GAREY, et al v. JAMES S. FARRIN, P.C. et al
Filing
338
MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 03/24/2021, that Plaintiffs' Motion to Revise Order on Summary Judgment Motions, (ECF No. 333 ), is DENIED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILLIAM PARKER GAREY, et al.,
on behalf of themselves and others similarly situated,
Plaintiffs,
v.
JAMES S. FARRIN, P.C., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
1:16CV542
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiffs initiated this action alleging that the above-named Defendants violated the
Driver’s Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721, et seq., by obtaining their names
and addresses from automobile accident reports and using that information to advertise legal
services. (ECF Nos. 1; 32; 180.) On January 22, 2021, the Court granted summary judgment
on all counts in favor of Defendants. (ECF No. 331.) Before the Court is Plaintiff’s Motion
to Revise Order on Summary Judgment Motions. (ECF No. 333.) For the reasons set forth
below, Plaintiffs’ motion will be denied.
I.
BACKGROUND
The DPPA holds liable certain parties for the misuse of a driver’s information if that
data has been collected from a “motor vehicle record.” 18 U.S.C. § 2724(a). In their
Case 1:16-cv-00542-LCB-LPA Document 338 Filed 03/24/21 Page 1 of 7
complaint,1 the six named Plaintiffs alleged that they were each involved in car accidents in
2016. (ECF No. 180 ¶¶ 42–47.) In each accident, either local police officers or North Carolina
State Highway Patrol troopers investigated and recorded their findings on a standard DMV349 form that was then provided to the state’s Division of Motor Vehicles (“DMV”). (Id.; see
also, e.g., ECF No. 206-8 at 2.) To complete the form’s driver identification fields, the
investigating officers first asked each Plaintiff for his or her driver’s license before then (a)
copying all of the needed information onto a paper form by hand, (b) entering all of the
information manually into an electronic version of the form, or (c) auto-populating the form
either by typing the license number into a computer or by scanning a barcode on the back of
the license. (See ECF No. 180 ¶¶ 50–51.) In each instance, the investigating officers also asked
the Plaintiff whether the information on his or her license was accurate. (Id. ¶ 52.) When each
Plaintiff answered in the affirmative, the officer checked a box to indicate that the address
entered onto the form matched the address on the driver’s license. (Id.)
In the weeks that followed, Plaintiffs received unsolicited marketing materials from
various North Carolina attorneys and law firms, including Defendants, who had obtained their
names and addresses from their respective DMV-349s. (See ECF Nos. 32-1 through 32-32;
180 ¶¶ 54–114.) In some cases, Defendants collected information from Plaintiffs’ DMV-349s
themselves, and in other cases they purchased accident report data aggregated by a third party.
(See, e.g., ECF Nos. 220-1 at 24–25; 220-7 at 15–16.) Plaintiffs did not argue that the DMV349 reports are themselves “motor vehicle records.” (See ECF No. 263 at 17–20.) Rather,
The complaint referenced throughout this Opinion is the Second Amended and Supplemental Complaint,
(ECF No. 180).
1
2
Case 1:16-cv-00542-LCB-LPA Document 338 Filed 03/24/21 Page 2 of 7
they contended that the information included in the report may be traced back to such records
and thus fall under the ambit of the DPPA. (Id.) Therefore, the central question forming the
basis of this lawsuit was whether, as Plaintiffs alleged, Defendants’ conduct in gathering
personal information from DMV-349s and using it to market legal services is a violation of
the DPPA.
II.
LEGAL STANDARD
Under Rule 54(b) of the Federal Rules of Civil Procedure, the “district court retains
the power to reconsider and modify its interlocutory judgments . . . at any time prior to final
judgment when such is warranted.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–
15 (4th Cir. 2003); see Fed. R. Civ. P. 54(b) (“[A]ny order . . . that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time
before the entry of a judgment.”). “Said power is committed to the discretion of the district
court” and may be exercised as justice requires. Am. Canoe Ass’n, 326 F.3d at 515. The Fourth
Circuit has held that Rule 54(b) motions “are not subject to the strict standards applicable to
motions for reconsideration of a final judgment,” under Rule 59(e). Id. at 514. Nonetheless,
courts in this Circuit have frequently looked to the standards under Rule 59(e) for guidance in
considering motions for reconsideration under Rule 54(b).2 Accordingly, reconsideration
under Rule 54(b), like Rule 59(e), “is appropriate on the following grounds: (1) to account for
an intervening change in controlling law; (2) to account for newly discovered evidence; or (3)
to correct a clear error of law or prevent manifest injustice.” South Carolina v. United States, 232
See, e.g., South Carolina v. United States, 232 F. Supp. 3d 785, 792–93 (D.S.C. 2017); Cezair v. JPMorgan Chase
Bank, N.A., No. DKC 13-2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014); Ruffin v. Entm’t of the E.
Panhandle, No. 3:11-CV-19, 2012 WL 1435674, at *3 (N.D.W. Va. Apr. 25, 2012).
2
3
Case 1:16-cv-00542-LCB-LPA Document 338 Filed 03/24/21 Page 3 of 7
F. Supp. 3d 785, 793 (D.S.C. 2017). Although Rule 54(b) motions for reconsideration are held
to a less stringent standard than motions under Rule 59(e), such motions “should not be used
to rehash arguments the court has already considered” or “to raise new arguments or evidence
that could have been raised previously.” Id. at 793.
III.
DISCUSSION
In their motion, Plaintiffs argue that this Court emphasized two points in reaching its
decision to grant summary judgment to Defendants which must be reconsidered. (ECF No.
334 at 5.) The first point is
(1) That Plaintiffs make “no allegations that the accident reports are ‘motor
vehicle records’ under the DPPA nor that the personal information was
obtained from a search of a DMV database.”
