SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Defendants Chisago County, Pine County, Jay Belisle, Blake Fjosne, and Rebecca Lawrence's Motion to Dismiss [Doc. No. 106]; Defendant Dan Vosika's Motion to Dismiss [Doc. No. 121]; and Defendant Millicent Tompa's
Plaintiff Anne Marie Rasmusson ("Plaintiff") initially filed this action on March 12, 2012. (See Compl. [Doc. No. 1].) On March 15, 2013, Plaintiff filed a First Amended Complaint (Third Revision) ("Amended Complaint") in which she added new parties, including Defendants Chisago County, Pine County, Jay Belisle, Blake Fjosne, Rebecca Lawrence, Dan Vosika (collectively, the "County Defendants"), and Millicent Tompa. (First Amended Complaint (Third Revision) ("Am. Compl.") ¶¶ 5-11, 13 [Doc. No. 90].) In Count I of her Amended Complaint, Plaintiff asserts a claim under the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. § 2721 et seq., against all defendants. (Id. ¶¶ 95-112.) In Counts II and III, Plaintiff brings claims under 42 U.S.C. § 1983 against the individual defendants and the entity and supervisor defendants, respectively. (Id. ¶¶ 113-49.) And, in Count IV, Plaintiff asserts a claim for common law invasion of privacy against all defendants. (Id. ¶¶ 150-55.)
Plaintiff's claims are centered on allegations that law enforcement personnel viewed her private driver's license information in the Minnesota Department of
Entity Individual Date Number of defendant accessed times accessed Chisago County Jay Belisle 02/04/06 3 02/08/06 2 02/23/06 1 04/13/06 1 Pine County Blake Fjosne 04/11/11 1 Rebecca Lawrence 07/11/06 1 Dan Vosika 11/16/06 2 11/22/06 1 12/07/06 1 Federal Bureau of Investigation Millicent Tompa 06/15/06 1 04/17/07 1
(Id. ¶ 53 & Ex. A.)
Plaintiff describes the driver's license information at issue in three paragraphs in her Amended Complaint. First, she alleges that the law enforcement officers accessed her "private personal and highly-restricted personal information from her State-issued driver's license including her home address, color photograph or image, and driver identification number." (Id. ¶ 35.) Later, she states that she "provided personal information to the DPS including her address, color photograph, date of birth, weight, height and eye color for the purpose of acquiring and utilizing a State of Minnesota driver's license." (Id. ¶ 96.) She also asserts that the DPS database included her driving record. (Id. ¶ 97.)
Defendants Pine County, Chisago County, Belisle, Fjosne, and Lawrence filed a partial motion to dismiss Plaintiff's Amended Complaint [Doc. No. 106] and a supporting memorandum [Doc. No. 108]. Defendant Vosika later joined in the motion [Doc. No. 121]. The County Defendants argue that the majority of Plaintiff's claims are barred by the applicable statutes of limitations, (see Defs. Pine County, Chisago County, Belisle, Fjosne, and Lawrence's Mem. of Law in Supp. of Partial Mot. to Dismiss ("County Defs.' Supp. Mem.") at 5-17 [Doc. No. 108]); DPPA violations are not actionable through § 1983, (see id. at 17-19); the facts do not state the existence of an actionable violation
In addition, Defendant Tompa filed a motion to dismiss or for judgment on the pleadings [Doc. No. 97] and a supporting memorandum
Defendants move to dismiss Plaintiff's Amended Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. Defendant Tompa also moves for judgment on the pleadings pursuant to Rule 12(c). When evaluating a motion to dismiss, the Court assumes the facts in the Complaint to be true and construes all reasonable inferences from those facts in the light most favorable to Plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). However, the 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 Plaintiff draws from the facts pled. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). In addition, the Court ordinarily does not consider matters outside the pleadings on a motion to dismiss. See Fed.R.Civ.P. 12(d). The Court may, however, consider exhibits attached
To 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 1955. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," will not pass muster. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). 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, 127 S.Ct. 1955. These same standards apply to a motion for judgment on the pleadings. Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir.2009); Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir.2012).
