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Barker, et al. v. International Union of Operating Engineers Local 150

December 19, 2011

BARKER, ET AL.
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 150



Name of Assigned Judge or Magistrate Judge Frederick J. Kapala Sitting Judge if Other than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT:

Local 150's motion to reconsider [316] is granted. Local 150 is now granted summary judgment on all claims. All other pending motions are denied as moot. This case is closed.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

This court previously granted summary judgment in favor of Local 150 on all counts except for Timothy Barker's claim in count I brought under the Driver's Privacy Protection Act of 1994 (DPPA), 18 U.S.C. §§ 2721-25. In denying summary judgment on that claim, this court held that there was a genuine issue of material fact as to whether Local 150 obtained Timothy Barker's personal information from a motor vehicle record in violation of the DPPA. The court found evidence in support of that claim in the form of notary public Casey Goldman's testimony that on January 11, 2008, she heard Linda Soria say that she ran the Barkers' plate when Soria worked for Local 150. The court determined that this hearsay statement would be admissible at trial under Federal Rule of Evidence 804(b)(3) as a statement against Soria's interest.

Local 150 filed a motion to reconsider which led this court to order supplemental briefing on the admissibility of the hearsay statement. The matter has been fully briefed. The court now concludes that Soria's hearsay statements are inadmissible and grants Local 150 summary judgment on the only remaining claim.

I. BACKGROUND

As noted in this court's previous order, in her January 11, 2008 affidavit, Soria stated that she provided personal information associated with various license plate numbers to Local 150 business agents. However, in that affidavit, Soria did not identify any particular license plate that she ran or any individual whose personal information she obtained.

At her May 28, 2008 deposition, Soria refused to answer questions concerning this case asserting her Fifth Amendment privilege not to incriminate herself. Soria did answer some general background questions, but no questions pertinent to this case.

On July 9, 2009, this court held that "a private right of action does not lie under § 2724(a) [of the DPPA] based on knowing obtainment of a 'motor vehicle record' for a purpose not permitted by the DPPA absent the additional showing that 'personal information' was obtained from that record." Barker v. Int'l Union of Operating Eng'rs, Local 150, 641 F. Supp. 2d 698, 706 (N.D. Ill. 2009). The court explained that "simply obtaining the CD containing the motor vehicle records is not equivalent to obtaining the personal information contained therein."

Id. at 705-06. Consequently, the parties were alerted that a private right of action under the DPPA exists only for the improper acquisition of personal information "from" motor vehicle records, not for the acquisition of a bulk database of such records.

On March 30, 2010, Casey Goldman executed an affidavit stating that she and plaintiffs' counsel Robert Hanlon were present when Soria executed her January 11, 2008 affidavit. Though not included in Soria's affidavit of January 11, 2008, Goldman swore that on that date Soria orally stated: "I ran the Barker's license plate." Goldman also swore that Soria stated that she, Soria, was questioned by an FBI agent about her work experience at Local 150. According to Goldman, Soria said that she wanted to help "because I know what kind of people they are, there [sic] evil."

On October 11, 2010, Soria executed another affidavit in which she swore that plaintiffs' counsel, Robert Hanlon, told her several times before she signed her January 11, 2008 affidavit that she would not get in any legal trouble by signing the affidavit. Soria also swore that Hanlon advised her that he could and ...


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