Kost et al v. Hunt et al

Filing 206

ORDER: Defendant Hennepin County's Motion to Dismiss 107 is GRANTED. Defendants Carver County, Chisago County, and Washington County's Motion pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c) 119 is GRANTED. Defendants Bloomington, Burnsville, Eden Prairie, Lakeville, Apple Valley, Cottage Grove, Crosslake, Faribault, Hastings, New Hope, Roseville, St. Louis Park, Minnetrista, Richfield, Brooklyn Park, Maple Grove, Minnetonka, St. Cloud, Farmington, South St. Paul, and Centennial Lakes Police Department's Motion to Dismiss 123 is GRANTED. Defendant Dakota County's Motion for Judgment on the Pleadings 129 is GRANTED. The First Amended Complaint against Defendants Hennepin County, Carver County , Chisago County, Washington County, Bloomington, Burnsville, Eden Prairie, Lakeville, Apple Valley, Cottage Grove, Crosslake, Faribault, Hastings, New Hope, Roseville, St. Louis Park, Minnetrista, Richfield, Brooklyn Park, Maple Grove, Minnetonka, St. Cloud, Farmington, South St. Paul, and Centennial Lakes Police Department is DISMISSED. (Written Opinion) Signed by Judge Joan N. Ericksen on November 15, 2013. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Hilary Ann Kost, a/k/a Hilary Kost DeVary,
and Jon Eldon DeVary,
Plaintiffs,

Civil No. 13-583 (JNE/TNL)
ORDER

v.
John Hunt et al.,
Defendants.

Marshall H. Tanick and Teresa J. Ayling appeared for Plaintiffs.
Andrea G. White appeared for Defendant Dakota County. Toni A. Beitz appeared for Defendant
Hennepin County. Joseph E. Flynn appeared for Defendants Chisago, Washington and Carver
Counties. Jon K. Iverson appeared for Defendants Cities of Bloomington, Burnsville, Eden
Prairie, Lakeville, Apple Valley, Cottage Grove, Crosslake, Faribault, Hastings, New Hope,
Roseville, St. Louis Park, Minnetrista, Richfield, Brooklyn Park, Maple Grove, Minnetonka, St.
Cloud, Farmington, and South St. Paul, as well as for Defendant Centennial Lakes Police
Department.

Plaintiffs Hilary Ann Kost and Jon Eldon DeVary filed this action against more than fifty
named Defendants, including twenty-three cities and seven counties in Minnesota. The First
Amended Complaint (“complaint”) makes claims against the Defendants under the Driver’s
Privacy Protection Act of 1994 (“DPPA”), 42 U.S.C. § 1983, and Minnesota state law for alleged
impermissible accesses of Plaintiffs’ personal data maintained by the Minnesota Department of
Public Safety (“DPS”). Presently before the Court are four motions filed by the following
Defendants, collectively referred to as the “Moving Defendants”: (1) Hennepin County; (2)
Carver County, Chisago County, and Washington County (“County Defendants”); (3) Dakota
County; and (4) the Cities of Bloomington, Burnsville, Eden Prairie, Lakeville, Apple Valley,
Cottage Grove, Crosslake, Faribault, Hastings, New Hope, Roseville, St. Louis Park,

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Minnetrista, Richfield, Brooklyn Park, Maple Grove, Minnetonka, St. Cloud, Farmington, and
South St. Paul, along with the Centennial Lakes Police Department (“City Defendants”). The
motions seek dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or
request judgment on the pleadings under Rule 12(c). For the reasons stated below, all four
motions are granted.
BACKGROUND
Plaintiffs Kost and DeVary are licensed private investigators and are married to each
other. In January 2013, they received a letter from the Minnesota Department of Natural
Resources (“DNR”) notifying them that a former DNR employee had engaged in unauthorized
viewing of private data from their motor vehicle records kept by the DPS. On receipt of the
DNR letter, Plaintiffs sought an audit of all releases by the DPS of their motor vehicle records.
From the audit, Plaintiffs “discovered numerous incidents of unlawful access” of their
personal information by various cities, counties, private entities, and other organizations. The
complaint includes and incorporates four exhibits with information that Plaintiffs obtained from
the Division of Driver and Vehicle Services (“DVS”) and Bureau of Criminal Apprehension
(“BCA”), departments of the DPS that maintain databases containing motor vehicle record data.
The exhibits include entries corresponding to accesses of Plaintiffs’ data that provide information
such as the date of access, the time, and the entity involved. Multiple sets of entries have the
same transaction number and/or time. Plaintiffs redacted entries that they “believed to be
legitimate instances of use of the records.” Each of the Moving Defendants appears on the
exhibits as having accessed Plaintiffs’ data. The complaint states that Plaintiffs did not authorize
any of the accesses and “are not aware of any legitimate reason any of the Defendants may have
had to access” their data.

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The complaint does not allege any other facts regarding the particular accesses by any of
the Moving Defendants, although it makes certain factual allegations without mention of a
specific Defendant. The complaint states that on or around March 20, 2006, an article titled
“Cheating? She’s Watching” appeared in the St. Paul Pioneer Press, which highlighted the work
of Plaintiff Kost. The complaint contends that the exhibits show “clusters” of accesses shortly
after the article’s publication. Similarly, the complaint alleges an increase in accesses after an
interview on television and mentions in news articles, in the late summer and fall of 2011, of
Plaintiff Kost’s work as a private investigator in a high profile matter of child abandonment. The
complaint also alleges that a former police officer and neighbor of Plaintiff DeVary and his
previous wife, who had taken a special interest in their child, told the child that he obtained
Plaintiff Kost’s data through law enforcement personnel to check her out and determine whether
she was a safe driver. The complaint does not identify the former officer or the time period in
which he obtained the information.
The complaint lists five counts, four of which involve the Moving Defendants. Count I
of the complaint alleges violations of the DPPA by all Defendants. Count II asserts claims under
42 U.S.C. § 1983 for violations of Plaintiffs’ rights against individual John and Jane Does
employed by the Moving Defendants. Count III alleges § 1983 claims against the Moving
Defendants, asserting liability for an alleged custom and practice of illegal accesses of
individuals’ private motor vehicle record data. Count V claims Negligent Infliction of Emotional
Distress against the Moving Defendants. On the motion of other Defendants, the Court
previously held that claims under 42 U.S.C. § 1983 are unavailable for violations of any statutory
or constitutional rights under the facts alleged in the complaint. See Kost v. Hunt, Civ. No. 13583, 2013 U.S. Dist. LEXIS 145148, at *15-16 (D. Minn. Oct. 8, 2013). Counts II and III will

