Jennifer Heglund v. City of Grand Rapids

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.

The judgment of the district court is affirmed.