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FRANK J. MARGAN, et al.,
Plaintiffs,
vs.
WILLIAM P. NILES, et al.,
Defendants.
00-CV-1201
2003 U.S. Dist. Lexis 3971
March 18, 2003, Decided
MEMORANDUM-DECISION and
ORDER
I. INTRODUCTION
The
plaintiffs' amended complaint asserts five causes of action:
First - Violation of the
Driver's Privacy Protection Act of 1994 ("DPPA"),18 U.S.C. § 2721 et.
seq.;
Second - Conspiracy to
violate the DPPA;
Third - Intentional
infliction of emotional distress (state law);
Fourth - Harassment (state
law); and
Fifth - Violation of the
right to privacy (state law).
Defendants Keith McKenna ("McKenna") and Town of
Glenville ("Glenville") separately move for summary judgment pursuant
to Fed. R. Civ. P. 56. Glenville moves to dismiss the amended complaint in its
entirety. McKenna moves for partial summary judgment. Defendants William Niles
("Niles") and Garth Russell Johnston ("Johnston") have made
no motion. Plaintiffs oppose with respect to the first and second causes of
action. Oral argument was heard on November 22, 2002, in Albany, New York.
Decision was reserved.
II. FACTS
Defendant
William Niles ("Niles") was an employee for the Hannaford Brothers
("Hannaford") grocery stores. (Pl.'s Ex. BB at 5.) Niles applied for
and obtained workers' compensation benefits for an injury he allegedly suffered
while on the job. (Id. at 8-9.) Hannaford assigned plaintiff Mary Ellen Louer
("Louer") to administer Niles' workers' compensation case. (Pl.'s Ex.
X at 6.) Louer had reason to believe that Niles was not as disabled as he had
claimed, and therefore retained the services of Compass Adjusters and
Investigators ("Compass") to investigate Niles. (Id. at 46.) Compass
then conducted surveillance of Niles. (Def. McKenna's Ex. O at 35-36.)
Plaintiffs John M. Margan, Jeffrey Margan, Paul Mahan, and Anthony
Pellegrino, (collectively the
"Investigators") were Compass investigators who worked on the Niles
case. (Def. McKenna's Exs. Q at 9; S at 10; T at 9-10; U at 10.)
Niles and
his friend, defendant Garth Russell Johnston ("Johnston"), obtained
the motor vehicle license plate numbers of the Investigators. Johnston then
asked his friend, Glenville Police Officer McKenna, to run the license plate
numbers and obtain information from the New York Statewide Police Information
Network ("NYSPIN"), to which McKenna had access through the Glenville
Police Department. (See Def. Glenville's Ex. F at 61, Def. Glenville's Ex. E at
42, 43, 48, Def. Glenville's Stmnt. of Mat. Facts at PP 6, 7, 18; Def.
McKenna's Stmnt. of Mat. Facts at PP 15-24, 29.) Johnston also asked McKenna to
run a "name search" on Louer. (Def. McKenna's Stmnt. of Mat. Facts at
P 29.) McKenna ran the license plate numbers of the Investigators. (Id. at P
17.) By running the license plates, he obtained information regarding the names
of the owners of the vehicles and their addresses. (Id. at PP 18-22; Def.
Glenville's Stmnt. of Mat. Facts at PP 7-11.) He then provided this information
to Johnston, who, in turn, provided the information to Niles. (Def. McKenna's
Stmnt of Mat. Facts at PP 23-24; Def. Glenville's Stmnt. of Mat. Facts at PP
12-13.) McKenna was unable to locate information on Louer. (Id. at P 18; Pl.'s
Stmnt. of Mat. Facts at P 18.)
Niles
and/or Johnston went to Louer's home; videotaped her family, including her
children; delivered the videotape together with a threatening note to her home;
sent her flowers with a threatening greeting card attached; and otherwise
harassed or threatened her. (Def. Glenville's Stmnt. of Mat. Facts at P 20;
Pl.'s Ex. H at 16-20.) Niles and/or Johnston also engaged in acts of vandalism
at the home of plaintiff John M. Margan. (Pl.'s Ex. H at 16-20.) Niles and/or
Johnston also engaged in harassing and/or threatening conduct towards plaintiff
Anthony Pellegrino (Def. Glenville's Ex. F at 64-65.) This conduct led to
criminal charges against Niles and Johnston. (See generally Pl.'s Ex. H.) Both
Niles and Johnston pleaded guilty to a count of conspiracy to commit extortion.
(See Pl.'s Ex. H.) The underlying criminal acts are part of the same acts at
issue in this matter. This action followed.
III. STANDARD OF REVIEW
A moving party is entitled to summary judgment "if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). The ultimate inquiry is whether a
reasonable jury could find for the nonmoving party based on the evidence
presented, the legitimate inferences that could be drawn from that evidence in
favor of the nonmoving party, and the applicable burden of proof. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505
(1986). In determining a motion for summary judgment, all inferences to be
drawn from the facts contained in the exhibits and depositions "must be
viewed in the light most favorable to the party opposing the motion."
United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct.