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be dismissed for the reasons stated in that order. See id.; Kiminski v. Hunt, Civ. No. 13-185,
2013 U.S. Dist. LEXIS 157829, at *25-43 (D. Minn. Sept. 20, 2013). Thus, only Counts I and V
need to be presently addressed in ruling on the Moving Defendants’ motions.
DISCUSSION
The same standard applies to a motion to dismiss for failure to state a claim under Rule
12(b)(6) and a motion for judgment on the pleadings under Rule 12(c). See Clemons v.
Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Thus, the complaint must do more than merely leave “open the
possibility that a plaintiff might later establish some set of undisclosed facts to support
recovery.” Twombly, 550 U.S. at 561 (internal quotation marks omitted). It must plead “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. In ruling on a motion to dismiss, a court accepts
the facts alleged in the complaint as true and grants all reasonable inferences supported by the
facts alleged in favor of the plaintiff. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 59495 (8th Cir. 2009). “This tenet does not apply, however, to legal conclusions or formulaic
recitation of the elements of a cause of action; such allegations may properly be set aside.” Id.
(internal quotation marks omitted).
Although filed separately, the four motions make some of the same or overlapping
arguments for dismissal. As to Plaintiff’s DPPA claim, one or more motions raise certain issues
that potentially affect Plaintiffs’ claims against all of the Moving Defendants. These issues will
first be addressed and then the individual motions discussed.

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I.

The DPPA Claims and Issues Common to Moving Defendants
The DPPA protects certain “personal information” contained in motor vehicle records.

See 18 U.S.C. §§ 2721-2725. The statute defines “personal information” as “information that
identifies an individual,” and includes a person’s photograph, social security number, driver
identification number, name, address, telephone number, and medical or disability information.
Id. § 2725(3). The first section of the DPPA starts with a general provision specifying that a
state department of motor vehicles (“DMV”) and its representatives “shall not knowingly
disclose or otherwise make available” personal information “about any individual obtained by
the department in connection with a motor vehicle record” except as allowed for under 18 U.S.C.
§ 2721(b). Id. § 2721(a)(1).
The exception provision, 18 U.S.C. § 2721(b), enumerates multiple permissible uses of
personal information for various governmental and business purposes:
(1) For use by any government agency, including any court or law enforcement agency,
in carrying out its functions, or any private person or entity acting on behalf of a Federal,
State, or local agency in carrying out its functions.
(2) For use in connection with matters of motor vehicle or driver safety and theft; motor
vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance
monitoring of motor vehicles, motor vehicle parts and dealers; motor vehicle market
research activities, including survey research; and removal of non-owner records from the
original owner records of motor vehicle manufacturers.
(3) For use in the normal course of business by a legitimate business or its agents,
employees, or contractors, but only—
(A) to verify the accuracy of personal information submitted by the individual to the
business or its agents, employees, or contractors; and
(B) if such information as so submitted is not correct or is no longer correct, to obtain
the correct information, but only for the purposes of preventing fraud by, pursuing
legal remedies against, or recovering on a debt or security interest against, the
individual.
(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding
in any Federal, State, or local court or agency or before any self-regulatory body,
including the service of process, investigation in anticipation of litigation, and the
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execution or enforcement of judgments and orders, or pursuant to an order of a Federal,
State, or local court.
(5) For use in research activities, and for use in producing statistical reports, so long as
the personal information is not published, redisclosed, or used to contact individuals.
(6) For use by any insurer or insurance support organization, or by a self-insured entity,
or its agents, employees, or contractors, in connection with claims investigation activities,
antifraud activities, rating or underwriting.
(7) For use in providing notice to the owners of towed or impounded vehicles.
(8) For use by any licensed private investigative agency or licensed security service for
any purpose permitted under this subsection.
(9) For use by an employer or its agent or insurer to obtain or verify information relating
to a holder of a commercial driver's license that is required under chapter 313 of title 49.
(10) For use in connection with the operation of private toll transportation facilities.
(11) For any other use in response to requests for individual motor vehicle records if the
State has obtained the express consent of the person to whom such personal information
pertains.
(12) For bulk distribution for surveys, marketing or solicitations if the State has obtained
the express consent of the person to whom such personal information pertains.
(13) For use by any requester, if the requester demonstrates it has obtained the written
consent of the individual to whom the information pertains.
(14) For any other use specifically authorized under the law of the State that holds the
record, if such use is related to the operation of a motor vehicle or public safety.
The statute designates a subset of the “personal information” as “highly restricted
personal information” and places further limitations on its disclosure by state DMVs. See id. §§
2725(4), 2721(a)(2). In addition to the restrictions of 18 U.S.C. § 2721(a) on state DMVs, the
DPPA makes it “unlawful for any person knowingly to obtain or disclose personal information,
from a motor vehicle record, for any use not permitted” under 18 U.S.C. § 2721(b). Id. §
2722(a). The DPPA provides for a civil action as follows:

