Mitchell v. Aitkin County et al
Filing
112
AMENDED ORDER: (1) The judgment docketed on February 28, 2014 110 is VACATED pursuant to Federal Rule of Civil Procedure 60(a). (2) Defendant Hennepin County's Motion to Dismiss 22 is GRANTED. (3) Defendant Anoka County's Motion to D ismiss 35 is GRANTED. (4) The Motion to Dismiss 42 of Defendant Counties of Aitkin, Beltrami, Carver, Chisago, Cook, Freeborn, Kandiyohi, McLeod, Mower, Rice, Stearns, Steele, and Wright is GRANTED. (5) Defendant Ramsey County's Motion to Dismiss 48 is GRANTED. (6) The Motion pursuant to Federal Rules of Civil Procedure 12(b)(6) and Rule 12(c) 53 of Defendant Cities of Rosemount, Aitkin, Anoka, Arlington, Blaine, Bloomington, Blue Earth, Brooklyn Park, Cannon Falls, Champlin, Cot tage Grove, Crosby, Crosslake, Green Isle, Hopkins, Lake Shore, Lakeville, Maple Grove, Maplewood, Marshall, Minnetonka, Northfield, Plymouth, Red Wing, Rosemount, Roseville, St. Francis, Wabasha, White Bear Lake, and Woodbury is GRANTED. (7) Defend ant City of Saint Paul's Motion to Dismiss 67 is GRANTED. (8) Defendant County of Dakota's Motion to Dismiss 69 is GRANTED. (9) Defendant City of Edina's Motion to Dismiss 82 is GRANTED. (10) Defendant City of Minneapolis' ;s Motion for Judgment on the Pleadings 103 is GRANTED. (11) Counts II and III of Plaintiff's Complaint are DISMISSED with prejudice as to all Defendants. (12) Count IV of Plaintiff's Complaint is DISMISSED without prejudice as to all D efendants. (13) Count I of Plaintiff's Complaint is DISMISSED with prejudice as to the following Defendants: Aitkin County, Beltrami County, Carver County, Chisago County, Cook County, Dakota County, Kandiyohi County, McLeod County, Mower Coun ty, Rice County, St. Louis County, Stearns County, Steele County, and Wright County, Ramsey County, City of Aitkin, City of Anoka, City of Arlington, City of Bloomington, City of Blue Earth, City of Brooklyn Park, City of Cannon Falls, City of Champl in, City of Cottage Grove, City of Crosby, City of Crosslake, City of Green Isle, City of Lake Shore, City of Lakeville, City of Maplewood, City of Marshall, City of Minnetonka, City of Northfield, City of Plymouth, City of Red Wing, City of Rosemoun t, City of Roseville, City of St. Francis, City of Wabasha, City of White Bear Lake, and City of Woodbury. (14) Count I of Plaintiff's Complaint is DISMISSED without prejudice as to the following Defendants: City of Blaine, City of Edina, City of Hopkins, City of Maple Grove, City of Saint Paul, City of Minneapolis, Anoka County, Freeborn County, and Hennepin County. (Written Opinion) Signed by Judge Joan N. Ericksen on March 4, 2014. (CBC)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Dawn Mitchell,
Plaintiff,
v.
Civil No. 13-2167 (JNE/FLN)
AMENDED ORDER 1
Aitkin County; City of Aitkin; Anoka
County; City of Anoka; City of Arlington;
Beltrami County; City of Blaine; City of
Bloomington; City of Blue Earth; City of
Brooklyn Park; City of Cannon Falls;
Carver County; City of Champlin; Chisago
County; Cook County; City of Cottage
Grove; City of Crosby; City of Crosslake;
Dakota County; City of Edina; Freeborn
County; City of Green Isle; Hennepin
County; City of Hopkins; Kandiyohi
County; City of Lake Shore; City of
Lakeville; City of Maple Grove; City of
Maplewood; City of Marshall; McLeod
County; City of Minneapolis; City of
Minnetonka; Mower County; City of
Northfield; City of Plymouth; Ramsey
County; City of Red Wing; Rice County;
City of Rosemount; City of Roseville; City
of St. Francis; St. Louis County; City of St.
Paul; Stearns County; Steele County; City
of Wabasha; City of White Bear Lake; City
of Woodbury; Wright County; John and
Jane Does (1-300) acting in their
individual capacity as supervisors, officers,
deputies, staff, investigators, employees or
agents of the other governmental agencies;
and Entity Does (1-50) including cities,
counties, municipalities, and other entities
sited in Minnesota,
Defendants.
1
The Court issued an order on February 27, 2014, Docket No. 109, pursuant to which
judgment was entered dismissing all claims of the complaint without prejudice as to all
Defendants, Docket No. 110. This amended order replaces the February 27, 2014 order and
amends the judgment as stated in the conclusion section below.
Mark H. Zitzewitz, Lorenz F. Fett, Jr., Jonathan A. Strauss, and Kenneth H. Fukuda appeared for
Plaintiff.
Kimberly R. Parker appeared for Defendant Ramsey County. Jamie L. Guderian and Joseph E.
