United States District Court, S.D. Alabama, Southern Division
ANITRA DIAMOND, individually and on behalf of all others similarly situated, Plaintiffs,
KIMBERLY HASTIE, in her individual capacity, Defendant.
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE
matter came before the Court on a February 7, 2019
evidentiary hearing regarding Diamond's Motion for Class
Certification (Docs. 78, 79) and Defendant's opposition
(Doc. 83), evidence and argument presented at the February 7,
2019 hearing, the parties' post-hearing supplemental
briefing (Docs. 97, 100), and Notice of Withdrawal of
Labarron Yates (Doc. 87).
proposed class action centers on alleged violations of the
Drivers' Privacy Protection Act, 18
U.S.C. § 2721, et. seq. (DPPA) and privacy
rights per Title 42 U.S.C. § 1983. The "DPPA
prohibits the obtainment or disclosure of personal
information from motor vehicle records for any use not
permitted under the fourteen specific exceptions delineated
in § 2721(b) the Act. 18 U.S.C. § 2722(a)."
Baas v. Fewless, 886 F.3d 1088, 1090
(11th Cir. 2018). As explained in Maracich v.
Spears, 570 U.S. 48, 57-58 (2013):
To obtain a driver's license or register a vehicle, state
DMVs, as a general rule, require an individual to disclose
detailed personal information, including name, home address,
telephone number, Social Security number, and medical
information. See Reno v. Condon, 528 U.S. 141,
The DPPA provides that, unless one of its exceptions applies,
a state DMV “shall not knowingly disclose or otherwise
make available” “personal information” and
“highly restricted personal information.”
§§ 2721(a)(1)-(2). “[P]ersonal
information” is “information that identifies an
individual, including [a]...driver identification number,
name, address ..., [or] telephone number, ... but does not
include information on vehicular accidents, driving
violations, and driver's status.” § 2725(3).
“[H]ighly restricted personal information” is
defined as “an individual's photograph or image,
social security number, [and] medical or disability
information.” § 2725(4). The DPPA makes 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.” § 2722(a). A 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.” § 2724(a).
The DPPA's disclosure ban is subject to 14 exceptions set
forth in § 2721(b), for which personal information
“may be disclosed.” ….
April 14, 2015 (amended on August 18, 2017 and September 22,
2017), Named Plaintiff Anitra Diamond (Diamond) --
individually and on behalf of all others similarly situated -
- filed a class action complaint alleging that Defendant
Kimberly Hastie (Hastie) unlawfully obtained, used and/or
disclosed personal information of Mobile, Alabama citizens
(email addresses) from motor vehicle records in violation of
the Drivers' Privacy Protection Act, 18 U.S.C.
§ 2721, et. seq. (DPPA) (Count I) and in
violation of their privacy rights under Title 42 U.S.C.
§ 1983 (Count II). (Docs. 1, 28, 36 (amended)).
Concerning the DPPA violations (Count I) Diamond alleges
…During August 2013, Defendant Hastie, acting under
color of the law, and in the course and scope of her
employment, knowingly and under misinterpretation of federal
law, authorized, directed, ratified, approved, acquiesced in,
committed, or participated in, acts and practices in direct
violation of the DPPA when she ordered an employee of the
Mobile County License Commission to access Plaintiffs'
and the Class Members' Personal Information contained in
motor vehicle records.
Hastie ordered the employee to access motor vehicle records
and gather the email addresses of all Mobile County residents
who reside within the city limits and place that Personal
Information onto an electronic storage device (a “thumb
Hastie then ordered that the Personal Information be provided
to the campaign of a local political candidate. Non-parties
Chad Tucker (“Tucker”) and Strateco, LLC
(“Strateco”), knowingly received the Personal
Information and utilized it in order promote a local
political candidate, a purpose not permitted under the DPPA.
(Doc. 36 at 5). Diamond's' DPPA count (Count I)
specifies that Hastie's "accessing, obtaining,
disclosing and/or using" the motor vehicle records
violate Section 2724(a) of the DPPA. (Id. at 9).
Email addresses constitute "personal information"
under DPPA. United States v. Hastie, 854 F.3d 1298,
1303-1304 (11th Cir. 2017) (an email address is
personal information protected by the DPPA because it is
information that identifies an individual). Based on
Hastie's conduct, Diamond seeks -- per Section 2724(b)(1)
-- liquidated damages of $2, 500, per individual, per
occurrence (each instance Hastie unlawfully obtained, used,
and/or disclosed protected personal information); punitive
damages; and attorneys' fees.
