Date: 09-08-2017

Case Style:

Case Number: 16-3063

Judge: Colloton

Court: United States Court of Appeals for the Eighth Circuit on appeal from the District of Minnesota (Henepin County)

Plaintiff's Attorney: Lorenz F Fett, Jr., Kenneth H Fukuda, Sonia L Miller-Van Oort, Jonathan A Strauss

Defendant's Attorney: Stephanie A Angolkar, Leslie E Beiers, Toni A Beitz, Erin E Benson, Nick D Campanario, Portia M Hampton-Flowers, William T Helwig, Mark P Hodkinson, Jon K Iverson, Daniel D Kaczor, Nathan N LaCoursiere, Oliver J Larson, M Alison Lutterman, Sarah C S McLaren, Kimberly R Parker, Richard E Prebich, Robert B Roche, Margaret A Skelton, Beth A Stack, Timothy A Sullivan, Susan M Tindal, Frank B Yetka

Description: Jennifer Heglund and her husband Jamie Heglund sued numerous Minnesota
cities and counties, state officials, and hundreds of John and Jane Does, alleging that
police officers had improperly accessed their private information in the State’s
driver’s license database. The Heglunds later amended their complaint to replace one
of the John Does with Frank Scherf, the former Grand Rapids assistant chief of
police. The district court granted summary judgment for Scherf and Grand Rapids
on the ground that the claim was barred by the statute of limitations. The court
concluded that the Heglunds’ amended complaint naming Scherf did not relate back
to the timely original complaint, because the Heglunds did not make a “mistake”
within the meaning of Federal Rule of Civil Procedure 15(c) by suing “John Doe”
rather than Scherf in their original complaint. We agree with the district court’s1
conclusion that the Heglunds’ use of the John Doe pleading device was not a
“mistake” under Rule 15(c), and therefore affirm.
I.
Jennifer Heglund is a former law enforcement officer who worked for a few
different cities and one county in Minnesota. In 2013, Jennifer and her husband
Jamie requested an audit from the Minnesota Department of Public Safety to
determine whether their private information had been accessed through the State’s
driver’s license database. According to the complaint, they requested the audit
because Jennifer’s ex-husband, a Minnesota State Trooper, had harassed Jamie on
several occasions, and Jennifer was concerned that her ex-husband had obtained the
couple’s private information.
The Honorable Ann D. Montgomery, 1 United States District Judge for the
District of Minnesota.
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The audit showed that Jennifer’s information had been accessed 446 times
between 2003 and 2013, and that Jamie’s had been accessed 34 times from 2006 to
2013. On September 9, 2013, the Heglunds sent notice-of-claim letters to the entities
identified in the official audits; one was the City of Grand Rapids. The letter listed
the dates and times of the accesses that the Heglunds claimed were in violation of the
federal Driver’s Privacy Protection Act (DPPA), 18 U.S.C. § 2721.
The DPPA forbids state motor vehicle departments from disclosing personal
information contained in motor vehicle records—such as an individual’s name,
address, or photograph—except for uses explicitly enumerated in the statute. See 18
U.S.C. §§ 2721(a)-(b), 2725(3). One such permissible use is by “any government
agency, including any court or law enforcement agency, in carrying out its functions.”
Id. § 2721(b)(1). A person who knowingly obtains, discloses, or uses an individual’s
personal information from a motor vehicle record “for a purpose not permitted” is
liable to the individual. Id. § 2724(a). The Minnesota Department of Public Safety
collects personal information in the process of registering and licensing drivers of
motor vehicles. State and local law enforcement, including the Grand Rapids police
department, have access to this information through an Internet portal.
On January 31, 2014, the Heglunds sued nearly three dozen cities, more than
a dozen counties, the current and former commissioners of the Minnesota Department
of Public Safety, and hundreds of John and Jane Does. The Heglunds brought claims
for violations of the DPPA under the Act itself and under 42 U.S.C. § 1983, as well
as state-law claims for common-law invasion of privacy. Many of the defendants,
including Grand Rapids, promptly moved to dismiss the claims as insufficiently
pleaded and barred by the applicable four-year statute of limitations. See 28 U.S.C.
§ 1658(a); McDonough v. Anoka County, 799 F.3d 931, 939, 943 (8th Cir. 2015).
The district court dismissed most of the DPPA claims as untimely and dismissed the
§ 1983 and invasion-of-privacy claims for failure to state a claim.
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After a series of settlements, the only remaining claim was based on the access
of Jennifer’s information on March 25, 2010 by someone at the Grand Rapids Police
Department. The Heglunds served Grand 2 Rapids with discovery requests on October
14, 2014. On December 1, the city replied, informing the Heglunds that Frank Scherf
was the officer who had accessed Jennifer’s information. In February 2015, Grand
Rapids moved for summary judgment, but the district court denied the motion so that
the Heglunds could conduct discovery. The Heglunds then deposed Scherf. In
March 2015, the Heglunds moved to amend the complaint to substitute Scherf for a