Plaintiff has failed to state a cognizable claim for relief in Counts II through IV of her Amended Complaint, and the applicable statute of limitations bars most of the claims asserted against the County Defendants and Defendant Tompa in Count I. The Court will address the claims in that order.
Counts II and III of Plaintiff's Amended Complaint state causes of action under 42 U.S.C. § 1983. (Am. Compl. ¶¶ 113-49 [Doc. No. 90].) Section 1983 provides that:
In Count II, Plaintiff alleges that the individual defendants in this lawsuit, acting under color of state law, violated her statutory rights under the DPPA, her constitutional rights under the Fourth and Fourteenth Amendments, and her rights under the laws of the State of Minnesota. (See Am. Compl. ¶¶ 115-22.) In Count III, Plaintiff alleges that the entity and supervisor defendants are liable for the individual defendants' custom and practice of improperly accessing information; their own failure to monitor and enforce the rules; and their failure to train, supervise, and impose proper discipline. (See id. ¶¶ 130-36.)
Plaintiff's § 1983 claims fail to the extent that they are based on alleged violations of the DPPA. As noted above, a plaintiff may generally use § 1983 to enforce federal statutory rights. In order to determine "whether a statute creates an individually enforceable federal right," a plaintiff must demonstrate that "`(1) Congress intended the statutory provision to benefit the plaintiff; (2) the asserted right is not so vague and amorphous that its enforcement would strain judicial competence; and (3) the provision clearly imposes a mandatory obligation upon the states.'" Midwest Foster Care & Adoption Ass'n v. Kincade, 712 F.3d 1190, 1195 (8th Cir.2013) (citation omitted). A statute that meets these criteria is presumed to be enforceable under § 1983. Id. at 1195-96 (citing Blessing v. Freestone, 520 U.S. 329, 341, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). However, "[a defendant] can rebut this presumption by showing either that Congress explicitly foreclosed a remedy under § 1983 or implicitly did so, `by creating a comprehensive enforcement scheme that is incompatible with individual enforcement'" under § 1983. Id. at 1196 (quoting Blessing, 520 U.S. at 341, 117 S.Ct. 1353); see Alsbrook v. City of Maumelle, 184 F.3d 999, 1011 (8th Cir.1999) ("Courts should presume that Congress intended that the enforcement mechanism provided in the statute be exclusive.").
According to the U.S. Supreme Court, in the cases in which it has held that a § 1983 claim is available for violation of a federal statute, the federal statute provided no private judicial remedy. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005) (citations omitted). However, "the existence of a more restrictive private remedy for statutory violations has been the dividing line between those cases in which [the Court has] held that an action would lie under § 1983 and those in which [the Court has] held that it would not." Id. For example, in City of Rancho Palos Verdes v. Abrams, the Court found that enforcement of the Telecommunications Act ("TCA") through § 1983 is precluded because the TCA has a shorter limitations period than § 1983, requires judicial review on an expedited basis, and does not provide for attorney's fees and costs. Id. at 122-27.
Even if Plaintiff were able to demonstrate that the DPPA constitutes a protectable "right" under the relevant three-prong test and, therefore, that it is presumptively enforceable under § 1983, that presumption is rebutted because Congress has explicitly foreclosed a remedy under § 1983 by creating a comprehensive enforcement scheme. The DPPA makes the
In addition, the private remedy contained in the DPPA's comprehensive enforcement scheme is more restrictive than that provided under § 1983, in terms of the category of persons from whom a plaintiff may seek a remedy and the period of time in which a plaintiff may seek a remedy. First, like the DPPA, § 1983 allows for recovery of damages and injunctive relief, as well as costs and a reasonable attorney's fee, in a private cause of action. See 42 U.S.C. §§ 1983, 1988(b). However, while an individual may seek injunctive relief under § 1983 against a state official acting in his official capacity, the DPPA expressly excludes civil suits against states and state agencies. See Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525, 530 (8th Cir.2005) (stating, in a § 1983 case, that there is an exception to sovereign immunity for state officials acting in their official capacity "where the relief sought is prospective and not compensatory"); 18 U.S.C. § 2724(a) (stating that a "person" who violates the Act shall be liable); Id. § 2725(2) (stating that, for purposes of the DPPA, "`person' means an individual, organization or entity, but does not include a State or agency thereof").
