Taha v. Bucks County Pennsylvania

367 F.Supp.3d 320

Daryoush TAHA, Plaintiff,

v.BUCKS COUNTY PENNSYLVANIA, Bucks County Correctional Facility, and Unpublish LLC, Defendants.

Unpublish LLC, Cross Defendant

Bensalem Township, Cross Claimant

v.Bucks County Correctional Facility Records/ Records Custodian Employees Jane and/or John Doe #1-6, Bucks County Pennsylvania, Terrance P. Moore, Frank Noonan and William F. Plantier, Cross Defendants

CIVIL ACTION NO. 12-6867

United States District Court, E.D. Pennsylvania.

Signed February 14, 2019

Alan E. Denenberg, Abramson & Denenberg, Jonathan Shub, Aarthi Manohar, Joseph C. Kohn, Kevin Laukaitis, Patrick C. Cullen, Robert J. Larocca, Kohn Swift & Graf, P.C., Philadelphia, PA, for Plaintiff.

Kathryn A. Dux, German Gallagher & Murtagh, Philadelphia, PA, for Cross Claimant.

Frank A. Chernak, Montgomery McCracken Walker & Rhoads LLP, Burt M. Rublin, Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, PA, for Defendants.

Erin K. Clarke, Montgomery McCracken Walker & Rhoads LLP, Philadelphia, PA, for Defendants/Cross Defendants.

Barry N. Kramer, PA Office of Atty. General, Philadelphia, PA, for Cross Defendants.

OPINION

WENDY BEETLESTONE, District Judge

This certified class action arises from Defendants Bucks County Correctional Facility and Bucks County's decision in January 2011 to create an "Inmate Lookup Tool," (the "ILT") through which they published on the internet information about 66,799 individuals who had been held or incarcerated over the course of decades at the Bucks County Correctional Facility. One of the individuals whose information was published, Plaintiff, Daryoush Taha, filed this lawsuit on behalf of himself and all persons whose criminal history record information was made available on the ILT. He claimed that by publishing this information, Defendants Bucks County Correctional Facility and Bucks County violated Pennsylvania's Criminal History Record Information Act ("the CHRIA"), 18 Pa. C.S.A. § 9101 et seq. , in particular contravening the portion of the law that prohibits dissemination of "criminal history record information" except in defined circumstances, 18 Pa. C.S.A. § 9121(b)(2). Pending now are cross motions for summary judgment. Defendants maintain that punitive damages are not available to the class—or at the very least that such damages should be capped. Plaintiff argues that Defendants' violation of the CHRIA was willful, and therefore that punitive damages are proper.¹ For the following reasons both motions will both be denied.

I. Background

The facts in this case, which are largely undisputed, have already been recounted at length. See Taha v. Bucks County , 2016 WL 2345998 (E.D. Pa. May 4, 2016) (" Taha II "). The short story is that in September of 1998, Plaintiff Taha was arrested by the Bensalem Police Department and transported to the Bucks County Correctional Facility. Id. at * 1. He was charged with harassment, disorderly conduct, and resisting arrest; his photo was taken; and he was released the following day. Id. Eventually, the Court of Common Pleas of Bucks County ordered the Clerk of Courts of Bucks County, the Bucks County District Attorney, the district court, and the arresting agency to expunge Plaintiff's "arrest and other criminal records." Id.

In January of 2011, Defendants launched the ILT—a publicly accessible and searchable electronic database that included information about "individuals who had been held or incarcerated at the Bucks County Correctional Facility from 1938 onward, a total of 66,799 people." Taha v. County of Bucks , 862 F.3d 292, 297 (3d Cir. 2017) (" Taha III "). While the parties contest the sufficiency of Defendants' preparation, due diligence, and legal research prior to publishing the ILT, they largely agree on the steps that Defendants did and did not take. Defendants' employees reviewed at least one other county's ILT, discussed the ILT at a meeting of criminal justice professionals, and asked the state police whether certain information should be included in the ILT. They were also repeatedly trained on the protections the CHRIA requires for criminal history record information and on the types of information that qualify as criminal history record information; were aware of the Pennsylvania Attorney General's "Handbook"—according to Defendants, "an authoritative document that you would be reasonable to rely on if you're trying to understand the [CHRIA],"—which defined criminal history record information as the types of information made public by the ILT; had access to a hotline run through Pennsylvania's Commonwealth Law Enforcement Assistance Network that they could call if "there's any doubt as to the propriety" of information to be released, but did not make use of this resource; and proceeded without seeking advice from the Bucks County Solicitor before releasing the information.