Flynn appeared for Defendant Counties of Aitkin, Beltrami, Carver, Chisago, Cook, Freeborn,
Kandiyohi, McLeod, Mower, Rice, Stearns, Steele, and Wright. Andrea G. White appeared for
Defendant Dakota County. Susan M. Tindal appeared for Defendant Cities of Aitkin, Anoka,
Arlington, Blaine, Bloomington, Brooklyn Park, Champlin, Cottage Grove, Crosslake, Hopkins,
Lake Shore, Lakeville, Maple Grove, Maplewood, Marshall, Minnetonka, Plymouth, Red Wing,
Roseville, St. Francis, Woodbury, Blue Earth, Cannon Falls, Crosby, Green Isle, Northfield,
Rosemount, Wabasha, and White Bear Lake. Bryan D. Frantz appeared for Defendant Anoka
County. Toni A. Beitz appeared for Defendant Hennepin County. Cheri M. Sisk appeared for
Defendant City of St. Paul. Christopher Haugen appeared for Defendant City of Edina.
Plaintiff Dawn Mitchell filed the complaint in this action alleging impermissible accesses
by numerous law enforcement personnel and public employees of her private data maintained by
the Minnesota Department of Public Safety (“DPS”). The named Defendants include 50
different cities and counties in Minnesota. Presently before the Court are nine motions,
representing requests by the Defendants, to dismiss Plaintiff’s complaint for failure to state a
claim. For the reasons stated below, the motions are granted.
BACKGROUND
Although listing several different counts, Mitchell’s complaint centers on alleged
violations by the Defendants of the Driver’s Privacy Protection Act of 1994 (“DPPA”), 18
U.S.C. §§ 2721-2725. The DPPA protects certain “personal information” 2 contained in motor
vehicle records. See 18 U.S.C. §§ 2721-2725. The first provision of the DPPA restricts state
departments of motor vehicles (“DMVs”) and their representatives by providing that they “shall
2
The DPPA defines “personal information” as “information that identifies an individual,
including an individual’s photograph, social security number, driver identification number,
name, address (but not the 5-digit zip code), telephone number, and medical or disability
information, but does not include information on vehicular accidents, driving violations, and
driver’s status.” 18 U.S.C. § 2725(3).
2
not knowingly disclose or otherwise make available to any person or entity” personal
information “about any individual obtained by the department in connection with a motor vehicle
record” except as allowed under 18 U.S.C. § 2721(b). Id. § 2721(a). The exception provision of
§ 2721(b) enumerates multiple permissible uses of personal information for various
governmental and business purposes. Of particular relevance to this action, the very first
exemption allows a DMV to disclose or make the personal information available “[f]or use by
any government agency, including any court or law enforcement agency, in carrying out its
functions, or any private person or entity acting on behalf of a Federal, State, or local agency in
carrying out its functions.” Id. § 2721(b)(1).
Beyond limiting DMVs, the DPPA also makes it “unlawful for any person knowingly to
obtain or disclose personal information, from a motor vehicle record, for any use not permitted
under section 2721(b).” Id. § 2722(a). The DPPA includes various enforcement mechanisms,
including a criminal fine for a person who knowingly violates the Act and a civil penalty
imposed by the Attorney General on a DMV with “a policy or practice of substantial
noncompliance.” Id. § 2723. The Act also creates a civil cause of action, id. § 2724, which
Mitchell invokes with her complaint.
Congress enacted the DPPA in 1994, as part of the Violent Crime Control and Law
Enforcement Act, Pub. L. No. 103-322, tit. XXX, amidst concern about the ease with which
personal information could be obtained from state DMVs and used for criminal purposes. See
Senne v. Vill. of Palatine, 695 F.3d 597, 607 (7th Cir. 2012) (discussing the congressional record
to conclude that “safety and security concerns” served as a central impetus for the legislation);
see also Gordon v. Softech Int’l, Inc., 726 F.3d 42, 45 (2d Cir. 2013) (mentioning the enactment
of the DPPA after the “highly publicized murder of an actress, whose stalker-cum-assailant had
3
received her home address through an information request at a local DMV”). The DPPA also
responded to concerns related to “the States’ common practice of selling personal information to
businesses engaged in direct marketing and solicitation.” Maracich v. Spears, 133 S. Ct. 2191,
2198 (2013).
The action brought by Mitchell is similar to a growing number of actions recently filed in
this district 3 in which the complaint alleges DPPA violations by various Minnesota local
governmental entities. With some variations, these actions represent the following basic
scenario: The plaintiffs obtained reports 4 from the DPS that reveal numerous accesses of their
data by various governmental and other entities. Not knowing of, or being able to readily
fathom, any legitimate reason for some or all of the accesses, the plaintiffs allege DPPA
violations and related claims in a single action against multiple, largely-unrelated, governmental
entities. Lacking any particularized evidence of impermissible retrieval by each defendant of
their personal data, the plaintiffs refer to generalized information about unauthorized accesses of
private driver’s license data by law enforcement personnel. For example, a February 2013 report
by the Minnesota Office of the Legislative Auditor “estimated that over half of the law
enforcement users of the [Driver and Vehicle Services] Web site may have used it to perform
3
See, e.g., Civ. Nos. 13-583, 13-860, 13-1103, 13-1889, 13-2060, 13-2119, 13-2490, 132512, 13-2772.
4
Several of the complaints mention that the plaintiffs received a letter sent out by the
Minnesota Department of Natural Resources in January 2013 to several thousand individuals
informing them of a former employee’s “unauthorized viewing of private data” from their motor
vehicle records and the letter triggered them to seek an audit of all accesses of their data. See,
e.g., Amended Complaint at ¶¶ 36-37, Kost v. Hunt, Civ. No. 13-583 (D. Minn. filed May 17,
2013).
