Toni Foudy v. City of Fort Pierce , 845 F.3d 1117 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14646
________________________
D.C. Docket No. 2:14-cv-14316-RLR
SHAUN FOUDY,
TONI FOUDY,
Plaintiffs - Appellants,
versus
INDIAN RIVER COUNTY SHERIFF'S OFFICE,
SHERIFF DERYL LOAR,
in his official capacity as the Sheriff of the
Indian River County Sheriff's Office and in
his individual capacity,
DAVID BAILEY,
individually,
ERIC CARLSON,
individually,
JOHN FINNEGAN,
individually, et al.,
Defendants - Appellees,
GREG LONG,
individually, et al.,
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Defendants.
________________________
No. 15-14659
________________________
D.C. Docket No. 2:14-cv-14318-RLR
SHAUN FOUDY, TONI FOUDY,
Plaintiffs - Appellants,
versus
CITY OF PORT ST. LUCIE,
RICHARD S. GIACCONE,
STEVE CAMARA,
MICHAEL RYAN CONNOR,
MEYER GHOBRIAL, et al.,
Defendants - Appellees.
________________________
No. 15-15015
________________________
D.C. Docket No. 2:14-cv-14324-RLR
SHAUN FOUDY,
Plaintiff,
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TONI FOUDY,
Plaintiff - Appellant,
versus
CITY OF FORT PIERCE,
POLICEMAN JASON BRAUN,
JANE AND JOHN DOES (1-10),
Defendants - Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(January 9, 2017)
Before MARCUS and BLACK, Circuit Judges, and COHEN, * District Judge.
BLACK, Circuit Judge:
In this consolidated appeal, Toni and Shaun Foudy challenge the district
court’s dismissals on statute of limitations grounds of their lawsuits against the
Indian River County Sheriff’s Office, the City of Port St. Lucie, the City of Fort
Pierce, and numerous related individuals brought under the Driver’s Privacy
Protection Act, 18 U.S.C. §§ 2721–2725 (the DPPA), and 42 U.S.C. § 1983. The
Foudys assert the district court erred when it (1) applied an occurrence rule of
*
Honorable Mark Howard Cohen, United States District Judge for the Northern District
of Georgia, sitting by designation.
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accrual to their § 1983 claims, (2) refused to apply equitable tolling to their DPPA
claims, and (3) refused to relate their amended complaints back to their initial
complaint filed on December 31, 2012. After review and with the benefit of oral
argument, we affirm.
I. BACKGROUND
The Florida Department of Highway Safety and Motor Vehicles (DHSMV)
maintains a Driver and Vehicle Information Database (DAVID). DAVID contains
Florida drivers’ personal information including photographs, social security
numbers, prior and current mailing addresses, and other similar data. See Foudy v.
Miami-Dade Cty., 823 F.3d 590, 591 (11th Cir. 2016). Toni and Shaun Foudy
allegedly supplied their personal information to DHSMV, which was thereafter
entered into DAVID. The Foudys claim the Appellees, consisting of law
enforcement agencies, their employees, and other officials throughout the state of
Florida, repeatedly accessed the Foudys’ private information through the DAVID
database without their knowledge or consent, motivated at once by distaste for
women in law enforcement (Toni Foudy is a police officer), attraction to Toni
Foudy’s physical beauty, and “morbid curiosity.” The Foudys learned of the
alleged accesses, which took place between July 2005 and June 2011, when they
sought an audit of all accesses of their DAVID information in April 2011.
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On December 31, 2012, the Foudys filed suit in the Southern District of
Florida against the St. Lucie County Sheriff’s Office, the Indian River County
Sheriff’s Office, and various unnamed entities, individuals, DHSMV employees,
and Florida law enforcement personnel. The Cities of Port St. Lucie and Fort
Pierce and their respective employees were added in an amended complaint on
March 7, 2014. The Foudys charged all defendants with violating the DPPA. See
18 U.S.C. § 2724 (“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, who may
bring a civil action in a United States district court.”). The Foudys brought their
claims directly under the DPPA as well as under 42 U.S.C. § 1983 in conjunction
with the DPPA. On August 1, 2014, Judge Martinez, concerned the complaint
constituted a mere “shotgun pleading,” entered an order severing the Foudys’
claims against the separate defendants. It was not readily apparent, the court
observed, how the various claims constituted the same transaction. See FED. R.
