Mallak v. Aitkin County et al

Filing 401

MEMORANDUM OPINION AND ORDER. 1. The City Defendants' Motion for Summary Judgment (Doc. No. 376 ) is GRANTED IN PART and DENIED IN PART as follows: a. The Motion is GRANTED with respect to DPPA claims that relate to lookups that occurred befor e November 5, 2010 (for Defendants first named in the First Amended Complaint). Such claims are DISMISSED WITH PREJUDICE. b. In light of 1(a), above, the following Moving Defendants are DISMISSED from this lawsuit: Anthony Runde and David Darling. c. The Motion is GRANTED with respect to Plaintiff's DPPA claim relating to the July 11, 2010 access by Defendant David Darling, and this claim is DISMISSED WITH PREJUDICE. d. In light of 1(c), above, Defendant the City of St. Cloud is DISMISSED from this lawsuit. e. The Motion is GRANTED with respect to the issues of the entities' direct liability and the availability of punitive damages against the municipalities. f. Consistent with the Court's Memorandum Opinion, above, the Mot ion is otherwise DENIED. 2. Defendant Ryan Goff's Motion for Summary Judgment (Doc. No. 383 ) is GRANTED as follows: a. Plaintiff's DPPA claim relating to the December 6, 2010 access by Defendant Ryan Goff is DISMISSED WITH PREJUDICE. b. I n light of 2(a), above, Defendant Ryan Goff is DISMISSED from this lawsuit.3. In light of the Court's conclusion that Ryan Goff is entitled to qualified immunity for his December 6, 2010 access of Plaintiff's information, Plaintiff's DPPA claim against the City of Staples is DISMISSED WITH PREJUDICE, and Defendant the City of Staples is DISMISSED from this lawsuit. (Written Opinion) Signed by Judge Donovan W. Frank on 8/23/2017. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Brook Mallak,

Civil No. 13-2119 (DWF/LIB)
Plaintiff,
MEMORANDUM
OPNION AND ORDER

v.
City of Brainerd; Crow Wing County; City of Fridley;
City of Staples; City of St. Cloud; Anthony Runde,
acting in his individual capacity as an Officer
of the Brainerd Police Department; Perry Jones,
acting in his individual capacity as a Detective
for the Fridley Police Department; David Darling,
acting in his individual capacity as an Officer of
the St. Cloud Police Department; Tyler Burke,
acting in his individual capacity as an employee
of the Crow Wing County Sheriff’s Office;
Amy Edberg, acting in her individual capacity
as an employee of the Crow Wing County
Sheriff’s Department; Ryan Goff, acting in his
individual capacity as a corrections officer for
the Crow Wing County Sheriff’s Office and in
his individual capacity as an Officer of the City
of Staples Police Department; Derek LaVoy, acting
in his individual capacity as an investigator for the
Crow Wing County Sheriff’s Office; Illissa
Ramm, acting in her individual capacity as an
Assistant County Attorney in the Crow Wing
County Attorney’s Office; John and Jane
Does (1 - 500) acting in their individual capacity
as supervisors, officers, deputies, staff, investigators,
employees or agents of the other law-enforcement
agencies; and Entity Does (1-50) including cities,
counties, municipalities, and other entities sited in
Minnesota and federal departments and agencies,
Defendants.

Jonathan A. Strauss, Esq., Lorenz F. Fett, Jr., Esq., Sonia L. Miller-Van Oort, Esq., and
Robin M. Wolpert, Esq., Sapientia Law Group PLLC, counsel for Plaintiff.
Jon K. Iverson, Esq., Susan M. Tindal, Esq., and Stephanie A. Angolkar, Esq., Iverson
Reuvers Condon, counsel for Defendants City of Brainerd, City of Fridley, City of St.
Cloud, City of Staples, Anthony Runde, Perry Jones, and David Darling.
Erin E. Benson, Esq., Margaret A. Skelton, Esq., and Timothy A. Sullivan, Esq., Ratwik,
Roszak & Maloney, PA, counsel for Defendant Crow Wing County.
Jason M. Hill, Esq., Jardine, Logan, & O’Brien, P.L.L.P., and Margaret A. Skelton, Esq.,
Ratwik Roszak & Maloney, PA, counsel for Defendants Tyler Burke, Amy Edberg,
Derek LaVoy, Illissa Ramm.
Jason M. Hill, Esq., and Robert I. Yount, Esq., Jardine, Logan, & O’Brien, P.L.L.P.,
Jon K. Iverson, Esq., Iverson Reuvers Condon, and Margaret A. Skelton, Esq., Ratwik
Roszak & Maloney, PA, counsel for Defendant Ryan Goff.

INTRODUCTION
This matter is before the Court on Motions for Summary Judgment by Defendants
Anthony Runde, David Darling, Perry Jones, and the Cities of Brainerd, Fridley,
St. Cloud, and Staples (collectively, “City Defendants”), and Ryan Goff (altogether,
“Moving Defendants”). (Doc. Nos. 376, 383.) For the reasons set forth below, the Court
grants in part and denies in part the City Defendants’ motion and grants Ryan Goff’s
motion.
BACKGROUND
I.

General Background
Plaintiff Brook Mallak’s (“Plaintiff”) case relates to the alleged improper access of

her driver’s license information, which is maintained in a database with the Department
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of Vehicle Services (“DVS”), a division of the Department of Public Safety (“DPS”).
Plaintiff claims that the improper access of her information violated the Driver’s Privacy
Protection Act (“DPPA”) and included access to such information as her name, date of
birth, driver’s license numbers, addresses, driver’s license photos, weight, height, social
security number, various health and disability information, and eye color.
Plaintiff received an audit report from DPS in 2013, at which time she learned that
her driver’s license information had been “repeatedly accessed” by numerous law
enforcement entities. (Doc. No. 145 (“Mallak Aff.”) ¶ 23; Doc. No. 379 (“Angolkar
Aff.”) ¶ 22, Ex. 21 (“Jacobson Dep.”) at 135-36.) The lookups of Plaintiff’s information
were run by Plaintiff’s name or driver’s license number rather than by her license plate
number. (Jacobson Dep. at 138-39.) The accesses were conducted on government entity
computers. (Id. at 138.)
Plaintiff is a practicing attorney in Brainerd and Little Falls, Minnesota. (Mallak
Aff. ¶ 1.) Plaintiff was a full-time public defender between 2003 and 2008 in Crow Wing
and Aitkin Counties. (Id. ¶ 3.) She continues to practice criminal defense in the private
sector. (Id. ¶ 9.) Plaintiff has also served on the Crow Wing County Drug and DWI
Courts and a number of steering committees, has volunteered with numerous community
organizations, and has taught as an adjunct teacher at Bemidji State University. (Id.
¶¶ 5-8.) Plaintiff is familiar with “several people within the Crow Wing County justice
system” and asserts that she is known throughout her community due to her “career and
community involvement.” (Id. ¶¶ 9, 16.)

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As the Court explained in a previous Order, Plaintiff has had a number of
interactions with law enforcement, contrary to the representations in her original
complaint. 1 (See Doc. No. 199 at 4-5.) In particular, Plaintiff’s child was reported
unresponsive to the Brainerd police on July 6, 2010. (Mallak Aff. ¶ 14.) The child
passed away on July 12, 2010. (Id.) The Brainerd Police Department conducted an
investigation into the child’s death due to the nature of the circumstances surrounding it.
(Id. ¶ 15.) The autopsy indicated that the child had passed away from natural causes. (Id.
¶ 18.) Plaintiff asserts that the tragedy of her son’s death was known throughout the
Brainerd community. (Id. ¶ 16.)
Plaintiff has also had other interactions with law enforcement relating to a reported
theft of her motor vehicle, a trespassing incident, a hit and run vehicle accident, a welfare
check, and various traffic stops. (Doc. No. 111 (“McQuiston Aff.”) ¶ 7; Mallak Aff.
¶ 31; Angolkar Aff. ¶ 3, Ex. 2 (“First Mallak Dep.”) at 145-49, 165-67.) Excluding the
investigation relating to her son’s death, Plaintiff asserts that she has never been under
investigation by Defendants. (Mallak Aff. ¶ 19.) She also states she has “never been
charged with any crimes.” (Id. ¶ 20.)
Plaintiff was in a relationship with an individual referred to as S.M.S. from
mid-August 2009 to mid-November 2010. (Id. ¶ 13.) During this time, S.M.S. lived at
Plaintiff’s home and occasionally drove Plaintiff’s vehicles. (Id.; First Mallak Dep.