Second, as discussed in more detail below, DPPA claims are subject to a four-year statute of limitations. On the other hand, the parties agree that the § 1983 claims in this case are subject to a six-year statute of limitations. (County Defs.' Supp. Mem. at 5-6 [Doc. No. 108]; Pl.'s Mem. of Law in Opp. to Mot. to Dismiss by Defs. Pine County, Chisago County, Belisle, Fjosne, Lawrence, and Vosika ("Pl.'s Opp. to County Defs.") at 21 [Doc. No. 122].) Thus, allowing Plaintiff to pursue her DPPA claim through § 1983 would allow her to enlarge the applicable statute of limitations. Accordingly, like the TCA in City of Rancho Palos Verdes, the DPPA cannot be enforced through § 1983.
This Court's determination that Plaintiff may not use § 1983 to enforce her rights under the DPPA is in line with decisions from several other courts, including multiple district courts within the Eighth Circuit. For example, in Roberts v. Source for Public Data, the U.S. District Court for the Western District of Missouri dismissed the plaintiffs' claim because, "[g]iven [the DPPA's] comprehensive remedial scheme, the [c]ourt must presume that Congress intended that the enforcement scheme it created in the DPPA would be the exclusive remedy for violations, precluding resort to § 1983." 606 F.Supp.2d 1042, 1046 (W.D.Mo.2008). And, in Kraege v. Busalacchi, the U.S. District Court for the Western District of Wisconsin found that § 1983 allows for injunctive relief against state officials in their official capacities and, therefore, that the plaintiffs' § 1983 claim to enforce their rights under the DPPA was barred because the DPPA provided a more restrictive private remedy. 687 F.Supp.2d 834, 840 (W.D.Wis. 2009). Similarly, in Nelson v. Jesson, a judge in this District noted that state officials acting in their official capacity cannot be held liable for injunctive relief under the DPPA and went on to hold that "the DPPA's remedial scheme, which is both comprehensive and more restrictive than § 1983, expresses Congress's intent to preclude other means of enforcement." Civ. No. 13-340 (RHK/JJK), 2013 WL 5888235, at *7 (D.Minn. Nov. 1, 2013); see also Kiminski v. Hunt, Civ. No. 13-185 (JNE/TNL), Order [Doc. No. 66], at *24,
Plaintiff urges the Court to follow two cases in which the courts have determined that the DPPA is separately enforceable under § 1983: Collier v. Dickinson and Arrington v. Richardson. (See Pl.'s Opp. to County Defs. at 28 [Doc. No. 122].) In Collier, the Eleventh Circuit Court of Appeals determined that the relief provided under the DPPA and § 1983 is "complementary" rather than "conflicting." 477 F.3d 1306, 1311 (11th Cir.2007). The court did not examine the nature of the available remedies; instead, it merely stated generally that the DPPA did not create so many statutory remedies as to make it unlikely that Congress intended to preserve a § 1983 claim. Id. In Arrington, the U.S. District Court for the Northern District of Iowa similarly found that the remedial schemes of the two statutes are complementary. 660 F.Supp.2d 1024, 1035 (N.D.Iowa 2009). In fact, that court found that the DPPA actually provides "more extensive" remedies than those available under § 1983. Id. at 1032. Thus, the court noted that Congress did not preclude a plaintiff from obtaining a remedy under the DPPA that is otherwise available under § 1983. Id. at 1035.