Count II, with regard to Section 1983, Diamond alleges that
she had a reasonable expectation of privacy as to the
personal information provided to the Mobile County License
Commission, and that Hastie deprived her of her rights to
privacy as secured by the DPPA. (Doc. 36 at 11). From this,
Diamond claims attorneys' fees and costs. (Id.
November 12, 2018, Diamond moved to certify a class of
similar situated individuals, asserting that certification is
proper because the requirements of Federal Rules of Civil
Procedure Rule 23(a) and Rule 23(b)(3) are satisfied.
(Doc. 78). Specifically, Diamond contends that:
…The License Commission issues driver's licenses
and automobile titles and maintains motor vehicle
registrations for residents of Mobile County….The
License Commission maintains a website, which requires users
to provide their email addresses for all online
transactions….The License Commission also instructs
tellers at its offices to obtain email addresses from
licensed drivers and motor vehicle owners….
….Brad Bray, the manager of information
technology….downloaded a list of email addresses onto
a flash drive and delivered it to Hastie's
secretary… The flash drive contained approximately 30,
853 email addresses…Hastie gave the flash drive
containing the email addresses to the Stimpson campaign, and
the Stimpson campaign sent out Hastie's endorsement to
those email addresses….
In 2015, a federal grand jury returned a superseding
indictment against defendant Hastie. ….Count 17
charged Hastie with violating the DPPA by disclosing the
email addresses collected by the License Commission to a
political consulting firm to tout Hastie's support for a
The jury found defendant Hastie guilty of violating the
DPPA.….Hastie appealed…the Eleventh Circuit
affirmed….[and]….among other things, held that
the term “personal information” in the DPPA
includes e-mail addresses, and thus defendant Hastie's
knowing release of drivers' e-mail addresses to a third
party violated the DPPA.….
(Id.) Diamond requests that she be designated
representatives of the following class:
All persons who had email addresses in the custody of the
Mobile County License Commission which were disclosed by
defendant Kimberly Hastie to Chad Tucker and Strateco, LLC.
Excluded from the class are: defendant Hastie and her
immediate family; all persons who make a timely election to
be excluded from the class; the judges to whom this case is
assigned and immediate family members thereof.
(Doc. 78 at 2-3, 25). Moreover, Diamond requests
certification of these causes of action:
Any claims for statutory damages under the Drivers'
Privacy Protection Act, 18 U.S.C. § 2724(a), and 42
U.S.C. § 1983, premised upon disclosures of personal
information by defendant Hastie to Chad Tucker and/or
(Id. at 25).
grounds, Diamond contends that certification under Rule 23(a)
is proper because: 1) the class of over 30, 000 plaintiffs is
sufficiently numerous to render joinder impracticable; 2)
defendant Hastie obtained, used, and/or disclosed DPPA
protected personal information of each class member in an
identical manner and therefore there are numerous issues of
law and facts common to each class member: 3) the claims of
the class representatives are typical of, if not identical
to, the claims of the class as a whole; and 4) the class
representative will fairly and adequately protect the
interests of the class. (Doc. 78). Diamond adds that
certification under Rule 23(b)(3) is proper because:
"Hastie obtained, used, and/or disclosed the DPPA
protected personal information of each class member in
identical fashion; therefore, common questions of law and
fact predominate over individual questions. Moreover, given
the size of the proposed class, the utilization of the class
action device is superior to other available methods of
litigation and, as such, represents the most fair and
efficient mode of adjudicating this controversy."
opposes the motion, asserting -- in part -- that: 1) the
proposed class is so numerous that joinder of all members is
impractical; 2) questions of law and fact are not common to
class members; 3) the named plaintiffs are not typical of
claims of the proposed class; and 4) Plaintiffs assert a
Section 1983 claim as to which there is no statutory
liquidated damages amount and class certification is not
superior. (Doc. 83). Hastie also highlights a myriad of
"issues" and "questions" regarding the
flash drive at issue, the status of the emails (defunct,
containing typos, etc.), and more, as undermining the Rule 23
class requirements. (Id.)
January 25, 2019, Plaintiff Labarron Yates filed a notice of
withdrawal stating that he "no longer seeks to serve as
a named Plaintiff or class representative[.]" (Doc. 87
at 1). Yates' Notice of Withdrawal is
GRANTED, and Yates is
REMOVED as a "named plaintiff"
and/or proposed class representative, and Anitra Diamond is
the only "named plaintiff" and proposed class
representative presently before the Court. As such, from this
point forward, the Court will reference Diamond as the
plaintiff (or as Plaintiff in the singular) in assessing this
Class Certification - Relevant Law
moves for class certification under Rules 23(a) and 23(b)(3).