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Initially, Plaintiff alleged that she was not involved in an investigation or any law
enforcement-related activities that could justify the use of the DVS Database for the
access of her information. (Doc. No. 1 (“Compl.”) ¶¶ 151-53.)
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at 92-95.) When Plaintiff and S.M.S. ended their relationship, Plaintiff gave S.M.S. a
Honda Accord. (First Mallak Dep. at 95.) S.M.S. has a long criminal history, has been
on probation, and has acted as a confidential informant for the Crow Wing County
Sheriff’s Office. (Id. at 96-98, 106, 115-16.) Plaintiff has not seen S.M.S. since
November 2010 and was not aware that S.M.S. was a confidential informant. (Mallak
Aff. ¶ 13; First Mallak Dep. at 106, 117; Angolkar Aff. ¶ 2, Ex. 1 (“Second Mallak
Dep.”) at 53-54, 113.) When S.M.S. lived with Plaintiff, he was not under probationary
supervision. (First Mallak Dep. at 106-07.)
Plaintiff claims to have suffered emotional distress in connection with her DPPA
claims as well as out-of-pocket expenses such as the cost of installing an alarm system
and hiring a private investigator. (Id. at 156-65, 205-19.) When Plaintiff received her
DPS audit and reviewed the accesses of her information, she “felt physically ill,”
“nauseated,” “upset,” and “angry.” (Second Mallak Dep. at 41-42.) When Plaintiff
learned the identity of some of the individuals who accessed her DPS record, she “was
shocked” due to her “personal and professional relationships with some of them.”
(Mallak Aff. ¶ 28.) Plaintiff asserts that receiving the audit led her to feel nervous that
she was being watched. (Second Mallak Dep. at 88-91.) Since filing her lawsuit,
Plaintiff reports that she feels targeted, fears for her safety, fears retaliation, and worries
that police will be unresponsive if she calls. (First Mallak Dep. at 215-16.) She also
reports having intruders come to her home since filing this lawsuit, causing her to fear for
her personal safety. (Id. at 159-65, 205-12.) Plaintiff has not seen any medical or mental

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health professionals or been diagnosed with a particular condition in connection with her
emotional distress. (Id. at 156-57; see also Second Mallak Dep. at 101.)
II.

Procedural History
In March 2014, the Court ruled on a number of motions to dismiss in this case.

The Court dismissed all DPPA claims outside of a four-year statute of limitations, all
Section 1983 claims, and all invasion of privacy claims. (See generally Doc. No. 89.)
However, the Court also held that Plaintiff’s claim for violations of the DPPA (Count I)
could proceed against multiple city and county defendants. (See id.)
Plaintiff has twice amended her Complaint to replace Doe defendants with named
defendants. (See generally Doc. No. 193 at 3-10 (summarizing the procedural history
underlying these amendments).) On June 30, 2014, Plaintiff requested discovery from
the city and county defendants, and the defendants responded. (See Doc. No. 150
(“Strauss Aff.”) ¶¶ 3-4.) In light of the city and county defendants’ discovery responses,
Plaintiff filed a First Amended Complaint on November 5, 2014, replacing individual
Doe defendants with specific, named individuals. (Doc. No. 167, First Am. Compl.
(“FAC”).) Plaintiff filed a Second Amended Complaint on March 18, 2015, replacing
additional Doe defendants. (Doc. No. 195, Second Am. Compl. (“SAC”).) Relevant to
the motions currently before the Court, Plaintiff’s First Amended Complaint added the
following named Defendants: Anthony Runde, Perry Jones, David Darling, and Ryan
Goff. (See generally FAC.)
In March 2015, the Court granted in part a Motion for Summary Judgment brought
by six Defendant cities. (See Doc. No. 199.) For five accesses, the Court determined that
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Plaintiff’s record was indisputably accessed by law enforcement officers for a
permissible reason. Thus, with respect to these accesses, there was no DPPA violation,
and the cities were entitled to qualified immunity. (See id. at 16-18.) However, for five
other accesses, the Court concluded that a genuine issue of material fact remained
regarding whether Plaintiff’s record was accessed for a permissible purpose, and the
cities were not entitled to summary judgment. (Id. at 18-19.) The Court outlines
evidence specific to each of the accesses relevant to the pending motions, below.
III.

Individual Accesses
A.

Anthony Runde (September 8, 2009)

Anthony Runde (“Runde”) accessed Plaintiff’s information on September 8, 2009
at 10:49 a.m. (Angolkar Aff. ¶ 21, Ex. 20 (“48-Hour Audit”); Angolkar Aff. ¶ 6, Ex. 5
(“Runde Dep.”) at 69-71.) Runde has been a patrol officer for the Brainerd Police
Department since May 2008. (Runde Dep. at 6.) Runde had access to the DVS database
from the start of his position, and he understood it was not to be used “for personal
reasons.” (Id. at 34-35.) He used the DVS database for multiple reasons such as to look
up driver’s license status, create photo lineups, conduct investigations, look up driving
records, and check for warrants. (Id. at 40-44.) He testified that he never used the DVS
database for personal reasons such as to look up friends or family, or to look up
colleagues “out of curiosity.” (Id. at 58-59.) He explained that he looked up his own
DVS record when he was having connectivity issues which happened once every few
years. (Id. at 61-63.) Runde testified that he accessed the DVS database from the police
department and his squad cars and never on his home computer. (Id. at 61.)
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Runde and Plaintiff were both on the DWI Court Team. (Mallak Aff. ¶ 32; First
Mallak Dep. at 122; Second Mallak Dep. at 61-62; Runde Dep. at 16-17, 24-25, 66.)
Plaintiff explained that she and Runde knew each other professionally but did not spend
time together outside of DWI Court. (Second Mallak Dep. at 62-63.) Plaintiff testified
that she “felt like [she and Runde] had a trusting, professional relationship.” (Id. at
122-23.)
Plaintiff chose to resign from the DWI Court and Drug Court Teams when she
began her relationship with S.M.S. (First Mallak Dep. at 128-29.) She sent her letter of
resignation on August 31, 2009. (Angolkar Aff. ¶ 7, Ex. 6; Runde Dep. at 79-80.) Runde
could not recall when he became aware that Plaintiff was resigning from DWI Court, but
he knew she did so due to her relationship with S.M.S. (Runde Dep. at 80-81.) Runde
looked up Plaintiff’s information just over one week after Plaintiff’s resignation from the
DWI Court Team. (Angolkar Aff. ¶ 7, Ex. 6; see also Mallak Aff. ¶ 32; First Mallak
Dep. at 128.)
Runde has arrested S.M.S. on multiple occasions since 2006 or 2007, and he
explained that “[h]e is very well known to me as someone that I have dealt with
numerous times.” (Runde Dep. at 73-74.) Runde testified that he did not know that
S.M.S. had graduated from Drug Court. (Id. at 73-74, 78, 87.) He could not recall when
he first learned S.M.S. and Plaintiff were in a relationship, but he testified that it was
some time before his September 8, 2009 lookup of her information, and he “was very
concerned” and worried “that maybe [Plaintiff] was falling into a trap.” (Id. at 81-83,
91.)
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Runde’s Officer Log demonstrates that he was on patrol on September 8, 2009 at
the time of the lookup. (See Angolkar Aff. ¶ 8, Ex. 7; Runde Dep. at 115-16.) He used
the City of Brainerd’s computer to look up her information while he was in a City of
Brainerd squad car. (Angolkar Aff. ¶ 18, Ex. 17 (“McQuiston Dep.”) at 103-05; Doc.
No. 392 (“Strauss Decl.”) ¶ 4, Ex. B at 4.) The most recent recorded activity preceding
Runde’s lookup of Plaintiff’s record is a medical emergency call at 9:53 a.m. (See
Angolkar Aff. ¶ 8, Ex. 7; Runde Dep. at 115-16.) Following Runde’s lookup of
Plaintiff’s information, the Officer Log shows that Runde responded to a civil problem at
12:02 p.m. (Angolkar Aff. ¶ 8, Ex. 7; Runde Dep. at 119-20.) Between 9:53 a.m. and
12:02 p.m., Runde did not make any traffic stops. (Runde Dep. at 121.) There are no log
entries particularly connected with Plaintiff or the time of Runde’s access of her
information. (See generally Angolkar Aff. ¶ 8, Ex. 7; see also Runde Dep. at 98-99.)
The City of Brainerd has no record of any citations, warrants, arrests, or 911 calls
involving Plaintiff on September 8, 2009. (McQuiston Dep. at 48-50.) Brainerd Chief
Corky McQuiston testified that he was not aware of any records of investigations relating
to S.M.S. or Plaintiff at the time. (Id. at 81-82.) In his deposition, Runde stated, “I am
certain that [Plaintiff] was in her vehicle and driving somewhere in Brainerd” on
September 8, 2009 at 10:49 a.m. (Runde Dep. at 84; see also id. at 133.) He explained
that he wanted to look up Plaintiff’s driver’s license to confirm that it was valid because
he had heard about Plaintiff’s relationship with S.M.S. (Id. at 85, 129-33.) According to
Runde:

