Opinion
06 Civ. 3676 (PAC)(KNF).
September 15, 2006
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Lillian Figueroa ("Figueroa"), proceeding pro se, brings this action against defendants Deighton "Cleve" Taylor ("Taylor") and Riverbay Corporation alleging a violation of the Driver's Privacy Protection Act of 1994 ("DPPA"), 18 U.S.C. § 2721 et seq. Before the Court is the defendants' motion, made pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the plaintiff's amended complaint, for failure to state a claim upon which relief can be granted. The defendants contend that the plaintiff cannot obtain any relief under DPPA because they did not obtain the plaintiff's "personal information," as that phrase is defined in the statute, by performing a search of a state motor vehicle department's ("DMV") records.
The plaintiff opposes the defendants' motion. She maintains the defendants violated DPPA by disclosing, improperly, "personal information" they obtained about her from a motor vehicle record, to wit, the plaintiff's New York state DMV learner's permit, which she provided to defendant Riverbay Corporation.
II. BACKGROUND AND FACTS
Figueroa was employed briefly by Riverbay Corporation's Public Safety Department as a public safety officer. A valid New York state driver's license is a requirement for the public safety officer position Figueroa held. During the time Figueroa held the public safety officer position with Riverbay Corporation, she did not possess the requisite driver's license. Figueroa did possess a learner's permit issued to her by New York's DMV, which she submitted to Riverbay Corporation. Figueroa alleges that Taylor, a member of the board of directors of Riverbay Corporation, obtained a copy of her learner's permit from the corporation's Public Safety Department, without her consent and that, in contravention of DPPA provisions, he disclosed publicly her "personal information," specifically, her home address.
In support of her allegation, Figueroa attached to her amended complaint a newspaper article concerning the termination by Riverbay Corporation of her employment, and that of two other public safety officers. They, like Figueroa, were allegedly hired improperly, that is, ahead of candidates for the public safety officer position whose names appeared on an employment waiting list, and before Figueroa, and the two officers dismissed with her, had completed successfully a public safety officer pre-employment examination. The newspaper article contains Figueroa's home address. The article also reports that Taylor discovered that Figueroa was a tenant in a building owned by a public safety captain employed by Riverbay Corporation and, furthermore, that Taylor's discovery of the landlord-tenant relationship that Figueroa had with that captain may have led to Riverbay Corporation's determination to terminate Figueroa's employment.
In addition to the newspaper article, Figueroa also attached to her amended complaint a copy of a memorandum Taylor sent to Frank Mulgrew ("Mulgrew"), Chief, Riverbay Corporation, Public Safety Department, requesting that he provide to Taylor "all records regarding terminated employee Lillian Figueroa in your possession. This includes NYS Department of Motor Vehicle [sic] Learner's Permit." Taylor's memorandum is dated March 21, 2006, the same date on which the above-noted newspaper article was published.
For the purpose of the instant motion, the defendants do not dispute the factual allegations made in Figueroa's amended complaint. However, they contend that DPPA does not apply in the circumstance of the case at bar because the plaintiff's "personal information" was obtained directly from her and not from a state motor vehicle agency. Therefore, according to the defendants, since DPPA applies only to records obtained from a state motor vehicle agency, no violation of DPPA's proscriptions was committed by them.
III. DISCUSSION
Standard of Review for Motion to Dismiss
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted only if "it appears beyond doubt, even when the complain is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (quotingHoover v. Ronwin, 466 U.S. 558, 587, 104 S. Ct. 1989, 2005). In considering the motion, the court must take "the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). The court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).
In a case such as this, in which the plaintiff is a pro se litigant, the Court must be mindful that the plaintiff's pleadings "[are to be] held 'to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176, (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595). "The Court has the duty to 'read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest.'" Dibbs v. Roldan, 356 F. Supp. 2d 340, 348 (S.D.N.Y. 2005) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) [citations omitted]).
The Driver's Privacy Protection Act ("DPPA")
The plaintiff asserts that the defendants violated DPPA, citing 18 U.S.C. § 2721 and § 2724(a) specifically. "The DPPA establishes a regulatory scheme that restricts the States' ability to disclose a driver's personal information without the driver's consent." Reno v. Condon, 528 U.S. 141, 143, 120 S. Ct. 666, 668 (2000). Under DPPA "[a] State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: (1) personal information, as defined in 18 U.S.C. § 2725(3), about any individual obtained by the department in connection with a motor vehicle record." 18 U.S.C. § 2721(a)(1). DPPA defines personal information as, inter alia, "information that identifies an individual," including an individual's address. 18 U.S.C. § 2725(3). DPPA explains that the term motor vehicle record means "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." 18 U.S.C. § 2725(1).
While § 2721(a) imposes criminal liability on a motor vehicle department and its contractors for unlawful disclosure of personal information, § 2724(a) creates a private right of action to enforce violations of § 2721 and states 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." 18 U.S.C. § 2724(a).
To establish a claim under DPPA, the plaintiff must show "that the defendants caused a DMV search to be made," and "that the search was not permitted by any exception to the DPPA."Luparello v. Incorporated Village of Garden City, 290 F. Supp. 2d 341, 344 (E.D.N.Y. 2003) (citing Cowan v. Codelia, 2001 WL 856606, at *8 [S.D.N.Y. July 30, 2001]). See also Manso v. Santamarina Associates, No. 04 Civ. 10276, 2005 WL 975854, at *3 (S.D.N.Y. Apr. 26, 2005). The plaintiff does not allege that the defendants performed a search with the New York state DMV or that they caused a DMV search to be made by a third party to obtain her "personal information." Rather, the plaintiff alleges that Taylor obtained a copy of her New York state learner's permit from Mulgrew, and defendants do not dispute this allegation. However, Mulgrew is not a state motor vehicle agency. This is significant because, as the court in Margan v. Niles, 250 F. Supp. 2d 63 (N.D.N.Y. 2003) explained — based on its thorough analysis of pertinent legislative history — prior to its enactment, Congress emphasized that DPPA's purpose was to prohibit state motor vehicle agencies from disclosing personal information contained in motor vehicle records, except in certain circumstances specifically enumerated in the statute. See Margan, 250 F. Supp. 2d at 68-69. That DPPA was enacted to regulate the disclosure and use of personal information obtained from a state DMV was confirmed by the Supreme Court when it stated, in upholding the statute's constitutionality, that DPPA not only applies to states, but also "regulates the resale and redisclosure of drivers' personal information by private persons who have obtained that information from a state DMV." Reno, 528 U.S. at 146, 120 S. Ct. at 669 (emphasis added).
In this instant case, the parties agree that the source of the personal information concerning the plaintiff that Taylor obtained was not the New York state DMV. The "personal information" concerning Figueroa that is contained in Riverbay Corporation's Public Safety Department files was provided to the corporation by Figueroa when she sought and obtained the public safety officer position from which she was later dismissed. Where, as here, a defendant does not obtain a plaintiff's "personal information" from a state motor vehicle agency, but instead, obtains that information directly from the plaintiff, any subsequent disclosure of that "personal information" is not a DPPA violation. See O'Brien v. Quad Six, Inc., 219 F. Supp. 2d 933 (N.D. Ill. 2002). Figueroa's failure to allege any facts establishing that her "personal information" was obtained by the defendants from the New York state DMV is fatal to her claim.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the defendants' motion to dismiss the plaintiff's amended complaint, pursuant to Fed.R.Civ.P. 12(b)(6), be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty, 500 Pearl Street, Room 735, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).