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SONDRA MATTERNESS, )
 )
 Plaintiff, )
 )
v. ) No. 14 cv 50051
 )
ANDREW ZINKE, )
 )
 Defendant. )
NOW COMES the Plaintiff, SONDRA MATTERNESS, by and through her attorney,
ROBERT T. HANLON for her response to Defendant’s Motion to Dismiss (hereinafter referred
to as “Defendant’s Motion”) (Docket #15), and states as follows:


Defendant, Andrew Zinke, advances a Motion to Dismiss and specifically fails to provide
the obligatory and contrary authority of this Court related to the interpretation of the Drivers
Privacy Protection Act and specifically attempts to malign the Plaintiff’s complaint for erroneous
and false reasons. As an example, in Defendant’s initial footnote #1Defendant claims that “as a
preliminary matter the complaint is in violation of F.R.C.P. 8(a)(2)” because it purportedly fails
to include a short and plain statement of the claim. Defendant must have failed to read paragraph
#1 of Plaintiff’s Complaint because that paragraph is directly on point to the requirement of
F.R.C.P. 8(a)(2) in that paragraph provides the statement Defendant alleges is absent. Perhaps
the Defendant was confused by the clear and plain statement contained in said paragraph 1 and
the heading immediately above paragraph #1 “Nature of Action”.

Fortunately, this Court has the unique opportunity to see the lack of good faith required
before this Court on behalf of defendant’s counsel. But see section 1927. In particular,
Defendant served a Safe Harbor Letter and a draft Motion pursuant to Rule 11, and subsequently
failed to file the Motion despite the lapse of the rules’ 21 day timeframe. This may be explained
by the fact that Defendant has now admitted running Plaintiff’s license plate and obtaining her
name and personal information as defined by the DPPA for his personal purposes as a result of
discovery ordered by this Court to allow Plaintiff’s counsel to assess Defendant’s erroneous Rule
11 motion. As explained in Plaintiff’s drafted Response to Defendant’s Rule 11 Motion, the
subject complaint sets forth adequate facts to allege a cause of action under the Drivers Privacy
Protection Act as well as the claimed for omission of an improper use..


A. Plaintiff Meets the Standard of Pleading Required under Rule 8. 

F.R.C.P. 8 sets forth three requirements for pleading a federal cause of action. Each
exists within Plaintiff’s complaint. That is there is:

1) a short and plain statement of the grounds for the court’s jurisdiction. See paragraph 2 immediately under “Jurisdiction, Venue and Parties”

2) there is a short and plain statement of the claim showing that the pleader is entitled to
relief. (Despite Defendant’s contention, see Paragraph 1 immediately under Nature of Actions.)
and

3) a demand for relief. See the paragraph beginning immediately with the words
“Wherefore, Plaintiff demands judgment on her behalf” appearing immediately after enumerated
paragraph 30, page 8 of the complaint before the requested relief. Thus, in the subject case, the
general rules of pleading are satisfied by the Complaint as required generally by F.R.C.P. 8.

Here, in the Seventh Circuit, pleading requires more than a recital of the elements.
However, Plaintiff believes that she has plead a cause of action under the DPPA, and if need be
can amend the complaint to reflect Defendant’s use of Plaintiff’s personal information for an
unauthorized purpose or use. Defendant claims that the allegations in the complaint are not
sufficient to support a claim because Plaintiff does not allege the Defendant used the information
for an impermissible purpose. Defendant again fails to read the complaint or attempts to mislead
this Court as to the substance of the Plaintiff’s Complaint. See paragraph 24 of Plaintiff’s
complaint wherein it specifically alleges:

24 Defendant has obtained, disclosed FN 1 and used personal information from a motor
vehicle record for purposes not permitted under the DPPA, including but not limited to
the following: 

 = = = = =
FN 1  Note the use of the word “and”. With respect to the term “used”.
= = = = =
A number of items are plead thereafter within the complaint supporting that an
impermissible use took place.

Accordingly, Plaintiff did in fact plead an impermissible use and alleged facts supporting
that Defendant had an impermissible use. Additionally, Defendant Zinke is in possession of the
facts necessary for the particularity Defendant contends is missing. He has yet to fully testify.
This is why Courts require allegations and facts to place the allegations in context. Here,
Plaintiff articulated in the complaint that the Defendant was upset with being served a simple
subpoena and that is why he ran Plaintiff’s license plate. This is what was alleged in the
complaint and that is not a permissible use of LEADS. Thus, when viewed in the context of the
Defendant’s behavior, the Court can readily see that Zinke ran Plaintiff’s motor vehicle plate out
of personal curiosity or personal anger and not for any governmental use of Plaintiff’s personal
information. (Plaintiff intends to seek leave to file an amended complaint with the allegations
and admissions of Defendant as well as a Motion for Summary Judgment based on responses to
discovery allowed for the purpose of responding to Defendant’s Safe Harbor Letter.)

B. Defendant’s Far Away Authority 

Defendant cites to several cases in far off districts omitting his duty to disclose contrary
authority in this District. Namely, this Court rendered an opinion with regard to the elements
necessary for establishing a cause of action for wrongful obtainment under the DPPA. As this
Court pointed out in Barker v Local 150, IUOE,

 “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). 

Even though this authority exists, Defendant ignors the authority set forth in Barker in an
effort to malign Plaintiff’s Counsel and the Complaint and force the Plaintiff to incur the cost of
responding to Defendant’s motion, Defendant looks to distant district court cases. In fact,
Plaintiff’s counsel relied upon the authority of this Court in Barker in framing the subject
complaint.