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If she doesn’t have a valid driver’s license, it would be the basis of a traffic
stop and potential investigation into . . . You know. Based upon [S.M.S]’s
history, I know that he has been, you know, into drugs. And based upon his
history, you know, she quite possibly could be into that, as well.
(Id. at 85; see also id. at 86-88.) Runde also explained how he had looked up two other
individuals that morning who were involved with drugs and suggested that this may have
caused him to look into S.M.S. and Plaintiff. (Runde Dep. at 104, 124-32; see also Doc.
No. 136 (“Runde Aff.”) ¶ 8.) At the time of the lookup, Runde was not working as an
investigator. (Runde Dep. at 92.) When asked if he looked up Plaintiff and S.M.S. out of
curiosity based on hearing about their relationship, Runde responded, “Absolutely not.
No.” (Id. at 98; see also Runde Aff. ¶ 3.)
Plaintiff does not know why Runde accessed her information. (Second Mallak
Dep. at 64.) Her calendar and court records reflect that she was in Crow Wing County
District Court which is located in Brainerd, Minnesota on September 8, 2009 for a
9:00 a.m. pre-trial hearing. (Id. at 57-61; see also Angolkar Aff. ¶ 4, Ex. 3; Angolkar
Aff. ¶ 5, Ex. 4.) Plaintiff does not know exactly where she was at 10:49 a.m. that
morning, and she acknowledged that she would have driven in Brainerd that day in her
Honda Accord. (Second Mallak Dep. at 57, 63-64.)
On September 8, 2009, Runde accessed S.M.S.’s DPS record at 10:48 a.m., one
minute prior to accessing Plaintiff’s record. (48-Hour Audit.) He also accessed S.M.S.’s
ex-wife the same minute he accessed Plaintiff. (Id.; Doc. No. 393 (“Second Mallak
Decl.”) ¶ 4.) Earlier that morning, he had accessed his own record as well as a

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Crow Wing County dispatcher’s. (48-Hour Audit; see also Runde Dep. at 68; Second
Mallak Decl. ¶ 4.)
B.

David Darling (July 11, 2010)

David Darling (“Darling”) accessed Plaintiff’s DVS record on July 11, 2010 at
7:11 p.m. (48-Hour Audit.) Darling has worked for the City of St. Cloud as a patrol
officer since February 2008. (Angolkar Aff. ¶ 9, Ex. 8 (“Darling Dep.”) at 8.) In this
position, Darling responds to calls, makes traffic stops, writes reports, and conducts
follow-up. (Id. at 12.) Darling testified that “[p]retty much all of” his work is done in his
squad car, and he accessed the DVS database from the computer in his vehicle. (Id. at
9, 12.) Darling explained that he runs license plate number lookups while on patrol. (Id.
at 19.) He stated that he does so to check for stolen vehicles, the validity of driver’s
licenses, warrants, or court orders in connection with vehicles. (Id. at 20.) Darling
explained that he used a photo lookup in the DVS database because “[i]t was faster . . .
[y]ou would just copy, paste, and then everything would pull up in the photo search.”
(Id. at 35; see also id. at 36-37.) He understood that the DVS database was to be used for
law enforcement purposes. (Id. at 47-48; see also id. at 61-62.) Darling admitted that he
had used the DVS database for personal reasons and had faced an investigation in 2011
for his DVS use. 2 (Id. at 48-49.)

2

The Court has reviewed the evidence in the record relating to this investigation,
but declines to recite the details because much of the relevant evidence has been redacted
from the public record or filed under seal. (See Angolkar Aff. ¶ 9, Ex. 8 (“Darling Dep.”)
at 51-52, 55; Angolkar Aff. ¶ 10, Ex. 9 (“Oxton Dep.”) at 60, 124-25, 127-28, 139-40,
145; Strauss Decl. ¶ 8, Ex. F.)
11

Darling testified that he did not know Plaintiff and has not met her. (Id. at 6, 82.)
He stated he was not aware Plaintiff’s son was in the hospital in St. Cloud on July 11,
2010, and did not know about the circumstances relating to his hospitalization. (Id. at
82.) He asserts that he did not look up Plaintiff’s information “for personal reasons or
out of personal curiosity.” (Doc. No. 121 (“Darling Aff.”) ¶ 7.)
Darling was on patrol duty when he looked up Plaintiff’s DVS record. (Angolkar
Aff. ¶ 10, Ex. 9 (“Oxton Dep.”) at 73-74.) At the time, Plaintiff was at the hospital in
St. Cloud with her son. (Mallak Aff. ¶ 40; Second Mallak Dep. at 70-71.) Plaintiff’s son
was removed from life support on July 12, 2010. (First Mallak Dep. at 199-200.)
Darling was assigned to patrol a beat in a part of town separate from where the hospital
was located. (Oxton Dep. at 74-75, 198-99.) However, officers could leave their
assigned beats during a shift. (Id. at 79.) Darling does not specifically recall the purpose
for his lookup of Plaintiff’s record, but he testified that records show that he ran a license
plate lookup followed by a photo-only lookup of Plaintiff’s DVS record. (Darling Dep.
at 44, 66-67, 83.) Darling concluded that he looked up Plaintiff’s license plate
“[p]robably because it was in front of me on a public street.” (Id. at 43.) None of the
service calls reported on Darling’s call log entries involved Plaintiff. (Id. at 45.) Darling
testified that he did not look up Plaintiff in connection with a photo lineup, personal
service, or an investigation. (Id. at 64-65.)
St. Cloud Assistant Chief Jeffrey Oxton (“Oxton”) also testified that the City of
St. Cloud had no information relating to Plaintiff being involved in a photo lineup,
personal service, or an investigation. (Oxton Dep. at 110-13.) The City of St. Cloud’s
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only record of contact with Plaintiff was a gun permit application from 2003 unrelated to
Darling’s 2009 lookup. (Id. at 91-93.) Records obtained by Oxton and by Plaintiff’s
counsel via Westlaw verify that Darling looked up a license plate associated with
Mallak’s Honda Accord on July 11, 2010 at 7:10 p.m. 3 (Id. at 211-13; see also Angolkar
Aff. ¶ 15, Ex. 14; Angolkar Aff. ¶ 16, Ex. 15; Angolkar Aff. ¶ 17, Ex. 16.) Based on
GPS records, Oxton testified that Darling ran the license plate and then Plaintiff’s DVS
record while driving. (Oxton Dep. at 94-95, 204; see also Angolkar Aff. ¶ 13, Ex. 12.)
Darling’s call log entries and chat records also indicate that he was in between writing
reports and going to lunch when he ran Plaintiff’s records. (Id. at 169, 187-92; 202-10;
see also Angolkar Aff. ¶ 11, Ex. 10; Angolkar Aff. ¶ 14, Ex. 13.)
Oxton testified that in general a proactive officer “might run plates consistently”
and “may run DVS inquiries to see pictures of people if people come back suspended or
revoked or with warrants to confirm what those people look like.” (Oxton Dep. at 53.)
He explained that “[o]fficers working traffic control might run every plate that comes
toward them or every plate that they’re following in order to look for violations of
registration or licensing or warrants, and it’s a very common practice.” (Id.) Oxton also
explained how officers would conduct DVS lookups “right away” in conjunction with a

3

A current license plate lookup cannot verify the specific information Darling
would have obtained through a license plate lookup on July 11, 2010 because the records
have since been updated in the relevant database. A Westlaw motor vehicle record
produced by the City Defendants, however, shows that a Honda Accord with the same
license plate Darling looked up—“ZT975”—was registered to “Brook Mallak Law Office
PA” since May 28, 2009 with a renewal date of April 12, 2010. (Angolkar Aff. ¶ 10,
Ex. 9 (“Oxton Dep.”) at 211-37; Angolkar Aff. ¶ 16, Ex. 15.)
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license plate lookup in a separate database to visually verify identities of drivers. (Id. at
102-03.)
In light of records showing Darling’s license plate lookups from July 11, 2010,
Oxton testified, “I would say he runs a lot of plates . . . consistent with someone doing a
lot of traffic enforcement.” (Id. at 212.) Based on the information he reviewed and his
experience, Oxton assumed Darling’s July 11, 2010 lookup of Plaintiff’s record was
conducted in the scope of his patrol duties to confirm the identity of the person driving
Plaintiff’s vehicle. (Id. at 95, 102-05; see also id. at 225-27, 231-32.) Darling’s call log
did not indicate any particular reason why he may have looked up Plaintiff’s DVS record
that day. (Id. at 192.)
Plaintiff testified that she has not met Darling. (Second Mallak Dep. at 98-99.)
When questioned about Darling’s access, Plaintiff stated, “When I look at the date and
time that David Darling did his access, I can remember what I was doing at that time.
We were trying to get ready to have our son die.” (Id. at 120.) She explained, “When I
saw that and thought about somebody was snooping into my information for whatever
reason because they had access, that hurts a lot, compiling that with what was going on.”
(Id. at 120.) Plaintiff asserts that she did not have any contact with St. Cloud law
enforcement personnel on July 11, 2010. (Mallak Aff. ¶ 40; see also Strauss Decl. ¶ 9,
Ex. G at 12.) At the time, Plaintiff had given S.M.S. her Honda Accord to drive.
(Second Mallak Dep. at 72, 75-76.)