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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.
Id. § 2724(a). A “person” who can be sued is defined as an “individual, organization or entity,
but does not include a State or agency thereof.” Id. § 2725(2).
The Moving Defendants raise at least three shared issues in connection with Plaintiffs’
DPPA claims. First, they contend that any claims relating to accesses of Plaintiffs’ data prior to
four years from the filing of the complaint are time-barred. Second, they seek a ruling that under
the DPPA’s remedies provision, Plaintiffs must show some actual damages to get any liquidated
damages. Third, they argue that merely searching or viewing data does not amount to
“obtaining” it for purposes of liability under the DPPA’s civil action provision.
A. Time-barred DPPA Claims
The Moving Defendants seek dismissal of Plaintiffs’ DPPA claims related to any
accesses occurring earlier than four-years from the date of the filing of the complaint—March
14, 2013—on statute of limitations grounds. Exhibits 1-4 to the complaint itemize the alleged
improper accesses of Plaintiffs’ motor vehicle record data by the Defendants for which Plaintiffs
seek relief under the DPPA. The listings include accesses of Plaintiffs’ information as early as
2003 and Plaintiffs take the position that they are entitled to relief for all the accesses included
on the exhibits.
The DPPA does not include a statute of limitations provision. It is, however, subject to
the general statute of limitations provided for by 28 U.S.C. § 1658(a), which states that “[e]xcept
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.” That section was enacted on December 1, 1990. Because the DPPA was
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enacted in 1994, the limitation of 28 U.S.C. § 1658(a) applies. See Smythe v. City of Onamia,
Civ. No. 12-3149, 2013 U.S. Dist. LEXIS 78948, at *15-16 n.3 (D. Minn. June 5, 2013) (noting
that the default four-year limit applies to the DPPA).
The parties do not dispute that the four-year limitation applies to Plaintiffs’ DPPA claims.
Rather they dispute when the four-year period began to run. Plaintiffs contend that the so-called
“discovery rule” applies to DPPA claims such that the clock only started ticking once they
discovered the accesses in early 2013. The Moving Defendants argue that the clock on each
improper access began running at the time the access occurred.
The Moving Defendants are correct. Section 1658(a) starts the clock at the time when
“the cause of action accrues.” 28 U.S.C. § 1658(a). In a recent case, the Supreme Court made
clear that “the standard rule is that a claim accrues when the plaintiff has a complete and present
cause of action.” Gabelli v. SEC, 133 S. Ct. 1216, 1220 (2013) (internal quotation marks
omitted). The Court explained that a “discovery rule” arose in fraud cases as an exception to the
standard rule. See id. at 1221; Merck & Co., Inc. v. Reynolds, 559 U.S. 633, 644-45 (2010)
(“The rule arose in fraud cases as an exception to the general limitations rule that a cause of
action accrues once a plaintiff has a complete and present cause of action.” (internal quotation
marks omitted)). Under the discovery rule, accrual of a claim is delayed until the plaintiff
“discovers” his or her cause of action. Merck, 559 U.S. at 644-45.
The unfairness of applying a statute of limitations in a case of fraud, where a defendant’s
deceptive conduct might prevent a plaintiff from knowing he or she has been defrauded,
provided the rationale for the discovery rule exception. See id. Since the initial recognition of
the exception, courts have generally understood that fraud is deemed to be “discovered” at such

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time as it could have been discovered by the exercise of reasonable diligence. Id. More recently,
courts and statutes have applied the discovery rule to claims outside the fraud context. Id.
Plaintiffs contend that the Eighth Circuit’s opinion in Comcast of Illinois X v. MultiVision Electronics, Inc., 491 F.3d 938, 944 (8th Cir. 2007), mandates that the discovery rule
applies as a default unless the statute at issue directs otherwise. In particular, Plaintiffs point to
the statement in Comcast that “[i]n federal question cases, the discovery rule applies in the
absence of a contrary directive from Congress.” 491 F.3d at 944 (internal quotation marks
omitted). Based on Comcast, Plaintiffs argue that their DPPA claims only accrued and the
statute of limitations began to run around the time they received the letter from the DNR
notifying them of Defendant Hunt’s unauthorized accesses of their private data in early 2013.
But Comcast predated the Supreme Court’s decision in Gabelli. Plaintiffs attempt to
distinguish Gabelli and render it inapplicable on its facts. In particular, they point out that
Gabelli involved a claim by the Securities and Exchange Commission (“SEC”) seeking a civil
penalty against an investment advisor engaged in unlawful trading practices. They note that the
Supreme Court declined to apply the discovery rule to an SEC claim based on events occurring
prior to the time allowed by the applicable statute of limitations because the SEC’s mission is to
investigate potential violations of the securities laws. See Gabelli, 133 S. Ct. at 1222. While the
Supreme Court did distinguish the SEC in a civil enforcement action from a private litigant who
might have sustained a self-concealing injury, see id., the implication of that distinction is not
what Plaintiffs advocate. Rather, the Supreme Court’s reasoning in reaching the outcome in
Gabelli confirms that its starting point was that application of the discovery rule is an exception
that has become standard in fraud cases. The Court highlighted the difference between the SEC
and a private litigant to make the point that the typical discovery rule exception in fraud cases