Per Family Med. Pharm., LLC v. Trxade Group, Inc.,
2017 WL 1042079, *3-4 (S.D. Ala. Mar. 17, 2017):
“Under Rule 23, certification is proper where the
proposed [class satisfies] an implicit ascertainability
requirement, the four requirements listed in Rule 23(a), and
the requirements listed in any of Rule 23(b)(1), (2), or
(3).” Karhu v. Vital Pharms, Inc., 621
Fed.Appx. 945, 946 (11th Cir. 2015) (citing Little v.
T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir.
2012)). Also, “[f]or a district court to certify a
class action, the named plaintiffs must have
standing[.]” Vega v. T-Mobile USA, Inc., 564
F.3d 1256, 1268 (11th Cir. 2009) (quoting Klay v. Humana,
Inc., 382 F.3d 1241, 1250 (11th Cir. 2004)).
As to the ascertainability requirement, “Rule 23
implicitly requires that the “proposed class is
adequately defined and clearly ascertainable.”
Karhu, 621 Fed.Appx. at 946 (citing Little,
691 F.3d at 1304) (internal quotation marks omitted). The
Eleventh Circuit requires that the class definition
“contain[ ] objective criteria that allow for class
members to be identified in an administratively feasible
way.” Id…As to the second requirement,
“[i]n order to establish ascertainability, the
plaintiff must propose an administratively feasible method by
which class members can be identified” Id. at
947. “Identifying class members is administratively
feasible when it is a ‘manageable process that does not
require much, if any, individual inquiry.' ”
Id. at 946 (quoting Bussey v. Macon Cty.
Greyhound Park, Inc., 562 Fed.Appx. 782, 787 (11th Cir.
Rule 23(a) requirements for certification of any class action
are: “(1) numerosity (‘a class [so large] that
joinder of all members is impracticable'); (2)
commonality (‘questions of law or fact common to the
class'); (3) typicality (named parties' claims or
defenses “are typical…of the class”';
and (4) adequacy of representation (representatives
‘will fairly and adequately protect the interests of
the class').” Amchem Prod., Inc. v.
Windsor, 521 U.S. 591, 613 (1997); Vega v. T-Mobile,
USA, Inc., 564 F.3d 1256, 1268 (11th Cir.
2009) (same). Moreover, at least one of the three
requirements in Rule 23(b) must be satisfied. Little v.
T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th
Cir. 2012); Klay v. Humana, Inc., 382 F.3d 1241,
1250 (11th Cir. 2004), abrogated in part on other
grounds by Bridge v. Phoenix Bond & Indem. Co.,
553 U.S. 639 (2008); Palm Beach Golf Ctr.-Boca, Inc. v.
Sarris, 311 F.R.D. 688, 698 (S.D. Fla. 2015). In this
case, Diamond alleges that she meets the requirements of Rule
23(b)(3) which requires that the Court find that the
questions of law or fact common to class members predominate
over any questions affecting only individual members, and
that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.
“[t]he burden of proof to establish the propriety of
class certification rests with the advocate of the
class.” Valley Drug Co. v. Geneva Pharms.,
Inc., 350 F.3d 1181, 1187 (11th Cir. 2003).
Finally, while overall a district court's decision to
grant class certification lies within its sound discretion,
Gulf Oil v. Bernard, 452 U.S. 89, 100 (1981), the
court must nevertheless conduct a “rigorous
analysis” that “consider[s] the merits of the
case to the degree necessary to determine whether the
requirements of Rule 23 will be satisfied”
Vega, 564 F.3d at 1266.
explained in Vega:
….“Although the trial court should not determine
the merits of the plaintiffs' claim at the class
certification stage, the trial court can and should consider
the merits of the case to the degree necessary to determine
whether the requirements of Rule 23 will be satisfied.”
Valley Drug, 350 F.3d at 1188 n. 15 (citing Gen.
Tel. Co. of the Southwest v. Falcon, 457 U.S. 147,
160…. (1982)); see Coopers & Lybrand v.
