# CAPITOL BROADCASTING COMPANY, INCORPORATED v. CITY OF SALISBURY, NORTH CAROLINA

> District Court, M.D. North Carolina · June 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10254450

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** June 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CAPITOL BROADCASTING )
COMPANY, INC., THE MCCLATCHY )
COMPANY, LLC d/b/a THE NEWS )
AND OBSERVER PUBLISHING )
COMPANY, and JAMES S. FARRIN, P.C. )
d/b/a LAW OFFICES OF JAMES )
SCOTT FARRIN, )
)
Plaintiffs, )
)
v. ) 1:22CV1068
)
CITY OF SALISBURY, N.C., CITY OF )
KANNAPOLIS, N.C., CITY OF )
RALEIGH, N.C., NORTH CAROLINA )
DEPARTMENT OF PUBLIC SAFETY, )
and NORTH CAROLINA STATE )
HIGHWAY PATROL, )
)
Defendants. )
)

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.
Plaintiffs Capitol Broadcasting Company, Inc., The McClatchy Company, LLC d/b/a
The News and Observer Publishing Company, and James S. Farrin, P.C. d/b/a Law Offices
of James Scott Farrin (“Plaintiffs”) initiated this action for declaratory relief against
Defendants the City of Salisbury, the City of Kannapolis, the City of Raleigh, the North
Carolina Department of Public Safety, and the North Carolina State Highway Patrol. (ECF
No. 1 ¶¶ 1–24.) Plaintiffs seek a declaration that the Driver’s Privacy Protection Act
(“DPPA”), 18 U.S.C. § 2721, et seq., does not bar North Carolina law enforcement agencies
from releasing to the public, under applicable state laws, motor vehicle accident reports that
contain the unredacted names and addresses of involved drivers. (Id. ¶ 1.) Before the Court
is the City of Raleigh’s Motion to Dismiss made pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure.1 (ECF No. 20.) For the reasons that follow, the Court will

grant Raleigh’s motion and dismiss this action for lack of jurisdiction.
I. BACKGROUND
A. DPPA
The Driver’s Privacy Protection Act holds liable parties “who knowingly obtain[],
disclose[] or use[] personal information, from a motor vehicle record, for a purpose not
permitted [by the statute].” 18 U.S.C. § 2724(a). The statute defines “motor vehicle record”
as “any record that pertains to a motor vehicle operator’s permit, motor vehicle title, motor

vehicle registration, or identification card issued by a department of motor vehicles.” Id.
§ 2725(1).
Under the DPPA, state departments of motor vehicles (“DMVs”) are generally
prohibited from knowingly disclosing “personal information” to any person or entity. Id.
§ 2721(a)(1). As defined by the DPPA, “personal information” includes “an individual’s
photograph, social security number, driver identification number, name, address (but not the

5-digit zip code), [and] telephone number, . . . but does not include information on vehicular
accidents, driving violations, and driver’s status.” Id. § 2725(3).

1 Only the City of Raleigh moves to dismiss this action.
B. Accident Reporting Procedure in North Carolina
When a car accident occurs in North Carolina, law enforcement agencies (“LEAs”) are
required to investigate those accidents which are reported to them. N.C. Gen. Stat. § 20-
166.1(e). Within twenty-four hours of the accident, an investigating officer must “make a
written report of the accident” for the relevant LEA. Id. The North Carolina Division of

Motor Vehicles (“NCDMV”) provides the forms and procedures for submitting these
accident reports to LEAs. Id. § 20-166.1(h). All LEAs must forward completed accident
reports to the NCDMV within ten days. N.C. Gen. Stat. § 20-166.1(e).
C. NCPRA
Under the North Carolina Public Records Act (“NCPRA”),
[t]he public records and public information compiled by the agencies of North
Carolina government, or its subdivisions are the property of the people.
Therefore, it is the policy of this State that the people may obtain copies of their
public records and public information free or at minimal cost unless otherwise
specifically provided by law.

