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Mallak v. Aitkin County

United States District Court, D. Minnesota

March 31, 2014

Brook Mallak, Plaintiff,
Aitkin County; Anoka County; City of Baxter; City of Brainerd; Cass County; City of Crosslake; Crow Wing County; City of Fridley; Hennepin County; City of Little Falls; City of Long Prairie; City of Minneapolis; Morrison County; City of Pine River; Ramsey County; City of St. Cloud; Scott County; St. Louis County; City of Staples; Wright County; Tinker & Larson, Inc.; Michael Campion, acting in his individual capacity as Commissioner of the Minnesota Department of Public Safety; Ramona Dohman, acting in her individual capacity as Commissioner of the Minnesota Department of Public Safety; John and Jane Does (1 - 500) acting in their individual capacity as supervisors, officers, deputies, staff, investigators, employees or agents of the other law-enforcement agencies or Tinker & Larson, Inc.; Department of Public Safety Does (1-30) acting in their individual capacity as officers, supervisors, staff, employees, independent contractors or agents of the Minnesota Department of Public Safety; and Entity Does (1-50) including cities, counties, municipalities, and other entities sited in Minnesota and federal departments and agencies, Defendants

Page 1047

Jonathan A. Strauss, Esq., Lorenz F. Fett, Jr., Esq., Mark H. Zitzewitz, Esq., Sonia L. Miller-Van Oort, Esq., and Kenneth H. Fukuda, Esq., Sapientia Law Group, counsel for Plaintiff.

Jon K. Iverson, Esq., Susan M. Tindal, Esq., and Stephanie A. Angolkar, Esq., Iverson, Reuvers Condon, counsel for Defendants City of Baxter, City of Brainerd, City of Crosslake, City of Fridley, City of Little Falls, City of Pine River, City of St. Cloud, City of Staples, and City of Long Prairie.

Erin E. Benson, Esq., Margaret A. Skelton, Esq., and Timothy A. Sullivan, Esq., Ratwik, Roszak & Maloney, PA, counsel for Defendants Cass County, Crow Wing County, Morrison County, Scott County, Wright County, and Aitkin County.

Toni A. Beitz, Assistant County Attorney, Beth A. Stack, Assistant County Attorney, and Daniel D. Koczor, Assistant County Attorney, Hennepin County Attorney's Office, counsel for Defendant Hennepin County.

Timothy S. Skarda, Assistant City Attorney, Minneapolis City Attorney's Office, counsel for Defendant City of Minneapolis.

Kimberly R. Parker, Assistant County Attorney, and Robert B. Roche, Assistant County Attorney, Ramsey County Attorney's Office, counsel for Defendant Ramsey County.

Leslie E. Beiers, Assistant County Attorney, and Nick D. Campanario, Assistant County Attorney, St. Louis County Attorney's Office, counsel for Defendant St. Louis County.

Oliver J. Larson, Assistant Attorney General, Minnesota Attorney General's Office, counsel for Defendants Michael Campion and Ramona Dohman.

Page 1048


DONOVAN W. FRANK, United States District Judge.


This matter is before the Court on the following motions: (1) Defendant Hennepin County's (" Hennepin County" ) Motion to Dismiss and/or for Summary Judgment and/or to Sever with respect to Plaintiff Brook Mallak's (" Plaintiff" ) Complaint relating primarily to violations of the Driver's

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Privacy Protection Act (" DPPA" ) (Doc. No. 19); (2) Defendants City of Baxter, City of Brainerd, City of Crosslake, City of Fridley, City of Little Falls, City of Long Prairie, City of Pine River, City of St. Cloud, and City of Staples's (collectively, " City Defendants" ) Motion to Dismiss (Doc. No. 43); (3) Defendants Aitkin County, Cass County, Crow Wing County, Morrison County, Scott County, and Wright County's (collectively, " County Defendants" ) Motion to Dismiss and/or for Summary Judgment (Doc. No. 49); (4) Defendant Ramsey County's (" Ramsey County" ) Motion to Dismiss or for Severance (Doc. No. 55); and (5) Defendants Commissioner Ramona Dohman and Commissioner Michael Campion's (collectively, " Commissioner Defendants" ) Motion to Dismiss (Doc. No. 30).[1] For the reasons set forth below, the Court denies in part and grants in part the motions.