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should not apply to the SEC enforcement claim at issue, even though the underlying violation
sounded in fraud. See id. (“There are good reasons why the fraud discovery rule has not been
extended to Government enforcement actions for civil penalties.” (emphasis added)). The Court
did not suggest that the discovery rule is the standard in all cases for private litigants.
To the contrary, Gabelli should be read as seriously undermining, if not rendering
obsolete, earlier statements by the lower courts that the discovery rule operates as a default. See
Gabelli, 133 S. Ct. at 1220 (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007), for the “standard
rule”). The Wallace case quoted by the Gabelli opinion confirms that the reference to the
“standard rule” applies to federal law generally. See Wallace, 549 U.S. at 388 (noting, in the
context of a claim under 42 U.S.C. § 1983, that the “federal rules conform[] in general to
common-law tort principles” and under “those principles, it is the standard rule that accrual
occurs when the plaintiff has a complete and present cause of action”) (internal quotation marks
omitted). Moreover, the Gabelli opinion concludes leaving no doubt that the rule in general is
that the discovery rule is an exception:
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.” Amy v. Watertown (No. 2), 130 U.S. 320, 324, 9 S. Ct. 537, 32 L. Ed.
953 (1889) (internal quotation marks omitted). Given the lack of textual, historical, or
equitable reasons to graft a discovery rule onto the statute of limitations [at issue], we
decline to do so.
133 S. Ct. at 1224. Accrual at the time the plaintiff has a complete and present cause of action
must therefore be treated as the standard in evaluating the statute of limitations for DPPA claims.
The question then becomes whether “textual, historical, or equitable reasons” warrant
grafting a discovery rule onto the statute of limitations of 28 U.S.C. § 1658(a) for DPPA claims.
It does not appear that any court has previously explicitly conducted the analysis in the context

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of a DPPA claim. 1 Cases explicitly analyzing the issue for other statutes subject to the catch-all
statute of limitations provision of 28 U.S.C. § 1658(a) also appear scarce. One example comes
from the decision in Gross v. Max, 906 F. Supp. 2d 802 (N.D. Ind. 2012), which evaluated
whether the discovery rule applies to claims under the Residential Lead-Based Paint Hazard
Reduction Act.
Like the court in Gross, this Court finds that both the catch-all provision of 28 U.S.C. §
1658(a) and the statute under which the claim is asserted should be considered to determine
whether the discovery rule exception applies to claims subject to 28 U.S.C. § 1658(a). See 906
F. Supp. 2d at 811-13 (recognizing the “quirk” of having a separate statute provide the applicable
statute of limitations to claims arising under a particular statute and applying a “two-pronged”
inquiry). As to 28 U.S.C. § 1658, the text and structure of the provision do not reflect
congressional intent to generally incorporate the discovery rule to claims subject to subsection
(a). Section 1658(a) uses the key term “accrues” in specifying that a claim must be brought
within four-years of when “the cause of action accrues.” The statute of limitations provision at
issue in Gabelli, 28 U.S.C. § 2462, similarly used the phrase “when the claim first accrued” in
specifying the relevant time period, and the Supreme Court concluded that “the most natural

1

Plaintiffs point to one case—English v. Parker, Civ. No. 09-1914, 2011 U.S. Dist. LEXIS
51889 (M.D. Fla. May 16, 2011)—in which they contend that “the court applied the discovery
rule to a DPPA claim.” Defendants point to two class action cases in which the courts applied
the four-year limitation in designating the class scope, such that plaintiffs with claims of DPPA
violations occurring prior to four years from the lawsuit filing date would be excluded. See
Haney v. Recall Ctr., 282 F.R.D. 436, 438 (W.D. Ark. 2012); Roberts v. Source for Pub. Data,
Civ. No. 08-4167, 2009 U.S. Dist. LEXIS 107057, at *20-21 (W.D. Mo. Nov. 17, 2009). Other
courts have also referenced the four-year limitation period in passing. See Smythe v. City of
Onamia, Civ. No. 12-3149, 2013 U.S. Dist. LEXIS 78948, at *15-16 n.3 (D. Minn. June 5,
2013); Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. 10-1001, 2012 U.S. Dist. LEXIS 39347,
at *28-29 (D. Del. Feb. 9, 2012). None of these cases, however, explicitly analyze whether or
not the discovery rule should apply in determining when a DPPA claim accrues, even though
some of them reflect an implicit determination of the issue.
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reading of the statute” means that the clock begins to tick when the claimed violation occurs.
133 S. Ct. at 1221-22.
Additionally, the use of the term “accrues” in 28 U.S.C. § 1658(a) stands in contrast to
the language of the next subsection, which outlines an exception for certain cases. Subsection
(b) provides that in cases of “fraud, deceit, manipulation, or contrivance in contravention of a
regulatory requirement concerning the securities laws,” the claim must be brought not later than
the earlier of two years after “discovery of the facts constituting the violation” or five years after
the violation. 28 U.S.C. § 1658(b) (emphasis added). The provision explicitly refers to
“discovery” and, in the statute of limitations context, that word is understood as a term of art for
the discovery rule. See Merck, 559 U.S. at 644. Congress created § 1658(b) by amendment in
2002, but left the language of the general provision that is § 1658(a) without any reference to
conditions under which a discovery rule would apply. See Gross, 906 F. Supp. 2d at 812-13.
Given the baseline mandated by Gabelli, the use of “accrues” in § 1658(a) in contrast to the
reference to a “discovery” condition in § 1658(b) further signals the absence of an intent to
incorporate a discovery rule in any form into § 1658(a). See also id.
As to the DPPA itself, at least two considerations confirm that it does not call for a
general application of the discovery rule exception. First, the substantive area covered by the
DPPA is not one for which the Supreme Court has recognized a prevailing discovery rule and the
injury against which the DPPA protects is not of a type that warrants extension of the discovery
rule exception to DPPA claims. See TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001) (identifying
fraud, latent disease, and medical malpractice as typically calling for application of the discovery
rule exception). In particular, the DPPA provides certain protections for personal information
contained in motor vehicle records. The primary motivating concerns for the DPPA included