N.C. Gen. Stat. § 132-1(b). A “public record” is defined as “all documents, papers, . . .
electronic data-processing records, artifacts, or other documentary material,” that is “made or
received pursuant to law or ordinance in connection with the transaction of public business
by any agency of North Carolina government or its subdivisions.” Id. § 132-1(a).
North Carolina law further specifies that “reports made by law enforcement officers
and medical examiners are public records and are open to inspection by the general public at
all reasonable times.” Id. § 20-166.1(i). Similarly, the NCPRA mandates that “[e]very
custodian of public records shall permit any record in the custodian’s custody to be inspected
and examined at reasonable times . . . .” Id. § 132-6(a).
D. Plaintiffs’ Requests for Accident Reports from Defendants
The Plaintiffs in this action are two media organizations and a law firm. The two media
organizations “routinely use information provided in accident reports to inform reporting that
appears in television, print, radio and digital formats.” (ECF No. 1 ¶ 5.) The law firm uses
the accident reports to “introduce[] its services to drivers who may need the assistance of

counsel to oppose aggressive claims representatives from insurance companies, understand
their rights, or pursue injury compensation in the courts.” (Id.) The Defendants in this action
are three North Carolina municipalities that supervise and control LEAs, and the North
Carolina Department of Public Safety, which also supervises and controls an LEA.2 (Id. ¶¶ 4,
24.) As earlier stated, only the City of Raleigh has moved to dismiss this action.
Plaintiffs allege that they have sought accident reports from Defendants’ LEAs

pursuant to the NCPRA, however, Defendants have restricted Plaintiffs’ access to accident
reports citing the DPPA. (Id. ¶¶ 3–4, 37–60.) The restrictions vary by Defendant. (See id.
¶¶ 37–60.) They include refusing to make accident reports available directly and instead
referring Plaintiffs to the NCDMV requests system, (id. ¶ 47), only releasing accident reports
to the law firm plaintiff if that firm represents someone involved in the accident, (id. ¶ 50),
using a website design that only allows searching of reports using information that only

someone involved in the accident would know, (id. ¶ 54) and requiring requesters to affirm
that they are seeking the information for a DPPA-authorized purpose, (id. ¶ 55). As alleged
by Plaintiffs, it is Defendants’ position that simply releasing the accident reports pursuant to

2 Plaintiffs named both the North Carolina Department of Public Safety and the LEA that it
supervises, the North Carolina State Highway Patrol, as Defendants in this action. (ECF No. 1 ¶¶ 23–
24.)
the NCPRA without these restrictions may create liability for Defendants under the DPPA.
(Id. ¶ 3.) Therefore, “Plaintiffs seek a declaration that . . . would clarify that the DPPA does
not bar Defendants from releasing to the public, pursuant to state law, accident reports that
contain driver-identifying information that includes names and addresses.” (Id. ¶ 6.)
II. STANDARDS OF REVIEW
A. Rule 12(b)(1)

Under Rule 12(b)(1), a party may seek dismissal based on a court’s “lack of subject-
matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). A motion under Rule 12(b)(1) raises the question
of “whether [the claimant] has a right to be in the district court at all and whether the court
has the power to hear and dispose of [the] claim.” Holloway v. Pagan River Dockside Seafood, Inc.,
669 F.3d 448, 452 (4th Cir. 2012). A defendant may present a motion to dismiss for lack of

subject matter jurisdiction either by contending that the complaint does not sufficiently allege
jurisdiction, or by contending that the allegations in the complaint are not true. Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). Unless a defendant pursues the latter method and attacks
the truth of the allegations, a court takes them as true and “in effect, . . . afford[s] the same
procedural protection as [the plaintiff] would receive under a Rule 12(b)(6) consideration.” Id.
A court should grant a motion under Rule 12(b)(1) “only if the material jurisdictional facts are

not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
B. Rule 12(b)(6)

A motion made under Rule 12(b)(6) challenges the legal sufficiency of the facts in the
complaint, specifically whether the complaint satisfies the pleading standard under Rule
8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “[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, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S 544, 570 (2007)). A claim is plausible when the complaint

alleges sufficient facts to allow “the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir.
2015) (quoting Iqbal, 556 U.S. at 678). The court “view[s] the complaint in a light most
favorable to the plaintiff.” Mylan Lab’ys, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
When considering a motion to dismiss, “a [district] court evaluates the complaint in its
entirety, as well as documents attached [to] or incorporated into the complaint.” E.I. du Pont

de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). Generally, on a Rule
12(b)(6) motion to dismiss, a court cannot consider documents beyond the complaint without
converting the motion into a motion for summary judgment. See Occupy Columbia v. Haley, 738
F.3d 107, 116 (4th Cir. 2013). The court can, however, properly consider documents attached
to or referenced in the complaint, as well as those attached to the motion to dismiss, so long
as those documents are “integral to and explicitly relied on in the complaint.” Am. Chiropractic

Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v. LCI Int’l,
Inc., 190 F.3d 609, 618 (4th Cir. 1999)).
III. DISCUSSION
The Court addresses the City of Raleigh’s challenge to its jurisdiction before turning to
the merits of this case.
The Complaint in this action asserts that “[this] Court . . . has jurisdiction under the
Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.” (ECF No. 1 ¶ 25.) “[I]t is elementary
that a federal court may properly exercise jurisdiction in a declaratory judgment proceeding
when three essentials are met: (1) the complaint alleges an ‘actual controversy’ between the
parties ‘of sufficient immediacy and reality to warrant issuance of a declaratory judgment;’ (2)

the court possesses an independent basis for jurisdiction over the parties (e.g., federal question
or diversity jurisdiction); and (3) the court does not abuse its discretion in its exercise of
jurisdiction.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 592 (4th Cir.
2004). In this case, the City of Raleigh has challenged whether the second of these three
jurisdictional prerequisites is satisfied. (See ECF No. 21 at 4–17.) There is no suggestion here
that this Court might have diversity jurisdiction. (See ECF No. 1 ¶ 11 (allegation that Plaintiff

Capitol Broadcasting is a North Carolina corporation with its principal office in North
Carolina); id. ¶¶ 14–24 (allegations that all Defendants are North Carolina municipalities or
agencies).) Thus, the question for the Court is whether it has federal question jurisdiction over
this action.
Under 28 U.S.C. § 1331, “district courts . . . have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.” “[I]n the ‘vast majority’

of cases where federal-question jurisdiction exists,” it exists because “federal law creates the
plaintiff’s cause of action.” Ormet Corp. v. Ohio Power Co., 98 F.3d 799, 806 (4th Cir. 1996).
Here, however, the Complaint alleges this Court possesses federal question jurisdiction
because the action “arises” under the DPPA, (ECF No. 1 ¶ 25), but does not reference any
provision of that law authorizing a private cause of action, (see generally id.). The City of Raleigh
therefore contends that this action does not actually “arise” under the DPPA, and Defendant
Raleigh argues this is so due to the “well-pleaded complaint” rule. (ECF No. 21 at 13).
Under the “well-pleaded complaint” rule, “[w]hether a case is one arising under the
Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, . . .
must be determined from what necessarily appears in the plaintiff’s statement of his own claim

in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses
which it is thought the defendant may interpose.” Franchise Tax Bd. v. Constr. Laborers Vacation
Tr. for S. Cal., 463 U.S. 1, 9–10 (1983) (quoting Taylor v. Anderson, 234 U.S. 74, 75–76 (1914));
see also 13D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3566 (“The
well-pleaded complaint rule stands for the proposition that the court, in determining whether
the case arises under federal law, will look only to the claim itself and ignore any extraneous

material.”). “Thus, a federal court does not have original jurisdiction over a case in which the
complaint presents a state-law cause of action, but also asserts that . . . a federal defense the
defendant may raise is not sufficient to defeat the claim.” Franchise Tax Bd., 463 U.S. at 10
(citations omitted); see also Mayor & City Council of Balt. v. BP P.L.C., 31 F.4th 178, 198 (4th Cir.
2022) (same).
Based on the Supreme Court case Franchise Tax Board of the State of California v.

Construction Laborers Vacation Trust for Southern California, this Court concludes that Plaintiffs’
action does not “arise” under the DPPA, and this Court therefore does not have federal
question jurisdiction.
In Franchise Tax Board, a California agency attempted “to collect unpaid state income
taxes by levying on funds held in trust for the taxpayers [by] an ERISA-covered vacation
benefit plan.” 463 U.S. at 4. The trust holding the funds refused to cooperate with the agency,
claiming that ERISA preempted the state law basis for the agency’s levy. Id. at 5–7. The
agency sued the trust and brought two claims: first, a claim pursuant to the California tax code
for the funds; and second, a claim for declaratory relief to resolve whether the trust could
invoke ERISA preemption to refuse the levy. Id. at 6, 13. The Supreme Court held that under

the well-pleaded complaint rule, there was no federal jurisdiction over the action. Id. at 27–
28.
With respect to the agency’s first claim for the funds, the Supreme Court reasoned that
there was no jurisdiction because “[state] law establishe[d] a set of conditions, without
reference to federal law, under which a tax levy may be enforced; federal law bec[ame] relevant
only by way of a defense to an obligation created entirely by state law, and then only if [the

agency] ha[d] made out a valid claim for relief under state law.” Id. at 13.
The Court described the agency’s second claim for declaratory judgment as “a more
difficult problem.” Id. at 14. Generally, “the rule is that an action for a declaratory judgment
will invoke federal question jurisdiction only if the coercive action that would have been
brought (were declaratory judgments not available) would have been within that jurisdiction.”
13D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3566. The Supreme