The Department of Vehicle Services (" DVS" ) is a division of the Minnesota Department of Public Safety (" DPS" ). (Doc. No. 1, Compl. ¶ 53.) DPS maintains a database that contains the motor-vehicle records for Minnesota Drivers (" DVS Database" ), which includes " names, dates of birth, driver's license numbers, addresses, driver's license photos, weights, heights, social security numbers, various health and disability information, and eye colors of Minnesota drivers." ( Id. ¶ ¶ 53-54.)

Plaintiff is a practicing attorney in Brainerd and Little Falls, Minnesota. ( Id. ¶ 44.) Plaintiff alleges she has " well established" and " long-standing ties within the community." ( Id. ¶ ¶ 45-46, 51.) Plaintiff was a full-time public defender between 2003 and 2008 in Crow Wing and Aitkin Counties, who represented adult criminal defendants, juvenile delinquents, and parties in child welfare matters. ( Id. ¶ 48.) Plaintiff has also served on Crow Wing County Drug and DWI Courts and a number of steering committees, has volunteered with high school students, and has taught as an adjunct teacher at Bemidji State University. ( Id. ¶ 52.)

Plaintiff requested an audit report from DPS in March 2013, at which time she learned that her driver's license information had been accessed by Minnesota municipal and state personnel approximately 190 times between 2003 and 2012. ( Id. ¶ ¶ 1-2, 55-76, 120-123 & Ex. A.) Plaintiff alleges that she provided the following to DPS: her address, color photograph, social security number, date of birth, weight, height, and eye color. ( Id. ¶ 173.) Plaintiff alleges that each of these searches was run by her name, rather than by her license plate number or driver's license number. ( Id. ¶ 3.) Plaintiff further alleges that these accesses were done knowingly, and that she had committed no crimes that would have justified any of the accesses identified in her Complaint. ( Id. ¶ ¶ 77-78.) Searches allegedly made by Defendants are summarized as follows:


TOTAL number of accesses

Aitkin County


City of Baxter


City of Brainerd


Cass County


City of Crosslake


Crow Wing County


City of Fridley


Hennepin County


City of Little Falls


City of Long Prairie


City of Minneapolis


Morrison County


City of Pine River


Ramsey County


Scott County


City of St. Cloud


St. Louis County


City of Staples


Wright County


Page 1050

( Id. ¶ ¶ 56-76 & Ex. A.) Plaintiff alleges that it has been established by a report and corresponding hearing of the Minnesota Office of the Legislative Auditor and magazine articles that law enforcement in Minnesota misuses state databases. ( Id. ¶ ¶ 141-44, 162.) Plaintiff alleges that as a result of learning that her information had been viewed on these occasions, she felt " victimized, nervous, angry, anxious, nauseated, and feared for her safety when alone." ( Id. ¶ 124.)

Plaintiff brings her lawsuit against ten Minnesota counties and ten Minnesota cities (including, City Defendants, County Defendants, Hennepin County, Ramsey County and Anoka County). ( Id. ¶ ¶ 12-32.) Plaintiff also brings suit against the following: " Entity Does," which are various unknown municipalities ( id. ¶ 33); Jane and John Does, who are law enforcement supervisors, officers, or employees of municipal entities or other federal, state, county, or municipal entities in Minnesota (in their individual capacities) ( id. ¶ 35); Commissioner Michael Campion and Commissioner Ramona Dohman, Commissioners of DPS (in their individual capacities) ( id. ¶ ¶ 38-39); and " DPS Does," who are officers, supervisors, employees, independent contractors or agents of the Minnesota Department of Public Safety (in their individual capacities) ( id. ¶ 42).

With respect to the Commissioner Defendants, Plaintiff alleges that they directed the creation of the DVS Database that includes the driver's license records and also directed its maintenance and updating. ( Id. ¶ ¶ 80-81.) She also alleges that they knowingly directed the provision of access to that database, that they should have known the data was being accessed on multiple occasions, and that any unauthorized access could have been prevented, but was not. ( Id. ¶ ¶ 82-85.) Plaintiff alleges that, as a result, the Commissioner Defendants " knowingly authorized, directed, ratified, approved, acquiesced in, committed or participated in the disclosure of protected data." ( Id. ¶ 86; see also id. ¶ ¶ 94-95.) Plaintiff alleges that the Commissioners failed to create effective monitoring of the system and did not implement adequate training for the system. ( Id. ¶ ¶ 99-100.) Finally, Plaintiff alleges that the Commissioner Defendants knew of impermissible accesses by law enforcement officers, and knew law enforcement officers were viewing private data contained in the database. ( Id. ¶ ¶ 104-07.)

