Foudy v. Indian River County Sheriff's Office

Case: 15-14646 Date Filed: 01/09/2017 Page: 1 of 19

[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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