CIV. P. 20(a)(2)(A). The order dismissed all defendants except the first named
defendant and granted the Foudys two weeks to refile separate actions against the
dismissed parties. It specifically provided the newly-severed actions, when refiled,
would be considered continuations of the prior action for statute of limitations
purposes. The Foudys refiled thirteen separate actions within the allotted time.
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Three of those suits form the basis of this consolidated appeal. Each
complaint was filed August 15, 2014: one against the City of Port St. Lucie and
certain related individuals (the Port St. Lucie Case); one against the Indian River
County Sheriff’s Office and related individuals (the Indian River Case); and one
against the City of Fort Pierce and related individuals (the Fort Pierce Case). On
January 16, 2015, Judge Rosenberg, presiding over the refiled cases, entered three
identical paperless orders dismissing the Foudys’ complaints in each case. The
orders asserted the Foudys did not clearly demonstrate their claims against the
various defendants arose out the same transaction, and adopted the reasoning of
Judge Martinez’s August 2014 dismissal. They stated Judge Martinez’s order had
“required Plaintiffs to show, if Plaintiffs proceeded against multiple defendants,
how the conduct of the Defendants constituted the same transaction for the
purposes of joinder.” The Foudys not having done so, the court dismissed each
case without prejudice, but did not provide for tolling of the statute of limitations
as Judge Martinez’s order had done. The Foudys were given fifteen days to refile
separate actions against appropriate defendants and expressly state in any
complaint naming multiple defendants how such parties’ conduct constituted the
same transaction for the purposes of joinder. By the morning of February 2, 2015,
the Foudys had not refiled. The district court entered paperless orders closing each
case, stating the Foudys could reopen the cases only by filing a motion explaining
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their failure to comply with court orders and an amended complaint meeting the
requirements of the January 16 order. Later that same day, the Foudys filed
motions to reopen in each case, attaching their amended complaints. The Foudys
provided no explanation as to how the claims against the defendants arose out of
the same transaction. The next day, the district court denied each of the motions,
noting the Foudys had failed to explain how joinder was permissible, as the court
had ordered them to do. It gave the Foudys the opportunity to refile a motion
responsive to the court’s joinder concerns. On February 18, 2015, the Foudys did
so, and the court reopened the Indian River Case on June 3, 2015, the Port St.
Lucie Case on June 11, 2015, and the Fort Pierce Case on June 19, 2015.
In each suit, the defendants moved to dismiss, asserting the Foudys’ claims
were barred by the statute of limitations. The court issued two sets of nearly
identical orders 1 on July 27 and 28, 2015 and September 9, 2015, which together
held the occurrence rule applied to the Foudys’ DPPA and § 1983 claims; thus, the
statute of limitations began to run on the date the alleged violations occurred and
not when they were discovered. The district court determined the effective dates
of the refiled complaints were March 5, 2015 with respect to the St. Lucie Case,
1
In each of the three consolidated cases, each of the district courts orders are materially
identical, down to the language used in the orders. Unless otherwise stated, then, references to
reasoning or action of the district court pertain to all three consolidated cases. Initially, the
district court found the § 1983 claims to be governed by a discovery rule and thus not necessarily
time-barred, but revised its reasoning and conclusion in the September 9 orders.
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June 23, 2015 with respect to the Indian River Case, and March 12, 2015 with
respect to the Fort Pierce Case. 2 In each instance, the Foudys had alleged no
violations less than four years prior to such dates. Accordingly, all of the Foudys’
claims were time-barred, and the district court entered judgment in favor of the
defendants and closed the cases.
