Gaston et al v. LexisNexis Risk Solutions, Inc. et al

Filing 42

ORDER denying 36 Motion for Certification of an Interlocutory Appeal Pursuant to 28 U.S.C. 1292(b). Signed by District Judge Max O. Cogburn, Jr on 11/13/2017. (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
DOCKET NO. 5:16-cv-9
DELORIS GASTON, et al.,

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Plaintiffs,
Vs.
LEXISNEXIS RISK SOLUTIONS, et al.,
Defendants.

ORDER

THIS MATTER is before the Court on defendants’ Motion for Certification of an
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b). Having considered defendants’ motion and
reviewed the pleadings, the court enters the following Order.
I.

Background
Defendants filed a Motion to Dismiss Plaintiff’s Class Action Amended Complaint (#25)

on June 7, 2016. Defendants argued that the definition of “personal information” under the
Driver’s Privacy Protection Act, 18 U.S.C. § 2721, et seq. (“DPPA”), expressly excludes all
“information from vehicular accidents,” e.g., accident reports, from regulation under the DPPA.
Based on this interpretation, defendants argued that plaintiffs’ Amended Complaint should be
dismissed as a matter of law. It appearing from the face of the Amended Complaint that plaintiff
had stated a cognizable claim, the Rule 12(b)(6) motion was summarily denied by Order entered
September 13, 2017. Defendants now seek certification of an interlocutory appeal from that Order,
seeking clarification of the definition of “personal information” and a determination of what
information in an accident report falls within the DPPA’s exclusions.

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II.

Legal Standard
A district court may certify an order for immediate appeal if “such order involves a

controlling question of law as to which there is substantial ground for difference of opinion” and
“an immediate appeal from the order may materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b); see also United States ex rel. Michaels v. Agape Senior Cmty.,
Inc., 848 F.3d 330, 340 (4th Cir. 2017). A question of law refers to “a question of the meaning of
a statutory or constitutional provision, regulation, or common law doctrine” as opposed to an issue
of fact. Lynn v. Monarch Recovery Mgmt., 953 F.Supp.2d 612, 623 (D. Md. 2013). A controlling
question of law is one with an answer that “will be completely dispositive of the litigation, either
as a legal or practical matter.” David v. Alphin, 2009 U.S. Dist. LEXIS 108413, at *10-11
(W.D.N.C. Oct. 30, 2009) (internal quotations and citations omitted). Alternately, a question of
law may be controlling “even though its disposition might not lead to reversal on appeal, if
interlocutory reversal might save time for the district court and time and expense for the litigants.”
North Carolina ex rel. Howes v. W.R. Peele, Sr. Trust, 889 F. Supp. 849, 853 (E.D.N.C. 1995);
see also Riley v. Dow Corning Corp., 876 F. Supp. 728, 731 (M.D.N.C. 1992) (“[t]he core question
in the certification process is whether an immediate reversal of an issue at the appellate level will
save the parties unnecessary time and expense”). A substantial grounds for difference of opinion
exists if courts differ on a controlling question of law, “creating the need for an interlocutory appeal
to resolve the split.” Charlotte Commercial Grp., Inc. v. Fleet Nat’l Bank, 2003 U.S. Dist. LEXIS
5392, at *8 (M.D.N.C. Mar. 13, 2003) (citations omitted).

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The decision of whether to certify is “wholly within the discretion of the district court” and
the district court is afforded “great flexibility . . . in deciding whether to certify an order for appeal.”
Howes, 889 F. Supp. at 852. However, given basic policy of postponing appellate review until
after the court has entered final judgment in the case, the movant bears the burden of persuading
the court that “exceptional circumstances” justify a departure from that policy. Fisons Ltd. v.
United States, 458 F.2d 1241, 1248 (7th Cir.), cert. denied, 405 U.S. 1041 (1972); see also James
v. Jacobson, 6 F.3d 233, 237 (4th Cir. 1993) (“[P]iecemeal review of decisions that are but steps
toward final judgments on the merits are to be avoided, because they can be effectively and more
efficiently reviewed together in one appeal from the final judgments.”).
III.

Discussion
Interlocutory appeals should not be certified unless a court is “of the opinion that such

order involves a controlling question of law as to which there is a substantial ground for difference
of opinion.” 28 U.S.C. § 1292(b). The definition that defendants ask this Court to certify for
clarification is, as follows:
“personal information” means information that identifies an individual, including
an individual’s photograph, social security number, driver identification number,
name, address (but not the 5-digit zip code), telephone number, and medical or
disability information, but does not include information on vehicular accidents,
driving violations, and driver’s status.
18 U.S.C. § 2725(3).
In this case, defendants earlier contended that this action should be dismissed for failure to
state claim based on a reading of that statute which, they contend, would make plaintiff’s
allegations non-cognizable. This Court summarily denied that motion as it was clear that plaintiffs
had stated a cognizable cause of action. In sum, when ruling on a Rule 12(b)(6) motion, “a judge

