Orduno v. Pietrzak, 17-3437

• Decision Date: 01 August 2019
• Docket Number: No. 17-3486,No. 17-3437,17-3437
• Citation: 932 F.3d 710
• Parties: Samantha ORDUNO, individually and on behalf of all others similarly situated, Plaintiff - Appellant, v. Richard PIETRZAK, in his individual capacity as the Chief of Police of the City of Dayton ; City of Dayton; Michael Campion, in his individual capacity as Commissioner of the Minnesota Department of Public Safety; Ramona Dohman, in her individual capacity as Commissioner of the Minnesota Department of Public Safety; John and Jane Does, employees of the Minnesota Department of Public Safety in their individual capacities as officers, supervisors, staff, employees, independent contractors or agents of the Minnesota Department of Public Safety; John and Jane Does 1-120, acting in their individual capacity as supervisors in the City of Dayton, Defendants - Appellees. Samantha Orduno, individually and on behalf of all others similarly situated, Plaintiff - Appellee, v. Richard Pietrzak, in his individual capacity as the Chief of Police of the City of Dayton, Defendant, City of Dayton, Defendant - Appellant, Michael Campion, in his individual capacity as Commissioner of the Minnesota Department of Public Safety; Ramona Dohman, in her individual capacity as Commissioner of the Minnesota Department of Public Safety; John and Jane Does, employees of the Minnesota Department of Public Safety in their individual capacities as officers, supervisors, staff, employees, independent contractors or agents of the Minnesota Department of Public Safety; John and Jane Does 1-120, acting in their individual capacity as supervisors in the City of Dayton, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

932 F.3d 710

Samantha ORDUNO, individually and on behalf of all others similarly situated, Plaintiff - Appellant,

v.Richard PIETRZAK, in his individual capacity as the Chief of Police of the City of Dayton ; City of Dayton; Michael Campion, in his individual capacity as Commissioner of the Minnesota Department of Public Safety; Ramona Dohman, in her individual capacity as Commissioner of the Minnesota Department of Public Safety; John and Jane Does, employees of the Minnesota Department of Public Safety in their individual capacities as officers, supervisors, staff, employees, independent contractors or agents of the Minnesota Department of Public Safety; John and Jane Does 1-120, acting in their individual capacity as supervisors in the City of Dayton, Defendants - Appellees.

Samantha Orduno, individually and on behalf of all others similarly situated, Plaintiff - Appellee,

v.Richard Pietrzak, in his individual capacity as the Chief of Police of the City of Dayton, Defendant,City of Dayton, Defendant - Appellant,Michael Campion, in his individual capacity as Commissioner of the Minnesota Department of Public Safety; Ramona Dohman, in her individual capacity as Commissioner of the Minnesota Department of Public Safety; John and Jane Does, employees of the Minnesota Department of Public Safety in their individual capacities as officers, supervisors, staff, employees, independent contractors or agents of the Minnesota Department of Public Safety; John and Jane Does 1-120, acting in their individual capacity as supervisors in the City of Dayton, Defendants.

No. 17-3437

No. 17-3486

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2019

Filed: August 1, 2019

Lorenz F. Fett, Jr., Sonia Miller-Van Oort, Jonathan A. Strauss, Robin M. Wolpert, Sapientia Law Group, Minneapolis, MN, Susan Mae Holden, Marcia Kay Miller, Jeffrey M. Montpetit, SIEBEN & CAREY, Minneapolis, MN, for Plaintiff-Appellant.

Stephanie A. Angolkar, Jon K. Iverson, Attorney, Susan Marie Tindal, Iverson & Reuvers, Bloomington, MN, Margaret A. Skelton, Ratwik & Roszak, Minneapolis, MN, for Defendants-Appellees Richard Pietrzak, in his individual capacity as the Chief of Police of the City of Dayton and City of Dayton.

Oliver J. Larson, Assistant Attorney General, Attorney General's Office, Appeals Division, Saint Paul, MN, for Defendants-Appellees Michael Campion, in his individual capacity as Commissioner of the Minnesota Department of Public Safety, Ramona Dohman, in her individual capacity as Commissioner of the Minnesota Department of Public Safety, John and Jane Does, employees of the Minnesota Department of Public Safety in their individual capacities as officers, supervisors, staff, employees, independent contractors or agents of the Minnesota Department of Public Safety and John and Jane Does 1-120, acting in their individual capacity as supervisors in the City of Dayton.

Lorenz F. Fett, Jr., Sonia Miller-Van Oort, Jonathan A. Strauss, Robin M. Wolpert, Sapientia Law Group, Minneapolis, MN, Susan Mae Holden, Marcia Kay Miller, Jeffrey M. Montpetit, Sieben & Carey, Minneapolis, MN, for Plaintiff-Appellee.

Stephanie A. Angolkar, Jon K. Iverson, Attorney, Susan Marie Tindal, Iverson & Reuvers, Bloomington, MN, for Defendant-Appellant City of Dayton.

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

COLLOTON, Circuit Judge.

