising under an Act of
Congress enacted after [December 1, 1990] may not be commenced later
than 4 years after the cause of action accrues.
28 U.S.C. § 1658(a); (see County Defs.’ Supp. Mem. at 5 [Doc. No. 108]; Def. Tompa’s
Supp. Mem. at 14–15 [Doc. No. 133]; Pl.’s Opp. to County Defs. at 12 [Doc. No. 122]).
However, the parties do dispute when a DPPA cause of action accrues for
purposes of determining when the four-year limitations period begins to run. Defendants
assert that the standard rule should apply, while Plaintiff argues that the discovery rule
should apply. Under the standard rule, “a claim accrues ‘when the plaintiff has a
complete and present cause of action.’” Gabelli v. S.E.C., 133 S. Ct. 1216, 1220 (2013)
(quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)). The discovery rule, on the other
hand, “delays accrual of a cause of action until the plaintiff has ‘discovered’ it.” Merck
& Co. v. Reynolds, 559 U.S. 633, 644 (2010). This exception to the standard rule arose
in 18th-century fraud cases to address the situation in which a defendant’s deceptive
conduct prevented a plaintiff from knowing he had been defrauded. Gabelli, 133 S. Ct. at
1221.
While neither the Supreme Court nor the Eighth Circuit has reviewed this issue, a
handful of lower courts have analyzed or applied a statute of limitations in a DPPA case.
These courts have found that the standard rule for accrual applies, such that a DPPA
cause of action accrues at the time the improper access of information occurs. 9 See Kost
9
Plaintiff asserts that the court in English v. Parker, No. 6:09-cv-1914-Orl-31GJK,
2011 WL 1842890 (M.D. Fla. May 16, 2011), used the discovery rule to determine the
time of accrual under § 1658(a) in the context of a DPPA claim. (See Pl.’s Opp. to Def.
Tompa at 23 [Doc. No. 142].) However, the court merely stated that there was not
24
v. Hunt, Civ. No. 13-583 (JNE/TNL), 2013 WL 6048921, at *5–8 (D. Minn. Nov. 15,
2013) (finding that the exceptional nature of the discovery rule, the text and structure of
§ 1658, and the substantive area covered by the DPPA, all support application of the
standard rule); Smythe v. City of Onamia, Civ. No. 12-cv-03149 (ADM/LIB), 2013 WL
2443849, at *1, *6 n.3 (D. Minn. June 5, 2013) (citing 28 U.S.C. § 1658) (noting, in a
case filed on December 20, 2012, that an instance of allegedly improper retrieval of
motor vehicle record information that occurred in 2003 was outside of the statute of
limitations); Hurst v. State Farm Mut. Auto. Ins. Co., Civ. Action No. 10-1001-GMS,
2012 WL 426018, at *9 (D. Del. Feb. 9, 2012) (citing 28 U.S.C. § 1658(a)) (stating that
“[t]he DPPA provides no statute of limitation for actions brought under its provisions;
civil actions arising under federal law, however, must be brought within four years of the
action giving rise to the suit”); Roberts v. Source for Public Data, No. 2:08-cv-04167NKL, 2009 WL 3837502, at *7 (W.D. Mo. Nov. 17, 2009) (citing 28 U.S.C. § 1658(a))
enough information upon which to grant summary judgment on statute of limitations
grounds, and in doing so it listed information that would be relevant to application of the
standard rule and information that would be relevant to application of the discovery rule:
[Defendant] accessed [Plaintiff’s] . . . information three times in 2005. He
contends that the four-year federal statute of limitations has run as to any
alleged violation occurring in 2005. [Plaintiff] contends that the statute of
limitations did not begin to run until 2009, when he first learned that his
information had been accessed. As the Court cannot tell what information
was accessed in 2005, and when [Plaintiff] was or should have become
aware that his records were being accessed, summary judgment is
inappropriate on this point.
