United States District Court, D. Minnesota
L. Miller-Van Oort, Esq., Jonathan A. Strauss, Esq., Lorenz
F. Fett, Jr., Esq., and Robin M. Wolpert, Esq., Sapientia Law
Group, PLLC, Minneapolis, MN; and Susan M. Holden, Esq.,
Jeffrey M. Montpetit, Esq., and Marcia K. Miller, Esq.,
SiebenCarey, Minneapolis, MN on behalf of Plaintiff.
Stephanie A. Angolkar, Esq., Jon K. Iverson, Esq., and Susan
M. Tindal, Esq., Iverson Reuvers Condon, Bloomington, MN, on
behalf of Defendants Richard Pietrzak and City of Dayton.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Plaintiff Samantha Orduno's
(“Orduno”) Amended Motion to Amend Judgment Under
Rule 59(e) and Rule 60(a) [Docket No. 259], Motion for a New
Trial Under Rule 59(a) [Docket No. 265], and Motion for an
Award of Reasonable Attorneys' Fees and Costs Under 18
U.S.C. § 2724 [Docket No. 233]. Also before the Court
are Defendants City of Dayton (“City of Dayton”
or “City”) and Richard Pietrzak's
“Defendants”) Motion to Strike Untimely Motion
for New Trial, Untimely “Amended Motion” to Amend
Judgment and Untimely Motion for Attorneys' Fees [Docket
No. 269], and City of Dayton's Renewed Motion for
Judgment as a Matter of Law [Docket No. 247]. For the reasons
set forth below, the Amended Motion to Amend Judgment is
granted, the Motion for a New Trial is denied, the Motion for
Attorneys' Fees and Costs is granted in part and denied
in part, the Motion to Strike is denied, and the Renewed
Motion for Judgment as a Matter of Law is denied.
case began as a putative class action under the Driver's
Privacy Protection Act, 18 U.S.C. § 2721, et seq.
(“DPPA” or the “Act”). Compl. [Docket
No. 1] ¶¶ 227-254. The DPPA prohibits “any
person” from “knowingly . . . obtain[ing] or
disclos[ing] personal information, from a motor vehicle
record, for any use not permitted under Section 2721(b) of
this title.” 18 U.S.C. § 2722. The Act lists
numerous permitted uses, including “use by any
government agency, including any court or law enforcement
agency, in carrying out its functions . . . .” 18
U.S.C. § 2721(b)(1).
the former Dayton City Administrator, alleged that former
Dayton Police Chief Pietrzak violated the DPPA by accessing
her personal information and that of at least 850 other
individuals from the Minnesota Driver and Vehicle Services
database (the “DVS Database”) for an
impermissible purpose. Compl. ¶¶ 42-53. Orduno
further alleged that the City knew of Pietrzak's unlawful
accesses, and that the City and its supervisors failed to
monitor and prevent the accesses. Id. ¶¶
Events Giving Rise to Lawsuit
November 9, 2012, a photocopy of Orduno's paycheck
receipt was found in the copy machine in the City's main
office while Orduno was on vacation. First Miller Aff., June
22, 2015 [Docket No. 37] Ex. A (“Bankes Report”)
at ¶ 245. The photocopy exposed only the corners of the
paycheck receipt, and the visible data that appeared in those
corners was public data. Id. at ¶ 245, D259.
Orduno perceived the finding of the photocopy as evidence of
a possible data practices violation. She contacted the City
Administrator from White Bear Lake, Minnesota to inquire
whether White Bear Lake Police Chief Lynne T. Bankes
(“Bankes”) would conduct a criminal investigation
of the incident. Second Miller Aff., Sept. 11, 2015 [Docket
No. 49] Ex. 1 (“Bankes Dep.”) at 19-21; Orduno
Decl., Sept. 11, 2015 [Docket No. 50] ¶¶ 13-14.
Orduno and Bankes knew each other from their previous
employment with the City of Fridley. Bankes Dep. at 20; First
Angolkar Aff., Aug. 5, 2015 [Docket No. 46] Ex. 7 at 1.
Bankes was assigned to the investigation, and Orduno provided
Bankes with a written account of what she believed had
happened. Bankes Report at ¶ 245; Bankes Dep. at 19-20,
of her investigation, Bankes interviewed several City
employees. Bankes Report at ¶ 246-52. Pietrzak declined
to speak with Bankes without an attorney, but contacted his
union attorney to arrange for a meeting with Bankes.
