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,

            -v.-                                      13-1301-cv

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


                                 -3-
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.,
                                 -5-
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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