English, 2011 WL 1842890, at *5 (emphases added). Therefore, the court did not reach
the question as to whether the standard rule or discovery rule would apply to the DPPA
claim.
25
(same); Haney v. Recall Center, 282 F.R.D. 436, 438 (W.D. Ark. 2012) (citing 28 U.S.C.
§ 1658(a)) (redefining the class to include individuals whose motor vehicle record
information was “obtained” by the defendants after January 14, 2006, when the complaint
was filed on January 14, 2010).
This Court agrees. U.S. Supreme Court precedent, the text and structure of the
statute of limitations at issue, and the nature of a DPPA cause of action all support
application of the standard rule. The Supreme Court recently reaffirmed the exceptional
nature of the discovery rule in Gabelli v. S.E.C. In that case, the Court analyzed the
language of the general statute of limitations for civil penalty actions stated in 28 U.S.C.
§ 2462:
Except as otherwise provided by Act of Congress, an action, suit or
proceeding for the enforcement of any civil fine, penalty, or forfeiture,
pecuniary or otherwise, shall not be entertained unless commenced within
five years from the date when the claim first accrued . . . .
Gabelli, 133 S. Ct. at 1219 (quoting 28 U.S.C. § 2462) (emphasis added). The Court
stated that “the most natural reading of the statute” is that the limitations period begins to
run when the allegedly fraudulent conduct occurs. Id. at 1220 (noting that, “‘[i]n
common parlance a right accrues when it comes into existence’”). According to the
Court, this interpretation advances “‘the basic policies of all limitations provisions:
repose, elimination of stale claims, and certainty about a plaintiff’s opportunity for
recovery and a defendant’s potential liabilities.’” Id. at 1221 (quoting Rotella v. Wood,
528 U.S. 549, 555 (2000)). The Court noted that there is no precedent or Congressional
26
mandate requiring application of the discovery rule in a Government enforcement action
for civil penalties. Id. at 1221–24. Thus, the Court held that the standard rule applies:
As we held long ago, the cases in which ‘a statute of limitation may be
suspended by causes not mentioned in the statute itself . . . are very limited
in character, and are to be admitted with great caution; otherwise the court
would make the law instead of administering it.’ . . . Given the lack of
textual, historical, or equitable reasons to graft a discovery rule onto the
statute of limitations of § 2462, we decline to do so.
Id. at 1224 (internal citations omitted) (emphases added).
Despite this precedent, Plaintiff argues that courts construing general statutes of
limitation apply the discovery rule unless Congress manifests a different intent. 10 (See
Pl.’s Opp. to County Defs. at 12 [Doc. No. 122].) Indeed, the Eighth Circuit has stated
that, “[i]n federal question cases, the discovery rule applies ‘in the absence of a contrary
directive from Congress.’” Comcast of Ill. X v. Multi-Vision Elecs., Inc., 491 F.3d 938,
944 (8th Cir. 2007) (quoting Union Pac. R.R. Co. v. Beckham, 138 F.3d 325, 330 (8th
Cir. 1998)). However, in acknowledging the lower courts’ tendency to apply this
presumption, the Supreme Court has stated that the contrary directive from Congress
need not be explicit—it may also be implied from the text or structure of a particular
statute. TRW Inc. v. Andrews, 534 U.S. 19, 27–28 (2001). For example, in TRW Inc. v.
10
In particular, Plaintiff relies on this Court’s decision in In re Weldeabzghi, No. 11cv-03087 (SRN/SER), 2013 WL 717755 (D. Minn. Feb. 27, 2013). (See Pl.’s Opp. to
County Defs. at 13 [Doc. No. 122].) In that case, this Court cited to Eighth Circuit
precedent establishing that claims accrue for purposes of the statute of limitations in 28
U.S.C. § 2401(a) “when the plaintiff ‘either knew, or in the exercise of reasonable
diligence should have known, that [he or she] had a claim.’” In re Weldeabzghi, 2013
WL 717755, at *6 (quoting Izaak Walton League of Am., Inc. v. Kimbell, 558 F.3d 751,
759 (8th Cir. 2009)). However, as discussed herein, Congress manifested a different
intent in the statute of limitations in 28 U.S.C. §1658(a).