Id. at ¶ 249. The union attorney left a message
for Bankes on December 13, 2012, stating that Pietrzak would
be available to speak with Bankes after the first of the
year. Id. Bankes did not follow up with Pietrzak or
his attorney before concluding her investigation. See
id. at ¶ 255.
the investigation of the photocopied paycheck receipt, Orduno
informed Bankes “that there was an honesty and
integrity issue with some City staff, ” and that she
was “concerned that her private personal data was
released.” Id. at ¶ 252. Orduno told
Bankes that Pietrzak was her “primary suspect”
because he had access to City Hall at any time of the day or
night. Id. Orduno also conveyed to Bankes that she
felt Pietrzak was “out to get her.” Bankes Dep.
on Orduno's concerns and suspicions, Bankes contacted the
Minnesota Department of Motor Vehicle Services
(“DVS”) to determine whether Orduno's
driver's license or license plate number had been
accessed in the DVS Database by any law enforcement officer
in Minnesota. Bankes Report at ¶ 252. DVS provided
Bankes with a printout showing that Orduno's name had
been accessed in the DVS Database 14 times between January
19, 2010 and October 4, 2012. Id. at ¶ 252, Ex.
A. Seven of the accesses were made by Pietrzak.
Id. The accesses were not made by entering
Orduno's motor vehicle information, which led Bankes to
conclude that “the reason for the entry into DVS was
not due to a traffic stop violation, but for another
reason.” Id. at ¶ 252. Orduno informed
Bankes that she had not been stopped for a traffic violation
during that time period and could not think of any reason
that officers would have been required to search her name in
the DVS Database. Id. Bankes concluded that the
accesses were unauthorized and that Pietrzak had violated the
DPPA and other statutes. Id. at ¶ 253; Bankes
Dep. at 59.
then contacted DVS to request all access data by Pietrzak for
the past six months “to see if Chief Pietrzak was only
illegally accessing [Orduno's] name and data or if this
practice was pervasive.” Bankes Report at ¶ 253.
In response, a DVS support services supervisor sent Bankes an
email requesting to deactivate Pietrzak's access because
their review of the inquiry was “so disturbing”
that DVS planned to discontinue his access. Id.
Bankes requested that the access remain open during her
investigation. Id. DVS then provided Bankes with a
list showing that Pietrzak had accessed information for more
than 850 people during the six month period covered by the
reviewing the list of accesses, Bankes became
“immediately concerned” because the list included
“numerous” accesses for Pietrzak's family
members, City of Dayton's police officers, and the
City's police secretary. Id. at ¶ 253-54.
Pietrzak had also accessed the DVS Database for the Hennepin
County sheriff, police chiefs from three other cities, most
of Dayton's City Council, members of the City of
Dayton's staff, the City of Dayton's past and future
mayor, two individuals close to the mayor, a public safety
commissioner, and persons from nearby communities who were
running or had run for public office. Id.
“Many” of those accessed were female.
Id. at ¶ 254. Additionally, “very
few” of the entries on the DVS report were preceded by
a license plate entry, indicating the accesses were not
likely to have been the result of a traffic stop.
did not compare the list to an incident report or report of
service calls for the City of Dayton police department, nor
did she contact any individuals on the list, review the
personnel files of the City of Dayton employees on the list,
or speak to Pietrzak about the reasons for the accesses.
Bankes Dep. at 62, 82-83. Nevertheless, Bankes concluded from
her review of the list that “there could reasonably be
hundreds of counts of a violation of the law.” Bankes
Report at ¶ 254.
prepared a report documenting the results of her
investigation concerning the photocopied paycheck receipt.
See generally Bankes Report. The report concludes
that the photocopied data was public data, and that there was
“little evidence to criminally charge anyone”
with violating Orduno's privacy based on the photocopied
paycheck receipt. Id. at ¶ 254. However, the
report also finds that the “bigger issue [was] the
absolute disregard of the law by the Police Chief, ”
and that there was “more than sufficient
evidence” to bring charges against Pietrzak based on
his “illegal” accesses to the DVS Database.
2, 2014, Orduno filed this lawsuit alleging that Pietrzak
violated the DPPA when he accessed her personal information
and that of approximately 850 other persons for an
impermissible purpose, and that the City, through its
supervisors, knew of Pietrzak's unlawful accesses and
failed to monitor and prevent the accesses. Compl.
