Bass v. Anoka County et al
Filing
100
ORDER granting 25 Motion to Dismiss; granting 43 Motion to Dismiss; granting 55 Motion for Judgment on the Pleadings; denying as moot 55 Motion to Sever; granting 59 Motion to Dismiss; granting 62 Motion for Judgment on the Pleadings; granting 67 Motion to Dismiss; granting 71 Motion for Judgment on the Pleadings (Written Opinion). Signed by Senior Judge David S. Doty on 2/21/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-860(DSD/JJG)
Brooke Nicole Bass,
Plaintiff,
v.
Anoka County; Benton County;
Blue Earth County; Carver County;
Chisago County; Clay County; Cook
County; Crow Wing County; Dakota
County; Dodge County; Goodhue
County; Hennepin County; Houston
County; Kandiyohi County; Lyon
County; McLeod County; Morrison
County; Murray County; Pipestone
County; Ramsey County; Rice County;
Scott County; Sherburne County;
Stearns County; Washington County;
Wright County; City of Alexandria;
City of Anoka; City of Apple Valley;
City of Appleton; City of Becker;
City of Bemidji; City of Big Lake;
City of Blaine; City of Bloomington;
City of Brooklyn Center; City of
Brooklyn Park; City of Burnsville;
City of Champlin; City of Cottage
Grove; City of Crystal; City of
Dayton; City of Eagan; City of Elk
River; City of Elko New Market;
City of Fairmont; City of Faribault;
City of Farmington; City of Forest Lake;
City of Fridley; City of Gaylord;
City of Hopkins; City of Inver Grove
Heights; City of Jackson; City of Jordan;
City of Kasson; City of Maple Grove;
City of Maplewood; City of Marshall;
City of Medina; City of Minneapolis;
City of Minnetonka; City of Minnetrista;
City of Moorhead; City of Morris;
City of Mounds View; City of New Hope;
City of New Ulm; City of North Mankato;
City of North St. Paul; City of Oakdale,
City of Osseo, City of Plymouth; City of
Princeton; City of Prior Lake; City of
Ramsey; City of Richfield; City of
Robbinsdale; City of Rosemount; City
ORDER
of Roseville; City of Sartell; City
of Savage; City of Shakopee; City
of Slayton; City of Sleepy Eye;
City of Spring Lake Park; City of
St. Anthony; City of St. Cloud;
City of St. Francis; City of St.
Joseph; City of St. Louis Park;
City of Stillwater; City of Two
Harbors; City of Wayzata; City
of West Saint Paul; City of Winona;
Michael Campion, acting in his
individual capacity as Commissioner
of the Minnesota Department of
Public Safety; Mona Dohman, acting
in her individual capacity as
Commissioner of the Minnesota
Department of Public Safety; John
and Jane Does (1-500) acting in
their individual capacity as
supervisors, officers, deputies,
staff, investigators, employees or
agents of the other named
law-enforcement agencies; Department
of Public Safety Does (1-30) acting in
their individual capacity as officers,
supervisors, staff, employees, independent
contractors or agents of the Minnesota
Department of Public Safety; and
Entity Does (1-50) including cities,
counties, municipalities, and other
entities sited in Minnesota and federal
departments and agencies,
Defendants.
Kenneth H. Fukuda, Esq., Lorenz F. Fett, Jr., Mark H.
Zitzewitz, Esq., Sonia L. Miller-VanOort, Esq., Jonathan
A. Strauss, Esq. and Sapientia Law Group PLLC, 12 South
Sixth Street, Suite 1242, Minneapolis, MN 55402, counsel
for plaintiff.
