Garey v. James S. Farrin, P.C.

• Decision Date: 22 January 2021
• Docket Number: 1:16CV542
• Citation: 514 F.Supp.3d 784
• Court: U.S. District Court — Middle District of North Carolina
• Parties: William Parker GAREY, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. JAMES S. FARRIN, P.C., et al., Defendants.

514 F.Supp.3d 784

William Parker GAREY, et al., on behalf of themselves and others similarly situated, Plaintiffs,

v.JAMES S. FARRIN, P.C., et al., Defendants.

1:16CV542

United States District Court, M.D. North Carolina.

Signed January 22, 2021

Robert Peel Holmes, IV, J. David Stradley, White & Stradley, PLLC, Raleigh, NC, for Plaintiffs.

Bradley M. Risinger, Jeffrey R. Whitley, Matthew Nis Leerberg, Troy D. Shelton, Fox Rothschild LLP, Raleigh, NC, for Defendants James S. Farrin, P.C., Marcari, Russotto, Spencer & Balaban, P.C., Riddle & Brantley, L.L.P., Wallace Pierce, Pllc, R. Bradley Van Laningham, James S. Farrin, Donald W. Marcari, Sean A. Cole, Jared Pierce, Van Laningham & Associates, PLLC, Chris Roberts, Crumley Roberts, LLP, Hardee & Hardee, LLP, Charles Hardee, G. Wayne Hardee 202 E Arlington BLVD Greenville, NC 27858.

Bradley M. Risinger, Jeffrey R. Whitley, Matthew Nis Leerberg, Troy D. Shelton, Fox Rothschild LLP, Raleigh, NC, Christopher Patrick Raab, Harold Craig Spears, Caudle & Spears, P.A., Charlotte, NC, for Defendant Lanier Law Group, P.A.

Bradley M. Risinger, Jeffrey R. Whitley, Matthew Nis Leerberg, Troy D. Shelton, Fox Rothschild LLP, Raleigh, NC, Harold Craig Spears, Caudle & Spears, P.A., Charlotte, NC, for Defendant Lisa Lanier.

Reid Calwell Adams, Jr., Jonathan Reid Reich, Womble Bond Dickinson (US) LLP, Winston-Salem, NC, Bradley M. Risinger, Jeffrey R. Whitley, Troy D. Shelton, Fox Rothschild LLP, Raleigh, NC, for Defendants Hardison & Cochran, PLLC, Benjamin T. Cochran.

Reid Calwell Adams, Jr., Jonathan Reid Reich, Womble Bond Dickinson (US) LLP, Winston-Salem, NC, Bradley M. Risinger, Fox Rothschild LLP, Raleigh, NC, for Defendants Ted A. Greve & Associates, P.A., Ted A. Greve, Law Offices of Michael A. Demayo, L.L.P., Michael A. Demayo.

Harold Craig Spears, Caudle & Spears, P.A., Charlotte, NC, Bradley M. Risinger, Jeffrey R. Whitley, Troy D. Shelton, Fox Rothschild LLP, Raleigh, NC, for Defendant Katherine E. Andrews-Lanier.

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Plaintiffs initiated this action alleging that the above-named Defendants violated the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. § 2721, et seq. , by obtaining their names and addresses from automobile accident reports and using that information to advertise legal services. (ECF Nos. 1; 32; 180.) Before the Court are Plaintiffs’ motions to strike pursuant to Rule 37 of the Federal Rules of Civil Procedure and Rule 702 of the Federal Rules of Evidence, (ECF Nos. 288; 290), and cross-motions for summary judgment pursuant to Rule 56, (ECF Nos. 262; 270; 272). In addition, the two Andrews-Lanier Defendants also move for summary judgment on Plaintiffs’ supplemental state claim that they violated North Carolina's Uniform Voidable Transfers Act ("UVTA"), N.C. Gen. Stat. § 39-23.1, et seq. (ECF No. 264.) For the reasons set forth below, the Court grants in part and denies in part Plaintiffs’ motions to strike, and the Court grants Defendants’ motions for summary judgment.

I. BACKGROUND

The DPPA holds liable certain parties for the misuse of a driver's information if that data has been collected from a "motor vehicle record." 18 U.S.C. § 2724(a). In their complaint,¹ the six named Plaintiffs allege that they were each involved in car accidents in 2016. (ECF No. 180 ¶¶ 42–47.) In each accident, either local police officers or North Carolina State Highway Patrol troopers investigated and recorded their findings on a standard DMV-349 form that was then provided to the state's Division of Motor Vehicles ("DMV"). (Id. ; see also, e.g. , ECF No. 206-8 at 2.) To complete the form's driver identification fields, the investigating officers first asked each Plaintiff for his or her driver's license before then (a) copying all of the needed information onto a paper form by hand, (b) entering all of the information manually into an electronic version of the form, or (c) auto-populating the form either by typing the license number into a computer or by scanning a barcode on the back of the license. (See ECF No. 180 ¶¶ 50–51.) In each instance, the investigating officers also asked the Plaintiff whether the information on his or her license was accurate. (Id. ¶ 52.) When each Plaintiff answered in the affirmative, the officer checked a box to indicate that the address entered onto the form matched the address on the driver's license. (Id. )

In the weeks that followed, Plaintiffs received unsolicited marketing materials from various North Carolina attorneys and law firms, including Defendants, who had obtained their names and addresses from their respective DMV-349s. (See ECF Nos. 32-1 through 32-32; 180 ¶¶ 54–114.) In some cases Defendants collected information from Plaintiffs’ DMV-349s themselves, and in other cases they purchased accident report data aggregated by a third party. (See, e.g. , ECF Nos. 220-1 at 24–25; 220-7 at 15–16.) Plaintiffs do not argue that the DMV-349 reports are themselves "motor vehicle records." (See ECF No. 263 at 17–20.) Rather, they contend that the information included in the report may be traced back to such records and thus fall under the ambit of the DPPA. (Id. ) Therefore, the central question forming the basis of this lawsuit is whether, as Plaintiffs allege, Defendants’ conduct in gathering personal information from DMV-349s and using it to market legal services is a violation of the DPPA.

II. MOTIONS TO STRIKE

Prior to analyzing the motions for summary judgment, the Court considers Plaintiffs’ motions to strike the declarations of two expert witnesses.

A. Motion to Strike Declaration of Rhonda Harper

Plaintiffs first move to strike the declaration of expert witness Rhonda Harper pursuant to Rule 37. (ECF No. 288.) They argue that Defendants violated Rule 26 by "failing to completely disclose Harper's expert opinions to be offered in this case." (ECF No. 289 at 1.) More specifically, they contend that Defendants stated Ms. Harper would offer expert testimony on "the response rate of direct mail," and that her initial expert report merely included "statistics on the deliverability of mail generally, deliverability of direct mail solicitations, opening rates of direct mail solicitations, and the direct mail response rates as well as how some of those statistics have changed over time." (Id. at 2.) Plaintiffs allege, however, that her subsequent declaration covers significantly wider ground, such as the "history of direct marketing"; the methods data brokers use to collect, buy, and sell consumer information; and DMV practices of selling personal information. (Id. at 2–3 (citing ECF No. 269-13 ¶¶ 20–85).) Defendants counter that Ms. Harper "merely takes documents which were collected in discovery and puts them in the context of [her] earlier report." (ECF No. 301 at 5.)

Rule 26 requires a party introducing expert testimony to provide a written report that includes "a complete statement of all opinions the witness will express." Fed. R. Civ. P. 26(a)(2)(B)(i). As Plaintiffs have correctly pointed out, a failure to fulfill these requirements "unfairly inhibits [the opposing party's] ability to properly prepare" for trial. Saudi v. Northrop Grumman Corp. , 427 F.3d 271, 278 (4th Cir. 2005). It therefore results in a party forfeiting their opportunity to use the information—"unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).

To determine whether the addition of new information in an expert report falls under one or both exceptions, the Fourth Circuit considers the following five factors:

(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.

S. States Rack & Fixture, Inc. v. Sherwin-Williams Co. , 318 F.3d 592, 597 (4th Cir. 2003). The first four factors relate primarily to the harmlessness exception, while the final factor tests whether the initial exclusion of information was substantially justified. Id. The Court now applies these factors to Ms. Harper's expert report.²

The first factor weighs the extent to which the information in the report surprised the opposing party. Plaintiffs assert that they "had no reason to know that Harper would testify as to anything other than those topics provided in her expert report." (ECF No. 289 at 6.) Yet Defendants note that Ms. Harper stated in her original report that, "should additional information be provided or obtained," she reserved the right to amend her opinion. (ECF No. 301 at 14.) Plaintiffs subsequently filed their Second Amended Complaint and provided additional documents to Defendants through the discovery process. (Id. ) The Court concludes it was thus foreseeable that Ms. Harper's review of the extensive new data—including nearly one billion DMV records from nine different states, (id. )—might lead to a need for additional context in her report. Though Plaintiffs might have been genuinely surprised, the new discovery combined with Ms. Harper's statement that she might amend her original statement leads the Court to find that this factor weighs in favor of Defendants, if only slightly.

The second factor is the ability of the party to cure the surprise. Though Plaintiffs might have had more time to depose Ms. Harper between the filing of the new report and a trial, they argue that they are unable to depose or cross-examine her at the summary judgment stage. (ECF No. 289 at 7.) The Court, therefore, finds that this factor weighs in favor of the report's exclusion. That said, the third and fourth factors—potential disruption to the trial and importance of the evidence—weigh heavily against striking the report. As it relates to the third factor, there is no indication that such evidence would disrupt the trial given that no trial date...