(Id. (citing ECF No. 331 at 18).) Plaintiffs candidly acknowledge that they had earlier not
contested the statement that accident reports were not “motor vehicle records,” but have since
“fundamentally altered their position” in light of the recent opinion in Gaston v. LexisNexis
Risk Sols., Inc., No. 5:16-cv-00009, 2020 WL 5235340 (W.D.N.C. Sept. 2, 2020), where a North
Carolina federal district court found in favor of Plaintiffs under a similar fact pattern. (Id. at
8 n.4.) Plaintiffs also contend that, in briefing the instant case, they made the same argument
that “swayed the court in Gaston” to find that information contained in the reports could fall
under that definition. (Id. at 9.) Yet even assuming arguendo that “Gaston’s well-reasoned
holding” provides a new framework for this analysis, Plaintiffs had several chances to make
the straightforward contention that DMV-349s were in fact motor vehicle records and chose
not to do so. Given that there is no new evidence, no change in controlling authority, nor
4
Case 1:16-cv-00542-LCB-LPA Document 338 Filed 03/24/21 Page 4 of 7
clear error, the Court declines to now subsequently alter, amend, or reconsider its Order on
such a basis.
The second, and final, statement which Plaintiffs dispute is the Court’s finding
(2) That “Plaintiffs point to no decision—nor has this Court been able to find
one—where a defendant was adjudged liable as a matter of law for a DPPA
violation after obtaining, disclosing, or using ‘personal information’ that was not
gathered directly from a state DMV.
(ECF No. 334 at 5–6 (citing ECF No. 331 at 18).) Again, Plaintiffs do not dispute the Court’s
conclusion but rather assert that they “believed the issue of whether the DPPA applied only
to defendants who had obtained information directly from a state DMV had already been fully
briefed and decided in Plaintiffs’ favor by this Court.” (Id. at 5–6 n.3 (citing ECF No. 93 at
17–18).) Plaintiffs point to an Order denying a motion to dismiss where the Court rejected
Defendants’ argument that “[t]he DPPA only regulates the disclosure of information held by
a state DMV.” (See ECF No. 93 at 17 (citing ECF No. 61 at 18)). Yet, at the motion to dismiss
stage, a Court is simply considering whether a complaint contains “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)). The Court was not
deciding, for instance, how far DPPA liability extended based on the limited record before it.
It is perhaps additionally useful to examine the context in which the disputed statement
appeared in the Court’s most recent Order granting summary judgment to Defendants. In
concluding that Defendants had not violated the DPPA, the Court found that the theory of
“a chain of liability” under the statute that “exists from the time information is entered into a
DMV database and continues through the issuance of a driver’s license and then to any
subsequent obtainment, disclosure or use of information found therein . . . extends the
5
Case 1:16-cv-00542-LCB-LPA Document 338 Filed 03/24/21 Page 5 of 7
statutory language beyond its explicit construction.” (ECF No. 331 at 19.) The Court next
observed that—even beyond this statutory interpretation—“the weight of the case law and
the underlying legislative goals” support such a finding. (Id.) Therefore, rather than relying
on the lack of cases to reach such a conclusion, the Court simply observed that there was not
sufficient case law before it that would counterbalance the Court’s reading of the DPPA and
suggest that liability under the statute could be so attenuated.
Plaintiffs nevertheless assert that that there are two cases in which courts have found
a DPPA violation when information was not gathered from a state DMV. The first is the
aforementioned Gaston case in which the court found in favor of Plaintiffs “where information
[was] gathered [from] a police department.” (ECF No. 334 at 5–6 n.3) The Court agrees that
the Gaston decision, which had not been decided when Plaintiffs filed their motion for
summary judgment, does reach such a conclusion. The second is Pichler v. UNITE, 542 F.3d
380 (3d Cir. 2008), “where a labor union was held liable as a matter of law after obtaining
personal information from ‘a Westlaw database or through private investigators or
“information brokers.”’” (ECF No. 334 at 5–6 n.3 (citing Pichler, 542 F.3d at 384).) However,
in Pichler the “information brokers” were acting on behalf of the union and “obtained the
information by directly applying to the states’ motor vehicle bureaus.” Pichler v. UNITE, 446
F. Supp. 2d 353, 359 (E.D. Pa. 2006). In fact, the district court in that case expressly found
that the records for each of the eight named plaintiffs were accessed directly from the
Pennsylvania Department of Transportation. Id. at 360. Though the court also detailed a
series of Westlaw searches that defendants undertook, in finding for plaintiffs it conducted no
further analysis as to whether accessing a record through Westlaw would have been a sufficient
6
Case 1:16-cv-00542-LCB-LPA Document 338 Filed 03/24/21 Page 6 of 7
basis on which to allege a violation of the DPPA. See generally id. While these two cases could
arguably provide some support for Plaintiffs’ arguments, neither is controlling in this instance
and they ultimately fail to persuade the Court that its decision—when viewed in the context
of all of the other factors it considered—is plainly erroneous.
In sum, the Court finds that there has not been an intervening change in controlling
law, no newly discovered evidence, nor clear error of law manifesting injustice. The Court
therefore finds that Plaintiffs have failed to establish any basis under Rule 54(b), 59(e), or 60(b)
for alteration, amendment, or reconsideration of its previous Order and will therefore deny
Plaintiffs’ motion.
For the reasons stated herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Revise Order on Summary
Judgment Motions, (ECF No. 333), is DENIED.
This, the 24th day of March 2021.
/s/ Loretta C. Biggs
United States District Judge
7
Case 1:16-cv-00542-LCB-LPA Document 338 Filed 03/24/21 Page 7 of 7
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?