Bryan D. Frantz, Esq. Anoka County Attorney’s Office,
2100 Third Avenue, Anoka, MN 55303; Andrea G. White,
Esq., Dakota County Attorney’s Office, 1560 Highway 55,
Hastings, MN 55033; Beth A. Stack, Esq., Toni A. Beitz,
Esq. and Hennepin County Attorney’s Office, 300 South
Sixth Street, Suite C-2000, Minneapolis, MN 55487; Andrea
K. Naef, Esq., Kristin R. Sarff, Esq. and Minneapolis
2
City Attorney’s Office, 350 South Fifth Street, Room 210,
Minneapolis, MN 55415; Kimberly R. Parker, Esq., Robert
B. Roche, Esq. and Ramsey County Attorney’s Office, 121
Seventh Place East, Suite 4500, St. Paul, MN 55101;
Joseph E. Flynn, Esq., Jamie L. Guderian, Esq. and
Jardine, Logan & O’Brien, PLLP, 8519 Eagle Point
Boulevard, Suite 100, Lake Elmo, MN 55042; Susan M.
Tindal, Esq., Jon K. Iverson, Esq. and Iverson, Reuvers,
Condon, 9321 Ensign Avenue South, Bloomington, MN 55438;
John S. Garry, Esq., John R. Mule, Esq., Oliver J.
Larson, Esq. and Minnesota Attorney General’s Office,
Suite 1100, 445 Minnesota Street, St. Paul, MN 55101,
Attorneys for defendants.
This matter is before the court upon defendants’ motions to
dismiss and motions for judgment on the pleadings.1
1
Hennepin
Defendants include Anoka County, Benton County, Blue Earth
County, Carver County, Chisago County, Clay County, Cook County,
Crow Wing County, Dakota County, Dodge County, Goodhue County,
Hennepin County, Houston County, Kandiyohi County, Lyon County,
McLeod County, Morrison County, Murray County, Pipestone County,
Ramsey County, Rice County, Scott County, Sherburne County, Stearns
County, Washington County and Wright County (collectively, County
Defendants); City of Alexandria, City of Anoka, City of Apple
Valley, City of Appleton, City of Becker, City of Bemidji, City of
Big Lake, City of Blaine, City of Bloomington, City of Brooklyn
Center, City of Brooklyn Park, City of Burnsville, City of
Champlin, City of Cottage Grove, City of Crystal, City of Dayton,
City of Eagan, City of Elk River, City of Elko New Market, City of
Fairmont, City of Faribault, City of Farmington, City of Forest
Lake, City of Fridley, City of Gaylord, City of Hopkins, City of
Inver Grove Heights, City of Jackson, City of Jordan, City of
Kasson, City of Maple Grove, City of Maplewood, City of Marshall,
City of Medina, City of Minnetonka, City of Minnetrista, City of
Moorhead, City of Morris, City of Mounds View, City of New Hope,
City of New Ulm, City of North Mankato, City of North St. Paul,
City of Oakdale, City of Osseo, City of Plymouth, City of
Princeton, City of Prior Lake, City of Ramsey, City of Richfield,
City of Robbinsdale, City of Rosemount, City of Roseville, City of
Sartell, City of Savage, City of Shakopee, City of Slayton, City of
Sleepy Eye, City of Spring Lake Park, City of St. Anthony, City of
St. Cloud, City of St. Francis, City of St. Joseph, City of St.
(continued...)
3
County also moves to sever the claims against it.
Based on a
review of the file, record and proceedings herein, and for the
following reasons, the court grants the motions to dismiss and the
motions for judgment on the pleadings and denies as moot the motion
to sever.
BACKGROUND
This privacy dispute arises out of defendants’ access of the
motor vehicle record of plaintiff Brooke Nicole Bass between 2005
and 2012.
Compl. ¶ 260.
Bass asserts claims against numerous
counties and cities, as well as against the current and former
commissioners of the Minnesota Department of Public Safety (DPS).
DPS makes drivers’ motor vehicle records available to law
enforcement officers through a computerized Driver and Vehicle
Services (DVS) database.
Id. ¶ 128.
In 2013, Bass requested an
audit of her DVS motor vehicle record from DPS.
Ex. A.
Id. ¶ 3; see id.