993 (1962); Hawkins v. Steingut, 829 F.2d 317, 319 (2d Cir. 1987). Nevertheless,
"the litigant opposing summary judgment 'may not rest upon mere conclusory
allegations or denials' as a vehicle for obtaining a trial." Quinn v.
Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting
SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). n1
IV. DISCUSSION
A. Driver's
Privacy Protection Act (First Cause of Action)
1. Parties Protected
Defendants first argue that
18 U.S.C. § 2724 only applies to Doreen M. Margan, Jeffrey Margan, Paul Mahan,
and Anthony Pellegrino, and not their spouses or children, because these are
the only plaintiffs whose personal information may have been improperly obtained
from motor vehicle records. Plaintiffs counter that the wording of the statute
is broad enough to include all persons whose information may have been
disclosed as a result of an improper use of motor vehicle records.
Information in a motor vehicle
record may pertain to more than just the motor vehicle operator. For example,
the title to a motor vehicle that is jointly owned by two or more people (e.g.
a husband and wife or three friends) will contain information (such as names)
pertaining to all those people. Similarly, the registration of a motor vehicle
registered to one spouse ordinarily will contain information (such as address
and telephone number) regarding the other spouse. n2 See 18 U.S.C. § 2725(3)
(defining address and telephone number as personal information protected under
the DPPA). This latter scenario is the
subject of the instant debate. The specific question is whether the spouse
and/or children of an individual whose address has been obtained from a motor
vehicle record may maintain an action under the DPPA where the spouse and
children share the same address as that individual.
A brief
history of the DPPA is helpful in understanding its purpose and the ensuing
discussion. The DPPA was part of crime fighting legislation enacted in response
to the murder of a young woman in Los Angeles, California in 1989. See 139
Cong. Rec. S15745-01, S15761-66 (1993); 145 Cong. Rec. S14533-02, S14538 (1999).
Rebecca Schaeffer was an actress who starred on a television show My Sister Sam
in the late 1980s. See 139 Cong. Rec. S15745-01, S15765. One of Schaeffer's
"fans," Robert Bardo, retained a private investigator who recorded
Schaeffer's license plate number. The investigator then went to the California
State Department of Motor Vehicles where, for a nominal fee, he was able to
obtain Ms. Schaeffer's home address. n3 See id. With the knowledge of
Schaeffer's home address, Bardo went to her home and murdered her. See id.
Following
this incident, several members of Congress sought to prevent state motor
vehicle departments from freely providing personal information obtained from
motor vehicle records. See 145 Cong. Rec. S14533-02, S14538. In 1994, Congress
enacted the Violent Crime Control and Law Enforcement Act of 1994, of which the
DPPA was a part. See Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, Tit. XXX, 108 Stat. 2099-2102, 18 U.S.C. § 2721 et. seq.
n4 Through the DPPA, Congress intended to prevent stalkers, harassers, would-be
criminals, and other unauthorized individuals from obtaining and using personal
information from motor vehicle records. See 145 Cong. Rec. S14533-02, S14538
("The murder of Rebecca Schaeffer led to the [DPPA]."); 141 Cong.
Rec. H416-06, H447 (1995) (statement of Rep. Dingell) ("Last year, as part
of the crime bill, Congress heard the concerns of women who were being stalked
because of easy access to motor vehicle records that reveal ... addresses. To
address this problem, Congress enacted the [DPPA]."); 140 Cong. Rec.
H2518,01, H2527 (1994) (statement of Rep. Goss) ("The intent of this bill
is simple and straightforward: We want to stop stalkers from obtaining the name
and address of their prey before another tragedy occurs ... The [DPPA] ... is a
reasonable and practical crime fighting measure."); 139 Cong. Rec.
S15745-01, S15764-66 (1993) (statements of Sens. Robb, Biden and Harkin)
(stating that "this amendment closes a loophole in the law that
permits stalkers to obtain - on demand
- private, personal information about their potential victims" and
discussing situations where: (1) anti-abortion activists obtained the name and
address of an obstetrical patient from department of transportation records and
sent her threatening letters; (2) an obsessive fan obtained the address of a
fashion model from the department of motor vehicles, and then went to her home
and assaulted her; and (3) a gang of teens located cars with expensive stereos,
recorded the license numbers and found the owner's home address through motor
vehicle records.) To further its intended goal, the DPPA provides for criminal
penalties, 18 U.S.C. § 2723(a), and a private cause of action, 18 U.S.C. §
2724(a).
Section
2724(a) of the DPPA provides that:
A person who knowingly obtains, discloses or uses personal information,
from a motor vehicle record, for a purpose not permitted under this chapter
shall be liable to the individual to whom the information pertains, who may
bring a civil action in a United States district court.
18 U.S.C. § 2724(a). Section
2725(1) defines the phrase "motor
vehicle record" to mean "any record that pertains to a motor vehicle
operator's permit, motor vehicle title, motor vehicle registration, or
identification card issued by a department of motor vehicles." The term
"person" is defined to include "an individual, organization or
entity." 18 U.S.C. § 2725(2). Finally, the phrase "personal
information" is defined to mean:
information that identifies
an individual, including an individual's photograph, social security number,
driver identification number, name, address (but not the 5-digit zip cope),
telephone number, and medical or disability information, but does not include
information on vehicular accidents, driving violations and driver's status.