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preventing use of such data for nefarious purposes and transfers of the data for advertising
purposes without consent. See Maracich v. Spears, 133 S. Ct. 2191, 2198 (2013); Cook v. ACS
State & Local Solutions, Inc., 663 F.3d 989, 992 (8th Cir. 2011). Thus, the main injury targeted
by the DPPA is harm that would readily be knowable in conjunction with, or soon after, the
DPPA violation, because someone uses the data in reaching out to the plaintiff for threatening or
advertising purposes. In other words, unlike latent disease or medical malpractice, the targeted
injury is not of a type that, by its nature, tends to reveal itself later or without a readily
determinable cause. Cf. Urie v. Thompson, 337 U.S. 163, 169-71 (1949); Brazzell v. United
States, 788 F.2d 1352, 1355-56 (8th Cir. 1986). Also, unlike fraud, the harm targeted by the
DPPA is not of a type likely to be detected belatedly or with difficulty because of a defendant’s
deceptive conduct.
Second, the DPPA includes a records maintenance provision for resellers of personal
information that comports with a determination that the discovery rule does not generally apply
to indefinitely extend the possible time-frame for an action. See 18 U.S.C. § 2721(c). Section
2721(c) allows certain authorized recipients of personal information to resell or redisclose the
information for uses permitted under 18 U.S.C. § 2721(b) with some qualifications. But it
requires that the disclosing recipient “keep for a period of 5 years” records of the receiving party
and the permitted purpose for its use of the information. Id. The civil action provision of 18
U.S.C. § 2724 reaches disclosure violations by authorized recipients. Thus the record
maintenance obligation for them for a limited period of 5 years further supports a finding that the
DPPA does not envision unbounded extensions of the time period in which a suit might be
brought.

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Plaintiffs argue that even if the discovery rule does not apply, the doctrine of “equitable
tolling” should be applied to toll the statute of limitations. That doctrine “permits a plaintiff to
sue after the statutory time period has expired if he has been prevented from doing so due to
inequitable circumstances.” Firstcom, Inc. v. Qwest Corp., 555 F.3d 669, 675 (8th Cir. 2009)
(quoting Pecoraro v. Diocese of Rapid City, 435 F.3d 870, 875 (8th Cir. 2006)). But equitable
tolling offers “an exceedingly narrow window of relief” and courts “rarely invoke doctrines such
as equitable tolling to alleviate a plaintiff from a loss of his right to assert a claim.” Id. (internal
quotation marks omitted). “Because statutes of limitations protect important interests of
certainty, accuracy, and repose, equitable tolling is an exception to the rule, and should therefore
be used only in exceptional circumstances.” Motley v. United States, 295 F.3d 820, 824 (8th Cir.
2002) (internal quotation marks omitted). A party seeking equitable tolling bears the burden of
showing “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir. 2012) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Plaintiffs cannot show that any extraordinary circumstances prevented them from filing
their claims within the statute of limitations period. Rather, they point to their lack of knowledge
about any accesses of their data until receipt of the DNR letter, which triggered them to seek an
audit of all accesses of their data. They do not contend that they could not have conducted the
very same audit earlier, but only that they did not have any reason to do so. But treating
Plaintiffs’ mere lack of knowledge of an injury—in the absence of any external factor that stood
in their way of discovery—as sufficient for equitable tolling, would essentially create an end-run
around the Court’s finding that the discovery rule does not apply to DPPA claims. The doctrine
of equitable tolling is not intended to rescue claims in these circumstances. Rather, application

14

of the doctrine is an exercise of a court’s equity powers and is intended for situations that
“demand equitable intervention” to correct particular injustices. See Holland v. Florida, 130 S.
Ct. 2549, 2563 (2010); Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1330 (8th Cir. 1995)
(noting that application of the doctrine requires a “case-by-case analysis,” a “balancing of the
equities,” and application “only in exceptional circumstances”). Given the nature of the rights at
issue, the lack of any facts in the complaint indicating significant harm to the Plaintiffs, the
absence of any attempt by Defendants to prevent Plaintiffs from learning of their claims, the
potential prejudice to the Defendants, and the absence of an extraordinary barrier to obtaining the
audit information, this case is not one in which the equities favor applying the doctrine of
equitable tolling.
B. Actual Damages
The City Defendants’ motion asks the Court to decide whether the DPPA’s remedies
provision allows for a liquidated damages award if Plaintiffs did not suffer any actual damage.
The DPPA provision for remedies available in a civil action provides:
(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(b). Although both sides devote significant space in their briefs to the damages
question, the Court declines to decide it. Doing so would be premature, because the remedies
provision does not show that entitlement to actual or liquidated damages under 18 U.S.C. §

15

2724(b)(1) is a prerequisite for stating a claim upon which relief can be granted for a DPPA
violation. 2
The remedies provision enumerates a list of potential remedies that “[t]he court may
award.” See id. (emphasis added). As the Eleventh Circuit explained, “[t]he use of the word
‘may’ suggests that the award of any damages is permissive and discretionary.” Kehoe v. Fid.
Fed. Bank & Trust, 421 F.3d 1209, 1216 (11th Cir. 2005). The only other appellate court to
consider the actual damages provision also found that “[t]he language of the DPPA indicates a
certain degree of discretion granted to the court in awarding damages.” Pichler v. Unite, 542
F.3d 380, 394-400 (3d Cir. 2008) (citing Kehoe, 421 F.3d at 1216-17).
In Kehoe, the district court had granted summary judgment to the defendant on a DPPA
claim, determining that actual damages must be shown to receive any liquidated damages and
concluding that the plaintiff could not maintain a DPPA claim without proof of actual damages.
421 F.3d at 1211. While the Eleventh Circuit reversed the district court’s determination that
some actual damage was a prerequisite for liquidated damages, the court noted in a footnote that
“[e]ven if we were to conclude that proof of actual damages was necessary to be awarded
liquidated damages, we still would have to remand this case to district court for consideration of
the other available remedies requested by Kehoe.” Id. at n.1. The complaint here claims
entitlement to the other categories of potential relief in addition to actual damages.