4
questionable queries in fiscal year 2012.” Docket No. 61-1, 39. The growing number of actions
like Mitchell’s has garnered local media attention. 5
According to the complaint in this action, Mitchell moved to Minnesota in 2004 and
became a news anchor and sports reporter for Fox 9 News (KMSP-TV). Compl. ¶ 68. She
currently co-anchors FOX at Five and is an anchor and reporter for Fox 9 Sports. Id. ¶ 69. She
has been a sideline reporter for NFL on Fox broadcasts. Id. ¶ 71. During her career in television
news, “she has met and interviewed numerous law-enforcement personnel.” Id. ¶ 70.
The complaint names 50 city and county defendants, along with 1-50 Entity Does, and
refers to these defendants collectively as “Defendant Entities” or “Entity Defendants.” See id. ¶¶
11-64. The complaint also lists as defendants “John and Jane Does (1-300)” and describes them
as “duly appointed and acting in their individual capacities as law-enforcement supervisors,
officers or employees of the Defendant Entities or other state, county or municipal entities in
Minnesota.” Id. ¶ 65. Of this group, the complaint labels those without supervisory authority as
“Individual Defendants” or “Defendant Individuals” and those with supervisory authority as
“Defendant Supervisors” or “Supervisor Defendants.” Id. ¶¶ 66-67.
The complaint alleges that as early as 2005, Individual Defendants began looking up
Mitchell’s personal information on a database maintained by the Driver and Vehicle Services
Division of the DPS. Id. ¶ 74. It notes that Mitchell received a letter from the Minnesota
Department of Natural Resources in January 2013 informing her that her information had been
5
See, e.g., Eric Roper, Driver’s License Snooping Gets Costly for Taxpayers, STAR
TRIBUNE, Aug. 19, 2013, http://www.startribune.com/local/west/220066801.html; Paul Demko,
Mounting Data-Privacy Lawsuits Threaten to Swamp Governments, POLITICS IN MINNESOTA,
Sept. 20, 2013, http://politicsinminnesota.com/2013/09/mounting-data-privacy-lawsuits-threatento-swamp-governments/; Elizabeth Dunbar, Lawsuit Claims Driver’s License Data Improperly
Accessed, MPR NEWS, Sep. 12, 2013, http://www.mprnews.org/story/2013/09/11/news/lawsuitdriver-license-data.
5
impermissibly accessed by a former employee. Id. ¶ 131. She then contacted the DPS to inquire
about other retrievals of her data and learned that officers and personnel from approximately 50
different departments and agencies had viewed her data approximately 219 times. Id. ¶¶ 132-33.
Exhibit A to the complaint lists these retrievals of her information. According to the complaint,
“Individual Defendants used Mitchell’s name, not her license plate number, to look up her
private, personal information.” Id. ¶ 137.
The complaint alleges that the Individual Defendants viewed her protected data,
“including her home address, color photograph or image, date of birth, eye color, height, weight
and driver identification number.” Id. ¶ 125. According to the complaint, they “accessed the
information for personal reasons completely unrelated to their position as law-enforcement
officers, public employees, or in their job functions.” Id. ¶ 124. The complaint claims that the
Defendant Entities and Defendant Supervisors “allowed their employees” to view Mitchell’s
personal information for unlawful purposes and “knew or should have known” that it was
occurring. Id. ¶¶ 144-45. The complaint alleges that evidence exists that “illegal access is
widespread and pervasive” within law enforcement and that women disproportionately form the
subjects of impermissible data viewing. Id. ¶¶ 150-53, 158. The complaint states that Mitchell
has not committed any crimes that would authorize retrieval of her data and alleges the absence
of “probable cause or reasonable suspicion to believe that Mitchell had engaged in any criminal
activity or any activity even remotely related to criminal activity.” Id. ¶¶ 160-61.
Beyond these generalized allegations, the complaint does not describe any facts signaling
the impropriety of the lookups by any particular Individual Defendant. The complaint also does
not identify any facts unique to any of the Entity Defendants, other than the number of retrievals
of data by the officers affiliated with the entity, see id. at ¶¶ 75-123, and the listing of the
6
retrievals on Exhibit A. Based on the general allegations, the complaint asserts four counts: (1)
DPPA violations against all Defendants; (2) claims under 42 U.S.C. § 1983 against Individual
Defendants for violations of constitutional and statutory rights; (3) § 1983 claims against Entity
Defendants and Supervisory Defendants related to the violations of the Individual Defendants;
and (4) common law invasion of privacy by all Defendants.
DISCUSSION
Presently before the Court are nine motions filed by individual Defendant Entities or
groups of them. 6 Most of the motions seek dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6). Two motions refer to Rule 12(c). Docket Nos. 53 and 103. The same
standard applies to a motion to dismiss for failure to state a claim under Rule 12(b)(6) and a
motion for judgment on the pleadings under Rule 12(c). See Clemons v. Crawford, 585 F.3d
1119, 1124 (8th Cir. 2009).
6
The motions before the Court are as follows: (1) a motion to dismiss the complaint or to
sever Plaintiff’s claims against it by Defendant Hennepin County, Docket No. 22; (2) a motion to
dismiss filed by Defendant County of Anoka, Docket No. 35; (3) a motion to dismiss filed by
Defendant Counties of Aitkin, Beltrami, Carver, Chisago, Cook, Freeborn, Kandiyohi, McLeod,
Mower, Rice, Stearns, Steele, and Wright, Docket No. 42; (4) a motion to dismiss filed by
Defendant Ramsey County, Docket No. 48; (5) a motion pursuant to Federal Rules of Civil
Procedure 12(b)(6) and Rule 12(c) filed by Defendant Cities of Rosemount, Aitkin, Anoka,
Arlington, Blaine, Bloomington, Blue Earth, Brooklyn Park, Cannon Falls, Champlin, Cottage
Grove, Crosby, Crosslake, Green Isle, Hopkins, Lake Shore, Lakeville, Maple Grove,
Maplewood, Marshall, Minnetonka, Northfield, Plymouth, Red Wing, Rosemount, Roseville, St.
