United States District Court, N.D. Texas, Dallas Division
ARTHUR LOPEZ, individually, and on behalf of himself and all other similarly situated individuals Plaintiff,
Don Herring Ltd. Defendant.
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE.
Driver's Privacy Protection Act (DPPA) limits access to
and disclosure of personal information in state-maintained
motor-vehicle records and authorizes private individuals to
sue those they believe have violated the act. In this case,
auto dealer Don Herring Ltd. (Herring) mailed to Arthur Lopez
(Lopez) an advertisement containing Lopez's name and
address as well as the make and model of his car. Believing
the information in the advertisement to have come from the
Texas Department of Motor Vehicles's (DMV) records, Lopez
filed a class-action DPPA claim against Herring and others.
Herring, the only remaining defendant, now moves the Court to
dismiss Lopez's suit under Federal Rule of Civil
Procedure 12(b)(6), contending that Lopez has failed to plead
sufficient facts to support a DPPA claim. For the reasons
that follow, the Court DENIES Herrings
motion to dismiss.
case begins with an advertisement Lopez received in the mail
from Herring. Doc. 47, Am. Compl., ¶ 5; Doc. 47-1, Am.
Compl., Ex. 1. Having never done business with Herring, Lopez
was shocked to find that the advertisement contained not only
Lopez's full name and address but also the make, model,
and year of his car. Doc. 47, Am. Compl., ¶23. Believing
the safety of his identity was on the line, Lopez decided to
investigate. Id. Lopez pleads that he talked to
Herring Senior Sales Associate Cary Wilson, who told him that
Herring obtained his vehicle information from the Texas DMV.
then asked his attorney, Joseph Malley (Malley), to
investigate further. Id. Malley asked Herring via
mail,  “I understand you informed [Lopez]
that the information was not obtained from [Lopez's
former employer] but from the state motor vehicle
department. Can you clarify this issue?” Id.
Herring's General Sales Manager, Reuben Mosley,
responded, “Yes that is correct. We use a third party
company that supplies the information and it is gathered
through vehicle registrations.” Id.
also contacted the third party the General Sales Manager
mentioned: Tacito & Associates, Inc (Tacito). Doc. 1,
Compl., ¶ 72; Doc. 1-4, Compl., Ex. 5. Tacito created
the advertisement that triggered this action and may have
provided Herring with Lopez's vehicle information. Doc.
47-1, Am. Compl., Ex. 1; Doc. 1-4, Compl., Ex. 5. The letter
Malley sent Tacito is not in the record, but Tacito's CEO
responded that Tacito received Lopez's record from
another company, BB Direct, and that BB Direct's auto
list is “Shelby Act compliant” and does not draw
from Texas DMV records. Doc. 1-4, Compl., Ex. 5.
then contacted BB Direct. What Malley sent to BB Direct is
not in the record. BB Direct's Brian Berg responded that
BB Direct had a record of an order from Tacito for Herring
but no longer had the “data file.” Doc. 1-8,
Compl., Ex. 9. Though nothing in the complaints nor their
attachments explain what this “data file” is, the
Court presumes it contained information of car owners like
Lopez. Berg went on to explain that BB Direct acts as a
broker when it receives requests for automobile owners and
obtained the list for the Tacito order from a Texas company
called Data Shark. Id. Berg said Data Shark's
owner told him that Data Shark's file is Shelby compliant
and that Data Shark's file sources are oil-lube stations,
insurance companies, and some auto groups. Id. Berg
did not believe Data Shark's data came from the DMV
because Data Shark's data contained errors. Id.
Berg said also that he did not know where Lopez's
information came from or whether it was even on the Tacito
Lopez first filed this class-action lawsuit, he sued Herring,
Tacito, BB Direct, and Monica Braverman, the owner of Data
Shark, alleging they violated the DPPA and purporting to
represent a class of “millions, if not tens of
millions” of victims of the defendants' allegedly
unlawful practices. Doc. 1, Compl, ¶ 136. But the Court
dismissed Lopez's original complaint. Doc. 45, Electronic
Order. Lopez then filed an Amended Complaint, naming Herring
as the only defendant but still claiming to represent a class
possibly numbering in the tens of millions. Doc. 47, Am.
Compl., ¶¶ 8, 33. Though, Lopez more realistically
describes the class he purports to represent as consisting of
those whose personal information Herring obtained from state
DMVs. Id. at ¶30. And whereas Lopez attached
emails from Tacito and BB Direct to his original complaint,
he attaches only emails from Herring to his amended complaint
and omits from his pleadings any mention of Tacito, BB
Direct, or Data Shark. Doc. 47-2, Am. Compl., Ex. 2; Doc.
47-3, Am. Compl., Ex. 3.
now moves that the Court dismiss Lopez's amended
complaint under Federal Rule of Civil Procedure 12(b)(6).
Doc. 48, Mot. to Dismiss. That motion is ripe for the Court