Fontanez v. Skepple ( 2014 )

13-1301-cv
Fontanez v. Skepple
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 30th day of April, two thousand fourteen.
PRESENT: JOHN M. WALKER, JR.,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
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PRISCILLA FONTANEZ,
Plaintiff-Appellant,
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ROMEO SKEPPLE AND WESTCHESTER COUNTY,
Defendants-Appellees.*
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FOR PLAINTIFF-APPELLANT: Michael A. Deem, The Law Office of
Michael A. Deem, PLLC, Ossining,
New York.
FOR DEFENDANTS-APPELLEES: Linda M. Trentacoste, Associate
County Attorney (James Castro-
Blanco, Chief Deputy County
Attorney, on the brief), for Robert
F. Meehan, Westchester County
Attorney, White Plains, New York.
*
The Clerk of the Court is directed to amend the caption as
shown above.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Ramos, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Priscilla Fontanez ("Fontanez")
appeals from the district court's March 7, 2013 judgment entered
pursuant to its March 6, 2013 Opinion and Order granting the
motion to dismiss of defendants-appellees Romeo Skepple
("Skepple") and Westchester County. See Fontanez v. Skepple, No.
12 Civ. 1582 (S.D.N.Y. March 6, 2013).
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
Fontanez sued defendants under the Driver's Privacy
Protection Act, 18 U.S.C. §§ 2721 et seq. (the "DPPA"), and state
common law. The DPPA bars the knowing disclosure by a state
department of motor vehicles ("DMV") or "any officer, employee or
contractor" of a DMV of "personal information . . . about any
individual obtained by the department in connection with a motor
vehicle record." 18 U.S.C. § 2721(a)(1); see also 18 U.S.C. §
2722(a) (rendering it unlawful for "any person knowingly to
obtain or disclose personal information, from a motor vehicle
record, for any use not permitted under section 2721(b) of this
title."). The DPPA provides a civil cause of action against "[a]
person who knowingly obtains, discloses or uses personal
information, from a motor vehicle record, for a purpose not
permitted under this chapter." 18 U.S.C. § 2724(a). "Personal
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information" includes a name and address. 18 U.S.C. § 2725(3).
A "motor vehicle record" is defined as "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(a)(1).
Fontanez alleged that Skepple, a corrections officer at
the Westchester County Jail ("WCJ"), improperly obtained her name
and home address from her New York State driver's license.
Fontanez had voluntarily produced her license at the WCJ as proof
of identity so that she could visit her boyfriend, Fernando
DeJesus. Fontanez accused Skepple of using the personal
information from her license -- her name and address -- to obtain
her telephone number, which had been entered into the WCJ
database.
On January 6, 2012, Skepple sent Fontanez flowers and a
teddy bear, describing himself as her "new admirer." The same
day, Skepple called Fontanez from his personal phone inquiring
about the flowers and explaining who he was. He called a second
time that day and threatened to retaliate if she reported his
conduct to the police. He then sent her a photograph, via text
message, of himself in his corrections officer uniform. The
district court granted defendants' motion to dismiss, holding
that Fontanez failed to state a claim under the DPPA. It also
dismissed the pendent state claims for lack of jurisdiction.
On appeal, Fontanez argues that the district court
erred in concluding that Skepple did not violate the DPPA when he
obtained her personal information from her driver's license and
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then used that information to obtain her telephone number from
the WCJ database. We review the district court's dismissal under
Fed. R. Civ. P. 12(b)(6) de novo, and accept all material factual
allegations in the complaint as true. Bryant v. N.Y. State Educ.
Dep't, 692 F.3d 202, 210 (2d Cir. 2012).
The district court correctly dismissed the DPPA claim.
While Skepple's use of Fontanez's personal information was surely
inappropriate, her reliance on the DPPA is misplaced, for the
DPPA does not protect against the use of personal information
obtained from a driver's license provided by the holder as proof
of identity to gain access to a facility.
As expressed in section 2721(a), the DPPA was designed
principally to protect against the disclosure of personal
information obtained from searches of DMV records by DMV
employees:
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
personal information . . .about any
individual obtained by the department in
connection with a motor vehicle record.
18 U.S.C. § 2721(a) (emphasis added). Because the DPPA permits
state DMVs to sell personal information from DMV records to
private individuals and companies for certain limited purposes,
see 18 U.S.C. §§ 2721(b), (c); Gordon v. Softech Int'l, Inc., 726
F.3d 42, 49 (2d Cir. 2013), the DPPA also applies to disclosures
by these individuals and entities. As the Supreme Court
explained in Maracich v. Spears:
The enactment of the DPPA responded to at
least two concerns over the personal
information contained in state motor vehicle
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records. The first was a growing threat from
stalkers and criminals who could acquire
personal information from state DMVs. The
second concern related to the States' common
practice of selling personal information to
businesses engaged in direct marketing and
solicitation. To address these concerns, the
DPPA "establishes a regulatory scheme that
restricts the State's ability to disclose a
driver's personal information without the
driver's consent."
133 S. Ct. 2191, 2198 (2013) (citing Reno v. Condon, 528 U.S.
141, 144 (2000) (emphasis added).
Thus, the statute was intended to bar the State from
disclosing personal information obtained from DMV records without
the individual's consent. See 18 U.S.C. § 2721(d) (permitting
release of information if "the individual waives such
individual's right to privacy under this section"); see also Reno
v. Condon, 528 U.S. at 146 (DPPA "regulates the resale and
redisclosure of drivers' personal information by private persons
who have obtained that information from a state DMV.") (emphasis
added); Luparello v. Inc. Vill. of Garden City, 290 F. Supp. 2d
341, 344 (E.D.N.Y. 2003) (plaintiff must show that defendant
"caused a DMV search to be made"). The DPPA was not designed to
create a cause of action for every misuse of information on a
driver's license voluntarily provided as proof of identity.
Here, Fontanez's personal information was not obtained
from a search of DMV records by a DMV employee or authorized DMV
reseller. Rather, a corrections officer obtained the personal
information from her driver's license that she had provided as
proof of identity and then used that information to find her
telephone number in the WCJ computer database. These allegations
are insufficient to support a claim under the DPPA. See, e.g.,
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Figueroa v. Taylor, No. 06 Civ. 3676, 2006 WL 3022966, at *4
(S.D.N.Y. Oct. 23, 2006) (dismissing DPPA claim where employer
gave plaintiff's home address to newspaper after obtaining it
from plaintiff's learner's permit that was provided as
requirement for employment); Ocasio v. Riverbay Corp., No. 06
Civ. 6455, 2007 WL 1771770, at *4 (S.D.N.Y. June 19, 2007)
(dismissing DPPA claim where employer gave plaintiff's name to
newspaper after obtaining it from plaintiff's driver's license
which was provided as a requirement for employment). Where the
personal information at issue is not obtained from a state DMV,
no DPPA cause of action can be found. Accordingly, Fontanez's
DPPA was properly dismissed.
We have considered all of Fontanez's remaining
arguments and conclude that they are without merit. Accordingly,
the district court's judgment is AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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