                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1377
                         ___________________________

                                Jennie Marie Loeffler

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                City of Anoka; City of Burnsville; Dakota County

                             lllllllllllllllllllll Defendants

                                    City of Duluth

                       lllllllllllllllllllll Defendant - Appellee

     City of Eagan; City of Fairmont; City of Hancock; Isanti County; City of
Mankato; City of Milaca; Mille Lacs County; City of Minneapolis; City of Morris;
 Renville County; Rice County; City of Richfield; City of St. Francis; Saint Louis
   County; City of New Prague; City of St. Paul; City of Pequot Lakes; City of
 Staples; Wright County; Yellow Medicine County; Michael Campion, acting in
 his individual capacity as Commissioner of the Minnesota Department of Public
Safety; Ramona Dohman, acting in her individual capacity as Commissioner of the
                     Minnesota Department of Public Safety

                             lllllllllllllllllllll Defendants

 Rebecca Kopp, acting in her individual capacity as a law- enforcement officer for
the City of Duluth; John and Jane Does (1-500), acting in their individual capacity
 as supervisors, officers, deputies, staff, investigators, employees or agents of the
                           other law-enforcement agencies

                      lllllllllllllllllllll Defendants - Appellees
  Department of Public Safety Does (1-30), acting in their individual capacity as
 officers, supervisors, staff, employees, independent contractors or agents of the
   Minnesota Department of Public Safety; Entity Does (1-50), including cities,
  counties, municipalities, and other entities sited in Minnesota departments and
agencies; City of Farmington; City of Lakeville; City of Roseville; Dakota County
                               Communications Center

                            lllllllllllllllllllll Defendants
                                    ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                            Submitted: March 15, 2018
                               Filed: June 28, 2018
                                 ____________

Before GRUENDER, MURPHY, and KELLY, Circuit Judges.1
                         ____________

GRUENDER, Circuit Judge.

       Jennie Loeffler filed a complaint in July 2013 alleging that numerous city,
county, individual, and Doe defendants—including the City of Duluth and “a female
officer to be later named, acting in her individual capacity as a law-enforcement
officer for the City of Duluth”—violated the Driver’s Privacy Protection Act
(“DPPA”), 18 U.S.C. §§ 2721-25, by unlawfully accessing her personal information
from 2003 to 2012. After reviewing the magistrate judge’s report and




      1
        This opinion is being filed by Judge Gruender and Judge Kelly pursuant to 8th
Cir. R. 47E.

                                          -2-
recommendation, the district court2 dismissed all named defendants under Federal
Rule of Civil Procedure 12(b)(6). Because the female officer had not been named or
served, the district court declined to address any claims against her.

       After confirming that the unnamed officer was Rebecca Kopp, Loeffler
amended her complaint on March 3, 2016 and named Kopp. However, adopting
another report and recommendation from the magistrate judge, the district court
dismissed the claims against Kopp as barred by the four-year statute of limitations.
See 28 U.S.C. § 1658(a); McDonough v. Anoka Cty., 799 F.3d 931, 943 (8th Cir.
2015) (concluding that the statute of limitations for the DPPA begins to run when the
violation occurs). Loeffler now appeals the dismissal of her claims against Kopp and
Duluth. We review the grant of a motion to dismiss de novo, accepting as true all
factual allegations in the complaint and drawing all reasonable inferences in favor of
the nonmoving party. McDonough, 799 F.3d at 945.

       First, the district court properly dismissed Loeffler’s claim against Kopp as
untimely under the applicable statute of limitations. Loeffler argues that, under
Federal Rule of Civil Procedure 15(c), her amended complaint naming Kopp relates
back to her original complaint referring to the unnamed female officer, bringing it
within the statute of limitations. Under Rule 15(c)(1)(C)(ii), an amendment to a
pleading relates back to the original pleading when, among other requirements, the
party brought in by the amendment “knew or should have known that the action
would have been brought against it, but for a mistake concerning the proper party’s
identity.” As Loeffler conceded at oral argument, however, we recently concluded
that naming a Jane Doe defendant does not relate back under Rule 15(c) because “it
was an intentional misidentification, not an unintentional error, inadvertent wrong


      2
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota, adopting in part the report and recommendation of the Honorable Tony
N. Leung, United States Magistrate Judge for the District of Minnesota.

                                         -3-
action, or ‘mistake.’” See Heglund v. Aitkin Cty., 871 F.3d 572, 580 (8th Cir. 2017),
cert. denied, 138 S.Ct. 749 (2018). The district court also correctly concluded that
there were no “exceptional circumstances” warranting equitable tolling given
Loeffler’s strong suspicion as to Kopp’s identity at the time she filed her original
complaint. See Firstcom, Inc. v. Qwest Corp., 555 F.3d 669, 675 (8th Cir. 2009).
Loeffler identified Kopp by name in letters sent to Duluth officials before she filed
her original complaint. Thus, Loeffler’s claim against Kopp was barred by the four-
year statute of limitations.

       Second, Loeffler argues that Duluth is itself directly liable for improperly
disclosing her information. To establish a claim against the city under the DPPA,
Loeffler must show that Duluth “1) knowingly 2) obtained, disclosed, or used
personal information, 3) from a motor vehicle record, 4) for a purpose not permitted.”
See McDonough, 799 F.3d at 945. Loeffler claims that Duluth violated the DPPA by
disclosing the information to Kopp without verifying that she sought it for a
permissible purpose. Cf. Gordon v. Softech Int’l, Inc., 726 F.3d 42, 53 (2d Cir. 2013)
(imposing a duty of reasonable care on resellers who disclose personal information
protected by the DPPA). However, Loeffler failed to plead sufficient facts supporting
an inference that Duluth knowingly allowed Kopp to access the database for any
reason other than performing her law-enforcement duties, a purpose permitted by the
DPPA. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (explaining that a
complaint must plead “enough facts to state a claim to relief that is plausible on its
face”). We therefore conclude that Loeffler failed to state a claim for direct
municipal liability against Duluth. See, e.g., Roth v. Guzman, 650 F.3d 603, 611 (6th
Cir. 2011); Weitgenant v. Patten, Civil No. 14–255 ADM/FLN, 2016 WL 1449572,
at *4 (D. Minn. Apr. 12, 2016) (“To violate the DPPA, a defendant itself must have
acted with an impermissible purpose; it is not enough that the defendant discloses
information to one who subsequently uses it for an impermissible purpose.”).




                                         -4-
       Loeffler counters that Duluth is nonetheless liable because it employed Kopp,
who allegedly accessed her information for improper purposes. Although Loeffler
frames this argument—at least in part—as a direct municipal liability claim, it is in
fact an argument for vicarious liability. See Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 691-92 (1978) (distinguishing vicarious liability and municipal liability).
According to Duluth, Loeffler failed to raise this claim below. In response, Loeffler
maintains that she did plead vicarious liability in her complaint but admits that she
otherwise did not make that argument before the district court. Because Loeffler has
not suggested that this is a case where either “the proper resolution is beyond any
doubt” or “where injustice might otherwise result,” we conclude that she did not
preserve any vicarious liability claim and decline to take it up for the first time on
appeal.3 See Lynch v. Nat’l Prescription Adm’rs, Inc., 787 F.3d 868, 874 (8th Cir.
2015).

      For these reasons, we affirm the district court’s judgment.
                      ______________________________




      3
       Loeffler asserts that the district court dismissed her vicarious liability claim
without giving her the chance to argue this issue. But the magistrate judge submitted
two reports and recommendations that provided the basis for the district court’s
orders of dismissal. Thus, we are not persuaded that Loeffler had no opportunity to
present this issue below.

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