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C.

Ryan Goff (December 6, 2010)

Ryan Goff (“Goff”) accessed Plaintiff’s DVS record on December 6, 2010 from
9:44 p.m. to 9:45 p.m. 4 (48-Hour Audit.) Goff worked full-time as a corrections officer
for the Crow Wing County Jail and part-time as a patrol officer for the City of Staples
from 2008 until 2012. (Angolkar Aff. ¶ 19, Ex. 18 (“Goff Dep.”) at 17-18, 28-30, 33.)
He believes his access of Plaintiff’s DVS record took place while he was working his
typical 6:00 p.m. to 6:00 a.m. night shift at the Crow Wing County Jail. (Id. at 31,
110-11.) The City of Staples has confirmed that Goff was not working for Staples on
December 6, 2010. (Angolkar Aff. ¶ 20, Ex. 19 (“Birkholtz Dep.”) at 62-63; see also id.
at 91-92.)
In his position at the Crow Wing County Jail, Goff’s primary duty was “ensur[ing]
the safety and the security of the facility.” (Goff Dep. at 30-31.) This involved
processing visitors to the jail through the booking area, including attorneys. (Id. at 36.)
He explained that during his shift most visitors would use the public entrance rather than
the entrance connected to the judicial center. (Id. at 36-37.) The judicial center was
closed by the start of his shift at 6:00 p.m., and if attorneys visited, it would commonly be
toward the start of his shift. (Id. at 36-38.)
Goff obtained DVS access through the City of Staples at the start of his position,
and he understood that it was not to be used “for personal reasons.” (Id. at 22; see also
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The Eighth Circuit recently clarified that “sequential accesses occurring within a
several-minute time span should be considered as one obtainment rather than several.”
Tichich v. City of Bloomington, 835 F.3d 856, 867 (8th Cir. 2016). Thus, the Court will
treat Goff’s December 6, 2010 access as one obtainment of Plaintiff’s record.
15

id. at 77.) He did not obtain separate DVS access credentials from Crow Wing County.
(Id. at 41-43.) According to Goff, “I had never pursued that because I already had a login
with the City of Staples.” (Id.at 42.) He was never instructed not to use his login from
his other employment while working for Crow Wing County. (Id. at 42-43.) Goff was
not required to obtain DVS access as a corrections officer at Crow Wing County, but he
used the DVS database in his position “to verify identities” of individuals visiting the jail.
(Id. at 42, 45; see also id. at 55-56.) Goff testified that Crow Wing County corrections
officers could obtain a DVS login for this purpose. (Id. at 42.) Goff testified that he used
the DVS database for personal use to search for family members “less than five” times.
(Id. at 26, 28.) He explained that he has not accessed the DVS database from a personal
computer. (Id. at 27.)
Goff believes he accessed Plaintiff’s DVS record on December 6, 2010 in order
“to verify her identity” when she visited the jail after hours to meet with an inmate. (Id.
at 46-52, 58.) He does not have a specific recollection of accessing Plaintiff, but he
remembers an incident around that time where a female attorney with dark hair visited
the jail after hours using the judicial entrance. (Id. at 46-52.) Goff described it as “an
odd occurrence,” and the situation stood out in his mind because it was not common
during his shift for attorneys to visit or come through the judicial entrance. (Id. at 47,
50-51, 58.) In fact, this was the only time he could recall an attorney using that entrance.
(Id. at 53-54.) He testified that he did not recognize the woman and had never heard of
Plaintiff prior to December 6, 2010. (Id. at 52-53, 57-58.) Goff denies looking up

16

Plaintiff’s information “for personal reasons or out of personal curiosity.” (Doc. No. 120
(“Goff Aff.”) ¶ 9.)
Goff testified that a Crow Wing County training module required him to “[e]nter
all activities in the shift log including . . . visits by . . . attorneys.” (Goff Dep. at 86-87,
92-93; see also id. at 112.) Goff was unaware of any documentation on a shift log
relating to the encounter he believes involved Plaintiff. (Id. at 96.) He believes he used a
Crow Wing County Jail computer to facilitate the December 6, 2010 access of Plaintiff’s
DVS record. (Strauss Decl. ¶ 7, Ex. E at 4.)
When asked if she knew Goff, Plaintiff stated, “No, I don’t think so.” (First
Mallak Dep. at 91.) Plaintiff further testified, “I think he works at the jail.” (Id.)
Ultimately, Plaintiff explained that “[she] might know [Goff] if [she] saw him,” but she
did not believe she “[knew] him outside of the jail.” (Id.; Second Mallak Dep. at
151-52.) Plaintiff asserts that she would use the public entrance when visiting the Crow
Wing County Jail after hours. (Mallak Aff. ¶ 43.) Plaintiff explained that if she were to
visit the jail after hours, she would call ahead to inform someone that she was coming.
(Second Mallak Dep. at 147-49.) Plaintiff explained that she was not sure how Crow
Wing County jail personnel would verify her identity when she arrived at the jail to meet
with clients and used the entrance from the courthouse. (First Mallak Dep. at 58-63.)
According to Plaintiff, there was a sign-in log for visitors who entered the jail using the
public entrance, although she could not recall specifically when the sign-in log
requirement was implemented. (Id. at 63-64.) Plaintiff testified that she has “never
provided [her] driver’s license to enter the jail.” (Id. at 70.) According to Plaintiff, she
17

only ever provided her driver’s license in order to complete a new required visitor form
in 2012 or 2013. (Id. at 69-70.)
Plaintiff’s calendar reflects that on December 6, 2010, she had been invited to a
Christmas event to be held at 6:30 at the funeral home where her son’s funeral service
was held. (Second Mallak Dep. at 144-46; see also Strauss Decl. ¶ 6, Ex. D.) Plaintiff
does not recall if she in fact attended this event, and she explained that “I don’t know that
I felt like I could go to something like that at that point.” (Second Mallak Dep. at 146.)
Plaintiff did not recall having any clients in the Crow Wing County Jail on December 6,
2010. (Id.)
On December 6, 2010 at 9:46 p.m. and 9:53 p.m., Goff looked up two other
individuals in the Crow Wing County community justice community, including one
whom Plaintiff identified as her “close friend.” (48-Hour Audit; Second Mallak Decl.
¶ 6.) Goff testified that he does not know these individuals. (Goff Dep. at 58-59.)
D.

Perry Jones (June 28, 2011)

Perry Jones (“Jones”) looked up Plaintiff’s DVS record on January 28, 2009 at
6:36 a.m. and on June 28, 2011 at 6:17 a.m. 5 (48-Hour Audit; Strauss Decl. ¶ 11, Ex. I
(“Jones Dep.”) at 50-52.) Jones has been employed by the City of Fridley since 2007,
first as a patrol officer for seven years and currently as a detective. (Jones Dep. at 22-24.)

5

Only the June 28, 2011 access supports a timely claim based on the statute of
limitations, but the Court notes the prior access as it is relevant for evaluating the
permissibility of the subsequent access. See McDonough v. Anoka Cty., 799 F.3d 931,
946 (8th Cir. 2015) (holding that time-barred accesses may be considered to support the
plausibility of timely claims).
18

As a patrol officer, Jones’ work involved “responding to 911 calls, running traffic, [and]
other street level crimes.” (Id. at 23.) The position could also include “larger scale
investigation” at times. (Id. at 25.) Jones received access to the DVS database through
his employment with the City of Fridley, and he knew “it was not to be used for personal
reasons.” (Id. at 17, 19-20, 33.) He used the DVS database in his patrol officer position
to check for warrants, driver’s license status, and stolen vehicles. (Id. at 31.) Jones
acknowledged that he had looked up family members and friends in the DVS database
outside of work purposes. (Id. at 86-88.)
Jones was working as a patrol officer on June 28, 2011 when he looked up
Plaintiff’s record. (Id. at 54-55; see also Strauss Decl. ¶ 12, Ex. J (“George Dep.”) at
78-79.) He conducted the lookup while in his squad car. (Strauss Decl. ¶ 13, Ex. K at 34.) Jones explained that he would typically run license plate records in the mornings
while on patrol. (Jones Dep. at 58.) Jones does not recall why he accessed Plaintiff’s
DVS record. (Id. at 52-53.) He attests that he “did not access her motor vehicle record
based on romantic interest or personal curiosity.” (Doc. No. 118 (“Jones Aff.”) ¶ 7.)
Jones offered a number of possible reasons for accessing Plaintiff’s record, including
contacting her to discuss “a legal matter,” to look her up in connection with S.M.S., or
based on a license plate lookup. (Jones Dep. at 61-69.) The City of Fridley’s
representative testified that Jones did not look up any motor vehicle records in DVS on
June 28, 2011, and there is no record of Plaintiff or S.M.S. being arrested or investigated
by the City of Fridley on that date. (George Dep. at 90-93.) Jones did not look up
S.M.S.’s DVS record on June 28, 2011. (48-Hour Audit.)
19

Jones and Plaintiff attended middle school and high school together, and they were
friends. (Mallak Aff. ¶ 38; Second Mallak Dep. at 76-78; Jones Dep. at 40-41.) Jones
testified that they kept in touch after reconnecting in 2009. (Jones Dep. at 41-42.)
Plaintiff does not know what she was doing on June 28, 2011 or where she was. (Second
Mallak Dep. at 114.) Plaintiff asserted that she felt “uncomfortable” at her high school
reunion because it occurred after her lawsuit began, and she and Jones “had no contact.”
(Id. at 119.) Plaintiff explained, “that hurt and that stinks.” (Id.)
Defendants Anthony Runde, David Darling, Perry Jones, the Cities of Brainerd,
Fridley, St. Cloud, and Staples, and Ryan Goff now bring motions seeking summary
judgment on Plaintiff’s DPPA claim. (Doc. Nos. 376, 383.)
DISCUSSION
I.