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must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam) (citations omitted). A complaint “need only give the defendant
fair notice of what the claim is and the grounds upon which it rests.” Id. at 93 (alteration and
internal quotation marks omitted). However, to survive a motion to dismiss, the complaint must
“state[ ] a plausible claim for relief” that “permit[s] the court to infer more than the mere possibility
of misconduct” based upon “its judicial experience and common sense.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). To survive a motion to dismiss, a plaintiff need not demonstrate that her
right to relief is probable or that alternative explanations are less likely; rather, a plaintiff must
merely advance their claim “across the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). If a plaintiff’s explanation is plausible, the complaint
survives a motion to dismiss under Rule 12(b)(6), regardless of whether there is a more plausible
alternative explanation. “[A] well-pleaded complaint may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id.
at 556. Failure to state a claim can occur two ways: first, by failing to state a valid legal cause of
action, i.e., a cognizable claim, see Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d
448, 452 (4th Cir. 2012); or second, by failing to allege sufficient facts to support a legal cause of
action, see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). Here, plaintiff
states a cognizable claim as previously determined.
The only issue now pending is whether this Court should exercise its discretion and certify
its Rule 12(b)(6) cognizability determination for interlocutory appeal to the Fourth Circuit. This
Court would give serious consideration to certifying an interlocutory appeal where there is split
among judges of the district courts of the Fourth Circuit or where it is arguable among reasonable

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jurists that this Court’s determination was wrong. Here, except for one outlier,1 this Court can find
no split among the courts that have addressed this precise issue. Indeed, this Court’s determination
is fully consistent with a recent decision of a colleague in the Middle District of North Carolina,
the Honorable Loretta C. Biggs, United States District Judge, where she held as follows:
The Farbman Defendants further argue that they cannot be held liable under
the DPPA because “the statute simply does not apply to Defendants' conduct, even
if the allegations in the ... Complaint are taken as true,” and the Complaint,
therefore, fails to state a claim. (ECF No. 22 at 18.) In particular, the Farbman
Defendants, citing to section 2721(a)(1) of the statute, assert that “[t]he DPPA only
regulates the disclosure of information held by a state DMV.” (Id. at 18–19.)
The Court rejects these arguments, which fly in the face of the precise
language of the DPPA. To be sure, section 2721(a)(1) of the DPPA prohibits the
knowing use or disclosure of protected “personal information” by State DMVs, as
well as their employees and agents. 18 U.S.C. § 2721(a)(1). However, section
2724(a) of the statute also ascribes liability to anyone “who knowingly obtains,
discloses or uses personal information, from a motor vehicle record, for a purpose
not permitted under [the DPPA].” Id. § 2724(a). In accordance with “one of the
most basic interpretive canons” of statutory interpretation, “[a] statute should be
construed so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S.
303, 314 (2009) (alteration in original) (quoting Hibbs v. Winn, 542 U.S. 88, 101
(2004)). Accordingly, giving effect to the entire statute, including section 2721(a)
on which Defendants rely, as well as section 2724(a), the Court concludes that the
DPPA covers information knowingly disclosed by a state DMV as well as
information that is knowingly obtained, disclosed, or used by any person. Nowhere
in the statute does it state that it applies so as to limit liability in the manner argued
by Defendants. As such, the Court denies Defendants' motions to dismiss for failure
to state a claim on this basis.
Hatch v. Demayo, 1:16CV925, 2017 WL 4357447, at *7 (M.D.N.C. Sept. 29, 2017)(footnote
omitted). In addition, Judge Biggs specifically addressed the accident report exception, as follows:
Although Defendants seek to characterize the information they obtained and
used as “information on vehicular accidents,” Plaintiffs specifically allege that
Defendants violated the statute by impermissibly obtaining and using their names
and addresses, (see ECF No. 5 ¶¶ 33–36, 45–48, 54–59), “not [by] obtaining ...
information related to the accident (e.g., vehicles involved, road conditions, times
of day, etc.),” Pavone v. Meyerkord & Meyerkord, LLC, 118 F. Supp. 3d 1046,
1

Mattivi v. Russell, No. CIV.A. 01–WM–533(BNB), 2002 WL 31949898, at *4 (D.Colo. Aug. 2, 2002).

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1050 (N.D. Ill. 2015). Plaintiffs' allegations, therefore, concern Defendants'
conduct with respect to Plaintiffs' names and addresses, which is information
explicitly included in the definition of “personal information” protected under the
DPPA. Accordingly, the Court finds that it need not look any further than the plain
language of the statute to conclude that it applies to Defendants' underlying conduct
as alleged in the Complaint, and Defendants' motions to dismiss on this ground will
be denied.
Id. at *8. This Court fully concurs with its learned colleague in the Middle District. Further, the
Hatch determination is fully consistent with the vast majority of cases addressing this issue
nationwide.2
Applying a modicum of common sense to what is a clearly written statute, being involved
in a fender bender on the way to work is clearly an insufficient reason to expose protected
“personal information” (especially a person’s name and home address) to a web audience
increasingly inhabited more by identity thieves than boy scouts. Rather than certify what would
most likely be a futile and expensive interlocutory appeal, the Court will allow defendants to revisit
the legal issue at summary judgment, but only after the close of discovery.
ORDER
IT IS, THEREFORE, ORDERED that defendants’ Motion for Certification of an
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) (#36) is DENIED.
Signed: November 13, 2017

2
See Senne v. Village of Palatine, Ill., 695 F.3d 597 (7th Cir. 2012); Pichler v. UNITE, 542 F.3d 380, 391
(3d Cir. 2008); Pavone, supra; St. Clair v. Capital One Bank (USA), N.A., No. CIV. 12-1572 MJD/AJB, 2013 WL
1110810, at *5 (D. Minn. Jan. 22, 2013), rejected in part on other grounds, No. CIV. 12-1572 MJD/AJB, 2013 WL
1110803 (D. Minn. Mar. 18, 2013); Camara v. Metro-N. R. Co., 596 F. Supp. 2d 517, 525 (D. Conn. 2009).

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