Haverstick Enterprises v. Financial Fed. Credit

• Decision Date: 10 September 1992
• Docket Number: No. 91-76874.,91-76874.
• Citation: 803 F. Supp. 1251
• Parties: HAVERSTICK ENTERPRISES, INC., d/b/a North American Equipment Co., James E. Haverstick, and Glenn Belcher, Plaintiffs, v. FINANCIAL FEDERAL CREDIT, INC., Thomas Fahl, City of Romulus, City of Romulus Police Department, and John Doe, Defendants.
• Court: U.S. District Court — Western District of Michigan

803 F. Supp. 1251

HAVERSTICK ENTERPRISES, INC., d/b/a North American Equipment Co., James E. Haverstick, and Glenn Belcher, Plaintiffs, v. FINANCIAL FEDERAL CREDIT, INC., Thomas Fahl, City of Romulus, City of Romulus Police Department, and John Doe, Defendants.

No. 91-76874.

United States District Court, E.D. Michigan, S.D.

September 10, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Peter B. Bundarin, Canton, Mich., for plaintiffs.

Sheryl L. Toby, Detroit, Mich., Edward E. Salah, Livonia, Mich., for defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

EDMUNDS, District Judge.

This matter has come before the Court at a hearing on September 2, 1992 upon the motion to dismiss and/or for summary judgment of Defendants the City of Romulus, the City of Romulus Police Department, and Officer John Doe. This is a civil rights action arising out of Defendant Financial Federal Credit's repossession of a wrecker from Plaintiffs Haverstick Enterprises. Plaintiffs include the following: Haverstick Enterprises Inc., d/b/a North American Equipment Co.; James Haverstick (president of Haverstick Enterprises, Inc.) and Glenn Belcher (employee of Haverstick Enterprises). Defendants include: Financial Federal Credit, Inc.; Thomas Fahl (sales manager for Financial Federal); City of Romulus, City of Romulus Police Department and John Doe police officer.

The City of Romulus and the City of Romulus Police Department now move to dismiss and/or for summary judgment. The police officer originally named as John Doe has now been identified as John Hlinak. While not set forth as a written motion, Plaintiffs impliedly move to amend their complaint to name Officer John Hlinak in place of John Doe. For the reasons stated below, the Court hereby grants Defendants' motion as to all of Plaintiffs' federal law claims, and hereby denies Plaintiffs' motion to amend.

I. Facts

Haverstick Enterprises purchased a wrecker from a truck dealership, and Financial Federal financed the purchase. When Haverstick defaulted on the loan, Financial Federal decided to repossess the wrecker. Under Michigan law, a secured creditor may repossess collateral if the repossession can be achieved without a breach of the peace. Mich. Comp. Laws Ann. § 440.9503 (West 1967). Financial Federal requested that the Romulus Police Department send a policeman on "civil standby" to maintain the peace during the repossession. Thus, Officer John Hlinak attended the repossession with representatives of the creditor, Thomas Fahl and another Financial Federal employee.

Plaintiff Glenn Belcher, a Haverstick Enterprises employee, was attending the compound where the wrecker was located when the repossession took place. When Officer Hlinak, Fahl and the other Financial Federal employees entered the compound, Belcher locked the gate behind them to prevent the repossession. Fahl drove the wrecker through the gate.

Glenn Belcher alleges that he attempted to get in his car to follow the wrecker and prevent the repossession. He claims that Officer Hlinak pushed him in the chest, told him he was "under arrest" and kept his driver's license in his pocket until the wrecker was out of sight.¹ Then the Officer left. Belcher was never searched or charged. He was not prevented from leaving. Officer Hlinak simply inspected his license and prevented him from entering his car.

As a result of the foregoing, Plaintiffs have brought this suit alleging various federal and state law claims as follows:

Count I Michigan Consumer Protection Act

Count II Conspiracy violations: equal protection and due process under Michigan law and under the Fifth and Fourteenth Amendments, constituting a violation of 42 U.S.C. §§ 1985(3) and 1986

Count III Trespass

Count IV Conversion of Chattel

Count V Michigan Motor Vehicle Sales Finance Act

Count VI Constitutional and Civil Rights Violations: Due process and equal protection under the Fifth and Fourteenth Amendments, constituting a violation of 42 U.S.C. § 1983

Count VII False Arrest and Imprisonment

Count VIII Assault and Battery

Thus, Plaintiffs' federal claims are those under 42 U.S.C. §§ 1983, 1985(3) and 1986 for violations of equal protection and due process rights under the Fifth and Fourteenth Amendments set forth in Counts II and VI of the Complaint.