Legal Standard
Summary judgment is appropriate if the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Courts must view the evidence and all reasonable inferences in the
light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd’s of London, 574
F.3d 885, 892 (8th Cir. 2009). However, “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of the
Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive
determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)
(quoting Fed. R. Civ. P. 1).

20

The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna
Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must demonstrate
the existence of specific facts in the record that create a genuine issue for trial. Krenik v.
Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly
supported motion for summary judgment “may not rest upon mere allegation or denials
of his pleading, but must set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
II.

Standing
City Defendants argue that Plaintiff has no standing to pursue her claims against

them because she “has no actual damages attributable to these Defendants.” (Doc.
No. 378 at 3.) Emphasizing the current posture of the case at summary judgment, the
City Defendants argue that Plaintiff cannot merely rest on allegations to support standing.
The City Defendants note that “[w]here ‘speculative inferences are necessary to connect
[Plaintiff’s] injury to the challenged actions of defendants, the injury is not fairly
traceable to the challenged actions of’ the defendant.” (Id. at 33-34 (citation omitted).)
The City Defendants also assert that standing cannot rest upon “an alleged increased risk
of harm . . . that [is] not impending” or “speculative injury.” (Id. at 37.) Goff also argues
that Plaintiff lacks standing. Specifically, Goff argues that “Mallak had no privacy in the
information Officer Goff would have viewed” because she consented to corrections
officers at the Crow Wing County Jail accessing her personal information to verify her
identity. (Doc. No. 385 at 22.) Alternatively, even if Plaintiff had a privacy interest,
21

Goff argues that Plaintiff cannot establish injury-in-fact based on the single access of her
DPPA record. If the Court concludes Plaintiff asserts a viable theory of standing, the
Moving Defendants all argue that the Court should hold an evidentiary hearing to
determine whether such standing exists.
Plaintiff argues that she has standing to pursue her claims against the City
Defendants. Specifically, she contends that she suffered the concrete injury of
“emotional distress resulting from Defendants’ unlawful accesses of her private data,
including the feelings of hurt and betrayal stemming from the accesses by former friends
and colleagues and the accessing of her information the day before her minor son passed
away.” (Doc. No. 391 at 45-46.) Plaintiff disputes the City Defendants’ characterization
of her injuries as merely hypothetical or speculative. Finally, Plaintiff argues that there is
no need for an evidentiary hearing to establish standing because her deposition testimony
contains sufficient facts to support standing. 6
This Court has previously considered whether a plaintiff can establish standing by
alleging a statutory violation of the DPPA along with emotional distress. See Krekelberg
v. Anoka Cty., Civ. No. 13-3562, 2016 WL 4443156, at *2-3 (D. Minn. Aug. 19, 2016).
The plaintiff in Krekelberg, like Plaintiff here, alleged “that Defendants violated the
DPPA by accessing her private information from the motor-vehicle records database, and
6

Goff also argues that Plaintiff has waived the issue of standing as it relates to him
because she failed to respond to his argument relating to standing in her opposition brief.
At oral argument, Plaintiff argued that this issue was not waived, suggesting that its
resolution depends on disputed facts. The Court concludes that Plaintiff sufficiently
responded to the Moving Defendants’ standing arguments as a whole such that she did
not waive her opposition to Goff’s more specific standing argument.
22

that [she] experienced emotional distress as a result.” Id. at *3. Following the analysis of
another judge in this District outlined in Potocnik v. Carlson, Civ. No. 13-2093, 2016
WL 3919950, at *3 (D. Minn. July 15, 2016), the Court held that these allegations
constituted “a concrete injury sufficient to establish Article III standing.” Krekelberg,
2016 WL 4443156, at *3; see also Rollins v. City of Albert Lea, Civ. No. 14-299, 2016
WL 6818940, at *13-14 (D. Minn. Nov. 17, 2016) (following Potocnik); Engebretson v.
Aitkin Cty., Civ. No. 14-1435, 2016 WL 5400363, at *4 (D. Minn. Sept. 26, 2016)
(same).
The Court adopts the analysis and holding in Krekelberg and holds that Plaintiff
has standing to pursue her claims because she has alleged a concrete injury in the form of
numerous DPPA violations and resulting emotional distress. Further, the Court rejects
the City Defendants’ characterization of Plaintiff’s injury as hypothetical or speculative.
Plaintiff has presented evidence in the form of deposition testimony and an affidavit to
support her allegations of emotional distress resulting from the accesses of her DPPA
record by the Moving Defendants, and the Court concludes that this evidence is sufficient
at this stage to establish standing with respect to Plaintiff’s claims.
Finally, the Court concludes that it need not hold an evidentiary hearing on this
issue as the record provides sufficient support for Plaintiff’s allegations to survive
summary judgment. Plaintiff’s credibility and the extent of her emotional distress
injuries may be challenged by the Moving Defendants at trial. Absent conflicting factual
evidence in the record, however, the Court declines to hold an evidentiary hearing to
resolve the standing issue at this time. Viewing the evidence in the light most favorable
23

to Plaintiff, a reasonable jury could conclude that Plaintiff has suffered a concrete injury
based on the alleged improper accesses of her DVS record by the Moving Defendants and
resulting emotional distress. At the summary judgment stage, this showing is sufficient.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (“[E]ach element [of
standing] must be supported . . . with the manner and degree of evidence required at the
successive stages of the litigation.”). 7
III.

Relation Back of Plaintiff’s Amended Complaint
The City Defendants argue that Plaintiff’s DPPA claims against Runde and

Darling are time-barred because the First Amended Complaint replacing Doe defendants
with these named individuals does not relate back to the date of her original Complaint
under Federal Rule of Civil Procedure 15(c). Plaintiff argues that these claims should

7

The Court also rejects Goff’s additional argument that Plaintiff had no valid
privacy interest in the information contained in her DPPA record with respect to Crow
Wing County Jail corrections officers. Plaintiff disputes that she provided her driver’s
license to jail officials to verify her identity, and she contends that she only provided her
driver’s license in connection with a jail visitor form after Goff’s 2010 access of her
DPPA record. Furthermore, even if Plaintiff consented to her driver’s license
information being viewed for the purpose of verifying her identity, Plaintiff’s claim stems
from the allegation that Goff viewed her record for personal reasons or curiosity and not
simply to verify her identity. Thus, the harm recognized in Potocnik and Krekelberg—
“viewing private information without lawful authority”—is still implicated. Krekelberg
v. Anoka Cty., Civ. No. 13-3562, 2016 WL 4443156, at *3 (D. Minn. Aug. 19, 2016);
Potocnik v. Carlson, Civ. No. 13-2093, 2016 WL 3919950, at *2 (D. Minn. July 15,
2016).

24

relate back to the filing of the Complaint and further asserts that equitable estoppel 8
should apply to permit the claims.
DPPA claims are subject to the general four-year statute of limitations provided in
28 U.S.C. § 1658(a), and the statute of limitations begins to run when the alleged
violations occur. See McDonough v. Anoka Cty., 799 F.3d 931, 939-43 (8th Cir. 2015);
Mallak v. Aitkin Cty., 9 F. Supp. 3d 1046, 1052-55 (D. Minn. 2014). Because Plaintiff’s
First Amended Complaint was filed on November 5, 2014, her DPPA claims against the
Moving Defendants who were first named in this complaint relating to lookups conducted
prior to November 5, 2010 are time-barred unless the First Amended Complaint relates
back to the original Complaint.
As the Court previously explained in its February 1, 2017 Order, the Court adopts
its analysis and holding in Krekelberg, 2016 WL 4443156, at *3-6, and concludes that the
First Amended Complaint does not relate back to the filing of the original Complaint with
respect to the Doe defendants named in the subsequent complaint. See Mallak v. City of
Brainerd, Civ. No. 13-2119, 2017 WL 440249, at *9 (D. Minn. Feb. 1, 2017). In
addition, the Court again concludes equitable estoppel is not warranted. See id.

