Kampschroer et al v. Anoka County et al

Filing 213

ORDER: 1. Defendants Michael Campion, Ramona Dohman, and Pat McCormack's Motion to Dismiss [Doc. No. 54] and Supplemental Motion to Dismiss [Doc. No. 131] is GRANTED. 2. Defendant Rochester Motors' Motion to Dismiss [Doc. No. 76] is GRANTE D IN PART and DENIED IN PART, consistent with this Order. 3. Defendant Metropolitan Council's Motion to Dismiss or Sever [Doc. No. 104] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 4. Defendant Minneapolis Park and Recreat ion Board's Motion to Dismiss or Sever [Doc. No. 138] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 5. Defendant Metropolitan Airports Commission's Motion to Dismiss or Sever [Doc. No. 141] is GRANTED. 6. Defendant Rams ey County's Motion to Dismiss or Sever [Doc. No. 88] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 7. Defendant Anoka County's Motion to Dismiss [Doc. No. 93] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 8. Defendant Hennepin County's Motion to Dismiss or Sever [Doc. No. 99] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 9. Defendant Olmstead County's Motion to Dismiss or Sever [Doc. No. 110] is GRANTED IN PART an d DENIED IN PART, consistent with this Order. 10. Defendant Dakota County's Motion to Dismiss [Doc. No. 116] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 11. All other County Defendants' Motion to Dismiss or Sever [Doc . No. 155] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 12. Defendant Saint Louis County's Motion for Judgment on the Pleadings [Doc. No. 164] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 13. Defendant City of Edina's Motion to Dismiss [Doc. No. 121] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 14. Defendant City of Saint Paul's Motion to Dismiss or Sever [Doc. No. 126] is GRANTED IN PART and DENIED IN PART, consist ent with this Order. 15. Defendant City of Minneapolis's Motion to Dismiss or Sever [Doc. No. 151] is GRANTED IN PART and DENIED IN PART, consistent with this Order. 16. Motion to Dismiss or Sever by all other City Defendants, Centennial Lakes Police Department; Dakota Communications Center, and Lakes Area Police Department [Doc. No. 130] is GRANTED IN PART and DENIED IN PART, consistent with this Order. (Written Opinion.) Signed by Judge Susan Richard Nelson on 07/03/2014. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Jessica Leah Kampschroer and Cory
Patrick Kampschroer,

Case No. 13-cv-2512 (SRN/TNL)

Plaintiffs,

MEMORANDUM OPINION
AND ORDER

v.
Anoka County; City of Anoka; City of
Apple Valley; City of Arlington; City of
Baxter; City of Belle Plaine; Beltrami
County; Benton County; City of Blaine;
City of Bloomington; Blue Earth County;
City of Braham; City of Brooklyn Center;
City of Brooklyn Park; City of Brownton;
City of Burnsville; City of Cambridge; City
of Cannon Falls; Carver County; Cass
County; Centennial Lakes Police
Department; City of Champlin; City of
Chaska; Chisago County; City of Columbia
Heights; City of Coon Rapids; City of
Corcoran; City of Cottage Grove; City of
Crosby; Crow Wing County; City of
Crystal; Dakota Communications Center;
Dakota County; City of Deephaven; City of
Dundas; City of Eagan; City of Eden
Prairie; City of Edina; City of Elk River;
City of Fairmont; Faribault County; City of
Faribault; City of Farmington; Fillmore
County; City of Foley; City of Forest Lake;
City of Fridley; City of Glencoe; City of
Golden Valley; Goodhue County; City of
Goodview; Grant County; City of Hastings;
Hennepin County; City of Hopkins; City of
Howard Lake; Hubbard County; City of
1

Hutchinson; City of Inver Grove Heights;
City of Isanti; Isanti County; City of
Jordan; Kanabec County; Lakes Area
Police Department; City of Lakeville; Le
Sueur County; City of Litchfield; City of
Mankato; City of Maple Grove; City of
Maplewood; McLeod County; City of
Medina; City of Mendota Heights;
Metropolitan Council; Mille Lacs County;
City of Minneapolis; City of Minnetonka;
City of Montgomery; City of Moorhead;
Morrison County; City of Morristown; City
of Mounds View; Minneapolis Parks and
Recreation Board; Metropolitan Airports
Commission; City of New Brighton; City
of New Hope; City of New Prague; City of
Newport; Nicollet County; City of North
Saint Paul; City of North Mankato; City of
Northfield; Olmsted County; City of
Owatonna; Pine County; City of Prior
Lake; Ramsey County; City of Ramsey;
Rice County; City of Richfield; City of
Robbinsdale; City of Rochester; Rochester
Motors, LLC; City of Rosemount; City of
Roseville; City of Sartell; City of Savage;
Scott County; City of Shakopee; Sherburne
County; City of Spring Lake Park; City of
Saint Anthony; City of Saint Cloud; City of
Saint Francis; Saint Louis County; City of
Saint Louis Park; City of Saint Paul; City
of Saint Paul Park; City of Saint Peter; City
of Staples; Stearns County; Steele County;
City of Stillwater; City of West Saint Paul;
Wadena County; City of Waite Park;
Washington County; City of Wayzata; City
of White Bear Lake; Winona County; City
of Woodbury; Wright County; Yellow

2

Medicine County; Pat McCormack in her
individual capacity as the Director of
Driver and Vehicle Services at the
Minnesota Department of Public Safety;
Michael Campion, in his individual
capacity as the Commissioner of the
Department of Public Safety; Ramona
Dohman, in her individual capacity as the
Commissioner of the Department of Public
Safety; DPS Does; John and Jane Does (11500) 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 and federal departments and
agencies,
Defendants.

Jonathan A. Strauss, Lorenz F. Fett, Jr., Mark H. Zitzewitz, Sonia L. Miller-Van Oort,
Kenneth H. Fukuda, Sapientia Law Group PLLC, 12 South Sixth Street, Suite 1242,
Minneapolis, MN 55402; Jeffrey M. Montpetit and Susan M. Holden, Sieben Grose Von
Holtum & Carey, Ltd., 901 Marquette Avenue, Suite 500, Minneapolis, MN 55402, for
Plaintiffs.
Bryan D. Frantz, Anoka County Attorney’s Office, 2100 Third Avenue, Anoka, MN
55303; Stephanie A. Angolkar and Susan M. Tindal, Iverson Reuvers Condon, 9321
Ensign Avenue South, Bloomington, MN 55438, for Defendant Anoka County.
John K. Iverson, Stephanie A. Angolkar, and Susan M. Tindal, Iverson Reuvers Condon,
9321 Ensign Avenue South, Bloomington, MN 55438, for Defendants City of Anoka,
City of Apple Valley, City of Arlington, City of Baxter, City of Belle Plaine, City of
Blaine, City of Bloomington, City of Braham, City of Brooklyn Center, City of Brooklyn
Park, City of Brownton, City of Burnsville, City of Cambridge, City of Cannon Falls,
Centennial Lakes Police Department, City of Champlin, City of Chaska, City of Chisago,
City of Columbia Heights, City of Corcoran, City of Cottage Grove, City of Crosby, City
of Crystal, City of Deephaven, City of Dundas, City of Eagan, City of Eden Prairie, City
3