Francis, Wabasha, White Bear Lake, and Woodbury, Docket No. 53; (6) a motion to dismiss or
to sever Plaintiff’s claims against it by Defendant City of Saint Paul, Docket No. 67; (7) a
motion to dismiss by Defendant County of Dakota, Docket No. 69; (8) a motion to dismiss by
Defendant City of Edina, Docket No. 82; and (9) a motion for judgment on the pleadings by
Defendant City of Minneapolis, Docket No. 103. Of the 50 named Defendants, only Defendant
St. Louis County is not covered by one of the nine motions before the Court. Nonetheless, St.
Louis County’s answer raises the defenses addressed by this order and seeks dismissal of the
complaint. Docket No. 29, 76-77. Therefore this order considers the complaint’s claims against
all of the Defendants.
7
The standards applicable in ruling on a motion to dismiss are well established. “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, the complaint
must do more than merely leave “open the possibility that a plaintiff might later establish some
set of undisclosed facts to support recovery.” Twombly, 550 U.S. at 561 (internal quotation
marks omitted). It must plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In
ruling on a motion to dismiss, a court accepts the facts alleged in the complaint as true and grants
all reasonable inferences supported by the facts alleged in favor of the plaintiff. Braden v. WalMart Stores, Inc., 588 F.3d 585, 594-95 (8th Cir. 2009). “This tenet does not apply, however, to
legal conclusions or formulaic recitation of the elements of a cause of action; such allegations
may properly be set aside.” Id. (internal quotation marks omitted).
1. The DPPA Claim (Count I)
As an initial matter, many of the Entity Defendants raise a statute of limitations defense
to Mitchell’s DPPA claims. This Court previously reviewed the relevant law and confirmed that
a four-year limitations period applies to DPPA claims and that the so-called “discovery rule”
exception 7 does not apply. Kost v. Hunt, Civ. No. 13-583, 2013 U.S. Dist. LEXIS 162897, at
*11-23 (D. Minn. Nov. 15, 2013); accord Rasmusson v. Chisago Cnty., Civ. No. 12-632, 2014
U.S. Dist. LEXIS 3102, at *35-45 (D. Minn. Jan. 10, 2014). Consequently, the statute of
limitations defense eliminates Mitchell’s claims related to retrievals of her data occurring earlier
7
Under the discovery rule exception, accrual of a claim is delayed until the plaintiff
discovers the cause of action or could have discovered it with reasonable diligence. See Gabelli
v. SEC, 133 S. Ct. 1216, 1220-21 (2013).
8
than four years from the filing of her complaint on August 9, 2013. For forty Defendant Entities,
Mitchell’s complaint only identifies time-barred claims. Eliminating her claims against those
Defendants leaves her DPPA claims against the cities of Blaine, Edina, Hopkins, Maple Grove,
Saint Paul, and Minneapolis, as well as the counties of Anoka, Freeborn, and Hennepin to be
considered further.
The civil action provision of the DPPA provides as follows:
A person who knowingly obtains, discloses or uses personal information, from a
motor vehicle record, for a purpose not permitted under this chapter shall be liable
to the individual to whom the information pertains, who may bring a civil action
in a United States district court.
18 U.S.C. § 2724(a). As to the Individual Defendants, Mitchell’s complaint alleges that they
“knowingly obtained, disclosed or used Mitchell’s personal information” for an impermissible
purpose. Compl. ¶ 174. The complaint alleges that the Defendant Entities and Defendant
Supervisors “knowingly authorized, directed, ratified, approved, acquiesced in, committed or
participated in obtaining, disclosing or using of Mitchell’s private personal information by
Individual Defendants” and that their actions “constitute a knowing disclosure of the personal
information of Plaintiffs [sic] and others under the DPPA.” Id. ¶¶ 178-179. The complaint also
contends that the Defendant Entities are “vicariously liable for the acts of Defendant
Individuals.” Id. ¶ 182.
Because Mitchell’s claims against a given entity depend on her claims against the
Individual Defendants employed by that entity, 8 to survive the present motions, for each of the
remaining Entity Defendants, Mitchell must meet her burden of pleading that its employees
8
Other district courts have concluded that municipalities may be held vicariously liable for
their employees’ violations of the DPPA. See, e.g., Margan v. Niles, 250 F. Supp. 2d 63, 72-75
(N.D.N.Y. 2003). The parties do not raise the issue, and in light of the disposition on other
grounds, the Court does not reach it.
9
knowingly obtained, disclosed, or used Mitchell’s personal information for an impermissible
purpose. See 18 U.S.C. § 2724(a); Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King
& Stevens, P.A., 525 F.3d 1107, 1110-14 (11th Cir. 2008) (analyzing the statutory language and
structure in detail to confirm that the plaintiff has the burden of establishing an impermissible
purpose). Mitchell’s complaint must satisfy her burden at the pleading stage by alleging an
impermissible purpose with adequate facts to support the allegation. See, e.g., Lancaster v. City
of Pleasanton, Civ. No. 12-5267, 2013 U.S. Dist. LEXIS 131379, at *7-16 (N.D. Cal. Sept. 13,
2013); Foos v. Verizon Bus. Network Servs., Civ. No. 10-CV-3040, 2010 U.S. Dist. LEXIS
100140, at *10-18 (D. Or. Sept. 22, 2010); Briggman v. Ross, Civ. No. 5-09-00040, 2009 U.S.