8

In her brief, Plaintiff refers to “equitable tolling,” and in support she relies on
arguments made in her Memorandum of Law in Opposition to County Defendants’
Motion for Summary Judgment on this issue. (See Doc. No. 391 at 42.) However, in that
memorandum, Plaintiff argues that “equitable estoppel” should apply—not equitable
tolling. (See Doc. No. 348 at 79 n.16.) Although these terms are frequently used
interchangeably, the distinction is not without a difference. See Kampschroer v. Anoka
Cty., Civ. No. 13-2512, 2017 WL 3309674, at *8 (D. Minn. Aug. 2, 2017). Here, the
Court construes Plaintiff’s argument as one for the application of equitable estoppel.
25

WL 6818940, at *9. The Court will therefore consider whether Goff, Runde, or Darling
is entitled to qualified immunity for their accesses of Plaintiff’s information, below. 10
IV.

Qualified Immunity
The Moving Defendants argue that Plaintiff’s claims should be dismissed based on

qualified immunity. Plaintiff argues that numerous material fact disputes preclude
summary judgment in the City Defendants’ favor.
The doctrine of qualified immunity protects state actors from civil liability when
their “conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The defense provides “ample room for mistaken judgments” as it protects “all
but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341, 343 (1986). “To overcome the defense of qualified immunity, the
plaintiff must show: ‘(1) the facts, viewed in the light most favorable to the plaintiff,
demonstrate the deprivation of a constitutional or statutory right; and (2) the right was
clearly established at the time of the deprivation.’” Parrish v. Ball, 594 F.3d 993, 1001
(8th Cir. 2010) (citation omitted). The Court has discretion to decide which qualified
immunity prong to consider first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). In
determining whether the constitutional right was clearly established at the time of the
conduct, the Court must ask whether the contours of the applicable law were
“‘sufficiently clear’ that every ‘reasonable official would have understood that what he is
10

The City Defendants do not argue that Jones is entitled to qualified immunity.

27

doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). While “[w]e do not require a case
directly on point, . . . existing precedent must have placed the statutory or constitutional
question beyond debate.” Id.
A.

Clearly Established Right

The City Defendants argue that “[e]ven if the court determines the officers
violated the DPPA, at the time of the accesses at issue, it was not clearly established the
officers were violating the DPPA.” (Doc. No. 378 at 22.) Goff joins the City
Defendants’ arguments on this issue. Plaintiff asserts that the law was clearly established
that viewing a driver’s record for personal reasons was impermissible at the time of the
accesses in question. The Court agrees with Plaintiff.
It is a violation of the DPPA for a defendant to: (1) knowingly; (2) obtain,
disclose, or use personal information; (3) from a motor vehicle record; (4) for a purpose
not permitted. McDonough, 799 F.3d at 945 (citing 18 U.S.C. § 2724(a)); Mallak,
9 F. Supp. 3d at 1051-52, 1055-57. However, there are a number of broadly applied
exceptions for which obtaining, disclosing, or using driver’s license information is
permitted. See 18 U.S.C. § 2721(b)(1)-(14) (emphasis added); Kost v. Hunt,
983 F. Supp. 2d 1121, 1124-25 (D. Minn. 2013). For example, various governmental and
business purposes, such as “use by any government agency, including any court or law
enforcement agency, in carrying out its functions,” are permissible. See 18 U.S.C.
§ 2721(b)(1).

28

In this case, the Court concludes that the DPPA and its corresponding statutory
rights as applicable to this case were clearly established at the time of Plaintiff’s alleged
deprivations. That is, the “contours” of the DPPA were “sufficiently clear” at the time of
the accesses such that a reasonable official would have understood that accessing data for
personal and non-law enforcement purposes violated the DPPA. al-Kidd, 563 U.S. at 741
(citation omitted); see, e.g., Smythe v. City of Onamia, Civ. No. 12-03149, 2013 WL
2443849, at *5-7 (D. Minn. June 5, 2013) (outlining a number of cases where courts have
found DPPA liability “for a personal purpose or for outright misuse” and stating that
accessing data out of “personal interest” and not “for a traditional law enforcement
function” can constitute a violation of the DPPA). As the Court previously stated, “[t]he
DPPA is clear that accessing driver’s license information without a permissible purpose
violates the law. The DPPA has been in place since 1994. By August 2009, Defendants
would have been on notice of the DPPA and its prohibition of the access of driver’s
license information for impermissible purposes.” Mallak, 9 F. Supp. 3d at 1063. The
Court explained that “if Defendants accessed Plaintiff’s data for an impermissible
purpose as alleged, it was clearly established in 2009 and thereafter, that doing so
constituted a violation of the DPPA.” Id. at 1063-64. This is still true today. Therefore,
if the Moving Defendants accessed Plaintiff’s information for an impermissible purpose,
such as for personal reasons, then they are not entitled to qualified immunity. 11

11

The Court is not persuaded that the Supreme Court’s recent decision in White v.
Pauly, 137 S. Ct. 548 (2017), involving the application of qualified immunity in the
Fourth Amendment context, requires a different result. In White, the Supreme Court
(Footnote Continued on Next Page)
29

B.

Deprivation of a Constitutional or Statutory Right

The City Defendants assert that Plaintiff cannot establish that Runde or Darling
violated the DPPA because there is insufficient evidence in the record to establish that
they looked up her record for an impermissible purpose. They emphasize that “[u]nder
the DPPA, an impermissible purpose is an essential element of a plaintiff’s case.” (Doc.
No. 378 at 20.) Goff similarly argues that the record fails to support a finding that he
violated the DPPA, so he is entitled to qualified immunity. 12 In particular, Goff points

(Footnote Continued From Previous Page)
“reiterate[d] the longstanding principle that ‘clearly established law’ should not be
defined ‘at a high level of generality.’” Id. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011)). As the Supreme Court noted, the circumstances at issue in White did
not present “a case where it is obvious that there was a violation of clearly established
law under [relevant precedent].” Id. Further, the Court emphasized the Court of
Appeals’ failure to “conclude that [the officer’s] conduct . . . constituted a run-of-the-mill
Fourth Amendment violation.” Id.
In contrast, here, Plaintiff alleges that the Moving Defendants accessed personal
information in her motor vehicle record for personal reasons or out of curiosity. Such
conduct, if established, would constitute a “run-of-the-mill [DPPA] violation” under the
statute and existing caselaw. See id.; see also Taylor v. City of Amboy, Civ. No. 14-0722,
2016 WL 5417190, at *5 (D. Minn. Sept. 27, 2016) (“[A] jury could find that . . .
[defendants] . . . accessed [plaintiff’s] DVS record out of curiosity or voyeurism. No
reasonable officer would have believed that such a purpose is permissible under the
DPPA.”). Thus, White is distinguishable, and the Court reiterates its previous conclusion
that Plaintiff has met the clearly-established prong of the qualified immunity analysis
with respect to the claims alleged in this case. But see Watts v. City of Miami, 679 F.
App’x 806, 809 (11th Cir. 2017) (“It is not obviously clear that an officer obtaining the
information for his own use is not within the permissible use of § 2721(b)(1) . . . or of
§ 2721(b)(14).”).
12

Goff also argues that the lack of evidence to support that he accessed Plaintiff’s
record for an impermissible purpose warrants summary judgment in his favor. Given the
overlapping nature of these issues, the Court addresses this argument in the context of
qualified immunity. The Court’s conclusions, however, would apply equally to support
(Footnote Continued on Next Page)
30

out that Plaintiff and Goff did not know one another and that none of the general reasons
why officers may have had personal curiosity or interest in Plaintiff apply to him.
Plaintiff asserts that the record supports that there is a genuine issue of material
fact over whether officers Runde, Darling, and Goff accessed her record for a legitimate
and permissible law-enforcement purpose. Further, Plaintiff asserts that “[t]he facts
revealed in discovery indicate that there could be no legitimate law-enforcement purpose
and that curiosity was the likely purpose.” (Doc. No. 391 at 36-37.)
The Court has previously evaluated a summary judgment motion by a number of
the Moving Defendants in this case. See Mallak v. City of Baxter, Civ. No. 13-2119,
2015 WL 13187115 (D. Minn. Mar. 19, 2015). This motion was brought “prior to any
meaningful discovery, including depositions.” Id. at *7. At that time, the Court
determined that granting summary judgment based on qualified immunity would be
“premature” with respect to Defendants Runde, Jones, Darling, and Goff. See id. For
these Defendants, the Court disagreed “that the undisputed facts show[ed] that Plaintiff’s
records were accessed for a permissible purpose.” Id. at *6-7.
In evaluating the City Defendants’ interlocutory appeal of the Court’s denial of
qualified immunity, the Eighth Circuit determined that “the record includes several facts
indicating that each officer might have accessed [Plaintiff’s] data for an improper
purpose.” Mallak v. City of Baxter, 823 F.3d 441, 446 (8th Cir. 2016). First, the record

(Footnote Continued From Previous Page)
the conclusion that Goff is entitled to summary judgment dismissal based on insufficient
evidence to support Plaintiff’s DPPA claim against him.
31