The audit showed that the record had been accessed hundreds
of times from facilities maintained by defendant counties and
(...continued)
Louis Park, City of Stillwater, City of Two Harbors, City of
Wayzata, City of West St. Paul and City of Winona (collectively,
City Defendants); City of Minneapolis; Michael Campion, acting in
his individual capacity as Commissioner of the Minnesota Department
of Public Safety and Mona Dohman, acting in her individual capacity
as Commissioner of the Minnesota Department of Public Safety
(collectively, Commissioner Defendants); and unknown persons, in
their individual capacities as law enforcement and DPS personnel,
and unknown entities (collectively, Unknown Defendants).
4
cities.
See Compl. ¶ 371.
The record included her address,
photograph, date of birth, weight, height, eye color and driver
identification number.
Id. ¶ 227.
Each City and County Defendant
accessed the record between one and seventy-four times.
Ex. A.
See id.
Bass alleges that there was no legitimate purpose for each
access, and that the Commissioner Defendants “knowingly disclosed
[her] ... [p]rivate [d]ata and violated state policy by devising
and implementing ... the DVS Database.”
Compl. ¶ 240.
On April 12, 2013, Bass filed suit, alleging claims (1) under
the Driver’s Privacy Protection Act (DPPA), (2) under 42 U.S.C.
§ 1983 and (3) for invasion of privacy.
The Commissioners, County
and City Defendants each move to dismiss or for judgment on the
pleadings.2
Hennepin County also moves to sever.
DISCUSSION
I.
Standard of Review
The same standard governs 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 for
failure to state a claim, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
2
The City of Minneapolis is the sole defendant that does not
move to dismiss or for judgment on the pleadings.
5
is plausible on its face.”
Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009) (citations and internal quotation
marks
omitted).
“A
claim
has
facial
plausibility
when
the
plaintiff [has pleaded] factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)).
Although a complaint need not contain detailed factual
allegations, it must raise a right to relief above the speculative
level. See Twombly, 550 U.S. at 555.
“[L]abels and conclusions or
a formulaic recitation of the elements of a cause of action” are
not sufficient to state a claim.
Iqbal, 129 S. Ct. at 1949
(citation and internal quotation marks omitted).
II.
DPPA Claims
Bass
first
asserts
violations of the DPPA.
a
claim
against
all
defendants
for
The DPPA provides that “[i]t shall be
unlawful for any person knowingly to obtain or disclose personal
information,3
from
a
motor
vehicle
record,
permitted under section 2721(b)4 of this title.”
for
any
use
not
18 U.S.C. § 2722.
3
The DPPA defines “personal information” as including “an
individual’s
photograph,
social
security
number,
driver
identification number, name, address ..., telephone number, and
medical or disability information.” 18 U.S.C. § 2725(3).
4
Section 2721(b) provides that permissible uses include, but
are not limited to: court and law enforcement functions, motor
vehicle or driver safety or monitoring, certain conduct of
(continued...)
6
Under the DPPA, any “person5 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.” Id. § 2724(a). Bass
alleges that all defendants either obtained or disclosed her
information without a permitted purpose.
A.
Statute of Limitations
Defendants first argue that some of the DPPA claims are timebarred.
Because
the
DPPA
does
not
contain
a
statute
of
limitations, the general four-year federal statute of limitations
applies. See 28 U.S.C. § 1658(a) (“Except as otherwise provided by
law, a civil action arising under an Act of Congress ... may not be
commenced later than 4 years after the cause of action accrues.”).
The parties dispute, however, when a DPPA cause of action accrues.
Defendants argue that the court should adopt “[t]he general rule
concerning statutes of limitation[, which] is that a cause of
action accrues when the wrong occurs and a party sustains injuries
for
which
relief
could
be
sought.”
Ridenour
v.
Boehringer
(...continued)
legitimate
businesses,
research
activities,
production
of
statistical
reports,
insurance-related
purposes,
private
investigative agency or security service activities and bulk
distribution of surveys and marketing materials. 18 U.S.C.
§ 2721(b).
5
A “person” includes “an individual, organization or entity,
but does not include a State or agency thereof.” 18 U.S.C.
§ 2725(2).
7
Ingelheim Pharms., Inc., 679 F.3d 1062, 1065 (8th Cir. 2012) (first
alteration in original) (citations and internal quotation marks
omitted).