Samantha Orduno sued police chief Richard Pietrzak, the City of Dayton, Minnesota, and other public officials for alleged violations of the Driver’s Privacy Protection Act (DPPA), 18 U.S.C. § 2724. Orduno moved to certify a class of all persons whose information Pietrzak impermissibly obtained, but the district court¹ denied the motion. Pietrzak then admitted liability for six violations of the DPPA, and a jury awarded Orduno $85,000 in punitive damages, but no actual damages. The court ruled that Orduno failed to present sufficient evidence that the City was directly liable for any violations of the DPPA, but authorized the jury’s finding that the City was vicariously liable for Pietrzak’s actions.

Orduno appeals the district court’s denial of class certification and its rulings on the City’s direct liability, the exclusion of certain evidence, the award of attorneys’ fees, the denial of expert costs, and the application of the DPPA’s statute of limitations. On cross-appeal, the City challenges the imposition of vicarious liability for Pietrzak’s violations of the DPPA. We affirm.

I.

The saga began when a photocopy of Samantha Orduno’s paycheck receipt was discovered in a copy machine of the City of Dayton’s main office in November 2012. Orduno, the city administrator for Dayton, was on vacation at the time, and had not given anyone permission to copy her financial records. When she learned of the discovery, Orduno believed that the photocopy was a sign of a possible data privacy violation within the city administration.

Orduno recruited Lynne Bankes, the police chief of nearby White Bear Lake, Minnesota, to investigate the incident. Orduno told Bankes that Dayton Police Chief Richard Pietrzak was her primary suspect, because he had twenty-four-hour access to City Hall and possibly some ill will towards Orduno.

Bankes inquired with the Minnesota Department of Motor Vehicle Services whether Orduno’s personal information had been accessed in Minnesota’s Driver and Vehicle Services database. The Department provided Bankes with a printout showing fourteen searches of the database for Orduno’s information between January 19, 2010, and October 4, 2012. Pietrzak made seven of these queries. Bankes noticed that Pietrzak searched for Orduno based on her name, rather than her vehicle information, leading Bankes to suspect that Pietrzak was not investigating a traffic stop and had no legitimate law enforcement purpose for accessing Orduno’s information.

Bankes requested that the Department send her a list of Pietrzak’s accesses over the preceding six months. The response listed more than 850 people, including family members, other employees of the police department and city administration, and persons from surrounding communities. Bankes noticed that "very few" of these accesses were based on a license plate number. In a written report, Bankes concluded that Pietrzak violated the Minnesota Data Practices Act, noted the possibility of charging him with a gross misdemeanor for committing misconduct as a public officer or employee, and opined that there was "no excuse" for his behavior in making improper or illegal access to the database.

In May 2014, Orduno sued Pietrzak under the DPPA, alleging that he unlawfully obtained her private information and the private information of around 850 other people. Orduno also named the City of Dayton and other public officials as defendants, claiming that the City and these officials had enabled Pietrzak to access the database and then failed to monitor him adequately to prevent his unlawful conduct. The district court dismissed the claims against the city officials for failure to state a claim, and granted in part a motion to dismiss by Pietrzak and the City based on the four-year statute of limitations.²

Orduno then moved to certify a class defined as follows:

Individuals whose Minnesota driver’s license records were obtained without a purpose or purposes permitted under the DPPA by Defendant Richard Pietrzak from May 2, 2010 through the present date while Defendant Richard Pietrzak was employed by Defendant City of Dayton.

The court denied the motion, concluding that the proposed class failed to satisfy the numerosity and predominance requirements of Federal Rule of Civil Procedure 23(a)(1) and (b)(3).

Orduno later obtained an audit of Pietrzak’s use of the database from 2003 through 2012, and she sought leave to file a motion for reconsideration of the denial of class certification. The court denied her request, reasoning that the additional evidence would not allow the proposed class to satisfy the predominance standard under Rule 23(b)(3).

After the district court set the case for trial, Pietrzak filed an amended answer in which he admitted to obtaining Orduno’s private information for an impermissible purpose on six occasions within the limitations period. The City continued to deny direct and vicarious liability. Before trial, the district court ruled that the City could be held vicariously liable for Pietrzak’s actions as police chief, but not directly liable, as there was no evidence that the City had an impermissible purpose in granting Pietrzak access to the database. The court ordered that evidence of time-barred obtainments and viewing of data about nonparties was inadmissible because it was irrelevant to Orduno’s damages and was substantially more prejudicial than probative. The court also excluded evidence of the City’s actions in the wake of Bankes’s report, including whether the City disciplined Pietrzak.

After a three-day trial, the jury returned a verdict awarding Orduno $85,000 in punitive damages, but no actual damages. The court awarded another $15,000 in liquidated damages. Orduno moved for $427,761.01 in attorneys’ fees and costs. The court awarded fees of $141,197.30 and denied costs of a forensic expert.

II.

Orduno first argues that the district court erred in denying her motion to certify a class under Federal Rule of Civil Procedure 23(b)(3). We review a district court’s denial of class certification for abuse of discretion.

Sandusky Wellness Ctr., LLC v. MedTox Sci., Inc. , 821 F.3d 992, 995 (8th Cir. 2016).

To obtain certification of a class seeking damages under that rule, a plaintiff must satisfy the four prerequisites of Rule 23(a), including that "the class is so numerous that joinder of all members is impracticable." The plaintiff also must meet the requirements of Rule 23(b)(3), including that "questions of law or fact common to class members predominate over any questions affecting only individual members." See Amgen Inc. v. Conn. Ret. Plans & Tr. Funds , 568...