Potocnik v. City of Minneapolis et al
Filing
26
ORDER granting 4 Motion to Dismiss and denying as moot the Motion to Sever; granting 12 Motion for Judgment on the Pleadings (Written Opinion). Signed by Senior Judge David S. Doty on 9/29/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-1215(DSD/TNL)
Brian Potocnik,
Plaintiff,
ORDER
v.
City of Minneapolis, City
of St. Paul, John and Jane
Does (1-300) acting in their
capacity as supervisors, officers,
deputies, staff, investigators,
employees or agents of Minneapolis
or St. Paul,
Defendants.
Kenneth H. Fukuda, Esq., Lorenz F. Fett, Jr., Esq., Sonia
L. Miller-Van Oort, Esq., Jonathan A. Strauss, Esq. and
Sapientia Law Group, PLLC, 12 South Sixth Street, Suite
1242, Minneapolis, MN 55402, counsel for plaintiff.
Andrea K. Naef, Esq., Kristin R. Sarff, Esq. and
Minneapolis City Attorney’s Office, 350 South Fifth
Street, Room 210, Minneapolis, MN 55415 and Adam M.
Niblick, Esq., St. Paul City Attorney’s Office, 750 City
Hall & Courthouse, 15 West Kellogg Boulevard, St. Paul,
MN 55102, counsel for defendants.
This matter is before the court upon the motion to dismiss or
to sever by defendant City of St. Paul and the motion for judgment
on the pleadings by defendant City of Minneapolis.
Based on a
review of the file, record, and proceedings herein, and for the
following reasons, the court grants the motions for judgment on the
pleadings and to dismiss and denies as moot the motion to sever.
BACKGROUND
This privacy dispute arises out of defendants’ access of the
motor vehicle record of plaintiff Brian Potocnik between 2003 and
2011.
Compl. ¶ 2; id. Ex. A.
Potocnik is a former Minneapolis
police officer who resigned following a well-publicized internal
investigation in 2006.
Compl. ¶¶ 35, 91.
This case is just one of
many nearly identical cases filed in this district, six of which
this court previously dismissed.
See Potocnik v. Anoka Cnty., No.
13-1103, 2014 WL 683980 (D. Minn. Feb. 21, 2014); Bass v. Anoka
Cnty., No. 13-860, 2014 WL 683969 (D. Minn. Feb. 21, 2014);
McDonough v. Al’s Auto Sales, Inc., No. 13-1889, 2014 WL 683998 (D.
Minn. Feb. 21, 2014); Tichich v. City of Bloomington, No. 14-298,
2014 WL 3928530 (D. Minn. Aug. 12, 2014); Kendall v. Anoka Cnty.,
No. 14-247, 2014 WL 3955265 (D. Minn. Aug. 13, 2014); Nyhus v. City
of Blaine, No. 13-2878, 2014 WL 4348239 (D. Minn. Sept. 2, 2014).
The Department of Public Safety (DPS) makes drivers’ motor
vehicle records available to law enforcement officers through a
computerized Driver and Vehicle Services (DVS) database.
¶¶ 18-19.
Compl.
In 2013, Potocnik requested an audit of his DVS motor
vehicle record
from
DPS.
Id.
¶
70.
The audit
shows
that
Potocnik’s record had been accessed 316 times from facilities
maintained by Minneapolis and St. Paul.
Id. ¶ 2; id. Ex. A.
The
record included his address, photograph, date of birth, eye color,
weight, height, medical information, and driver identification
2
number.
Compl. ¶¶ 19, 24-25.
Potocnik alleges that there was no
legitimate purpose for each access and that he never consented to
allow defendants to obtain his record.
Id. ¶¶ 4, 94, 154.
On April 21, 2014, Potocnik filed suit, alleging violations of
the Driver’s Privacy Protection Act (DPPA).1
St. Paul moves to
dismiss or to sever and Minneapolis moves for judgment on the
pleadings.
I.
Standard of Review
To survive a motion to dismiss for failure to state a claim,
“‘a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.’”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“A claim
has facial plausibility when the plaintiff [has pleaded] factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556
U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)).
Although a complaint need not contain detailed factual
allegations, it must raise a right to relief above the speculative
level.
Twombly, 550 U.S. at 555.
1
“[L]abels and conclusions or a
In 2013, Potocnik filed a nearly identical suit against
Minneapolis and St. Paul, among many other cities and counties.
The court dismissed Minneapolis and St. Paul without prejudice due
to Potocnik’s failure to serve them. See Potocnik v. Anoka Cnty.,
No. 13-1103, ECF No. 100 (D. Minn. Mar. 26, 2014).
This suit
followed.
3
formulaic recitation of the elements of a cause of action” are not
sufficient to state a claim.
Iqbal, 556 U.S. at 678 (citation and
internal quotation marks omitted).
The same standard of review
applies to motions for judgment on the pleadings under Rule 12(c).
Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir.
2009).
II.
DPPA
Potocnik asserts a claim against defendants for violations of
the DPPA.
The DPPA provides that “[i]t shall be unlawful for any
person knowingly to obtain or disclose personal information, from
a motor vehicle record, for any use not permitted under section
2721(b) of this title.”
