Kehoe v. Fidelity Federal Bank & Trust

• Citation: 421 F.3d 1209
• Decision Date: 26 August 2005
• Docket Number: No. 04-13306.,04-13306.
• Parties: James KEHOE, Plaintiff-Appellant, v. FIDELITY FEDERAL BANK & TRUST, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

421 F.3d 1209

James KEHOE, Plaintiff-Appellant, v. FIDELITY FEDERAL BANK & TRUST, Defendant-Appellee.

No. 04-13306.

United States Court of Appeals, Eleventh Circuit.

August 26, 2005.

Roger Slade, Pathman, Lewis, P.A., Joel S. Perwin, Miami, FL, Stuart A. Davidson, Paul J. Geller, Lerach Coughlin Stoia Geller Rudman & Robbins, LLP, Boca Raton, FL, for Kehoe.

Roy Edmund Fitzgerald, III, Lorin Louis Mrachek, Alan B. Rose, Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, FL, for Defendant-Appellee.

Chris Jay Hoofnagle, Elec. Privacy Info. Ctr., Washington, DC, Roberto Mario Vargas, Jones Foster Johnston & Stubbs, P.A., West Palm Beach, FL, Ronald I. Raether, Jr., Jeffrey T. Cox, Faruki Ireland & Cox, P.L.L., Dayton, OH, for Amicus Curiae.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and WILSON, Circuit Judges, and COOGLER^*, District Judge.

WILSON, Circuit Judge:

This appeal requires that we engage in an exercise of statutory interpretation. The statute at issue is the Driver's Privacy Protection Act, 18 U.S.C. § 2721, et seq. ("DPPA"). Having considered the plain text of the statute, we conclude that a plaintiff need not prove actual damages to recover liquidated damages for a violation of the DPPA. Since the district court reached a contrary conclusion, we reverse and remand.

I. BACKGROUND

In 1994, Congress enacted the DPPA to limit the release of an individual's personal information contained in his driver's license record to those who had a legitimate and lawful need for the information. Originally, the DPPA implemented an opt-out procedure for driver's license information disclosed for marketing purposes. Under the opt-out procedure, a state could release or sell an individual's driver's license information without the individual's permission so long as the individual was given an opportunity to opt out by requesting that the information not be released. On October 9, 1999, Congress amended the DPPA to require an opt-in procedure. The effective date of this amendment was June 1, 2000. As a result of this amendment, a state's department of motor vehicles cannot disclose an individual's driver's license information without express permission from the individual about whom the information pertains.

Forty-nine states immediately passed legislation to ensure compliance with this amendment to the DPPA. Florida was the only state that did not immediately comply. Instead, Florida waited until May 13, 2004, to amend its public records statute to comply with the DPPA. See Fla. Stat. § 119.07(3)(aa)(12); 2004 Fla. Sess. Law Serv.2004-62 (West).

Fidelity is a publicly owned and locally operated savings bank. From June 1, 2000, to June 20, 2003, on a monthly basis, Fidelity purchased from the State of Florida's Department of Highway Safety and Motor Vehicles ("Florida DMV") the names and addresses of individuals who had registered new motor vehicles or used motor vehicles less than three years old within the preceding month in Palm Beach, Martin, and Broward Counties. Fidelity paid the Florida DMV one cent for each name and address provided. The Florida DMV then forwarded the information electronically to a third-party mass mailing service provider retained by Fidelity. The mass mailing service provider mailed the solicitations to individuals to refinance their motor vehicle loans. Over the course of the three years at issue, Fidelity paid the State of Florida approximately $5,656.00 for the names of approximately 565,600 individuals.

On July 1, 2003, James Kehoe, on behalf of himself and others similarly situated, filed this putative class action. The gravamen of Kehoe's complaint is that Fidelity purchased his personal information from the Florida DMV without his consent. At the conclusion of his complaint, Kehoe requested the following relief: liquidated damages "in the amount of $2,500.00 for each instance in which [Fidelity] obtained or used personal information concerning [Kehoe] and members of the Class;" "punitive damages should the Court find that [Fidelity] acted in willful or reckless disregard of the DPPA;" attorney's fees and costs; the destruction of any personal information unlawfully obtained from the Florida DMV; and "such other relief as the Court deems appropriate."