of Elk River, City of Fairmont, City of Faribault, City of Farmington, City of Foley, City
of Forest Lake, City of Fridley, City of Glencoe, City of Golden Valley, City of
Goodview, City of Hastings, City of Hopkins, City of Howard Lake, City of Hutchinson,
City of Inver Grove Heights, City of Isanti, City of Jordan, City of Lakeville, City of
Litchfield, City of Mankato, City of Maple Grove, City of Maplewood, City of Medina,
City of Minnetonka, City of Montgomery, City of Moorhead, City of Morristown, City of
Mounds View, City of New Brighton, City of New Hope, City of New Prague, City of
Newport, City of North Saint Paul, City of North Mankato, City of Northfield, City of
Owatonna, City of Prior Lake, City of Ramsey, City of Richfield, City of Robbinsdale,
City of Rochester, City of Rosemount, City of Roseville, City of Sartell, City of Savage,
City of Shakopee, City of Spring Lake Park, City of Saint Cloud, City of Saint Louis
Park, City of Staples, City of Stillwater, City of West Saint Paul, City of Waite Park, City
of Wayzata, City of White Bear Lake, City of Woodbury, City of Coon Rapids, Dakota
Communications Center, City of Mendota Heights, City of Saint Anthony, City of Saint
Francis, City of Saint Paul Park, and City of Saint Peter.
Jamie L. Guderian and Joseph E. Flynn, Jardine Logan & O’Brien PLLP, 8519 Eagle
Point Boulevard, Suite 100, Lake Elmo, MN 55042; Stephanie A. Angolkar and Susan
M. Tindal, Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington, MN
55438, for Defendants Beltrami County, Benton County, Blue Earth County, Carver
County, Cass County, Chisago County, Crow Wing County, Faribault County, Fillmore
County, Goodhue County, Grant County, Hubbard County, Isanti County, Kanabec
County, Lakes Area Police Department, Le Sueur County, McLeod County, Mille Lacs
County, Morrison County, Nicollet County, Rice County, Scott County, Sherburne
County, Stearns County, Steele County, Wadena County, Washington County, Winona
County, Wright County, Yellow Medicine County, and Pine County.
Amelia N. Jadoo, Helen R. Brosnahan, and Andrea G. White, Dakota County Attorney’s
Office, 1560 Highway 55, Hastings, MN 55033; Stephanie A. Angolkar and Susan M.
Tindal, Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington, MN 55438,
for Defendant Dakota County.
Mark P. Hodkinson, Bassford Remele, PA, 33 South Sixth Street, Suite 3800,
Minneapolis, MN 55402; Stephanie A. Angolkar and Susan M. Tindal, Iverson Reuvers
Condon, 9321 Ensign Avenue South, Bloomington, MN 55438, for Defendant City of
Edina.
Toni A. Beitz, Beth A. Stack, and Daniel D. Kaczor, Hennepin County Attorney’s Office,
2000A Government Center, 300 South Sixth Street, Minneapolis, MN 55487; Stephanie
A. Angolkar and Susan M. Tindal, Iverson Reuvers Condon, 9321 Ensign Avenue South,
Bloomington, MN 55438, for Defendant Hennepin County.
C. Lynne Fundingsland and Kristin R. Sarff, Minneapolis City Attorney’s Office, 350
4

South Fifth Street, Room 210, Minneapolis, MN 55415; Stephanie A. Angolkar and
Susan M. Tindal, Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington,
MN 55438, for Defendant City of Minneapolis.
Ann E. Walther, Daniel A. Louismet, and Karin E. Peterson, Rice Michels & Walther
LLP, 10 Second Street Northeast, Suite 206, Minneapolis, MN 55413; Stephanie A.
Angolkar and Susan M. Tindal, Iverson Reuvers Condon, 9321 Ensign Avenue South,
Bloomington, MN 55438, for Defendant Minneapolis Park & Recreation Board.
Timothy R. Schupp and Ryan O. Vettleson, Gaskins, Bennett, Birrell, Schupp, LLP, 333
South Seventh Street, Suite 3000, Minneapolis, MN 55402; Stephanie A. Angolkar and
Susan M. Tindal, Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington,
MN 55438, for Defendant Metropolitan Airports Commission.
Douglas A. Boese, Gregory J. Griffiths, and Jennifer Marie Peterson, Dunlap & Seeger,
PA, P.O. Box 549, Rochester, MN 55903; Stephanie A. Angolkar and Susan M. Tindal,
Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington, MN 55438, for
Defendant Olmstead County.
Kimberly R. Parker and Robert B. Roche, Ramsey County Attorney’s Office, 121
Seventh Place East, Suite 4500, Saint Paul, MN 55101; Stephanie A. Angolkar and Susan
M. Tindal, Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington, MN
55438, for Defendant Ramsey County.
Charles K. Maier, Gray Plant Mooty, 80 South Eighth Street, Suite 500, Minneapolis,
MN 55402; Todd L. Nissen, Drawe & Maland, 7701 France Avenue, Suite 240, Edina,
MN 55435; Stephanie A. Angolkar and Susan M. Tindal, Iverson Reuvers Condon, 9321
Ensign Avenue South, Bloomington, MN 55438, for Defendant Rochester Motors LLC.
Nick D. Campanario, Saint Louis County Attorney’s Office, 100 North Fifth Avenue
West, Room 501, Duluth, MN 55802; Stephanie A. Angolkar and Susan M. Tindal,
Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington, MN 55438, for
Defendant Saint Louis County.
Cheri M. Sisk, City of Saint Paul Attorney’s Office, 15 West Kellogg Boulevard, 750
City Hall and Courthouse, Saint Paul, MN 55102; Stephanie A. Angolkar and Susan M.
Tindal, Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington, MN 55438,
for Defendant City of Saint Paul.
Oliver J. Larson, Minnesota Attorney General’s Office, Suite 1800, 445 Minnesota
Street, Suite 1800, Saint Paul, MN 55101; Stephanie A. Angolkar and Susan M. Tindal,
Iverson Reuvers Condon, 9321 Ensign Avenue South, Bloomington, MN 55438, for

5

Defendants Michael Campion, Ramona Dohman, and Pat McCormack.
Stephanie A. Angolkar and Susan M. Tindal, Iverson Reuvers Condon, 9321 Ensign
Avenue South, Bloomington, MN 55438, for Defendants John and Jane Doe (1-1500),
Entity Does (1-50), and DPS Does.
Daniel L. Abelson, Metropolitan Council, 390 Robert Street North, Saint Paul, MN
55101; Stephanie A. Angolkar and Susan M. Tindal, Iverson Reuvers Condon, 9321
Ensign Avenue South, Bloomington, MN 55438, for Defendant Metropolitan Council.

SUSAN RICHARD NELSON, United States District Judge
I.