Dist. LEXIS 94634, at *4-8 (W.D. Va. Oct. 9, 2009).
Moreover, Mitchell must meet her burden in light of the significant exemption for
operations of governmental agencies. See 18 U.S.C. § 2721(b)(1); Kost, 2013 U.S. Dist. LEXIS
162897, at *33-36. As this Court previously explained, the provision of § 2721(b) that allows
for “use by any government agency” of personal information protected by the DPPA differs
materially from the other exceptions in § 2721(b). Kost, 2013 U.S. Dist. LEXIS 162897, at *3336. The government use provision broadly allows for use by the government agency “in carrying
out its functions” as compared to other provisions that include more specific qualifications or
limitations. See, e.g., 18 U.S.C. § 2721(b)(3) (restricting “use in the normal course of business
by a legitimate business” to particular uses); id. § 2721(b)(6) (limiting insurance-related parties
to uses “in connection with claims investigation activities, antifraud activities, rating or
underwriting”). Also, unlike the exemption of § 2721(b)(4) for data uses in connection with
court and agency proceedings, the government use provision does not include specific examples
suggestive of limited categories of activities covered by the provision. In evaluating the scope of
10
§ 2721(b)(4), the Supreme Court pointed to its enumeration of specific examples as indicative
and restrictive of the type of conduct “in connection with” litigation that the exemption covers.
See Maracich, 133 S. Ct. at 2201-02.
The Defendants contend that Mitchell’s complaint fails to plead adequate facts as to each
of them showing that her personal information was obtained, disclosed, or used for an
impermissible purpose. In support of that contention, some of the Defendants argue that the
language in 18 U.S.C. § 2724(a) of “obtains, discloses or uses” should be construed to exclude
mere viewing of information. See Docket No. 56, 4-15. In responding to that argument, Plaintiff
claims that these Defendants “seek to have this Court declare unenforceable” the DPPA
“provisions found enforceable by the Supreme Court” in Reno v. Condon, 528 U.S. 141 (2000).
Docket No. 78, 10-12. The Court reads the Defendants’ argument not as raising a
constitutionality question, 9 but rather as seeking a particular interpretation of language that they
contend is ambiguous in the statute. The Court, however, need not focus on the language of
“obtains, discloses or uses,” because Mitchell’s complaint does not meet the part of 18 U.S.C. §
2724(a) that requires showing that the Defendants’ accesses of her data were “for a purpose not
permitted.”
9
If the Defendants were challenging the constitutionality of the law, they would have been
required to provide notice to the Attorney General of the United States. Fed. R. Civ. P. 5.1(a);
see also Fed. R. Civ. P. 5.1(b) (requiring a court to certify to the Attorney General, under 28
U.S.C. § 2403, that the constitutionality of a statute has been questioned). The Court
acknowledges, but need not make any determinations on, a potential constitutionality question
lurking behind Mitchell’s position. In Reno the Supreme Court found the DPPA to be a
constitutional exercise of Congress’s power under the Commerce Clause, explaining that
“drivers’ personal information is, in the context of this case, an article in interstate commerce.”
528 U.S. at 148-149 (emphasis added). The particular context at issue in Reno dealt with a
state’s dissemination of motor vehicle information to the general public—a clear act of supplying
the information into interstate commerce. See id. at 147, 151. The scenarios targeted by
Mitchell’s complaint—i.e., retrievals of data by local law enforcement agencies within a state
from that state’s DMV without further disclosure or external application—potentially represent a
materially different context.
11
The complaint is devoid of any facts that adequately support the alleged impropriety of
the data retrievals by any particular Individual Defendant or Defendant Entity. Exhibit A to the
complaint contains the only information specific to each of the Entity Defendants, along with the
tallies of the accesses by each Defendant Entity in the body of the complaint, which include
time-barred accesses. For the Entity Defendants with data retrievals not subject to a time-bar,
the relevant entries from Exhibit A are summarized below:
Defendant
Hennepin County
Anoka County
Freeborn County
Blaine
Hopkins
Maple Grove
Saint Paul
Edina
Minneapolis
Exhibit A Entries Not Time-barred
11/19/2009 (3) 10
6/29/2010 (3); 3/25/2011 (2)
2/10/2012
7/5/2010
4/14/2010 (2)
10/22/2009 (2); 11/24/2009 (4)
9/30/2009 (3)
10/1/2009 (3); 10/4/2009; 7/19/2010; 9/6/2011; 10/10/2011;
12/21/2011
9/25/2010; 12/10/2010
Mitchell’s complaint alleges that each of the identified retrievals of her data was
impermissible. To support her position that the complaint adequately alleges the impropriety of
the retrievals, Mitchell points out that the exhibit entries correspond to lookups by a name—
rather than by a license plate—of Mitchell’s information by the Defendants. 11 Mitchell notes the
complaint’s mention of widespread abuse of motor vehicle record data by law enforcement
personnel. She also points to the complaint’s allegations about her status as a television
personality and her lack of involvement in any criminal activity. She contends that these facts
10
According to Defendant Hennepin County, the three entries on Exhibit A to the
complaint for “Edina Driver’s License Office” are attributable to it. Docket No. 25, 5.