27
Andrews, the Court analyzed the statute of limitations in the Fair Credit Reporting Act
(“FCRA”):
“An action to enforce any liability created under [the Act] may be
brought . . . within two years from the date on which the liability arises,
except that where a defendant has materially and willfully misrepresented
any information required under [the Act] to be disclosed to an individual
and the information so misrepresented is material to the establishment of
the defendant’s liability to that individual under [the Act], the action may
be brought at any time within two years after discovery by the individual of
the misrepresentation.”
Id. at 28 (quoting 15 U.S.C § 1681p). The Court determined that “Congress implicitly
excluded a general discovery rule by explicitly including a more limited one.” Id.
(citation omitted). Thus, it concluded that “the text and structure of [the limitations
provision] evince Congress’ intent to preclude judicial implication of a discovery rule.”
Id. And, as discussed above, the Gabelli Court applied the standard rule in a federal
question case because there was a “lack of textual, historical, or equitable reasons to graft
a discovery rule onto the statute of limitations.” 133 S. Ct. at 1224. Thus, even if there is
a presumption in favor of the discovery rule, that presumption may be overcome by
explicit or implicit evidence of Congressional intent that the standard rule applies.
The text and structure of § 1658 supply such evidence. Similar to the statute of
limitations at issue in Gabelli, § 1658(a) uses the term “accrues.” As noted in that case,
the most natural reading of that language is that the limitations period begins to run when
the allegedly fraudulent conduct occurs. And, similar to the statute of limitations at issue
in TRW Inc., § 1658 contains two limitations periods. Subsection (a) states that “a civil
28
action arising under an Act of Congress . . . may not be commenced later than 4 years
after the cause of action accrues,” while subsection (b) states:
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 . . . 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.
28 U.S.C. § 1658 (emphases added). Congress added subsection (b), which expressly
incorporates the discovery rule, in 2002 without amending the language in subsection (a),
demonstrating that Congress did not intend to incorporate a discovery rule into subsection
(a). Gross v. Max, 906 F. Supp. 2d 802, 812–13 (N.D. Ind. 2012).
Finally, the rationale behind the discovery rule does not support its application in
the DPPA context. The Supreme Court has “recognized a prevailing discovery rule” in
only a few contexts: fraud or concealment, latent disease, and medical malpractice. See
TRW Inc., 534 U.S. at 27. In these instances, “‘the cry for [such a] rule is loudest.’” Id.
(quoting Rotella, 528 U.S. at 555). On the other hand, the Court determined that the
FCRA, which provides a private right of action based on credit reporting agencies’ failure
to maintain reasonable procedures and failure to limit the furnishing of credit reports to
permissible purposes, “does not govern an area of the law that cries out for application of
a discovery rule.” Id. at 28. The nature of the injury addressed by the DPPA—the
obtaining of motor vehicle record information for an impermissible purpose—is not in
the same category as fraud, concealment, latent disease, or medical malpractice because
29
there is no similarly deceptive conduct or concealment. Rather, the violation occurs from
the accessing of the information without a permissible purpose, which is more akin to the
type of injury the FCRA is meant to address. 11 Therefore, the substantive area governed
by the DPPA does not cry out for application of the discovery rule.
Based on the foregoing, the standard rule for accrual applies to Plaintiff’s DPPA
claims. The Complaint in this case was filed on March 12, 2012, so Plaintiff’s DPPA
claims that are based on allegations of improper conduct occurring more than four years
prior to that date—i.e., prior to March 12, 2008—are barred. These claims include the
alleged accesses by Defendant Belisle (Chisago County), which occurred in 2006; the
alleged accesses by Defendants Lawrence and Vosika (Pine County), which occurred in
2006; and the alleged accesses by Defendant Tompa, which occurred in 2006 and 2007.