INTRODUCTION
This matter is before the Court on the following motions: (1) Defendants Michael

Campion, Ramona Dohman, and Pat McCormack’s Motion to Dismiss [Doc. No. 54] and
Supplemental Motion to Dismiss [Doc. No. 131]; (2) Defendant Rochester Motors’
Motion to Dismiss [Doc. No. 76]; (3) Defendant Metropolitan Council’s Motion to
Dismiss or Sever [Doc. No. 104]; (4) Defendant Minneapolis Park and Recreation
Board’s Motion to Dismiss or Sever [Doc. No. 138]; (5) Defendant Metropolitan Airports
Commission’s Motion to Dismiss or Sever [Doc. No. 141]; (6) Defendant Ramsey
County’s Motion to Dismiss or Sever [Doc. No. 88]; (7) Defendant Anoka County’s
Motion to Dismiss [Doc. No. 93]; (8) Defendant Hennepin County’s Motion to Dismiss
or Sever [Doc. No. 99]; (9) Defendant Olmstead County’s Motion to Dismiss or Sever
[Doc. No. 110]; (10) Defendant Dakota County’s Motion to Dismiss [Doc. No. 116]; (11)
all other County Defendants’ Motion to Dismiss or Sever [Doc. No. 155]; (12) Defendant
Saint Louis County’s Motion for Judgment on the Pleadings [Doc. No. 164]; (13)
Defendant City of Edina’s Motion to Dismiss [Doc. No. 121]; (14) Defendant City of

6

Saint Paul’s Motion to Dismiss or Sever [Doc. No. 126]; (15) Defendant City of
Minneapolis’s Motion to Dismiss or Sever [Doc. No. 151]; and (16) Motion to Dismiss or
Sever by all other City Defendants, Centennial Lakes Police Department, Dakota
Communications Center, and Lakes Area Police Department [Doc. No. 130]. For the
reasons set forth below, the Court denies in part and grants in part these motions.
II.

BACKGROUND
The Driver and Vehicle Services Division (“DVS”) of the Minnesota Department

of Public Safety (“DPS”) maintains a database containing the motor vehicle records of
Minnesota drivers (“DVS Database”). (Second Am. Compl. ¶ 169 [Doc. No. 20].) The
DVS Database contains personal information, including “names, dates of birth, driver’s
license numbers, addresses, driver’s license photos, weights, heights, social security
numbers, various health and disability information, and eye colors of Minnesota drivers.”
(Id. ¶ 170.)
Plaintiff Jessica Kampschroer (“Jessica”) is currently a news anchor and reporter
for 5 EYEWITNESS NEWS. (Id. ¶ 166.) She has been a local Minnesota television
news reporter and anchor with Channel 5 KSTP since June 2003. (Id. ¶ 165.) Plaintiff
Cory Kampschroer (“Cory”) is currently a digital media director for KSTP/5
EYEWITNESS NEWS, and previously was a news anchor and reporter for WCCO
Radio. (Id. ¶ 167.) During their careers in television news, Jessica and Cory met and
interviewed numerous law-enforcement personnel. (Id. ¶ 168.)
In May of 2008, Jessica received a letter from DPS advising that her driver’s
license information had been inappropriately accessed. (Id. ¶ 410.) Plaintiffs
7

immediately contacted Pat McCormack, DPS’s Director of Driver and Vehicle Services,
and McCormack informed Plaintiffs that only one employee had obtained Jessica’s
information inappropriately. (Id. ¶ 411.) McCormack informed Plaintiffs that “the
department has taken the appropriate and allowable disciplinary actions necessary to
address this matter with the employee,” and inappropriate accesses were not a widespread
concern. (Id. ¶¶ 412, 415.) McCormack stated that the individual was from Southern
Minnesota, whose motive was “basic curiosity.” (Id. ¶¶ 413-14.) Verbally and in
writing, McCormack informed Jessica that employee use of the information would be
monitored, and DPS has “addressed and reinforced its data privacy practices with other
staff.” (Id. ¶ 417.)
On June 11, 2008, Jessica received notice from TCF Bank that a person named
“Jessica Miles” went to a Mankato-area TCF branch, changed Jessica Kampschroer’s
bank account information, and was issued a new card. (Id. ¶¶ 420, 423.) Jessica,
however, had not changed her TCF bank information. (Id. ¶ 420.) Concerned that the
fraudulent access of her TCF bank account related to the earlier incident identified by
DPS, Jessica contacted McCormack again. (Id. ¶¶ 424-25.) McCormack reassured
Jessica that the incident was isolated and had been addressed. (Id. ¶¶ 424, 426.)
Consequently, Jessica did not take further action. (Id. ¶ 426.)
In January of 2013, Jessica received a letter from the Department of Natural
Resources, advising that her information had been accessed by an individual for an
impermissible purpose. (Id. ¶ 427.) Plaintiffs then contacted DPS to inquire whether law
enforcement officers had been viewing their private information. (Id. ¶ 428.)
8

On July 30, 2013, Jessica learned from DPS that officers and personnel from
approximately one hundred eighty different departments and agencies had reviewed,
obtained, or used her private information approximately 1,380 times since 2003. (Id. ¶
429.) On August 12, 2013, Cory learned from DPS that officers and personnel from
approximately forty different departments and agencies had reviewed, obtained, or used
his private information approximately 92 times since 2003. (Id. ¶ 430.) The audit reports
for Jessica and Cory from DPS are attached to the Second Amended Complaint. (Exs. A
and B to Second Am. Compl. [Doc. Nos. 20-1, 20-2].)
The audit reports show several concerning patterns regarding these lookups. First,
it appears that Defendants obtained Plaintiffs’ personal information on all days of the
week, at varying times of day and night. (Mar. 7, 2014, Hr’g Tr. at 38.) There were, for
example, three hundred and fifty nine accesses of Jessica’s information between 10:00
p.m. and 6:00 a.m. (Id.)
Second, they demonstrate that in a number of instances, officers in the same
department searched Jessica and Cory’s personal information within minutes of each
other. On July 25, 2010, “Bloomington PD User 14” looked up Jessica’s information at
8:02 p.m., and “Bloomington PD User 1” looked up Cory’s information at 8:03 p.m. (Ex.
A to Second Am. Compl. at 3 [Doc. No. 20-1]; Ex. B to Second Am. Compl. at 1 [Doc.
No. 20-2].) On April 1, 2009, “Bloomington PD User 15” looked up Jessica’s
information at 10:56 p.m., and “Bloomington PD User 2” looked up Cory’s information
once at 10:55 p.m. and twice at 10:56 p.m. (Ex. A to Second Am. Compl. at 3; Ex. B to
Second Am. Compl. at 1.) On April 23, 2010, “Crow Wing Co Sheriff User 4” looked up
9

Jessica’s information at 6:46 a.m., and “Crow Wing Co Sheriff” looked up Cory’s
information at 6:47 a.m. (Ex. A to Second Am. Compl. at 9; Ex. B to Second Am.
Compl. at 2.)
On September 16, 2009, “Farmington PD User 2” looked up Jessica’s information
at 6:53 p.m. and 6:54 p.m., and “Farmington PD” looked up Cory’s information at 6:55
p.m. (Ex. A. to Second Am. Compl. at 14; Ex. B to Second Am. Compl. at 3.) On
October 31, 2007, “Mpls Park PD” looked up Cory’s information at 6:12 a.m., and “Mpls
Park PD User 4” looked up Jessica’s information at 6:13 a.m. (Ex. B to Second Am.
Compl. at 4; Ex. A to Second Am. Compl. at 28.) On April 2, 2009, “Ramsey PD”
looked up Cory’s information twice at 4:10 p.m., and “Ramsey PD User 3” looked up
Jessica’s information twice at 4:11 p.m. (Ex. B to Second Am. Compl. at 4; Ex. A to
Second Am. Compl. at 32.) On April 4, 2009, “Robbinsdale PD” looked up Cory’s
information at 7:38 a.m. and 7:39 a.m., and “Robbinsdale PD” looked up Jessica’s
information at 7:39 a.m. (Ex. B to Second Am. Compl. at 4; Ex. A to Second Am.
Compl. at 33.)
On July 10, 2011, “Woodbury PD” looked up Cory’s information at 4:41 p.m., and
“Woodbury PD User 2” looked up Jessica’s information at 4:42 p.m. (Ex. B to Second
Am. Compl. at 5; Ex. A to Second Am. Compl. at 45.) On September 11, 2011, “Wright
Co Sheriff User 1” looked up Cory’s information at 8:56 a.m., and “Wright Co Sheriff
User 19” looked up Jessica’s information at 8:57 a.m. (Ex. B to Second Am. Compl. at
5; Ex. A to Second Am. Compl. at 46.) Finally, on January 27, 2010, “Wright Co Sheriff
User 3” looked up Cory’s information at 12:17 p.m., and “Wright Co Sheriff User 30”
10