In her Complaint, Plaintiff asserts the following claims: (1) violation of the DPPA

Page 1051

against all Defendants; (2) violation of 42 U.S.C. § 1983 against individual Defendants (excluding supervisors); (3) violation of 42 U.S.C. § 1983 against all City Defendants, County Defendants, Entity Does and supervisors; (4) violation of 42 U.S.C. § 1983 against Commissioner Defendants and DPS Does; (5) violation of 42 U.S.C. § 1983 against Commissioner Dohman and seeking prospective relief; and (6) state law invasion of privacy against all Defendants. ( Id. ¶ ¶ 172-268.) Defendants now move to dismiss based on the statute of limitations, failure to state a claim under the DPPA, failure to state a claim under § 1983, and failure to state a claim for invasion of privacy.


I. Legal Standard

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). In doing so, however, a court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader from the facts alleged. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court may consider the complaint, matters of public record, orders, materials embraced by the complaint, and exhibits attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).

To survive a motion to dismiss, a complaint must contain " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although a complaint need not contain " detailed factual allegations," it must contain facts with enough specificity " to raise a right to relief above the speculative level." Id. at 555. As the United States Supreme Court recently reiterated, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555). In sum, this standard " calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim]." Twombly, 550 U.S. at 556.


A. Background and Framework of the DPPA

The DPPA, 18 U.S.C. § § 2721-2725, regulates the disclosure of personal information contained in records accessible through state departments of motor vehicles (" DMVs" ). Maracich v. Spears, 133 S.Ct. 2191, 2195, 186 L.Ed.2d 275 (2013). Congress enacted the DPPA in 1994 to address privacy concerns with respect to personal information contained in motor vehicles records, including concerns relating to threatening or criminal use of that information. See Gordon v. Softech Int'l, Inc., 726 F.3d 42, 45 (2d Cir. 2013) (citing congressional record); Senne v. Vill. of Palatine, Ill., 695 F.3d 597, 607 (7th Cir. 2012) (same). Under the DPPA, a " State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity . . . personal information . . . about any individual obtained by the department in connection with a motor vehicle record" except as allowed under 18 U.S.C. § 2721(b).

Page 1052

18 U.S.C. § 2721(a). It is also 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(a).

The DPPA defines " personal information" as " information that identifies an individual," and includes a person's " photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information . . . ." 18 U.S.C. § 2725(3). " Person" means " an individual, organization or entity, but does not include a State or agency thereof[.]" 18 U.S.C. § 2725(2). The Attorney General can bring a claim against a State department of motor vehicles with a " policy or practice of substantial noncompliance" and can seek civil penalties. 18 U.S.C. § 2723(b).

There are multiple exceptions for which disclosure of driver's license information is permitted. See 18 U.S.C. § 2721(b)(1)-(14) (emphasis added). These exceptions generally relate to various governmental and business purposes, such as " use by any government agency, including any court or law enforcement agency, in carrying out its functions," as well as provisions relating to the resale and disclosure of information by authorized recipients for permitted purposes. See 18 U.S.C. § 2721(b) & (c). The exceptions are intended to be broadly applied. See Kost v. Hunt, Civ. No. 13-583, 983 F.Supp.2d 1121, 2013 WL 6048921, at *12 (D. Minn. Nov. 15, 2013) (Ericksen, J.).

With respect to remedies, the DPPA provides for:

(1) actual damages, but not less than liquidated damages in the amount of $2,500;
(2) punitive damages upon proof of willful or reckless disregard of the law;
(3) reasonable attorneys' fees and other litigation costs reasonably incurred; and
(4) such other preliminary and equitable relief as the court determines to be appropriate.

18 U.S.C. § 2724(b). The DPPA also allows for criminal fines against an individual who " knowingly violates this chapter[,]" 18 U.S.C. § 2723(a), as well as civil penalties for noncompliance by a " State Department of Motor Vehicles." 18 U.S.C. § 2723(b).