2

To the extent the City Defendants attempt to raise a standing question by implying that
Plaintiffs have not suffered an injury in fact, they cannot succeed. As the Seventh Circuit
explained, the DPPA’s civil action provision defines the relevant injury for standing purposes as
the obtainment, disclosure, or use of an individual’s motor vehicle record information. See
Graczyk v. West Publ’g Co., 660 F.3d 275, 278 (7th Cir. 2011); see also Massachusetts v. EPA,
549 U.S. 497, 516 (2007) (“Congress has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy where none existed before”). Plaintiffs
claim that the Moving Defendants obtained their data for an impermissible purpose and so
dismissal on standing grounds would not be proper.
16

Consequently, dismissal over the narrow issue of whether the complaint adequately pleads actual
damages would be inappropriate and the damages question posed by the City Defendants need
not be decided at this stage.
C. Obtainment
The City Defendants also seek a ruling as a general matter that “[i]f driver’s license data
is merely searched or viewed it is not ‘obtained, disclosed, or used’ for purposes of” liability
under the DDPA. They primarily focus on the meaning of “obtainment” in the context of the
civil action provision of 18 U.S.C. § 2724(a). But the Court cannot make the requested ruling in
the abstract, because whether a particular act qualifies as “obtainment” under the provision—and
then further whether the act satisfies the conditions under § 2724(a) that the defendant
“knowingly obtains” the information “for a purpose not permitted”—depends on the
circumstances involved.
A consideration of the plain meaning of the term “obtain” and a simple thought
experiment confirms this point. Dictionary definitions of the term “obtain” use descriptors that
signal acquisition or possession. See, e.g., Merriam-Webster’s Collegiate Dictionary (10th ed.
2001) (“to gain or attain”); Shorter Oxford English Dictionary (6th ed. 2007) (“come into the
possession or enjoyment of; secure or gain as the result of request or effort; acquire, get”).
Given the plain meaning of the term “obtain” in common usage, a person who steals a disk with
the entire DPS database on it would be said to have obtained the information, even if she has not
yet viewed a single record. See also Cook, 663 F.3d at 994 (referring to receipt of the entire
database in terms of “obtaining” it). If she then pulled up a record from the disk and viewed it
on her computer, it would be incongruous to say that she again obtained the information, since
she already had possession of it by virtue of her earlier acquisition of the disk.

17

But suppose she stepped out of the room, and someone else came in and pulled up a
record from the disk to view it. That person’s viewing of the information would be conflated
with his obtainment of it, such that he would be said to have obtained the information when he
viewed it. Consequently, resolution of the dispute over whether the complaint states a DPPA
violation against the Moving Defendants cannot turn on evaluating whether “searching” or
“viewing” in the abstract constitutes obtainment. Rather, the allegations of the complaint must
be evaluated to determine whether they state a violation under 18 U.S.C. § 2724(a).
II.

Complaint’s Allegations Against the Moving Defendants
A. DPPA Claims
To survive the present motions, Plaintiffs’ complaint must state sufficient facts to make it

plausible that each of the Moving Defendants knowingly obtained, disclosed, or used Plaintiffs’
personal information for an impermissible purpose. See 18 U.S.C. § 2724(a). The exhibits to the
complaint contain the only information specific to the actions of the individual Moving
Defendants. Those exhibits lay out the fact that the Moving Defendants accessed Plaintiffs’
information at particular times.
Defendants contend that those accesses alone do not amount to “obtainment” in the
absence of facts alleging subsequent use of the data. 3 But the plain language of the civil action
provision shows that an act of obtainment or of use may be the basis for liability as the provision
3

Some of the Defendants also contend that in Sekhar v. United States, 133 S. Ct. 2720
(2013), the Supreme Court defined the term “obtains” in a manner that would exclude mere
searching or viewing of information. But Sekhar does not address the definition of “obtains” in
isolation. Rather the opinion discusses the phrase “obtaining of property” in the context of the
Hobbs Act’s definition of the crime of extortion. See Sekhar, 133 S. Ct. at 2723-25. The Court’s
statement that “[o]btaining property requires ‘not only the deprivation but also the acquisition of
property,’” relates to how the extortion provision at issue should be interpreted. See id. at 2725
(quoting earlier cases that discuss the elements of the crime of extortion under the Hobbs Act).
Sekhar does not supply a stand-alone definition of the term “obtains” that can be applied in the
context of the DPPA’s reference to obtaining information.
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provides for liability against a person who “knowingly obtains, discloses or uses” personal
information for an impermissible purpose. See id. The use of the disjunctive “or” confirms that
obtainment may, at least under some circumstances, be a liability-inducing act without a
subsequent use. See Reiter v. Sonotone Corp., 442 U.S. 330, 338-39 (1979) (explaining that
words connected by a disjunctive “or” ordinarily have separate meaning and independent
significance).
The plain language of the provision, however, also makes clear that the personal
information must be knowingly obtained “for a purpose not permitted.” See 18 U.S.C. §
2724(a); see also Kiminski, 2013 U.S. Dist. LEXIS 157829, at *14-16. The complaint must
therefore allege facts regarding each of the individual Moving Defendants that support an
inference that the Defendant knowingly accessed Plaintiffs’ data for an impermissible purpose.
Plaintiffs bear the burden of making a showing of an impermissible purpose. See Fed. R. Civ. P.
8(a). The only appellate court to have analyzed the burden question in detail confirmed that a
plaintiff asserting a DPPA violation must make a showing of an impermissible purpose. Thomas
v. George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, P.A., 525 F.3d 1107, 1110-14
(11th Cir. 2008).
The complaint fails to allege factual content against any of the Moving Defendants—all
of whom are governmental entities—that supports a “reasonable inference” of an impermissible
purpose for accessing Plaintiffs’ data. See Iqbal, 556 U.S. at 678. The DPPA includes a
significant general exemption for the operations of governmental agencies. The very first
permissible use of motor vehicle data specified by 18 U.S.C. § 2721(b) is
[f]or use by any government agency, including any court or law enforcement agency, in
carrying out its functions, or any private person or entity acting on behalf of a Federal,
State, or local agency in carrying out its functions.