Ultimately, the information that Defendants made public about the various class members included "name, race, weight, hair and eye color, arrest dates, arrest charges, and where available the marital status and the FBI and State fingerprint identification numbers." In addition, the ILT included booking photographs for about 47,000 class members. As to Taha himself, the following information became publicly accessible: "a color photograph of Taha from the shoulders up, wearing a blue shirt and pictured against a gray background; sex; date of birth; height; weight; race; hair color; eye color; citizenship; incarceration location; date committed to incarceration; release date; case number for the crime charged; and ‘DC, HARASS’ listed under ‘Charge Information.’ " Taha II , 2016 WL 2345998, at *1.

Plaintiff sued on December 7, 2012. In the course of resolving various motions, the Court has determined that Defendants violated the CHRIA by disseminating "criminal history record information," 18 Pa. C.S.A. § 9102 (defining the term), in a manner prohibited by the Act, Taha v. Bucks County , 172 F.Supp.3d 867, 872 (E.D. Pa. 2016) (" Taha I "), and has also certified a class of "all persons whose criminal history record information was made available on the ... Inmate Lookup Tool," Taha v. Bucks County , 2016 WL 2346000 (E.D. Pa. May 4, 2016) (order); see also Taha II , 2016 WL 2345998, at *4 (opinion). The Third Circuit affirmed the class certification decision, noting that "the only remaining factual issue is whether defendants willfully violated CHRIA," Taha III , 862 F.3d at 309, because in order to obtain punitive damages a plaintiff must show that any violation of the CHRIA was willful, see 18 Pa. C.S.A. § 9183(b)(2).

II. Legal Standard

Summary judgment must be granted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Radich v. Goode , 886 F.2d 1391, 1395 (3d Cir. 1989). Materiality of facts is determined by reference to the substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute "exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party." U.S. ex rel. Greenfield v. Medco Health Solutions, Inc. , 880 F.3d 89, 93 (3d Cir. 2018) (internal quotation marks omitted). "[A]ll reasonable inferences" must be drawn in the non-moving party's favor. Burton v. Teleflex Inc. , 707 F.3d 417, 425 (3d Cir. 2013).

When interpreting Pennsylvania statutes, such as the CHRIA, this Court must follow the Pennsylvania Supreme Court. In re Energy Future Holdings Corp. , 842 F.3d 247, 253-54 (3d Cir. 2016). If the law is unclear and there is no controlling precedent issued by Pennsylvania's highest court, this Court must "predict" how it would rule, giving "due regard, but not conclusive effect, to the decisional law of lower state courts." Nationwide Mut. Ins. Co. v. Buffetta , 230 F.3d 634, 637 (3d Cir. 2000).

III. Discussion

A. Statute of Limitations

Defendants assert that either a one-or two-year statute of limitations applies to the CHRIA, and therefore Taha's claims must be barred because the Amended Complaint was filed on February 26, 2013—more than two years after Defendants' ILT uploaded Taha's criminal history record information onto the internet. This argument is unavailing both because it is waived and because the applicable statute of limitations is six years.

i. Defendants have Waived the Statute of Limitations Affirmative Defense

While Defendants did include a statute of limitations defense in their answer, they eschewed multiple opportunities—motions to dismiss, arguments for and against summary judgment, and in response to Plaintiff's class certification briefing—to raise the defense with the Court. Instead, they waited more than six years to do so—after the Court had determined that they were liable for CHRIA violations, after it had certified the class, and after class members had been notified of the Court's decision on liability.² Concerned by the delay, the Court ordered briefing on whether Defendants' tardiness in raising the argument warranted a conclusion that they had waived the defense, and now decides that it does.

The statute of limitations is an affirmative defense, Fed. R. Civ. P. 8(c), which "must be raised as early as practicable." Robinson v. Johnson , 313 F.3d 128, 137 (3d Cir. 2002). Generally, "the failure to raise an affirmative defense in opposition to a motion for summary judgment constitutes an abandonment of the defense."

United Mine Workers of Am. 1974 Pension v. Pittston Co. , 984 F.2d 469, 478 (D.C. Cir. 1993) ; see also Yanoski v. Silgan White Cap Ams., LLC , 179 F.Supp.3d 413, 426 (M.D. Pa. 2016) ("It is well-established that a party's failure to argue an issue on summary judgment constitutes a waiver of that issue."). Where "the party raising the defense did not do so at a ‘pragmatically sufficient time[,]’ " and where allowing the defense would "prejudice" the opposing party and undermine "judicial economy," it is appropriate to...