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Whitaker v. Appriss Inc.

United States District Court, N.D. Indiana, South Bend Division

January 17, 2017

RACHEL A. WHITAKER AND RICHARD L. DUNKIN, Plaintiffs,
v.
APPRISS, INC., Defendant.

          OPINION AND ORDER

          Robert L. Miller, Jr., Judge

         Defendant 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 proceed.

         I. Background

         Plaintiffs 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.

         Appriss 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.

         Thirty 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.

         The 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 class certification.

         The 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. 12(b)(1).

         II. 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).

         The 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.

         III. Discussion

         “[T]he 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.

         The 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).

         The 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 ...


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