Gordon v. Pete's Auto Serv. of Denbigh, Inc.

• Decision Date: 12 March 2012
• Docket Number: Action No. 4:08cv124.
• Citation: 838 F.Supp.2d 436
• Parties: Andre GORDON, Plaintiff, v. PETE'S AUTO SERVICE OF DENBIGH, INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

838 F.Supp.2d 436

Andre GORDON, Plaintiff,

v.PETE'S AUTO SERVICE OF DENBIGH, INC., Defendant.

Action No. 4:08cv124.

United States District Court,

E.D. Virginia,

Newport News Division.

March 12, 2012.

Rebecca S. Colaw, Esq., Suffolk, VA, for Plaintiff.

Richard H. Roston, Esq., Norfolk, VA, for Defendant.

OPINION AND ORDER

F. BRADFORD STILLMAN, United States Magistrate Judge.

This matter has been referred to the undersigned United States Magistrate Judge on consent of the parties, pursuant to the provisions of 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. Before the Court are cross-motions for summary judgment.

I. BACKGROUND

In this action, Gordon seeks to recover damages from Pete's Auto Service for the loss of his automobile, a 2002 Jeep Grand Cherokee, which the defendant towed and sold while the plaintiff, an enlisted member of the United States Navy, was deployed. Gordon asserts a federal claim against Pete's Auto Service for violation of Section 307(a) of the Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. app. § 537(a), and a state law claim for conversion.

In January 2007, Gordon received orders from the United States Navy directing him to report to Norfolk, Virginia, to serve aboard a Norfolk-based warship. On March 16, 2007, he and his wife signed a lease at an apartment complex in nearby Newport News, where Gordon explained that he was subject to deployment and that during his deployments his wife would return to their prior residence in Jacksonville, Florida. On the lease, Gordon identified his 2002 Jeep Grand Cherokee and provided emergency contact information for his wife.

Gordon's ship was subsequently deployed in late March 2007, at which time his wife returned to their home in Florida. While he was away on deployment, Gordon left his Jeep in the apartment complex's parking lot. In May 2007, while Gordon was still deployed, a representative of the apartment complex notified Pete's Auto Service that Gordon's Jeep had a flat tire and requested that it be towed. On May 17, 2007, Pete's Auto Service towed the Jeep away and then stored it for 35 days. On June 22, 2007, Pete's Auto Service sold the vehicle to itself at auction in satisfaction of the $1,200 lien it had asserted for towing and storage fees. Pete's Auto Service was the only bidder in attendance. Pete's Auto Service had the vehicle re-titled in its own name and then sold the Jeep to a third party for $4,500 on June 25, 2007. Neither Pete's Auto Service nor the apartment complex contacted Gordon or his wife, nor did Pete's Auto Service obtain a court order before enforcing its lien on the vehicle.

On December 17, 2008, Gordon filed the complaint in this case. In addition to Pete's Auto Service, the complaint named the apartment management company and three related companies as defendants. The four apartment management defendants were subsequently dismissed from the case pursuant to Rule 41 of the Federal Rules of Civil Procedure, leaving only Pete's Auto Service as a defendant.

On November 17, 2009, the Court dismissed the remainder of the case sua sponte, finding that the SCRA did not provide for a private right of action to recover damages at law. See generally Gordon v. Pete's Auto Serv. of Denbigh, Inc., 670 F.Supp.2d 453 (E.D.Va.2009). Gordon appealed.

On October 13, 2010, the Veterans' Benefits Act of 2010 was signed into law, amending the SCRA to expressly permit a private right of action for monetary damages, and to allow prevailing plaintiffs to recover litigation costs, including reasonable attorney's fees. See SCRA § 802, Pub.L. No. 111–275, 124 Stat. 2864, 2878 (codified at 50 U.S.C. app. § 597a); Gordon v. Pete's Auto Serv. of Denbigh, Inc., 637 F.3d 454, 457 (4th Cir.2011). On February 14, 2011, the Fourth Circuit reversed and remanded this case, finding that the amended statute was not impermissibly retroactive with respect to compensatory and punitive damages. See id. at 461. The Fourth Circuit declined to consider the availability of attorney's fees under the new statute. See id.