Accordingly, with the exception of Plaintiff’s claim against Defendant Fjosne (who
allegedly accessed Plaintiff’s driver’s license record information in 2011) and Pine
County (to the extent the claim is based on the actions of Defendant Fjosne), Plaintiff’s
DPPA claims against the County Defendants and Defendant Tompa in Count I are
dismissed. 12
11
Moreover, as noted by Defendants, an individual’s ability to obtain a copy of her
credit report at any time is analogous to an individual’s ability to request information
pertaining to her DVS records. (See County Defs.’ Reply Mem. at 10 [Doc. No. 132].)
12
The Court notes that the same claims would be dismissed even if the discovery
rule were applied in this case. Under the discovery rule, “a cause of action accrues and
the statute of limitations begins to run when the plaintiff discovers, or with due diligence
should have discovered, the injury which is the basis of the litigation.” Comcast of Ill. X,
491 F.3d at 944 (citation omitted). Plaintiff states in her Amended Complaint that, in
2007, she began suspecting that law enforcement officers were taking an unusual interest
in her because they knew where she lived and what kind of car she drove. She asserts that
30
In conclusion, Counts I through IV of Plaintiff’s First Amended Complaint are
dismissed with respect to Defendants Chisago County, Jay Belisle, Rebecca Lawrence, Dan
Vosika, and Millicent Tompa. 13 As for Defendants Blake Fjosne and Pine County, Counts
II through IV of Plaintiff’s First Amended Complaint are dismissed, but Count I remains.
THEREFORE, IT IS HEREBY ORDERED THAT:
1.
Defendants Chisago County, Pine County, Jay Belisle, Blake Fjosne, and
Rebecca Lawrence’s Motion to Dismiss [Doc. No. 106] is GRANTED;
2.
Defendant Dan Vosika’s Motion to Dismiss [Doc. No. 121] is GRANTED;
3.
Defendant Millicent Tompa’s Motion to Dismiss or for Judgment on the
Pleadings [Doc. No. 97] is GRANTED;
4.
Plaintiff’s First Amended Complaint (Third Revision) [Doc. No. 90] is
DISMISSED with prejudice as to Defendants Chisago County, Jay Belisle,
Rebecca Lawrence, Dan Vosika, and Millicent Tompa; and
these suspicions and one other incident—that several squad cars responded to the scene
when she was pulled over for a potential speeding violation in May 2010—prompted her to
contact the DPS to ask for the identity of officers who had run her name on the DVS
database. In her brief, Plaintiff states that she contacted the DPS on August 23, 2011. (Pl.’s
Opp. to County Defs. at 5 [Doc. No. 122].) Thus, the suspicions that put Plaintiff on notice
of her alleged injuries occurred in 2007, yet she waited until 2011 to conduct an
investigation, and until 2012—well outside of the four-year statute of limitations—to file
this lawsuit. While the Court understands that a plaintiff might not conduct an investigation
any earlier in circumstances such as these, the discovery rule does not reach that far to
preserve a plaintiff’s claims. In addition, Plaintiff asserts in a footnote that “the continuing
violations doctrine would likely apply to some early accesses even if the Court were to
apply the [standard] rule.” (Id. at 2 n.1.) However, Plaintiff does not identify to which
occurrences she is referring, nor does she elaborate on the legal theory. Therefore, the
Court declines to address this argument.
13
Because all of Plaintiff’s asserted claims against Defendant Tompa are dismissed,
the Court will not address her qualified immunity argument.
31
5.
Counts II, III, and IV of Plaintiff’s First Amended Complaint (Third
Revision) [Doc. No. 90] are DISMISSED with prejudice as to Defendants
Pine County and Blake Fjosne.
Dated: January 10, 2014
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?