ROBIN L. ROSENBERG, District Judge.
Summary judgment is granted for the City as to Plaintiff's claim for negligent supervision (Count III), as Plaintiff admits there is insufficient evidence to support this claim. Summary judgment is also granted for the City as to Plaintiff's Driver's Privacy Protection Act ("DPPA") claim (Count I), insofar as that claim is based on the DPPA violations by Peter Chunn and Edward Glaser. Plaintiff has failed to adduce evidence that Chunn and Glaser were acting with a purpose to serve the City and therefore within the scope of their employment. However, the City's motion for summary judgment is denied as to Plaintiff's DPPA claim, insofar as that claim is based on the DPPA violation by Michael Connor.
Plaintiff's First Amended Complaint generally alleges that after Plaintiff, a Florida Highway Patrol trooper, pulled over and ticketed several police officers, she was harassed and threatened by fellow law enforcement officers.
The City has moved for summary judgment on Counts I and III. See DE 32. In response, Plaintiff admits that she "has not been able to adduce sufficient evidence to prove her claim against the City for common law negligent supervision in Count III," and states that she "withdraws that claim against the City." DE 44 at 6. Accordingly, summary judgment is entered for the City as to Count III.
Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for summary judgment; rather, "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if "a reasonable trier of fact could return judgment for the non-moving party." Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S. at 247-48). A fact is material if "it would affect the outcome of the suit under the governing law." Id. (citing Anderson, 477 U.S. at 247-48).
In deciding a summary judgment motion, the Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon discovering a genuine dispute of material fact, the Court must deny summary judgment. Id.
The moving party bears the initial burden of showing the absence of a genuine dispute of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the moving party satisfies this burden, "the nonmoving party `must do more than simply show that there is some metaphysical doubt as to the material facts.'" Ray v. Equifax Info. Servs., LLC, 327 F. App'x 819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, "[t]he non-moving party must make a sufficient showing on each essential element of the case for which he has the burden of proof." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving party must produce evidence, going beyond the pleadings, to show that a reasonable jury could find in favor of that party. See Shiver, 549 F.3d at 1343.
In their statements of material facts, see DE 32 and 44, the parties agree that the following facts are undisputed:
1. Plaintiff was a Florida Highway Patrol Trooper.
2. Connor, Glaser, and Chunn were employees of the City and are sued in their individual capacity.
3. On August 5, 2011, the Plaintiff pulled over a City of Coral Gables police officer for speeding.
4. On September 19, 2011, the Plaintiff appeared in a Broward County Court to prosecute a speeding ticket against a Miami Beach police officer, and the courtroom was full of police officers (none were officers employed by the City), and the next date Plaintiff was berated on a website (not by any City officers).
5. On October 11, 2011, the Plaintiff pulled over a Miami police officer for speeding.
6. Subsequently, Plaintiff was threatened online, threatened when she needed backup from another Florida Highway Patrol trooper, and received hang-up phone calls and unwanted pizza orders. Suspicious vehicles also stopped by her house.
7. On November 5, 2011 at 6:52 a.m. former Defendant Chunn did one DAVID search of the Plaintiff and viewed two pages (driver's license summary and photograph).
8. On November 5, 2011, at 11:51 p.m. Defendant Glaser did one DAVID search of the Plaintiff and viewed three pages (driver's license photograph, summary and transcript).
9. On November 12, 1011, at 12:55 a.m., Defendant Connor did one DAVID search of the Plaintiff and viewed two pages (driver's license photograph and summary).
10. Chunn, Connor, and Glaser used their City email account and City computers to access Plaintiff's information from DAVID. Connor accessed Plaintiff's information via DAVID while using a City computer in his patrol car.
11. After an internal investigation, it was determined that Chunn, Glaser, and Connor improperly conducted an authorized search of Plaintiff, they were not conducting a law enforcement investigation, there was no legitimate law enforcement purpose, and they violated City rules and regulations for misuse of department communication facilities, and improper computer use/access of files.