looked up Jessica’s information at 12:17 p.m. (Ex. B to Second Am. Compl. at 5; Ex. A
to Second Am. Compl. at 47.)
The audit reports also show various Defendants looking up Jessica’s information
on the same day, sometimes within minutes of each other, and often with great frequency.
At oral argument, Plaintiffs provided a demonstrative to the Court based on the audit
information, demonstrating that it is plausible, based on the troubling patterns of lookups,
to infer that they were not accessed for a permissible purpose under the DPPA. (Mar. 7,
2014, Hr’g Tr. at 41.) For instance, on October 2, 2006, three different police
departments (Richfield, St. Anthony, and New Hope) all accessed Jessica’s information
within a matter of minutes of each other. (Id. at 41-42.) Plaintiffs
On December 15, 2006, from 7:00 a.m. to 10:00 p.m., eight different agencies
from all over the state accessed Jessica’s personal information. (Id. at 43.) On July 30,
2007, nine different agencies accessed Jessica’s personal information throughout the day,
some of them at the same time or within minutes of each other. (Id. at 44-45.) On
December 17, 2007, four different police departments accessed Jessica’s personal
information within the span of one hour. (Id. at 45.) On January 22, 2008, four different
entities also accessed Jessica’s personal information within the span of one hour. (Id.)
Plaintiffs correctly note the unlikelihood that Jessica was in the presence of several
officers in different jurisdictions within a short span of time, (id. at 42), particularly
because she has never been advised that she was a suspect or interested party in any law
enforcement matter. (See Second Am. Compl. ¶ 346.) Altogether, these facts plausibly
infer that the lookups did not occur in the course of typical law enforcement functions.
11

It is further alleged that Defendants used Jessica’s and Cory’s names, not their
license plate numbers, to look up their private information in the DVS Database. (Second
Am. Compl. ¶ 434.) Plaintiffs provided the following information to DPS, in order to
acquire and use a State of Minnesota driver’s license: their addresses, color photographs,
dates of birth, weights, heights, eye colors, social security numbers, and medical
information. (Id. ¶ 485.) They did not provide consent for any of the Defendants to
obtain, disclose, or use their private information for anything but official, lawenforcement business. (Id. ¶ 485.) Plaintiffs allege that they committed no crimes or
transgressions that would explain or legitimize the unauthorized access of their private
information. (Id. ¶ 457.)
Plaintiffs filed their Complaint [Doc. No. 1] on September 15, 2013, a First
Amended Complaint [Doc. No. 19] on October 4, 2013, and a Second Amended
Complaint [Doc. No. 20] on October 7, 2013. The Second Amended Complaint alleges
the following claims: (1) violation of the Driver’s Privacy Protection Act (“DPPA”)
(against all Defendants); (2) violation of 42 U.S.C. § 1983 (against all individual
Defendants); (3) violation of 42 U.S.C. § 1983 (against Entity Defendants and Supervisor
Defendants, but not Rochester Motors, LLC); (4) violation of 42 U.S.C. § 1983 (against
Commissioner Defendants, McCormack, and DPS Does); and (5) common law invasion
of privacy (against all Defendants). Defendants now move to dismiss or sever all claims,
arguing that they fail under the relevant statutes of limitations; they fail to state a claim
under the DPPA; they fail to state a claim under Section 1983; they fail to state a claim
for invasion of privacy; they fail for improper joinder; and even if Plaintiffs state a claim,
12

Defendants are entitled to qualified immunity.
III.

DISCUSSION
A. Standard of Review
When evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, the Court assumes the facts in the Complaint to be true and construes all
reasonable inferences from those facts in the light most favorable to the plaintiff. Morton v.
Becker, 793 F.2d 185, 187 (8th Cir. 1986). The Court, however, need not accept as true
wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799,
805 (8th Cir. 1999), or legal conclusions that the plaintiff draws from the facts pled.
Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545
(2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative level.”
Id. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 555). In short, this standard “calls for enough
fact to raise a reasonable expectation that discovery will reveal evidence of [the claim].”
Twombly, 550 U.S. at 556.
Rule 12(c) of the Federal Rules of Civil Procedure provides that a motion for
judgment on the pleadings is appropriate after the pleadings are closed. FED. R. CIV. P.
12(c). A motion for judgment on the pleadings will be granted “only where the moving
13

party has clearly established that no material issue of fact remains and the moving party
is entitled to judgment as a matter of law.” Waldron v. Boeing Co., 388 F.3d 591, 593
(8th Cir. 2004).
A motion for judgment on the pleadings is evaluated under the same standard as a
Rule 12(b)(6) motion to dismiss for failure to state a claim. Clemons v. Crawford, 585
F.3d 1119, 1124 (8th Cir. 2009). Well-pleaded facts, not legal theories or conclusions,
determine the adequacy of the complaint. Id. The facts alleged in the complaint “must
be enough to raise a right to relief above the speculative level.” Id.
B. DPPA Claims
1. Background
The DPPA generally restricts the use and distribution of personal information
contained in motor vehicle records. 18 U.S.C. §§ 2721-2725. This statute provides a
limited right of action against a “person who knowingly obtains, discloses or uses
personal information, from a motor vehicle record, for a purpose not permitted” under the
statute. Id. § 2724(a). As defined by the Act, “personal information” means information
that identifies an individual, including name, photograph, address, social security
number, telephone number, driver identification number, and medical or disability
information. Id. § 2725(3). The exception provision, 18 U.S.C. § 2721(b), sets forth
several permissible uses of personal information for various governmental and business
purposes, such as “use by any government agency, including any court or law
enforcement agency, in carrying out its functions.” Id. § 2721(b)(1).
As for remedies, the DPPA allows: (1) actual damages, but not less than liquidated
14

damages in the amount of $2,500; (2) punitive damages upon proof of willful or reckless
disregard of the law; (3) reasonable attorneys’ fees and other litigation costs reasonably
incurred; and (4) such other preliminary and equitable relief as the court determines to be
appropriate. 18 U.S.C. § 2724(b). Criminal fines are permitted against an individual
who “knowingly violates this chapter,” id. § 2723(a), as are civil penalties for
noncompliance by any “State department of motor vehicles.” Id. § 2723(b).
2. Statute of Limitations
Because the DPPA does not contain a statute of limitations, the general four-year
federal statute of limitations applies. See 28 U.S.C. § 1658(a) (“Except as otherwise
provided by law, a civil action arising under an Act of Congress . . . may not be
commenced later than 4 years after the cause of action accrues.”). The parties contest
when this four-year period began to run. Defendants argue that the “standard rule”
applies, under which a claim accrues when the plaintiff has a complete and present cause
of action.” (E.g., Def. Anoka Cnty.’s Mem. in Supp. of Mot. to Dismiss at 4-9 [Doc. No.
94].) In this context, the clock would have started when Plaintiffs’ driver’s license
information was accessed. Plaintiffs respond that the “discovery rule” applies to DPPA
claims, and that the cause of action does not begin to accrue until the plaintiff has
discovered it. (E.g., Pls.’ Mem. of Law in Opp’n to Def. Anoka County’s Mot. to
Dismiss at 10-28 [Doc. No. 169].) Alternatively, Plaintiffs argue that if the Court applies
the standard rule, an equitable doctrine should apply to toll the statute of limitations. (Id.
at 28-30.)
Neither the United States Supreme Court nor the Eighth Circuit has addressed this
15