Fidelity responded to Kehoe's complaint by filing a motion to dismiss the complaint or, alternatively, enter summary judgment in favor of Fidelity. The district court summarily denied Fidelity's motion to dismiss the complaint and deferred ruling on the summary judgment motion until after the completion of discovery. After discovery, Fidelity renewed its motion for summary judgment. The district court concluded that a plaintiff must prove some measure of actual damages to maintain a claim under the DPPA. Because Kehoe had not asserted that he incurred any actual damages, the district court granted summary judgment in Fidelity's favor and denied Kehoe's motion for class certification as moot.

On appeal, Kehoe argues that the district court erred in holding that the DPPA requires proof of actual damages prior to the award of liquidated damages. Additionally, Kehoe argues that the district court erred in granting summary judgment without considering his requests for class certification and injunctive relief.¹

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo, applying the same legal standards as the district court. See Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir.1999). The interpretation of a statute is a question of law subject to de novo review. DirecTV, Inc. v. Brown, 371 F.3d 814, 816 (11th Cir.2004).

III. DISCUSSION

A. 18 U.S.C. § 2724(b), the DPPA's Remedies Provision

The main issue in this case is whether a plaintiff must prove actual damages before he may recover a liquidated damages award under the DPPA. This is an issue of first impression for our Circuit. In reaching the conclusion that Kehoe could not maintain a claim for liquidated damages under § 2721(b) without proving that he had suffered actual damages, the district court relied upon what it termed "the sum of several legal principles." See Kehoe v. Fidelity Federal Bank & Trust, No. 03-80593-CV-DTKH, 2004 WL 1659617, at *6 (S.D.Fla. June 14, 2004). Considering the relevant text of the DPPA as buttressed by instructive dicta in Doe v. Chao, 540 U.S. 614, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004), we reach the opposite conclusion. A plaintiff need not prove a measure of actual damages to recover liquidated damages under the DPPA, and certainly need not prove actual damages to recover the other types of remedies listed in § 2724(b).²

1. Textual Analysis of the DPPA

"In construing a statute we must begin, and often should end as well, with the language of the statute itself ... because we presume that Congress said what it meant and meant what it said." Harry v. Marchant, 291 F.3d 767, 770 (11th Cir.2002)(en banc)(internal quotations and citations omitted). "[W]e need not resort to extrinsic evidence, such as legislative history, to discern a statute's meaning if the statute's meaning is unambiguous." In re Paschen, 296 F.3d 1203, 1207 (11th Cir.2002). "Any ambiguity in the statutory language must result from the common usage of that language, not from the parties' dueling characterizations of what Congress `really meant.'" CBS Inc. v. Prime-Time 24 Joint Venture, 245 F.3d 1217, 1225 (11th Cir.2001).

The sections of the DPPA that are relevant to our analysis are: 18 U.S.C. §§ 2722 and 2724. Section 2722 states, in pertinent part: "(a) Procurement for unlawful purpose. — It shall be unlawful for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title." 18 U.S.C. § 2722(a). Fidelity does not dispute that a violation of the DPPA occurred — it purchased and used Kehoe's personal information for a purpose that is not permitted under § 2721(b). Since a violation occurred, Kehoe can bring this action pursuant to § 2724. Section 2724, states, in its entirety:

Civil action

(a) Cause of action. — A person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter [18 U.S.C. §§ 2721 et seq.] shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court.

(b) Remedies. — The court may award —

(1) actual damages, but not less than liquidated damages in the amount of $2,500;

(2) punitive damages upon proof of willful or reckless disregard of the law;

(3) reasonable attorney's fees and other litigation costs reasonably incurred; and

(4) such other preliminary and equitable relief as the court determines to be appropriate.

18 U.S.C. § 2724. Specifically, at issue is the interpretation of sub-section (b)(1) of § 2724. Fidelity and the district court interpret the language in sub-section (b)(1) to mean that proving actual damages is a condition precedent to receiving liquidated damages in the amount of $2,500.00. Kehoe, however, interprets sub-section (b)(1) as permitting a minimum damages award of $2,500.00 regardless of whether a plaintiff suffered any actual damages. In other words, Kehoe reads sub-section (b)(1) in the disjunctive — that he may receive the greater of his actual damages or $2,500.00.

At the heart of this case is a disagreement over what effect the phrase "but not less than" and the comma preceding that phrase has on Kehoe's ability to recover liquidated damages. Specifically, at issue is whether the clause after the comma is dependent upon the proof of actual damages. The placement of the comma and "but not less than" does not necessarily mean that the second clause is dependent upon proof of the first clause. Accord Pichler v. UNITE, 228 F.R.D. 230, 245 (E.D.Pa.2005) (holding...