Potocnik v. Anoka County et al
Filing
79
ORDER granting 18 Motion to Dismiss; granting 31 Motion to Dismiss; denying as moot 31 Motion to Sever; granting 33 Motion to Dismiss; granting 35 Motion to Dismiss; granting 43 Motion to Dismiss; granting 48 Motion to Dismiss. (Written Opinion). Signed by Senior Judge David S. Doty on 2/21/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-1103(DSD/TNL)
Brian Potocnik,
Plaintiff,
ORDER
v.
Anoka County; Dakota County;
Hennepin County; Sherburne County;
St. Louis County; City of Apple
Valley; City of Big Lake;
City of Biwabik; City of Bloomington;
City of Brooklyn Center; City of
Brooklyn Park; City of Cambridge;
City of Deephaven; City of Dilworth;
City of Duluth; City of Eagan;
City of Elk River; City of Farmington;
City of Gilbert; City of Golden Valley;
City of Hancock; City of Hoyt Lakes;
City of Lake City; City of Lakeville;
City of Minneapolis; City of Moorhead;
City of New Hope; City of New Ulm;
City of Redwood Falls; City of Rosemount;
City of St. Paul; City of Virginia; City
of Wells; Michael Campion, acting in
his individual capacity as Commissioner
of the Minnesota Department of Public
Safety; Ramona Dohman, acting in her
individual capacity and, in her official
capacity for prospective relief only,
as Commissioner of the Minnesota
Department of Public Safety; John and
Jane Does (1-300) acting in their
individual capacity as supervisors,
officers, deputies, staff, investigators,
employees or agents of the others
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 (1-30) including cities,
counties, municipalities,
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; Joseph
E. Flynn, Esq., Jamie L. Guderian, Esq. and Jardine,
Logan & O’Brien, PLLP, 8519 Eagle Point Boulevard, Suite
100, Lake Elmo, MN 55042; Nick D. Campanario, Esq.,
Leslie E. Beiers, Esq. and St. Louis County Attorney’s
Office, 100 North Fifth Avenue West, Room 501, Duluth, MN
55802; Susan M. Tindal, Esq., Jon K. Iverson, Esq. and
Iverson, Reuvers, Condon, 9321 Ensign Avenue South,
Bloomington, MN 55438; M. Alison Lutterman, Esq., Nathan
N. LaCoursiere, Esq. Duluth City Attorney’s Office, 411
West First Street, Room 410, Duluth, MN 55802; 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 the motions to dismiss by
defendants and the motion to sever by Hennepin County.1
1
Based on
Defendants include Anoka County, Dakota County, Hennepin
County and Sherburne County (collectively, County Defendants); St.
Louis County; City of Apple Valley, City of Big Lake, City of
Biwabik, City of Bloomington, City of Brooklyn Center, City of
Brooklyn Park, City of Cambridge, City of Deephaven, City of
Dilworth, City of Eagan, City of Elk River, City of Farmington,
City of Gilbert, City of Golden Valley, City of Hancock, City of
Hoyt Lakes, City of Lake City, City of Lakeville, City of Moorhead,
City of New Hope, City of New Ulm, City of Redwood Falls, City of
Rosemount, City of Virginia and City of Wells (collectively, City
Defendants); City of Duluth; City of Minneapolis; City of St. Paul;
Michael Campion, acting in his individual capacity as Commissioner
(continued...)
2
a review of the file, record and proceedings herein, and for the
following reasons, the court grants the motions to dismiss and
denies as moot the motion to sever.
BACKGROUND
This privacy dispute arises out of defendants’ access of the
motor vehicle record of plaintiff Brian Potocnik between 2003 and
2011.
Compl. ¶ 2.
Potocnik 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. ¶ 55.
In 2013, Potocnik requested an
audit of his 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
cities.
See Compl. ¶ 371.
The record included his address,
photograph, date of birth, eye color, weight, height, medical
information and driver identification number.
Id. ¶ 91.
Each
(...continued)
of the Minnesota Department of Public Safety and Ramona Dohman,
acting in her individual capacity and in her official capacity for
prospective relief only 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).
3
defendant city and county accessed the record between one and 309
times.
See id. Ex. A.
Potocnik alleges that there was no
legitimate purpose for each access, and that the Commissioner
Defendants “knowingly disclosed [his] ... [p]rivate [d]ata and
violated state policy by devising and implementing ... [the DVS]
database.”