On remand, the parties consented to proceed before a magistrate judge, and the case was reassigned to the undersigned pursuant to the provisions of 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. On June 20, 2011, the plaintiff filed a motion for summary judgment. On October 11, 2011, the defendant filed its own motion for summary judgment. On November 2, 2011, the Court held a hearing on these cross-motions for summary judgment. Rebecca S. Colaw, Esq., appeared on behalf of the plaintiff. Richard H. Roston, Esq., appeared on behalf of the defendant. The official court reporter was Tami Tichenor.

On December 2, 2011, the Court issued an Opinion and Order denying the defendant's motion for summary judgment and granting in part and denying in part the plaintiff's motion for summary judgment. Gordon v. Pete's Auto Serv. of Denbigh, Inc., 837 F.Supp.2d 581, No. 4:08cv124, 2011 WL 6024538 (E.D.Va. Dec. 2, 2011). In that Opinion and Order, the Court expressly reserved ruling with respect to the availability of an attorney's fee award in this case. Id. at 444–45, at *7. The Court granted the plaintiff's motion with respect to the defendant's liability for violation of Section 307(a) of the SCRA and otherwise denied both motions. Id. at 440–41, 442–45, at *3, *5–*7. The Court also sua sponte raised the question of the defendant's liability for common-law conversion under Count III of the complaint, directing the parties to show cause why summary judgment should not be granted to the plaintiff on this issue. Id. at 441–42, 444–45, at *4, *7. Neither party has responded with respect to the defendant's liability for common-law conversion.

In this Opinion and Order, the Court returns to the issues of the defendant's liability for conversion and the availability of an attorney's fee award in this case.

II. MOTION FOR SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only 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). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute of material fact is “genuine” only if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Id. In deciding a summary judgment motion, the Court must view the record as a whole and in the light most favorable to the nonmovant. Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir.1985).

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant makes such a showing, the nonmovant must set forth specific facts, supported by the record, demonstrating that “the evidence presents a sufficient disagreement to require submission to the jury.” Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.

When confronted with cross-motions for summary judgment, “the standards upon which the court evaluates the motions for summary judgment do not change.” Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991). “[T]he Court must review each motion separately on its own merits ‘to determine whether either of the parties deserves judgment as a matter of law.’ ” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (quoting Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n. 4 (1st Cir.1977)). The mere fact that both sides have moved for summary judgment does not establish that no genuine dispute of material fact exists, thus requiring that judgment be granted to one side or the other. See World–Wide Rights Ltd. P'ship v. Combe Inc., 955 F.2d 242, 244 (4th Cir.1992); Am. Fid. & Cas. Co. v. London & Edinburgh Ins. Co., 354 F.2d 214, 216 (4th Cir.1965). Even if the basic facts are not in dispute, the parties may nevertheless disagree as to the inferences that reasonably may be drawn from them, in which case summary judgment may be inappropriate, necessitating the denial of both motions. See Am. Fid. & Cas. Co., 354 F.2d at 216.

III. ANALYSIS

A. Liability for Conversion

In Count III of his complaint, Gordon asserts a state law claim for damages against the defendant, alleging the common law tort of conversion.

To assert a claim for conversion, a plaintiff must prove by a preponderance of the evidence (i) the ownership or right to possession of the property at the time of the conversion and (ii) the wrongful exercise of dominion or control by defendant over the plaintiff's property, thus depriving plaintiff of possession.

Airlines Reporting Corp. v. Pishvaian, 155 F.Supp.2d 659, 664 (E.D.Va.2001) (citing Universal C.I.T. Credit Corp. v. Kaplan, 198 Va. 67, 92 S.E.2d 359, 365 (1956)). “The mental state required for conversion is purely and simply a specific intent to appropriate the property. Knowledge that the property belongs to another, or that the appropriation is unauthorized by the owner, is not necessary.” United States v. Stockton, 788 F.2d 210, 216 (4th Cir.1986). “[O]ne may be held liable in conversion even though he reasonably supposed that he had a legal right to the property in question.” Morissette v. United States, 342 U.S. 246, 270 n. 31, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

Gordon's ownership of the vehicle at the time of the alleged conversion is undisputed. It is further undisputed that, in transferringtitle to the vehicle to itself, and then subsequently to a third party, Pete's Auto Service exercised dominion or control over Gordon's property, thus depriving Gordon of possession. Pete's Auto Service suggests, however, that its actions were not wrongful because...