United States District Court, D. Minnesota
Jeffrey M. Montpetit, Esq., Marcia K. Miller, Esq., and Susan
M. Holden, Esq., SiebenCarey, P.A.; and Lorenz F. Fett, Jr.,
Esq., Sonia L. Miller-Van Oort, Esq., Robin M. Wolpert, Esq.,
and Jonathan A. Strauss, Esq., Sapientia Law Group PLLC;
counsel for Plaintiff.
Scott Carter and George Norris Henry, Assistant City
Attorneys, Minneapolis City Attorney's Office, counsel
for Defendants City of Minneapolis and Heather Jorges.
Walther, Esq., and Erik Bal, Esq., Rice, Michels &
Walther, LLP, counsel for Defendants Minneapolis Park &
Recreation Board, Keith Rowland, and John Wurm.
E. Flynn, Esq., Jason M. Hill, Esq., Jardine Logan &
O'Brien PLLP, counsel for Defendant Matthew Olson.
REDACTED MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant City of
Minneapolis's Motion for Judgment on the Pleadings (Doc.
No. 446) and Plaintiff's Motion for Partial Summary
Judgment (Doc. No. 451). For the reasons set forth below, the
Court denies the motions. Also before the Court is
Plaintiff's appeal (Doc. No. 440) of Magistrate Judge
Tony N. Leung's August 9, 2017 Order addressing a number
of discovery motions (Doc. No. 430). Upon careful review, the
Court sustains Plaintiff's objection and respectfully
sets aside the Magistrate Judge's order to the extent it
precludes the parties from seeking attorney fees and costs in
connection with particular discovery motions.
case relates to the alleged unlawful access of Plaintiff Amy
Elizabeth Krekelberg's personal information by various
government entities and their employees. According to
Plaintiff, Defendants viewed her information-contained in the
Department of Vehicle Services' (“DVS”)
motor-vehicle records database for Minnesota drivers-in
violation of the Driver's Privacy Protection Act, 18
U.S.C. § 2721, et seq. (“DPPA”). A
prior order in this case, issued on November 7, 2014,
contains a summary of Krekelberg's factual allegations.
(Doc. No. 118.) The Court incorporates that summary by
reference. The specific procedural and factual background
relevant to each of the pending motions is detailed below.
City of Minneapolis's Motion for Judgment on the
December 17, 2013, Plaintiff filed the original Complaint in
this matter against numerous entity defendants as well as
individual officers identified as John and Jane Doe. (Doc.
No. 1 at 1-2.) Approximately eighteen months later,
June 16, 2015, Plaintiff filed an Amended Complaint naming
individual Doe defendants. (Doc. No. 137 at 1-6.) The Amended
Complaint alleged DPPA violations against all defendants,
including vicarious liability against entity defendants for
the actions of the individual defendants. (See Id.
August 19, 2016, the Court concluded that the claims against
numerous individual named defendants were barred by the
statute of limitations. (Doc. No. 246 at 13-18.) Thus, the
Court dismissed the claims against these defendants with
prejudice, and they were dismissed from the lawsuit. (See
Id. at 22-23.) Minneapolis now seeks judgment on the
pleadings, arguing that the dismissal of the claims against
these individual officers mandates dismissal of the
corresponding vicarious liability claims against Minneapolis.
(See Doc. Nos. 446, 448.)
may move for judgment on the pleadings at any point after the
close of the pleadings, so long as it moves early enough to
avoid a delay of trial. Fed.R.Civ.P. 12(c). “Judgment
on the pleadings is appropriate only when there is no dispute
as to any material facts and the moving party is entitled to
judgment as a matter of law[.]” See Ashley Cty. v.
Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (quoting
Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir.
2006)). The Court evaluates a motion for judgment on the
pleadings under the same standard as a motion brought under
Federal Rule of Civil Procedure 12(b)(6). See id.
deciding a motion to dismiss under 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).
survive a motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (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 Supreme Court 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, 678 (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.
Minneapolis's Vicarious Liability for Time-Barred
argues that the prior dismissal of Plaintiff's claims
against individual Minneapolis officers on
statute-of-limitations grounds bars Plaintiff's vicarious
liability claims against Minneapolis based on those
officers' lookups. Because these officers have been
dismissed from the action with prejudice, Minneapolis argues,
the Court should hold as a matter of law that the
corresponding vicarious liability claims against Minneapolis
based on those officers' conduct are barred. Minneapolis
emphasizes that Plaintiff must establish the underlying
liability of these officers under the DPPA in order to assert
successful vicarious liability claims against Minneapolis.