issue. Rasmusson v. Chisago Cnty., Civ. No. 12-632 (SRN/JSM), 2014 WL 107067, at
*11 (D. Minn. Jan. 10, 2014). This District, however, has found repeatedly that the
standard rule for accrual applies, such that a DPPA cause of action accrues at the time the
improper access of information occurs. See, e.g., id.; Mallak, 2014 WL 1285807, at *4-6
(finding that the standard rule applies to the statute of limitations in the context of DPPA
cases); Bass v. Anoka Cnty., Civ. No. 13-860 (DSD/JJG), 2014 WL 683969, at *2 (D.
Minn. Feb. 21, 2014) (same); Potocnik v. Carlson, Civ. No. 13-2093 (PJS/JJG), 2014 WL
1206403, at *9 (D. Minn. Mar. 24, 2014) (considering the language and history of 28
U.S.C. § 1658(a) and concluding that the standard rule applies); Kost v. Hunt, Civ. No.
13-583 (JNE/TNL), 2013 WL 6048921, at *5-8 (D. Minn. Nov. 15, 2013) (finding that
the exceptional nature of the discovery rule, the text and structure of § 1658, and the
substantive area covered by the DPPA, all support application of the standard rule).
Consistent with these cases, the Court applies the standard rule for accrual to Plaintiffs’
DPPA claims. Because Plaintiffs filed their Complaint on September 15, 2013, the DPPA
claims that are based on allegations of improper conduct occurring more than four years
before that date—i.e., September 15, 2009—are barred.
The Court, however, considers whether an equitable doctrine applies to toll the
statute of limitations. The doctrine of equitable tolling “permits a plaintiff to sue after the
statutory time period has expired if he has been prevented from doing so due to inequitable
circumstances.” Kost, 2013 WL 6048921, at *8 (citing Firstcom, Inc. v. Qwest Corp., 555
F.3d 669, 675 (8th Cir. 2009)). Equitable tolling offers “an exceedingly narrow window of
relief,” and courts “rarely invoke doctrines such as equitable tolling to alleviate a plaintiff
16

from a loss of his right to assert a claim.” Kost, 2013 WL 6048921, at *8. A party seeking
equitable tolling has the burden to show that: (1) he has been pursuing his rights diligently,
and (2) some extraordinary circumstance stood in his way. Id.
In Kost, the Court found that the plaintiffs could not show any extraordinary
circumstances preventing them from timely filing their claims. Id. at *9. There, the
plaintiffs simply identified their lack of knowledge about any accesses of their data until
they received a letter from the Minnesota Department of Natural Resources, which
prompted them to seek an audit of all such accesses. Id. They did not allege that they could
not have conducted the same audit earlier, but only that they lacked any reason to do so. Id.
The Court therefore found, in part, an “absence of any attempt by Defendants to prevent
Plaintiffs from learning of their claims,” which weighed against applying the doctrine of
equitable tolling. Id.
The instant case, however, is distinguishable from Kost. It is alleged that in May of
2008, Jessica received a letter from DPS stating that her driver’s license information had
been accessed inappropriately, after which Plaintiffs immediately contacted Pat
McCormack, DPS’s Director of Driver and Vehicle Services. (Second Am. Compl. ¶¶ 41011.) McCormack allegedly incorrectly informed Plaintiffs that only one employee from
Southern Minnesota, motivated by “basic curiosity,” had obtained Jessica’s information
inappropriately. (Id. ¶¶ 411, 413-14.) McCormack also informed Plaintiffs that “the
department has taken the appropriate and allowable disciplinary actions necessary to
address this matter with the employee,” that this incident was isolated, and that
inappropriate accesses were not a widespread concern. (Id. ¶¶ 412, 415-16.) Further,
17

McCormack informed Jessica in writing and verbally that employee use of the information
would be monitored, and DPS had “addressed and reinforced its data privacy practices with
other staff.” (Id. ¶ 417.) It is alleged that McCormack “intentionally and fraudulently
concealed the massive extent that law-enforcement personnel had obtained Jessica’s Private
Data”—over 900 times by this point in time. (Id. ¶¶ 418-19.)
On June 11, 2008, Jessica received notice from TCF Bank that her bank account
information had been changed, despite not making any changes herself. (Id. ¶¶ 420, 422.)
Again, Jessica contacted McCormack about her concerns, and McCormack reassured her
that the incident had been addressed. (Id. ¶ 424.) Based on McCormack’s statements,
Jessica did not take further action. (Id. ¶ 426.)
In January of 2013, Jessica again received a letter from the Minnesota Department of
Natural Resources, advising that her information had been accessed by an individual for an
impermissible purpose. (Id. ¶ 427.) This letter prompted Jessica to question whether more
individuals than the one previously disclosed had accessed her information impermissibly.
(Id.) Plaintiffs then contacted DPS to inquire whether law enforcement officers had been
viewing their private information, and retrieved their respective audits. (Id. ¶¶ 428-30.)
McCormack’s actions and statements, if true, understandably might have caused Plaintiffs
not to file suit earlier.
Such facts are sufficient to plead equitable tolling. Discovery is necessary to flesh
out the facts concerning McCormack’s representations to Plaintiffs. If true, McCormack’s
alleged statements in May of 2008 might be a basis to equitably toll the four-year statute of
limitations to Plaintiffs’ DPPA claims. However, even considering the facts in a light most
18

favorable to Plaintiffs, such equitable tolling would only save claims after May of 2004.
Had McCormack not misled the Plaintiffs in May of 2008 and Plaintiffs had then filed suit,
all lookups prior to May of 2004 would still be time-barred. Accordingly, all DPPA claims
based on lookups prior to May of 2004 are hereby dismissed as time-barred.1
3. Failure to State a Claim
To state a claim under the DPPA, a plaintiff must allege that: (1) a defendant
knowingly obtained, disclosed, or used personal information; (2) from a motor vehicle
record; (3) for a purpose not permitted. 18 U.S.C. § 2724(a).
a. Defendants McCormack, Campion, Dohman, and DPS Does
With respect to Defendants (1) Pat McCormack, Director of Driver and Vehicle
Services at the Minnesota Department of Public Safety, (2) Michael Campion,
Commissioner of the Minnesota Department of Public Safety, (3) Ramona Dohman,
Commissioner of the Minnesota Department of Public Safety, and (4) DPS Does, Plaintiffs
allege that they “were and are responsible for creating, maintaining, and providing access to
the database that included Plaintiffs’ Private Data.” (Id. ¶ 550.) It is alleged that the
“disclosure of [Plaintiffs’] information was made by providing a user account and a
password without reasonably requiring or ensuring that accesses would be limited to those
for a legitimate purpose.” (Id. ¶ 351.)
To be liable under the DPPA, the Defendants themselves must have acted with an
impermissible purpose. Bass, 2014 WL 683969, at *3; Nelson v. Jesson, Civ. No. 13-340
1