B. Statute of Limitations

The DPPA does not include a statute of limitations provision. However, the parties agree that the general four-year statute of limitations provided for by 28 U.S.C. § 1658(a) applies in this case. ( See, e.g., Doc. No. 41, at 8; Doc. No. 46, at 18.) However, the parties dispute when this four-year period began to run. Plaintiffs argue that the " discovery rule" applies to DPPA claims and that the cause of action does not begin to accrue until the plaintiff has " discovered" it. See Merck & Co. v. Reynolds, 559 U.S. 633, 644, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010). In this case, application of the discovery rule would mean the clock started running in March 2013 when Plaintiff requested and received an audit report from DPS and, at that time, discovered that her records had been accessed. (Compl. ¶ ¶ 120-23.) Defendants argue that the " standard rule" applies. ( See, e.g., Doc. No. 22, at 12-13.) Under the standard rule, " a claim accrues when the plaintiff has a complete and present cause of action." Gabelli v. S.E.C., 133 S.Ct. 1216, 1220, 185 L.Ed.2d 297 (2013) (internal quotations and citations omitted). In this case, under the standard rule, the clock would have started running at the time the records were actually accessed. See id.

Page 1053

As noted in Rasmusson v. Chisago County, neither the Supreme Court nor the Eighth Circuit has addressed the issue of whether the discovery or standard rule should apply in DPPA cases. Rasmusson v. Chisago Cnty., Civ. No. 12-632, 991 F.Supp.2d 1065, 2014 WL 107067, at *11 (D. Minn. Jan. 10, 2014) (Nelson, J.). However, a number of district courts in this circuit and other circuits have held that the standard rule applies in DPPA cases, and therefore a cause of action accrues at the time information is improperly accessed. Id. at *12-14 (holding that a DPPA cause of action accrues at the time of an improper access of information and that the discovery rule does not apply); see also Potocnik v. Anoka Cnty., Civ. No. 13-1103, 2014 WL 683980, at *2 (D. Minn. Feb. 21, 2014) (Doty, J.) (holding that the standard rule applies to claims under the DPPA); McDonough v. Al's Auto Sales, Inc., Civ. No. 13-1889, 2014 WL 683998, at *2 (D. Minn. Feb. 21, 2014) (Doty, J.) (same); Bass v. Anoka Cnty., Civ. No. 13-860, 998 F.Supp.2d 813, 2014 WL 683969, at *2 (D. Minn. Feb. 21, 2014) (Doty, J.) (same); Kost, 2013 WL 6048921, at *5-8 (same); Smythe v. City of Onamia, Civ. No. 12-3149, 2013 WL 2443849, at *6 n.3 (D. Minn. June 5, 2013) (Montgomery, J.) (excluding an instance of record retrieval as " well outside the statute of limitations" based on a four-year limit); see also, e.g., Haney v. Recall Ctr., 282 F.R.D. 436, 438 (W.D. Ark. 2012) (redefining the DPPA-related class to exclude class members whose lookups occurred more than four years prior to the date of filing); Roberts v. Source for Pub. Data, Civ. No. 08-4167, 2009 WL 3837502, at *7 (W.D. Mo. Nov. 17, 2009) (excluding class members whose suits would be barred by the four-year statute of limitations); Hurst v. State Farm Mut. Auto. Ins. Co., Civ. No. 10-1001, 2012 WL 426018, at *9 (D. Del. Feb. 9, 2012) (stating that the four-year statute of limitations applies to DPPA cases).

Moreover, in so holding, decisions in this district have thoroughly analyzed the relevant case law, the text and structure of the relevant statute of limitations, the nature of DPPA claims, and legislative history in coming to their decisions. See, e.g., Rasmusson, 2014 WL 107067, at *11-14 (holding that the standard rule applies in light of case precedent,[2] the text and structure of § 1658,[3] and the nature of the substantive area

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covered by the DPPA); see also Kost, 2013 WL 6048921, at *5-9 (same). The Court finds these cases to be persuasive and adopts their analyses. The Court additionally addresses two issues brought by Plaintiff below.

Plaintiff argues that 28 U.S.C. § 1658 does not implicitly [4] exclude the discovery rule because it includes the term " accrues," which Plaintiff contends is the same as silence on the issue of the discovery rule. ( See, e.g., Doc. No. 41, at 12-13.) The Court disagrees. The Supreme Court has expressly held that " in common parlance a right accrues when it comes into existence." U.S. v. Lindsay, 346 U.S. 568, 569, 74 S.Ct. 287, 98 L.Ed. 300 (1954); see also Gabelli, 133 S.Ct. at 1220 (citing Lindsay, 346 U.S. at 569) (construing " accrue" with respect to claims under the residential Lead-Based Paint Hazard Reduction Act to mean when a right comes into existence); Black's Law Dictionary (7th ed.) (" accrue" means " [t]o come into existence as an enforceable ...

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