However, Minneapolis contends, Plaintiff cannot establish
these officers' liability because a
statute-of-limitations dismissal operates as an adjudication
on the merits of Plaintiff's claims under the federal
common law as well as the Federal Rules of Civil Procedure.
As a result, Minneapolis suggests, this dismissal has a
preclusive effect as to subsequent claims. Minneapolis argues
that the case law reaching a different conclusion is either
distinguishable or wrong. Further, Minneapolis asserts that
policy considerations weigh against imposing vicarious
liability based on these time-barred claims.
on the other hand, argues that the statute-of-limitations
dismissal of the individual officers does not exonerate
Minneapolis for these officers' conduct. As a preliminary
matter, Plaintiff contends that a motion seeking judgment on
the pleadings should only address the pleadings. In her
complaint, Plaintiff contends, she has adequately pled
Minneapolis's vicarious liability for its officers'
actions. In addition, Plaintiff suggests that the majority of
courts hold that a dismissal on statute-of-limitations
grounds does not eliminate the liability of the principal.
According to Plaintiff, the cases cited by Defendant holding
otherwise are not persuasive. Plaintiff also disputes
Defendant's suggestion that res judicata or collateral
estoppel have any application here because the claims at
issue are not identical, and the court did not address the
underlying facts relating to the officers' liability.
Relatedly, Plaintiff emphasizes that a statute-of-limitations
defense is personal to the individual and notes that
Plaintiff could have sued Minneapolis alone for vicarious
liability without even adding the individual officers as
Defendants. Finally, Plaintiff argues that policy
considerations support imposing vicarious liability against
Minneapolis for its officers' conduct.
has identified caselaw out of seven jurisdictions which holds
that a statute-of-limitations dismissal of an agent bars the
imposition of vicarious liability against the principal.
See Preis v. Lexington Ins. Co., 508 F.Supp.2d 1061,
1078 (S.D. Ala. 2007), aff'd, 279 Fed.Appx. 940
(11th Cir. 2008); Al-Shimmari v. Detroit Med. Ctr.,
731 N.W.2d 29, 36-38 (Mich. 2007); Stephens v.
Petrino, 86 S.W.3d 836, 843 (Ark. 2002); Buettner v.
Cellular One, Inc., 700 So.2d 48, 48-49 (Fla. Dist. Ct.
App. 1997); Greco v. Univ. of Del., 619 A.2d 900,
903-04 (Del. 1993); Karaduman v. Newsday, Inc., 416
N.E.2d 557, 563 (N.Y. 1980); Kapitan v. DT Chicagoland
Express Inc., Civ. No. 2:12-321, 2013 WL 5655704, at
*2-4 (N.D. Ind. Oct. 15, 2013). Minneapolis also cites
Brown v. Garlich Printing Co., Civ. No. 4:07CV1668,
2008 WL 942861 (E.D. Mo. Apr. 7, 2008), which holds that
“[d]ismissal for failure to comply with the statute of
limitations operates as an adjudication on the merits,
” thereby rendering some support to Minneapolis's
argument here. See Id. at *2.
cases cited by Minneapolis, the Michigan Supreme Court's
Al-Shimmari decision contains the most thorough
discussion of the issue presented and follows the reasoning
advanced by Minneapolis here. See Al-Shimmari, 731
N.W.2d at 36-38. Specifically, the court focused on the fact
that the dismissal of the plaintiff's claims against the
agent based on the statute of limitations “operate[d]
as an adjudication on the merits” under the relevant
rule of procedure, precluding an underlying finding of
negligence to support vicarious liability against the
remaining defendant principals. Id. at 37 (quoting
MCR 2.504(B)(3)). Other courts have applied similar reasoning
to reach this outcome. See Buettner, 700 So.2d at
48-49; Greco, 619 A.2d at 903-04.
contrast, Plaintiff has identified four jurisdictions that
permit vicarious liability claims to proceed even if the
claim against the agent is barred by the statute of
limitations. See Stanley ex rel. Estate of Hale v.