This Court respectfully disagrees with the reasoning set forth in Collier and Arrington because neither court addressed the fact that, under the DPPA, a plaintiff is precluded from obtaining relief from state officials acting in their official capacity (as opposed to the limited availability of such relief under § 1983), or the difference between the statutes of limitations applicable to each cause of action. As noted above, the Court finds that these considerations, along with the comprehensive nature of the DPPA's remedial scheme, indicate Congress' intent to foreclose a remedy under § 1983. Therefore, Plaintiff's § 1983 claims as stated in Counts II and III of the Amended Complaint fail to the extent that they are based on an underlying DPPA violation,
Plaintiff's § 1983 claims also fail to the extent that they are based on alleged violations of her constitutional rights. "The essential elements of a constitutional claim under § 1983 are (1) that the defendant acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right." L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, 673 F.3d 799, 805 (8th Cir.2012) (citation omitted). Here, Plaintiff alleges that the individual County Defendants, acting under color of state law, violated her Fourteenth Amendment right to privacy, as well as her Fourth Amendment right to be free from an unconstitutional search, by obtaining her personal driver's license information without a legitimate purpose. (See Am. Compl. ¶¶ 116-18 [Doc. No. 90].) However, the facts alleged by Plaintiff do not raise a right to relief under either basis.
As for the Fourteenth Amendment:
Van Zee v. Hanson, 630 F.3d 1126, 1128 (8th Cir.2011) (internal citations omitted). Thus, the "protection against public dissemination of information is limited and extends only to highly personal matters representing `the most intimate aspects of human affairs.'" Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir.1996) (citation omitted). According to the Eighth Circuit, these standards "set a high bar ... and many disclosures, regardless of their nature, will not reach the level of a constitutional violation." Cooksey v. Boyer, 289 F.3d 513, 516 (8th Cir.2002). Similar to the Fourteenth Amendment standards, "[a] search occurs under the Fourth Amendment when ... `the government violates a subjective expectation of privacy that society recognizes as reasonable.'" Arnzen v. Palmer, 713 F.3d 369, 372 (8th Cir.2013) (quoting Kyllo v. United States, 533 U.S. 27, 31-33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)).
The few courts that have analyzed these standards in the context of driver's license information have found that an individual does not have a legitimate expectation of privacy in such information. For example, in Travis v. Reno, the court concluded that there is no legitimate expectation of confidentiality — and, therefore, no constitutional right to privacy — in an individual's name, address, telephone number, photograph, social security number, driver identification number, and medical or disability information. 12 F.Supp.2d 921, 925 (W.D.Wis.1998), rev'd on other grounds, 163 F.3d 1000 (7th Cir.1998); see also Pryor v. Reno, 171 F.3d 1281, 1288 n. 10 (11th Cir.1999) (stating that "there is no constitutional right to privacy in motor vehicle record information"), rev'd on other grounds, 528 U.S. 1111, 120 S.Ct. 929, 145 L.Ed.2d 807 (2000); Condon v. Reno, 155 F.3d 453, 464 (4th Cir.1998) (stating that motor vehicle record information "is the very sort of information to which individuals do not have a reasonable expectation of privacy"), rev'd on other grounds, 528 U.S. 141, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). Similarly, in Kiminski v. Hunt, a judge within this District determined that "[n]one of that data qualifies as so extremely personal as to trigger constitutional — as opposed to statutory — privacy protections." Civ. No. 13-185 (JNE/TNL), Order [Doc. No. 66], at *25 (noting that "[n]ot even statutory protection existed for [driver's license record information] until 1994, when Congress passed the DPPA"); see also Nelson, 2013 WL 5888235, at *5 (finding no reasonable expectation of privacy in the information the plaintiff alleged was contained in his motor vehicle records, which included his name, date of birth, driver's license number and status, address, photograph, weight, height, and eye color).
Plaintiff argues that the Supreme Court's decision in Maracich v. Spears, ___ U.S. ___, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013), demonstrates "the importance of the privacy rights created by the DPPA."
Id. at 2200, 2202. However, Maracich is not dispositive because the Court did not address whether an individual has a constitutional right to privacy in driver's license record information. That issue was not before the Court, and the statements regarding privacy that the Court did make cannot be understood to refer to a constitutional right rather than to a statutory right.