¶¶ 42-55, 69-76. Orduno's requested relief
included punitive damages for Defendants' “willful
or reckless disregard of the law.” 18 U.S.C. §
initially denied the allegations and argued that he accessed
Orduno's private data for the permissible law enforcement
purpose of investigating whether she was using an alias to
hide her true name. First Angolkar Aff. Ex. 4 (Pietrzak
Answer Interrogs.) at 8-9.
Time-Barred Accesses Dismissed
October 28, 2014, the Court granted in part a Motion to
Dismiss by Defendants, holding that Orduno's claims for
accesses occurring before May 2, 2010 were barred by the four
year statute of limitations under the DPPA. Mem. Op. &
Order, October 28, 2014 [Docket No. 24]. Pietrzak accessed
Orduno's personal information on sixteen different dates,
ten of which occurred between September 7, 2005 and May 12,
2009. See Pl.'s Resp. Defs.' Objs. [Docket
No. 94] at 4-5. Therefore, accesses made by Pietrzak on six
occasions on or after May 2, 2010 remained in the case. Those
accesses occurred on August 19, 2010; April 26, 2011; May 19,
2011; November 3, 2011; May 16, 2012; and October 4, 2012.
Id.; Compl. Ex. A.
Class Certification Denied
November 10, 2015, the Court denied Orduno's Motion to
Certify Class Action. See Mem. Op. & Order, Nov.
10, 2015 [Docket No. 54]. The Court concluded that Orduno
failed to satisfy the predominance standard under Federal
Rule of Civil Procedure 23(b) because common questions of
fact or law did not predominate over individualized
questions. Specifically, common evidence could not suffice to
make a prima facie case for the class because each access
would need to be individually examined to determine whether
Pietrzak obtained the information for a permissible purpose
such as a law enforcement function. In December 2015, the
Eighth Circuit denied a petition by Orduno to appeal the
denial of class certification. See Notice USCA J.
[Docket No. 56]; Notice USCA Mandate [Docket No. 57].
February 2017, the Court issued a Jury Trial Notice [Docket
No. 132] that trial would begin on May 22, 2017. On April 27,
2017, Defendants filed an Amended Answer [Docket No. 155]
which admitted that Pietrzak had accessed Orduno's
private information for an impermissible purpose after May 2,
2010, but denied the direct and vicarious liability claims
against the City of Dayton. Compare Compl.
¶¶ 207-16, 223 with Am. Answer
¶¶ 65-70, 73.
15, 2017, the Court held a pretrial conference to address
motions in limine [Docket Nos. 163, 165, 171, 173, 181, 184,
186] filed by Defendants. See Min. Entry [Docket No.
218]. During the conference, the Court made the following
rulings which were implemented at trial. First, the direct
liability claim against the City was dismissed because there
was no evidence that the City gave Pietrzak access for an
impermissible purpose. Second, there were six obtainments of
Orduno's personal information because Pietrzak had
accessed Orduno's information on six dates, and the
viewing of multiple information categories during a given
access session would be counted as a single obtainment.
Third, each of the six obtainments carried a minimum of $2,
500 in statutory damages under § 2724(b)(1), for a total
minimum of $15, 000. Fourth, time-barred accesses and
accesses of non-party data were inadmissable on relevancy
grounds and because the value of the evidence was more
prejudicial than probative. Relatedly, the Bankes
investigation was admissible only to document accesses of
Orduno's data. Fifth, the City's actions following
the Bankes Report, including whether the City took action to
investigate the accesses or to discipline Pietrzak for them,
was inadmissible on relevancy grounds. Sixth, any reference
to the damages provision of DPPA entitling a plaintiff to no
less than $2, 500 for a violation of the statute would be
excluded at trial, because liquidated damages would be
addressed as a post-judgment issue in post-trial motions.
Finally, Orduno would not be allowed to seek damages against
the City under a theory of direct liability because the
direct liability claim against the City had been dismissed,
but the City could be held vicariously liable for damages
awarded against Pietrzak, including punitive damages.
22, 2017, the Court commenced a trial on the issue of damages
for Pietrzak's admitted violations of the DPPA. At the
close of Orduno's case in chief, the City moved for
judgment as a matter of law on Orduno's vicarious
liability claim. The Court denied the motion without
prejudice, concluding that the City can be held vicariously
liable under the DPPA based on Pietrzak's admission of
liability. After three days of trial, the case was submitted
to the jury on the afternoon of May 24, 2017. Because the
direct liability claim against the City had been dismissed,
the damage-related questions on the Special Verdict Form were
directed to Pietrzak's improper conduct and did not
include a question about the City's misconduct.