Bass responds that the “discovery rule” applies, and
that “the statutory period of limitations is tolled until the
injured party discovers or reasonably should have discovered facts
supporting a cause of action.”
Id. (citations omitted).
Although the Eighth Circuit is silent on when a DPPA cause of
action accrues, courts in this district hold that the general
accrual rule applies to the DPPA.
See, e.g., Rasmusson v. Chisago
Cnty., No. 12-632, 2014 WL 107067, at *12 (D. Minn. Jan. 10, 2014);
Kost v. Hunt, No. 13-583, 2013 WL 6048921, at *8 (D. Minn. Nov. 15,
2013).
In Kost, Judge Ericksen considered relevant precedent as
well as textual, historical and equitable arguments before applying
the general accrual rule to DPPA claims.
The court
finds
Kost
persuasive
and
applying the general accrual rule.6
6
2013 WL 6048921, at *5-8.
adopts
its
reasoning
in
As a result, all claims
Bass also argues that, even if the general accrual rule
otherwise applies, the court should apply the discovery rule
because defendants fraudulently concealed their activities.
In
some situations, “fraudulent concealment of information material to
a non-fraud claim will toll a limitations period.”
Abbotts v.
Campbell, 551 F.3d 802, 805-06 (8th Cir. 2008) (citation omitted).
However, “[u]nder Rule 9(b)’s heightened pleading standard,
allegations of fraud, including fraudulent concealment for tolling
purposes, [must] be pleaded with particularity.” Summerhill v.
Terminix, Inc., 637 F.3d 877, 880 (8th Cir. 2011) (second
alteration in original) (citation and internal quotation marks
omitted). Here, Bass has not pleaded fraudulent concealment, let
alone pleaded it with the requisite particularity. As a result,
the allegations of fraudulent concealment are not properly before
(continued...)
8
relating to conduct before April 12, 2009 — four years before the
present action was commenced — are time-barred, and dismissal of
those claims is warranted.
B.
Claims Against Commissioners
As to the timely claims, Bass first alleges DPPA claims
against
the
Commissioner
Defendants.
Bass
does
not
allege,
however, that the Commissioner Defendants personally obtained the
record or personally communicated such information to others.
Rather, Bass alleges that the Commissioner Defendants created,
maintained and inadequately monitored the DVS database, thereby
facilitating others’ improper access to the record.
To be liable under the DPPA, however, “the Commissioners
themselves must have acted with ... a[n impermissible] purpose.”
Nelson v. Jesson, No. 13-340, 2013 WL 5888235, at *3 (D. Minn. Nov.
1, 2013) (emphasis in original).
In other words, the DPPA does not
impose liability on one who indirectly facilitates another’s access
of a motor vehicle record by maintaining an electronic database.
See id.; see also Kiminski v. Hunt, Nos. 13-185, 13-208, 13-286,
13-358, 13-389, 2013 WL 6872425, at *9 (D. Minn. Sept. 20, 2013)
(“But the provision[s of the DPPA] may not be stretched to the
point of rewriting .... so [that the statute] reaches others at a
state agency who gave the officer database access for a legitimate
(...continued)
the court, and this argument is unavailing.
9
purpose, merely because they did so in a negligent manner.”).
Here, Bass has not pleaded that the Commissioner Defendants acted
with an impermissible purpose.
Moreover, unlike other statutes,
the DPPA does not expressly create a private right of action for
mismanagement of records, and the court declines to recognize one
here. See Kiminski, 2013 WL 6872425, at *9 (observing that, unlike
the DPPA, the Internal Revenue Code explicitly allows private
damages
claims
information).
for
negligent
disclosures
of
confidential
As a result, dismissal as to the timely DPPA claims
against the Commissioner Defendants is warranted.
C.
Claims Against Cities and Counties
As to the remaining claims, Bass alleges that the City and
County Defendants accessed her motor vehicle record “for a purpose
not permitted under the DPPA.”
Compl. ¶ 313.
Defendants respond
that such allegations are insufficient to state a claim under Iqbal
and Twombly.
