United States District Court, M.D. North Carolina
JONATHAN HATCH, MARK DVORSKY, and SHATERIKA NICHOLSON, on behalf of themselves and others similarly situated, Plaintiffs,
MICHAEL A. DEMAYO, individually; THE LAW OFFICES OF MICHAEL A. DEMAYO, P.C.; LAW OFFICES OF MICHAEL A. DEMAYO, L.L.P.; JASON E. TAYLOR, individually; LAW OFFICES OF JASON E. TAYLOR, P.C.; BENJAMIN T. COCHRAN, individually; HARDISON & COCHRAN, PLLC; CARL B. NAGLE, individually; NAGLE & ASSOCIATES, P.A.; JOHN J. GELSHENEN, individually; DAVIS & GELSHENEN LLP; MARK I. FARBMAN, individually, MARK FARBMAN, P.A.; TED A. GREVE, individually; TED A. GREVE & ASSOCIATES, P.A.; CHRISTOPHER T. MAY, individually and ESTWANIK AND MAY, P.L.L.C; Defendants.
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS UNITED STATES DISTRICT JUDGE
initiated this action alleging that the above-named
Defendants violated the Driver's Privacy Protection Act
(“DPPA”), 18 U.S.C. § 2721, et seq.
(ECF Nos. 1, 5.) Before the Court are the following two
motions to dismiss filed by Defendants: (1) Motion to Dismiss
First Amended Complaint, filed by Defendants Mark I. Farbman
and Mark Farbman, P.A., (collectively, “the Farbman
Defendants”); and (2) Motion to Dismiss, filed by
Michael A. Case 1:16-cv-00925-LCB-LPA Document 35 Filed
09/29/17 Page 1 of 22 DeMayo, Law Offices of Michael A.
DeMayo, P.C., Law Offices of Michael A. DeMayo, LLP, Jason E.
Taylor, Law Offices of Jason E. Taylor, P.C., Benjamin T.
Cochran, Hardison & Cochran, PLLC, Carl B. Nagle, Nagle
& Associates, P.A., John J. Gelshenen, Davis &
Gelshenen, LLP, Ted A. Greve, Ted A. Greve & Associates,
P.A., Christopher T. May, and Estwanik and May, PLLC,
(collectively, “the DeMayo Defendants”). (ECF
Nos. 21, 23.) For the reasons set forth below, each motion
will be denied.
on the allegations in Plaintiff's First Amended Complaint
(the “Complaint”), each Plaintiff is a driver of a
vehicle that was involved in a motor vehicle accident. (ECF
No. 5 ¶¶ 27, 39, 51.) A law enforcement officer was
sent to the scene of each accident to conduct an
investigation. (Id. ¶¶ 28, 40, 52.) At the
accident scene involving Plaintiff Johnathan Hatch, the
investigating officer requested and obtained Plaintiff
Hatch's driver's license. (Id. ¶ 29.)
Likewise, the investigating officer at the accident scene
involving Plaintiff Mark Dvorksy requested and obtained
Plaintiff Dvorsky's driver's license. (Id.
¶ 41.) Each investigating officer prepared an accident
report, known as a DMV-349, using information directly from
the driver's licenses of Plaintiffs Hatch and Dvorsky.
(Id. ¶¶ 29, 41.) The information included
Plaintiffs Hatch's and Dvorsky's names, addresses,
dates of birth, telephone numbers and driver's license
numbers. (Id. ¶¶ 29, 41.) Plaintiffs
allege that the source of this information was the North
Carolina Division of Motor Vehicles (“NCDMV”).
(Id. ¶¶ 29, 41.) The officers also
verified that the information reflected on Plaintiffs
Hatch's and Dvorsky's driver's licenses was
correct. (Id. ¶¶ 30, 42.) Each officer
then “checked a box on the DMV-349 to indicate”
that the actual address of Plaintiffs Hatch and Dvorsky
matched the address on each of their driver's licenses.
(Id. ¶¶ 30, 42.)
accident scene involving Plaintiff Shaterika Nicholson
(“the Nicholson Accident”), the investigating
officer “obtained Plaintiff Shaterika Nicholson's
name from first responders already on the scene.”
(Id. ¶ 53.) The investigating officer then
“returned to his patrol car and . . . entered Plaintiff
Shaterika Nicholson's name in the vehicle's onboard
computer, which, in turn, accesse[d] the NCDMV database,
” and identified Plaintiff Nicholson by her
driver's license number. (Id.) The
“onboard computer” prompted the investigating
officer to enter Plaintiff Nicholson's “DMV
information into the DMV-349, which is a self-populating
computer form.” (Id.) The officer selected the
electronic option for Plaintiff Nicholson's full name and
address to be entered on the DMV-349 computer form.”
(Id.) The officer also entered Plaintiff
Nicholson's vehicle registration information onto the
DMV-349. (Id. ¶ 54.) Plaintiffs allege that the
“source of this information was the NCDMV database
accessed by the onboard computer in [the investigating
officer's] patrol car.” (Id. ¶ 54.) A
completed DMV-349 form for each accident involving Plaintiffs
was filed with each officer's police department, which,
in turn, filed each DMV-349 form with the NCDMV.
(Id. ¶¶ 32, 44, 55.)
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. ¶¶ 33, 45,
56.) Each Defendant allegedly “obtained the DMV-349[s]
. . . or personal information from a motor vehicle record
procured by an agent from a copy of the DMV-349, for the sole
and specific purpose of marketing [that] Defendant[']s
legal services.” (Id. ¶¶ 34, 46,
57.) Using information from the DMV-349 forms, including
Plaintiffs' names and addresses, Defendants addressed and
mailed “marketing materials” to each
Plaintiff's address. (Id. ¶¶ 36, 48,
instant lawsuit arises from Plaintiffs' allegations that
Defendants' conduct violates the DPPA. 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. 21, 23.)
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.
Rectors & 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., 298 U.S.
178, 189 (1936); Adams v. Bain, 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, the court must
construe the complaint in the plaintiff's favor,
accepting as true the factual allegations in the complaint.
Warth 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.
Twombly, 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
Twombly, 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 also considers the exhibits attached to
the instant motions to dismiss.
Article III Standing
Farbman 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 DPPA. (See ECF Nos. 21, 23.) 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”).
Article III of the United States Constitution, the
jurisdiction of a federal court is limited to cases and
controversies. U.S. Const. art. III, § 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
Warth, 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 to sue because
“their allegations are divorced from any concrete harm,
” (ECF No. 22 at 9 (internal quotation marks omitted)),
and they have failed to allege any actual damages,
(see ECF No. 24 at 9-13). Plaintiffs essentially
argue that they have Article III standing because they have
alleged the precise type of harm encompassed by the
DPPA-invasion of privacy-which is an injury closely related
to harms traditionally regarded as providing a basis for