See Verdict [Docket No. 228].
25, 2017, the jury awarded actual damages of $0 and punitive
damages of $85, 000 against Pietrzak. Id. Judgment
reflecting the jury's verdict was dated and filed on May
25, 2017, and was entered by the clerk on May 26, 2017.
See Judgment [Docket No. 229]; First Miller-Van Oort
Aff., June 30, 2017 [Docket No. 277] Exs. 1, 2. Following the
jury verdict and the entry of judgment, the parties filed
these post-trial motions.
Defendants' Motion to Strike Untimely Motions
argue that Orduno's Amended Motion to Amend Judgment,
Motion for New Trial, and Motion for Attorneys' Fees must
be stricken as untimely because they were filed one day late.
The Motion to Strike fails because it is based on
Defendants' erroneous contention that Judgment was
entered May 25, 2017.
Federal Rule of Civil Procedure 58(c)(1), entry of a judgment
occurs “when the judgment is entered in the civil
docket under Rule 79(a).” In turn, Rule 78(a)(3),
requires that a docket entry for a judgment include the
judgment's “date of entry.” Here, the
Judgment is listed in Docket Entry 229. Although Docket Entry
229 is dated May 25, 2017, it expressly states that the
Judgment was “Entered: 05/26/2017.” Additionally,
the District Court's automated electronic filing
notification system states that the Judgment “was
entered on 5/26/2017 at 7:47 AM CDT and filed on
5/25/2017.” First Miller-Van Oort Aff. Ex. 1 (emphasis
added). Thus, the case docket unequivocally shows that
Judgment was entered on May 26, 2017. See Jones v.
Gann, 703 F.2d 513, 514 (11th Cir. 1983) (“The
time for filing a notice of appeal begins to run not on the
date that the judgment is filed but on the date the judgment
is actually entered on the docket.”).
the Judgment was entered on May 26, 2017, Orduno's
Amended Motion to Amend Judgment, Motion for New Trial, and
Motion for Attorneys' Fees are timely and Defendants'
Motion to Strike is denied.
City of Dayton's Renewed Motion for Judgment as a Matter
City of Dayton argues that it is entitled to judgment as a
matter of law on Orduno's claim against the City for
vicarious liability because vicarious liability does not
apply to the DPPA or to the circumstances of this case.
50(b) of the Federal Rules of Civil Procedure governs renewed
motions for judgment as a matter of law. Under Rule 50, the
court may allow judgment on the verdict, order a new trial,
or direct the entry of judgment as a matter of law.
Fed.R.Civ.P. 50(b)(1-3). The standard of review for granting
a Rule 50(b) motion is whether sufficient evidence exists to
support the jury verdict. A motion for judgment as a matter
of law should only be granted when “all the evidence
points one way and is susceptible of no reasonable inferences
sustaining the position of the nonmoving party.”
Washburn v. Kan. City Life Ins. Co., 831 F.2d 1404,
1407 (8th Cir. 1987) (citation omitted). In deciding a motion
for judgment as a matter of law, the court must view the
evidence in the light most favorable to the party who
prevailed before the jury, making all reasonable inferences
in that party's favor. Id. (citation omitted).
DPPA is silent on the issue of vicarious liability. No
Circuit Court has yet addressed whether vicarious liability
applies to DPPA claims. Although cases within this district
have reached differing conclusions on the issue, most hold
that the DPPA imposes vicarious liability upon municipalities
for the actions of their employees. See, e.g.,
Myers v. Aitkin Cty., No. 14-473, 2017 WL 1198536,
at *8 (D. Minn. Mar. 27, 2017) (holding vicarious liability
is available under the DPPA); Mallak v. City of
Brainerd, No. 13-2119, 2017 WL 440249, at *15 (D. Minn.
Feb. 1, 2017) (same); Karasov v. Caplan Law Firm,
No. 14-1503, 2016 WL 6836930, at *10 (D. Minn. Nov. 18, 2016)
(same); Rollins v. City of Albert Lea, No. 14-299,
2016 WL 6818940, at *12 (D. Minn. Nov. 17, 2016) (same);
Potocnik v. Carlson, No. 13-2093, 2016 WL 3919950,
*6 (D. Minn. July 15, 2016) (“In American law,
vicarious liability is the rule, not the exception, and the
Court can discern no reason why DPPA cases should be exempt
from the general rule.”); but see Jessen v. Blue
Earth Cty., No. 14-1065, 2014 WL 5106870, at *4 n.4 (D.
