now this court has which has issued seven different d p a related opinions and the last two years and based on those rulings in those cases the issues for review today are limited in nature and the regard in the overall picture of this case is the plaintiff's profile here who is a person not only with local fame but national famous while a professional athlete as i'm sure your honour's have seen there are a number of allegations addressed to his career as a major league baseball player and his role in winning two world series including serving as the pitcher for the minnesota twins and there's world series championship we've also made allegations that distinguish him as somebody who  even the state of minnesota has accepted and recognized as a local celebrity and a person of fame and helping him helping promote the state lottery so mr baron hurst name and reasonably inferred personal interest in him a as we stated that the complaint should be read as a whole and we will not be determining whether each allegation in isolation is possible but rather the case as a whole this circuit had addressed the possibility issue in approximately seventeen d p a cases and in some the analysis boils down to if the plaintiff is alleging a large number of accesses that he has he or she has no history of crimes or criminal investigations and that there are allegations supporting  reason to believe that plaintiff is of personal interest to the access source and if there's no obvious lawful target explanation for the actresses then the plaintiff has reached the brink of possibility this court then identified different additional allegations that would push that claim across the line from conceivable to plausible and although there are different factors the one we're focused on today is this court's analysis of suspicious access pattern if we look at mcdonogh there were really three that were reviewed under the facts in that case and those three were if there were instances where multiple agencies accessed plaintiff on the same day within limitations period to whether there were late night or early morning accesses between eleven pm and six am during the limitations period and one example i would point out that in the past case there were two examples that are just two examples of late night accesses with maple grove amount which was enough and three is the courts that if you have either of those patterns and the priest actually titian's period plus accesses in the statue limitations period that would be enough to push the claim into possibility there's a matter whether the users are different i don't believe it does for purposes of how this court evaluated the defendants in the case it's true that at different points in time the d b s audits that have been prepared and given out by the d p s has provided different information and i think that was part of the difference in mcdonogh and in that case all the information that was included in audits varied but in both cases the court said we're going to look at the defendants independently but did not say we're going to look at the users independently and the reason why i think that's important your honor because i know that's what the other side is arguing that you need to look at the individual officers individual defendants they are not individual as john doe's but it's as this court reviewed in the haggling case effectively those people can never become individual defendants because by the time they get that information this court has ruled that those claims that john doe litigation will not liable whether that's directly or vicariously liable with which they are you pursuing well we will pursue both we believe that they are directly liable under the expressed language of the statute which definitively defines that these defendant think to the second issue you are that i want to raise that is a question that the ad police are putting before you and they would like for you to determine how many actresses are issue so i would point out as i'm sure you know in the church case there was a short passage in the pinion that said any evidence to the contrary i believe your honour's that judges was clarifying that there was it was not precluding that there might be evidence presented in terms of how you interpret those audit and our police know as well as a p e here that the factual records that have been developed a low in other cases involving documents and testimony by d p s explain how the information is viewed what information whether the same or different or whether in fact different driver's license records are being accessed that type of record is not before the court today and therefore i don't believe the court can properly definitively evaluate how many ac us patterns so quickly with regard to bloomington there are seven different query entries on the audit if we just follow strictly mcdonogh there are three late night accesses during the priest actually limitations period as well as access is in the statute of limitations period which also happened late at night that alone is mcdonough and should go through on that grounds in addition however you also see that user three followed the plaintiff over time and there is a date in zero five zero six zero seven zero eight zero ten or ten and eleven and which user three followed and that was what was in candle and that was considered enough so i think if you just look at those two things those go through with regard to bloomington with regard to shot to pee there is one that's within the limitations period but again we've got two priests to actually limitations period late night access to plus the one in limitations period again under mcdonald it goes through with regard to both of those we have also presented additional suspicious patterns for the court to consider and one of those which i'll just just briefly has to do with contemporaneous accessing of the defendant and his children  have that instance happened one one time as well and oh wait i see that i'm about running out of time so i think with that i will save the rest of my time for rebuttal but it simply state the appellate has met his plaintiff birding his pleading burden by alleging please the court counsel many missteps any angle car i represent the city of bloomington and city of shakopee the district court correctly applied this court for you marcus stablished and mcdonough and  reviewing whether the allegations went past the line into creating d p p a claims that were plausible not just possible we really are here talking about the third category that this court established in mcdonough which looks at the history of frequent suspicious accesses that word was notably left out from the argument you just heard that's the key here really in looking at that getting in even to four is not frequent but it also looked in that overall that consolidated appeal time spans the gaps how attenuated those times ar taxes are to the within limitations period so if you have a large time gap that also has bearing on the frequency and whether it's a suspicious pattern what's the plausible burden to show in these types of cases that the facial claims from their complaint are plausible to state a claim for relief it is not the defendant's burden to show that they had  appellant's legal conclusion it's not enough to cross over that line in this court established a well reasoned framework to look at what gets a claim over the line and i do want to address some of the claims that you heard first of all with the court's question about who is being sued here it's correct that currently the cities are the named party but there are john doe's listed in the complaint the complaint and appendix fifteen at paragraph ninety seven makes the allegation based on the actions of employees not what the city did it says quote officers employed by licensed buy or otherwise accessing through the city of bloomington and this court has seen some of those arguments in shambo or that was recently decided  mentioning that are referring to a district court's opinion in that case that found there wasn't liability for the city simply by providing access to its employees this still boils down to individual conduct and appendix one that has the caption appendix eight at paragraph fifty and fifty one appellant has named john doe as one through two hundred so presumably he