Court acknowledged that it was “clear on the face of [the] well-pleaded complaint that [the
agency could] not obtain the relief it [sought] . . . without a construction of ERISA and/or an
adjudication of its preemptive effect and constitutionality—all questions of federal law.”
Franchise Tax Bd., 463 U.S. at 14. However, because “ERISA [did] not provide an alternative
cause of action in favor of [the agency] to enforce its rights,” there was no federal jurisdiction
over the claim for declaratory relief either. Id. at 26–27; see also id. at 27 (“ERISA carefully
enumerates the parties entitled to seek relief under § 502 . . . . A suit for similar relief by some
other party does not ‘arise under’ that provision.”). The Court acknowledged that the outcome
of the case was due to “reasons involving perhaps more history than logic,” but ultimately
instructed that the case be remanded back to state court. Id. at 4.

Here, Plaintiffs seek to obtain documents from Defendants. As in Franchise Tax Board,
Defendants have refused to cooperate based on their interpretation of a federal law,
specifically, the DPPA. Pursuant to Franchise Tax Board, whether this Court has jurisdiction
hinges on whether Plaintiffs’ claimed entitlement to the documents in question is created by
state law or by federal law. The Court finds that the right that Plaintiffs seek to assert in this
case is a state law right. Plaintiffs’ Complaint explicitly claims entitlement to the documents

based on the NCPRA. (ECF No. 1 ¶ 3 (alleging that Defendants are not complying with the
NCPRA); id. ¶ 92 (seeking a declaration “that the DPPA does not prevent Defendants from
releasing accident reports under applicable North Carolina law” (emphasis added).) There is no
assertion in the Complaint that, absent the NCPRA, the federal DPPA requires Defendants
to produce any documents to Plaintiffs. Plaintiffs even concede in their brief that the DPPA
does not provide a remedy to them in the form of access to records. (ECF No. 22 at 18.)

Thus, under the well-pleaded complaint rule, the instant action arises under state law, the
DPPA is only relevant insofar as it is a potential federal defense, and therefore this Court does
not have federal question jurisdiction.
Plaintiffs argue, however, that this case nevertheless arises under federal law for
jurisdictional purposes because it “presents ‘a substantial, disputed question of federal law.’”
(ECF No. 22 at 9 (quoting Franchise Tax Bd., 463 U.S. at 13).)
The Fourth Circuit has explained that there is a “small class of cases where, even
though the cause of action is not created by federal law, the case’s resolution depends on

resolution of a federal question sufficiently substantial to arise under federal law within the
meaning of 28 U.S.C. § 1331.” Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004)
(quoting Ormet Corp., 98 F.3d at 806). To show that a case is within this small class, a party
must show: “(1) that the plaintiff’s right to relief necessarily depends on a question of federal
law, and (2) that the question of federal law is substantial.” Id. “A plaintiff’s right to relief
necessarily depends on a question of federal law when ‘it appears that some . . . disputed

question of federal law is a necessary element of one of the well-pleaded state claims.’” Pinney
v. Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005) (quoting Franchise Tax Bd., 463 U.S. at 13). “If
a plaintiff can establish, without the resolution of an issue of federal law, all of the essential
elements of his state law claim, then the claim does not necessarily depend on a question of
federal law.” Id.
The City of Raleigh points out that although Plaintiffs invoke the substantial question

doctrine, Plaintiffs’ brief is devoid of any argument why this action qualifies as one of those
rare cases where the doctrine applies. (ECF No. 23 at 3.)
Having reviewed Plaintiffs’ brief, the Court agrees with Raleigh—Plaintiffs have not
explained how the two criteria set out by the Fourth Circuit have been met here. (See ECF
No. 22 at 9–11.) The Court also agrees with Raleigh that the resolution of this case does not
depend on the resolution of a substantial question of federal law such that federal jurisdiction
exists. According to the logic of the Complaint, the DPPA has nothing to do with Plaintiffs’
entitlement to the documents—Plaintiffs’ entitlement to the documents comes from the
NCPRA and the DPPA has only become involved because Defendants interjected it in
response to the NCPRA demands. (See, e.g., ECF No. 22 at 13 (Plaintiffs’ argument that the

DPPA’s legislative history shows that “the statute has no application at all to the disclosure of
‘personal information’ through State and local records systems applicable to custodians other
than a state DMV” (emphasis in original)).) It is therefore clear that Plaintiffs could establish
the essential elements of their state law claim that they have a right to the documents without
reference to the DPPA. Thus, the NCPRA claim does not necessarily depend on a question
of federal law.

