United States District Court, M.D. North Carolina
JAMES WEAVER GAREY, WILLIAM PARKER GAREY, AARON KENT CRUTHIS, AMANDA DAVIS REILLY, ADILAH HANEEFAH-KHADI MCNEIL, CHARLOTTE MOFFAT CLEVENGER, ANDREW CHRISTOPHER CLEVENGER, and JUSTIN BRENT BLAKESLEE on behalf of themselves and others similarly situated, Plaintiffs,
JAMES S. FARRIN, P.C. d/b/a LAW OFFICES OF JAMES SCOTT FARRIN; JAMES S. FARRIN; MARCARI, RUSSOTTO, SPENCER & BALABAN, P.C; DONALD W. MARCARI; RIDDLE & BRANTLEY, L.L.P.; SEAN A. COLE; WALLACE PIERCE LAW, PLLC; JARED PIERCE; VAN LANINGHAM & ASSOCIATES, PLLC d/b/a BRADLEY LAW GROUP; R. BRADLEY VAN LANINGHAM; LANIER LAW GROUP, P.A.; LISA LANIER; CRUMLEY ROBERTS, LLP; CHRIS ROBERTS; HARDISON & COCHRAN, PLLC; BENJAMIN T. COCHRAN; TED A. GREVE & ASSOCIATES, P.A.; TED A. GREVE; LAW OFFICES OF MICHAEL A. DEMAYO, L.L.P.; MICHAEL A. DEMAYO; HARDEE & HARDEE, LLP; CHARLES HARDEE and G. WAYNE HARDEE; Defendants.
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
initiated this action alleging that the above-named
Defendants violated the Driver's Privacy Protection Act
("DPPA"), 18 U.S.C. § 2721, etseq.
(ECF Nos. 1, 32.) Before the Court are the following three
motions to dismiss filed by Defendants: (1) Motion to Dismiss
First Amended Complaint, filed by Defendants James S. Farrin,
P.C. d/b/a Law Offices of James Scott Farrin, James S.
Farrin, Marcari, Russotto, Spencer & Balaban, P.C, Donald
W. Marcari, Riddle & Brantley, L.L.P., Sean A. Cole,
Wallace Pierce Law, PLLC, Jared Pierce, Van Laningham &
Associates, PLLC d/b/a Bradley Law Group, R. Bradley Van
Laningham, Lanier Law Group, P.A., Lisa Lanier, Crumley,
Roberts, LLP, Chris Roberts, Hardee & Hardee, LLP,
Charles Hardee, and G. Wayne Hardee, (collectively, "the
Farrin Defendants"); (2) Motion to Dismiss, filed by
Hardison & Cochran, PLLC, Benjamin T. Cochran, Ted A.
Greve, and Ted A. Greve & Associates, P.A.,
(collectively, "the Hardison & Cochran
Defendants"); and (3) Motion to Dismiss, filed by
Michael A. DeMayo and Law Offices of Michael A. DeMayo, LLP,
(collectively, "the DeMayo Defendants"). (ECF Nos.
60, 62, 79.) For the reasons set forth below, each motion
will be denied.
on the allegations in Plaintiffs' First Amended Complaint
(the "Complaint"), each Plaintiff is a driver
("Plaintiff-Driver") or owner
("Plaintiff-Owner") of a vehicle that was involved
in a motor vehicle accident. (ECF No. 32 ¶¶ 49-54,
56-57.) A law enforcement officer was sent to the scene of
each accident to conduct an investigation. (Id.
¶ 58.) While at each accident scene, the investigating
officer "asked each Plaintiff-Driver for his or her
driver's license, and said Plaintiff-Driver presented his
or her license." (Id. ¶ 59.) Each
investigating officer "obtained [each]
Plaintiff-Driver's name, address, date of birth and
driver's license number." (Id. ¶ 60.)
Plaintiffs allege that this information "came from a
department of motor vehicles, either from [a] driver's
license or from the database of drivers' license data
maintained by the [North Carolina Division of Motor Vehicles
('NCDMV')]." (Id.) With the information
provided, the officer at each scene prepared an accident
report, known as a DMV-349. (Id.) Each officer also
verified with each Plaintiff-Driver that the information
reflected on the Plaintiff-Driver's license was correct.