18 U.S.C. § 2725 (3).
Which plaintiffs fall within the protection of the DPPA under
the facts and circumstances of this case may be resolved by an analysis of the
plain, unambiguous language of the statute. See In re The Caldor Corp., 303
F.3d 161, 167-68 (2d Cir. 2002). By
replacing the phrases "personal information" and "motor vehicle
record" with their statutory definitions, section 2724 reads as follows:
A person who knowingly
obtains, discloses or uses [information that identifies an individual, including an individual's ...
address], n5 from [any record that pertains to a motor vehicle operator's ...
motor vehicle title, motor vehicle registration, or identification card], n6
for a purpose not permitted under this chapter shall be liable to the
individual to whom the information pertains.
Further refining the
statute, it can be read as follows: "A person who knowingly obtains,
discloses or uses [information that identifies ... an individual's ...
address], n7 from a motor vehicle record ... shall be liable to the individual
to whom the information pertains." It, thus, is apparent from this
language that a person who unlawfully obtains an individual's address from a
motor vehicle record is liable to that individual. Accordingly, any individual
whose address was obtained from a motor vehicle record is a proper plaintiff.
This
conclusion is supported by further analysis of the language of the
statute. The DPPA distinguishes between
two types, or groups, of people: (1) "motor vehicle operators"; and
(2) "persons" and "individuals." Compare 18 U.S.C. §
2725(1) ("'motor vehicle record' means any record that pertain to a motor
vehicle operator's permit.") (emphasis supplied), with 18 U.S.C. § 2725(2)
("'person' means an individual.") When Congress wished to refer
solely to the operator of the motor vehicle, it knew how to do so. It,
therefore, follows that if Congress intended to limit the private cause of
action under section 2724(a) to motor vehicle operators or some other discrete
group, it would have expressly done so. Section 2724(a), however, states that
"the individual to whom the information pertains ... may bring a civil
action," thereby suggesting a class of persons broader than "motor
vehicle operators."
Similarly, the statute prohibits the disclosure of
"information that identifies an individual" obtained from "a
motor vehicle operator's permit," title, registration, or identification
card. 18 U.S.C. §§ 2724, 2725(1),(3). The word "an" is "the form
of a before an initial vowel sound." See Random House Dict. of the English
Lang. at 52 (1979)(emphasis in original). The word "a" is an
indefinite article and means "not any particular or certain one of a class or group." Id. at 1. By using an
indefinite article, the statutory language is broad enough to include personal
information pertaining to individuals other than a motor vehicle operator,
licensee, registrant or owner. n8 The statute, therefore, includes anyone
within that class of people whose personal information (including addresses)
was obtained from a motor vehicle operator's permit, registration, title, or
identification card "for a purpose not permitted [by the DPPA]." n9
18 U.S.C. § 2724.
In the
present matter, McKenna's search of motor vehicle records disclosed the
following:
- the name and address of
plaintiff Paul Mahan (Def. McKenna's Stmnt. of Mat. Facts at P 19);
- the name of plaintiff Jeffrey
Margan (Id. at P 20);
- the name and post office
address of Doreen Margan (Id. at P 21); and
- the name and address of
plaintiffs Eileen and Anthony Pellegrino (Id. at P 22); Thus, these plaintiffs
may maintain an action under the DPPA. n10
There is a
triable issue of fact whether plaintiffs John Margan, "A" Margan, and
"E" Margan are proper plaintiffs. The evidence in the record suggests
that McKenna ran Doreen Margan's license plate numbers and obtained a post
office box address. (Def. McKenna's Stmnt. of Mat. Facts at P 21; Def.
McKenna's Ex. FF.) The record does not reveal whether this post office box is
registered solely in the name of Doreen Margan, or whether it also is
registered in the name of John Margan or the entire family. If the post office
box is registered to John Margan, his personal information was obtained and he
is a proper DPPA plaintiff. Similarly, if the post office box is registered to
the Margan family, then their personal information was obtained from a motor
vehicle record and they are all proper DPPA plaintiffs. The evidence in the
record further suggests that the street address of John, Doreen, "A"
and "E" Margan was obtained through a modified NYSPIN search,
possibly by using Doreen Margan's driver's license. (Def. McKenna's Stmnt. of
Mat. Facts at P 21; Def. Glenville's Stmnt. of Mat. Facts at P 8; Pl.'s Stmnt.
of Mat. Facts at P 8.) If the Margan's street address was, in fact, obtained
from a motor vehicle record, then John, "A" and "E" Margan
are proper plaintiffs. n11
There is no
evidence, however, from which a fair-minded trier of fact could reasonably
conclude that the personal information of plaintiffs Clark Louer, Mary Ellen
Louer, "S" Louer, and "T" Louer was obtained from a motor
vehicle record. Although it is undisputed that McKenna ran a NYSPIN "name
search" on Mary Ellen Louer using the names "Emmie Louer" and
"E Louer," the search did not
reveal any personal information. (Def. McKenna's Stmnt. of Mat. Facts at P 29;
Pl.'s Resp. to Def. McKenna's Stmnt. of Mat. Facts at P 29.) The same applies
to plaintiffs Frank Margan, Tammy Margan, Michael Goguen, and Nancy Goguen.