Livesay, 437 U.S. 463, 469 & n. 12…(1978)
(“[t]he class determination generally involves
considerations that are ‘enmeshed in the factual and
legal issues comprising the plaintiff's cause of
action.' ... ‘The more complex determinations
required in Rule 23(b)(3) class actions entail even greater
entanglement with the merits.' ”) (emphasis and
citations omitted); Huff v. N.D. Cass Co. of Ala.,
485 F.2d 710, 714 (5th Cir.1973) (en banc) (“It is
inescapable that in some cases there will be overlap between
the demands of [Rule] 23(a) and (b) and the question of
whether plaintiff can succeed on the merits.”);
Castano, 84 F.3d at 744 (“Going beyond the
pleadings is necessary, as a court must understand the
claims, defenses, relevant facts, and applicable substantive
law in order to make a meaningful determination of the
Vega, 564 F.3d at 1265-1266 (footnotes omitted).
Eleventh Circuit has made clear, “analysis of class
certification must begin with the issue of standing.”
Griffin v. Dugger, 823 F.2d 1476, 1482
(11th Cir. 1987). “The question of whether
an individual has standing to raise a claim is particularly
important in the class action context because, before the
court ever reaches the question of whether the
individual's claims and the class claims will share
common questions, it must decide whether the individual has a
cognizable claim at all.” Likes v. DHL Exp.,
288 F.R.D. 524, 528 (N.D. Ala. 2012).
does not specifically allege Article III standing in the
operative complaint (Doc. 36) or motion for class
certification (Doc. 78). Presumably, however, Diamond bases
her standing on the allegation that she is a "Mobile
County Alabama citizen who provided [her] email addresses
to the License Commission while renewing [her] driver's
licenses -- which were later 'pulled from the Mobile
County License Commission's database and provided to a
representative of a local political campaign for a purpose
that was not authorized by Plaintiff.'” (Doc. 78 at
Hastie generally states in her answer that Diamond lacks
standing (Doc. 41 at 6), she makes no substantive argument in
her briefing regarding standing. At this point, the Court
finds that Diamond has cognizable DPPA and Section 1983
claims, and thus standing to proceed.
Rule 23(a) requirements
summarized by the Eleventh Circuit in Landeros v.
Pinnacle Recovery, Inc., 692 Fed.Appx. 608, 611
(11th Cir. 2017) (footnote omitted) (affirming the
district court's denial of class certification):
Rule 23(c) directs a district court, “[a]t [the]
earl[iest] practicable time after a person sues or is sued as
a class representative, ... [to] determine by order whether
to certify the action as a class action.” Fed.R.Civ.P.
23(c)(1)(A). While it is sometimes possible to decide the
propriety of class certification from the face of the
complaint, see Mills v. Foremost Ins. Co., 511 F.3d
1300, 1309 (11th Cir. 2008), the Supreme Court has
“emphasized that it may be necessary for the court to
probe behind the pleadings before coming to rest on the
certification question.” Comcast Corp. v.
Behrend, 569 U.S. 27…(2013) (internal quotation
marks omitted). In fact, the determination usually should be
predicated on more information than the complaint itself
provides, and it “will frequently entail overlap with
the merits of the plaintiff's underlying claim.”
Id. (internal quotation marks omitted). After all,
“class determination generally involves considerations
that are enmeshed in the factual and legal issues comprising
the plaintiff's cause of action.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 351….
(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
Moreover, “because class actions are an exception to
our constitutional tradition of individual litigation,
” Brown v. Electrolux Home Prods., Inc., 817
F.3d 1225, 1233 (11th Cir. 2016), a district court has great
responsibility to adhere to the framework of Rule 23.
Id. [ ] Hence, if the district court has
reservations about whether the Rule 23 requirements have been
satisfied, it should refuse to grant class certification
until the parties have assuaged the district court's
doubts. Id. at 1233-34.
seeks Rule 23(a) class certification for the DPPA claims and
the Section 1983 claims (intertwining those claims).
23(a)(1) requires a class to be “so numerous that
joinder of all members is impracticable.” In the
Eleventh Circuit, a class of less than 21 is inadequate while
a class of more than 40 is adequate. See,
e.g., Cox v. Am. Cast Iron Pipe Co., 784
F.2d 1546, 1553 (11th Cir. 1986); Helms v.
ConsumerInfo.com, Inc., 236 F.R.D. 561, 564 (N.D. Ala.
2005). Per Diamond, the Defendant unlawfully disclosed the
email addresses of over 30, 000 Mobile County residents, such
that it would be impracticable to join all of these citizens.
Additionally, Diamond asserts that ...