19

The statute and its legislative history show that this exemption is intended to broadly cover the
operations of governmental entities.
Legislators explicitly noted that the DPPA was designed to ensure that “federal and state
governments and their contractors” will “continue to have unfettered access” to motor vehicle
record information:
Careful consideration was given to the common uses now made of this information and
great efforts were made to ensure that those uses were allowed under this bill. Among
those who will continue to have unfettered access are federal and state governments and
their contractors, for use in auto recalls, by businesses (such as an insurance company) to
verify the accuracy of personal information submitted by a licensee, for use in any civil
or criminal proceeding, in research activities, and in marketing activities as long as the
individual has been given the opportunity to opt out.
Protecting Driver Privacy: Hearings on H.R. 3365 Before the Subcomm. on Civil and
Constitutional Rights of the House Comm. on the Judiciary, 103d Cong., 2d Sess., 1994 WL
212698 (1994) (Statement of Rep. James P. Moran) (emphasis added); see Smythe, 2013 U.S.
Dist. LEXIS 78948, at *14 (“With the exception of misuse, the DPPA’s legislative history
indicates a desire to preserve broad discretion for law enforcement agents to retrieve information
in the course of their duties.”).
The language of the government use exception of § 2721(b)(1) reflects congressional
intent to leave essentially intact governmental agencies’ ability to access and use motor vehicle
record data in conducting their operations. The provision uses broad language in allowing for
use of the data by a government agency “in carrying out its functions.” Unlike the other
provisions that define an exemption by reference to the user of the data as well as the use, the
exception for government use under (b)(1) does not include more specific qualifications or
limitations. Cf. 18 U.S.C. § 2721(b)(3) (restricting “use in the normal course of business by a
legitimate business” to particular uses); § 2721(b)(6) (limiting insurance-related parties to uses

20

“in connection with claims investigation activities, antifraud activities, rating or underwriting”);
§ 2721(b)(8) (limiting use by licensed private investigative agencies or security services for “any
purpose permitted” under the section). Also, unlike the exemption of § 2721(b)(4) for data uses
in connection with court and agency proceedings, the government functions exemption does not
include specific examples suggestive of limited categories of activities covered by the provision.
In evaluating the scope of § 2721(b)(4), the Supreme Court pointed to its enumeration of specific
examples as indicative and restrictive of the type of attorneys’ conduct related to litigation that
the exemption covers. See Maracich v. Spears, 133 S. Ct. at 2201-02.
To survive the present motions, the complaint must include factual allegations of an
impermissible purpose for each of the Moving Defendants in light of the broad range of
permissible uses that a governmental agency might have for motor vehicle data. Moreover,
although Plaintiffs have sued Defendants in a single action, Plaintiffs’ claims against each
Moving Defendant must be evaluated independently. Although Plaintiffs assert similar claims
against the Moving Defendants, the claims against each stand alone, as no concert of action has
been alleged. Each of the motions must be evaluated with these considerations in mind.
i. Hennepin County’s Motion (Docket No. 107)
Hennepin County seeks dismissal of all counts of the complaint against it, and if any
counts survive, it seeks severance of the action against it. In their brief, Plaintiffs claim that
Hennepin County obtained Plaintiff Kost’s data at least ten times and Plaintff DeVary’s data at
least eight times. These numbers correspond to the number of entries on the exhibits to the
complaint that list Hennepin County. Multiple entries, however, show the same transaction
number or appear close in time. The exhibits include entries for Plaintiff Kost’s data on

21

10/24/2006, 9/21/2007, and 12/7/2010. They show entries for Plaintiff DeVary on 7/8/2009 and
12/7/2010.
Exclusion of the accesses subject to the statute of limitations, leaves Hennepin County’s
accesses of Plaintiffs’ data on 7/8/2009 and 12/7/2010 for consideration. The complaint does not
allege any facts that support an inference that those accesses were for an improper purpose rather
than a permissible use by a government agency in carrying out its functions, as allowed under 18
U.S.C. § 2721(b)(1). Even assuming that the complaint’s allegations regarding data retrievals
after some publicity stated enough to make impropriety plausible, neither instance of the
publicity that Plaintiff Kost received implicates Hennepin County’s accesses at issue. Any
accesses around the time of the 2006 publicity would be outside the statute of limitations period
and, at any rate, Hennepin County did not have any accesses at that time. Additionally, the other
Hennepin County accesses all predate the publicity that the complaint mentions for Plaintiff Kost
in the late summer and fall of 2011.
The complaint’s reference to the actions of a former police officer is not connected to
Hennepin County. Although the alleged facts signal that Plaintiffs know the identity of the
offending former police officer, the complaint pointedly does not name him as a defendant.
While the facts alleged regarding his actions might state a violation of the DPPA, he cannot be
the basis to keep any and all defendants in the case in the absence of any alleged facts linking
them to him. Thus, Plaintiffs fail to allege sufficient facts against Hennepin County to state a
claim under the DPPA.
ii. The County Defendants’ Motion (Dkt. No. 119)
Defendants Carver County, Chisago County, and Washington County brought their
motion under Federal Rules of Civil Procedure 12(b)(6) and 12(c). According to the exhibits to