Further, there is no evidence in the record from which a fair-minded trier of
fact could reasonably conclude that McKenna obtained personal information
concerning Frank Margan, Tammy Margan, Nancy Goguen, or Michael Goguen from a
motor vehicle record. Accordingly, Frank Margan, Tammy Margan, Mary Ellen
Louer, Clark Louer, "S" Louer, "T" Louer, Nancy Goguen, and
Michael Goguen may not maintain actions under the DPPA.
2. Town of Glenville
The Town of
Glenville argues that akin to actions pursuant to 42 U.S.C. § 1983, there is no
vicarious liability under 18 U.S.C. § 2724, and a municipality may be found
liable only upon proof of a municipal custom or policy. Glenville contends that
the DPPA's imposition of civil penalties on states only upon a showing of a
"policy or practice of substantial noncompliance," 18 U.S.C. §
2723(b), "provides another indication that governmental entities are to be
held responsible where there are institutional deficiencies present giving rise
to violations." (Def. Glenville's Mem. of Law at 11.) Plaintiffs respond
that the Town's argument is meritless and there are numerous situations in
which vicarious liability is imposed for violations of federal statutes.
The DPPA makes no reference
to the issue of vicarious liability. "Under general rules of agency law,
principals are liable when their agents act with apparent authority and commit
torts." Am. Soc. of Mech. Eng'rs v. Hydrolevel Corp., 456 U.S. 556, 565,
72 L. Ed. 2d 330, 102 S. Ct. 1935 (1982). "The apparent authority theory
has long been the settled rule in the federal system." Id. at 567.
"'Few doctrines of law are more firmly established or more in harmony with
accepted notions of social policy than that of the liability of the principal
without fault of his own.'" Id. at 568 (quoting Gleason v. Seaboard Air
Line R. Co., 278 U.S. 349, 356, 73 L. Ed. 415, 49 S. Ct. 161 (1929)). The
Supreme Court has noted that:
In a wide variety of areas, the federal courts, like this Court in
Gleason, have imposed liability upon principals for the misdeeds of agents
acting with apparent authority. See, e.g., Dark v. United States, 641 F.2d 805
(9th Cir. 1981) (federal tax liability); Nat'l Acceptance Co. v. Coal Producers
Ass'n, 604 F.2d 540 (7th Cir. 1979) (common-law tax fraud); Holloway v.
Howerdd, 536 F.2d 690 (6th Cir. 1976) (federal securities fraud); United States
v. Sanchez, 521 F.2d 244 (5th Cir. 1975) (bail bond fraud), cert. denied, 429
U.S. 817, 50 L. Ed. 2d 77, 97 S. Ct. 59 (1976); Kerbs v. Fall River Indus.
Inc., 502 F.2d 731 (10th Cir. 1974); Gilmore v. Constitution Life Ins. Co., 502
F.2d 1344 (10th Cir. 1974) (common law fraud).
Hyrdrolevel, 456 U.S. at
568.
Based on the foregoing principles, in Hydrolevel, a case
involving the antitrust laws, the Supreme Court stated that:
'The purposes of the
antitrust laws are best served by insuring that the private action will be an
ever-present threat' to deter antitrust violations. [Perma Life Mufflers, Inc.
v. Int'l Parts Corp., 392 U.S. 134, 139, 20 L. Ed. 2d 982, 88 S. Ct. 1981
(1968).] ... In this case, we can honor the statutory purpose best by interpreting the antitrust private
cause of action to be at least as broad as a plaintiff's right to sue for
analogous torts, absent indication that the antitrust laws are not intended to
reach so far ... A principal purpose of the antitrust private cause of action
... is, of course, to deter anticompetitive practices ... It is true that
imposing liability on ... agents themselves will have some deterrent effect,
because they will know that if they violate the antitrust laws ... they risk
the consequences of personal civil liability. But if, in addition, [the
principal] is civilly liable for the antitrust violations of its agents acting
with apparent authority, it is much more likely that similar antitrust
violations will not occur in the future. 'Pressure [will be] brought [on the
organization] to see to it that [its] agents abide by the law.' United States
v. A&P Trucking Co., 358 U.S. 121, 126, 3 L. Ed. 2d 165, 79 S. Ct. 203
(1958).
456 U.S. at 569-573.
Similarly, in Farragher v. the City of Boca Raton, 524 U.S. 775, 141 L. Ed. 2d
662, 118 S. Ct. 2275 (1998), the Supreme Court held that an employer, as
principal, can be held vicariously liable under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et. seq., for discrimination caused by the
principal's supervisory agents. Significantly, the Farragher Court did not
carve out any special exception for municipal employers.
More recently, in Meyer v. Holley, U.S. , 154 L. Ed. 2d
753, 123 S. Ct. 824 (2003), the Supreme Court held that the Fair Housing Act,
42 U.S.C. §§ 3604(b), 3605(a), imposed vicarious liability in accordance with
traditional agency principles.