John Doe defendant. The district court granted the motion to amend.
Grand Rapids and Scherf then moved for summary judgment based on the
statute of limitations. The district court granted the motion, concluding that the
Heglunds’ amended complaint did not relate back to the timely original complaint
because the Heglunds’ use of “John Doe” rather than “Scherf” in the original
complaint was not a “mistake” within the meaning of Rule 15(c). That rule provides
that an amended complaint “relates back” to the original complaint for purposes of
timing if the party added in 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.” The district court ruled alternatively that even if the action were
timely, Scherf would be entitled to summary judgment because the Heglunds failed
to demonstrate a genuine issue of material fact as to whether Scherf violated the
DPPA.3 The Heglunds appeal.
2The Heglunds claim that Scherf’s access of Jennifer’s information counts as
five separate accesses under the DPPA. Whether Scherf’s alleged actions constituted
one access or five is not necessary to our decision, so we do not resolve the question.
3The Heglunds claim that because Grand Rapids knowingly authorized Scherf
to obtain Jennifer’s personal information, the city is vicariously liable for Scherf’s
acts. They do not argue on appeal that there is any separate basis for proceeding
against Grand Rapids if the claim against Scherf is barred by the statute of limitations.
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II.
As a preliminary matter, Scherf and Grand Rapids argue that the Heglunds lack
Article III standing to bring their DPPA claim, because they have not demonstrated
an injury in fact. Scherf and the city contend that a statutory violation alone is not an
injury in fact, and that Jennifer’s professed anxiety from knowing that Scherf
improperly accessed her personal information is not sufficiently concrete to constitute
an injury in fact under Article III. We review standing de novo. Braitberg v. Charter
Commc’ns, Inc., 836 F.3d 925, 929 (8th Cir. 2016).
To demonstrate Article III standing, a plaintiff “must have (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1547 (2016). An injury in fact must be both particularized
to the plaintiff and also concrete—real, not abstract. Id. at 1548. Congress cannot
supplant Article III’s standing requirements by conferring a statutory right to sue on
a plaintiff who would not otherwise have standing. Id. at 1547-48. But Congress
may elevate de facto concrete injuries, whether tangible or intangible, into legally
cognizable injuries. Lujan v. Defs. of Wildlife, 504 U.S. 555, 578 (1992). To
determine whether an intangible harm counts as an injury in fact, we must consider
Congress’ judgment and whether the alleged intangible harm has a close relationship
to a harm that traditionally provided a basis for suit in the Anglo-American legal
system. Spokeo, 136 S. Ct. at 1549.
In light of those considerations, we conclude that the Heglunds have standing
to bring their DPPA claim. An individual’s control of information concerning her
person—the privacy interest the Heglunds claim here—was a cognizable interest at
common law. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489
U.S. 749, 763 (1989); Pichler v. UNITE, 542 F.3d 380, 388 (3d Cir. 2008); cf.
Braitberg, 836 F.3d at 930. In enacting the DPPA, Congress recognized the potential
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harm to privacy from state officials accessing drivers’ personal information for
improper reasons. See Maracich v. Spears, 133 S. Ct. 2191, 2195 (2013).
The Heglunds do not allege a bare procedural violation; they claim that Scherf
violated the DPPA’s substantive protections by invading Jennifer’s privacy. This
allegation distinguishes the Heglunds’ claim from the one advanced in Braitberg
based on a cable company’s procedural violation of its statutory duty to destroy
personally identifiable information the cable company lawfully obtained. See 836
F.3d at 930. In concluding that the Braitberg plaintiff failed to allege an injury in
fact, we contrasted the “common law tradition of lawsuits for invasion of
privacy”—the tradition that the Heglunds invoke here—with the lack of comparable
tradition of suits for retaining information lawfully obtained. Id. The intangible harm
associated with an alleged violation of the DPPA’s substantive protections is
sufficient for the Heglunds to establish an injury in fact. Accord Graczyk v. W.
Publ’g Co., 660 F.3d 275, 278 (7th Cir. 2011); Taylor v. Acxiom Corp., 612 F.3d 325,
340 n.15 (5th Cir. 2010).
III.
The Heglunds argue that their claim is timely based on two alternative grounds.
First, they say that the court should apply equitable estoppel to preclude Scherf from
relying on the limitations period as a defense. The doctrine of equitable estoppel
prevents a defendant from relying on the statute of limitations if the defendant
knowingly allowed the plaintiff to think that she sued the proper party or actually
misled the plaintiff as to the proper party’s identity. Schrader v. Royal Caribbean
Cruise Line, Inc., 952 F.2d 1008, 1013 (8th Cir. 1991). The Heglunds claim that
equitable estoppel applies here, because Grand Rapids and the Minnesota Department