intends to is not before the court today we have denied any vicarious liability the court ultimately did not address that issue below because it found that the claims themselves just did not reach plausibility so if th were to be on remand that issue absolutely would proceed and i would love to take that point in oral argument as a waiver of any direct claim against the individuals because that tees up the difficulty for any vicarious liability claim i do want to point out joel she didn't say that she just said that they would be barred by the statute of limitations because they can't figure out who are the dos she is not saying that the doe's didn't violate the rights of the plaintiffs well your honor that also is not correct that she can't get the names minnesota statutes chapter thirteen provides the method for obtaining names  i it's not briefed here that's not really what's at issue but i the court needs to be made aware that the methods for getting names are out there there are separate actions that an individual can pursue it's no different than trying to get squad video on a controversial case you bring an action in the district court where that where the holder of the data is regardless of any other pending litigation that there's no record that that happened here and that is briefed was briefed and covered in the haglund matter so let's talk about the access to here at issue that's really the issue for the court to look at  there's just simply nothing to get to plausibility here the district court was correct in looking at the third category that there were no there were no suspicious categories pushing it into the area of plausibility and accessing his daughter's information on one day in two thousand and eight within two minutes of accessing his information does not make the two thousand and ten access more plausible and in the brief appellant has argued that this court has to look at the specific task that requires the court to draw on judicial experience and common sense there's been much made for looking at the record simultaneously and i would argue that in applying common sense on the other side possible explanations cannot be ignored regarding the joint ownership of vehicles and locking bloomington again the patterns here the district court was correct that looking at the different users different times of day don't get us over that hurdle of a history of frequent suspicious  there's a comparison to alex kendall's allegations that were also addressed in the to consolidated appeal these are not at all like alex kendall's allegations against the city of minneapolis in that case in that case the court still looked at a user by user basis and entity specifically at eight thirty five f three d at age seventy five when the court applied itself adjusted counting which this court did in finding accesses within several minutes of each other one access it found that user sixty three access information sixty nine times that user seventy eight made eighteen adjusted time accesses and there were seventy three late night access so without a doubt this court had a pretty good reason there with regard to those different accesses to remain and that dismissal here for bloomington timely accesses involve user three and user seven if we're looking at user seven user seven never looked up in the time period and frankly user seven just barely is held in here on four years after the or four years prior to the filing of the complaint so we're really looking at user three here again is there the you have any explanation that you can suggest well certainly in frankly in briefing all of the issues in the tippit case the the fall into what this court has defined as late night but are they frequent of it's two thousand and six they're different users this would be this would be five years before that the timely access to that issue so overall when the court was looking at the consolidated appeals and to church that was a factor in looking at how atten does not make it more suspicious in fact it is consistent with the reality of joint ownership of vehicles including adult children owning vehicles but even if the court did find that that made things more suspicious it still has to be a frequent pattern of suspicious accesses is this frequent and this is where the court again has to look at the allegation against this defendant individually not looking at the other agencies that are listed in appellant brief it there are other agencies that looked at the daughter's record as well the court can't look at that assessing bloomington liability for that and even if it were to consider that i believe it was only one access by users three in the in the history of that users access that simultaneously access so again into church there is precedent they're allowing this court to examine the patterns by individual users we would ask that if the court determines that the patterns by users thre gets there for user seven and there should be no basis of liability then for bloomington based on the access by user seven finally this court does have the ability to consider church and its ruling and holding into a church finding that accesses within minutes of each other constitute one obtain meant the purpose of that is not to set a precedent and that the trial court is bound by rather it's important for the court to recognize that when it's looking at the patterns in the access patterns and counting those patterns with that i request that the court affirm the district court's order dismissing the complaint thank you yes your honor there does have three points i'd like to make on rebuttal first with regard to the question you asked what is sufficient frequency it's true the court has not defined that specifically but what the court has john was given guidance on when that as matt and as we've already determined it was sufficiently frequent with regard to somebody following the person over time in the candle matter and we show that here too so even though it's not been defined by way of example we have met the same task that's been applied and we've asked the court to apply the same reasoning here my second point i would like to clarify your honour's i was not suggesting area that the dose didn't violate that their conduct is not the subject of the suit and they did not violate the b p a and i did not mean to suggest that those individuals are not part of the appeal the question that was trying to answer was whether or not those individual doe's have to make a separate possibility showing to the court and my answer to that is no because they cannot and i think this court recognized in its previous decisions when it cited to the eighth circuit ash case and braydon case saying that there's a recognition under the twelve b standard that there are situations in which the plaintiff can't prove definitively elements before discovery because the defendant has the information and that's not going to be used against the playing up in a possibility consideration so i don't think that can be used here or should be used to the plaintiff's detriment because it's not information they can no it can appealing the dismissal of the john doe's so our appeal is with regard to that four four ruling and to the extent that those individual dos are the subject accessors in the case yes but i'm not yet the truth is your honor when the case goes back realistically they're not going to be able to be substituted given the prior rulings in the case so the actual individual defendants will likely not be able to be defendants in the case where you said to the extent that you are something your appeal in the dismissal of it but are you saying no the dole claims would be time barred now so we don't have to worry about them that we should just focus on the municipalities only well i don't know what the court that the relation back on the relation back there it won't work there is a question of whether or not that time period still is part of a time period when cases on appeal and whether that would affect the statute of limitations period but aside from that issue here we would ask the court to consider this additional factor of contemporaneous lockups his family members particularly in view of again the person we're dealing with is a national sports figure but as we've presented bloomington have that happened two times before