These time-barred claims include but are not limited to those against the Metropolitan
Airports Commission, whose three alleged lookups occurred in 2003. (Def. Metro. Airports
Comm’n’s Mem. in Supp. of Mot. to Dismiss at 1 [Doc. No. 146].)
19

(RHK/JJK), 2013 WL 5888235, at *3 (D. Minn. Nov. 1, 2013); see Kiminski v. Hunt, Civ.
No. 13-185 (JNE/TNL), 13-389 (JNE/TNL), 13-208 (JNE/TNL), 13-358 (JNE/TNL), 13286 (JNE/TNL), 2013 WL 6872425, at *9 (D. Minn. Sept. 20, 2013) (analyzing the
statutory language of the DPPA to determine congressional intent about the DPPA’s
knowledge requirement, and reaching the same conclusion). As noted in Kiminski, “the
provision[s of the DPPA] may not be stretched to the point of rewriting it so it reaches
others at a state agency who gave the officer database access for a legitimate purpose,
merely because they did so in a negligent manner.” Kiminski, 2013 WL 6872425, at *9.
Because Plaintiffs do not allege that McCormack, Campion, Dohman, and DPS Does
knowingly obtained, disclosed, or used Plaintiffs’ personal information from the DVS
Database for a purpose not permitted, the Court dismisses the DPPA claims against these
Defendants.
b. Remaining Defendants
With respect to the remaining Defendants, the Court considers whether Plaintiffs
state a claim under the DPPA. Specifically, the parties dispute whether the first and third
elements of the claim are pled sufficiently: whether a Defendant “knowingly obtained,
disclosed, or used personal information,” and “for a purpose not permitted.”
Under Iqbal and Twombly, a complaint must contain facts with enough specificity
“to raise a right of right to relief above the speculative level,” Twombly, 550 U.S. at 555,
and “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” are insufficient. Iqbal, 556 U.S. at 678.

20

i. “Knowingly Obtained”
The Court considers whether Plaintiffs have alleged adequately that their personal
information was “knowingly obtained.” Defendants argue that seeking or viewing
information in the DVS Database does not constitute “disclosing,” “using,” or
“obtaining” information in violation of the DPPA. (E.g., Mot. to Dismiss or Sever by All
Other City Defs., Centennial Lakes Police Dep’t, Dakota Commc’ns Ctr., and Lakes Area
Police Dep’t at 13-14 [Doc. No. 135].) This Court, however, has held that information
need not be possessed or acquired in a physical or tangible sense, and that information
may be “obtained” merely by viewing it. Nelson, 2013 WL 5888235, at *2; Mallak,
2014 WL 1285807, at *7. On this issue, the Court finds the reasoning in Nelson and
Mallak persuasive, and therefore concludes that seeking or viewing information is
sufficient for “obtaining” it under the DPPA.
Additionally, the Court considers whether the facts alleged in the Second
Amended Complaint sufficiently support a claim that Plaintiffs’ personal information was
“knowingly obtained” (emphasis added). Plaintiffs claim that “numerous law-enforcement
personnel and public employees [sic] impermissibly accessed the Minnesota Department of
Public Safety’s system for maintaining the personal, private information of Minnesota
citizens.” (Second Am. Compl., Introduction.) It is alleged that “officers and personnel
from approximately one hundred eighty different departments and agencies had reviewed,
and impermissibly obtained or used, her [Jessica’s] Private Data approximately 1,380 times
since 2003.” (Id. ¶ 429.) It is also alleged that “officers and personnel from approximately
forty different departments and agencies had reviewed, and impermissibly obtained or used,
21

his [Cory’s] Private Data approximately 92 times since 2003.” (Id. ¶ 430.) Exhibits A and
B to the Second Amended Complaint reflect these accesses, respectively, identifying the
location of each lookup, as well as the date and time of each access between the years 2003
and 2011. (Exs. A and B to Second Am. Compl. [Doc. Nos. 20-1, 20-2].) These facts are
quite similar to the facts in Mallak, in which the Court found that the plaintiff sufficiently
pled that her information was “knowingly obtained.” See Mallak, 2014 WL 1285807, at *8.
The Court reaches the same conclusion here.
ii. “Purpose Not Permitted”
Next, the Court considers whether Plaintiffs adequately allege that their personal
information was obtained for a purpose not permitted under the DPPA. Defendants argue
that the Second Amended Complaint does not raise any plausible inference of an
impermissible use. (E.g., Def. Anoka Cnty.’s Mem. in Supp. of Mot. to Dismiss at 12 [Doc.
No. 94].) Plaintiffs contend that they have alleged a series of specific facts that compel such
an inference. (E.g., Pls.’ Mem. of Law in Opp’n to Def. Anoka Cnty.’s Mot. to Dismiss at
169 [Doc. No. 169].)
There are sufficient facts here to infer that Plaintiffs’ personal information was
obtained for a purpose not permitted under the DPPA. The Second Amended Complaint
alleges that:
• Plaintiffs are local media personalities in Minnesota who, during their career in
television news, have met and interviewed numerous law-enforcement personnel.
(Second Am. Compl. ¶¶ 165-168.)
• Plaintiffs’ personal information was searched not by license plate number, but rather,
their names. (Id. ¶¶ 4-5, 346.)

22

• Officers and personnel from approximately one hundred eighty different departments
and agencies had accessed Jessica’s private information approximately 1,380 times
since 2003. (Id. ¶ 429.)
• Officers and personnel from approximately forty different departments and agencies
had accessed Cory’s information approximately 92 times since 2003. (Id. ¶ 430.)
• Plaintiffs have never been advised that they were a suspect or even an interested
party in any law enforcement matter. (Id. ¶¶ 346, 458.)
Further, as discussed earlier, supra Part II, Defendants’ troubling patterns of accessing
Plaintiffs’ private information raise an inference of improper use. First, Defendants looked
up Plaintiffs’ information on all days of the week, at different times during the day and
night. Second, on several occasions, officers in the same department searched for Jessica
and Cory’s personal information within minutes of each other. Third, various Defendants
looked up Jessica’s information on the same day, sometimes within minutes of each other,
and often with great frequency. The Court observes the unlikelihood that Plaintiffs were in
the presence of any one Defendant within minutes of each other, or that Jessica was in the
presence of law enforcement in several jurisdictions within a matter of minutes on any given
day. Considered altogether, these facts suggest that Defendants’ lookups of Plaintiffs’
private information did not occur in the course of typical law enforcement functions.
These facts, therefore, distinguish this case from others in this District that found a
failure to state a DPPA claim. In some of these cases, the plaintiff unsuccessfully argued
that a sheer number of accesses created a reasonable inference of a violation. E.g., Bass,
2014 WL 683969, at *3; McDonough v. Al’s Auto Sales, Inc., Civ. No. 13-1889
(DSD/FLN), 2014 WL 683998, at *3 (D. Minn. Feb. 21, 2014). And, in Traub v. City of
Saint Paul, the plaintiff relied on the lookups, her contemporaneous involvement in some
23