11
Defendant City of Edina contends that each of the retrievals by name listed for it on
Exhibit A to Plaintiff’s complaint was preceded by a license plate lookup. Docket No. 101, 2.
At the hearing on the present motions, counsel also noted that multiple people with the name
“Dawn Mitchell” exist, questioning whether a name lookup could be accepted as specifically
targeting Plaintiff Dawn Mitchell. At this stage, the Court resolves these fact issues in Plaintiff’s
favor.
12
alleged in the complaint support her claim of impermissibility of the accesses and she “will seek
to establish that many of the males accessing her information were doing so in large part due to
her gender and physical attractions.” Docket No. 80, 14-16.
A fundamental shortcoming, however, with the facts on which Mitchell relies is that they
do not reflect an outward manifestation of the alleged impermissible purpose of any Individual
Defendant. Rather, accepting Mitchell’s position requires drawing inferences about what went
on in a particular officer’s mind in connection with a particular lookup, based on assumptions
about law enforcement officers generally and contentions about Mitchell personally.
Determining the adequacy of the pleading of a DPPA claim by drawing such inferences is
unacceptable for at least two reasons.
First, generalized facts about the impropriety of some portion of data retrievals by some
segment of law enforcement officers fail to take a claim of a right to relief based on a particular
officer’s actions above the speculative level. To survive a motion to dismiss, “a complaint must
contain facts with enough specificity ‘to raise a right to relief above the speculative level.’”
United States ex rel. Raynor v. Nat’l Rural Utils. Coop. Fin., Corp., 690 F.3d 951, 955 (8th Cir.
2012) (quoting Twombly, 550 U.S. at 555). Mitchell’s complaint only alleges that “illegal access
is widespread and pervasive throughout departments.” Compl. ¶ 150. The Minnesota
Legislative Auditor’s report referenced in the complaint only confirms that a significant
percentage of officers have made questionable queries of driver’s license information. It does
not reflect information about any individual officer and does not even quantify the percentage of
all queries that have been questionable. 12 Mitchell’s DPPA claims, however, relate to particular
12
Although the report estimates that over half of law enforcement officers made
questionable queries of driver’s license data in 2012, it does not quantify the percentage of the
total queries by those officers that were questionable. Docket No. 61-1, 39. Moreover, the
13
retrievals of her personal information by individual officers. Her claims against them need to be
assessed individually and separately. Cf. Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006)
(“Liability for damages for a federal constitutional tort is personal, so each defendant’s conduct
must be independently assessed.”). She therefore needs to allege facts reflecting the impropriety
of the data retrieval by each individual officer to raise her claim against the officer above a
speculative level. See Iqbal, 556 U.S. at 678 (noting that a complaint must plead “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged”).
Second, relying on facts about the plaintiff, as Mitchell does, provides no coherent and
workable way to distinguish between DPPA claims that should survive a motion to dismiss and
those that should not. The facts alleged in Mitchell’s complaint, especially in light of the
Legislative Auditor’s report, make it very plausible that at least some law enforcement personnel
have looked up women’s, and maybe especially attractive women’s, motor vehicle data without a
permissible reason for doing so. Mitchell could perhaps reasonably speculate that she is one of
those women. But many other women could also reasonably make the same speculation. While
Mitchell has the added characteristic of being on television, many women can claim varying
levels of fame or a public presence. 13 Thus, to accept Mitchell’s position would entail accepting
that every woman with no criminal background and some unspecified level of fame and/or
attractiveness can state a DPPA claim against any local governmental entity with an employee
report flagged 9% of officers for disproportionately querying individuals of one sex—the
category of questionable queries relevant to Mitchell’s position—in 2012. Id.
13
For example, in Kost, one of the plaintiffs noted that she had received some publicity
based on a newspaper article that featured her and a television interview that she had given. See
2013 U.S. Dist. LEXIS 162897, at *3-4.
14
that accessed her data, even in the absence of any external manifestation of the employee’s
alleged improper purpose.
That is a position that the Court cannot accept. To do so would necessitate one of two
equally untenable outcomes that there is no indication Congress intended when it enacted a civil
action provision as part of the DPPA. The first potential consequence would be to have courts
make determinations as to whether a given plaintiff is attractive enough, famous enough, or has
enough of a history and countenance that place her outside the realm of reasonable interest in
connection with criminal activity such that she can state a DPPA claim—a task for which at least
this Court is not qualified. Needless to say, such a proposition would also raise a host of other
problems.
To avoid those problems, the second option would be to allow any person whose data has
been retrieved by a governmental entity to proceed with a DPPA action, at least until the
defendant provides the reason for accessing the plaintiff’s data. In other words, the civil action
provision of the DPPA would need to be read as creating a right to learn of the reason for any
personal data retrieval by a governmental agency defendant. But the plain language of the
statute does not create that right. See 18 U.S.C. 2724(a). Neither does the statute imply it,
because the burden of establishing an impermissible purpose lies with the plaintiff, as discussed
above. See Thomas, 525 F.3d at 1110-14. Additionally, as this Court has previously noted,
finding that the DPPA creates a broad and automatic entitlement to discovery of the reasons a
law enforcement officer retrieves an individual’s personal information would contravene the
acknowledged discretion that has been recognized for law enforcement activities. See Kost v.
Hunt, Civ. No. 13-583, 2013 U.S. Dist. LEXIS 145148, at *13-14 (D. Minn. Oct. 8, 2013).
Nothing about the statute or its congressional record suggests that Congress intended that result.