II. Standard for Dismissal for Failure to State a Claim

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint. Elliot Co., Inc. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176 (6th Cir.1975). Assuming all allegations are true in a light most favorable to plaintiff, the court must determine whether the complaint states a valid claim for relief. Although Defendants' motion specifies that it is a motion to dismiss, the Court notes that it is more properly a motion for judgment on the pleadings because Defendants have already answered the Complaint. Fed.R.Civ.Pro. 12(b)(6), 12(c), & 12(h)(2). In any event, a motion for judgment on the pleadings is governed by the same standard as a motion to dismiss. Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.1989).

III. Standard for Summary Judgment

Defendants have moved alternatively for summary judgment. In considering a motion for summary judgment, the Court may grant the motion only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As the Supreme Court ruled in Celotex, "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the allegations of the complaint in the light most favorable to the non-moving party. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984).

IV. Analysis

A. City Of Romulus Police Department

This case must be dismissed against the City of Romulus Police Department because the police department is not a legal entity against whom a suit can be directed. Moomey v. City of Holland, 490 F.Supp. 188 (W.D.Mich.1980) (police department is merely creature of the city under Mich. Comp. Laws Ann. § 92.1 (West 1991); city is real party in interest). See Michonski v. City of Detroit, 162 Mich.App. 485, 413 N.W.2d 438 (1987) (public lighting department is not separate legal entity against whom tort action may be brought). Thus, Defendants' motion to dismiss this suit against the City of Romulus Police Department is granted.

B. City Of Romulus

In order to state a claim against a municipality under section 1983, a plaintiff must show that the municipality itself, through custom or policy, caused the alleged constitutional violation. Monell v. Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). There are two requirements for liability based on custom: (1) the custom must be attributable to the city through actual or constructive knowledge on the part of policymaking officials; and (2) the custom must have been the cause of and the moving force behind the constitutional deprivation. Respondeat superior liability does not give rise to a section 1983 claim. Monell, 436 U.S. at 692-94, 98 S.Ct. at 2036-37.

In an action alleging municipal liability, the plaintiff must plead the facts upon which he bases his claim; mere conclusory allegations are insufficient. Haas v. Berrien C'nty Sheriff's Dept., 658 F.Supp. 877, 879-80 (W.D.Mich.1987); Fecteau v. Unknown Officers & Agents of Clinton Twp., 596 F.Supp. 580, 582-83 (E.D.Mich.1984). Further, where a municipality has no custom, plan, or scheme to provide official assistance to aid in repossession by private parties, there can be no liability on the part of the municipality. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 509 n. 1 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980).

In this case, Plaintiffs have made merely conclusory allegations that the City of Romulus was grossly negligent in failing to train, supervise, and discipline its police. See paragraphs 60 and 94 of the Complaint. Such allegations fail to state a claim against the City of Romulus. Thus, the Complaint is dismissed against the City.

C. Motion To Amend To Add Officer John Hlinak

Under Federal Rule of Civil Procedure 15(a), leave to amend a complaint shall be freely given within the discretion of the trial court. However, a motion to amend a complaint may be denied if the motion is brought in bad faith or for dilatory purposes or if granting the motion would result in undue delay or prejudice to the opposing party or would be futile. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Marx v. Centran, 747 F.2d 1536, 1551 (6th Cir.1984). In this case, permitting Plaintiffs to amend their complaint to name Officer John Hlinak in place of the John Doe would be futile. Plaintiffs do not have any viable federal claims against Officer Hlinak.

1. Deprivation Of Property Without Due Process

In order to state a claim under section 1983, a plaintiff must show that the defendant, acting under color of state law, deprived plaintiff of a right secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The main issue presented by Defendants' motion is whether Officer Hlinak, under color of state law, deprived Haverstick Enterprises of its property without due process of law, and if so, whether Officer Hlinak is immune from liability.

A debtor has a right to minimal due process (notice and opportunity to be heard)...