The court agrees.
Under the DPPA, the plaintiff has the burden of pleading that
a defendant accessed a motor vehicle record with an impermissible
purpose.
See Maracich v. Spears, 675 F.3d 281, 299-300 (4th Cir.
2012), vacated on other grounds, 133 S. Ct. 2191 (2013); Howard v.
Criminal Info. Servs., Inc., 654 F.3d 887, 890-91 (9th Cir. 2011);
Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, &
Stevens, P.A., 525 F.3d 1107, 1113-14 (11th Cir. 2008). Here, Bass
baldly
states
that
“[n]one
of
10
the
[i]ndividual
[d]efendants’
activities
fell
within
the
DPPA’s
procurement of Bass’s information.”
permitted
exceptions
Compl. ¶ 314.
for
Bass thus asks
the court to speculate and conclude — solely from the number of
times defendants allegedly accessed the record — that the purposes
of law enforcement personnel were impermissible.
explained,
however,
“labels
and
conclusions
or
As already
a
formulaic
recitation of the elements of a cause of action” are not sufficient
to state a claim.
Iqbal, 129 S. Ct. at 1949 (citation and internal
quotation
omitted).
marks
Although
at
this
stage
in
the
proceedings, Bass is entitled to the benefit of all reasonable
inferences, “a reasonable inference is one which may be drawn from
the evidence without resort to speculation.”
Kinserlow v. CMI
Corp., 217
(emphasis
F.3d
1021,
1026
(8th
Cir.
2000)
added)
(citation and internal quotation marks omitted).
Moreover, “in the absence of clear evidence to the contrary,
courts presume that [public officers] have properly discharged
their official duties.”
United States v. Chem. Found., Inc., 272
U.S. 1, 14-15 (1926) (citations omitted), cited with approval in
Wilburn v. Astrue, 626 F.3d 999, 1003-04 (8th Cir. 2010); cf.
United States v. Eklund, 733 F.2d 1287, 1294 (8th Cir. 1984)
(noting that the court was “unwilling to infer improper motivation”
of government officials given the presumption of regularity).
Further,
the
legislative
history
of
the
DPPA
indicates
that
Congress intended to preserve broad discretion for government
11
entities and agents in accessing motor vehicle records.
2013 WL 6048921, at *11-12.
See Kost,
As a result, the court will not infer
from bare, conclusory allegations that defendants’ purposes were
improper.
See Lancaster v. City of Pleasanton, No. C-12-05267,
2013 WL 5182949, at *3-4 (N.D. Cal. Sept. 13, 2013) (dismissing
DPPA claim as insufficiently detailed to satisfy Rule 8(a) pleading
requirements).
Therefore, Bass has not adequately pleaded the DPPA
claims under Twombly and Iqbal, and dismissal of the remaining
timely DPPA claims is warranted.
III.
Section 1983 Claims
Bass next alleges § 1983 claims, arguing that defendants
violated her Fourth and Fourteenth Amendment rights by accessing
her information or allowing others to do so.
Claims under § 1983
require that defendants acted under color of state law and that
their conduct resulted in a denial of rights secured by the United
States Constitution or by federal law.
Scheeler v. City of St.
Cloud, Minn., 402 F.3d 826, 830 (8th Cir. 2005).
Section 1983 is
not an independent source of rights, and a complaint must allege a
deprivation of a specific right, privilege or immunity.
Becker, 793 F.2d 185, 187 (8th Cir. 1986).
Morton v.
Defendants argue that
they did not violate any constitutional or statutory right.
A.
Constitutional Claims
Bass alleges that defendants violated her constitutional right
to
privacy
and
her
constitutional
12
right
to
be
free
from
unreasonable search, and that the City Defendants are vicariously
liable for the unconstitutional acts of their employees.
1.
Right to Privacy
Bass alleges that defendants violated her Fourth Amendment
right to privacy.7
privacy
the
“[T]o violate the constitutional right of
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.”
Van Zee v. Hanson, 630 F.3d 1126, 1128
(8th Cir. 2011) (alterations in original) (citation and internal
quotation marks omitted).
