UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
June 19, 2007
JUAN CARLOS OCASIO, PLAINTIFF,
RIVERBAY CORPORATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
OPINION & ORDER
Pro se Plaintiff Juan Carlos Ocasio ("Ocasio") brings this action against Defendant Riverbay Corporation ("Riverbay")*fn1 pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Driver's Privacy Protection Act of 1994, 18 U.S.C. §§ 2721-2725 ("DPPA"), and the National Labor Relations Act, 29 U.S.C. §§ 158-301 ("NLRA").*fn2 Ocasio alleges employment discrimination based on his race, age, and as retaliation for filing a complaint with the National Labor Relations Board ("NLRB"). Defendant Riverbay moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6).*fn3
This case was referred to United States Magistrate Judge Kevin N. Fox, who issued his Report and Recommendation ("R&R") on December 19, 2006, recommending that Riverbay's motion be granted in part and denied in part, with leave for Ocasio to amend his complaint. Ocasio filed timely objections to the portion of the R&R that would dismiss his DPPA claim.
STANDARD OF REVIEW
A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). When a timely objection has been made to the magistrate's recommendations, the court is required to review the contested portions de novo. Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). The court, however, "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000).
RECOMMENDATIONS LACKING OBJECTION
The Court finds no error in Magistrate Judge Fox's recommendations to which there are no objections, and the Court accepts and adopts as its own findings:
(1) Ocasio's complaint establishes Taylor as an intended defendant, and he is properly a defendant in this action if served in conformance with Fed.R.Civ.P. 4.
(2) Neither the ADEA nor Title VII authorizes a claim against Taylor in his individual capacity;
(3) Ocasio's Title VII claim against Riverbay must be dismissed for failure to exhaust his administrative remedies in not obtaining a Notice of Right to Sue from the United States Equal Employment Opportunity Commission ("EEOC"), with leave to amend his complaint after obtaining such notice.*fn4
(4) Ocasio stated a valid claim under the ADEA.
THE DPPA CLAIM
Ocasio objects to the R&R's dismissal of the DPPA claims against Riverbay and Taylor. "The DPPA establishes a regulatory scheme that restricts the States' ability to disclose a driver's personal information without the driver's consent," Reno v. Condon, 528 U.S. 141, 144 (2000), including the driver's name. See 18 U.S.C. § 2725(3). Though such protection covers private as well as state action, the prohibition against private actors' use of personal information is derivative. The private actors themselves must have obtained the information from a state motor vehicle agency in order to be liable for disclosing it. See Reno, 528 U.S. at 146 (holding that the DPPA "regulates the resale and redisclosure of driver's personal information by private persons who have obtained that information from a state DMV) (emphasis added). Ocasio himself provided Riverbay with his personal information, and so he cannot state a claim under the DPPA based on its disclosure.
Riverbay's motion to dismiss is GRANTED in part and DENIED in part. Ocasio's Title VII, ADEA, and DPPA claims against Taylor and his DPPA claim against Riverbay are dismissed with prejudice. Ocasio's Title VII claim against Riverbay is dismissed without prejudice, and with leave to replead on condition that he obtain a Notice of Right to Sue from the EEOC, as he has apparently done since the issuance of the R&R. Defendants' motion is DENIED as to Ocasio's ADEA claim against Riverbay. The Clerk of the Court is directed to close out this motion.
Paul A. Crotty United States District Judge