This Court has noted that an
action brought for compensation by a victim of housing discrimination is, in
effect, a tort action ... And the Court has assumed that, when Congress creates
a tort action, it legislates against a legal background of ordinary
tort-related vicarious liability rules and consequently intends its legislation
to incorporate those rules ... It is well established that traditional
vicarious liability rules ordinarily make principals or employers vicariously
liable for acts of their agents or employees in the scope of their authority or
employment ... And Congress' silence, while permitting an inference that
Congress intended to apply ordinary background tort principles, cannot show
that it intended to apply an unusual modification of those rules. Where
Congress ... has not expressed a contrary intent, the Court has drawn the
inference that it intended ordinary rules to apply.
Meyer, 123 S. Ct. at 829.
In addition to the above-cited cases, the courts of appeal have
imposed vicarious liability for violations of other federal statutes. See,
e.g., Quick v. People's Bank of Cullman County, 993 F.2d 793 (11th Cir. 1993)
(RICO); United States v. O'Connell, 890 F.2d 563 (1st Cir. 1989) (False Claims
Act). In Jones v. Federated Fin. Reserve Corp., 144 F.3d 961, 965 (6th Cir.
1998), the Sixth Circuit held that vicarious liability may be imposed for
violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §
1861, et. seq. Jones is instructive because much like the DPPA, the FCRA is
designed to protect individuals' personal information. See Jones, 144 F.3d 961,
965 ("Protecting consumers from the improper use of credit reports is an
underlying policy of the FCRA."). In addressing whether the FCRA imposes
vicarious liability, the Sixth Circuit stated as follows:
In the absence of specific
language regarding the imposition of vicarious
liability based on apparent authority, we must consider whether an
apparent authority theory is consistent with Congress's intent behind the FCRA.
Protecting consumers from the improper use of credit reports is an underlying
policy of the FCRA. An apparent authority theory is in keeping with the FCRA's
underlying deterrent purpose because employers are in a better position to
protect consumers by use of internal safeguards. See Yohay v. City of
Alexandria Employees Credit Union, Inc., 827 F.2d 967, 972 (4th Cir. 1987)
(affirming an employer's liability under the FCRA for employee's wrongful
actions where employee-agent acted with apparent authority in improperly
obtaining a credit report); see also [Hydrolevel], 456 U.S. at 572-73 (finding
an apparent authority rule consistent with the statutory goal of deterring
antitrust violations); [In re] Atlantic Fin. Mgmt.[, Inc.], 784 F.2d [29,] 32
[(1st Cir. 1996)] (noting in the context of interpreting a securities statute
that "imposing [apparent authority] ... liability will encourage corporate
officials to prevent unauthorized (but 'apparently authorized')
misrepresentations, thereby helping to achieve an important ... purpose [of the
statute]"); Petro-Tech, Inc. v. Western Co. of No. Am., 824 F.2d 1349,
1356 (3d Cir. 1987) (noting applicability of common law doctrines in
application of federal statutes when common law principles advance the goals of
the particular federal statute). Because application of the apparent authority
doctrine advances the FCRA's goals and produces no inconsistencies with other
FCRA provisions, we conclude that such a theory of liability is an
appropriately operative theory of liability under the statute.
Jones, 144 F.3d at 965-66.
The same
principles apply to the instant situation.
The DPPA can be likened to a privacy-based tort action and the FCRA.
This is because like privacy-based torts and the FCRA, the DPPA protects the
unauthorized use and disclosure of personal information. See Hydrolevel, 456
U.S. at 565-66 (likening antitrust violations to torts); Jones, 144 F.3d at
965-66. "When Congress creates a tort action, it legislates against a
legal background of ordinary tort-related vicarious liability rules and
consequently intends its legislation to incorporate those rules." Meyer,
123 S. Ct. at 828. Moreover, like in the case of the antitrust laws, the FCRA,
and other similar statutes, imposing vicarious liability upon principals will
further the underlying purposes of the DPPA. Imposing individual liability on
agents will undoubtedly have some deterrent effect. "But, if in addition,
[the principal] is civilly liable for the [violations of the DPPA by] its agents acting with
apparent authority, it is much more likely that similar [DPPA] violations will
not occur in the future." Hydrolevel, 456 U.S. at 572. This is particularly so in the present situation
where law enforcement personnel are in a somewhat unique situation wherein they
have relatively easy, free, and unfettered access to motor vehicle records,
which access can lead to unchecked abuse. n12
By imposing vicarious liability upon employers, they will have incentive
to adopt appropriate policies and procedures to prevent the misuse of motor
vehicle records, thereby furthering the DPPA's goals of protecting individuals'
personal information found in motor vehicle records. See Jones, 144 F.3d 961. Because
there is nothing in the DPPA suggesting that it was not intended to impose
vicarious liability and "application of the apparent authority doctrine
advances the [DPPA's] goals and produces no inconsistencies with other [DPPA]
provisions, ... a theory of [vicarious] liability is an appropriately operative
theory of liability under the statute." Jones, 144 F.3d at 966;
Hydrolevel, 456 U.S. at 569. n13
Glenville's argument that a different rule should apply to
municipalities is unavailing. First, as
a general rule, municipalities, like most principals, may be held vicariously
liable for the torts of their agents. See, e.g., Faragiano v. Town of Concord,
96 N.Y.2d 776, 725 N.Y.S.2d 609, 749 N.E.2d 184 (2001). As discussed, in
Farragher the Supreme Court did not find reason to make special rules for the
imposition of vicarious liability on municipalities under Title VII. Likewise,
there is no reason to fashion such a special rule here.