While the Eighth Circuit has not ruled on this exact issue, either, it has determined that the disclosure of similar information is insufficient to state a claim for a violation of the constitutional right to privacy. In McCaslin v. Campbell, the court determined that the plaintiff had not asserted a constitutional violation despite allegations that her driver's license information, social security number, bank account numbers, criminal record, previous landlords, previous names, and personal references were disclosed without her consent. No. 95-4041, 1997 WL 148824, at *1 (8th Cir. Apr. 2, 1997). The court found that much of the information was of public record and that "the remaining information did not involve the most intimate aspects of human affairs." Id. at *2. Therefore, the court affirmed the district court's dismissal of the plaintiff's claim under Rule 12(b)(6). Id. at *1; see also Cooksey, 289 F.3d at 516 (finding that disclosure of the fact that an individual was receiving psychological treatment for stress was "neither shockingly degrading [n]or egregiously humiliating"); Eagle, 88 F.3d at 628 ("Because [the plaintiff] has no legitimate expectation of privacy in the contents of his criminal history file, [the court] cannot agree that the officers violated his constitutional right when they engaged in an unwarranted search of this material.").
In this case, Plaintiff alleges a privacy interest in her driver's license information. However, the only information Plaintiff claims was accessed through her driver's license record was her address, color photograph, date of birth, weight, height, eye color, driver identification number, and driving record. With the exception of Plaintiff's driving record, all of this information is included on the face of a driver's license, and individuals show their driver's licenses to strangers on a daily basis. Moreover, much of this information can be obtained by looking at an individual or by reviewing public records. Thus, the disclosure of this information cannot be considered shockingly degrading or egregiously humiliating. Nor could Plaintiff, based on the public nature of this information, legitimately expect that it would remain confidential. Accordingly, as determined in Travis, Kiminski, and McCaslin, this information does not warrant constitutional protection because an individual does not have a legitimate expectation of privacy in it.
However, Plaintiff argues that, in addition to the information mentioned above, Minnesota driver's license records contain
As noted above, Plaintiff also seeks to impose supervisory liability under § 1983 on the "entity" and "supervisor" Defendants for an alleged failure to monitor and enforce the rules or to train, supervise, and impose proper discipline. (See Am. Compl. ¶¶ 126-49 [Doc. No. 90].) However, because Plaintiff has failed to state a claim for an underlying constitutional violation by any individual County Defendant, Plaintiff has also failed to state a claim as to the entity and supervisor County Defendants. See Brockinton v. City of Sherwood, 503 F.3d 667, 673 (8th Cir.2007) (noting that a county sheriff could not be held individually liable under § 1983 on a supervisory theory where the allegations did not establish an underlying constitutional violation by the county deputy); McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir.2005) ("[I]n order for municipal liability to attach, individual liability first must be found on an underlying substantive claim."). Therefore, to the extent that Plaintiff's § 1983 claims as stated in Counts II and III of the Amended Complaint are based on an underlying constitutional violation, those claims fail.
Finally, Plaintiff's § 1983 claims in Counts II and III that are grounded on violations of Minnesota state law also fail. Plaintiff does not identify in her Amended Complaint which of "the laws of the State of Minnesota" she seeks to enforce through § 1983. (Am. Compl. ¶¶ 116, 118 [Doc. No. 90].) However, as noted by the Eighth Circuit, "a violation of state law, without more, does not state a claim under the federal Constitution or 42 U.S.C. § 1983." Bagley v. Rogerson, 5 F.3d 325, 328 (8th Cir.1993) (citation omitted).
For the foregoing reasons, Counts II and III of Plaintiff's Amended Complaint fail to state a claim for relief against the County Defendants and must be dismissed.
The County Defendants and Defendant Tompa seek dismissal of Count IV of Plaintiff's Amended Complaint, which asserts a common law invasion-of-privacy claim for intrusion upon seclusion. As a threshold matter, the Court notes that Plaintiff has failed to address that portion of Defendants' motions. Therefore, Defendants' motions are unrebutted in this regard. While the Court could dismiss Count IV on this basis, it will briefly address Plaintiff's claim on the merits.
Under Minnesota law, "[i]ntrusion upon seclusion occurs when one `intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns... if the intrusion would be highly offensive to a reasonable person.'" Lake v.