On appeal, the Foudys initially argued the district court erred when it applied
the occurrence rule to both the DPPA claims and the § 1983 claims. After the
parties had submitted their briefs, however, a panel of this Court held the
occurrence rule applies to DPPA claims in the separate case of Foudy v. Miami-
Dade County. See Foudy, 823 F.3d at 593. In their supplemental brief, the Foudys
concede that case has become the law of this Circuit. See Smith v. GTE Corp., 236
F.3d 1292, 1300 n.8 (11th Cir. 2001) (“[T]he holding of the first panel to address
an issue is the law of this Circuit . . . .”). That issue is now foreclosed, and we
need address only the remaining matters in this consolidated appeal.
II. STANDARDS OF REVIEW
We review a district court’s interpretation and application of a statute of
limitations de novo. Harrison v. Dig. Health Plan, 183 F.3d 1235, 1238 (11th Cir.
1999). “In reviewing an order granting a motion to dismiss, the appellate court
must accept the factual allegations of the complaint as true and may affirm the
2
No party challenges the district court’s determination of these dates.
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dismissal of the complaint only if it is clear that no relief could be granted under
any set of facts that could be proved consistent with the allegations.” Mesocap
Ind. Ltd. v. Torm Lines, 194 F.3d 1342, 1343 (11th Cir. 1999) (quotation omitted).
We review a district court’s decision to dismiss a case for failure to comply
with an order of the court for an abuse of discretion. See Gratton v. Great Am.
Commc’ns, 178 F.3d 1373, 1374 (11th Cir.1999). Although we review a district
court’s interpretation of its own orders for an abuse of discretion, Cave v.
Singletary, 84 F.3d 1350, 1354–55 (11th Cir. 1996), we do not extend such
deference to one district judge’s interpretation of the orders of another judge, Alley
v. U.S. Dep’t of Health & Human Servs., 590 F.3d 1195, 1202 (11th Cir. 2009).
III. DISCUSSION
Though the DPPA contains its own cause of action, it does not provide its
own statute of limitations. The applicable statute of limitations on DPPA claims is
found in 28 U.S.C. § 1658. Section 1658(a) applies to all causes of action arising
under federal statutes enacted after December 1, 1990 that do not otherwise set
forth a specific limitations period. 28 U.S.C. § 1658(a) (“[A] civil action arising
under an Act of Congress enacted after the date of the enactment of this section
may not be commenced later than 4 years after the cause of action accrues.”). As
noted above, we recently held that a DPPA violation “accrues” within the meaning
of § 1658(a) when the violation occurs. Foudy, 823 F.3d at 593. But Foudy v.
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Miami-Dade County did not decide when a § 1983 claim based on the DPPA
accrues. We do so now.
A. Accrual of § 1983 Claim
We have held that the DPPA, though it sets forth its own express right and
remedy, is also actionable under § 1983. Collier v. Dickinson, 477 F.3d 1306,
1310 (11th Cir. 2007). The primary issue in this case is one of first impression:
namely, whether a § 1983 claim for breach of the DPPA accrues at the time the
alleged violations are or should have been discovered or, alternatively, at the time
the violations occur. The Foudys acknowledge this Court’s prior decision in
Foudy v. Miami-Dade County is binding precedent and accordingly they accept
their standalone DPPA claims are governed by the occurrence rule. They
nevertheless maintain their § 1983 claims, though premised entirely upon the
DPPA, accrued only upon discovery.
It is true that in many contexts, our cases have held § 1983 claims are
governed by a discovery rule, such that the statute of limitations begins to run on a
claim when “the facts which would support a cause of action are apparent or
should be apparent to a person with a reasonably prudent regard for his rights.”
Rozar v. Mullis, 85 F.3d 556, 561–62 (11th Cir. 1996) (quotation omitted). On the
other hand, according to the Supreme Court, the ordinary rule is that a § 1983
claim accrues “when the plaintiff has ‘a complete and present cause of action.’”