Compl. ¶ 102.
On May 9, 2013, Potocnik filed suit, alleging claims (1) under
the Driver’s Privacy Protection Act (DPPA) and (2) under 42 U.S.C.
§ 1983 for damages and injunctive relief.
The Commissioners,
County and City Defendants each move to dismiss.
Hennepin County
also moves to sever.
DISCUSSION
I.
Standard of Review
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 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).
facial
plausibility
when
the
plaintiff
[has
“A claim 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)).
4
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
Potocnik first asserts a claim against all defendants for
violations of the DPPA.
The DPPA provides that “[i]t shall be
unlawful for any person knowingly to obtain or disclose personal
information,2
from
a
motor
vehicle
record,
permitted under section 2721(b)3 of this title.”
for
any
use
not
18 U.S.C. § 2722.
Under the DPPA, any “person4 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).
2
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).
3
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
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).
4
A “person” includes “an individual, organization or entity,
but does not include a State or agency thereof.” 18 U.S.C.
§ 2725(2).
5
Potocnik alleges that all defendants either obtained or disclosed
his 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
Ingelheim Pharms., Inc., 679 F.3d 1062, 1065 (8th Cir. 2012) (first
alteration in original) (citations and internal quotation marks
omitted). Potocnik 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);
6
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
2013 WL 6048921, at *5-8.
adopts
its
reasoning
in
As a result, all claims
relating to conduct before May 9, 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, Potocnik first alleges DPPA claims
against the Commissioner Defendants.
Potocnik does not allege,
however, that the Commissioner Defendants personally obtained the
record or personally communicated such information to others.
6
Potocnik 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, Potocnik 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 the court, and this argument is unavailing.
7
Rather, Potocnik 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
purpose, merely because they did so in a negligent manner.”).
Here, Potocnik 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
(observing
one
here.
that,
See
unlike
Kiminski,
the
DPPA,
2013
the
WL
6872425,
Internal
at
Revenue
*9
Code
explicitly allows private damages claims for negligent disclosures
8
of confidential information).
As a result, dismissal as to the
timely
the
DPPA
claims
against
Commissioner
Defendants
is
warranted.
C.
Claims Against Cities and Counties
As to the remaining claims, Potocnik alleges that the City and
County Defendants accessed his motor vehicle record “for a purpose
not permitted under the DPPA.”
Compl. ¶ 170.
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).
Potocnik
baldly
[d]efendants’
states
that
“[n]one
of
activities
fell
within
the
the
[i]ndividual
DPPA’s
permitted
exceptions for procurement of Potocnik’s information.”
¶ 171.
Here,
Compl.
Potocnik 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.
As
already
explained,
however,
“labels
and
conclusions or a formulaic recitation of the elements of a cause of
9
action” are not sufficient to state a claim.
Iqbal, 129 S. Ct. at
1949 (citation and internal quotation marks omitted).
Although at
this stage in the proceedings, Potocnik 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 F.3d 1021, 1026 (8th Cir. 2000)
(emphasis 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
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
10
requirements).
Therefore, Potocnik 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
Potocnik next alleges § 1983 claims, arguing that defendants
violated his Fourth and Fourteenth Amendment rights by accessing
his 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
Potocnik alleges that defendants violated his constitutional
right to privacy and his constitutional right to be free from
unreasonable search, and that the City Defendants are vicariously
liable for the unconstitutional acts of their employees.
11
1.
Right to Privacy
Potocnik next alleges that defendants violated his Fourth
Amendment right to privacy.7
right of
privacy
“[T]o violate the constitutional
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.”
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.”
quotation marks omitted).
Id. at 1129 (citation and internal
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 Potocnik 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
more
importantly
...
that
expectation must be one which society will accept as reasonable.”
7
“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).
12
McDonell v. Hunter, 809 F.2d 1302, 1306 (8th Cir. 1987) (citations
omitted).
Potocnik alleges that defendants accessed data including his
address, photograph, date of birth, eye color, weight, height,
medical information and driver identification number.
Potocnik
had
a
subjective
expectation
of
privacy
Even if
in
this
information, such an expectation is not one that is objectively
reasonable.
Indeed, such information is not uniquely available
from the DVS database.
See Condon v. Reno, 155 F.3d 453, 465 (4th
Cir. 1998) (“[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 age-restricted products.
WL 5888235, at *5.
See Nelson, 2013
Further, though Potocnik baldly alleges that
defendants accessed his “medical information,” he does not claim
that such medical information was highly personal.
