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, P.L.L.C; CARL B. NAGLE, individually; NAGLE & ASSOCIATES, P.A.; JOHN J. GELSHENEN, individually; DAVIS & GELSHENEN L.L.P.; 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, 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 No. 5.) Before the Court is a motion for
reconsideration, (ECF No. 59), filed by Defendants Michael A.
DeMayo; the Law Offices of Michael A. DeMayo, P.C.; the Law
Offices of Michael A. DeMayo, L.L.P.; Jason E. Taylor; the
Law Offices of Jason E. Taylor, P.C.; Benjamin T. Cochran;
Hardison & Cochran, P.L.L.C.; Carl B. Nagle; Nagle &
Associates, P.A.; John J. Gelshenen; Davis & Gelshenen,
L.L.P.; Ted. A. Greve; Ted A. Greve & Associates, P.A.;
Christopher T. May; and Estwanik and May, P.L.L.C.
(collectively, the “Moving Defendants”). Moving
Defendants request that this Court reconsider two aspects of
its Memorandum Opinion and Order entered September 29, 2017
(the “September 29th Order”) denying
their motion to dismiss: (1) its conclusion that Plaintiffs
have standing to bring this action; and (2) its determination
that the attorney advertising at issue is not protected by
the First Amendment. (Id. at 2.) For the reasons
that follow, the motion will be granted in part and denied in
Court incorporates by reference the factual background set
forth in its September 29th Order. (See
ECF No. 35 at 2-4.) However, due to the timing of the instant
motion, some quick procedural accounting is necessary. On
December 1, 2017, the other defendants in this
(the “Farbman Defendants”) filed motions for
reconsideration of the September 29thOrder, or, in
the alternative, judgment on the pleadings. (ECF No. 45.)
Before the Court ruled on those motions, the Moving
Defendants filed the instant motion for reconsideration and
an accompanying brief in support on October 26, 2018. (ECF
Nos. 59; 61.) Then, on November 15, 2018, this Court issued a
memorandum opinion and order granting in part and denying in
part the Farban Defendants' motions (the “November
15th Order”). (ECF No. 63.)
November 15th Order, this Court acknowledged that it had
previously erred by failing to recognize the First
Amendment's applicability to the attorney advertising at
issue in this case. (See Id. at 5-9.) As a form of
commercial speech, attorney advertising implicates the First
Amendment so long as its content is neither false,
misleading, nor related to unlawful activity. (Id.
at 6 (citing Cent. Hudson Gas Elec. Corp. v. Pub. Serv.
Comm'n, 447 U.S. 557, 563-64 (1980)).) However, as
the Court explained, commercial speech is typically afforded
“lesser protection” than “other
constitutionally guaranteed expression.” (Id.
at 7 (citation omitted).) Accordingly, Defendants'
challenges to the DPPA require the application of
‘intermediate scrutiny' in line with the four-part
test laid out in Central Hudson Gas & Electric Corp.
v. Public Service Commission of New York, 447 U.S. 557,
566 (1980). (Id. at 7-8.)
the Court accepts Central Hudson as the appropriate
framework, the absence of a developed factual record at the
time of the November 15th Order prevented the Court from
deciding whether, as applied to Defendants' alleged
conduct, the DPPA passes muster. (See Id. at 9.)
That determination speaks directly to the First Amendment
aspects (and main thrust) of Moving Defendants' instant
motion for reconsideration. Nevertheless, the parties
involved in the instant motion filed normal response and
reply briefing after the November 15th Order was issued,
which the Court now considers along with the other relevant
filings. (See ECF Nos. 68; 76.)
Rule 54(b) of the Federal Rules of Civil Procedure, the
“district court retains the power to reconsider and
modify its interlocutory judgments, including partial summary
judgments, at any time prior to final judgment when such is
warranted.” Am. Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 514-15 (4th Cir. 2003); see
Fed. R. Civ. P. 54(b). That power is “committed to the
discretion of the district court” and may be exercised
as justice requires. Am. Canoe Ass'n, 326 F.3d
at 515. Although the Rules “do not set out a[ ]
standard for reconsideration of interlocutory orders, ”
most courts have “adhered to a fairly narrow set of
grounds” in assessing a Rule 54(b) motion: whether
“(1) there has been an intervening change in
controlling law; (2) there is additional evidence that was
not previously available; or (3) the prior decision was based
on clear error or would work manifest injustice.”
See Akeva, L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d
559, 565-66 (M.D. N.C. 2005). In general, Rule 54(b) motions
“should not be used to rehash arguments the court has
already considered” or “to raise new arguments or
evidence that could have been raised previously.”
South Carolina v. United States, 232 F.Supp.3d 785,
793 (D.S.C. 2017).
Defendants first ask the Court to reconsider its conclusion
that Plaintiffs have standing to sue under the DPPA.
(See ECF No. 59 at 3.) As discussed in the September
29th Order, to determine “whether an intangible harm
constitutes an injury in fact, ” the Court considers
(1) whether Congress has identified and elevated a
“de facto injur[y] that [was] previously
inadequate in law” to the status of legally cognizable,
concrete injury and (2) whether the alleged injury bears a
close relationship to a “harm that has traditionally .
. . provid[ed] a basis for a lawsuit” at common law.
(See ECF No. 35 at 7-8 (citations omitted).) In
light of the DPPA's purpose and the alleged harms'
close relation to traditional invasion-of-privacy torts, the
Court concluded that “Plaintiffs' allegation that
Defendants obtained, disclosed, or used Plaintiffs'
personal information without consent sets forth a concrete
injury.” (See Id. at 9.)
a year after the September 29th Order was issued,
the Fourth Circuit decided Hartford Casualty Insurance
Co. v. Greve, 742 Fed. App'x 738 (4th
Cir. 2018) (per curiam) (unpublished). Appellants Ted A.
Greve & Associates, PA and Ted A. Greve (collectively,
“Greve”), who are defendants here,
“tendered defense” of this action to Hartford
Casualty Insurance (“Hartford”) under two
business liability insurance policies. See Hartford,
742 Fed. App'x at 739. The policies generally obligated
Hartford to defend and indemnify Greve against suits for
personal and advertising injury. Id. However, the
policies also contained two limiting provisions, which
excluded coverage for injuries arising out of (1) “the
violation of a person's right of privacy created by any
state or federal act, unless the liability would have
occurred even in the absence of a state or federal
statute” or (2) “a statute, ordinance, or
regulation that prohibits or limits the sending,
transmitting, communicating or distribution of material or
information.” Id. at 739-40 (emphasis added).
argued that this action falls within both exclusions and
refused to defend Greve. Id. at 740. In response,
Greve contended that “because the plaintiffs in the
underlying actions could potentially state a claim for
invasion of privacy under North Carolina common law, the
exception to the [privacy] exclusion applies.”
Id. at 741. Ultimately, the Fourth Circuit sided
with Hartford, concluding that “the facts alleged in
the underlying actions could not state a claim for” any
of the invasion-of-privacy torts recognized under North
Carolina common law. Id.
Defendants argue that Hartford undermines this
Court's earlier ruling on standing, which was based in
part on the alleged injuries' close resemblance to
invasion of privacy. (See ECF No. 61 at 4-5.)
However, the Hartford decision does not contravene
this Court's prior analysis. In the September
29th Order, this Court agreed that
“Plaintiffs may not be able to state a claim under one
of the four invasion of privacy torts” recognized at
common law. (ECF No. 35 at 9.) However, as the Court further
explained, because “the concreteness inquiry only asks
whether an alleged harm is closely related to a
cognizable harm, ” (Id. ...