United States District Court, N.D. Indiana, South Bend Division
RACHEL A. WHITAKER AND RICHARD L. DUNKIN, Plaintiffs,
APPRISS, INC., Defendant.
OPINION AND ORDER
L. Miller, Jr., Judge
Appriss moves that the court dismiss the case for lack of
subject-matter jurisdiction on the grounds that the named
plaintiffs don't have standing to sue. Fed.R.Civ.P.
12(b)(1); U.S. Const. art. III, § 1. The court holds
that the plaintiffs have standing and allows this case to
Rachel Whitaker and Richard Dunkin allege the following. Each
got into a car accident, after which the responding officer
completed an Indiana Officer's Standard Crash Report.
This report included the plaintiff's name, address, and
driver's license number. The officer got this information
from the plaintiff's driver's license and vehicle
title information, both of which are maintained by the
Indiana Bureau of Motor Vehicles. The accident report was
then uploaded to www.buycrash.com.
runs this website. The company provides a uniform accident
report for state agencies to use and software through which
they can upload completed reports. Parties involved in
accidents can then buy copies of their accident reports on
the website. Appriss also allows the public, including legal
and medical professionals, to buy batches of reports or to
subscribe, enabling them to use the personal information in
these reports to solicit business.
days after their collisions, the plaintiffs began to receive
solicitations in the mail. Both received letters from law
firms referring to their accidents and advertising personal
injury services. Ms. Whitaker also received an ad from a
chiropractor. The plaintiffs believe that the businesses that
solicited them acquired their reports from www.buycrash.com,
learned about their accidents from those reports, and
obtained their contact information from them.
plaintiffs argue that Appriss violated the Driver's
Privacy Protection Act of 1994, 18 U.S.C. § 2721 et
seq., when it sold copies of accident reports containing
personal information to third parties for solicitation
purposes and without their consent. The plaintiffs didn't
suffer monetary or physical harm from the sale of their
personal information. They seek liquidated damages in the
amount of $ 2, 500 each, 18 U.S.C. § 2724(b)(1), and
court bifurcated discovery, holding back the potential class
action until the court determines whether the named
plaintiffs prevail. While mid-discovery on the
plaintiffs' claims, the court stayed proceedings pending
the Supreme Court's decision in Spokeo, Inc. v.
Robins, 136 S.Ct. 1540 (2016), which would address
Article III standing. After the Court decided
Spokeo, the court extended the stay until it could
determine if it had jurisdiction. Appriss moved to dismiss
for lack of subject-matter jurisdiction. Fed.R.Civ.P.
Standard of Review Plaintiffs' standing to sue implicates
the court's subject-matter jurisdiction, so standing
issues can be raised in a Rule 12(b)(1) motion. American
Fed'n of Gov't Employees, Local 2119 v. Choen,
171 F.3d 460, 465 (7th Cir. 1999). The plaintiffs bear the
burden of proving that they have standing. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
When considering a motion to dismiss for lack of standing,
the court can look beyond the allegations of the complaint to
other competent evidence. Bastuen v. AT&T Wireless
Servs., Inc., 205 F.3d 983, 990 (7th Cir. 2000).
plaintiffs must show that: (1) they suffered an injury in
fact that's concrete and particularized and actual or
imminent, not conjectural or hypothetical; (2) there's a
causal connection between the injury and the conduct
complained of; and (3) the injury can be redressed by a
favorable decision. Lujan v. Defenders of Wildlife,
504 U.S. at 560-561 (1992). The second and third elements of
standing are plainly met. Appriss contends that the
plaintiffs don't allege “injury in fact”
after Spokeo, and so they lack standing and this
court lacks jurisdiction.
injury-in-fact requirement requires a plaintiff to allege an
injury that is both concrete and
particularized.” Spokeo v. Robins, 136 S.Ct.
1540, 1545 (2016). In Spokeo, the Supreme Court
announced principles for determining
“concreteness.” “A ‘concrete'
injury must be ‘de facto'; that is, it
must actually exist.” Id. at 1548. A
“concrete” injury doesn't need to be
tangible. In deciding whether an intangible injury is
“concrete, ” first the court should consider
“whether an alleged intangible harm has a close
relationship to a harm that has traditionally been regarded
as providing basis for a lawsuit in English or American
courts.” Id. at 1549. Second, the court should
look to Congress's judgment. “Congress may elevate
to the status of legally cognizable injuries concrete, de
facto injuries that were previously inadequate in
law.” Id. But a statutory violation alone
doesn't necessarily exact concrete harm. See Id.
(“It is difficult to imagine how the dissemination of
an incorrect zip code, without more, could work any concrete
harm.”). “[B]are procedural violation[s],
divorced from any concrete harm, ” also can't
create an injury in fact. Id.
plaintiffs aren't alleging a tangible injury. Both
parties agree that the plaintiffs suffered no monetary,
physical, or mental harm. Plaintiffs don't argue that the
solicitations were particularly annoying or harassing.
Plaintiffs just allege that Appriss violated their statutory
rights under the DPPA when it disclosed their personal
information, drawn from motor vehicle records, for
unauthorized solicitation. 18 U.S.C. § 2722(a).
first question then is whether this alleged “intangible
harm has a close relationship to a harm that has
traditionally been regarded as providing basis for a lawsuit
in English or American courts.” Spokeo v.
Robins, 136 S.Ct. at 1549. Through the DPPA, Congress
created rights “closely related” to the common
law right to privacy. “Intrusion upon seclusion,
” one such privacy-based tort, requires an intentional
intrusion “upon the solitude or seclusion of another or
his private affairs or concerns . . . if the intrusion would
be highly offensive to a reasonable person.”
Restatement (Second) of Torts § 652B (Am. Law Inst.
1977). The common law right to privacy grew out of the right
to be free from physical interference with body and property.
See Samuel D. Warren & Louis D. Brandeis,
The Right to Privacy, 4 Harv. L. Rev. 193 (1890),
cited by Restatement (Second) of Torts § 652A
cmt. a. Rights protected in statutes like the DPPA are
natural outgrowths of the privacy-based torts of the common
law. See Id. at 193 (“Political, social, and
economic changes entail the recognition of new rights, and
the common law, in its eternal youth, grows to meet the
demands of society.”). Today's personal data are
held in myriad ways that are subtle and undetected, yet
deeply penetrating. “We recognize, even if only
intuitively, that our data has to be going somewhere. . . .
Most of the time, we never think about this. We browse the
Internet, and the data-collecting infrastructure of the
digital world hums along quietly in the background.”
In re Nickelodeon Consumer Privacy Litig., 827 F.3d
262, 266 (3d Cir. 2016). One of the driving forces behind
passage of the DPPA was when an obsessive fan of television
star Rebecca ...