the court i'm john straus and i represent the plaintiff appellant to johnny loffler the main question here is whether there is entity liability under the driver's privacy protection act or d p a under two theories direct liability  vicarious liability we ask of the court holder is under both finally we ask that the court find that equitable tolling precludes the running of the statue of limitations because the department of public safety thwarted ms loppers attempt so you can use media are you conceding that the recent hegland decision sort of shoots down your argument relation back we would have to have the whole the whole circuit hear that ok so you're conceding that for purposes of this panel that's correct your honor yes so equitable tolling is is your only the audit that came back to her said that all of the came back to her that only that it was someone from duluth she had an assumption that it might be that person but professionally considering the situation where this woman was having an affair with her husband she had no desire to put her in the case until she knew for sure that this was the woman who did it so the standard indirect rule tolling when did she know for sure she knew for sure in two thousand and fifteen when she got an audit that in discovery in this case she did not know for sure the standard that will tolling your honor is that the plaintiff act diligently and that there are some extraordinary circumstance the extraordinary circumstance here is that unlike most other d p p plaintiffs in two thousand and eleven the department of public safety was not allowing was not do not provide an audit to ms offer when she asked for one so that's also different in the case and headland were there was just equable stoppel which required some bad act on the part of the defendant that prevents the person from learning information here she was diligent she she tried to get out two thousand and eleven she tried again in two thousand and thirteen when they had apparently changed their practice at department of public safety she got one and then she then she brought suit so we believe there should be equal to one here now as to entity liability under the plain meaning of the d p a cities and counties can be held directly liable that's because under the d p p a a person includes municipalities the person under the statute includes not only individuals but an organization or an entity are is your reading of the district court's ruling that it dismissed because it could not be directly liable or just that it was not plausible that it was not a plausible claim alleged in the complaint is that i didn't i didn't read it to say that direct liability was not an option well i think it's implicit in the court's ruling because they already said that the access is by the office or the  statute let me ask you did did you raise via these vicarious liability arguments in your objections to the magistrate's report and recommendation we do not raise vicarious i believe the the judges the to a city if that's the party sued or to individual if that's the party sued so there's no doubt you know there's in the statute has businesses insurers private investigators there's no doubt included cities here or entities that they should also be liable the core polow then implicitly rewrote the statute substituting its preference for the statute of war what congress plainly wrote if the court recognized this court recognized just that much in mcdonough when it remanded for further proceedings not just against the individual goes but also against the cities and counties to know the defense  this this is we're trying to get strict liability against the cities here but that's not true and that's a red herring strict liability requires a finding of liability without fault this is the exact opposite here this isn't even that wouldn't a reckless miss there has to be intentional conduct here so there could not and that intentional conduct here is by the jane doe officer so this is not a matter of strict liability isn't one that is not more accurately characterized as vicarious liability there is some overlap here with vicarious liability no doubt but congress here specifically said not just the individuals could be liable but the entities themselves so based on your assertion of what the it's the same access so we're not trying to get a windfall here but we're trying to say that both the booth is responsible directly and the individual officers responsible and luke is also responsible by curiously so even if somehow there was not direct liability in sleuth there is vicarious liability but that finding the principle even the agent is acting for its own her own benefit where where in the complaint what paragraphs allege the vicarious liability words but basically that the that the officers used the computers and access is of use the computers of duluth and access with passwords and present credentials from the city or it and then also  finally scope of employment is on page a thirty so base in closing in addition to direct liability we asked the court five of the cities can be vicariously liable under i think the way explained it is the district court took that up is that right we disagree with that your honor and i think in particular if the court looks at docket one hundred forty that would be the objections raised by lawful or to the report recommendations of the magistrate judge and when you look at all the briefing before the court what you see is that at no point was the issue of the curious liability raised as a defense to the city's rule twelve motion to liability was it was that raised in on what basis was that dismissed and i think as i judge kelly noted there's overlap here in essentially that the possibility argument has morphed from the district court level to the complaint that the city of duluth itself as a corporate entity knowingly obtained or used or disclosed the information of ms loffler nor was there an allegation that the city of duluth as a corporate entity provided access to the system to any of its officers for in impermissible purpose so judge davis correctly ruled below that in fact in this case there was a failure to allege a plausible claim of direct liability against the city of duluth corporate under the d p p was that holding challenge on appeal your honor and here again we've noted in the brief that the argument has shifted a bit here in the in the appeal in the sense that the rule twelve dismissal below is based on the possibility argument here on appeal the appellant is arguing that an entity can only act through individuals essence is saying that this direct liability argument is like of a curious liability argument and so essentially what we've argued in our brief is that the direct liability argument as raised on appeal is really no different than the exact same but curious liability argument that we posit has been waived for failing to raise the law even if the court were to find that this is properly before the court the district court correctly ruled that there  simply no allegations in the complaint that would establish a plausible claim that the city of duluth in its corporate capacity acted in any way shape or form outside of the broad law enforcement respectfully no your honor and when you look at the allegations in the complaint paragraph one ninety seven of the original complaint asserts a generic and general allegation that all of the energy defendants are of a curiously liable for the acts of their agency authority all of the allegations put in the complaint were generally engineer occleve but against all of the entity defendants short answer no your honor  hegland ruled that equitable tolling was not appropriate our position is that it's no different here and in fact the facts of the case here warrant equitable tolling even less than they did in hegland there's no cobb in the notice of claim to the city subsequently in the july twenty third teen complaint the plaintiff chose to use the duo defendant placeholder so as we've argued equable towing here is even less appropriate than in the haggling case and we would ask that this court rule as such thank you for the well thank you counsel not distinguishing between individuals and entities so there is no reason to respond to that well wouldn't part of responding to plausibility be laying out your theory of vicarious liability i don't think that's not not when they're not moving to dismiss on those grounds your honor the moving to smith's on grounds that were completely unrelated to that we were saying that it was plausible that x is by duluth were impermissible that's what they were arguing and that's what we responded to also least one of them and then as to the argument about do we plead vicarious liability you don't have to use the specific legal terms which we pled allegations that would lead to  direct conclusion that that there are facts supporting you know aided in the agency and scope scope of employment and also apparent authority i see that amount of time i think you we asked for reversal remember thank you counsel we appreciate your arguments today the case will be submitted and decided in due course would you call our third case for argument place