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Myers v. Aitkin County

United States District Court, D. Minnesota

March 27, 2017

MISTY KAY MYERS Plaintiff,
v.
AITKIN COUNTY, CITY OF BAXTER, CASS COUNTY, CITY OF CHASKA, CITY OF CROSBY, CROW WING COUNTY, MCLEOD COUNTY, MILLE LACS COUNTY, CITY OF NISSWA, CITY OF PEQUOT LAKES, CITY OF WAITE PARK, JOHN DOES 1-100, DEPARTMENT OF PUBLIC SAFETY DOES 1-30, ENTITY DOES 1-30, JANE DOES 1-100, CENTRAL MINNESOTA COMMUNITY CORRECTIONS, CHUCK EVERSON, JENNIFER TWOMBLY, SHANNON WUSSOW, SCOTT HEIDE, KARRI TURCOTTE, JESSICA TURNER, KELLI GOTVALD, GENE HILL, MELISSA SATERBAK, and JONATHAN COLLINS, Defendants.

          Sonia L. Miller-Van Oort and Robin M. Wolpert, SAPIENTIA LAW GROUP PLLC, for plaintiff Misty Kay Myers.

          Margaret A. Skelton and Timothy A. Sullivan, RATWIK, ROSZAK & MALONEY, PA, for defendants Aitkin County, Central Minnesota Community Corrections, Crow Wing County, Mille Lacs County, Jennifer Twombly, Chuck Everson, Shannon Wussow, Scott Heide, Karri Turcotte, Jessica Turner, and Melissa Saterbak.

          Jason M. Hill, JARDINE, LOGAN & O'BRIEN, PLLP, for defendant Kelli Gotvald.

          MEMORANDUM OPINION AND ORDER ON CROSS SUMMARY JUDGMENT MOTIONS

          JOHN R. TUNHEIM Chief Judge United States District Court

         Plaintiff Misty Kay Myers commenced this action in February 2014 against numerous Minnesota counties, entities, and unnamed individuals, alleging that Minnesota law enforcement officers and related persons impermissibly accessed her private information from the state's motor vehicle records in violation of the Driver's Privacy Protection Act (“DPPA”), 18 U.S.C. § 2724. Myers amended her complaint in 2015 to replace certain unnamed defendants with named individuals, including some of the defendants who have now moved for summary judgment. At this stage in the proceedings, both Myers and certain defendants filed motions for summary judgment.

         In their summary judgment motions, defendants Aitkin County, Central Minnesota Community Corrections (“CMCC”), Crow Wing County, Mille Lacs County, Jennifer Twombly, Chuck Everson, Shannon Wussow, Scott Heide, Karri Turcotte, Jessica Turner, Melissa Saterbak, and Kelli Gotvald (altogether, the “Defendants”) assert that: the statute of limitations bars nearly all of Myers's claims; the Individual Defendants' accesses were permissible or alternatively qualified immunity applies; the Entity County Defendants are neither directly nor vicariously liable; Myers lacks standing to bring an action under the DPPA; and Myers's punitive damages claim fails for lack of willful or reckless disregard of the law.[1] Myers's motion for partial summary judgment requests that the court determine there are 20 accesses at issue related to Defendants' conduct, and that each violation subjects Defendants to a minimum liquidated damage amount of $2, 500.

         Because the Court determines that Turcotte accessed Myers's information for a permissible purpose and that Myers's amended complaint fails to relate back to her original complaint, the Court will grant summary judgment for all of the Individual Defendants except for Wussow regarding her access of Myers's information on May 1, 2012. As a genuine issue of material fact remains regarding the permissibility of Wussow's access, the Court will deny Wussow's motion for summary judgment on the DPPA violation and for qualified immunity. Because there are material factual disputes regarding the permissibility of the Individual Defendants' accesses and the Court finds vicarious liability compatible with DPPA claims, the Court will deny the Defendants' summary judgment motion on vicarious liability and punitive damages grounds. As Myers provided evidence that she suffered a real, concrete, and actual injury, the Court will reject Defendants' standing argument. Finally, because liquidated damages and the number of accesses at issue are inappropriate matters for the Court to determine at this stage of the proceedings, the Court will deny Myers's motion for partial summary judgment.