15
To the contrary, the legislative history reflects “a desire to preserve broad discretion for law
enforcement agents to retrieve information in the course of their duties.” Smythe v. City of
Onamia, Civ. No. 12-03149, 2013 U.S. Dist. LEXIS 78948, at *14 (D. Minn. June 5, 2013).
Mitchell’s complaint does not include any allegations reflecting an impermissible
purpose beyond contentions about a subset of actions of a segment of officers generally and her
beliefs about the interest in her of the particular officers who retrieved her data. Her allegations
differ in this regard from cases where claims of impermissible purpose have risen above the
speculative level. Such cases generally included some indication of a connection or interaction
between an identifiable law enforcement officer and the plaintiff, from which the asserted
impropriety of the officer’s retrieval of the plaintiff’s data can be plausibly inferred. See, e.g.,
Smythe, 2013 U.S. Dist. LEXIS 78948, at *9-20 (“a long and complicated history” existed
between the plaintiff and officer such that the complaint alleged specific facts reflecting that the
officer retrieved the plaintiff’s information “for something other than a law enforcement function
on at least one occasion”); Schierts v. City of Brookfield, 868 F. Supp. 2d 818, 819-21 (E.D. Wis.
2012) (plaintiff dated a third-party to whom an officer provided plaintiff’s address and plaintiff
learned of the officer’s communications when plaintiff accessed the third-party’s email account);
Menghi v. Hart, 745 F. Supp. 2d 89, 96-97 (E.D.N.Y. 2010) (officer arrested plaintiff for driving
under the influence and plaintiff subsequently received harassing and threatening phone calls,
which an investigation traced to the officer prior to the suit). In those cases, the facts 14 allowed
for an external basis—in the form of the officer’s subsequent actions—to probe the propriety of
the prior retrieval of information. Mitchell’s claim differs in that the allegations of her complaint
14
Although Shierts and Menghi represent decisions at a stage later than a motion to dismiss,
the discussion in the opinions reflects that the plaintiff could rely on the relevant facts at the time
of the filing of the complaint.
16
reference only retrieval of her protected information. The nature of Mitchell’s claims therefore
effectively renders the “for a purpose not permitted” language of the DPPA’s civil action
provision an element purely of subjective intent of the defendant.
As the Supreme Court has recognized, a “potentially serious problem” exists when a
claim against a public official turns on improper intent, “because an official’s state of mind is
easy to allege and hard to disprove.” Crawford-El v. Britton, 523 U.S. 574, 584-85 (1998).
Under such circumstances, insubstantial cases may be less amenable to summary disposition and
“therefore implicate[] obvious concerns with the social costs of subjecting public officials to
discovery and trial, as well as liability for damages.” Id. In Crawford, the United States Court
of Appeals for the District of Columbia Circuit had held, in relevant part, that plaintiffs who
allege that government officials acted with “unconstitutional intent” do not need to satisfy any
heightened pleading requirement and may rely on circumstantial as well as direct evidence, but
“in order to prevail in an unconstitutional-motive case, the plaintiff must establish that motive by
clear and convincing evidence.” Id. at 582-83. The Supreme Court disagreed that a heightened
burden of proof applied. Id. at 589.
The Court went on, however, to comment on the “existing procedures available to federal
trial judges in handling claims that involve examination of an official’s state of mind” in light of
the potential problems presented by those claims. Id. at 597-98. It noted that in such cases a
district court “must exercise its discretion so that officials are not subjected to unnecessary and
burdensome discovery or trial proceedings.” Id. One of the options for doing so is to “insist that
the plaintiff put forward specific, nonconclusory factual allegations that establish improper
motive causing cognizable injury in order to survive a prediscovery motion for dismissal or
summary judgment.” Id.
17
Where the gravamen of the complaint is impropriety existing solely in the mind of a
government actor whose job provides general access to the protected data—i.e. a defendant who
implicates the exception of 18 U.S.C. § 2721(b)(1)—it is consistent with the Supreme Court’s
admonition as well as the language of the DPPA to require a threshold showing of some external
manifestation of the asserted impermissible purpose. Neither the DPPA nor its legislative history
betray any congressional intent for the civil action provision to operate as a means of policing the
conditions under which local government actors, with legitimate access to the data, merely view
it. When Congress meant to focus a restriction on the mere viewing of citizens’ personal
information, including by those with legitimate access, it has done so explicitly. See 26 U.S.C. §
7431(a)(1) (allowing for a civil action for damages by a taxpayer, when an employee of the
United States “knowingly, or by reason of negligence, inspects or discloses any return or return
information” about the taxpayer in violation of the applicable provisions) (emphasis added).
Congress enacted the DPPA primarily as a response to concerns about the “threat from
stalkers and criminals who could acquire personal information from state DMVs” and the sale of
“personal information to businesses engaged in direct marketing and solicitation.” Maracich,
133 S. Ct. at 2198. By its nature, the DPPA affords a certain level of privacy protection, but it is
a circumscribed one. See Margan v. Niles, 250 F. Supp. 2d 63, 68 n.4 (N.D.N.Y. 2003) (noting
that “the DPPA was a crime fighting measure; not a general privacy protection measure”).
While the DPPA does not immunize local governmental actors with regard to anything they do
with protected information to which they have access, it also does not require them to explain—
or a federal court to pass judgment on—every instance of retrieval of an individual’s personal
data, in the absence of outwardly discernable facts rendering the impropriety of a particular
officer’s actions plausible.