Plaintiffs also argue that they prevail pursuant to the rule that a federal court has
jurisdiction over a suit where “the right set up by [a] party may be defeated by one construction
of the constitution or law of the United States and sustained by the opposite construction.”
(ECF No. 22 at 9–10 (quoting Ormet Corp, 98 F.3d at 806).) Plaintiffs’ argument appears to
posit that the federal “right” at issue is the Defendants’ supposed right to refuse to Plaintiffs’
requests. (See id. at 10 (“[Plaintiffs] seek a ruling that the DPPA affords the City no

independent basis upon which to decline to comply with state public records laws.”).) This
characterization of the case is unpersuasive; it appears to be an attempt to end-run the well-
pleaded complaint rule by construing a federal defense as a federal right to raise a federal
defense. “[I]t is blackletter law that a federal defense differs from a claim arising under federal
law . . . . [and a] natural plaintiff . . . cannot use 28 U.S.C. § 2201, the declaratory-judgment
statute, to have a federal court blot out a potential federal defense to its own potential state-
law suit.” Chi. Trib. Co. v. Bd. of Trs. of the Univ. of Ill., 680 F.3d 1001, 1003 (7th Cir. 2012)
(citations omitted) (finding there was no federal question jurisdiction where a media
organization sought a declaratory judgment that the federal Family Educational Rights and
Privacy Act did not bar a state university from releasing records pursuant to the Illinois

Freedom of Information Act).
Plaintiffs also argue that this case presents a substantial question of federal law insofar
as they seek to affirmatively assert their First Amendment rights. (ECF No. 22 at 11.) The
City of Raleigh responds that there is no First Amendment cause of action in this case because,
among other reasons, the Complaint does not include a cause of action under the First
Amendment. (ECF No. 23 at 3–4.)

The Court agrees with the City of Raleigh that the Complaint does not plead anything
under the First Amendment. The 92-paragraph Complaint mentions the First Amendment
only twice. (ECF No. 1 ¶¶ 5, 62.) In one place, the Complaint alleges that Plaintiffs’ access
to accident reports “is integral to the exercise of their First Amendment rights.” (Id. ¶ 5.) In
the other place, the Complaint alleges that “[the] USDOJ concluded there was no First
Amendment deficiency in the [DPPA].” (Id. ¶ 62.) In contrast to these passing remarks,

within the section of the Complaint labeled “Count I – Declaratory Judgment,” the Complaint
makes clear that Plaintiffs believe they are entitled to the documents “as required by North
Carolina law,” “in the manner prescribed by the NCPRA,” and “under applicable North
Carolina law.” (Id. ¶¶ 87–92.) The Complaint’s prayer for relief also specifies that the Plaintiffs
believe that the records must be released “in the manner prescribed by the NCPRA.” (Id. at
38.) The Court therefore finds that the Complaint does not plead any claim under the First
Amendment. “It is well-established that parties cannot amend their complaints through
briefing or oral advocacy.” S. Walk at Broadlands Homeowner’s Ass’n v. Openband at Broadlands,
LLC, 713 F.3d 175, 184 (4th Cir. 2013). Accordingly, this action does not arise under the First
Amendment.

For the foregoing reasons, the Court finds that this action does not arise under federal
law for the purposes of federal question jurisdiction. This Court therefore lacks federal
question jurisdiction. Because this Court also lacks diversity jurisdiction, the Court must grant
the City of Raleigh’s motion under Rule 12(b)(1) and dismiss this action without prejudice. As
the Court finds it lacks jurisdiction, it will not address the parties’ arguments regarding Rule
12(b)(6).

For the reasons stated herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that the City of Raleigh’s Motion to Dismiss,
(ECF No. 20), is GRANTED, and this action is DISMISSED.

This, the 29th day of June 2023.

/s/ Loretta C. Biggs
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254450. Public record. Not legal advice.