A Motion to Dismiss under 12(b)(6) tests legal sufficiency to allow a trial court to terminate
lawsuits that are fatally flawed in their legal premises and destined to fail thus spare litigants the
burdens of litigation. See Advanced Cardio sys. Inc., v Scimed Life Systems, Inc.,988 F2d 1157 116
(Fed Cir. 1993), PortAuthority of New York, et al v Arcadian Corp, 189 F3d 305 (3rd Cir 1999). To
survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed.2d 868 (2009). Not only has plaintiff alleged
facts that as accepted as true state a claim for relief under the DPPA.

As will be shown Plaintiff’s complaint is not fatally flawed because the Defendant has since
admitted that he 1) Ran Plaintiffs’ license plate, (Ex A page 11, lines 21-24) 2) that Defendant
obtained plaintiff’s personal information including Plaintiff’s name from his leads inquiry(Ex A
page 12, lines 12-18 and 3) that no crime had been committed, 4) that his stated reasons for
running the Plaintiff’s plate were not permitted uses. See Exhibit A.

Plaintiff brings her claims under the Drivers Privacy Protection Act (“DPPA”) as this
Court previously interpreted a private cause of action arising under the improper obtaining of
personal information from a motor vehicle record. See Barker 641 F. Supp.2d 698, 706.
Likewise, Plaintiff has a cause of action for unlawful using of personal information from a motor
vehicle record.

Although, Defendant fails to recognize the disjunctive nature of the language of the
DPPA, it is clear that the DPPA provides separate causes of action for wrongful obtainment,
wrongful disclosure and wrongful use. See Drivers Privacy Protection Act 18 U.S.C. 2724 and
Barker 641 F.Supp.2d 698, 706. If there was no disjunctive language, then the court’s decision
in Barker would not be logical. Importantly, the statute uses the term “or” within the statute. In
an attempt by the defendant to substitute its revisionary judgment for that of this court, the
Defendant seeks to redefine the language of the DPPA.

C. Nature of Plaintiff’s Claims Under the Drivers Privacy Protection Act

Plaintiff has plead a cause of action under the DPPA against the Defendant alleging that
the Defendant used the Law Enforcement Agencies Database System to unlawfully obtain
personal information of the Plaintiff for an impermissible use. This is exactly what was pled and
what the Deposition of Andrew Zinke produced by way of his admissions. See Exhibit A. In
fact, the reason provided by Defendant in his deposition as to why he ran the Plaintiff’s license

plate was, in pertinent part:

“I wanted to know if the name was familiar to me” Ex A Page 53, “…I wanted to find out
what she was doing.” (exhibit A Pg 18, lines 23-24. (the “She” referencing the person delivering
the subpoena.) See Exhibit A Pg 18.

Clearly, Defendant ZINKE knew what that person was doing, he was present because he
witnessed it and he received a subpoena as alleged in the complaint. Additionally, ZINKE
acknowledged that he was not aware of the commission of any crime when he was served with
the subpoena. (See Exhibit A (ZINKE Deposition) as Exhibit A page 20 lines 1-6); It was
ZINKE’s personal desire to discover the identity of the individual serving him the subpoena.
(See Exhibit A, Zinke Dep at pages 18 & 53.) ZINKE admits that he was served at 7:00pm
(Exhibit A, Pg 11 – 12). Thus, the defendant knew full well that he was served with a subpoena
as alleged in the complaint. Importantly, Plaintiff’s complaint is not fatally flawed under
Advanced Cardio sys. Inc., 988 F2d 1157 116 (Fed Cir. 1993).

Claims under the DPPA sound only in the name of the person whose name appears in the
motor vehicle record. See Barker v Local 150, IUOE, et al., 2011 WL 6338800. The plate
number is associated with the owner of the vehicle, not the driver. Thus, only a registered owner
whose name was improperly obtained has a claim under the DPPA. Barker v Local 150, IUOE,
et al., 2011 WL 6338800. This is exactly what Plaintiff pled and Defendant has now admitted.

D. Complaint Description of Events Preceding the Running of Plaintiff’s Plate

Defendant attempts to allege that plaintiff did not allege an unlawful use. This is simply
not true. Plaintiff alleges an unlawful use and backs up that allegation with factual allegations of
the events surrounding the Defendant running of Plaintiff’s Motor vehicle record (plate).
Plaintiff correctly stated that Defendant ran into the street to take down Plaintiff’s license plate
number. ZINKE’s behavior was the key to connecting his running Plaintiff’s plate in context,
not as a law enforcement officer, but as a petty childlike actor that was having a tantrum over
being served with a simple subpoena. Defendant’s Motion to Dismiss ignors the facts alleged in
context to show that no legitimate use under the DPPA exists. Although, Defendant invites this
Court to take a leap of faith that an impermissible use was not pled, the facts associated with the
events and circumstances surrounding the running of Plaintiff’s plate show that Defendant Zinke
had no lawful use of the information obtained from the LEADS system.

In light of the facts alleged in the complaint, a cause of action has been established under
the DPPA.

“[U]nsupported and underdeveloped arguments are waived.” United States v. Turcotte, 405
F.3d 515 (7th Cir.2005). In this case, as has been explained above, Defendant lobs terms about
and without regard to providing adequate information to Plaintiff’s counsel. This is why
Unsupported or underdeveloped arguments are waived. Because ZINKE fails to articulate
complete coherent argument as to why the subject complaint is purportedly defective or what
allegation is inadequate or insufficient, this court ought to deny the Defendant’s Motion to
Dismiss. Thus, Plaintiff’s entire motion is underdeveloped and therefore waived.
Wherefore, Plaintiff Sandra Matterness prays that this Court deny Defendant’s Motion to
Dismiss o wrongfully advanced in this court, or in the alternative that she be granted leave to
amend the Complaint.