In its February 1, 2017 Order in this case, the Court concluded that summary
judgment in favor of a defendant was warranted where the record lacked sufficient
evidence to support that her lookup was conducted for an impermissible purpose. See
Mallak, 2017 WL 440249, at *12. Summary judgment was proper in this circumstance
because “a jury would be forced to speculate that [the defendant’s] access was
impermissible.” Id. As the Court explains below, the Court’s analysis and conclusion
with respect to this defendant applies equally to Defendants Goff and Darling here.
Goff accessed Plaintiff’s DVS record while at work in the Crow Wing County Jail
during his typical overnight shift. He testified that he did not know Plaintiff and had not
heard of her son’s death. Plaintiff similarly testified that she did not know Goff other
than suggesting that she might recognize him if she saw him. In other words, the parties
do not dispute that Plaintiff and Goff had no personal or professional relationship. Thus,
the factual basis that previously supported an inference of an impermissible purpose has
now been foreclosed in discovery. Furthermore, Goff’s access of Plaintiff’s information
was not tied to a particular event that would support an inference that Goff looked up
Plaintiff for personal reasons. Although Goff does not know with certainty that the
woman he recalls encountering at the jail was in fact Plaintiff, this does not create a
genuine issue of material fact. Even if Goff’s recollection is incorrect and he did not look
up Plaintiff’s record to verify her identity that night, there is simply no evidence in the
record by which a jury could reasonably conclude that Goff’s December 6, 2010 access
of Plaintiff’s DVS record was conducted for personal reasons or out of curiosity. Thus,
Goff is entitled to qualified immunity.
33

Although it is perhaps a closer question, the Court also concludes that the record
does not support a reasonable inference that Darling accessed Plaintiff’s DVS record on
July 11, 2010 for an impermissible purpose. Darling’s lookup of Plaintiff’s information
was conducted close in time to “a significant event,” Plaintiff’s son’s hospitalization
under unusual circumstances. See Mallak, 823 F.3d at 447 (quoting McDonough, 799
F.3d at 947). This fact would be sufficient to establish a plausible claim at the pleading
stage, and the Court determined that it was enough to survive an early summary judgment
motion prior to any meaningful discovery. At this stage, however, and in light of the
existing record, this fact alone cannot reasonably support a finding that Darling has
violated Plaintiff’s rights under the DPPA through an impermissible access of her DVS
record. Darling testified that he did not know Plaintiff and had not heard about her son’s
hospitalization. Mallak also testified that she did not know Darling. The City of
St. Cloud was not involved in the investigation of Plaintiff’s son’s death, and Plaintiff has
not identified any evidence to indicate that this event was reported generally within the
City of St. Cloud or known throughout the city’s law enforcement community. Compare
Engebretson, 2016 WL 5400363, at *2, *9-10 (denying qualified immunity to an officer
whose access took place on the same day that an event involving the plaintiff was
reported in an article online). To support an inference of an impermissible purpose, a
factfinder would be required to speculate that Darling had heard of Plaintiff and the
circumstances of her son’s hospitalization. Considered against Darling’s testimony that

34

reasons for looking up Plaintiff’s record, but there is no documentation to support any of
his proffered reasons. In addition, the evidence indicates that he looked up S.M.S. and
S.M.S’s ex-wife within minutes of accessing Plaintiff’s record. While this fact could be
consistent with Runde’s proffered investigatory justification for accessing Plaintiff’s
DVS record, it could also support the inference that Runde was looking up all of these
individuals out of personal curiosity. Based on Runde’s professional relationship with
Plaintiff, his knowledge of her relationship with S.M.S., the timing of his access, and his
failure to definitively establish a law-enforcement reason for his access, a jury could
reasonably conclude that Runde looked up Plaintiff’s information for an impermissible
purpose in violation of the DPPA.
In sum, on the record before the Court, Plaintiff could overcome qualified
immunity by establishing that Runde violated her clearly established rights under the
DPPA. Thus, summary judgment is not appropriate on this basis for Runde or the City of
Brainerd.
V.

Rule of Lenity
The City Defendants contend that the Court must apply the rule of lenity in

interpreting the DPPA’s government functions exception based on ambiguity in the
statute’s reference to “use by any government agency . . . in carrying out its functions.”
See 18 U.S.C. § 2721(b)(1). Plaintiff argues that the rule of lenity does not apply because
the statute is not ambiguous.
“[T]he rule of lenity only applies if, after considering text, structure, history, and
purpose, there remains a grievous ambiguity or uncertainty in the statute such that the
36

Court must simply guess as to what Congress intended.” See Maracich v. Spears,
133 S. Ct. 2191, 2209 (2013) (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)). In
Maracich, the Supreme Court evaluated whether attorneys’ use of personal information
from motor vehicle records to solicit potential clients fell under the DPPA’s litigation
exception. See id. at 2199. That exception, contained in 18 U.S.C. § 2721(b)(4), permits
use of personal information “in connection with any civil, criminal, administrative, or
arbitral proceeding” as well as for “investigation in anticipation of litigation.” See id.
(quoting 28 U.S.C. § 2721(b)(4)). The Supreme Court construed the statute according to
its text and overall structure and determined that the exception did not extend to permit
use of personal information by attorneys seeking to solicit clients. Id. at 2199-2209. The
Court declined to apply the rule of lenity, explaining that “[t]here is no room for the rule
of lenity where the text and structure of the DPPA require an interpretation of (b)(4) that
does not reach out to include an attorney’s solicitation of clients.” Id. at 2209.
Likewise, here, the Court concludes “[t]here is no room for the rule of lenity,” id.,
because the statute’s text contains no grievous ambiguity over whether accessing an
individual’s record for personal reasons or curiosity constitutes “use by any government
agency . . . in carrying out its functions.” See 18 U.S.C. § 2721(b)(1). “[A]s a matter of
normal usage and common understanding,” the text plainly forecloses the application of
this exception to such purposes. See Maracich, 133 S. Ct. at 2204; see also Rollins, 2016
WL 6818940, at *15 (questioning whether the rule of lenity applied, but concluding that
it nevertheless did not support summary judgment dismissal because “an officer’s access
of a driver’s information based on curiosity or other personal reasons cannot be in
37

furtherance of a government function”); Engebretson, 2016 WL 5400363, at *10
(“[T]here is no ambiguity that accessing a motor vehicle record to satisfy personal
curiosity does not constitute a government or law enforcement function.”). While there
may be some circumstances where the application of § 2721(b)(1)’s government function
exception results in grievous ambiguity, the Court concludes that this is not such a case.
VI.

City Defendants’ Liability
The City Defendants argue that they have no direct or vicarious liability for the

alleged improper accesses of Plaintiff’s information. Plaintiff, on the other hand, asserts
that the City Defendants are both directly and vicariously liable. The Court evaluates
these issues with respect to the City of Brainerd (Runde’s employer), and the City of
Fridley (Jones’ employer), below. 14
A.

Direct Liability

The City Defendants argue that they should not be held directly liable under the
DPPA because the record lacks evidence to suggest that the entities themselves accessed
Plaintiff’s information for an impermissible purpose. Plaintiff argues that the DPPA
permits direct liability against cities and that such liability against the City Defendants is
warranted because the entities provided access credentials without proper monitoring.
As the Court concluded in its February 1, 2017 Order, “Plaintiff fails to present
facts to establish that the [City Defendants] knowingly obtained, disclosed, or used her
DPS record for an impermissible purpose.” Mallak, 2017 WL 440249, at *14. The Court
14

Because the Court has concluded Goff is entitled to qualified immunity, it does not
address the parties’ arguments relating to the City of Staples’ liability for his access.
38

adopts its previous analysis and conclusion on this issue, see id., and concludes that the
City Defendants may not be held directly liable under the DPPA under the circumstances
in this case.
B.

Vicarious Liability

The City Defendants further assert that they should not be held vicariously liable
because such liability would be inconsistent with the DPPA’s purposes, and even if such
a theory or relief is viable, the record does not support vicarious liability. In particular,
they argue that they should not be held vicariously liable for officers’ accesses where
they are outside the scope of employment. Plaintiff asks the Court to follow courts
outside of this District that have consistently imposed vicarious liability on employers
under the DPPA. Further, Plaintiff urges the Court to apply federal common law rather
than Minnesota law on this issue and suggests that imposing vicarious liability will
advance the purposes of the DPPA.
Again, the Court adopts and incorporates the analysis in its February 1, 2017
Order on this issue. See id. at *15-17. Specifically, “because a fact-finder could
conclude that [Runde and Jones] were ‘aided in accomplishing the tort by the existence of
the agency relation,’ Restatement (Second) of Agency § 219(2)(d), the Court concludes
that [the Cities of Brainerd and Fridley] are not entitled to summary judgment on
vicarious liability.” Mallak, 2017 WL 440249, at *17. The record indicates that both
Runde and Jones accessed Plaintiff’s personal information in her DVS record while on
patrol in their squad cars using computers and passwords provided by their respective

39

employers, the City of Brainerd and the City of Fridley. Thus, the Court concludes that
these cities may be held vicariously liable for these accesses under the DPPA. See id.
VII.

