Kost v. Hunt

Decision Date08 October 2013
Docket NumberCivil No. 13-583 (JNE/TNL)
PartiesHillary Ann Kost, a/k/a Hilary Kost DeVary, and Jon Eldon DeVary, Plaintiffs, v. John Hunt et al., Defendants.
CourtU.S. District Court — District of Minnesota

Marshall H. Tanick appeared for Plaintiffs.

Oliver J. Larson appeared for Defendants Tom Landwehr, Ramona Dohman, Mark Holsten, Michael Campion, Wade Setter, Rodman Smith, James Konrad, Keith Parker, Robert Maki, Steve Lime, Charlie Regnier, Stan Gruska, and Sheila Deyo.

Bryan D. Frantz and Robert D. Goodell appeared for Defendant Anoka County.

Plaintiffs Hillary Ann Kost and Jon Eldon DeVary filed the present action against various present and former employees of the Minnesota Department of Public Safety ("DPS") and Minnesota Department of Natural Resources ("DNR"), as well as various other entities, including multiple cities, counties, and the State of Minnesota. Plaintiffs filed this action after learning that Defendant John Hunt, a former DNR employee, had engaged in unauthorized viewing of private data from their motor vehicle records maintained by the DPS. The First Amended Complaint ("complaint") in this action makes claims against the Defendants for impermissible accesses of Plaintiffs' personal information under the Drivers' Privacy Protection Act ("DPPA"), 42 U.S.C. § 1983, and Minnesota state law.

Many of Plaintiffs' claims against the DPS and DNR personnel track the claims filed by the plaintiffs in multiple putative class actions, currently consolidated under Kiminski v. Hunt,Civ. No. 13-185 (JNE/TNL) ("Kiminski actions"). Plaintiffs' action had been a prospect for inclusion with the Kiminski actions, but continues separately. Nonetheless, for the reasons explained below, this order refers to the order that issued on September 20, 2013 in the Kiminski actions, (Docket No. 66 in Civ. No. 13-185) ("Kiminski Order"), dismissing various defendants affiliated with the DPS and DNR. Presently before the Court are two motions to dismiss for failure to state a claim, one filed by the named DPS and DNR personnel other than Defendant John Hunt ("State Defendants") and the other filed by Defendant Anoka County. For the reasons stated below, both motions are granted.


According to the complaint, Plaintiffs Kost and DeVary are married to each other and are licensed private investigators. They provided personal information about themselves to the DPS "for the purpose of acquiring and utilizing State of Minnesota drivers' licenses." The information that Plaintiffs provided "include[ed] their address, color photograph, date of birth, weight, height and eye color, and in some instances, their medical and/or disability information." The complaint states that Plaintiffs received a letter from the DNR in mid-January 2013. The complaint subsequently refers to a letter from the DNR, dated January 14, 2013, alleged to have been received by 5000 people. Plaintiffs have filed the DNR letter in opposition to other motions currently pending in this action. The letter sent to the Plaintiffs by the DNR appears to be the same one received by the plaintiffs in the Kiminski actions.

The complaint alleges the same material facts regarding Defendant Hunt and the State Defendants as detailed in the Kiminski Order, which should be referenced for background information. The complaint identifies the same set of State Defendants as the consolidated amended class action complaint ("Kiminski Complaint") in the Kiminski actions, with twoexceptions. First, the complaint names and identifies three additional State Defendants as follows:

Rodman Smith, Defendant Hunt's immediate supervisor;
James Konrad, a DNR employee with supervisory authority over Defendants Smith and Hunt; and
Wade Setter, Superintendent of the Bureau of Criminal Apprehension ("BCA"), a division of the DPS, which maintains a database of information concerning driver's license data and other private data on individuals.

Plaintiffs bring this action against Defendants Smith and Konrad in their individual capacities. The complaint names Setter in his individual capacity and, for purposes of prospective relief on a claim under 42 U.S.C. § 1983, in his official capacity.