Minnesota courts have indicated that plaintiffs must meet a high threshold of offensiveness and expectation of privacy to have a viable claim for intrusion upon seclusion. For example, while altering a medical information release form and then using that form to obtain and publicize private medical information may be highly offensive, using improper means to obtain information does not necessarily satisfy that prong of the test where the information can be obtained in another, legitimate manner. Id. at 745. And, an individual may have a reasonable expectation of privacy in nude photographs of herself or in her private medical information, but she does not have a reasonable expectation of privacy in discussing termination of her employment. See Lake, 582 N.W.2d at 235 (stating that "[o]ne's naked body is ... generally known to others only by choice" and "is a type of privacy interest worthy of protection"); Swarthout, 632 N.W.2d at 745 (reversing summary judgment on an intrusion upon seclusion claim involving private medical information); Groeneweg v. Interstate Enters., Inc., No. A04-1290, 2005 WL 894768, at *6 (Minn.Ct.App. Apr. 19, 2005) (holding that an individual had no legitimate expectation of privacy at a meeting with co-workers in which her termination was discussed).
There is only one case analyzing the viability of a claim for intrusion upon seclusion under Minnesota law in the context of an alleged DPPA violation. In Nelson v. Jesson, the plaintiff alleged that the defendant intruded upon his seclusion by accessing, or allowing access to, his motor vehicle records. 2013 WL 5888235, at *8. The court found that the expectation of privacy in, and the sensitive nature of, driver's license information is low because individuals frequently show their driver's license to strangers and because most of the information contained in driver's license records is public: "[A] person can ascertain another's likeness, height, weight, and eye color upon viewing him or her and may be able to ascertain another's driver's license status or address through public records." Id. Because there was no allegation that the records at issue contained a social security number or financial or medical information, the court held that "no reasonable person could consider the intrusion ... highly offensive" and dismissed the plaintiff's claim. Id.
Similarly, Plaintiff's allegations in this case fail to meet the high threshold for offensiveness and expectation of privacy established by Minnesota law. Count IV states that, "[b]y improperly obtaining [Plaintiff's] private personal information for impermissible reasons, Defendants intentionally intruded upon the solitude or seclusion of [Plaintiff's] private affairs and concerns." (Am. Compl. ¶ 151 [Doc. No. 90].) Like the plaintiff in Nelson, Plaintiff here does not allege that the records at issue contained a social security number or financial or medical information.
Finally, the County Defendants and Defendant Tompa argue that Plaintiff's DPPA claims are barred by the applicable statute of limitations.
28 U.S.C. § 1658(a); (see County Defs.' Supp. Mem. at 5 [Doc. No. 108]; Def. Tompa's Supp. Mem. at 14-15 [Doc. No. 133]; Pl.'s Opp. to County Defs. at 12 [Doc. No. 122]).
However, the parties do dispute when a DPPA cause of action accrues for purposes of determining when the four-year limitations period begins to run. Defendants assert that the standard rule should apply, while Plaintiff argues that the discovery rule should apply. Under the standard rule, "a claim accrues `when the plaintiff has a complete and present cause of action.'" Gabelli v. S.E.C., ___ U.S. ___, 133 S.Ct. 1216, 1220, 185 L.Ed.2d 297 (2013) (quoting Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)). The discovery rule, on the other hand, "delays accrual of a cause of action until the plaintiff has `discovered' it." Merck & Co. v. Reynolds, 559 U.S. 633, 644, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010). This exception to the standard rule arose in 18th-century fraud cases to address the situation in which a defendant's deceptive conduct prevented a plaintiff from knowing he had been defrauded. Gabelli, 133 S.Ct. at 1221.
While neither the Supreme Court nor the Eighth Circuit has reviewed this issue, a handful of lower courts have analyzed or applied a statute of limitations in a DPPA case. These courts have found that the standard rule for accrual applies, such that a DPPA cause of action accrues at the time the improper access of information occurs.
