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Garey v. Farrin

United States District Court, M.D. North Carolina

October 1, 2017

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,
v.
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.

         Plaintiffs 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.

         I. BACKGROUND

         Based on the allegations in Plaintiffs' First Amended Complaint (the "Complaint"), [1]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')]."[2] (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.)

         Two of the accidents involved drivers who were not the registered owners of the vehicles involved in each crash.[3] (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.)

         Defendants 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. ¶¶ 73-78.)

         The 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.)[4]

         II. STANDARDS OF REVIEW

         A. Rule 12(b)(1)

         Under 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.

         B. Rule 12(b)(6)

         A 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)).

         "To 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. 2013).

         While a 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.

         III. DISCUSSION

         A. Article III Standing

         The 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 intervention").

         Under 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).

         Relying in large measure on the Supreme Court's decision in Spokeo, Inc. v. Robins, Defendants[5] 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." (Id.)

         In 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.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Congress, 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 ...


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