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2. Claims Under 42 U.S.C. § 1983 (Counts II and III)
The Court has previously held that claims under 42 U.S.C. § 1983 are unavailable for
violations of any statutory or constitutional rights under facts analogous to those alleged in the
complaint. See Kiminski v. Hunt, Civ. No. 13-185, 2013 U.S. Dist. LEXIS 157829, at *25-42
(D. Minn. Sept. 20, 2013); see also Kost, 2013 U.S. Dist. LEXIS 145148, at *15-16. In
particular, the DPPA’s comprehensive remedial scheme and comparatively limited private cause
of action confirm that Congress did not intend to leave claims under § 1983 available to enforce
any statutory rights created by the DPPA. Kiminski, 2013 U.S. Dist. LEXIS 157829, at *27-39.
The facts alleged in the complaint also do not implicate a potential violation of any constitutional
rights. See id. at *39-42; Bass v. Anoka Cnty., Civ. No. 13-860, 2014 U.S. Dist. LEXIS 21846,
at *14-19 (D. Minn. Feb. 21, 2014). Counts II and III will be dismissed for the reasons stated in
the Kiminski and Kost orders. See also Rasmusson, 2014 U.S. Dist. LEXIS 3102, at *11-29
(dismissing claims asserted under § 1983 for alleged impermissible retrievals of motor vehicle
record data); Nelson v. Jesson, Civ. No. 13-340, 2013 U.S. Dist. LEXIS 156711, at *9-21 (D.
Minn. Nov. 1, 2013) (same).
3. State Law Claim for Invasion of Privacy (Count IV)
Mitchell’s claim for invasion of privacy is a state law claim. The basis for the Court’s
jurisdiction over this claim is 28 U.S.C. § 1367(a) (2012), which permits a district court to
exercise supplemental jurisdiction over claims that are part of the same case or controversy as
the claims that fall within the district court’s original jurisdiction. A district court may, in its
discretion, decline to exercise supplemental jurisdiction when “all claims over which it has
original jurisdiction” have been dismissed. Id. § 1367(c)(3); see Franklin v. Zain, 152 F.3d 783,
786 (8th Cir. 1998). In this case, the Court is dismissing the claims that fall within the Court’s
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original jurisdiction. The Court declines to exercise supplemental jurisdiction over, and
therefore dismisses without prejudice, Mitchell’s state law claim for invasion of privacy.
CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.
The judgment docketed on February 28, 2014 [Docket No. 110] is VACATED
pursuant to Federal Rule of Civil Procedure 60(a).
2.
Defendant Hennepin County’s Motion to Dismiss [Docket No. 22] is GRANTED.
3.
Defendant Anoka County’s Motion to Dismiss [Docket No. 35] is GRANTED.
4.
The Motion to Dismiss [Docket No. 42] of Defendant Counties of Aitkin,
Beltrami, Carver, Chisago, Cook, Freeborn, Kandiyohi, McLeod, Mower, Rice,
Stearns, Steele, and Wright is GRANTED.
5.
Defendant Ramsey County’s Motion to Dismiss [Docket No. 48] is GRANTED.
6.
The Motion pursuant to Federal Rules of Civil Procedure 12(b)(6) and Rule 12(c)
[Docket No. 53] of Defendant Cities of Rosemount, Aitkin, Anoka, Arlington,
Blaine, Bloomington, Blue Earth, Brooklyn Park, Cannon Falls, Champlin,
Cottage Grove, Crosby, Crosslake, Green Isle, Hopkins, Lake Shore, Lakeville,
Maple Grove, Maplewood, Marshall, Minnetonka, Northfield, Plymouth, Red
Wing, Rosemount, Roseville, St. Francis, Wabasha, White Bear Lake, and
Woodbury is GRANTED.
7.
Defendant City of Saint Paul’s Motion to Dismiss [Docket No. 67] is GRANTED.
8.
Defendant County of Dakota’s Motion to Dismiss [Docket No. 69] is GRANTED.
9.
Defendant City of Edina’s Motion to Dismiss [Docket No. 82] is GRANTED.
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10.
Defendant City of Minneapolis’s Motion for Judgment on the Pleadings [Docket
No. 103] is GRANTED.
11.
Counts II and III of Plaintiff’s Complaint are DISMISSED with prejudice as to all
Defendants.
12.
Count IV of Plaintiff’s Complaint is DISMISSED without prejudice as to all
Defendants.
13.
Count I of Plaintiff’s Complaint is DISMISSED with prejudice as to the following
Defendants: Aitkin County, Beltrami County, Carver County, Chisago County,
Cook County, Dakota County, Kandiyohi County, McLeod County, Mower
County, Rice County, St. Louis County, Stearns County, Steele County, and
Wright County, Ramsey County, City of Aitkin, City of Anoka, City of Arlington,
City of Bloomington, City of Blue Earth, City of Brooklyn Park, City of Cannon
Falls, City of Champlin, City of Cottage Grove, City of Crosby, City of
Crosslake, City of Green Isle, City of Lake Shore, City of Lakeville, City of
Maplewood, City of Marshall, City of Minnetonka, City of Northfield, City of
Plymouth, City of Red Wing, City of Rosemount, City of Roseville, City of St.
Francis, City of Wabasha, City of White Bear Lake, and City of Woodbury.
14.
Count I of Plaintiff’s Complaint is DISMISSED without prejudice as to the
following Defendants: City of Blaine, City of Edina, City of Hopkins, City of
Maple Grove, City of Saint Paul, City of Minneapolis, Anoka County, Freeborn
County, and Hennepin County.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 4, 2014
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
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