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Wilcox v. Swapp

United States District Court, E.D. Washington

December 21, 2017

JADE WILCOX on behalf of herself and all others similarly situation, Plaintiff,
v.
JAMES CRAIG SWAPP, individually; and SWAPP LAW, PLLC, doing business as Craig Swapp and Associates, Defendants.

          ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

          ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Defendants' Motion to Dismiss Class Action Complaint for failure to state a claim upon which relief may be granted, ECF No. 15. A hearing took place on December 20, 2017. Robert Barton and Thomas Jarrard appeared on behalf of Plaintiff Jade Wilcox. Barbara Duffy and Ryan McBride appeared on behalf of Defendants James Swapp and Swapp Law, PLLC (collectively, “Defendants”). The Court has reviewed the pleadings, heard the parties' arguments, and is fully informed.

         BACKGROUND

         Plaintiff Jade Wilcox brought this putative class action lawsuit against Defendants alleging that Defendants violated the Driver's Privacy Protection Act (DPPA), 18 U.S.C. §§ 2721-2725, by purchasing accident reports from the Washington State Patrol (“WSP”) and using the information in the accident reports to solicit legal business. ECF No. 1.

         The DPPA protects the “disclosure of personal information contained in the records of state motor vehicle departments (DMVs).” Maracich v. Spears, 133 S.Ct. 2191, 2195 (2013). The DPPA accomplishes this goal by regulating the “[s]tates' ability to disclose a driver's personal information without the driver's consent.” Reno v. Condon, 528 U.S. 141, 144 (2000). The DPPA makes it “unlawful for any person knowingly to obtain or disclose personal information, from a motor vehicle record, ” for a use not encompassed by one of the enumerated exceptions. 18 U.S.C. § 2722(a). Any person who “knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains.” 18 U.S.C. § 2724(a).

         The DPPA “sets forth the three elements giving rise to liability, i.e., that a defendant (1) knowingly obtained, disclosed, or used personal information, (2) from a motor vehicle record, (3) for a purpose not permitted.” Howard v. Criminal Info. Servs., Inc., 654 F.3d 887, 890-91 (9th Cir. 2011) (quoting Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King and Stevens, P.A., 525 F.3d 1107, 1111 (11th Cir. 2008)). The burden of proving these elements is on the plaintiff. Id.

         The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331 as a civil action arising under the laws of the United States because Plaintiff Wilcox alleges violations of the Driver's Privacy Protection Act (DPPA), 18 U.S.C. §§ 2721-2725.

         DISCUSSION

         Legal Standard for Rule 12(b)(6) Motion to Dismiss

         The Federal Rules of Civil Procedure allow for the dismissal of a complaint where the plaintiff fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss brought pursuant to this rule “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing the sufficiency of a complaint, a court accepts all well-pleaded allegations as true and construes those allegations in the light most favorable to the non-moving party. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010) (citing Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031-32 (9th Cir. 2008)).

         To withstand dismissal, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While specific legal theories need not be pleaded, the pleadings must put the opposing party on notice of the claim. Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. 2001) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         A plaintiff is not required to establish a probability of success on the merits; however, he or she must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

         Ms. Wilcox alleges that Defendants violated the DPPA when they purchased collision report information from the WSP for the purpose of sending marketing materials. ECF No. 1 at 2. Ms. Wilcox alleges that Defendants purchased DPPA-protected collision report information and that they did so knowingly. Id.

         Defendants argue that Ms. Wilcox's complaint contains conclusory statements and factual allegations insufficient to survive a motion to dismiss. Defendants argue that Ms. Wilcox must make specific factual allegations that the information in the two accident reports that have been introduced originated with Washington's Department of Licensing (DOL). Defendants also argue that Ms. Wilcox's allegations regarding the process by which the WSP prepares and gathers collision report are legal conclusions rather than factual allegations because the allegations reference the Court's order granting a temporary restraining order in Wilcox v. Batiste, No. 17-cv-00122-RMP. See ECF No. 1, ΒΆΒΆ 4.9, ...


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