Submitted: March 15, 2018
from United States District Court for the District of
Minnesota - Minneapolis
GRUENDER, MURPHY, and KELLY, Circuit Judges. 
GRUENDER, Circuit Judge.
Loeffler filed a complaint in July 2013 alleging that
numerous city, county, individual, and Doe
defendants-including the City of Duluth and "a female
officer to be later named, acting in her individual capacity
as a law-enforcement officer for the City of
Duluth"-violated the Driver's Privacy Protection Act
("DPPA"), 18 U.S.C. §§ 2721-25, by
unlawfully accessing her personal information from 2003 to
2012. After reviewing the magistrate judge's report and
recommendation, the district court dismissed all named
defendants under Federal Rule of Civil Procedure 12(b)(6).
Because the female officer had not been named or served, the
district court declined to address any claims against her.
confirming that the unnamed officer was Rebecca Kopp,
Loeffler amended her complaint on March 3, 2016 and named
Kopp. However, adopting another report and recommendation
from the magistrate judge, the district court dismissed the
claims against Kopp as barred by the four-year statute of
limitations. See 28 U.S.C. § 1658(a);
McDonough v. Anoka Cty., 799 F.3d 931, 943 (8th Cir.
2015) (concluding that the statute of limitations for the
DPPA begins to run when the violation occurs). Loeffler now
appeals the dismissal of her claims against Kopp and Duluth.
We review the grant of a motion to dismiss de novo,
accepting as true all factual allegations in the complaint
and drawing all reasonable inferences in favor of the
nonmoving party. McDonough, 799 F.3d at 945.
the district court properly dismissed Loeffler's claim
against Kopp as untimely under the applicable statute of
limitations. Loeffler argues that, under Federal Rule of
Civil Procedure 15(c), her amended complaint naming Kopp
relates back to her original complaint referring to the
unnamed female officer, bringing it within the statute of
limitations. Under Rule 15(c)(1)(C)(ii), an amendment to a
pleading relates back to the original pleading when, among
other requirements, the party brought in by the amendment
"knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party's identity." As Loeffler conceded at
oral argument, however, we recently concluded that naming a
Jane Doe defendant does not relate back under Rule 15(c)
because "it was an intentional misidentification, not an
unintentional error, inadvertent wrong action, or
'mistake.'" See Heglund v. Aitkin Cty.,
871 F.3d 572, 580 (8th Cir. 2017), cert. denied, 138
S.Ct. 749 (2018). The district court also correctly concluded
that there were no "exceptional circumstances"
warranting equitable tolling given Loeffler's strong
suspicion as to Kopp's identity at the time she filed her
original complaint. See Firstcom, Inc. v. Qwest
Corp., 555 F.3d 669, 675 (8th Cir. 2009). Loeffler
identified Kopp by name in letters sent to Duluth officials
before she filed her original complaint. Thus, Loeffler's
claim against Kopp was barred by the four-year statute of
Loeffler argues that Duluth is itself directly liable for
improperly disclosing her information. To establish a claim
against the city under the DPPA, Loeffler must show that
Duluth "1) knowingly 2) obtained, disclosed, or used
personal information, 3) from a motor vehicle record, 4) for
a purpose not permitted." See McDonough, 799
F.3d at 945. Loeffler claims that Duluth violated the DPPA by
disclosing the information to Kopp without verifying that she
sought it for a permissible purpose. Cf. Gordon v.
Softech Int'l, Inc., 726 F.3d 42, 53 (2d Cir. 2013)
(imposing a duty of reasonable care on resellers who disclose
personal information protected by the DPPA). However,
Loeffler failed to plead sufficient facts supporting an
inference that Duluth knowingly allowed Kopp to access the
database for any reason other than performing her
law-enforcement duties, a purpose permitted by the DPPA.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007) (explaining that a complaint must plead "enough
facts to state a claim to relief that is plausible on its
face"). We therefore conclude that Loeffler failed to
state a claim for direct municipal liability against Duluth.
See, e.g., Roth v. Guzman, 650 F.3d 603,
611 (6th Cir. 2011); Weitgenant v. Patten, Civil No.
14-255 ADM/FLN, 2016 WL 1449572, at *4 (D. Minn. Apr. 12,
2016) ("To violate the DPPA, a defendant itself must
have acted with an impermissible purpose; it is not enough
that the defendant discloses information to one who
subsequently uses it for an impermissible purpose.").
counters that Duluth is nonetheless liable because it
employed Kopp, who allegedly accessed her information for
improper purposes. Although Loeffler frames this argument-at
least in part-as a direct municipal liability claim, it is in
fact an argument for vicarious liability. See Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978)
(distinguishing vicarious liability and municipal liability).
According to Duluth, Loeffler failed to raise this claim
below. In response, Loeffler maintains that she did plead
vicarious liability in her complaint but admits that she
otherwise did not make that argument before the district
court. Because Loeffler has not suggested that this is a case
where either "the proper resolution is beyond any
doubt" or "where injustice might otherwise
result," we conclude that she did not preserve any
vicarious liability claim and decline to take it up for the
first time on appeal. See Lynch v. Nat'l Prescription
Adm'rs, Inc., 787 F.3d 868, 874 (8th Cir. 2015).
these reasons, we affirm the district court's judgment.
This opinion is being filed by Judge
Gruender and Judge Kelly pursuant to 8th Cir. R. 47E.
The Honorable Michael J. Davis, United
States District Judge for the District of Minnesota, adopting
in part the report and recommendation of the Honorable Tony
N. Leung, United States Magistrate ...