Cross, et al v. Connolly, et al

Filing 36

DECISION AND ORDER re: 29 Report and Recommendations; denying the defendants' 16 19 21 motions to dismiss. The case is referred back to Judge Schroeder for further proceedings consistent with the referral order of 12/5/2017. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 3/29/2019. (LCH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TODD CROSS,
Plaintiff,
v.

17-CV-906
DECISION AND ORDER

TIMOTHY CONNOLLY,
TOWN OF TONAWANDA,
ERIE COUNTY BOARD OF
COOPERATIVE EDUCATIONAL
SERVICES,
KRISTIN A. CROSS,
Defendants.

On September 13, 2017, the plaintiff commenced this action under the Driver’s
Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721, 2724. Docket Item 1.
On December 17, 2017, this Court referred the case to United States Magistrate Judge
H. Kenneth Schroeder, Jr., for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B).
Docket Item 17. On December 1, 2017, Defendants Timothy Connolly and Town of
Tonawanda moved to dismiss the amended complaint. Docket Item 16. On December
8, 2017, Defendants Kristin A. Cross and Erie County Board of Cooperative Educational
Services (“BOCES”) moved to dismiss the amended complaint. 1 Docket Items 19-21.
On January 12, 2018, the plaintiff responded, Docket Item 23; and on February 1,
2018, the defendants replied, Docket Items 24-26. On April 17, 2018, Judge Schroeder
1

The plaintiff filed an amended complaint on October 31, 2017. Docket Item 11.

issued a Report and Recommendation (“R&R”) finding that the defendants' motions to
dismiss the amended complaint for failure to state a claim should be granted. Docket
Item 29.
On May 1, 2018, the plaintiff objected to the R&R. Docket Item 30. Later in May,
the defendants filed separate responses to the objections. Docket Items 32-34.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district court
must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which objection is made. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3).
This Court has carefully reviewed the thorough R&R, the record in this case, the
objection and response, and the pleadings and materials submitted by the parties.
Based on that review, the Court respectfully declines to adopt Judge Schroeder’s
recommendation to grant the defendants' motions.
DISCUSSION
“When considering a motion to dismiss, the court accepts ‘the factual allegations
in the complaint as true and draws all reasonable inferences in the plaintiff[’s] favor.’”
Amaker v. Goord, 2019 WL 1033511, at *2 (W.D.N.Y. Mar. 5, 2019) (quoting Mantikas
v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018)). “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)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
2

inference that the defendant is liable.” Id. Courts must assume “that all the allegations
in the complaint are true (even if doubtful in fact).” Lundy v. Catholic Health Sys. of
Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013) (quoting Bell Atl. Corp., 550 U.S. at
555). “[A] well-pleaded complaint may proceed even if it appears ‘that a recovery is
very remote and unlikely.’” Bell Atl. Corp., 550 U.S. at 556 (quoting Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)).
In the DPPA context, “[a]lleging specifically that there was a DPPA disclosure,
and alleging that there was no proper purpose for the disclosure, i.e., that the use was
not permissible, is enough to state a DPPA claim and to survive a Fed. R. Civ. P.
12(b)(6) motion.” Gordon v. Softech Int’l Inc., 2011 WL 1795300, at *2 (S.D.N.Y. Apr.
28, 2011). Even when a “complaint perhaps could have provided greater detail[,] . . .
that there was no permissible purpose for the [DPPA] disclosure is about as precise as
one [can] be” when “plead[ing] a negative.” Welch v. Theodorides-Bustle, 677 F. Supp.
2d 1283, 1287 (N.D. Fla. 2010). “Twombly and Iqbal do not require useless details;
they call instead for a context-specific inquiry into the adequacy of a pleading. In [the
DPPA] context, alleging specifically that there was a disclosure, and alleging generally
that there was no proper purpose for the disclosure, is enough.” Id.
The amended complaint here meets that standard. 2 Therefore, the amended
complaint states a claim on which relief may be granted under the DPPA.

2

Of course, this does not suggest any opinion about the ultimate merit of the
plaintiff’s claims.
3

I.

