United States District Court, E.D. Washington
JADE WILCOX on behalf of herself and all others similarly situation, Plaintiff,
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
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.
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.
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.
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.
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.
Standard for Rule 12(b)(6) Motion to Dismiss
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)).
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)).
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.
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.
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,
¶¶ 4.9, ...