Second, the complaint includes as defendants unnamed individuals other than John Hunt at the state agencies and other entities "who obtained, used, or disclosed [Plaintiffs' personal information] without legal justification or without a proper purpose." The complaint categorizes these Defendant Does as "Individual Defendants" along with Defendant Hunt. In contrast, the Kiminski Complaint only named John Hunt as someone who personally accessed the plaintiffs' private data for improper purposes. As with the Kiminski Complaint, however, the complaint here includes other Does as supervisory defendants and defendants responsible for creating and maintaining the DPS databases.

The complaint explains that on receipt of the letter from the DNR, Plaintiffs sought an audit of the release of their motor vehicle records and "discovered numerous incidents of unlawful access" of their personal information. From this audit, plaintiffs learned of accesses of their private data by entities other than the DNR, including numerous cities, counties, private,and other organizations. The complaint includes and incorporates four exhibits with information about these accesses. The complaint characterizes Exhibits 1 and 3 as summaries of "some of the audit information received from the [DPS division of Driver and Vehicle Services,] DVS, omitting and redacting what are believed to be legitimate instances of use of the records." Similarly, the complaint describes Exhibits 2 and 4 as modified summaries of information received from the BCA. Believing many of the accesses improper, plaintiffs filed the present action on March 14, 2013. On June 14, 2013, the State Defendants filed their motion to dismiss the complaint against them. Anoka County filed its motion subsequently.

A June 17, 2013 order of the Magistrate Judge initially consolidated this action with the Kiminski actions. Plaintiffs objected to the consolidation, resulting in its reversal. In objecting to consolidation, Plaintiffs noted that the State Defendants named had filed a motion to dismiss the Kiminski Complaint that was similar in many respects to the State Defendants' motion to dismiss in this action. Plaintiffs represented that they would not object to relying on the briefing of the plaintiffs in the Kiminski actions on overlapping issues. Accordingly, for purposes of their opposition to the present motion, Plaintiffs incorporated the arguments of the Kiminski plaintiffs and only separately addressed additional matters they deemed unique to this action.


A defendant may seek to dismiss a complaint for failure to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Although a pleading need not contain detailed factual allegations, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action willnot do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Thus, the complaint must do more than merely leave "open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery." Twombly, 550 U.S. at 561 (internal quotation marks omitted). It must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court accepts the facts alleged in the complaint as true. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009). "This tenet does not apply, however, to legal conclusions or formulaic recitation of the elements of a cause of action; such allegations may properly be set aside." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (internal quotation marks omitted). Nonetheless, all "reasonable inferences supported by the facts alleged" must be granted in favor of the plaintiff. Id. at 595.

I. State Defendants' Motion to Dismiss

The complaint asserts Counts I, III, and VI against some or all of the State Defendants. Count I alleges violations of the DPPA. It alleges that Defendant Hunt and the other Individual Defendants made illegal accesses of Plaintiffs' personal motor vehicle record information for improper purposes. It then alleges DPPA violations, using very similar language as the Kiminski Complaint, against the State Defendants for providing Hunt and other Individual Defendants with access to the relevant databases in the absence of adequate monitoring and controlmechanisms. Count III and VI allege violations under 42 U.S.C. § 1983 of Plaintiffs' federal statutory and constitutional rights in an analogous manner to the Kiminski Complaint. The Kiminski Order found that the Kiminski Complaint failed to state violations under the DPPA or 42 U.S.C. § 1983 against the State Defendants. For the reasons detailed in the Kiminski Order, the claims in this action against the State Defendants will be dismissed.

The State Defendants' brief also notes in a footnote that the DPS John and Jane Does should be dismissed because Plaintiffs' theory of liability as to them is the same as their theory of liability with regard to the State Defendants. That contention is accurate as to the DPS Does categorized as "Supervisory Defendants" and Does responsible for creating and maintaining the relevant DPS databases. Consequently, no claims...

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