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Erik H. Gordon v. Softech International

November 30, 2011



I. Introduction

On January 19, 2011, Erik H. Gordon ("Gordon" or "Plaintiff") filed an amended complaint ("Amended Complaint") against Softech International, Inc. ("Softech"), Softech's Chief Operating Officer Reid Rodriguez ("Rodriguez"), Arcanum Investigations, Inc. ("Arcanum"), Arcanum's President Dan Cohn ("Cohn" and, together with Softech, Rodriguez, and Arcanum, the "Reseller Defendants"), and Aron Leifer ("Leifer" and, together with the Reseller Defendants, "Defendants") pursuant to the Driver's Privacy Protection Act of 1994, 18 U.S.C. §§ 2721--2725 ("DPPA").*fn1 Gordon alleges that Leifer obtained Gordon's personal information (through the Reseller Defendants' services) from the New York Department of Motor Vehicles ("DMV") for the impermissible use of (Leifer) placing "a series of phone calls designed to harass, threaten and annoy" Gordon in violation of the DPPA. (Am. Compl. ¶¶ 72-- 86, 94.) Gordon alleges that the Reseller Defendants also violated the DPPA, notwithstanding that Leifer represented and certified to the Reseller Defendants that he was "requesting the information pursuant to a [DPPA] permissible use." (Am. Compl. ¶¶ 34--35, 81.) At oral argument held on November 22, 2011, Gordon's counsel stated, "I think [the Reseller Defendants] are strictly liable" under the DPPA. (Hearing Transcript, dated Nov. 22, 2011 ("Oral Arg. Tr."), at 5:11--14; 7:8--12 (THE COURT: "You are saying it's a strict liability statute[?]" PL. COUNSEL: "I think that's how the statute reads, that's correct.").)

Gordon also asserts state law claims of prima facie tort and intentional infliction of emotional distress against Leifer, alleging that Leifer's "series of threatening phones calls" caused Gordon to experience "emotional distress" and "fear for his safety as well as the safety of his family and employees." (Am. Compl. ¶¶ 88, 90, 94, 96.)*fn2

On June 8, 2011, Arcanum and Cohn filed cross-claims against Leifer for common law indemnification, contractual indemnification, and contribution, alleging that Leifer's "primary carelessness, recklessness or affirmative acts of omission or commission" caused Plaintiff's damages, if any, and that Leifer had signed a written indemnity agreement. (Arcanum & Cohn's Answer, dated June 8, 2011, ¶¶ 39--40.) On June 9, 2011, Softech and Rodriguez also filed cross-claims against Leifer for common law indemnification, contractual indemnification, and contribution, alleging that Leifer's "negligent, reckless, wanton, willful and/or intentional acts"caused Plaintiff's damages, if any. (Softech and Rodriguez's Answer, dated June 9, 2011, ¶¶ 11--12.)*fn3

On August 12, 2011, Defendants filed a joint motion for summary judgment against Gordon pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing, among other things, that (1) Leifer represented and certified that his permissible use of Gordon's DMV information was "to obtain Plaintiff's insurance information" and "to perform [an] investigation in anticipation of litigation"; (2) the Reseller Defendants disseminated DMV information for a permissible use under the DPPA based upon, among other things, Leifer's written certification;

(3) Plaintiff's prima facie tort claim against Leifer fails because Plaintiff has failed to show that Leifer's "sole motivation was 'disinterested malevolence'" as required under New York law; and

(4) Plaintiff's intentional infliction of emotional distress claim against Leifer fails because Leifer's conduct does not "rise to the level of 'outrageous conduct,'" and because Plaintiff's "few sleepless nights" do not constitute severe emotional distress. (Defs.' Mem. of Law in Supp. of Joint Mot. for Summ. J. by Defs., dated Aug. 12, 2011 ("Defs. Mem."), at 1, 16, 19--20.)*fn4