Minn. Oct. 10, 2014) (holding vicarious liability does not
apply to DPPA because statute's plain language requires
that defendant itself must have acted to be liable);
Weitgenant v. Patten, No. 14-255, 2016 WL 1449572,
at *7 (D. Minn. Apr. 12, 2016) (declining to apply vicarious
liability based on the circumstances of the case). At least
three district courts from other federal jurisdictions have
also held that the DPPA imposes vicarious liability upon
municipalities for the actions of their employees. See
Margan v. Niles, 250 F.Supp.2d 63, 72-76 (N.D.N.Y.
2003); Schierts v. City of Brookfield, 868 F.Supp.2d
818, 821-22 (E.D. Wis. 2012); Menghi v. Hart, 745
F.Supp.2d 89, 99 (E.D.N.Y. 2010).
determining that vicarious liability applies to
municipalities under the DPPA, courts recognize the general
principle that “[w]hen Congress creates a tort action,
it legislates against a legal background of ordinary
tort-related vicarious liability rules and consequently
intends its legislation to incorporate those rules.”
See Margan, 250 F.Supp.2d at 74 (quoting Meyer
v. Holley, 537 U.S. 280, 285 (2003)); Schierts,
868 F.Supp.2d at 822 (same). Under this principle,
traditional vicarious liability rules will be applied if they
are consistent with the federal statute's provisions and
Congress' intent. Jones v. Federated Fin'l
Reserve Corp., 144 F.3d 961, 965-66 (6th Cir. 1998).
tort-related vicarious liability rules include the doctrine
of apparent authority, which provides that a principal is
liable for the torts of its agents when the agents act with
apparent authority. Am. Soc'y of Mech. Eng'rs,
Inc. v. Hydrolevel Corp., 456 U.S. 556, 567 (1982). In
Hydrolevel, the Supreme Court applied the doctrine
of apparent authority to antitrust statutes after finding
that vicarious liability was consistent with Congress'
intent to encourage competition. Id. at 570-76. The
Supreme Court reasoned that if an organization is liable for
the antitrust violations of its agents acting with apparent
it is much more likely that similar antitrust violations will
not occur in the future. Pressure will be brought on the
organization to see that its agents abide by the law. Only
[the organization] can take systematic steps to make improper
conduct on the part of all its agents unlikely, and the
possibility of civil liability will inevitably be a powerful
incentive for [the organization] to take those steps.
Id. at 572-73 (internal quotations, citation, and
applying vicarious liability to municipalities under the DPPA
have similarly concluded that the municipalities are in the
best position to prevent DPPA violations by their employees,
and that the threat of vicarious liability encourages
municipalities to adopt appropriate policies, procedures, and
training to prevent the misuse of motor vehicle data. See
Mallak, 2017 WL 440249, at *17; Potocnik, 2016
WL 3919950, at *7; Margan, 250 F.Supp.2d at 74-75.
Moreover, “once a law-enforcement officer has exceeded
the broad bounds of the government-function exception [under
§ 2721(b)(1) of the DPPA], shielding his employer from
vicarious liability serves no purpose other than to weaken
the municipality's incentive to prevent future
violations.” Potocnik, 2016 WL 3919950, at *7.
Id. Thus, this Court holds vicarious liability may
apply to a municipality whose employees violate the DPPA.
City argues that it should not be held vicariously liable for
Pietrzak's unlawful accesses because he was acting
outside the scope of his employment. However, under the
federal rule of apparent authority, liability is premised on
the agent's position in facilitating the wrongdoing.
Hydrolevel Corp., 456 U.S. at 566. Thus, an agent
acting outside the scope of their employment will be liable
if the agent “was aided in accomplishing the tort by
the existence of the agency relation.” Restatement
(Second) of Agency § 219(2)(d) (1958). Here,
Pietrzak's position as the City's Chief of Police
facilitated the alleged wrongdoing because he had access to
the DVS Database as a result of his position. Trial Tr. Vol.
II [Docket No. 290] at 128:21-129:25. Therefore, vicarious
City insists that the policy argument for applying the
aided-in-agency relation theory to the DPPA-namely, that
entities will be motivated to perform routine monitoring and
training to ensure that private records are accessed only for
permissible purposes-is not met in this case because Orduno
was Pietrzak's supervisor at the time of Pietrzak's
improper accesses and failed to monitor his computer usage.
The City argues that Orduno should not be rewarded for
failing to discover Pietrzak's unlawful conduct. However,