The City argues that it is entitled to summary judgment on Count III because Plaintiff has not produced sufficient evidence to hold it vicariously liable for the DPPA violations committed by Chunn, Glaser, and Connor. The DPPA establishes a cause of action against "[a] person who knowingly obtains, discloses, or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter" by "the individual to whom the information pertains[.]" 18 U.S.C. § 2724(a); see also 18 U.S.C. § 2721(b)(1) (establishing permissible uses for such information). Federal courts have held that the DPPA implicitly recognizes a respondeat superior theory of liability against municipalities. See Watts v. City of Hollywood, Florida, ___ F. Supp. 3d ___, No. 15-61123-CIV, 2015 WL 7709671, at *6-7 (S.D. Fla. Nov. 17, 2015); see also Margan v. Niles, 250 F.Supp.2d 63, 75 (N.D.N.Y. 2003).
In Santarlas v. Minner, No. 5:15-CV-103-OC-30PRL, 2015 WL 3852981, at *4 (M.D. Fla. June 22, 2015) ("Santarlas I"), the court addressed the standard to be applied in determining vicarious liability under the DPPA:
Id. at *4 (emphasis added). In a later order, the same court held:
Santarlas v. Minner, No. 5:15-CV-103-OC-30PRL, 2015 WL 5896243, at *2 (M.D. Fla. Oct. 7, 2015) ("Santarlas II") (emphasis added); see also Watts, 2015 WL 7709671, at *6-7 (applying same test).
The City raises three arguments as to why Connor, Glaser, and Chunn were not acting within the scope of their employment. First, it argues that it is entitled to summary judgment on Count I because "[t]here is no allegation that accessing driver's [sic] personal information for reasons not permitted under the DPPA is the type of conduct for which Connor or Glaser were hired to perform." DE 32 at 8 (emphasis added). Courts have rejected this argument under "the common-sense idea [that] municipal employees would not be hired to do something illegal, nor would their illegal acts presumptively be in furtherance of their employer's interests." Watts, 2015 WL 7709671, at *6. Simply because an employee's act was illegal does not mean that the act falls outside the scope of their employment. This reasoning "would open a huge gap in respondeat superior liability, if not eviscerate it." Id.; see also Grider v. City of Auburg, Ala., 618 F.3d 1240, 1261 (11th Cir. 2010) ("[T]he question of whether a defendant acted within the scope of his employment is distinct from whether the defendant acted unconstitutionally. The scope-of-employment inquiry is whether the employee police officer was performing a function that, but for the alleged constitutional infirmity, was within the ambit of the officer's scope of authority (i.e., job-related duties) and in furtherance of the employer's business."). Accordingly, this argument is without merit.
Second, the City argues that "there is no record evidence as to how accessing Plaintiff's information serves the City or furthers the alleged interests of the City," and there is no evidence that Defendants Connor or Glaser "accessed Plaintiff's information due to a motivation to serve" the City. DE 32 at 8-9. Plaintiff offers two responses to the City's argument that Connor and Glaser's DPPA violations did not further the City's interests.
Plaintiff responds that "[a]n exception may exist where the tortfeasor was assisted in accomplishing the tort by virtue of the employer/employee relationship." DE 44 at 4 (citing Iglesia Cristiana La Cases Del Senor, Inc. v. L.M., 783 So.2d 353, 357 (Fla. Dist. Ct. App. 2001) and Nazareth v. Herndon Ambulance Serv., Inc., 467 So.2d 1076, 1078 (Fla. Dist. Ct. App. 1985)). Plaintiff argues that because Connor and Glaser "used their employer/employee relationship to access [Plaintiff's] information via the City's computers, their employment email accounts, and their access to DAVID by virtue of their employment relationship with the City," this "obviat[es] the need for motivation to further the City's interests." DE 44 at 5.