publicized activity, and the absence of direct interaction with any defendant, to infer that the
lookups were for an improper purpose. Traub v. City of Saint Paul, Civ. No. 13-3017
(MJD/JJK), 2014 WL 2881484, at *4 (D. Minn. June 25, 2014). The Court, however,
rejected such an inference, noting that
A total of twelve lookups have been alleged against eight Defendants; one
look-up is alleged with respect to five Defendants; no more than three
accesses are alleged by any one Defendant; and none of the motor vehicle
record searches was conducted at a “questionable” time of day or night.
There is no allegation that Plaintiff’s records were accessed by name rather
than license plate number, and there is no significant cluster of locations or
law enforcement agencies making the record requests.
Id. Unlike these cases, the instant Plaintiffs have identified several concerning patterns of
various Defendants making the record requests. These patterns, in combination with
Plaintiffs’ claim that they have never been an interested party in any law enforcement
matter, their local media status, and their interactions with numerous law-enforcement
personnel in that capacity, support the inference that a permissible purpose for the lookups
did not exist. See Twombly, 550 U.S. at 555. At this early stage of litigation, Plaintiffs
need not plead—and indeed, do not know without discovery—the precise impermissible
purpose for which their information was accessed. See Smythe v. City of Onamia, Civ. No.
12-3149 (ADM/LIB), 2013 WL 2443849, at *6 (D. Minn. June 5, 2013) (noting that “a
person may still violate the DPPA if he retrieves motor vehicle records and does not misuse
the information; simply retrieving records without a permitted purpose is a violation”).
Because Plaintiffs sufficiently plead that their personal information was knowingly
obtained for a purpose not permitted under the DPPA, dismissal of the DPPA claims against
the remaining Defendants is therefore inappropriate.
24

C. Section 1983 Claims
A claim under 42 U.S.C. § 1983 imposes liability on anyone who, under color of
state law, deprives a person of rights secured by either the Constitution or federal laws.
Although Section 1983 provides a remedy for violations of statutory and constitutional
rights, it does not provide a remedy for all federal laws. Blessing v. Freestone, 520 U.S.
329, 340 (1997). Section 1983 is not an independent source of substantive rights, but
rather, the procedural vehicle through which to vindicate federal rights conferred
elsewhere. Albright v. Oliver, 510 U.S. 266, 271 (1994). A complaint must allege a
deprivation of a specific right, privilege, or immunity. Morton v. Becker, 793 F.2d 185,
187 (8th Cir. 1986).
Plaintiffs argue that the DPPA confers rights that are separately enforceable under
Section 1983. (E.g., Pls.’ Mem. of Law in Opp’n to Def. Hennepin Cnty.’s Mot. to
Dismiss and/or to Sever at 2 [Doc. No. 170].) Defendants contend that the DPPA is
Plaintiffs’ exclusive remedy. (E.g., Def. Hennepin Cnty.’s Mem. of Law in Supp. of its
Mot. to Dismiss and/or to Sever at 17-24 [Doc. No. 101].)
This Court has addressed this very issue several times, and it sees no reason to
depart from its prior holdings. In Rasmusson, the Court found that the comprehensive
nature of the DPPA’s remedial scheme, along with an analysis of various circuit court
decisions, “indicate Congress’s intent to foreclose a remedy under § 1983,” and therefore
dismissed the plaintiff’s Section 1983 claim based on an underlying DPPA violation.
Rasmusson, 2014 WL 107067, at *6. Similarly, in Nelson, the Court commented that
“DPPA’s remedial scheme, which is both comprehensive and more restrictive than
25

Section 1983, expresses Congress’s intent to preclude other means of enforcement,” and
consequently dismissed the plaintiff’s Section 1983 claim based on an underlying DPPA
violation. Nelson, 2013 WL 5888235, at *7. These cases are consistent with rulings on
the same issue in Kiminski, 2013 WL 6872425, at *10-14; Bass, 2014 WL 683969, at *67; and Mallak, 2014 WL 1285807, at *10-11. The Court finds the reasoning in these
cases to be persuasive, and therefore dismisses Plaintiffs’ Section 1983 claims based on
an underlying DPPA violation.
Additionally, Counts 2, 3, and 4 of the Second Amended Complaint allege a claim
under Section 1983 on the ground that access of Plaintiffs’ information in the DVS
Database violates their constitutional right to privacy under the Fourth and Fourteenth
Amendments. (Second Am. Compl. ¶¶ 508-568.) Defendants argue that Plaintiffs’
claims do not implicate constitutional rights. (E.g., Def. Hennepin Cnty.’s Mem. of Law
in Supp. of its Mot. to Dismiss and/or to Sever at 17-24 [Doc. No. 101].)
As the Court previously noted, certain private information is entitled to
constitutional protection, but not every disclosure of such information implicates the
constitutional right to privacy. Mallak, 2014 WL 1285807, at *11 (citing Cooksey v.
Boyer, 289 F.3d 513, 515-16 (8th Cir. 2002)). A violation of the constitutional right to
privacy requires the information disclosed to be “a shocking degradation or an egregious
humiliation . . . , or a flagrant breach of a pledge of confidentiality which was
instrumental in obtaining the personal information.” Mallak, 2014 WL 1285807, at *11
(citation omitted). In Mallak, the Court considered whether the plaintiff had a
constitutional right to privacy in her driver’s license record, which included her address,
26

color photograph, date of birth, weight, height and eye color, and in some instances,
medical or disability information. Id. Following prior decisions in this District, the
Court concluded that there was no reasonable expectation of privacy in such information
because it is “readily and regularly disclosed anywhere one presents a driver’s license.”
Id. The Court disagreed with the argument that sensitive health records and social
security numbers were constitutionally protected, because: (1) with respect to social
security numbers, the question is unsettled in the Eighth Circuit, and (2) with respect to
the medical records, such information is not always protected, and it was not alleged that
the plaintiff’s medical information was accessed. Id. at *12.
The facts are similar in the instant case, and the Court finds the reasoning in
Mallak to be sound. The only difference here is Plaintiffs’ allegation that “Defendants
viewed Plaintiffs’ Private Data from their State-issued driver’s license[,] including their
home address, color photograph or image, date of birth, eye color, height, weight, driver
identification number, and upon information and belief, medical and social security
information.” (Second Am. Compl. ¶ 343 (emphasis added).) In the post-Twombly and
Iqbal era, however, the Court finds that merely pleading on information and belief,
without more, is insufficient to survive a motion to dismiss for failure to state a claim.
See Solis v. City of Fresno, No. 1:11-cv-00053, 2012 WL 868681, at *8 (E.D. Cal. Mar.
13, 2012). The Second Amended Complaint contains no factual support underlying the
allegation that Defendants viewed Plaintiffs’ medical and social security information.
Consistent with other cases in this District, the Court concludes that there is no
constitutional right of privacy in Plaintiffs’ driver’s license records. Accordingly,
27

Plaintiffs’ Section 1983 claims based on a constitutional right of privacy are dismissed. 2
Finally, Defendants seek dismissal of Plaintiffs’ claims based on qualified
immunity. (E.g., Def. Ramsey Cnty.’s Mem. of Law in Supp. of Mot. to Dismiss or for
Severance at 19-21 [Doc. No. 89].) Qualified immunity “shields government officials
from liability and the burdens of litigation in a § 1983 suit unless the official’s conduct
clearly violates a clearly established constitutional or statutory right of which a
reasonable person would have known.” Saterdalen v. Spencer, 725 F.3d 838, 841 (8th
Cir. 2013). To overcome the qualified immunity defense, Plaintiffs must show that: (1)
the facts demonstrate the deprivation of a constitutional right, and (2) the right was
clearly established at the time of the deprivation. Baribeau v. City of Minneapolis, 596
F.3d 465, 474 (8th Cir. 2010). With respect to Plaintiffs’ claims under Section 1983, the
Second Amended Complaint fails to allege a violation of any constitutional or statutory
rights. Accordingly, dismissal of Plaintiffs’ Section 1983 claims is warranted on
qualified immunity grounds as well.
D. Invasion of Privacy Claim
Plaintiffs also allege a claim for common law invasion of privacy—namely, that
Defendants intruded upon her seclusion. (Second Am. Compl. ¶¶ 569-74.) In
Minnesota, intrusion upon seclusion occurs when one “intentionally intrudes, physically

2

To the extent Plaintiffs allege a claim against the city and county Defendants under
Monell v. Department of Social Services, 436 U.S. 658 (1978), for an unconstitutional
policy or custom, that claim also fails because there is no underlying violation of
Plaintiffs’ constitutional rights. See Mallak, 2014 WL 1285807, at *13. Thus, the Court
dismisses any Monell claim against these Defendants.

