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Kost v. Hunt

United States District Court, D. Minnesota

November 15, 2013

Hilary Ann Kost, a/k/a Hilary Kost DeVary, and Jon Eldon DeVary, Plaintiffs,
John Hunt et al., Defendants

Marshall H. Tanick and Teresa J. Ayling appeared for Plaintiffs.

Andrea G. White appeared for Defendant Dakota County. Toni A. Beitz appeared for Defendant Hennepin County. Joseph E. Flynn appeared for Defendants Chisago, Washington and Carver Counties. Jon K. Iverson appeared for Defendants Cities of Bloomington, Burnsville, Eden Prairie, Lakeville, Apple Valley, Cottage Grove, Crosslake, Faribault, Hastings, New Hope, Roseville, St. Louis Park, Minnetrista, Richfield, Brooklyn Park, Maple Grove, Minnetonka, St. Cloud, Farmington, and South St. Paul, as well as for Defendant Centennial Lakes Police Department.

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JOAN N. ERICKSEN, United States District Judge.

Plaintiffs Hilary Ann Kost and Jon Eldon DeVary filed this action against more than fifty named Defendants, including twenty-three cities and seven counties in Minnesota. The First Amended Complaint (" complaint" ) makes claims against the Defendants under the Driver's Privacy Protection Act of 1994 (" DPPA" ), 42 U.S.C. § 1983, and Minnesota state law for alleged impermissible accesses of Plaintiffs' personal data maintained by the Minnesota Department of Public Safety (" DPS" ). Presently before the Court are four motions filed by the following Defendants, collectively referred to as the " Moving Defendants" : Hennepin County; Carver County, Chisago County, and Washington County (" County Defendants" ); Dakota County; and the Cities of Bloomington, Burnsville, Eden Prairie, Lakeville, Apple Valley, Cottage Grove, Crosslake, Faribault, Hastings, New Hope, Roseville, St. Louis Park, Minnetrista, Richfield, Brooklyn Park, Maple Grove, Minnetonka, St. Cloud, Farmington, and South St. Paul, along with the Centennial Lakes Police Department (" City Defendants" ). The motions seek dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or request judgment on the pleadings under Rule 12(c). For the reasons stated below, all four motions are granted.


Plaintiffs Kost and DeVary are licensed private investigators and are married to

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each other. In January 2013, they received a letter from the Minnesota Department of Natural Resources (" DNR" ) notifying them that a former DNR employee had engaged in unauthorized viewing of private data from their motor vehicle records kept by the DPS. On receipt of the DNR letter, Plaintiffs sought an audit of all releases by the DPS of their motor vehicle records.

From the audit, Plaintiffs " discovered numerous incidents of unlawful access" of their personal information by various cities, counties, private entities, and other organizations. The complaint includes and incorporates four exhibits with information that Plaintiffs obtained from the Division of Driver and Vehicle Services (" DVS" ) and Bureau of Criminal Apprehension (" BCA" ), departments of the DPS that maintain databases containing motor vehicle record data. The exhibits include entries corresponding to accesses of Plaintiffs' data that provide information such as the date of access, the time, and the entity involved. Multiple sets of entries have the same transaction number and/or time. Plaintiffs redacted entries that they " believed to be legitimate instances of use of the records." Each of the Moving Defendants appears on the exhibits as having accessed Plaintiffs' data. The complaint states that Plaintiffs did not authorize any of the accesses and " are not aware of any legitimate reason any of the Defendants may have had to access" their data.

The complaint does not allege any other facts regarding the particular accesses by any of the Moving Defendants, although it makes certain factual allegations without mention of a specific Defendant. The complaint states that on or around March 20, 2006, an article titled " Cheating? She's Watching" appeared in the St. Paul Pioneer Press, which highlighted the work of Plaintiff Kost. The complaint contends that the exhibits show " clusters" of accesses shortly after the article's publication. Similarly, the complaint alleges an increase in accesses after an interview on television and mentions in news articles, in the late summer and fall of 2011, of Plaintiff Kost's work as a private investigator in a high profile matter of child abandonment. The complaint also alleges that a former police officer and neighbor of Plaintiff DeVary and his previous wife, who had taken a special interest in their child, told the child that he obtained Plaintiff Kost's data through law enforcement personnel to check her out and determine whether she was a safe driver. The complaint does not identify the former officer or the time period in which he obtained the information.

