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Breakthrough Towing, LLC v. Hall

United States District Court, E.D. Michigan, Southern Division

March 29, 2017

Breakthrough Towing, et. al., Plaintiff,
v.
Scott Hall, et. al., Defendant.

          Mona K. Majzoub U.S. Magistrate Judge

          ORDER GRANTING MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT [24]

          Arthur J. Tarnow Senior United States District Judge

         Plaintiffs filed a complaint alleging claims of §1983, common law conversion and statutory conversion on July 15, 2015.[1] Defendants filed a Motion for Summary Judgment as to Counts II and III on August 4, 2016. [24]. Plaintiffs responded on August 23, 2016 [26] and Defendants replied on September 7, 2016 [27]. A hearing was held on the Motion on March 28, 2017. For the reasons stated below, Defendants' Motion to Dismiss or for Summary Judgment [24] is GRANTED.

         Factual Background

         Late in the evening on December 26, 2014, Andre Jones (“Jones”), a driver for Plaintiff Breakthrough Towing, towed a black 2006 Chevrolet Malibu, owned by Jeremy Goss (“Goss”), from a McDonald's parking lot on Woodward Ave. in Detroit. Plaintiff had a contract with McDonalds to tow illegally parked cars. By the evening, Breakthrough Towing had already been called out several times to tow illegally-parked cars from the Woodward McDonald's parking lot, and had registered at least two other vehicles towed from that McDonalds with the Detroit Police Department (DPD) 3rd Precinct. [26-2].

         Per City of Detroit procedures and state law, the tow truck driver proceeded to the DPD 3rd Precinct to log the vehicle with the DPD to ascertain if the vehicle had been reported as stolen. When Jones arrived at the DPD 3rd Precinct, Defendant Scott Hall (“Defendant Hall”) was working. He overheard that a driver from Breakthrough Towing was attempting to log in a privately-impounded car with the police department. Defendant Hall approached to investigate further the logging in of the car because, on November 15, 2014, Breakthrough had attempted to impound multiple cars from locations on Woodward without the request of the property owner. [24-11].

         Per DPD Standard Operating Procedures for private towing (“SOP”), when a tow driver presents the tow slip to an officer for a LEIN search, “the tow slip must include the authorized (legible) name of the person who requested the tow.” [24-9 at 5]. The tow slip presented to Defendant Hall in the evening of December 26, 2014 did not include the signature or name of the property owner who allegedly had requested that the vehicle be towed. [24-12 at 46-47]. Therefore, Defendant Hall determined that the car had been towed in violation of MCL 257.252a and the SOP of the DPD, and directed the driver return the vehicle from where it had been towed, and obtain a name to enter on the slip, and bring the car back in order to legally tow the car. [24-12 at 49-51].

         At around 12:15am on December 27, 2014, approximately one hour after Hall's interaction with the tow truck driver, Goss entered the 3rd Precinct to report his black Chevrolet Malibu stolen from the McDonalds on Woodward. [26-6]. Defendant Hall suspected that Goss's car was the vehicle that had been illegally towed earlier in the night by Breakthrough Towing and asked Goss to drive to Breakthrough Towing's storage yard at 1761 W. Forest to see if he could identify his car as being located there. [24-12 at 63-64, 67-68, 71].

         Goss later called the 3rd Precinct and stated that he did indeed see his car at Breakthrough Towing's storage yard. [24-12 at 82]. Following this call, Hall instructed desk officer Wintcher to enter a stolen vehicle report in the LEIN and then Defendant Hall assembled a group of other police officers to go to Breakthrough Towing's storage yard. [24-11].

         The police officers, including Defendant Hall, arrived at the storage yard at approximately 4:00am. The lot was fenced in with a chain link fence, through which Goss could identify his car, which Defendant Hall believed to have been illegally towed since the tow truck driver had never returned with a signed slip in violation of his directive. [24-12 at 84]. Defendant Hall could see through the fence a Breakthrough Towing tow truck as well, which he believed to have been involved in the allegedly illegal towing of Goss' car. [24-12 at 84, 75]. Defendant Hall could not provide any evidentiary basis for his belief that that specific truck was used to tow Goss' car. [26-5 at 75]. Defendant Hall testified that he believed that he was authorized by the plain view doctrine to forcibly enter the lot to retrieve Goss' car and seize the tow truck without a search warrant. [24-12 at 84, 75].

         According to Officer Rodgers, he was ordered to break the lock with a bolt cutter or hammer per Hall's instruction. [26-7 at 10]. Officer Hall does not recall directing Rodger to break the lock open, but it is undisputed that the lock on the fence was broken by the police on the scene. [24-10, 24-11, 24-12]. Once the lock was broken, Goss was allowed to recover his car and the police impounded the visible Breakthrough Towing Truck for being used in the commission of the illegal tow. Id. The tow truck was returned to Plaintiff on January 5, 2015 and Plaintiff was never charged with theft of Goss' car.

         Standard of Review

         Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must construe the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, ...


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