28

or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . .
. if the intrusion would be highly offensive to a reasonable person.” Lake v. Wal-Mart
Stores, Inc., 582 N.W.2d 231, 233 (Minn. 1998). Generally, what is “highly offensive” is
a question of fact for the jury, and becomes a question of law only “if reasonable persons
can draw only one conclusion from the evidence. Swarthout v. Mut. Serv. Life Ins. Co.,
632 N.W.2d 741, 745 (Minn. Ct. App. 2001). In determining whether an intrusion is
offensive, courts consider “the degree of intrusion, the context, conduct and
circumstances surrounding the intrusion as well as the intruder’s motives and objectives,
the setting into which he intrudes, and the expectations of those whose privacy is
invaded,” and “the number and frequency of the intrusive contacts.” Bauer v. Ford
Motor Credit Co., 149 F. Supp. 2d 1106, 1109 (D. Minn. 2001). The interference must
be a “substantial one, of a kind that would be highly offensive to the ordinary reasonable
[person], as the result of conduct to which the reasonable [person] would strongly
object.” Swarthout, 632 N.W.2d at 745. In Lake, for example, circulating a plaintiff’s
nude photograph met the threshold for conduct that a reasonable person might find highly
offensive. Lake, 582 N.W.2d at 235.
The information allegedly accessed here includes Plaintiffs’ home address, color
photographs, dates of birth, eye color, heights, weights, driver identification numbers,
and medical and social security information. (Second Am. Compl. ¶ 343.) No
reasonable person could find that the alleged access of a home address, photographs,
dates of birth, eye color, heights, weights, and driver identification numbers meets the
“highly offensive” threshold. This information is not particularly sensitive in nature, and
29

individuals routinely turn over such information when they show their driver’s license.
And, much of this information is apparent from looking at an individual or through public
documents. See, e.g., Bass, 2014 WL 683969, at *7; Mallak, 2014 WL 1285807, at *14;
Rasmussen, 2014 WL 107067, at *10; Nelson, 2013 WL 5888235, at *8. As for
Plaintiffs’ medical information and social security numbers, any access to such
information does not meet the “highly offensive” standard here, because the Second
Amended Complaint does not adequately allege such accesses. It is not enough to allege
that Plaintiffs provided their social security numbers and medical information to DPS,
(Second Am. Compl. ¶ 483), but not that they were viewed or accessed. Merely alleging
“on information and belief” is insufficient. The Court therefore concludes that Plaintiffs
fail to state a claim for common law invasion of privacy, and dismisses this claim against
all Defendants.
E. Severance
Finally, various Defendants move for severance under Rule 20 of the Federal
Rules of Civil Procedure. Plaintiffs argue that they have met the requirements of Rule
20, and judicial economy supports joinder of the Defendants. (Pls.’ Mem. of Law in
Opp’n to Def. Cities’ Mot. to Dismiss at 19-20 [Doc. No. 171].)
Rule 20 permits joinder of defendants if: (1) “any right to relief is asserted against
them jointly, severally, or in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences”; and (2) “any question
of law or fact common to all defendants will arise in the action.” FED. R. CIV. P.
20(a)(2). A court assesses whether claims are reasonably related on a case-by-case basis.
30

Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974).
The audits show that Plaintiffs’ driver’s license information was accessed between
2003 and 2011 from different locations throughout Minnesota. They also show a
concerning pattern in which various Defendants accessed Jessica’s information in close
proximity to each other. As such, there are facts suggesting that the Defendants acted
jointly or otherwise cooperated to access Jessica’s information for an impermissible
purpose. Additionally, Plaintiffs’ DPPA claims raise questions of law and fact common
to all remaining Defendants. Thus, the requirements of Rule 20 are met, and the Court
denies Defendants’ motions to sever.
IV.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS

HEREBY ORDERED THAT:
1. Defendants Michael Campion, Ramona Dohman, and Pat McCormack’s Motion to
Dismiss [Doc. No. 54] and Supplemental Motion to Dismiss [Doc. No. 131] is
GRANTED.
2. Defendant Rochester Motors’ Motion to Dismiss [Doc. No. 76] is GRANTED IN
PART and DENIED IN PART, consistent with this Order.
3. Defendant Metropolitan Council’s Motion to Dismiss or Sever [Doc. No. 104] is
GRANTED IN PART and DENIED IN PART, consistent with this Order.
4. Defendant Minneapolis Park and Recreation Board’s Motion to Dismiss or Sever
[Doc. No. 138] is GRANTED IN PART and DENIED IN PART, consistent
with this Order.
5. Defendant Metropolitan Airports Commission’s Motion to Dismiss or Sever [Doc.
No. 141] is GRANTED.
6. Defendant Ramsey County’s Motion to Dismiss or Sever [Doc. No. 88] is
GRANTED IN PART and DENIED IN PART, consistent with this Order.
31

7. Defendant Anoka County’s Motion to Dismiss [Doc. No. 93] is GRANTED IN
PART and DENIED IN PART, consistent with this Order.
8. Defendant Hennepin County’s Motion to Dismiss or Sever [Doc. No. 99] is
GRANTED IN PART and DENIED IN PART, consistent with this Order.
9. Defendant Olmstead County’s Motion to Dismiss or Sever [Doc. No. 110] is
GRANTED IN PART and DENIED IN PART, consistent with this Order.
10. Defendant Dakota County’s Motion to Dismiss [Doc. No. 116] is GRANTED IN
PART and DENIED IN PART, consistent with this Order.
11. All other County Defendants’ Motion to Dismiss or Sever [Doc. No. 155] is
GRANTED IN PART and DENIED IN PART, consistent with this Order.
12. Defendant Saint Louis County’s Motion for Judgment on the Pleadings [Doc. No.
164] is GRANTED IN PART and DENIED IN PART, consistent with this
Order.
13. Defendant City of Edina’s Motion to Dismiss [Doc. No. 121] is GRANTED IN
PART and DENIED IN PART, consistent with this Order.
14. Defendant City of Saint Paul’s Motion to Dismiss or Sever [Doc. No. 126] is
GRANTED IN PART and DENIED IN PART, consistent with this Order.
15. Defendant City of Minneapolis’s Motion to Dismiss or Sever [Doc. No. 151] is
GRANTED IN PART and DENIED IN PART, consistent with this Order.
16. Motion to Dismiss or Sever by all other City Defendants, Centennial Lakes Police
Department; Dakota Communications Center, and Lakes Area Police Department
[Doc. No. 130] is GRANTED IN PART and DENIED IN PART, consistent
with this Order.

Dated:

July 3, 2014

s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Court Judge

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