Welch v. THEODORIDES-BUSTLE, Case No. 4:09cv302-RH/WCS.
Decision Date | 05 January 2010 |
Docket Number | Case No. 4:09cv302-RH/WCS. |
Citation | 677 F. Supp.2d 1283 |
Parties | Michael WELCH, Plaintiff, v. Electra THEODORIDES-BUSTLE et al., Defendants. |
Court | U.S. District Court — Northern District of Florida |
Lance August Harke, Howard Mitchell Bushman, Harke & Clasby LLP, Miami, FL, Mitchell L. Burgess, Burgess & Lamb PC, Ralph K. Phalen, Law Offices of Ralph K. Phalen, Kansas City, MO, for Plaintiff.
George Lee Waas, Tallahassee, FL, for Defendants.
ORDER DENYING MOTIONS TO DISMISS
This case arises under the Driver's Privacy Protection Act, 18 U.S.C. §§ 2721-25. In his first amended class-action complaint, the plaintiff asserts that the defendant officials of the Florida Department of Highway Safety and Motor Vehicles violated the Act by unlawfully disclosing personal information of Florida drivers in bulk. The defendants have moved to dismiss. This order denies the motion.
The Supreme Court recently set forth the standards governing a motion to dismiss:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts are not necessary; the statement need only "`give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In addition, when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint. Bell Atlantic Corp., supra, at 555, 127 S.Ct. 1955 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct 1827, 104 L.Ed.2d 338 (1989); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). The court must accept the complaint's allegations as true "even if the allegations are doubtful in fact." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
A complaint thus "does not need detailed factual allegations." Id. Nor must a complaint allege with precision all the elements of a cause of action. See Swierkiewicz, 534 U.S. at 514-15, 122 S.Ct. 992 ( ).
But neither is a conclusory recitation of the elements of a cause of action alone sufficient. A complaint must include more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A complaint must include "allegations plausibly suggesting (not merely consistent with)" the plaintiff's entitlement to relief. Id. at 557, 127 S.Ct. 1955. The complaint must set forth facts—not mere labels or conclusions— that "render plaintiffs' entitlement to relief plausible." Id. at 569 n. 14, 127 S.Ct. 1955.
Id. at 1949-50 (emphasis added).
There are exceptions to the ban on disclosures. One exception is for "use by any government agency ... in carrying out its functions, or any private person or entity acting on behalf of an agency in carrying out its functions." Id. § 2721(b)(1).
The first amended complaint alleges that the defendants willfully disclosed personal information of Florida drivers, in bulk, to a private corporation, Shadowsoft, Inc. The first amended complaint alleges further that Shadowsoft disclosed the information to another entity, The Source for Public Data, which in turn made the information available on the internet. The first amended complaint alleges that the defendants disclosed the information without the drivers' consent, and that doing so did not come within any of the exceptions to the Driver's Privacy Protection Act's ban on disclosures.
In their motions to dismiss, the defendants do not deny that the plaintiff's "personal information" has been made available on the internet. The defendants do not deny that an internet user can access the information for any or no reason—or on a whim. The defendants do not deny that making the information available in this manner violates the Driver's Privacy Protection Act.
The defendants say, though, that they made the information available only for a lawful purpose. They seem to assert that the very fact that they are driver's-license officials, or that they have authority to disclose the information for a permissible purpose, means that their disclosure constituted "use" of the information by a "government agency ... in carrying out its functions," id. § 2721(b)(1), regardless of whether the actual disclosure was otherwise for a proper purpose. That is not so. If any disclosure by a public official was automatically proper, there could never be a claim under the Act against a public official. The statutory language does not support such a conclusion, and the law of the circuit is to the contrary. See Collier v. Dickinson, 477 F.3d 1306 (11th Cir.2007) ( ).
The defendants also have filed copies of the contracts under which, they say, the information was provided to Shadowsoft. The defendants assert that under the contracts, the information was to be used only for a proper purpose. Whether the contracts may properly be considered on the motions to dismiss—without converting them to summary-judgment motions—is not clear. See, e.g., Day v. Taylor, 400 F.3d 1272 (11th Cir.2005) ( ). But it does not matter. The contracts do not specify a proper purpose for the disclosures to Shadowsoft and do not specify the uses and further disclosures that Shadowsoft will and will not make. Moreover, courts have recognized time and again that a contract's self-serving recitals do not bind third parties. See, e.g., Dixon County v. Field, 111 U.S. 83, 92, 4 S.Ct. 315, 28 L.Ed. 360 (1884) ( ); United States v. Leonard, 529 F.3d 83, 90 (2d Cir.2008) ( ); Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1492 (11th Cir.1993) (); Spirides v. Reinhardt, 613 F.2d 826, 832-33 (D.C.Cir.1979) (). The first amended complaint alleges that the defendants disclosed the information for no permissible purpose and that the information wound up on the internet. If that is true, the plaintiff will be entitled to recover.
To be sure, the first amended complaint perhaps could have provided greater detail. But it is hard to plead a negative with great specificity; that there was no permissible purpose for the disclosure is about as precise as one could be. Twombly and Iqbal do not require useless details; they call instead for a context-specific inquiry into the adequacy of a pleading. In this context, alleging specifically that there was a disclosure, and alleging generally that there was no proper purpose for the disclosure, is enough.
The first amended complaint thus sufficiently alleges a violation of the Act. The law of the circuit is that the Act creates a private right of action and, in addition, may be enforced through 42 U.S.C. § 1983. See Collier, 477 F.3d at 1309-11.
Whether the first amended complaint sufficiently alleges each defendant's role in the violation is less clear. The allegations against any individual defendant are sparse, perhaps because the plaintiff has no way of knowing precisely who did what. But each defendant was apparently directly involved in the allegedly improper disclosure at issue. The defendants do not seem to raise this as a...
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