Plaintiff misinterprets the "exception" language from Iglesia and Nazareth. These cases considered whether a victim of sexual assault could sue the employer of the assailant under a theory of respondeat superior. The courts noted that, while generally assaults and batteries by employees are held to be outside the scope of their employment, and therefore insufficient to impose vicarious liability, an exception may exist where the tortfeaser was assisted in accomplishing the sexual assault or battery by virtue of the employer/employee relationship. See Iglesia, 783 So. 2d at 357; Nazareth, 467 So. 2d at 1078; see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 756 (1998) ("In applying scope of employment principles to intentional torts, however, it is accepted that `it is less likely that a willful tort will properly be held to be in the course of employment and that the liability of the master for such torts will naturally be more limited.' F. Mechem, Outlines of the Law of Agency § 394, p. 266 (P. Mechem 4th ed. 1952)."). These cases are therefore distinguishable from the present case, which does not involve an intentional tort of this type.
Moreover, district courts have rejected similar arguments by DPPA plaintiffs, holding, "[T]he mere fact that the individual defendants had access to DAVID through their employment with the City is insufficient to establish that the conduct was actuated by a purpose to serve the employer." Santarlas II, 2015 WL 5896243, at *2; see also Watts v. City of Hollywood, Florida, ___ F. Supp. 3d ___, No. 15-61123-CIV, 2015 WL 7709671, at *7 (S.D. Fla. Nov. 17, 2015) ("Like the plaintiff in Santarlas II, Watts seems to attribute to Wadsworth a motive to serve the City merely because Wadsworth had access to DAVID through his employment with the City. . . . This overly broad argument fails, as it did in Santarlas II, because it does not account for the obvious possibility an employee could use an employer's resources for entirely personal reasons.").
Additionally, Plaintiff responds that Connor's access of Plaintiff's information did further the City's interests, based on his deposition testimony. See DE 44 at 5-6. The Court notes that Plaintiff makes no argument that Glaser or Chunn acted with a purpose to serve the City. Both testified that they accessed Plaintiff's DAVID record out of personal curiosity to see if they knew her, after hearing news reports about the traffic stops described supra. See DE 45-5 at 3-4 (Chunn Deposition); DE 45-6 at 4 (Glaser Deposition). The Court finds that Glaser and Chunn were not acting within the scope of their employment when they accessed the DAVID records; the City therefore cannot be held vicariously liable for their DPPA violations.
With regard to Defendant Connor, Connor testified that he had seen a video of one of the traffic stops that Plaintiff conducted that allegedly led to the harassment described supra, and in that video Plaintiff had ordered a uniformed officer out of his marked patrol car at gun point. See DE 45-4 at 4. He testified that he accessed Plaintiff's DAVID records in order to see more clearly what Plaintiff looked like so that, in the event she was working in Defendant Connor's area and pulled out her firearm, he would be less likely to shoot her or escalate the situation in a way that could endanger her, himself, or fellow officers:
Id. at 4-7 (emphasis added).
Plaintiff argues, "Connor admits that his conclusions derived from his accessing of [Plaintiff's] restricted information from DAVID would be used to further the interest of the City by enhancing the safety of him and all other City officers." DE 44 at 6. The Court finds that this testimony raises a question of fact as to whether Connor was motivated by a purpose to serve the City by improving officer safety and his performance as a police officer. Cf. McCrae v. Broward Sheriff's Office, No. 15-61927-CIV, 2016 WL 1055093, at *6 (S.D. Fla. Mar. 15, 2016) ("Plaintiff has alleged facts sufficient to show that the information retrievals were for an impermissible purpose, but within the scope of employment and in furtherance of the City's or BSO's interests, that is, the desire to be a better-prepared witness."). "[W]here there is a `relationship between the employee's wrong and the employer's interests,' the scope of employment question is one of fact and is properly submitted to the fact-finder." Andersen v. United States, No. 09-60364-CIV-GOLD, 2009 WL 6633307, at *5 (S.D. Fla. Oct. 21, 2009); see also Santarlas I, 2015 WL 3852981, at *4 ("An employee is acting within the scope of his or her employment when the `employee's purpose, however misguided, is wholly or in part to further the master's business.'") (emphasis added). Accordingly, the City's motion for summary judgment is denied, insofar as Plaintiff's DPPA claim against the City rests on the DPPA violation of Defendant Connor.
Accordingly, it is hereby
1. The City's Motion for Summary Judgment [DE 32] is
2. The City's Motion for Summary Judgment [DE 32] is
3. The City's Motion for Summary Judgment [DE 32] is