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Wallace v. Kato, 549 U.S. 384, 388, 127 S. Ct. 1091, 1095 (2007) (quoting Bay
Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522
U.S. 192, 201, 118 S. Ct. 542, 549 (1997)); see also Chardon v. Fernandez, 454
U.S. 6, 8, 102 S. Ct. 28, 29 (1981) (holding a § 1983 action for unlawful
termination of public employment accrued when the unlawful act, namely the
decision to terminate, took place). This is the ordinary accrual rule for statutes of
limitations generally. See TRW Inc. v. Andrews, 534 U.S. 19, 37, 122 S. Ct. 441,
452 (2001) (Scalia, J., concurring) (“The injury-discovery rule . . . is bad wine of
recent vintage. Other than our recognition of the historical exception for suits
based on fraud . . . we have deviated from the traditional rule and imputed an
injury-discovery rule to Congress on only one occasion.” (citations omitted)).
Accordingly, it should be clear that our application of the discovery rule in other
§ 1983 cases does not require us to apply it to a new circumstance. C.f. Hillcrest
Prop., LLC v. Pasco Cty., 754 F.3d 1279, 1281–83 (11th Cir. 2014) (considering
whether to apply discovery rule to a facial takings challenge to a zoning ordinance
pursuant to § 1983), cert. denied, 135 S. Ct. 1844 (2015). And indeed, though
many of our own cases profess adherence to the discovery rule, the constructive
knowledge element can cause it to function as an occurrence rule, holding a
plaintiff “should have known” about an injury at the moment it occurs. See, e.g.,
id. at 1283 (concluding harm occurred when ordinance was passed and finding
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plaintiffs knew or should have known of their injury at that time); McNair v. Allen,
515 F.3d 1168, 1174 (11th Cir. 2008) (holding an Eighth Amendment method of
execution claim accrues on the later of the date on which state review is complete,
or the date on which the capital litigant becomes subject to a new or substantially
changed execution protocol); Rozar, 85 F.3d at 561–62 (finding equal protection
claims accrued when allegedly discriminatory county board vote was taken
because that is when injury occurred and plaintiffs had not met burden to show
they were “justifiably ignorant” of the action at that time).
Section 1983 cases in which we have invoked the discovery rule have
typically involved constitutional or general civil rights claims. See Chappell v.
Rich, 340 F.3d 1279, 1281, 1283 (11th Cir. 2003) (§ 1983 deprivation of civil
rights claim for denial of access to the courts); Rozar, 85 F.3d at 560, 562–63
(equal protection and takings claims); Mullinax v. McElhenney, 817 F.2d 711, 714,
716–17 (11th Cir. 1987) (conspiracy, false accusation and arrest, entrapment,
harassment, and discrimination). In these ordinary § 1983 cases, the forum state’s
statute of limitations for personal injury actions applies. See Chappell, 340 F.3d at
1283; Rozar, 85 F.3d at 561; accord City of Rancho Palos Verdes v. Abrams, 544
U.S. 113, 123 n.5, 125 S. Ct. 1453, 1460 n.5 (2005) (“The statute of limitations for
a § 1983 claim is generally the applicable state-law period for personal-injury
torts.”).
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On the other hand, when a § 1983 claim arises under a federal statute
enacted after December 1, 1990, and the underlying statute does not provide its
own limitations period, the limitations period set forth in § 1658—not the forum
state personal injury statute—governs. See Jones v. R. R. Donnelley & Sons Co.,
541 U.S. 369, 382, 124 S. Ct. 1836, 1845 (2004) (asserting § 1658 applies to all
claims “made possible” by a post-1990 enactment); Baker v. Birmingham Bd. of
Educ., 531 F.3d 1336, 1337–38 (11th Cir. 2008) (holding § 1983 limitations period
is determined under § 1658(a) for action based upon post-1990 amendments to 42
U.S.C. § 1981); see also Abrams, 544 U.S. at 123 n.5, 125 S. Ct. at 1460 n.5
(“Since the [§ 1983] claim here rests upon violation of the post-1990
[Telecommunications Act], § 1658 would seem to apply.”). As stated above, the
DPPA, enacted in 1994, is governed by § 1658, see Foudy, 823 F.3d at 593, so the
§ 1983 claim based on the DPPA is as well.