A constitutional privacy claim “depends
upon whether the plaintiff had a reasonable expectation of privacy
in the information.”
marks omitted).
Id. at 1129 (citation and internal quotation
This standard is “a high bar ... [such] that 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).
Here,
the
mere
fact
that
the
data about
Bass
allegedly
accessed by defendants was personal information does not render it
private information subject to constitutional protection.
An
expectation of privacy is reasonable where there is “both an actual
subjective
expectation
and,
even
7
more
importantly
...
that
“The Fourth Amendment applies to the states through the
Fourteenth Amendment.” Barrett v. Claycomb, 705 F.3d 315, 321 n.3
(8th Cir. 2013) (citation omitted).
13
expectation must be one which society will accept as reasonable.”
McDonell v. Hunter, 809 F.2d 1302, 1306 (8th Cir. 1987) (citations
omitted).
Bass alleges that defendants accessed data including her
address, photograph, date of birth, weight, height, eye color and
driver identification number.
Even if Bass had a subjective
expectation of privacy in this information, such an expectation is
not one that is objectively reasonable.
Indeed, such information
is not uniquely available from the DVS database.
Reno,
155
F.3d
453,
465
(4th
Cir.
1998)
See Condon v.
(“[T]he
identical
information can be obtained from public property tax records ...
[and] there is a long history in the United States of treating
motor vehicle records as public records.” (citations omitted)),
rev’d on other grounds sub nom. Reno v. Condon, 120 S. Ct. 666
(2000).
A driver’s license contains such information precisely
for, among other purposes, identifying oneself to others, cashing
checks, using credit cards, boarding airplanes or purchasing agerestricted products.
See Nelson, 2013 WL 5888235, at *5.
Moreover, contexts involving public regulation necessarily
require reduced expectations of privacy.
See id. (“[P]ervasive
schemes of regulation, like vehicle licensing, must necessarily
lead to reduced expectations of privacy.” (citation and internal
quotation marks omitted)).
information
with
Further, drivers routinely share such
government
actors
14
for
purposes
of
vehicle
licensing
and
registration,
and
“a
person
has
no
legitimate
expectation of privacy in information he voluntarily turns over to
third parties.”
Smith v. Maryland, 442 U.S. 735, 743-44 (1979)
(citations omitted).
Where, as here, an individual voluntarily
discloses information for limited purposes, such information is not
subject to Fourth Amendment protection.
Cf. United States v.
Miller, 425 U.S. 435, 443 (1976) (“[T]he Fourth Amendment does not
prohibit
the
obtaining
of
information
...
conveyed
...
to
Government authorities, even if the information is revealed on the
assumption that it will be used only for a limited purpose ....”).
Finally, Congress expressly recognized numerous situations in
which the information contained in motor vehicle records may be
lawfully
accessed.
See
18
U.S.C.
§
2721(b).
Given
these
exceptions, the information in the DVS database is not subject to
a reasonable expectation of privacy once communicated to DPS.
sum, any
expectation
of
privacy
Bass
had
in
the
In
information
defendants allegedly accessed is not one society recognizes as
reasonable.
As a result, there is no constitutional right to
privacy in the information allegedly accessed, and dismissal is
warranted.
2.
Right to Freedom from Unreasonable Search
Bass next alleges that, by accessing the record, defendants
violated her Fourth Amendment right to be free from unreasonable
search.
Bass, however, lacks standing to argue that the alleged
15
access of the record violated her Fourth Amendment rights. “Fourth
Amendment rights are personal and may not be asserted vicariously.”
United States v. Green, 275 F.3d 694, 698 (8th Cir. 2001) (citation
omitted).
That is, an individual must have a sufficient personal
interest in the object of a search or seizure in order to trigger
Fourth Amendment rights.
1365,
1369
(8th
Cir.
See United States v. Kelly, 529 F.2d
1976).
Here,
the
record
containing
information about Bass belongs not to her, but to DPS.