On September 5, 2011, Plaintiff filed an opposition to Defendants' motion and also cross-moved for summary judgment (on his DPPA claims only), arguing that (1) Leifer "cannot credibly claim" that his permissible use under the DPPA was to obtain Gordon's insurance information or to conduct an investigation in anticipation of litigation because "[n]o . . . collisiontook place" between Gordon's taxicab and Leifer's SUV on October 10, 2009; (2) the DPPA "does not contain an intent requirement" and, therefore, the Reseller Defendants are strictly liable, i.e., according to Gordon, they could not have had a permissible use because Leifer did not (ultimately) have a permissible use, notwithstanding that Leifer "communicated [and certified] a permissible purpose" in seeking to obtain DMV information; (3) "there is ample evidence to demonstrate that [Leifer] intended to cause Gordon emotional harm"; and (4) Leifer's phone calls, "in particular, his call to Gordon's ill mother in which he alleged that Gordon had been involved in a sexual assault," constituted extreme and outrageous conduct that caused Gordon "pain and suffering." (Pl.'s Mem of Law in Opp'n to Defs.' Joint Mot. for Summ. J. and in Supp. of Pl.'s Cross-Mot. for Summ. J., dated Sept. 5, 2011 ("Pl. Opp'n"), at 4, 14, 16--17, 21, 24--25.)

On September 12, 2011, Defendants filed a reply and opposition to Plaintiff's cross-motion, arguing, among other things, that the Reseller Defendants "properly relied upon Leifer's stated permissible use" and that, under Gordon's interpretation of the DPPA, a reseller would be (strictly) liable for any "misinformation by the end user," which is not what the DPPA provides. (See Reply Mem. of Law in Further Supp. of Defs.' Joint Mot. for Summ. J. and in Opp'n to Pl.'s Cross Mot. for Summ. J., dated Sept. 12, 2011 ("Defs. Reply"), at 3, 7.) As noted, oral argument was held on November 22, 2011. (See Oral Arg. Tr.)

For the reasons set forth below, Defendants' motion for summary judgment is granted in part and denied in part, and Plaintiff's cross-motion for summary judgment on his DPPA claims is denied.

II. Background

The following summary reflects facts which are undisputed and some that are disputed (as noted).

Gordon owned a "London-style taxi cab" that carried a New York State license plate registered in his name. (Defs.' Joint Response to Pl.'s Statement of Material Facts in Supp. of the Cross Mot. for Summ. J. Pursuant to Local Civ. R. 56.1, dated Sept. 12, 2011 ("Defs. 56.1 Response"), ¶¶ 1, 3.) On October 10, 2009, Gordon's cab was parked on East 61st Street in Manhattan, New York. (See Pl.'s Response to Defs.' Local Civ. R. 56.1 Statement of Material Facts, dated Sept. 5, 2011 ("Pl. 56.1 Response"), ¶¶ 9--10, 25.) Gordon's driver, Harris, was waiting in the cab while Gordon was in a nearby restaurant. (See Pl. 56.1 Response ¶¶ 9--10, 25.) Leifer, who is involved in the operation of a business called "Hot Local Escorts," was parked nearby in a white SUV with an unnamed female friend. (Pl. 56.1 Response ¶¶ 9--10; Deposition Transcript of Aron Leifer, dated July 12, 2011 ("Leifer Tr."), at 30:12--40:25.) Between approximately 11:00 p.m. and 1:30 a.m., Leifer's friend approached Gordon's cab and allegedly "asked [Harris] about the car." (Pl. 56.1 Response ¶ 25; Deposition Transcript of Thomas Harris, dated Mar. 15, 2011 ("Harris Tr."), at 24:23--25:7; 30:17--22.) The actual content of the conversation between Harris and Leifer's friend is in dispute. Leifer contends that Harris was "mean" to Leifer's friend, while Harris contends that it was Leifer's friend who was "mean." (Pl. 56.1 Response ¶ 26.)*fn5