It is only logical that the occurrence rule applicable to the DPPA’s statute of
limitations would travel with it in § 1983 cases. As the Supreme Court has
recognized, “the accrual date of a § 1983 cause of action is a question of federal
law.” Wallace, 549 U.S. at 388, 127 S. Ct. at 1095; see also Mullinax, 817 F.2d at
716. Here, our law interpreting the word “accrues” in § 1658 is clear with respect
to the DPPA. Per Foudy v. Miami-Dade County, a DPPA cause of action
“accrues” under § 1658(a) when the alleged DPPA violation occurs. Foudy, 823
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F.3d at 593. Thus the Foudys’ § 1983 claim, governed as it is by the same statute
of limitations, also accrued when the alleged violations occurred.
In the present case, any other conclusion would be anomalous. It would be
incongruous to confer upon the Foudys’ § 1983 claim, entirely dependent as it is
upon the DPPA, a more generous accrual rule than the underlying DPPA claim
itself. To paraphrase Baker v. Birmingham Board of Education, “[w]ere it not for
the [DPPA, the Foudys’] complaint would fail to state a claim under § 1983.”
Baker, 531 F.3d at 1338. We will not permit the Foudys to employ § 1983 to
resuscitate their expired DPPA claims.
Finally, our holding supports the policies underlying all limitations
provisions; namely, “repose, elimination of stale claims, and certainty about a
plaintiff’s opportunity for recovery and a defendant’s potential liabilities.” Gabelli
v. SEC, 133 S. Ct. 1216, 1221 (2013) (citing Rotella v. Wood, 528 U.S. 549, 555,
120 S. Ct. 1075, 1081 (2000)). Defendants should not be forced to sleep with one
eye open while claims against them “slumber until evidence has been lost,
memories have faded, and witnesses have disappeared.” Id. (citing R.R.
Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 349, 64 S. Ct. 582, 586
(1944)).
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Accordingly, we hold that a § 1983 claim based solely on the DPPA accrues
at the same time as one brought under the underlying statute itself: upon the
occurrence of the alleged violation.
B. Equitable Tolling
Despite our holding in Foudy v. Miami-Dade County, the Foudys insist their
direct DPPA claims are not time-barred because although the causes of action
accrued at the time of the alleged violations, the limitations period has been
equitably tolled. Equitable tolling by concealment is established either through
“affirmative actions by the defendant constituting concealment” or “where the
wrong is of such a character as to be self-concealing.” Hill v. Texaco, Inc., 825
F.2d 333, 335 & n.2 (11th Cir. 1987). The Foudys do not allege affirmative
concealment by the Appellees; indeed, they appear to have received their data
access audit promptly upon request. Instead, they contend the DPPA violations
were self-concealing.
The alleged DAVID accesses cannot be categorized as self-concealing
wrongs. We stated as much, albeit in dicta, in Foudy v. Miami-Dade County. See
Foudy, 823 F.3d at 594 (“The alleged DPPA violations are not by their nature self-
concealing . . . .” (quotation omitted)). A self-concealing wrong is one in which
the clandestine nature of the activity is essential to the act itself, where a
“deception, misrepresentation, trick or contrivance is a necessary step in carrying
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out the illegal act,” not merely “separate from the illegal act and intended only to
cover up the act.” Hobson v. Wilson, 737 F.2d 1, 33–34 n.102 (D.C. Cir. 1984),
overruled in part on other grounds by Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160 (1993); see also
Hill, 825 F.2d at 335 n.2 (citing Hobson with approval). The alleged database
accesses cannot be so described. True, they may have been difficult to discover
without an audit, but the illegal act of accessing the database without a legitimate
purpose does not by necessity involve a deception, misrepresentation, trick, or
contrivance. A DPPA violation consists of “knowingly obtain[ing], disclos[ing] or
us[ing] personal information, from a motor vehicle record” for a prohibited
purpose. 18 U.S.C. § 2724. To accomplish the prohibited activity requires no
deception—unlike, for example, a fraud.3 Indeed, here, the unlawful act could be
committed with the plaintiff’s full knowledge. As a result, DPPA violations are
not self-concealing and the Foudys cannot reap the benefit of equitable tolling.