         BACKGROUND

         I. FACTUAL HISTORY

         Between November 2007 to October 2012, Myers, an attorney, handled a variety of cases in Aitkin County, Crow Wing County, and Mille Lacs County. (Aff. of Margaret A. Skelton (“Skelton Aff.”), Ex. 1 (“Myers Dep.”) at 13:23-24, 14:3-7, 33:8-20, 33:25-34:22, 36:5-13, 124:9-15, Aug. 1, 2016, Docket No. 136.) Myers married City of Brainerd law enforcement officer Ron Myers in August 2011, but the couple divorced in March 2016. (Id. at 18:15-19, 19:22-20:3.)

         In May 2013, Myers requested an audit from the Minnesota Department of Public Safety (“DPS”). (Id. at 50:24-51:2.) She received the first audit around July 2013, which identified Minnesota entities - but not the names of individuals - who accessed her data. (See Second Aff. of Robin M. Wolpert (“Second Wolpert Aff.”), Ex. 6, Aug. 23, 2016, Docket No. 162.) Myers felt stressed, betrayed, and scared when she learned law enforcement accessed her private information. (Myers Dep. at 29:12-30:10.) In July 2015, Myers reviewed a second audit identifying the individuals who accessed her data. (Id. at 66:2-19.) Myers recognized some of the individual accessors, (id. at 67:15-68:8), and overall felt “[s]ick” after reviewing the list, (id. at 72:25-73:7). Since filing this action, Myers explained her “life has changed, ” in that she stopped seeing some of her and Ron Myers's friends. (Id. at 76:14-24.)

         II. THE DVS ACCESSES OF MYERS'S INFORMATION

         The parties dispute whether the following Individual Defendants' accesses on the Driver and Vehicle Services (“DVS”) database of Myers's information were pursuant to a permissible government use.

         A. Aitkin County Accesses

         According to the DVS audit, Everson, an Aitkin County deputy sheriff, accessed Myers's information on April 7, 2010, at 10:48 a.m., and Twombly, an Aitkin County dispatcher, accessed Myers's information on March 24, 2011, at 10:00 p.m.[2] (First Aff. of Robin M. Wolpert (“First Wolpert Aff.”), Ex. 46 (“DVS Audit”) at 2, 3, Aug. 23, 2016, Docket No. 161; Skelton Aff., Ex. 14 (“Everson Dep.”) at 18:2-4; Skelton Aff., Ex. 19 (“Twombly Dep.”) at 4:15-20.) Neither Everson nor Twombly recalled accessing Myers's data. (Everson Dep. at 37:21-25; Twombly Dep. at 31:21-32:2.)

         However, Everson explained that on the date of his access, Myers attended a hearing involving an individual who Everson “paid extra attention to” because the individual had “acted out in court before.” (Everson Dep. at 34:16-21, 35:10-13, 36:2-5.) Everson suggested he accessed Myers's information out of “[c]oncern for her safety.” (Id. at 36:16-19.) But, Everson admitted he did not access information of other attorneys involved in that hearing (id. at 36:13-15), and he admitted that he knew Myers, he had two mutual friends who talked about Myers, and he also knew her ex-husband, Ron Myers, (id. at 67:2-7, 69:21-71:8; 71:18-21).

         Twombly contends that she may have inadvertently accessed Myers's information when Aitkin County received criminal complaints about Misty L., who has the same first name as Myers. (See Skelton Aff., Ex. 5.) Myers, however, replies that she had a meeting scheduled with Twombly's mother-in-law six hours prior to Twombly's access. (First Wolpert Aff., Ex. 49 at 17; Second Wolpert Aff., Ex. 15 at 44:12-45:4.)

         B. Crow Wing County Accesses

         The DVS audit also shows that: Turner, a Crow Wing County dispatcher, accessed Myers's information on February 20, 2010, at 3:05 a.m.; Heide, a Crow Wing County public safety answering point supervisor, accessed Myers's information on May 12, 2011, at 8:47 a.m.; and Turcotte, a Crow Wing County dispatcher, accessed Myers's information on May 2, 2012, at 9:27 a.m. (DVS Audit at 1-2; Skelton Aff., Ex. 23 (“Turner Dep.”) at 12:3-4; Skelton Aff., Ex. 22 (“Heide Dep.”) at 6:1-4; Second Wolpert Aff., Ex. 33 at 2.)