Punitive Damages
The City Defendants argue that punitive damages should not be permitted against

municipalities as a matter of law. In their reply brief, the City Defendants further argue
that the Court should hold that there is insufficient evidence to impose punitive damages
against Runde, Darling, and Jones. Goff also argues that the record does not support
imposing punitive damages against him in this matter. Plaintiff argues that the DPPA
supports imposing punitive damages against municipalities and suggests that a jury
should be permitted to evaluate punitive damages against the City Defendants as well as
Jones, Runde, Darling, and Goff.
The Court first addresses the Moving Defendants’ argument that punitive damages
are unavailable against municipalities as a matter of law. The DPPA provides that “[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.” 18 U.S.C. § 2724(a). Further, the statute
provides that “[t]he court may award . . . punitive damages upon proof of willful or
reckless disregard of the law.” Id. § 2724(b)(2). A “person” within the meaning of the
DPPA includes “an individual, organization or entity, but does not include a State or
agency thereof.” Id. § 2725(2).
In City of Newport v. Fact Concerts, Inc., the Supreme Court held that punitive
damages may not be awarded against municipalities under 42 U.S.C. § 1983. See 453
40

U.S. 247, 271 (1981). The Supreme Court considered the common law, legislative
history, and public policy, and concluded “that considerations of history and policy do
not support exposing a municipality to punitive damages for the bad-faith actions of its
officials.” Id. It explained that “punitive damages imposed on a municipality are in
effect a windfall to a fully compensated plaintiff, and are likely accompanied by an
increase in taxes or a reduction of public services for the citizens footing the bill.” Id.
at 267. According to the Supreme Court, “[n]either reason nor justice suggests that such
retribution should be visited upon the shoulders of blameless or unknowing taxpayers.”
Id. More recently, the Supreme Court has reiterated this rationale and noted that in
Newport, it was “concerned with imposing punitive damages on taxpayers under any
circumstances.” Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765,
785 n.15 (2000). Indeed, “[s]ince municipalities’ common law resistance to punitive
damages still obtains, ‘[t]he general rule today is that no punitive damages are allowed
unless expressly authorized by statute.’” Cook County, Ill. v. United States ex rel.
Chandler, 538 U.S. 119, 129 (2003) (quoting Newport, 453 U.S. at 260 n.21).
Courts have extended Newport to prohibit the imposition of punitive damages
against cities under other federal statutes, including the DPPA. See Senne v. Village of
Palatine, Civ. No. 10 C 5434, 2013 WL 68703, at *2-3 (N.D. Ill. Jan. 4, 2013) (finding
no express abrogation of the common-law rule prohibiting punitive damages against
municipalities in the DPPA); A.M.J. v. Royalton Pub. Sch., Civ. No. 05-2541, 2006 WL
3626979, at *2 (D. Minn. Dec. 12, 2006) (“Plaintiff may not recover punitive damages
from the municipal Defendants under Title VI, Title IX, or § 1983.”); Morlock v. W.
41

Cent. Educ. Dist., 46 F. Supp. 2d 892, 923-24 (D. Minn. 1999) (applying Newport to
claims under Title IX and dismissing the plaintiff’s punitive damages claim). After
noting the common law rule disfavoring punitive damages against municipalities, the
court in Senne considered the relevant provisions of the DPPA and determined that “[t]he
DPPA does not ‘speak directly’ to a plaintiff’s ability to collect punitive damages from a
municipality.” Senne, 2013 WL 68703, at *2-3. The Court agrees.
Plaintiff asks the Court to conclude that the DPPA permits punitive damages
against municipalities because the statute’s definition of a “person” who may be held
liable under the statute does not exclude municipalities, and because the remedies portion
of the statute permits the imposition of punitive damages. Plaintiff contends that if
Congress wanted to exclude the imposition of punitive damages against cities, it would
have said so. However, adopting Plaintiff’s argument would require the Court to apply
the opposite presumption that the Supreme Court has held applies in this circumstance. If
Congress wanted punitive damages to be available against municipalities under the
DPPA, it must have “expressly authorized” them in the statute. See Cook County, Ill.,
538 U.S. at 129 (citation omitted). Since the statute contains no such express
authorization, the Court concludes that punitive damages are not available against
municipalities under the DPPA. Thus, City Defendants’ motion is granted on this issue.
Next, the Court considers the Moving Defendants’ arguments that the record
precludes the imposition of punitive damages against the individual officers because
there is insufficient evidence to support that they acted in willful or reckless disregard of
the law. The City Defendants raised this argument in their reply brief, and Goff was the
42

only Moving Defendant to initially move for summary judgment on this issue. In light of
the Court’s analysis, above, Goff will be dismissed as a defendant based on qualified
immunity. In addition, Runde and Darling will be dismissed based on the statute of
limitations. Thus, the only remaining Moving Defendant against whom punitive
damages may be imposed is Jones.
Plaintiff argues that a jury should be permitted to assess punitive damages with
respect to Jones because the record indicates that he “understood that [he was] not to
access drivers’ license information for personal reasons.” (Doc. No. 391 at 53-54.) In
their reply brief, the City Defendants ask the Court to “extend its recent holding there is
no evidence to support punitive damages against the County individuals to the claim[]
against . . . Jones.” (Doc. No. 395 at 5.) Given the fact-specific inquiry necessary to
determine whether to permit the punitive damages issue to proceed to trial, and because
this issue was not raised by the City Defendants in their opening brief, the Court declines
to grant summary judgment to the City Defendants on this issue. 15
CONCLUSION
Because Plaintiff’s First Amended Complaint does not relate back to the filing of
her original Complaint, Defendants Runde and Darling are properly dismissed based on

15

The Court, however, reiterates the statement in its February 1, 2017 Order noting
that “the statute’s text does support the requirement that a defendant at least know that his
actions are unlawful—not merely against employer policies or rules.” Mallak v. City of
Brainerd, Civ. No. 13-cv-2119, 2017 WL 440249, at *19 n.16 (D. Minn. Feb. 1, 2017);
see also 18 U.S.C. § 2724(b)(2) (“The court may award . . . punitive damages upon proof
of willful or reckless disregard of the law.”). The Court reserves the right to limit the
scope of available damages against Jones as this matter proceeds.
43

the statute of limitations. Furthermore, qualified immunity precludes liability against
Defendants Goff, the City of Staples, and the City of St. Cloud. For these Defendants,
the record contains insufficient evidence from which a jury could reasonably infer that
Plaintiff’s information was accessed for an impermissible purpose. However, the Court
concludes that the cities of Brainerd and Fridley may be held vicariously liable for Runde
and Jones’ conduct. As a matter of law, however, punitive damages may not be awarded
against the municipalities. In light of this order, Plaintiff’s claims relating to the
following accesses will proceed to trial: the September 8, 2009 lookup (against the City
of Brainerd only); the June 28, 2011 lookup (against both Jones and the City of Fridley).
ORDER
Based on the files, record, and proceedings herein, IT IS HEREBY ORDERED
that:
1.

The City Defendants’ Motion for Summary Judgment (Doc. No. [376]) is

GRANTED IN PART and DENIED IN PART as follows:
a.

The Motion is GRANTED with respect to DPPA claims that

relate to lookups that occurred before November 5, 2010 (for Defendants
first named in the First Amended Complaint). Such claims are
DISMISSED WITH PREJUDICE.
b.

In light of 1(a), above, the following Moving Defendants are

DISMISSED from this lawsuit: Anthony Runde and David Darling.

44

c.

The Motion is GRANTED with respect to Plaintiff’s DPPA

claim relating to the July 11, 2010 access by Defendant David Darling, and
this claim is DISMISSED WITH PREJUDICE.
d.

In light of 1(c), above, Defendant the City of St. Cloud is

DISMISSED from this lawsuit.
e.

The Motion is GRANTED with respect to the issues of the

entities’ direct liability and the availability of punitive damages against the
municipalities.
f.

Consistent with the Court’s Memorandum Opinion, above,

the Motion is otherwise DENIED.
2.

Defendant Ryan Goff’s Motion for Summary Judgment (Doc. No. [383]) is

GRANTED as follows:
a.

Plaintiff’s DPPA claim relating to the December 6, 2010

access by Defendant Ryan Goff is DISMISSED WITH PREJUDICE.
b.

In light of 2(a), above, Defendant Ryan Goff is DISMISSED

from this lawsuit.
3.

In light of the Court’s conclusion that Ryan Goff is entitled to qualified

immunity for his December 6, 2010 access of Plaintiff’s information, Plaintiff’s DPPA
claim against the City of Staples is DISMISSED WITH PREJUDICE, and Defendant
the City of Staples is DISMISSED from this lawsuit.
Dated: August 23, 2017

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
45