The complaint lists five counts, four of which involve the Moving Defendants. Count I of the complaint alleges violations of the DPPA by all Defendants. Count II asserts claims under 42 U.S.C. § 1983 for violations of Plaintiffs' rights against individual John and Jane Does employed by the Moving Defendants. Count III alleges § 1983 claims against the Moving Defendants, asserting liability for an alleged custom and practice of illegal accesses of individuals' private motor vehicle record data. Count V claims Negligent Infliction of Emotional Distress against the Moving Defendants. On the motion of other Defendants, the Court previously held that claims under 42 U.S.C. § 1983 are unavailable for violations of any statutory or constitutional rights under the facts alleged in the complaint. See Kost v. Hunt, Civ. No. 13-583, at *15-16 (D. Minn. Oct. 8, 2013). Counts II and III will be dismissed for the reasons stated in that order. See id.; Kiminski v. Hunt, Civ. No. 13-185, at *25-43 (D. Minn. Sept. 20, 2013). Thus, only Counts I and V need to be presently addressed

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in ruling on the Moving Defendants' motions.


The same standard applies to a motion to dismiss for failure to state a claim under Rule 12(b)(6) and a motion for judgment on the pleadings under Rule 12(c). See Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009). " 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, the complaint must do more than merely leave " open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery." Twombly, 550 U.S. at 561 (internal quotation marks omitted). It must plead " 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. In ruling on a motion to dismiss, a court accepts the facts alleged in the complaint as true and grants all reasonable inferences supported by the facts alleged in favor of the plaintiff. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594-95 (8th Cir. 2009). " This tenet does not apply, however, to legal conclusions or formulaic recitation of the elements of a cause of action; such allegations may properly be set aside." Id. (internal quotation marks omitted).

Although filed separately, the four motions make some of the same or overlapping arguments for dismissal. As to Plaintiff's DPPA claim, one or more motions raise certain issues that potentially affect Plaintiffs' claims against all of the Moving Defendants. These issues will first be addressed and then the individual motions discussed.

I. The DPPA Claims and Issues Common to Moving Defendants

The DPPA protects certain " personal information" contained in motor vehicle records. See 18 U.S.C. § § 2721-2725. The statute defines " personal information" as " information that identifies an individual," and includes a person's photograph, social security number, driver identification number, name, address, telephone number, and medical or disability information. Id. § 2725(3). The first section of the DPPA starts with a general provision specifying that a state department of motor vehicles (" DMV" ) and its representatives " shall not knowingly disclose or otherwise make available" personal information " about any individual obtained by the department in connection with a motor vehicle record" except as allowed for under 18 U.S.C. § 2721(b). Id. § 2721(a)(1).

The exception provision, 18 U.S.C. § 2721(b), enumerates multiple permissible uses of personal information for various governmental and business purposes:

(1) For 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.
(2) For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts and dealers; motor vehicle market research activities, including survey research; and removal of non-owner records from the original owner records of motor vehicle manufacturers.

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(3) For use in the normal course of business by a legitimate business or its agents, employees, or contractors, but only--
(A) to verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and
(B) if such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual.
(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory 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.
(5) For use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals.
(6) For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, antifraud activities, rating or underwriting.
(7) For use in providing notice to the owners of towed or impounded vehicles.
(8) For use by any licensed private investigative agency or licensed security service for any purpose permitted under this subsection.
(9) For use by an employer or its agent or insurer to obtain or verify information relating to a holder of a commercial driver's license that is required under chapter 313 of title 49.
(10) For use in connection with the operation of private toll transportation facilities.
(11) For any other use in response to requests for individual motor vehicle records if the State has obtained the express consent of the person to whom such personal information pertains.
(12) For bulk distribution for surveys, marketing or solicitations if the State has obtained the express consent of the person to whom such personal information pertains.
(13) For use by any requester, if the requester demonstrates it has obtained the written consent of the individual to whom the information pertains.
(14) For any other use specifically authorized under the law of the State that holds the record, if such use is related to the operation of a motor vehicle or public safety.

The statute designates a subset of the " personal information" as " highly restricted personal information" and places further limitations on its disclosure by state DMVs. See id. § § 2725(4), 2721(a)(2). In addition to the restrictions of 18 U.S.C. § 2721(a) on state DMVs, the DPPA makes it " unlawful for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted" under 18 ...

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