The opinion of the court was delivered by: Denise Cote, District Judge
Plaintiff Florica Buliga ("Buliga"), a New York City taxi driver who is proceeding pro se, filed this action on July 18, 2007. He alleges that the New York City Taxi and Limousine Commission ("TLC") violated his privacy rights under the Fourth and Ninth Amendments of the United States Constitution by collecting information about taxicabs' trips, fares, and tips.
On September 21, the TLC filed a motion to dismiss. That motion is granted.*fn1
On March 30, 2004, the TLC amended its Rules Governing Taxicab Specifications to require the installation in taxicabs of equipment that would electronically transmit vehicle and trip information, provide drivers with text messaging, provide passengers with a monitor displaying certain information, and accept passenger payment by credit and debit card. See 35 R.C.N.Y. § 3-06; Notice of Final Rule Promulgation, Amendments to Rules Governing Taxicab Specifications, City Record 1222 (Apr. 14, 2004). The amendment specifically requires the transmission of the taxicab's and driver's license numbers, the number of passengers, the starting and ending times and locations of the trip, the metered fare for the trip, and the trip distance. Id. It is undisputed that the GPS system used to implement this rule also collects the amount of any tips that are paid by credit or debit card. The TLC rule is discussed at length in the recent opinion by the Honorable Richard M. Berman in Alexandre v. New York City Taxi and Limousine Commission, No. 07 Civ. 8175 (RMB), 2007 WL 2826952 (S.D.N.Y. Sept. 28, 2007). Buliga has a license to drive a New York City taxicab and is employed as a New York City taxicab driver. Buliga's Complaint focuses on the TLC's collection of information on the number of trips taxicabs make each day, the origins and destinations of these trips, and the fares and tips the drivers collect. Buliga does not own a taxi medallion or a taxicab.
Buliga's claims that New York City violated his constitutional rights under the Fourth and Ninth Amendments appear to arise under 42 U.S.C. § 1983. See Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005) (a pro se litigant need not plead the legal theories underlying his claims). The TLC has brought its motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), which permits dismissal for failure to state a claim upon which relief can be granted.*fn2 It argues that Buliga's Fourth Amendment claim fails because he has no reasonable expectation of privacy in the information that the TLC is collecting and because this collection of information promotes a legitimate government interest. It argues that Buliga's Ninth Amendment claim should be dismissed because "no definitive right to privacy exists under the Ninth Amendment."
Under the pleading standard set forth in Rule 8(a) of the Federal Rules of Civil Procedure, complaints must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[A] plaintiff is required only to give a defendant fair notice of what the claim is and the grounds upon which it rests." Leibowitz v. Cornell Univ., 445 F.3d 586, 591 (2d Cir. 2006). Rule 8 is fashioned in the interest of fair and reasonable notice, not technicality, and therefore is "not meant to impose a great burden upon a plaintiff." Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005). When considering a motion to dismiss under Rule 12(b)(6), a trial court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation omitted). At the same time, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citation omitted). A court must apply a "flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (construing Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1968-69 (2007)).
I. Fourth Amendment Claim Buliga's
Fourth Amendment claim fails for two reasons. With a single possible exception, he has no reasonable expectation of privacy in the information collected by the TLC. Moreover, the collection of the information promotes a legitimate government interest.
Government regulations that mandate searches or seizures are subject to the Fourth Amendment's strictures.*fn3 See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) (school district policy for testing student athletes' drug use); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (Federal Railroad Administration regulations requiring collection of employees' blood and urine); United States v. Amerson, 483 F.3d 73 (2d Cir. 2007) (federal statute collecting DNA from felons sentenced to probation). A plaintiff may not prevail on a Fourth Amendment claim without showing that the state's search or seizure has unreasonably infringed on a legitimate expectation of privacy.
[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.
Minnesota v. Carter, 525 U.S. 83, 88 (1998) (citation omitted).
With one possible exception, Buliga has not shown a reasonable expectation of privacy in any of the information that will be collected under the new rule. It is well established that there is no Fourth Amendment protection accorded information about the location and movement of cars on public thoroughfares. See United States v. Knotts, 460 U.S. 276, 281-82 (1982) (use of a beeper to signal location and movements of automobile); Morton v. Nassau Cty. Police Dep't, No. 05 Civ. 4000, 2007 WL 4264569, at *3 (E.D.N.Y. Nov. 27, 2007) (GPS device in car) (collecting cases); Alexandre, 2007 WL 2826952, at *9 (GPS system in taxicabs). Taxicabs in New York City have long been subject to regulation by the TLC, and those regulations have required cabdrivers to report not only the times and ...