Fuentes v. Faircloth, No. 69-1359-Civ-WM.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Writing for the Court: DYER, Circuit , and MEHRTENS and EATON
• Citation: 317 F. Supp. 954
• Parties: Margarita FUENTES, individually, and as a class for all those similarly situated, Plaintiffs, v. Earl FAIRCLOTH, Attorney General for the State of Florida, and Firestone Tire and Rubber Company, Defendants.
• Docket Number: No. 69-1359-Civ-WM.
• Decision Date: 21 August 1970

317 F. Supp. 954

Margarita FUENTES, individually, and as a class for all those similarly situated, Plaintiffs,
v.
Earl FAIRCLOTH, Attorney General for the State of Florida, and Firestone Tire and Rubber Company, Defendants.

No. 69-1359-Civ-WM.

United States District Court, S. D. Florida.

August 21, 1970.

317 F. Supp. 955

Economic Opportunity Legal Services, for plaintiffs.

Earl Faircloth, Atty. Gen., for State of Florida.

Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, Fla., for Firestone Tire & Rubber Co.

Shutts & Bowen, Miami, Fla., amici curiae for General Motors Acceptance Corporation.

Before DYER, Circuit Judge, and MEHRTENS and EATON, District Judges.

DYER, Circuit Judge:

Plaintiff brought this suit against Firestone Tire and Rubber Company

317 F. Supp. 956

(Firestone) and the Attorney General of Florida¹ for declaratory and injunctive relief against continued enforcement of certain sections of Florida's replevin statutes, F.S. § 78.01, et seq., F.S.A. alleging that they are unconstitutional in that they authorize a taking of property without prior opportunity to be heard in contravention of the Due Process Clause of the Fourteenth Amendment and they authorize a search and seizure without the necessity of a search warrant in violation of the Fourth Amendment. Jurisdiction is founded on 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3). A three judge court was convened. Testimony has been heard by the Court and a stipulation of facts and briefs have been filed. Plaintiff has moved for summary judgment. Having considered all the evidence and arguments the Court denies plaintiff's motion for summary judgment and, deciding the case on the basis of the record before it, enters judgment for the defendants

In June, 1967, plaintiff purchased from defendant Firestone a gas stove. In November, 1967, she purchased a stereo set from Firestone. Both purchases were made under conditional sales contracts which provided in part that "in the event of default of any payment or payments, Seller at its option may take back the merchandise". On September 15, 1969, several months after plaintiff had fallen behind in her payments in the total sum of $204.05 and had received notice to pay or return the merchandise, Firestone pursuant to the procedure authorized in the statutes now under attack, submitted a complaint and affidavit in replevin in the Small Claims Court of Dade County, Florida, and posted a replevin bond.² The Small Claims Court issued a writ of replevin immediately which was executed without prior notice to plaintiff by a deputy sheriff on September 15.

The facts surrounding the actual execution, taken most favorably to plaintiff, show that the deputy sheriff had a communications problem with plaintiff since she spoke little or no English. Gradually, however, he was able to communicate his purpose and the effect of the writ. At this point, plaintiff's daughter-in-law, who lived in the same house with plaintiff, became "upset and emotional" and protested the repossession. She sent for Mr. Leon, the plaintiff's son-in-law, to assist her and the deputy agreed to wait. When Mr. Leon arrived he explained to the deputy in English that his attorney had advised him that a court proceeding was necessary before the merchandise could be repossessed and that, on his advice, he was not going to give up the property. The deputy "explained the effect of the writ to Mr. Leon, that he was obliged to repossess the stove and stereo in accordance with its terms."³ Mr. Leon then agreed to the repossession and let the deputy, who until then had been standing outside on the front porch, and the two men from Firestone, who had been waiting outside in their truck until this time, into the house and showed them where the merchandise was located.

Shortly thereafter plaintiff filed the instant action. Although she admits delinquency in the payments she alleges that she has a meritorious defense to the repossession—apparently that the stove was mechanically defective and that Firestone has failed to make satisfactory repairs.

The specific sections of the Florida replevin statute which plaintiff attacks are F.S. §§ 78.01, 78.08, 78.10, 78.11 and

317 F. Supp. 957

78.12, F.S.A.⁴ Under these sections a person whose goods are wrongfully detained may, by posting a bond in twice the amount of the value of the property, have a writ of replevin to recover them (78.01, 78.04 and 78.07). The writ commands the executing officer to replevy the goods and to summon the defendant to answer the complaint (78.08). In executing the writ the officer shall publicly demand delivery of property secreted or concealed in any dwelling house or other building and if it is not then delivered he shall cause the building to be broken open and, if necessary, he shall take to his assistance the power of the county (78.10)

Relying primarily on Sniadach v. Family Finance Corporation, 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, which held that Due Process requires a prior hearing before wages may be garnished, and Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, which held that due process...