3
The Hobson court’s elucidation of the concept is helpful:
An example of [a self-concealing wrong] would be a scheme in
which deception or misrepresentation affected the behavior of
another, where that change in behavior enabled the would-be
defendant to carry out his scheme—as where a person knowingly
sells a fake vase as a real antique. In that instance, the statute
would toll until the buyer discovered or should have discovered the
deception.
Hobson, 737 F.2d at 33–34 n.102.
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C. Dismissal and Relation Back
The Foudys claim the district court erred when it dismissed their actions for
misjoinder on January 16, 2015, contending the district court misread Judge
Martinez’s severance order as requiring an explanation of any joinder of multiple
defendants. As a result, they assert their complaints should relate back to date of
the first complaint filed on December 31, 2012. See FED. R. CIV. P. 15(c).
The district court may have misconstrued Judge Martinez’s order as
requiring the Foudys to explain why joinder was appropriate when they refiled
their amended complaints on August 15, 2014. We would extend no deference to
the court’s interpretation of that order were it necessary to decide the issue. Alley
v. U.S. Dep’t of Health & Human Servs., 590 F.3d 1195, 1202 (11th Cir. 2009).
But whether or not the district court’s dismissals were appropriate in the first
instance, the Foudys’ subsequent failure to obey court orders warranted closure of
each case. In the January 16 orders dismissing the cases, the court specifically
stated that “[i]f Plaintiffs’ amended complaint is directed towards more than one
Defendant, Plaintiffs shall clearly specify how the alleged conduct of each
Defendant arises out of the same transaction or is otherwise permissible in light of
this Order.” The Foudys provided no such explanation when they refiled on
February 2, despite the fact that each complaint named multiple defendants.
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Federal courts possess an inherent power to dismiss a complaint for failure
to comply with a court order. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.
1985); see also Degen v. United States, 517 U.S. 820, 827, 116 S. Ct. 1777, 1782
(1996) (“A federal court has at its disposal an array of means to enforce its orders,
including dismissal in an appropriate case.”); Link v. Wabash R.R. Co., 370 U.S.
626, 630–31, 82 S. Ct. 1386, 1388–89 (1962) (noting the inherent power of courts
to dismiss an action is not precluded by FED. R. CIV. P. 41(b)). The district court’s
January 16 paperless orders clearly instructed the Foudys to explain their grounds
for joinder in any complaint naming multiple defendants. The Foudys failed to
abide by this requirement when they refiled substantially similar complaints on
February 2, 2015, unaccompanied by any such explanation. Here, both the district
court’s February 3 refusal to accept the Foudys’ amended complaints and its
decision to deny their motions to reopen the cases were entirely appropriate and
operated as a second dismissal without prejudice.
“Dismissal of a complaint, without prejudice, does not allow a later
complaint to be filed outside the statute of limitations.” Bost v. Fed. Express
Corp., 372 F.3d 1233, 1242 (11th Cir. 2004) (citing Stein v. Reynolds Sec., Inc.,
667 F.2d 33, 34 (11th Cir. 1982)). The statute of limitations is not automatically
tolled in such a situation, absent some additional reason. Justice v. United States, 6
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F.3d 1474, 1479–80 (11th Cir. 1993). Here, as discussed above, there is none. As
a result, the complaints cannot relate back to December 31, 2012.
IV. CONCLUSION
The statute of limitations began to run on the Foudys’ claims when the
alleged DPPA violations occurred. The Foudys have failed to present any theory
that would entitle their claims to be treated as filed within the limitations period.
Accordingly, their actions are time-barred, and the judgments of the district court
are
AFFIRMED.
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