This Court agrees. U.S. Supreme Court precedent, the text and structure of the statute of limitations at issue, and the nature of a DPPA cause of action all support application of the standard rule. The Supreme Court recently reaffirmed the exceptional nature of the discovery rule in Gabelli v. S.E.C. In that case, the Court analyzed the language of the general statute of limitations for civil penalty actions stated in 28 U.S.C. § 2462:
Gabelli, 133 S.Ct. at 1219 (quoting 28 U.S.C. § 2462) (emphasis added). The Court stated that "the most natural reading of the statute" is that the limitations period begins to run when the allegedly fraudulent conduct occurs. Id. at 1220 (noting that, "`[i]n common parlance a right accrues when it comes into existence'"). According to the Court, this interpretation advances "`the basic policies of all limitations provisions: repose, elimination of stale claims, and certainty about a plaintiff's opportunity for recovery and a
Id. at 1224 (internal citations omitted) (emphases added).
Despite this precedent, Plaintiff argues that courts construing general statutes of limitation apply the discovery rule unless Congress manifests a different intent.
Id. at 28, 122 S.Ct. 441 (quoting 15 U.S.C. § 1681p). The Court determined that "Congress implicitly excluded a general discovery rule by explicitly including a more limited one." Id. (citation omitted). Thus, it concluded that "the text and structure of [the limitations provision] evince Congress' intent to preclude judicial implication of a discovery rule." Id. And, as discussed above, the Gabelli Court applied the standard rule in a federal question case because there was a "lack of textual, historical, or equitable reasons to graft a discovery rule onto the statute of limitations." 133 S.Ct. at 1224. Thus, even if there is a presumption in favor of the
The text and structure of § 1658 supply such evidence. Similar to the statute of limitations at issue in Gabelli, § 1658(a) uses the term "accrues." As noted in that case, the most natural reading of that language is that the limitations period begins to run when the allegedly fraudulent conduct occurs. And, similar to the statute of limitations at issue in TRW Inc., § 1658 contains two limitations periods. Subsection (a) states that "a civil action arising under an Act of Congress ... may not be commenced later than 4 years after the cause of action accrues," while subsection (b) states:
28 U.S.C. § 1658 (emphases added). Congress added subsection (b), which expressly incorporates the discovery rule, in 2002 without amending the language in subsection (a), demonstrating that Congress did not intend to incorporate a discovery rule into subsection (a). Gross v. Max, 906 F.Supp.2d 802, 812-13 (N.D.Ind.2012).
Finally, the rationale behind the discovery rule does not support its application in the DPPA context. The Supreme Court has "recognized a prevailing discovery rule" in only a few contexts: fraud or concealment, latent disease, and medical malpractice. See TRW Inc., 534 U.S. at 27, 122 S.Ct. 441. In these instances, "`the cry for [such a] rule is loudest.'" Id. (quoting Rotella, 528 U.S. at 555, 120 S.Ct. 1075). On the other hand, the Court determined that the FCRA, which provides a private right of action based on credit reporting agencies' failure to maintain reasonable procedures and failure to limit the furnishing of credit reports to permissible purposes, "does not govern an area of the law that cries out for application of a discovery rule." Id. at 28, 122 S.Ct. 441. The nature of the injury addressed by the DPPA — the obtaining of motor vehicle record information for an impermissible purpose — is not in the same category as fraud, concealment, latent disease, or medical malpractice because there is no similarly deceptive conduct or concealment. Rather, the violation occurs from the accessing of the information without a permissible purpose, which is more akin to the type of injury the FCRA is meant to address.
Based on the foregoing, the standard rule for accrual applies to Plaintiff's DPPA claims. The Complaint in this case was filed on March 12, 2012, so Plaintiff's DPPA claims that are based on allegations of improper conduct occurring more than four years prior to that date — i.e., prior to March 12, 2008 — are barred. These claims include the alleged accesses by Defendant Belisle (Chisago County), which occurred in 2006; the alleged accesses by Defendants Lawrence and Vosika (Pine County), which occurred in 2006; and the alleged accesses by Defendant Tompa, which occurred in 2006 and 2007.
In conclusion, Counts I through IV of Plaintiff's First Amended Complaint are dismissed with respect to Defendants Chisago County, Jay Belisle, Rebecca Lawrence, Dan Vosika, and Millicent Tompa.
English, 2011 WL 1842890, at *5 (emphases added). Therefore, the court did not reach the question as to whether the standard rule or discovery rule would apply to the DPPA claim.