Second, pursuant to 18
U.S.C. § 2724(a), states and state agencies are expressly exempted from civil
liability under the DPPA. n14 Municipalities are not. 18 U.S.C. §§ 2724 (a),
2725(2). A state department of motor vehicles may, however, be subject to a
civil penalty imposed by the Attorney General if it has "a policy or
practice of substantial noncompliance with this chapter." 18 U.S.C. §
2723(b). This differential treatment of states and state departments of motor
vehicles provides no basis upon which to conclude that Congress intended to
treat municipalities different than other "persons."
Third, a different rule applies with respect to actions brought
pursuant to 42 U.S.C. § 1983 because a municipality is liable under § 1983
"only ... when it can be fairly said that the [municipality] itself is the
wrongdoer." Collins v. City of Harker Heights, Texas, 503 U.S. 115, 122,
117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992).
"It is only when the execution of the government's policy or custom
inflicts the injury that the municipality may be held liable under §
1983." Id. (internal citations, quotations and alterations omitted).
"It [is] necessary to analyze whether execution of a municipal policy
inflicted the injury in ... cases [brought pursuant to 42 U.S.C. § 1983]
because, unlike ordinary tort litigation, the doctrine of respondeat superior
[is] inapplicable." Id. (emphasis added). As noted, the DPPA
is more akin to an ordinary tort than an action pursuant to section 1983 (which
requires conduct under "color of state law"), and therefore, analogy
to section 1983 principles of liability is inappropriate. n15
B. Conspiracy to Violate the DPPA - (Second Cause of Action)
Defendants McKenna and Glenville next move to dismiss
plaintiffs' conspiracy claim.
"There is no federal cause of action for conspiracy under common
law." See LaFountain v. Kerckaert, 95 F.3d 1152, 1996 WL 479131, at *2
(6th Cir. 1996) (table decision); see also In re Managed Care Litig., 185 F.
Supp.2d 1310, 1335 (S.D. Fl. 2002). Similarly there is no separate cause of
action for conspiracy under New York law. AHEPA 91, Inc. v. United Stated Dep't
of Housing and Urban Dev., 43 Fed. Appx. 450, 456 n.6., 01-1235 (2d Cir. 2002);
Alexander & Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968, 969, 510
N.Y.S.2d 546, 503 N.E.2d 102 (1986). "Allegations of conspiracy are
permitted only to connect the actions of separate defendants with an otherwise
actionable tort." Id.
Because there is no independent cause of action for conspiracy,
plaintiffs' Second Cause of Action must be dismissed as to all defendants. n16
See Hi Pockets, Inc. v. The Music Conservatory of Westchester, Inc., 192 F.
Supp.2d 143, 157 (S.D.N.Y. 2002). This does not mean that plaintiffs may not
offer proof of a conspiracy to violate the DPPA. Evidence of a conspiracy may
be used to connect the actions of the various defendants with a violation of
the DPPA. In the instant case, the extent to which McKenna knew of, and
participated in, Niles and Johnston's conduct or scheme is relevant to the
issue of whether McKenna knowingly obtained, disclosed, or used personal
information from a motor vehicle record "for a purpose not permitted"
by the DPPA. 18 U.S.C. § 2724(a); see 18 U.S.C. § 2721(b) (setting forth the
permissible uses); Fritzen, 68 N.Y.2d at 969.
C. Intentional Infliction of Emotional Distress - (Third Cause
of Action)
Defendants McKenna and Glenville also move to dismiss
plaintiffs' claim for the intentional infliction of emotional distress.
Plaintiffs have not opposed defendants' motion in this regard.
Under New York law, a claim for intentional infliction of
emotional distress requires a showing of: "(1) extreme and outrageous
conduct; (2) intent to cause, or reckless disregard of a substantial probability
of causing, severe emotional distress; (3) a causal connection between the
conduct and the injury; and (4) severe emotional distress." Conboy v. AT
& T Corp., 241 F.3d 242, 258 (2d Cir. 2001); Stuto v. Fleishman, 164 F.3d
820, 827 (2d Cir. 1999). "Liability has been found only where the conduct
has been so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized society." Murphy v. American Home Prods. Corp.,
58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983).
There is no evidence in the record from which a fair-minded
trier of fact could reasonably conclude that the conduct of these defendants
(running license plate numbers and/or name searches) constitutes extreme and
outrageous conduct. See, e.g., Rall v. Hellman, 284 A.D.2d 113, 115, 726
N.Y.S.2d 629 (1st Dep't 2001); Andrews v. Bruk, 220 A.D.2d 376, 377, 631
N.Y.S.2d 771 (2d Dep't 1995). Accordingly, the intentional infliction of
emotional distress claim must be dismissed against McKenna and Glenville.