(Id. ¶ 61.) Each officer then "checked a
box on the DMV-349 to indicate that the actual address of the
Plaintiff-Driver involved in the accident matched the address
on his or her driver's license." (Id.)
the accidents involved drivers who were not the registered
owners of the vehicles involved in each crash. (Id.
¶¶ 56-57.) At each of these accident scenes, the
officer documented, on the DMV-349, the vehicle registration
information of each vehicle's Plaintiff-Owner.
(Id. ¶ 62.) This information included the name,
address, license plate year and number of the vehicle's
Plaintiff-Owner. (Id.) The officer obtained this
information from the "NCDMV, either from the
registration card for the involved vehicle or from the
database of motor vehicle registration data maintained by the
NCDMV." (Id.) The completed DMV-349 forms for
each accident were filed with each officer's police
department, "which filed said DMV-349 with the
NCDMV." (Id. ¶ 63.)
are North Carolina attorneys and law firms that, within a few
days of each accident involving Plaintiffs, obtained a copy
of each accident report. (Id. ¶¶ 64-69.)
Each Defendant allegedly "obtained the DMV-349s . . .
for the purpose of marketing that Defendant's legal
services." (Id. ¶ 70.) Using information
from the DMV-349 forms, including Plaintiffs' names and
addresses, Defendants addressed and mailed "marketing
materials" to each Plaintiffs address. (Id.
instant lawsuit arises from Plaintiffs' allegations that
Defendants' conduct violates the DPP A. Defendants have
each moved to dismiss the Complaint for lack of
subject-matter jurisdiction and failure to state a claim,
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules
of Civil Procedure. (ECF Nos. 60, 62, 79.)
STANDARDS OF REVIEW
Rule 12(b)(1), a party may seek dismissal based on the
court's "lack of subject-matter jurisdiction."
Fed. R Civ. P. 12(b)(1). Subject-matter jurisdiction is a
threshold issue that relates to the court's power to hear
a case and must be decided before a determination on the
merits of the case. Constantine v. Hectors & Visitors
of George Mason Univ., 411 F.3d 474, 479- 80 (4th Cir.
2005). A motion under Rule 12(b) (1) raises the question of
"whether [the plaintiff] has a right to be in the
district court at all and whether the court has the power to
hear and dispose of [the] claim." Holloway v. Pagan
River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th
Cir. 2012). The burden of proving subject matter jurisdiction
rests with the plaintiff. McNutt v. Gen. Motors
Acceptance Corp. of lnd., 298 U.S. 178, 189 (1936);
Adams v. Bam, 697 F.2d 1213, 1219 (4th Cir. 1982).
When evaluating a Rule 12(b)(1) motion to dismiss, a court
should grant the motion "only if the material
jurisdictional facts are not in dispute and the moving party
is entitled to prevail as a matter of law."
Richmond, Fredericksburg <& Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991). On a
motion to dismiss for lack of standing, a court must construe
the complaint in the plaintiffs favor, accepting as true the
factual allegations in the complaint. Worth v.
Seldin, 422 U.S. 490, 501 (1975); see also
Kerns, 585 F.3d at 192.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure "challenges the legal sufficiency of a
complaint, " including whether it meets the pleading
standard of Rule 8(a)(2). Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a
complaint to contain "a short and plain statement of the
claim showing that the pleader is entitled to relief, "
Fed.R.Civ.P. 8(a)(2), thereby "giv[ing] the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests." Bell Atl. Corp. v. Fwombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)).
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.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Fwombly, 550 U.S. at 570). A complaint may fail to
state a claim upon which relief can be granted in two ways:
first, by failing to state a valid legal cause of action,
i.e., a cognizable claim, see Holloway, 669
F.3d at 452; or second, by failing to allege sufficient facts
to support a legal cause of action, see Painter's
Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir.
court's evaluation of a Rule 12(b)(6) motion to dismiss
is "generally limited to a review of the allegations of
the complaint itself, " a court can properly consider
documents "attached to the complaint as exhibits."
Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,
165-66 (4th Cir. 2016). A court may also consider a
"document submitted by the movant that was not attached
to or expressly incorporated in a complaint, so long as the
document was integral to the complaint and there is no
dispute about the document's authenticity."