Leifer then approached Gordon's cab-and what happened next is also very much in dispute. (Pl. 56.1 Response ¶ 27.) Harris says: "And the next thing I know, this -- the man [presumably Leifer] that she emerged from one of the restaurants with came barging across the street, and I drove away. And as I was driving away, he said to me, and I quote, 'I am going to fuck you up.' And he got in his car and followed me." (Harris Tr. at 25:8--26:5.) Leifer contends that he wanted "to ascertain why [Harris] acted in that fashion." (Pl. 56.1 Response ¶ 13.) Harris and Leifer each appear to have begun to drive down East 61st Street. (Pl. 56.1 Response ¶¶ 13--14.) Leifer contends that he started driving "to drop [his] friend off at a hotel," and that Harris "engaged in a game of starting and stopping." (Pl. 56.1 Response ¶¶ 14, 16.) Harris contends that he started driving "to get away from Leifer," and that "Leifer gave chase." (Pl. 56.1 Response ¶¶ 15--16.) Leifer contends that, as they were driving, "contact occurred between some portion of the London Cab and Leifer's vehicle[]," while Harris contends that he "never got into an accident or collision." (Pl. 56.1 Response ¶ 17.)

Leifer "wrote down the license plate number" of Gordon's cab. (Defs. 56.1 Response ¶ 1.) And, on October 11, 2009, Leifer submitted Gordon's license plate number to in order to obtain information associated with the license plate number. (See Defs. 56.1 Response ¶ 4.) is Arcanum's online website, and Arcanum is a licensed "private investigation firm," which is wholly owned and operated by Cohn.*fn6 (Pl. 56.1 Response ¶¶ 6--8; Defs. 56.1 Response ¶¶ 4, 19--20; Affidavit of Dan Cohn, dated Feb. 9, 2010, ¶¶ 4--5.) The website advises users that "[t]here are restrictions to requesting license plate information." (Joint Declaration of Jura C. Zibas, Gregory R. Saracino & Vincent Chirico, dated Aug. 12, 2011 ("Zibas Decl."), Ex. O.) Next to that statement is a link labeled "DPPA Permissible Purpose," which brings users to another webpage that states in relevant part, "[p]ursuant to the Driver's Privacy Protection Act of 1994 (DPPA), you may only access vehicle registration information for one of the following permitted uses." (Zibas Decl., Ex. P.) The webpage lists a number of permissible uses of DMV information under the DPPA and also states in relevant part:

You will be required to select a DPPA Permissible Purpose when placing your order. By inputting your response, you hereby certify to that you are in, and assume full responsibility for, compliance with the DPPA and you agree to indemnify, defend and hold Docusearch harmless from any breach of the DPPA by you . . . . (Id.) The website required Leifer to select from a list of "permissible use[s]" using a drop-down menu. (Pl. 56.1 Response ¶¶ 82--83; see Declaration of Justin M. Sher, dated Sept. 5, 2011 ("Sher Decl."), Ex. Q.) The website also required Leifer to enter into an online agreement, which states in relevant part:

Client represents and warrants that it will provide Docusearch with accurate and complete information regarding the searches requested, and that search results will not be used for any purpose other than the purpose stated to Docusearch. (Pl. 56.1 Response ¶¶ 83, 86 (emphasis added).) Leifer selected "Insurance Other" as the permissible use from the drop-down menu; he also checked the box signifying his agreement to the online contract. (Pl. 56.1 Response ¶¶ 84, 87--88; Zibas Decl. Ex. S.) He thereafter paid the required $39.00 fee by credit card and submitted his request for information. (Pl. 56.1 Response ¶¶ 38, 84, 87--89.)

Arcanum, in turn, submitted Leifer's search request to Softech. (Pl. 56.1 Response ¶ 90; Defs. 56.1 Response ¶ 21.) Softech "is in the business of information gathering and obtaining information from the department of motor vehicles." (Pl. 56.1 Response ¶ 2.) Arcanum and Softech have a Vendor Agreement, dated July 5, 2005 ("Vendor Agreement"), which provides in relevant part that Arcanum hereby certifies that it will request the Records and the information therein from Softech and resell such to the End Users solely for said End Users' use in connection with a permissible purpose under the . . . DPPA. . . . [Arcanum] further warrants that it will require by written contract that its End Users comply with the same obligations of compliance with laws. (Sher Decl., Ex. D at 6.) The Vendor Agreement contains an indemnification provision that states in relevant part that Arcanum "will indemnify, defend, and ...

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