D. Harassment - (Fourth Cause of Action)
Plaintiffs' cause of action for harassment must be dismissed
against all defendants n17 because New
York does not recognize such a civil cause of action. n18 Broadway Central
Property Inc. v. 682 Tenant Corp., 298 A.D.2d 253, 254, 749 N.Y.S.2d 225 (1st
Dept 2002); Goldstein v. Tabb, 177 A.D.2d 470, 575 N.Y.S.2d 902 (2d Dep't
1991), leave to appeal denied, 80 N.Y.2d 753 (1992).
E. Right to Privacy - (Fifth Cause of Action)
Plaintiffs' cause of action for a violation of their right to
privacy must be dismissed against all defendants n19 because New York only
recognizes a limited statutory right of privacy, and there is no allegation in
the Complaint or evidence in the record tending to suggest that any defendant
used a plaintiff's name, portrait, or picture for advertising or trade
purposes. See N.Y. Civ. Rights Law §§ 50, 51; Messenger v. Gruner & Jahr
Printing and Publishing, 94 N.Y.2d 436, 706 N.Y.S.2d 52, 727 N.E.2d 549 (2000).
n20
V. CONCLUSION
Any
individual whose address is obtained, used, or disclosed from a motor vehicle
record for a purpose not permitted by the DPPA, may bring a civil action
pursuant to 18 U.S.C. § 2724(a). The DPPA imposes vicarious liability upon
municipalities for the actions of their agents who act with apparent authority.
There is no independent cause of action for conspiracy to violate DPPA.
Plaintiffs failed to demonstrate that McKenna or Glenville engaged in extreme
or outrageous conduct sufficient to support a claim for the intentional
infliction of emotional distress. New York does not recognize a civil cause of
action for harassment. Plaintiffs failed to allege or set forth facts to
substantiate a privacy claim within the purview of N.Y. Civ. Rights Law §§ 50
and 51.
As a result of this decision,
the plaintiffs John M. Margan, Doreen M. Margan, "A" Margan, "E"
Margan, Jeffrey Margan, Paul M. Mahan, Anthony Pellegrino, and Eileen
Pellegrino may continue to maintain their First Cause of Action under the DPPA
against Niles, Johnston, McKenna, and Glenville. All plaintiffs may continue to
maintain their Third Cause of Action for intentional infliction of emotional
distress against Niles and Johnston.
Accordingly, it is
ORDERED
that
1. The First Cause of Action
is DISMISSED as to plaintiffs Frank Margan, Tammy Margan, Clark S. Louer, Mary
Ellen Louer, "S" Louer, "T" Louer, Michael Goguen, and
Nancy Goguen;
2. The Second Cause of
Action is DISMISSED in its entirety as to all defendants;
3. The Third Cause of Action
is DISMISSED as to defendants McKenna and Glenville;
4. The Fourth Cause of Action
is DISMISSED in its entirety as to all defendants;
5. The Fifth Cause of Action is DISMISSED in its entirety as to
all defendants.
IT IS SO ORDERED.
s/David N. Hurd
United States District Judge
Dated: March 18, 2003
FOOTNOTES:
N1 Before continuing, it should be noted
that plaintiffs' responsive statement of material facts fails to comply with
the requirements of N.D.N.Y.L.R. 7.1(a)(3).
Perhaps
the most abused Rule is 7.1(a)(3) ..., which requires a motion for summary
judgment to contain a Statement of Material Facts with specific citations to
the record where the facts are established. A similar obligation is placed upon
the non-movant who 'shall file a response to the Statement of Material Facts ...
[setting] forth a specific citation to the record where the factual issue
arises.' N.D.N.Y. L.R. 7.1(a)(3). This is not a complex procedural requirement
with which to comply, but a simple, straightforward requirement designed to
force litigants to focus sharply on the specific factual issues in dispute, and
to enable the Court to move immediately to the gravamen of the case.
Osier v.
Broome County, 47 F. Supp.2d 311 317 (N.D.N.Y. 1999) (internal quotations and
citations omitted).
Plaintiffs'
Rule 7.1(a)(3) statement, which contains numerous denials, does not contain a
single citation to the record. Because plaintiffs' responsive Rule 7.1(a)(3)
statement does not comply with the local rules, it has not been considered. See
N.D.N.Y.L.R. 7.1(b)(3) ("Any
papers required under this Rule that are ... not in compliance with this Rule
shall not be considered unless good cause is shown.").
n2 This
is because both spouses frequently have the same address and telephone number.
n3 Many
state departments of motor vehicles made personal information freely available
upon payment of a fee. See 139 Cong. Rec. S15745-01, S15762.
n4 In
its reply memorandum of law, Glenville posits that "the main impetus for
the [DPPA] was to address a perceived problem from sales of motor vehicle
record information for commercial purposes." (Def. Glenville's Reply Mem.
of Law at 4.) While the commercial use of personal information from motor
vehicle records was a concern, see Reno v. Condon, 528 U.S. 141, 149, 145 L.