289
F.3d
at
information
517
is
(“We
not
merely
created
recognize
equal
and
See Cooksey,
that
all
...
should
not
be
health
treated
categorically under a privacy rights analysis.”); Alexander v.
Peffer, 993 F.2d 1348, 1351 (8th Cir. 1993) (recognizing that
13
constitutional protection extends to “highly personal” medical
information).
Moreover, contexts involving public regulation necessarily
require reduced expectations of privacy.
See Nelson, 2013 WL
5888235, at *5 (“[P]ervasive schemes of regulation, like vehicle
licensing,
privacy.”
must
necessarily
(citation
and
lead
to
internal
reduced
quotation
expectations
marks
of
omitted)).
Further, drivers routinely share such information with government
actors 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.
14
In
sum, any expectation of privacy Potocnik had in the 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.
Potocnik
Right to Freedom from Unreasonable Search
next
alleges
that,
by
accessing
the
record,
defendants violated his Fourth Amendment right to be free from
unreasonable search.
Potocnik, however, lacks standing to argue
that the alleged access of the record violated his 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.
States v. Kelly, 529 F.2d 1365, 1369 (8th Cir. 1976).
See United
Here, the
record containing information about Potocnik belongs not to him,
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
private papers” (citation omitted)).
rather
than
defendant’s
As a result, Potocnik does
not have standing to assert a Fourth Amendment claim based on
access of the DVS database.
For this reason alone, dismissal is
warranted.
15
Even if Potocnik 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).
have
a
reasonable
As already explained, Potocnik did not
expectation
of
privacy
contained in the motor vehicle record.
in
the
information
See Rasmusson v. Chisago
Cnty., No. 12-632, 2014 WL 107067, at *7-8 (D. Minn. Jan. 10,
2014).
Thus, any access of Potocnik’s record was not a search
under the Fourth Amendment.
For this additional reason, dismissal
is warranted.
3.
Municipal Liability
Potocnik next argues that the City Defendants are liable for
the acts of unknown defendants who accessed his 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.
16
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
Potocnik next argues that defendants’ alleged violations of
the DPPA are enforceable through 42 U.S.C. § 1983.8
“Standing
alone, [§] 1983 does not establish any substantive rights ....
[A]n
underlying
constitutional
or
statutory
predicate to liability under [§] 1983.”
violation
is
a
Henley v. Brown, 686 F.3d
634, 640 (8th Cir. 2012) (citation omitted). As already explained,
Potocnik has failed to state a claim that defendants violated the
DPPA, and dismissal is warranted for this reason alone.
Defendants argue that, even if Potocnik could state a claim
for violations of the DPPA, his § 1983 claims for statutory
violations should be dismissed because the DPPA is not enforceable
through § 1983.
Several courts in this district have agreed with
8
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
constitutional rights violations. Grey v. Wilburn, 270 F.3d 607,
611 (8th Cir. 2001).
17
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
enforcement of the DPPA through § 1983.
As a result, Potocnik may
not expand the spectrum of remedies available under the DPPA by
enforcement through § 1983, and dismissal is warranted.
IV.
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
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.”
18
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.
Potocnik
fails
to
announced in Rule 20.
satisfy
the
first
prong
of
the
test
A plaintiff may not join defendants on the
mere basis of similar transactions — “the rule permitting joinder
requires
that
transactions.”
[a
right
to
relief]
arise
from
the
same
Movie Sys., Inc. v. Abel, 99 F.R.D. 129, 130 (D.
Minn. 1983) (emphasis in original).
Here, the record was accessed
between 2003 and 2011 from different locations spanning the state
of Minnesota.
Potocnik has not pleaded any facts suggesting that
the individual cities and counties acted jointly to access the
record or in any way cooperated in doing so.
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
Potocnik
are
not
“reasonably related.”
In essence, Potocnik suggests that “because [he] 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
(characterizing
improperly
wholesale litigation”).
joined
claims
as
“inappropriate
Although Potocnik wishes to aggregate his
19
claims against a large number of defendants, joinder is wholly
inappropriate here.
has determined
Hennepin County.
that
Nevertheless, as already explained, the court
Potocnik
fails
to
state
a
claim against
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 [ECF Nos. 18, 31, 33, 35, 43, 48]
are granted;
2.
Dated:
The motion to sever [ECF No. 31] is denied as moot.
February 21, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
20
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?