Cf. United
States v. Wilson, 806 F.2d 171 (8th Cir. 1986) (finding no standing
to challenge admission of bank records because “materials were bank
records
rather
omitted)).
than
defendant’s
private
papers”
(citation
As a result, Bass does not have standing to assert a
Fourth Amendment claim based on access of the DVS database.
For
this reason alone, dismissal is warranted.
Even if Bass had standing, however, defendants argue that
accessing a motor vehicle record is not a search under the Fourth
Amendment.
The court agrees.
An intrusion is a search for Fourth
Amendment purposes only “if it violates a person’s reasonable
expectation of privacy,”
Nelson v. Jesson, No. 13-340, 2013 WL
5888235, at *5 (D. Minn. Nov. 1, 2013) (citation and internal
quotation marks omitted).
As already explained, Bass did not have
a reasonable expectation of privacy in the information contained in
the motor vehicle record.
See Rasmusson v. Chisago Cnty., No. 12-
632, 2014 WL 107067, at *7-8 (D. Minn. Jan. 10, 2014).
16
Thus, any
access
of
Bass’s
Amendment.
record
was
not
a
search
under
the
Fourth
For this additional reason, dismissal is warranted.
3.
Municipal Liability
Bass next argues that the City Defendants are liable for the
acts of unknown defendants who accessed her information.
“[A]
municipality may be held liable for the unconstitutional acts of
its officials or employees when those acts implement or execute an
unconstitutional
municipal
policy
or
custom.”
Mettler
v.
Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (citing Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978)).
A municipality,
however, may not be held liable for its officers’ actions unless
the officers are “found liable on the underlying substantive
claim.”
Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir.
1994) (citations omitted), abrogated on other grounds by Engleman
v. Deputy Murray, 546 F.3d 944 (8th Cir. 2008).
explained,
all
constitutional
claims
against
the
As already
individual
defendants fail. As a result, dismissal of the municipal liability
claims against the City Defendants is warranted.
B.
Statutory Claims
Bass next argues that defendants’ alleged violations of the
DPPA are enforceable through 42 U.S.C. § 1983.8
8
“Standing alone,
Courts have broadly construed § 1983 as providing a remedy
for official violations of many federally-protected rights. Lugar
v. Edmondson Oil Co., Inc., 457 U.S. 922, 934 (1982). As a result,
§ 1983 may provide a cause of action for statutory, as well as
(continued...)
17
[§] 1983 does not establish any substantive rights .... [A]n
underlying constitutional or statutory violation is a predicate to
liability under [§] 1983.” Henley v. Brown, 686 F.3d 634, 640 (8th
Cir. 2012) (citation omitted).
As already explained, Bass has
failed to state a claim that defendants violated the DPPA, and
dismissal is warranted for this reason alone.
Defendants argue that, even if Bass could state a claim for
violations of the DPPA, her § 1983 claims for statutory violations
should be dismissed because the DPPA is not enforceable through
§ 1983.
Several courts in this district have agreed with such a
position, finding that the DPPA precludes enforcement through
§ 1983.
See, e.g., Rasmusson, 2014 WL 107067, at *5; Nelson, 2013
WL 5888235, at *7; Kiminski, 2013 WL 6872425, at *14.
In Kiminski, for example, Judge Ericksen analyzed the text of
the DPPA and
its
similarity
to other
statutes
that preclude
enforcement through § 1983 and held that “consideration of the
DPPA’s explicit private remedy under 18 U.S.C. § 2724 confirms that
enforcement under § 1983 would be inconsistent with it.”
6872425,
at
*13.
The
court
finds
the
analysis
in
2013 WL
Kiminski
persuasive and adopts it in concluding that Congress foreclosed the
(...continued)
constitutional rights violations.
611 (8th Cir. 2001).
18
Grey v. Wilburn, 270 F.3d 607,
enforcement of the DPPA through § 1983.
expand the
spectrum
of
remedies
As a result, Bass may not
available
under
the
DPPA
by
enforcement through § 1983, and dismissal is warranted.
IV.