Trinchard, 579 F.3d 515, 520-21 (5th Cir. 2009)
(applying Louisiana law); Juarez v. Nelson,
2003-NMCA-011, ¶¶ 26-29, 61 P.3d 877, 886-87,
overruled on other grounds by Tomlinson v. George,
2005-NMSC-020, 116 P.3d 105; Cohen v. Alliant Enters.,
Inc., 60 S.W.3d 536, 537-39 (Ky. 2001); Leow v. A
& B Freight Line, Inc., 676 N.E.2d 1284, 1285-89
(Ill. 1997). Plaintiff also relies on decisions out of the
Eighth Circuit which appear to support permitting vicarious
liability in analogous circumstances. See Byrd v. J Rayl
Transp., Inc., 106 F.Supp.3d 999, 1001-02 (D. Minn.
2015); Gronseth v. Chester Rural Fire Prot. Dist.,
Civ. No. 07-4163, 2009 WL 983130, at *2-5 (D.S.D. Apr. 9,
the circumstances of this case, the Court will permit the
vicarious liability claims against Minneapolis to proceed.
Both parties acknowledge that there is no binding precedent
on this issue, and after reviewing competing authorities, the
Court is persuaded that Minneapolis should not be permitted
to avoid liability for three reasons.
the Court is persuaded that there is a meaningful distinction
between a dismissal that actually confronts the merits of the
agent's liability and a dismissal for some other purely
procedural or tactical reason. This distinction is relevant
because, as numerous courts have acknowledged, vicarious
liability is based on the underlying conduct of the
agent. Where an agent has been dismissed for reasons that do
not address the actual merits of the plaintiff's claim,
the agent's liability may still be established in the
agent's absence. As explained in the Byrd
All [plaintiff] must do in order to recover from [the
principal] is establish that [the agent] was negligent; he
need not proceed directly against [the agent], and hence it
makes no difference whether a claim against [the agent] would
be barred by the [relevant] statute of limitations or could
not be brought in [the forum state] for jurisdictional
Byrd, 106 F.Supp.3d at 1002; see also 2A
C.J.S. Agency § 463 (June 2018 Update)
(“[I]t is essential that the tort liability of the
agent be established, but the fact that an agent is able to
escape liability because the statute of limitations has run
as to the agent will not necessarily insulate the principal
from vicarious liability.”). Courts in multiple
jurisdictions have applied similar reasoning. See
Cohen, 60 S.W.3d at 538 (“It is the negligence of
the servant that is imputed to the master, not the
liability.”); Women First OB/GYN Assocs., L.L.C. v.
Harris, 161 A.3d 28, 30, 45 (Md. Ct. Spec. App. 2017)
(permitting vicarious liability notwithstanding the
agent's voluntary dismissal, in part because “the
merits of the tort claim against the agent have not actually
been adjudicated before the dismissal”);
Juarez, 2003-NMCA-011, ¶ 28, 61 P.3d at 886
(“‘[E]xoneration of the servant' commonly is
understood to mean acquittal of the employee or agent
following a trial on the merits.”); Gallegos v.
City of Monte Vista, 976 P.2d 299, 301 (Colo.App. 1998)
(“[A]lthough a finding that an employee is not
negligent requires a finding that the employer is not legally
responsible, an action may proceed against an employer if the
claim against the employee has been dismissed or barred, not
on the merits of the claim, but on procedural
Hughes v. Doe, 639 S.E.2d 302 (Va. 2007), the
Supreme Court of Virginia addressed markedly similar
circumstances to this case. Specifically, plaintiff filed a
complaint against a medical facility and its employee,
identified as “Jane Doe” in the original
complaint. Id. at 303. The plaintiff moved to amend
her complaint to name the employee once she learned her
identity, but the trial court ultimately dismissed the
employee from the action with prejudice based on the statute
of limitations. Id. The lower court determined that
the medical facility could not be held vicariously liable for
the dismissed employee's conduct, but the Supreme Court
of Virginia reversed, emphasizing “the fact that the
crux of respondeat superior liability is a finding that the
employee was negligent.” Id. at 303-04. It
explained that the lower court's dismissal order
“was not a holding on the merits of [the agent's]
alleged negligence and therefore neither exonerated [the
medical facility] nor otherwise precluded [the plaintiff]
from pursuing her claim against [the medical facility] for
[the agent's] negligence on a theory of respondeat
superior.” Id. at 304. The Court agrees with
these cases that a dismissal based on the statute of
limitations should not operate to preclude vicarious
liability because it does not actually address if the
agent's conduct supports an actionable claim.
the Court is not persuaded that principles of res judicata
and collateral estoppel control the issue before the Court.
In particular, the Court finds the reasoning of the United
States District Court for the District of South Dakota in
Gronseth to be persuasive on this issue.