Ed. 2d 587, 120 S. Ct. 666 (2000), as the instant discussion makes clear, the
DPPA was a crime fighting measure; not a general privacy protection measure.
n5 The
phrase "information that identifies an individual, including an
individual's ... address" comes from the statutory definition of
"personal information" found at 18 U.S.C. § 2725(3) and is substituted
in place of the phrase "personal information."
n6 The
phrase "any record that pertain to a motor vehicle operator's ... motor
vehicle title, motor vehicle registration, or identification card" comes
from the statutory definition of "motor vehicle record" found at 18
U.S.C. § 2725(1) and is substituted in place of the phrase "motor vehicle
record."
n7 This
alteration of the statute replaces the phrase "personal information"
with the relevant language from the statutory definition of that phrase.
n8 If
Congress wished to limit the scope of the statute, it could have used a
definite article, such as "the" or a more specific word, such as
"that." Id. at 1469, 1470. For example, Congress could have
prohibited the disclosure of information that identifies an individual obtained
from the (or that) individual's motor vehicle operator's permit, title,
registration or identification card. Alternatively, Congress could have
prohibited the disclosure of personal information from a motor vehicle record
pertaining to the (or that) individual. These alternative approaches would have
the effect of limiting the private cause of action to the individual whose
motor vehicle record was actually obtained. However, Congress did not adopt
such an approach.
n9 In
describing the structure of the DPPA, the Supreme Court stated that "any
person who knowingly obtains, discloses, or uses information from a state motor
vehicle record ... may be subject to liability in a civil action brought by the
driver to whom the information pertains." Reno v. Condon, 528 U.S. 141,
146-47, 145 L. Ed. 2d 587, 120 S. Ct. 666 (2000) (emphasis added). This
statement was unnecessary to the resolution of the matter before the Supreme
Court (the constitutionality of the DPPA) and was merely a brief overview of
the structure of the DPPA. The Supreme Court did not have reason to discuss the
class of persons who may bring suit under the DPPA. Accordingly, this statement
is, at most, dicta.
n10 Defendants do not dispute that Paul
Mahan, Jeffrey Margan, Doreen Margan and Anthony Pellegrino may maintain an
action under the DPPA. (See Def. Glenville's Mem. of Law at 8; Def. McKenna's
Mem. of Law at 2.) Eileen Pellegrino is a proper plaintiff because her address
was disclosed from a search on Anthony Pellegrino's license plates. (See Def.
McKenna's Stmnt. of Mat. Facts at P 5.)
n11 This
is because John, Doreen, "A" and "E" Margan all reside at
the same address. (See Def. McKenna's Stmnt. of Mat. Facts at P 2.). Permitting
John, "A" and "E" Margan to maintain an action under the
DPPA would further Congress's intent. Niles undoubtedly wished to obtain
personal information about John Margan, one of the individuals that was
investigating his workers' compensation claim. Niles sought to obtain such
information by recording the license plate number of a vehicle driven by John
Margan and, through Johnston, having McKenna run the license plate number. The
vehicle, however, was not owned by John Margan, but by his wife, Doreen Margan.
(See Def. McKenna's Stmnt. of Mat. Facts at P 9; Def. Glenville's Stmnt. of
Mat. Facts at P 8.) Niles used the information regarding Doreen Margan to learn
John Margan's address (which also is the address of his minor children) and
engage in criminal conduct. As previously discussed, the DPPA was specifically
designed to prevent persons such as Niles and Johnston from using motor vehicle
records as a means of perpetrating their criminal and/or harassing behavior.
n12 McKenna testified at deposition that he
runs license plate numbers for private citizens approximately six to ten times
per year. (Def. McKenna's Ex. AA at 83.) McKenna also suggested that other
employees of the Glenville Police Department have run names or plates through
the NYSPIN and given the information to private citizens. (Id. at 84-86.) Congress
was cognizant of the potential of abuse of motor vehicle records by law
enforcement officers. See 139 Cong. Rec. S15958-04, S15962 (1993) (Statement of
Sen. Harkin) ("A false representation that this information will be used
for law enforcement purposes would be punishable ... Similarly, a law
enforcement officer who knowingly provided personal information to a person or
group who intended to use that information for purposes that were not in
furtherance of the function of that officer's agency would be in violation of
the [DPPA].")
n13
Arguably, there would be an inconsistency in imposing vicarious liability upon
states and state agencies because they are exempted from civil liability under
18 U.S.C. § 2724. That issue, however, need not be addressed in this case.
There are no inconsistencies with imposing vicarious liability upon
municipalities.
n14
Section 2724(a) imposes liability upon
a "person" who improperly obtains, discloses or uses personal
information from a motor vehicle record. States and state agencies are excluded
from the statutory definition of "person." 18 U.S.C. § 2725(2).
n15 Had
Congress wished a different result with respect to municipalities, it could
have retained section 1983 as the mechanism for suing municipalities for
violations of the DPPA. Congress carefully defined the term "person"
and, in so doing, excluded states and state agencies. 18 U.S.C. § 2725(2).
Congress's decision not to exclude municipalities evinces its intention to put
municipalities on the same footing as all other "persons."
n16 Even though Niles and Johnston have not
made motions, no purpose would be served by keeping them as defendants in this
cause of action.
n17 See
footnote 16.
n18
Plaintiffs did not oppose defendants' motion to dismiss the harassment claim.
n19 See
footnote 16.
n20
Plaintiffs did not oppose defendants' motion to dismiss the privacy claim.