         Neither Turner nor Heide recalled why they accessed Myers's information. (Turner Dep. at 52:18-23; Heide Dep. at 85:11-19.) Defendants assert, without any citation to the record, “Crow Wing County's Master Name Index demonstrates 52 separate entries documenting interactions with individuals named Misty, ” and that Turner and Heide may have inadvertently accessed Myers pursuant to a law enforcement purpose. (County Defs.' Mem. in Supp. of Mot. for Summ. J. at 36, Aug 1. 2016, Docket No. 135.) Myers counters Turner was Ron Myers's friend and Turner likely accessed Myers's information upon learning Myers and Ron Myers were engaged. (See Turner Dep. at 44:19-20, 45:22-23, 52:8- 53:6.) Myers also counters Heide admitted Ron Myers was his former neighbor and that he had met Myers. (Heide Dep. at 79:10-23.)

         Turcotte asserts she accessed Myers's driver's license information in response to a request from a Brainerd police officer, Ron Myers. (Skelton Aff., Ex. 15 at 2.) After Turcotte relayed the information, Ron Myers - Myers's ex-husband - told Turcotte he was using that information to purchase Myers a fishing license. (Id.; see also Skelton Aff., Ex. 24.) Myers nonetheless contends that Turcotte impermissibly released her private information for a fishing license without any law enforcement purpose.

         C. CMCC Accesses

         Wussow, a CMCC probation agent who worked in Crow Wing County, accessed Myers's information on April 26, 2011, and on May 1, 2012. (DVS Audit at 21; Second Wolpert Aff., Ex. 20 (“Wussow Dep.”) at 4:15-18.) Wussow did not recall why she accessed Myers's information. (Wussow Dep. at 37:1-4.) The parties do not dispute that Wussow knew that Myers was a former city prosecutor. (See County Defs.' Mem. in Supp. of Mot. for Summ. J. at 37; Pl.'s Mem. in Opp'n to County Defs.' Mot. for Summ. J. at 18, Aug. 23, 2016, Docket No. 159.) Wussow, however, suggests that she may have inadvertently accessed Myers's information because she was working on Misty L.'s probation file around the time. (See Skelton Aff., Ex. 11.) Myers counters that Wussow admitted within 48 hours of accessing Myers's information on April 26, 2011, Wussow accessed the information of many other old friends and colleagues on the DVS database. (See DVS Audit at 18-19; Wussow Dep. at 60:21-64:13.)

         D. Mille Lacs County Accesses

         Saterbak, an assistant Mille Lacs County attorney, accessed Myers's information multiple times on various dates during the summer of 2010, (see DVS Audit at 15, 18; Second Wolpert Aff., Ex. 38 (“Saterbak Dep.”) at 19:1-3)[3], and Gotvald, a legal assistant at the Mille Lacs County Attorney's Office, accessed Myers's information on September 30, 2010 at 3:30 p.m., (see DVS Audit at 13; Second Wolpert Aff., Ex. 36 (“Gotvald Dep.”) at 21:9-14). Saterbak asserts the accesses attributed to her could have been a different attorney in the office with whom she shared her DVS credentials, (Saterbak Dep. at 64:20-65:24; 85:3-6), and Gotvald did not recall accessing Myers's information, (Gotvald Dep. at 75:8-10). Saterbak and Gotvald also suggest that the purpose of the accesses may have been to identify Myers in Mille Lacs County court or to verify Myers's address for service of process. (See County Defs.' Mem. in Supp. of Mot. for Summ. J. at 38-39.) Myers counters that the DVS audit indicates Saterbak also accessed another attorney who she knows, (Saterbak Dep. at 118:12-119:16), and that Gotvald admitted she used the database to access an old friend's information, (Gotvald Dep. at 84:13-85:3).

         III. DAMAGES

         As a result of learning about the accesses, Myers experienced migraines, heart palpitations, and had irregular periods. (Myers Dep. at 161:20-23, 164:16-165:5, 172:1- 5; First Wolpert Aff., Ex. 48 at 7-9.) Myers saw a physician who prescribed her medications to treat the migraines. (First Wolpert Aff., Ex. 48 at 7-8; id., Ex. 47 at MYERS000190.) Overall, Myers alleges that she suffered emotional distress, felt scared, and endured stress as a result of the accesses. (Myers Dep. at 173:10-19.)

         IV. ...


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