EXCEPTIONS TO THE DPPA
“The DPPA’s disclosure ban is subject to 14 exceptions set forth in § 2721(b), for

which personal information ‘may be disclosed.’” Maracich v. Spears, 570 U.S. 48, 58
(2013). “The (b)(4) litigation exception is one of the four provisions permitting disclosure
not only of personal information but also of highly restricted personal information.” Id.
(citing § 2721(b)(4), § 2725(4)). It provides that information may be disclosed
[f]or use in connection with any civil, criminal, administrative, or arbitral
proceeding in any Federal, State, or local court or agency or before any selfregulatory body, including the service of process, investigation in
anticipation of litigation, and the execution or enforcement of judgments and
orders, or pursuant to an order of a Federal, State, or local court.
§ 2721(b)(4).
“[U]ses of personal information with a remote relation to litigation [are not]
exempt under (b)(4),” however. Maracich, 570 U.S. at 59. “‘[I]nvestigation in
anticipation of litigation’ is best understood to allow background research to determine
whether there is a supportable theory for a complaint, a theory sufficient to avoid
sanctions for filing a frivolous lawsuit, or to locate witnesses for deposition or trial
testimony.” Id. at 63-64.
In urging this Court to dismiss, defendant BOCES argues that based on the facts
alleged in the amended complaint, one can infer only that the personal information the
amended complaint describes was disclosed for use in connection with litigation.
Docket Item 34 at 6. This Court disagrees.
The amended complaint alleges that
illegally obtained and false information [was used] to deny access with
Plaintiff’s child, having the Plaintiff wrongfully charged with trespassing after
denying said access, and forcing the Plaintiff to pursue lengthy and
expensive litigation in Erie County Family Court in order to defend his right
to access with his child.
4

Docket Item 11 at 3. The amended complaint also alleges that Cross used the “illegally
requested and obtained information against Plaintiff Todd Cross in an Erie County
Family Court proceeding and in other ways.” Id. at 6 (emphasis added). Drawing all
reasonable inferences in the plaintiff’s favor, as it must, this Court believes that these
facts do not lead only to the inference that the defendants obtained the plaintiff’s
personal information for purposes of litigation. Instead, one could draw a reasonable
inference—perhaps less likely, but still reasonable—that the information was obtained
initially not in connection with or in anticipation of litigation but that in subsequent
litigation, defendant Cross took advantage of information obtained through a DPPA
violation. It is simply too early in this litigation to definitively make that determination
from the facts alleged in the amended complaint. 3
II.

JURISDICTION
Defendant Cross argues that this Court lacks jurisdiction. Docket Item 20 at 2.

Her argument is based on the text of the private right of action granted in the DPPA,
which states that a plaintiff “may bring a civil action in a United States district court”
against individuals who violate the DPPA. 18 U.S.C. § 2724(a); Docket Item 19 at 3.
Because she did not violate the DPPA, she argues, the plaintiff may not “bring a civil

3

The same is true of BOCES’s argument that the only reading of the amended
complaint against the police officer defendants is that the alleged disclosure fell within
the law enforcement exception. Docket Item 21-3 at 16-18. The exception permits the
use of personal information “[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.” 18
U.S.C. § 2721(b)(1). Drawing all reasonable inferences in favor of the plaintiff,
defendant Connolly did not obtain his information “in carrying out [his] functions,” and it
is not implausible that Connolly’s alleged DPPA violations fell outside this exception.
5

action” against her “in a United States district court.” § 2724(a). Of course, that
argument is circular, and “it is well settled that the failure to state a proper cause of
action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.”
Bell v. Hood, 327 U.S. 678, 682 (1946). Unless a federal claim is wholly “insubstantial
or frivolous,” this Court has jurisdiction to hear it. Id. at 683. This is the “[n]ormal
practice” that applies across a range of contexts. Jermoe B. Grubart, Inc. v. Great
Lakes Dredge & Dock Co., 513 U.S. 527, 537 (1995). Therefore, this Court rejects
defendant Cross’s argument that this Court lacks jurisdiction. Moreover, as noted
above, the Court finds that the plaintiff has pleaded a viable claim.
III.

VICARIOUS LIABILITY
Defendant BOCES argues that the plaintiff’s allegations that defendant Timothy

Connolly was employed by and acting within the scope of employment with BOCES
when he illegally obtained and disseminated information about the plaintiff is
implausible. Docket Item 21-3 at 15-18; Docket Item 34 at 11. This Court agrees with
BOCES to the extent it argues that vicarious liability may be imposed as a result of
Connolly’s conduct only “in accordance with traditional agency principles,” Margan v.
Niles, 250 F. Supp. 2d 63, 73 (N.D.N.Y. 2003), but BOCES cites no authority for its
proposition that the plaintiff’s factual allegations are insufficient at this stage of the
litigation.

6

CONCLUSION
For the reasons stated above, the defendants' motions to dismiss, Docket
Items 16, 19, 21, are DENIED. The case is referred back to Judge Schroeder for further
proceedings consistent with the referral order of December 5, 2017, Docket Item 17.

SO ORDERED.

Dated:

March 29, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

7