Thomas v. George, Hartz, Lundeen, Fulmer

• Decision Date: 24 April 2008
• Docket Number: No. 06-16158.,06-16158.
• Citation: 525 F.3d 1107
• Parties: Colin THOMAS, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE, KING, AND STEVENS, P.A., Charles Michel Hartz, individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

525 F.3d 1107

Colin THOMAS, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE, KING, AND STEVENS, P.A., Charles Michel Hartz, individually, Defendants-Appellees.

No. 06-16158.

United States Court of Appeals, Eleventh Circuit.

April 24, 2008.

Roger Slade, Marc C. Pugliese, Pathman Lewis, LLP, Miami, FL, for Thomas.

Maureen G. Pearcy, David P. Hartnett, Ronald L. Kammer, Hinshaw & Culbertson, LLP, Miami, FL, for Defendants-Appellees.

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

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

WILSON, Circuit Judge:

Colin Thomas ("Thomas") appeals the district court's grant of summary judgment against his claim that attorney Charles Michael Hartz and the law firm, George, Hartz, Lundeen, Fulmer, Johnstone, King and Stevens, P.A. (collectively, "Hartz") violated the Driver's Privacy Protection Act ("DPPA") by wrongfully obtaining and using personal information contained in driver's license records. We affirm.

I. BACKGROUND

On March 28, 2002, Hartz purchased from the Florida Department of Highway Safety and Motor Vehicles the registration information of all individuals in Miami-Dade County who registered both new and used motor vehicles from January 1, 2000 through March 31, 2002. On November 15, 2002, Hartz purchased the same information for the period April 1, 2002 through November 15, 2002. In total, Hartz accumulated 284,000 driving records of Florida residents. Since Thomas had purchased and registered a Chevrolet Impala in June 2002, his name and address was included in the information obtained by Hartz. Thomas brought suit under the DPPA seeking: (1) $2,500 in statutory liquidated damages; (2) equitable relief for the destruction of illegally obtained records; and (3) certification of a class of consumers.

II. DISCUSSION

Thomas challenges two orders of the district court: (1) the grant of summary judgment in favor of Hartz; and (2) the denial of Thomas' motion to compel the production of discovery.

A. The District Court's Summary Judgment Order

We review the district court's grant of summary judgment de novo. Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir.2006).

The DPPA "regulates the disclosure of personal information contained in the records of state motor vehicle departments (DMVs)." Reno v. Condon, 528 U.S. 141, 143, 120 S.Ct. 666, 668, 145 L.Ed.2d 587 (2000). One section of the DPPA prohibits disclosures of personal information by a state's department of motor vehicles and any officer, employee, or contractor thereof, see 18 U.S.C. § 2721(a), while a separate section provides a private cause of action against persons who knowingly obtain, disclose, or use personal information from a motor vehicle record, see 18 U.S.C. § 2724(a).

Despite these prohibitions, Congress made clear that not all obtainment, disclosure, or use of personal information from motor vehicle records is wrongful. In § 2721(b), the DPPA provides fourteen "permissible uses," one of which allows for the information to be used in connection with "investigation in anticipation of litigation" (hereafter, "the litigation clause"):

For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.

18 U.S.C. § 2721(b)(4) (emphasis added).

Hartz asserted below that it obtained and used the vehicle records for the purpose of identifying potential witnesses to testify in lawsuits against automobile dealerships. At summary judgment, the district court held that Thomas failed to raise an issue of material fact as to the inapplicability of the litigation clause and failed to raise sufficient evidence as to any alleged impermissible obtainment or use. Thomas contends that the court: (1) erroneously placed the burden on Thomas to show "a purpose not permitted" under 18 U.S.C. § 2724(a); and (2) improperly weighed the summary judgment evidence. As set forth below, neither of these arguments has merit.

1. Burden of Proof Under 18 U.S.C. § 2724(a)

Thomas asserts that the litigation clause in § 2721(b)(4) constitutes an affirmative defense for which the defendant carries the burden of proof. Whether the "permissible uses" listed in § 2721(b) constitute affirmative defenses for which defendants carry the burden of proof is a matter of first impression for this circuit and has not been addressed by our sister circuits.

The touchstone for determining the burden of proof under a statutory cause of action is the statute itself. Schaffer v. Weast, 546 U.S. 49, 56, 126 S.Ct. 528, 534, 163 L.Ed.2d 387 (2005). When a statute is silent as to who bears the burden of proof, we resort to "the ordinary default rule that plaintiffs bear the risk of failing to prove their claims." Id.

The ordinary default rule, however, "admits of exceptions." Id. at 57, 126 S.Ct. at 534. One such exception is that "certain elements of a plaintiff's claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions." Id.; accord Fed. Trade Comm'n v. Morton Salt Co., 334 U.S. 37, 44-45, 68 S.Ct. 822, 827, 92 L.Ed. 1196 (1948) ("[T]he general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits, requires that respondent undertake this proof ....") (internal footnote omitted).

Another exception is that courts will "not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary." Schaffer, 546 U.S. at 60, 126 S.Ct. at 536 (internal quotation marks omitted). This exception, however, "is far from being universal, and has many qualifications upon its application." Id. (internal quotation marks omitted).

While there have been some circumstances where the Supreme Court has placed the burden of persuasion over an entire claim on the defendant at the outset of a proceeding, see id. at 57, 126 S.Ct. at 534-35 (citing Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 494, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004)), such instances "are extremely rare." Id., 126 S.Ct. at 535.

In examining the statute, we first turn to the DPPA's provision for a civil cause of action:

A person¹ who knowingly obtains, discloses or uses personal information from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court.

18 U.S.C.A. § 2724(a).

In a straightforward fashion, section 2724(a) sets forth three elements giving rise to liability, i.e., that a defendant (1) knowingly obtained, disclosed or used personal information, (2) from a motor vehicle record, (3) for a purpose not permitted. The plain meaning of the third factor is that it is only satisfied if shown that obtainment, disclosure, or use was not for a purpose enumerated under § 2721(b). Section 2721(b) provides in full:

(b) Permissible uses. — Personal information referred to in subsection (a) shall be disclosed for use in connection with matters of motor vehicle or driver safety and theft, motor vehicle emissions, motor vehicle product alterations, recalls, or advisories, performance monitoring of motor vehicles and dealers by motor vehicle manufacturers, and removal of non-owner records from the original owner records of motor vehicle manufacturers to carry out the purposes of titles I and IV of the Anti Car Theft Act of 1992, the Automobile Information Disclosure Act (15 U.S.C. 1231 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and chapters 301, 305, and 321-331 of title 49, and, subject to subsection (a)(2), may be disclosed as follows:

(1) For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.

(2) For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts and dealers; motor vehicle market research activities, including survey research; and removal of non-owner records from the original owner records of motor vehicle manufacturers.

(3) For use in the normal course of business by a legitimate business or its agents, employees, or contractors, but only —

(A) to verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and

(B) if such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud by, pursuing legal remedies against, or recovering on a debt or security interest against, the individual.

(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.

(5) For use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals.

(6) For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection...