Gaston v. LexisNexis Risk Solutions, Inc.

Decision Date02 September 2020
Docket NumberCIVIL ACTION NO. 5:16-CV-00009-KDB-DCK
Citation483 F.Supp.3d 318
CourtU.S. District Court — Western District of North Carolina
Parties Deloris GASTON and Leonard Gaston, Plaintiffs, v. LEXISNEXIS RISK SOLUTIONS, INC. and PoliceReports.US, LLC, Defendants.

Christopher L. Cogdill, Pro Hac Vice, Christopher L. Cogdill P.A., Eugene Clark Covington, Jr., Pro Hac Vice, Covington, Patrick, Hagins, Stern & Lewis, P.A., Greenville, SC, David M. Wilkerson, Heather Whitaker Goldstein, Larry S. McDevitt, The Van Winkle Law Firm, Asheville, NC, for Plaintiffs.

Cindy D. Hanson, Pro Hac Vice, Troutman Sanders LLP, Atlanta, GA, Dennis Kyle Deak, Troutman Sanders LLP, Raleigh, NC, Joshua Daniel Davey, Troutman Sanders, Charlotte, NC, Julie Diane Hoffmeister, Pro Hac Vice, Troutman Pepper Hamilton Sanders, LLP, Richmond, VA, Ronald I. Raether, Jr., Pro Hac Vice, Troutman Sanders, Irvine, CA, Philip Scott Anderson, Robert B. Long, Jr., Long, Parker, Warren & Jones, P.A., Asheville, NC, for Defendants.


Kenneth D. Bell, United States District Judge

THIS MATTER is before the Court on Plaintiff's Motion to Certify Class (Doc. No. 101), PlaintiffsMotion for Appointment of Interim Co-Lead and Liaison counsel (Doc. No. 103), the partiescross Motions for Summary Judgment (Doc. Nos. 107, 109) and DefendantsMotion to Stay a ruling on PlaintiffsMotion for Summary Judgment (Doc. No. 120). The Court has carefully considered these motions, the parties’ extensive briefs and exhibits and oral argument on the motions from the partiescounsel on August 27, 2020. For the reasons and in the manner discussed below, the Court will GRANT in part and DENY in part Plaintiff's class certification motion, GRANT in part and DENY in part Plaintiff's Motion for Summary Judgment and DENY Defendantssummary judgment motion, the motion for interim appointment of counsel and the motion to stay.

With respect to class certification, the Court declines to certify the nationwide, statewide and Rule 23(b)(1) and 23(b)(3) money damages classes sought by Plaintiffs, but will certify a class under Federal Rule of Civil Procedure 23(b)(2) to consider Plaintiffs’ claim for injunctive relief under the Driver's Privacy Protection Act ("DPPA,") 18 U.S.C. § 2721, et seq. , as limited below. Concerning the appointment of counsel, there does not appear to be a dispute that Plaintiffscounsel will adequately represent the limited class certified by the Court so Plaintiffscounsel will be appointed Class counsel pursuant to Rule 23(g) and the motion to appoint interim counsel will accordingly be denied as moot.

On the partiescross motions for summary judgment, the Court holds that based on the Court's finding that North Carolina accident reports that indicate that the address that appears in the report is the same as on a driver's license are "motor vehicle records" under the statute and Defendants’ admission that they disclosed the reports without regard to whether the personal information in the reports would be used for a purpose permitted by the DPPA (as well as the undisputed evidence that at least some of those reports were used for an impermissible purpose), Plaintiffs are entitled to summary judgment on their claim for injunctive relief to end Defendants’ unlawful practices. However, because there are genuinely disputed material issues of fact regarding whether the Plaintiffs’ accident reports were disclosed for a purpose not permitted by the DPPA, Plaintiff's motion for summary judgment on their claim for liquidated damages must be denied. Further, Defendants are not entitled to summary judgment because the Court finds they are liable for injunctive relief as discussed above and do not have immunity, qualified or otherwise, based on their alleged "public service" in making the accident reports available. Finally, having determined that no class will be certified under Rule 23(b)(3) and that the summary judgement motions will be denied, DefendantsMotion to Stay will be denied as moot.


Plaintiffs seeking class certification "must affirmatively demonstrate [their] compliance" with Federal Rule of Civil Procedure 23. Wal–Mart Stores, Inc. v. Dukes , 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Rule 23(a) requires that a prospective class satisfy four prerequisites to ensure that the class claims are fairly encompassed by those of the named plaintiffs. See Fed. R. Civ. P. 23(a). These prerequisites are often referred to as numerosity, commonality, typicality, and adequacy. See Krakauer v. Dish Network, L.L.C. , 925 F.3d 643, 654 (4th Cir. 2019). The Fourth Circuit has also recognized that Rule 23 "contains an implicit threshold requirement" of "ascertainability" – that the members of a proposed class be "readily identifiable" by way of reference to objective criteria. See id. at 654–55. If these initial requirements are met, the plaintiffs must then demonstrate that the proposed class fits within at least one of the three types of classes outlined in Rule 23(b). Id. at 655.

Although it is Plaintiffs’ burden to demonstrate compliance with Rule 23, this Court "has an independent obligation to perform a ‘rigorous analysis’ to ensure that all of the prerequisites have been satisfied." EQT Prod. Co. v. Adair , 764 F.3d 347, 358 (4th Cir. 2014) (quoting Dukes , 564 U.S. at 350–51, 131 S.Ct. 2541 ). As Rule 23 ’s criteria are often "enmeshed in the factual and legal issues comprising the plaintiff's cause of action," this analysis may entail some consideration of the merits of the underlying claims. See Dukes , 564 U.S. at 351, 131 S.Ct. 2541. However, " Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen Inc. v. Conn. Ret. Plans & Trust Funds , 568 U.S. 455, 466, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013).

An order that certifies a class action must define the class and the class claims, issues or defenses, and must appoint counsel under Rule 23(g). Fed. R. Civ. P. 23 (c)(1)(B). In appointing class counsel, the court must consider the work counsel has done in identifying and investigating the potential claims, counsel's relevant experience and knowledge of the applicable law and the resources that counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A). Also, the Court may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class. Id. at Rule 23(g)(1)(B).

Summary judgment must be granted "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 factual dispute is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "A fact is material if it might affect the outcome of the suit under the governing law." Vannoy v. Federal Reserve Bank of Richmond , 827 F.3d 296, 300 (4th Cir. 2016) (quoting Libertarian Party of Va. v. Judd , 718 F.3d 308, 313 (4th Cir. 2013) ).

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact through citations to the pleadings, depositions, answers to interrogatories, admissions or affidavits in the record. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Bouchat v. Baltimore Ravens Football Club, Inc. , 346 F.3d 514, 522 (4th Cir. 2003). "The burden on the moving party may be discharged by ‘showing’ ... an absence of evidence to support the nonmoving party's case." Celotex , 477 U.S. at 325, 106 S.Ct. 2548. Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 322, 106 S.Ct. 2548 n.3. The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings to defeat a motion for summary judgment. Id. at 324, 106 S.Ct. 2548.

When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party. Tolan v. Cotton , 572 U.S. 650, 657, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) ; see also Anderson , 477 U.S. at 255, 106 S.Ct. 2505. "Summary judgment cannot be granted merely because the court believes that the movant will prevail if the action is tried on the merits." Jacobs v. N.C. Admin. Office of the Courts , 780 F.3d 562, 568-69 (4th Cir. 2015) (quoting 10A Charles Alan Wright & Arthur R. Miller et al., Federal Practice & Procedure § 2728 (3d ed. 1998)). "The court therefore cannot weigh the evidence or make credibility determinations." Id. at 569 (citing Mercantile Peninsula Bank v. French (In re French ), 499 F.3d 345, 352 (4th Cir. 2007) ).

However, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (internal citations omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Also, the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. Id. If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. Id. at 249-50, 106 S.Ct. 2505.

In the end, the question posed by a summary judgment motion is whether the...

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