22

the complaint, these Defendants only accessed Plaintiff DeVary’s data. Carver County did so on
7/6/2010 and 7/9/2010; Chisago County on 7/31/2009; and Washington County on 1/6/2009.
For the same reasons stated above for Hennepin County, the complaint fails to allege a claim
under the DPPA against any of the County Defendants.
iii. Dakota County’s Motion (Dkt. No. 129)
Dakota County moves for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). Excluding accesses for which any DPPA claim would be time-barred, Dakota
County accessed Plaintiff Kost’s data on 5/19/2010 and Plaintiff DeVary’s data on 11/11/2009,
according to the exhibits to the complaint. For the same reasons that applied to the Defendants
discussed above, the complaint fails to state a DPPA violation based on those accesses and the
complaint against Dakota County must be dismissed.
iv. City Defendants’ Motion (Dkt. No. 123)
The City Defendants filed a motion to dismiss the complaint against them pursuant to
Federal Rule of Civil Procedure 12(b)(6). 4 The entries on Exhibits 1-4 reveal that the cities of
Bloomington, Burnsville, Eden Prairie, Apple Valley, Cottage Grove, Crosslake, Faribault,
Hastings, New Hope, Roseville, St. Louis Park, Minnetrista, Richfield, Brooklyn Park, Maple
Grove, Minnetonka, St. Cloud, Farmington, and South St. Paul, as well as the Centennial Lakes
Police Department, all stand in the same position as the Defendants who filed the other three
motions. In particular, the complaint does not allege any facts regarding the City Defendants’
accesses after March 14, 2009 that make an improper purpose for the accesses plausible.
4

The City Defendants filed an answer on August 7, 2013 and their motion to dismiss
subsequently. A motion to dismiss under Rule 12(b)(6) must be “made before pleading if a
responsive pleading is allowed.” Fed. R. Civ. P. 12(b). But a motion under Rule 12(c) may be
brought after the pleadings are closed and, because the distinction is purely formal, the motion
may be treated as if styled under Rule 12(c). See Westcott v. Omaha, 901 F.2d 1486, 1488 (8th
Cir. 1990).
23

Of the facts related to Plaintiff Kost’s publicity on two occasions and the incident with a
former police officer, only the publicity in the late summer and early fall of 2011 needs to be
considered. Two City Defendants, Crosslake and Lakeville, accessed Plaintiffs’ data in 2011.
For Crosslake, the complaint’s exhibits show a single such entry, on May 21, 2011. Because that
date precedes the alleged publicity at the end of summer and in the fall, the complaint fails to
state any facts that bear on the impropriety of Crosslake’s retrieval of Plaintiffs’ data.
For Lakeville, the exhibits include some accesses of Plaintiffs’ data within the “late
summer and fall” period of 2011. But those entries do not stand out as significant or unusual
when viewed against the history of Lakeville’s accesses of Plaintiffs’ data as shown in the
exhibits. The exhibits list a single access of Plaintiff DeVary’s data by the Lakeville Police
Department in 2011. The access occurred on 10/28/2011. But the Lakeville Police Department
accessed Plaintiff DeVary’s data on other occasions in 2010 and earlier as well. For Plaintiff
Kost, multiple entries with Lakeville in the name appear on 8/24/2011, 10/22/2011, 10/26/2011,
10/28/2011 and 11/18/2011. But in the same time period in 2009, Lakeville accessed her data on
9/8/2009, 9/24/2009, 9/29/2009, 10/2/2009, and 11/10/2009. Similarly, in 2010 there are entries
on 9/27/2010, 8/12/2010, and 10/29/2010. 5 The accesses by Lakeville in the late summer and
fall of 2011 do not stand out as unusual, and so they do not suggest an improper purpose
connected to Plaintiff Kost’s publicity. The complaint lacks any factual content that supports a
reasonable inference that Lakeville accessed Plaintiffs’ personal information in 2011, or at any
other time, for an improper purpose.

5

Entries with three transaction numbers appear on 10/22/11, but similarly, there are entries
with three transaction numbers on 10/29/10.
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B. Negligent Infliction of Emotional Distress Claims
As the Court previously found, Plaintiffs’ state law claim for negligent infliction of
emotional distress (“NIED”) cannot survive the dismissal of their DPPA and § 1983 claims
against a Defendant in this action. See Kost, 2013 U.S. Dist. LEXIS 145148, at *16-17. In
particular, to adequately state an NIED claim, a complaint must meet the requirements of stating
a negligence claim, which includes a duty of care and a breach of that duty, among other
elements. See id.; Engler v. Illinois Farmers Ins. Co., 706 N.W.2d 764, 767 (Minn. 2005).
Without a plausible DPPA claim or other violation under § 1983, Plaintiffs’ complaint fails to
state a breach that can support their NIED claim.
CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.

Defendant Hennepin County’s Motion to Dismiss [Docket No. 107] is
GRANTED.

2.

Defendants Carver County, Chisago County, and Washington County’s
Motion pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c)
[Docket No. 119] is GRANTED.

3.

Defendants Bloomington, Burnsville, Eden Prairie, Lakeville, Apple
Valley, Cottage Grove, Crosslake, Faribault, Hastings, New Hope,
Roseville, St. Louis Park, Minnetrista, Richfield, Brooklyn Park, Maple
Grove, Minnetonka, St. Cloud, Farmington, South St. Paul, and Centennial
Lakes Police Department’s Motion to Dismiss [Docket No. 123] is
GRANTED.

4.

Defendant Dakota County’s Motion for Judgment on the Pleadings
[Docket No. 129] is GRANTED.

5.

The First Amended Complaint against Defendants Hennepin County,
Carver County, Chisago County, Washington County, Bloomington,
Burnsville, Eden Prairie, Lakeville, Apple Valley, Cottage Grove,
Crosslake, Faribault, Hastings, New Hope, Roseville, St. Louis Park,
Minnetrista, Richfield, Brooklyn Park, Maple Grove, Minnetonka, St.

25

Cloud, Farmington, South St. Paul, and Centennial Lakes Police
Department is DISMISSED.
Dated: November 15, 2013
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

26