of Public Safety prevented them from identifying Scherf at an earlier time. They
complain that Grand Rapids delayed discovery by filing an early motion to dismiss,
and that the discovery of Scherf’s identity was hindered by the Department of Public
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Safety’s initial refusal to disclose which officers accessed the Heglunds’ driver’s
license records.
We conclude that equitable estoppel does not apply. Filing a prompt motion
to dismiss is not the sort of inequitable conduct that calls for application of the
doctrine. The Heglunds point to language in Schrader that “[a] defendant’s actions
making it difficult for the plaintiff to learn the intended defendant’s proper name until
after the limitations period expire[s]” may form the basis for equitable estoppel. 952
F.2d at 1013. But read in context, that language refers to a defendant’s affirmative
conduct that was designed to, or was unmistakably likely to, mislead the plaintiff.
Id.; see also Bell v. Fowler, 99 F.3d 262, 268-69 (8th Cir. 1996). Grand Rapids did
not engage in misleading conduct here. The Heglunds submitted the discovery
request to Grand Rapids on October 14, 2014, more than six months after the statute
of limitations expired. And any delay by the Minnesota Department of Public Safety
is not attributable to Grand Rapids or Scherf.
Second, the Heglunds contend that under Rule 15(c), the amended complaint
naming Scherf relates back to the date of the timely original complaint. As applicable
here, Rule 15(c) provides that an amended complaint relates back to the date of the
original complaint when: (1) the claim or defense asserted in the amended complaint
arises out of the same conduct, transaction, or occurrence set out in the initial
complaint, (2) within 90 days after the original complaint was filed, the party to be
added “received such notice of the action that it will not be prejudiced in defending
on the merits,” and (3) upon receiving notice, the party to be added “knew or should
have known that the action would have been brought against it, but for a mistake
concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C); 4(m). When
those conditions are satisfied, the amended complaint is treated as if it were filed on
the date of the original complaint. See Hayes v. Faulkner County, 388 F.3d 669, 675-
76 (8th Cir. 2004).
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The district court concluded that the Heglunds’ amended complaint failed to
satisfy the third requirement because the Heglunds’ use of the John Doe pleading
device did not qualify as a “mistake.” The parties agree that the Heglunds sued “John
Doe” in their original complaint because they did not then know the name of the
officer who accessed Jennifer’s information on March 25, 2010. We review de novo
the district court’s grant of summary judgment and its interpretation of Rule 15(c).4
The Heglunds argue that lack of knowledge of the proper party’s identity
qualifies as a mistake under Rule 15(c). Scherf and Grand Rapids contend that the
Heglunds’ decision to name a John Doe defendant cannot be characterized as a
mistake because the Heglunds knew that they lacked knowledge of the defendant’s
true identity—there was no misunderstanding or misconception. They argue that the
Heglunds intentionally represented their lack of knowledge about the identity of the
defendant, so there was no mistake, and the Heglunds’ amended complaint does not
relate back under Rule 15(c).
In Krupski v. Costa Crociere S. p. A., 560 U.S. 538 (2010), the Supreme Court
reasoned that relation back under Rule 15(c) depends on “what the prospective
defendant knew or should have known during the Rule 4(m) period, not what the
plaintiff knew or should have known at the time of filing her original complaint.” Id.
at 548. The Court stated that a plaintiff’s knowledge is “relevant only if it bears on
the defendant’s understanding of whether the plaintiff made a mistake.” Id. At the
same time, however, the Court affirmed that a plaintiff’s deliberate choice, made with
a full understanding of the legal and factual situation, is “the antithesis of making a
mistake.” Id. at 549. By contrast, a mistake occurs if a plaintiff knows that two or
This court briefly discussed in Foulk 4 v. Charrier, 262 F.3d 687, 696 (8th Cir.
2001), whether an amendment to replace a “John Doe” defendant will relate back
under Rule 15(c), but the court resolved that case on other grounds.
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more parties exist but chooses to sue the wrong one based on a misunderstanding
about that party’s status or role. Id.
The Court defined mistake as “[a]n error, misconception, or misunderstanding;
an erroneous belief.” Id. at 548 (quoting Black’s Law Dictionary 1092 (9th ed.
2009)). It also described a mistake as “a misunderstanding of the meaning or
implication of something”; “a wrong action or statement proceeding from faulty
judgment, inadequate knowledge, or inattention”; “an erroneous belief”; or “a state
of mind not in accordance with the facts.” Id. at 548-49 (quoting Webster’s Third
New International Dictionary 1446 (2002)).
We conclude that naming a John Doe defendant is not a “mistake.” Mistake
