Barbara McCourtney-Bates v. Walter F. Bates

Case: 16-15129 Date Filed: 02/28/2017 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-15129
Non-Argument Calendar
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D.C. Docket No. 2:15-cv-00370-SPC-CM

BARBARA MCCOURTNEY-BATES,

Plaintiff - Appellant,

versus

WALTER F. BATES,
WILLIAM F. PRUMMELL,
Charlotte County Sheriff,

Defendants - Appellees.

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Appeal from the United States District Court
for the Middle District of Florida
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(February 28, 2017)

Before MARCUS, MARTIN, and ANDERSON, Circuit Judges.
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PER CURIAM:

Plaintiff-appellant Barbara McCourtney-Bates appeals from the district

court’s grant of summary judgment in favor of Defendant-appellee Charlotte

County Sheriff William G. Prummel. McCourtney-Bates sued Prummel in his

official capacity, based on allegations that a Charlotte County Sheriff’s Deputy,

Walter F. Bates, 1 violated the Driver’s Privacy Protection Act (DPPA), 18 U.S.C.

§ 2721–25, by impermissibly accessing her information in the Driver and Vehicle

Information Database (DAVID) maintained by the Florida Department of Highway

Safety and Motor Vehicles (DHSMV). Her complaint stated claims under both the

DPPA and 42 U.S.C. § 1983. On appeal, McCourtney-Bates argues that the

district court erred in concluding that the statute of limitations for her DPPA claims

had run, because: (1) DAVID accesses are self-concealing, so the DPPA violations

should not accrue for statute of limitations purposes until the accesses are

discovered, instead of when the alleged violations occurred; and (2) Prummel had a

statutory duty to notify her of the unlawful DAVID access, and his failure to do so

equitably tolled the statute of limitations. After thorough review, we affirm.

We review a summary judgment ruling de novo, viewing the evidence and

all factual inferences therefrom in the light most favorable to the party opposing

1
McCourtney-Bates originally filed suit against both Prummel and Bates, but failed to ever serve
Bates. The district court accordingly dismissed the case against Bates for failure to prosecute.
McCourtney-Bates does not appeal that dismissal.
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the motion. Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1282 (11th Cir.

2003). “Summary judgment is proper where ‘there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.’” Haynes

v. McCalla Raymer, LLC, 793 F.3d 1246, 1249 (11th Cir. 2015) (quoting Fed. R.

Civ. P. 56(a)). “We review the district court’s interpretation and application of

statutes of limitations de novo.” Foudy v. Miami-Dade County, 823 F.3d 590, 592

(11th Cir. 2016) (“Foudy I”).

First, we are unpersuaded by McCourtney-Bates’s claim that DAVID

accesses are by their nature self-concealing. The district court relied on this

Court’s holding -- in a DPPA suit nearly identical to this one -- that the statute of

limitations for a DPPA violation accrues when the alleged violation occurs. Foudy

I, 823 F.3d at 594. In that case, we said that “DPPA violations are not by their

nature self-concealing.” Id. We made this point again recently when we

unambiguously stated that “alleged DAVID accesses cannot be categorized as self-

concealing wrongs.” Foudy v. Indian River Cty. Sheriff’s Office, — F.3d —, 2017

WL 74696, *5 (11th Cir., Jan. 9, 2017) (“Foudy II”). In that case, we explained

that “[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 out the illegal act, not merely separate

from the illegal act and intended only to cover up the act.” Id. (quotations

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omitted). 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. Because “the illegal act of accessing the database

without a legitimate purpose does not by necessity involve a deception,

misrepresentation, trick, or contrivance,” DPPA violations are not self-concealing.

Foudy II, 2017 WL 74696 at *5. Thus, the district court correctly concluded that

McCourtney-Bates’s DPPA claims accrued when the alleged violations occurred.

Next, we are unpersuaded by McCourtney-Bates’s claim that she “was and

is entitled to rely on the mandatory notification measures to alert her to unlawful

accesses of her DAVID information, and [Sheriff Prummel’s] failure to notify her

is tantamount to the concealment of fraud” such that the statute of limitations for

her DPPA claims should have been equitably tolled. This Court has explained that

“[a]s a general rule, a plaintiff relying on the doctrine of fraudulent concealment

must show affirmative actions by the defendant constituting concealment,” Hill v.

Texaco, Inc., 825 F.2d 333, 335 (11th Cir. 1987), but has noted in passing that an

exception applies “where the defendant has a fiduciary responsibility to make

disclosure,” id. at n.2. McCourtney-Bates alleges no concealing activity by

Prummel in this case; instead, she claims that Prummel had a statutory duty to

notify her of the allegedly unauthorized DAVID access, and his failure to do so

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constituted concealment. She points to Fla. Stat. § 817.5681(1)(a) as establishing

that duty. 2 The statute provides that:

[a]ny person who conducts business in this state and maintains computerized
data in a system that includes personal information shall provide notice of
any breach of the security of the system, following a determination of the
breach, to any resident of this state whose unencrypted personal information
was, or is reasonably believed to have been, acquired by an unauthorized
person.

Fla. Stat. § 817.5681(1)(a) (emphasis added).

We need not examine whether a violation of § 817.5681 would constitute

concealment, or even whether § 817.5681 applies to Prummel at all, because

McCourtney-Bates has failed to allege, much less provide any evidence, that

Prummel made “a determination of the breach” prior to her DAVID audit request.

Without providing any evidence tending to show that Prummel violated

§ 817.5681, she cannot rely on that alleged violation to argue that Prummel

actively concealed the DPPA violation. Accordingly, equitable tolling is not

warranted, and the district court did not err in concluding that the statute of

limitations for McCourtney-Bates’s DPPA claim had run.

AFFIRMED.

2
This statute was repealed in 2014, but was operative during the relevant period in this dispute.
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