Invasion of Privacy Claim
Bass
next
Specifically,
seclusion.
alleges
Bass
argues
claims
that
for
invasion
defendants
of
intruded
privacy.
upon
her
Under Minnesota law,9 intrusion 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.” Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233 (Minn.
1998) (alteration in original) (citation and internal quotation
marks omitted).
Invasion of privacy claims involve “a preliminary
determination of offensiveness which must be made by the court in
discerning the existence of a cause of action.”
Bauer v. Ford
Motor Credit Co., 149 F. Supp. 2d 1106, 1109 (D. Minn. 2001)
(citation and internal quotation marks omitted).
“[T]he question
of what kinds of conduct will be regarded as a highly offensive
9
Intrusion upon seclusion is subject to the two-year statute
of limitations for torts resulting in personal injury. Hough v.
Shakopee Pub. Schs., 608 F. Supp. 2d 1087, 1118 (D. Minn. 2009).
Most of the alleged access occurred well before April 12, 2011 —
the date two years prior to the filing of this suit. As a result,
dismissal of claims pertaining to access occurring before April 12,
2011, is warranted.
19
intrusion
is
largely
a
matter
of
social
conventions
and
expectations.” Id. at 1110 (citations and internal quotation marks
omitted).
Here,
the
information
allegedly
accessed
included
Bass’s
address, photograph, date of birth, weight, height, eye color and
driver identification number. No reasonable person could find that
the alleged access of such information meets the “highly offensive”
threshold.
The information, though personal, is not particularly
sensitive or intimate in nature.
Further, as already explained,
individuals routinely turn over such information.
Moreover, the
few cases that have found actionable invasions of privacy are based
on much more egregious facts than those present here.
See, e.g.,
Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 745 (Minn.
Ct. App. 2001) (finding invasion of privacy where defendant altered
medical release form to obtain plaintiff’s medical information).
As a result, the claim for intrusion upon seclusion fails, and
dismissal is warranted.
V.
Severance
Finally, Hennepin County moves for severance pursuant to Rule
20. Rule 20 permits persons or entities to be joined as defendants
if “(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out of
the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all
20
defendants will arise in the action.”
Fed. R. Civ. P. 20(a)(2).
Rule 20 permits all “reasonably related” claims against different
parties “to be tried in a single proceeding.”
Mosley v. Gen.
Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974).
A court
assesses whether claims are reasonably related on a case-by-case
basis.
Id.
Bass fails to satisfy the first prong of the test announced in
Rule 20.
A plaintiff may not join defendants on the mere basis of
similar transactions — “the rule permitting joinder requires that
[a right to relief] arise from the same transactions.” Movie Sys.,
Inc. v. Abel, 99 F.R.D. 129, 130 (D. Minn. 1983) (emphasis in
original).
Here, the record was accessed between 2005 and 2012
from different locations spanning the state of Minnesota. Bass has
not pleaded any facts suggesting that the individual cities and
counties
acted
jointly
cooperated in doing so.
to
access
the
record
or
in
any
way
That is, “[n]o concert of action is
alleged, nor could it be because the operative facts of each
transaction are distinct and unrelated to any other.”
Id.
As a
result, the claims asserted by Bass are not “reasonably related.”
In essence, Bass suggests that “because [she] was wronged in
the same way by several different individuals, the transactional
requirement of Rule 20 is met.
Such a reading of Rule 20 would
improperly expand the Rule.” DIRECTV v. Loussaert, 218 F.R.D. 639,
643 (S.D. Iowa 2003); see also Movie Sys., Inc., 99 F.R.D. at 130
21
(characterizing
improperly
wholesale litigation”).
joined
claims
as
“inappropriate
Although Bass wishes to aggregate her
claims against a large number of defendants, joinder is wholly
inappropriate here.
Nevertheless, as already explained, the court
has determined that Bass fails to state a claim against Hennepin
County.
As a result, the motion to sever is denied as moot.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
The motions to dismiss and motions for judgment on the
pleadings [ECF Nos. 25, 43, 55, 59, 62, 67, 71] are granted;
2.
Dated:
The motion to sever [ECF No. 55] is denied as moot.
February 21, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
22
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