Gronseth involved a vehicle accident between
plaintiff and a volunteer firefighter, Bauman, employed by
defendants Chester Rural Fire Protection District and Chester
Fire Department (“Chester Fire”).
Gronseth, 2009 WL 983130, at *1. The plaintiff's
lawsuit included a claim of negligence against Bauman and
alleged vicarious liability against Chester Fire.
Id. The parties agreed to voluntarily dismiss
Bauman, and the district court entered a dismissal
“with prejudice and on the merits.” Id.
As Minneapolis argues here, Chester Fire argued that the
vicarious liability claim was subject to dismissal because
Bauman had been dismissed. Id. The district court
acknowledged the basic premise “that, generally, a
voluntary dismissal with prejudice constitutes a final
judgment on the merits for purposes of res judicata.”
Id. at *3. However, the court declined to hold that
Bauman's dismissal precluded the plaintiff's
vicarious liability claim against Chester Fire. Id.
on Eighth Circuit precedent discussing res judicata and
collateral estoppel principles, the court determined that
“the intent of the parties, no consideration, and the
lack of any actual adjudication” made it improper to
dispose of the plaintiff's vicarious liability claim.
Id. at *3-4. In particular, the court noted the
Eighth Circuit's recognition “that both res
judicata and collateral estoppel ‘are premised on a
finding that there has been an adjudication on the
merits in a prior proceeding.'” Id.
at *3 (quoting Gall v. S. Branch Nat'l Bank of
S.D., 783 F.2d 125, 127 (8th Cir. 1986) (emphasis in
original)). In addition, the court pointed to the Eighth
Circuit's determination that collateral estoppel
“is appropriate only if ‘it is clearly shown that
the parties intended to foreclose a particular issue in
future litigation.'” See Id. at *4
(quoting United States v. Brekke, 97 F.3d 1043, 1049
(8th Cir. 1996)). The Court finds that these governing
principles are relevant and the reasoning in
Gronseth is persuasive here. Because there has been
no actual adjudication of liability with respect to the
individual officers' conduct and because the parties did
not clearly contemplate that the statute-of-limitations
dismissals of the individual officers would preclude
Minneapolis's vicarious liability, the Court declines to
apply principles of res judicata or collateral estoppel to
bar Plaintiff's vicarious liability claims in this
the Court rejects the notion that Federal Rule of Civil
Procedure 41(b) easily disposes of the issue as Minneapolis
suggests. This rule provides that “[u]nless the
dismissal order states otherwise, a dismissal under this
subdivision (b) [addressing involuntary dismissals] and any
dismissal not under this rule-except for one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19-operates as an adjudication on the
merits.” Fed.R.Civ.P. 41(b). Likewise, as Minneapolis
points out, “the federal rule is that ‘the rules
of finality . . . treat a dismissal on statute-of-limitations
grounds the same way they treat a dismissal for failure to
state a claim, for failure to prove substantive liability, or
for failure to prosecute: as a judgment on the
merits.'” Manalo v. Wyeth, Civ. No.
07-4557, 2008 WL 2705495, at *3 n.4 (D. Minn. July 9, 2008)
(quoting Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 228 (1995)). However, the fact that Plaintiff's
claims against the individual officers have been dismissed
“on the merits” as to the individual officers
does not plainly establish that Minneapolis cannot now be
held liable for their alleged unlawful conduct.
courts addressing similar circumstances have rejected the
notion that an “on-the-merits” dismissal of an
agent plainly disposed of the corresponding vicarious
liability claim against the principal. See, e.g.,
Gronseth, 2009 WL 983130, at *3-5. In Leow,
for example, the Supreme Court of Illinois recognized
Illinois Supreme Court Rule 273 which is analogous to Federal
Rule of Civil Procedure 41(b) as well as an Illinois case
establishing “that the dismissal of a claim on statute
of limitation grounds operate[s] as an adjudication on the
merits.” See Leow, 676 N.E.2d at 1287.
However, the court rejected the defendant's argument that
this rule precluded vicarious liability against the principal
following a statute-of-limitations dismissal of the agent.
See Id. at 1286-89. It explained that “[w]here
a different defendant is involved, . . . Rule 273 cannot be
applied mechanically, because doing so would yield absurd and
unjust results.” Id. at 1287-88. Ultimately,
the court determined “that the policy behind Rule 273,
and its model, Federal Rule 41(b), would not be furthered by
treating an ...