Id. at 166. Here, no party has challenged the
authenticity of the various documents attached to
Defendants' motions to dismiss. Therefore, in addition to
considering the documents attached to Plaintiffs'
Complaint, the Court will also consider the exhibits attached
to the instant motions to dismiss.
Article III Standing
Farrin Defendants, the Hardison & Cochran Defendants, and
the DeMayo Defendants move to dismiss the Complaint on a
number of grounds, including that Plaintiffs lack Article III
standing to assert a claim under the DPP A. (See ECF
Nos. 60, 62, 79.) Because standing is a threshold issue, the
Court will, first, address this basis for dismissal. See
Warth, 422 U.S. at 517-18 (stating that standing is a
"threshold determinant[ ] of the propriety of judicial
Article III of the United States Constitution, the
jurisdiction of a federal court is limited to cases and
controversies. U.S. Const, art. Ill. § 2. Standing to
sue, therefore, "ensure[s] that federal courts do not
exceed their authority." Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016). To establish
constitutional standing at the motion to dismiss stage,
Plaintiffs must plausibly allege that they have: "(1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision." Id. Plaintiffs bear the burden of
establishing these elements. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992). "Where, as
here, a case is at the pleading stage, [Plaintiffs] must
'clearly . . . allege facts demonstrating' each
element." Spokeo, 136 S.Ct. at 1547 (quoting
Worth, 422 U.S. at 518).
in large measure on the Supreme Court's decision in
Spokeo, Inc. v. Robins, Defendants argue that
Plaintiffs lack Article III standing because "their
allegations are divorced from any concrete harm, " (ECF
No. 61 at 9 (internal quotation marks omitted)), and they
have failed to allege actual injury or damages, (see
ECF No. 63 at 9-11). Plaintiffs argue, in response, that they
have Article III standing because they have alleged a
concrete injury sufficient to meet the injury-in-fact
requirement. (See ECF No. 67 at 8-17.) Specifically,
Plaintiffs contend that the privacy rights addressed by the
DPPA "bear a strong resemblance to harms cogni2able at
common law." (ECF No. 67 at 8.) Plaintiffs further argue
that they "have alleged the precise types of harm
encompassed by the DPPA, " as well as "substantial,
as opposed to merely technical, violations of the DPPA."
Spokeo, the Supreme Court reiterated that to
establish the first element of standing- injury in
fact-"a plaintiff must show that he or she suffered
'an invasion of a legally protected interest' that is
'concrete and particularized' and 'actual or
imminent, not conjectural or hypothetical.'"
Id. at 1548 (quoting Lujan, 504 U.S. at
560). As to concreteness, the Court clarified that "[a]
concrete injury must be defacto; that is, it must
actually exist, " and it must be "real, and not
abstract." Id. (internal quotation marks
omitted). As further explained by the Court, however,
'"[c]oncrete' is not.. . necessarily synonymous
with 'tangible, '" for intangible injuries can
also be concrete. Id. at 1549. Thus, to determine
"whether an intangible harm constitutes injury in fact,
" a court should consider the following: (i) the
judgment of Congress which "is well positioned to
identify intangible harms that meet minimum Article III
requirements"; and (ii) whether the alleged intangible
harm bears a close relationship to "harm that has
traditionally been regarded as providing a basis for a
lawsuit in English or American courts." Id.
in its judgment, may elevate "de facto injuries
that were previously inadequate in law" to the status of
legally cognizable, concrete injuries. Lujan, 504
U.S. at 578. The Supreme Court has cautioned, however, that
this "does not mean that a plaintiff automatically
satisfies the injury-in-fact requirement whenever a statute
grants a person a statutory right and purports to authorize
that person to sue to vindicate that right."
Spokeo, 136 S.Ct. at 1549. In elaborating on the
connection between standing and a concrete injury, the Court
explained that "Article III standing requires a concrete
injury even in the context of a statutory violation."
Id. Thus, a plaintiff cannot "allege a bare
procedural violation, divorced from any concrete harm, and
satisfy the injury-in-fact requirement of Article III."
Id. Nonetheless, "the violation of a procedural
right granted by statute ...