18 U.S.C. § 2722.
“person
obtains,
who
information,
knowingly
from
a
motor
discloses
vehicle
record,
Under the DPPA, any
or
uses
for
a
personal
purpose
not
permitted under this chapter shall be liable to the individual to
whom the information pertains.”
that
defendants
either
Id. § 2724(a).
obtained
or
Potocnik alleges
disclosed
his
information
without a permitted purpose.
A.
Statute of Limitations
Defendants first argue that most of the DPPA claims are timebarred. The court agrees, having previously held that the general
four-year federal statute of limitations applies and that “a cause
of action accrues when the wrong occurs and a party sustains
injuries for which relief could be sought.”
4
Potocnik, 2014 WL
683980, at *2 (quoting Ridenour v. Boehringer Ingelheim Pharms.,
Inc., 679 F.3d 1062, 1065 (8th Cir. 2012)).
The court also
determined that neither the discovery rule nor the doctrine of
equitable tolling apply under these circumstances. Kendall, 2014 WL
3955265, at 2 & n.7.
As a result, all claims relating to conduct
before April 21, 2010 - four years before Potocnik commenced this
suit
-
are
time-barred,
and
dismissal
of
those
claims
is
warranted.2
B.
Timely Claims
As to the relatively few timely look-ups, Potocnik alleges
that defendants lacked a permissible purpose for accessing his
record.
Defendants respond that such allegations are insufficient
to state a claim under Iqbal and Twombly.
The court agrees.
Under the DPPA, the plaintiff has the burden of pleading that
a defendant accessed a motor vehicle record with an impermissible
purpose.
See Maracich v. Spears, 675 F.3d 281, 299-300 (4th Cir.
2012), vacated on other grounds, 133 S. Ct. 2191 (2013); Howard v.
Criminal Info. Servs., Inc., 654 F.3d 887, 890-91 (9th Cir. 2011);
Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, &
Stevens, P.A., 525 F.3d 1107, 1113-14 (11th Cir. 2008).
Here,
Potocnik alleges that defendants must have had an improper purpose
in accessing his record because of the number of times his record
2
There are 18 timely look-ups attributable to Minneapolis
and none attributable to St. Paul. See Compl. Ex. A, at 14-15.
5
was accessed, the odd hours of some of the look-ups, and the
curiosity surrounding his resignation.
Potocnik thus asks the
court to speculate and conclude - based on these bare allegations that the purposes of law enforcement personnel were impermissible.
As
already
explained,
however,
“labels
and
conclusions
or
a
formulaic recitation of the elements of a cause of action” are not
sufficient to state a claim.
Iqbal, 556 U.S. at 678 (citation and
internal quotation marks omitted).
Although at this stage in the
proceedings, Potocnik is entitled to the benefit of all reasonable
inferences, a “reasonable inference is one which may be drawn from
the evidence without resort to speculation.”
Kinserlow v. CMI
Corp., 217
(emphasis
F.3d
1021,
1026
(8th
Cir.
2000)
added)
(citation and internal quotation marks omitted).
Potocnik argues that his complaint is bolstered because he
resigned
from
the
Minneapolis
Police
publicized internal investigation.
Department
following
a
This fact, however, does not
raise his claim above the speculative level, because Potocnik does
nothing to connect his resignation to the conduct at issue.3
Cf.
Heglund v. Aitkin Cnty., No. 14-296, 2014 WL 4414821, at *6 (D.
Minn. Sept. 5, 2014) (finding a plausible claim where plaintiff was
a law enforcement officer in the county with the most look-ups, her
current husband had been harassed by her ex-husband - who is also
3
Indeed, the timely look-ups occurred four years after
Potocnik’s resignation, thus undermining any causal connection
between the two events.
6
a law enforcement officer with access to the database - and her
current husband’s record was simultaneously accessed); Smythe v.
City of Onamia, No. 12-03149, 2013 WL 2443849, at *6 (D. Minn. June
5, 2013) (concluding that plaintiff plausibly stated a DPPA claim
because he alleged in detail a “long and contentious history”
between himself and the person solely responsible for accessing his
data).
Moreover, “in the absence of clear evidence to the contrary,
courts presume that [public officers] have properly discharged
their official duties.”
United States v. Chem. Found., Inc., 272
U.S. 1, 14-15 (1926), cited with approval in Wilburn v. Astrue, 626
F.3d 999, 1003-04 (8th Cir. 2010).
Further, the legislative
history of the DPPA indicates that Congress intended to preserve
broad discretion for government entities and agents in accessing
motor vehicle records.
See Kost, 983 F. Supp. 2d at 1133.
As a
result, the court will not infer from bare, conclusory allegations
that defendants’ purposes were improper.
See Lancaster v. City of
Pleasanton, No. C-12-05267, 2013 WL 5182949, at *3-4 (N.D. Cal.
Sept. 13, 2013) (dismissing DPPA claim as insufficiently detailed
to satisfy Rule 8(a) pleading requirements).
Therefore, Potocnik
has not adequately pleaded the DPPA claims under Twombly and Iqbal,
and dismissal of the remaining timely DPPA claims is warranted.
7
III.
Severance
St. Paul moves for severance under Rule 20. Because the court
has determined that Potocnik fails to state a claim, the motion to
sever is denied as moot.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
The motion to dismiss [ECF No. 4] is granted;
2.
The motion to sever [ECF No. 4] is denied as moot; and
3.
The motion for judgment on the pleadings [ECF No. 12] is
granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
September 29, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?