Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL WELCH,

Plaintiff,

v. CASE NO. 4:09cv302-RH/WCS

ELECTRA THEODORIDES-BUSTLE

et al.,

Defendants.

___________________________________/

ORDER DENYING MOTIONS TO DISMISS

This case arises under the Driver’s Privacy Protection Act, 18 U.S.C.

§§ 2721-25. In his first amended class-action complaint, the plaintiff asserts that

the defendant officials of the Florida Department of Highway Safety and Motor

Vehicles violated the Act by unlawfully disclosing personal information of Florida

drivers in bulk. The defendants have moved to dismiss. This order denies the

motion.

I. Standards on a Motion To Dismiss

The Supreme Court recently set forth the standards governing a motion to

dismiss: 
Page 2 of 10

Case No: 4:09cv302-RH/WCS

Federal Rule of Civil Procedure 8(a)(2) requires only “a short

and plain statement of the claim showing that the pleader is entitled to

relief.” Specific facts are not necessary; the statement need only

“‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550

U.S. [544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d. 929 (2007)] (quoting

Conley v. Gibson, 355 U.S. 41, 47[, 78 S. Ct. 99, 2 L. Ed. 2d 80]

(1957)). In addition, when ruling on a defendant’s motion to dismiss,

a judge must accept as true all of the factual allegations contained in

the complaint. Bell Atlantic Corp., supra, at [555] (citing

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n.1[, 122 S. Ct. 992,

152 L. Ed. 2d 1] (2002); Neitzke v. Williams, 490 U.S. 319, 327[, 109

S. Ct. 1827, 104 L. Ed. 2d 338] (1989); Scheuer v. Rhodes, 416 U.S.

232, 236[, 94 S. Ct. 1683, 40 L. Ed. 2d 90] (1974)).

Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081

(2007). The court must accept the complaint’s allegations as true “even if [the

allegations are] doubtful in fact.” Twombly, 550 U.S. at 555. 

A complaint thus “does not need detailed factual allegations.” Id. Nor must

a complaint allege with precision all the elements of a cause of action. See

Swierkiewicz, 534 U.S. at 514-15 (rejecting the assertion that a Title VII complaint

could be dismissed for failure to plead all the elements of a prima facie case). 

But neither is a conclusory recitation of the elements of a cause of action

alone sufficient. A complaint must include more than “labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Twombly,

550 U.S. at 555. A complaint must include “allegations plausibly suggesting (not

merely consistent with)” the plaintiff’s entitlement to relief. Id. at 557. The
Page 3 of 10

Case No: 4:09cv302-RH/WCS

complaint must set forth facts—not mere labels or conclusions—that “render

plaintiffs’ entitlement to relief plausible.” Id. at 569 n.14. 

A district court thus should grant a motion to dismiss unless “the plaintiff

pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

___, 129 S. Ct. 1937, 1949 (2009) (emphasis added). This is so because

the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions. 

Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice. . . . [Federal] Rule [of

Civil Procedure] 8 marks a notable and generous departure from the

hyper-technical, code-pleading regime of a prior era, but it does not

unlock the doors of discovery for a plaintiff armed with nothing more

than conclusions.

Id. at 1949-50 (emphasis added).

II. The Driver’s Privacy Protection Act

The Driver’s Privacy Protection Act prohibits the disclosure of “personal

information” obtained by a state department of motor vehicles. Id. § 2721(a). 

“Personal information” means

information that identifies an individual, including an individual’s

photograph, social security number, driver identification number,

name, address (but not the 5-digit zip code), telephone number, and

medical or disability information, but does not include information on

vehicular accidents, driving violations, and driver’s status.

Id. § 2725(3). 
Page 4 of 10

Case No: 4:09cv302-RH/WCS

There are exceptions to the ban on disclosures. One exception is for “use by

any government agency . . . in carrying out its functions, or any private person or

entity acting on behalf of [an] agency in carrying out its functions.” Id.

§ 2721(b)(1). 

III. The Allegedly Unlawful Disclosure

The first amended complaint alleges that the defendants willfully disclosed

personal information of Florida drivers, in bulk, to a private corporation,

Shadowsoft, Inc. The first amended complaint alleges further that Shadowsoft

disclosed the information to another entity, The Source for Public Data, which in

turn made the information available on the internet. The first amended complaint

alleges that the defendants disclosed the information without the drivers’ consent,

and that doing so did not come within any of the exceptions to the Driver’s Privacy

Protection Act’s ban on disclosures.

IV. The Sufficiency of the Allegations

In their motions to dismiss, the defendants do not deny that the plaintiff’s

“personal information” has been made available on the internet. The defendants do

not deny that an internet user can access the information for any or no reason—or

on a whim. The defendants do not deny that making the information available in

this manner violates the Driver’s Privacy Protection Act.

 The defendants say, though, that they made the information available only
Page 5 of 10

Case No: 4:09cv302-RH/WCS

for a lawful purpose. They seem to assert that the very fact that they are driver’slicense officials, or that they have authority to disclose the information for a

permissible purpose, means that their disclosure constituted “use” of the

information by a “government agency . . . in carrying out its functions,” id.

§ 2721(b)(1), regardless of whether the actual disclosure was otherwise for a

proper purpose. That is not so. If any disclosure by a public official was

automatically proper, there could never be a claim under the Act against a public

official. The statutory language does not support such a conclusion, and the law of

the circuit is to the contrary. See Collier v. Dickinson, 477 F.3d 1306 (11th Cir.

2007) (reversing the dismissal of a claim under the Act against officials of the

Florida Department of Highway Safety and Motor Vehicles).

The defendants also have filed copies of the contracts under which, they say,

the information was provided to Shadowsoft. The defendants assert that under the

contracts, the information was to be used only for a proper purpose. Whether the

contracts may properly be considered on the motions to dismiss— without

converting them to summary-judgment motions—is not clear. See, e.g., Day v.