implies inadvertence or a sincere but wrong belief. “Error,” which Krupski
recognized as synonymous with mistake, is defined as “an act involving an
unintentional deviation from truth or accuracy.” Webster’s Third New International
Dictionary 772 (2002) (emphasis added). That same dictionary entry notes that while
error and mistake are synonyms, error implies “a deviation from correct . . . course,”
and mistake “suggests a misunderstanding, wrong decision, or inadvertent wrong
action.” Id. (emphases added). The very definition of “mistake” cited in Krupski
reflects this meaning when the coordinate subsense of the word is reproduced in full:
“a wrong action or statement proceeding from faulty judgment, inadequate
knowledge, or inattention : an unintentional error.” Id. at 1446 (emphasis added).
Other lay dictionaries confirm that “mistake” implies an unintentional error through
lack of understanding. See American Heritage Dictionary 1128 (5th ed. 2011) (“An
error or fault resulting from defective judgment, deficient knowledge, or
carelessness” or “[a] misconception or misunderstanding.”); Oxford English
Dictionary (2d ed. 1989) (“A misconception or misapprehension of the meaning of
something; hence, an error or fault in thought or action.”); Webster’s New World
Dictionary of the American Language: College Edition 942-43 (1968) (“A fault in
understanding, perception, interpretation, etc.”).
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The same is true in legal dictionaries. The definition from Black’s Law
Dictionary cited in Krupski—“[a]n error, misconception, or misunderstanding; an
erroneous belief”—implies a lack of intentionality. Earlier editions of Black’s
expressly include the modifier “unintentional” in the definition of mistake. The
fourth edition, which prevailed in 1966 when Rule 15 was amended to add the
“mistake” language, defined the term as “[s]ome unintentional act, omission, or error
arising from ignorance, surprise, imposition, or misplaced confidence.” Black’s Law
Dictionary 1152-53 (4th ed. 1951) (emphasis added); see also Black’s Law
Dictionary 1152-53 (4th rev. ed. 1968) (same).
The Heglunds argue that their John Doe pleading qualifies as a “mistake”
because it is “a wrong . . . statement proceeding from . . . inadequate knowledge,” one
of the definitions from Webster’s that was cited in Krupski. To be sure, the Heglunds
used the John Doe device because they had inadequate knowledge of Scherf’s
identity, but the inclusion of “John Doe” was not a “wrong statement” in the sense of
the definition. The device accurately conveyed that the Heglunds did not know
Scherf’s identity. The statement was not the result of a misunderstanding or
misconception; it was an intentional misidentification, not an unintentional error,
inadvertent wrong action, or “mistake.”
Other circuits likewise have concluded that a plaintiff’s lack of knowledge of
a defendant’s identity is not a “mistake” under Rule 15(c). See Smith v. City of
Akron, 476 F. App’x 67, 69 (6th Cir. 2012); Garrett v. Fleming, 362 F.3d 692, 696
(10th Cir. 2004); Wayne v. Jarvis, 197 F.3d 1098, 1103 (11th Cir. 1999), overruled
in part on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en
banc); Jacobsen v. Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998); Barrow v.
Wethersfield Police Dep’t, 66 F.3d 466, 469-70 (2d Cir. 1995); Worthington v.
Wilson, 8 F.3d 1253, 1256-57 (7th Cir. 1993). But see Varlack v. SWC Caribbean,
Inc., 550 F.2d 171, 175 (3d Cir. 1977). Although most of these cases predated
Krupski, we are not convinced that the Court’s analysis dictates that “mistake”
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includes wrong acts or statements made with full knowledge that the named party is
not the proper defendant. While Krupski concluded that Rule 15(c) focuses largely
on what a prospective defendant knew or should have known, the Court was not
confronted with an intentional error by a plaintiff that is incompatible with the very
definitions of “mistake” that governed the Court’s decision. 560 U.S. at 548-49.
The Heglunds urge us to recognize John Doe pleadings as “mistakes” so that
plaintiffs with inadequate knowledge will not be subjected to shorter statutes of
limitation than plaintiffs who list the wrong defendant in an original complaint.
There may well be sound policy arguments for permitting relation back when a
plaintiff amends a John Doe pleading to substitute a real person and can satisfy the
other requirements under Rule 15(c). See Singletary v. Pa. Dep’t of Corr., 266 F.3d
186, 201 n.5 (3d Cir. 2001). But we think these concerns are best directed to the
rulemakers, because it would unduly strain the plain language of the present rule to
say that Rule 15(c) encompasses the Heglunds’ amendment. Under Rule 15(c),
relation back is permitted only when the action originally is brought against the
wrong person because of a “mistake.” Regardless of when Scherf learned of the
action or what he knew about whether the plaintiffs would like to have sued him, the
Heglunds did not make a “mistake” in the ordinary sense of the word when they
intentionally sued “John Doe” while knowing that he was not the proper defendant.

Outcome: The judgment of the district court is affirmed.

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