Taylor, 400 F.3d 1272 (11th Cir. 2005) (noting that a contract may be considered

on a motion to dismiss without converting it into a summary-judgment motion only

if the contract is “central to the plaintiff’s claim” and undisputed). But it does not

matter. The contracts do not specify a proper purpose for the disclosures to
Page 6 of 10

Case No: 4:09cv302-RH/WCS

Shadowsoft and do not specify the uses and further disclosures that Shadowsoft

will and will not make. Moreover, courts have recognized time and again that a

contract’s self-serving recitals do not bind third parties. See, e.g., Dixon County v.

Field, 111 U.S. 83, 92, 4 S. Ct. 315, 28 L. Ed. 360 (1884) (stating that a recital in

bonds under which they would conform to the law, when in fact they do not, “will

not make them so”); United States v. Leonard, 529 F.3d 83, 90 (2d Cir. 2008)

(collecting Supreme Court cases that rely on the substance of a transaction over

contract formalisms in determining what constitutes a “security”); Daughtrey v.

Honeywell, Inc., 3 F.3d 1488, 1492 (11th Cir. 1993) (“The employment status of

an individual for the purposes of ERISA is not determined by the label used in the

contract between the parties.”); Spirides v. Reinhardt, 613 F.2d 826, 832-33 (D.C.

Cir. 1979) (“Courts generally look to the substance of a contract rather than its

form, and, although contract language may be indicative to some degree of the

intention of the parties, it is not necessarily controlling.”). The first amended

complaint alleges that the defendants disclosed the information for no permissible

purpose and that the information wound up on the internet. If that is true, the

plaintiff will be entitled to recover. 

To be sure, the first amended complaint perhaps could have provided greater

detail. But it is hard to plead a negative with great specificity; that there was no

permissible purpose for the disclosure is about as precise as one could be.
Page 7 of 10

Case No: 4:09cv302-RH/WCS

Twombly and Iqbal do not require useless details; they call instead for a contextspecific inquiry into the adequacy of a pleading. In this context, alleging

specifically that there was a disclosure, and alleging generally that there was no

proper purpose for the disclosure, is enough.

The first amended complaint thus sufficiently alleges a violation of the Act. 

The law of the circuit is that the Act creates a private right of action and, in

addition, may be enforced through 42 U.S.C. § 1983. See Collier, 477 F.3d at

1309-11. 

Whether the first amended complaint sufficiently alleges each defendant’s

role in the violation is less clear. The allegations against any individual defendant

are sparse, perhaps because the plaintiff has no way of knowing precisely who did

what. But each defendant was apparently directly involved in the allegedly

improper disclosure at issue. The defendants do not seem to raise this as a basis

for dismissal, and in any event the allegations seem as clear as those held sufficient

in Collier. In sum, the first amended complaint states a claim on which relief may

be granted.

V. Qualified Immunity

The defendants assert that, as public officials or employees, they have

qualified immunity. Qualified immunity protects “all but the plainly incompetent

or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106
Page 8 of 10

Case No: 4:09cv302-RH/WCS

S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986); see generally Hope v. Pelzer, 536 U.S.

730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002); Harlow v. Fitzgerald, 457 U.S.

800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Thus a public officer or employee

may be held individually liable only if his or her conduct violates clearly

established law. 

In Collier, the Eleventh Circuit held that the Driver’s Privacy Protection Act

itself clearly establishes the illegality of the prohibited disclosures. Under Collier,

the first amended complaint is sufficient to survive a motion to dismiss based on

qualified immunity. In due course a defendant may be able to establish that any

disclosure in which he or she participated was proper, but the first amended

complaint alleges the contrary. 

VI. Other Defenses

The defendants advance other arguments that warrant only a brief mention. 

They say the first amended complaint should be dismissed for lack of standing. 

But the plaintiff alleges that his own information was improperly disclosed, and he

seeks an award of damages. He plainly has standing to pursue his own damages

claim based on the improper disclosure of his own personal information.

The defendants say they have Eleventh Amendment immunity. But the law

is settled that a claim for damages against a state official in his or her individual

capacity is not barred by the Eleventh Amendment. See, e.g., Hafer v. Melo, 502
Page 9 of 10

Case No: 4:09cv302-RH/WCS

U.S. 21, 30-31, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991); Hobbs v. Roberts, 999

F.2d 1526, 1528 (11th Cir. 1993). And a claim for an injunction against a state

official based on a violation of federal law is not barred by the Eleventh

Amendment. See, e.g., Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714

(1908). The first amended complaint does not exceed these bounds. 

Finally, the defendants say the first amended complaint should be dismissed

for failure to join an indispensable party—Shadowsoft or The Source for Public

Data. The theory seems to be that a plaintiff must sue all wrongdoers

simultaneously or he can sue none at all. But that of course is incorrect. A

plaintiff ordinarily may choose to sue one of several tortfeasors without suing the

rest. See, e.g., Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7, 111 S. Ct. 315, 111 S.

Ct. 315, 112 L. Ed. 2d 263 (1990) (“It has long been the rule that it is not necessary

for all joint tortfeasors to be named as defendants in a single lawsuit. . . .”). 
Page 10 of 10

Case No: 4:09cv302-RH/WCS

VII. Conclusion

The first amended complaint adequately alleges a violation of the Driver’s

Privacy Protection Act. Under Collier, the allegations are sufficient to withstand

the motions to dismiss. Accordingly,

IT IS ORDERED:

The defendants’ motions to dismiss (documents 16 & 18) are DENIED.

SO ORDERED on January 5, 2010.

s/Robert L. Hinkle 

United States District Judge