United States District Court, D. Maryland
KENNETH SANDERS, et al.
DESIREE CALLENDER, et al.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
Marlboro Towing/Champion Towing & Services, Inc.
(“Defendant”) filed a motion for summary judgment
on September 4, 2018. (ECF No. 80). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons, the
motion for summary judgment will be denied.
Kenneth Sanders and Paula Webber filed a complaint against a
variety of entities in the Circuit Court for Prince
George's County on April 24, 2017 and the case was
removed to this court on June 22, 2017. (ECF No. 1). The
complaint alleged seven state tort claims and a violation of
42 U.S.C. § 1983 arising out of Plaintiffs' eviction
from their home on May 6, 2014 and the towing of Plaintiff
Sanders' 1994 Ford Ranger from “the main street of
Birchview Drive, Clinton, Maryland 20735” on June 17,
2015. (ECF No. 2, at 16). Plaintiffs' claims of false
imprisonment, negligence, intentional infliction of emotional
distress, assault and battery, and a violation of 42 U.S.C.
§ 1983 were dismissed as to Defendant on January 9,
2018. (ECF No. 59). Remaining are two of Plaintiff
Sanders' claims against Defendant: trespass to chattel
and conversion. Because the events underlying the claims
against Defendant did not arise out of the same transaction
or occurrence as the eviction related events that occurred
more than one year earlier, Plaintiffs' claims against
Defendant were severed from the rest of the complaint on
January 9, 2018. (ECF No. 60). Defendant answered on February
14, 2018, denying all material allegations but conceding that
it “towed a 1994 Ford Ranger on June 17, 2015” at
the request of the Prince George's County Police
Department (“PGCPD”). (ECF No. 61 ¶ 10).
Standard of Review
motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.
See Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 250 (1986). To prevail
on a motion for summary judgment, the moving party generally
bears the burden of showing that there is no genuine dispute
as to any material fact. Liberty Lobby, 477 U.S. at
248-50. A dispute about a material fact is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. at 249.
In undertaking this inquiry, a court must view the facts and
the reasonable inferences drawn therefrom “in the light
most favorable to the party opposing the motion, ”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)(quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)); see also
EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405
(4th Cir. 2005), but a “party cannot create
a genuine dispute of material fact through mere speculation
or compilation of inferences.” Shin v.
Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation
provides numerous pieces of evidence in support of its motion
for summary judgment: (1) the affidavit of Defendant's
manager, Cheryl Ryon (“Exhibit 1”) (ECF No.
80-2); (2) the affidavit of Prince George's County Police
Department tow officer, Sergeant Alfred Michael
(“Exhibit 2”) (ECF No. 80-3); (3) Defendant's
tow slip (“Exhibit 3”) (ECF No. 80-4); (4) Prince
George's County, Md., Code of Ordinances § 26-162
(“the Code”) regarding abandoned vehicles
(“Exhibit 4”) (ECF No. 80-5); (5) § 26-166
of the Code regarding impoundment without prior notice
(“Exhibit 5”) (ECF No. 80-6); (6) § 26-171
of the Code regarding redemption of a vehicle without a
hearing (“Exhibit 6”) (ECF No. 80-7); (7) §
26-169 of the Code regarding impoundment hearings
(“Exhibit 7”) (ECF No. 80-8); (8) § 26-170
of the Code regarding the decision of the hearing officer
(“Exhibit 8”) (ECF No. 80-9); and (9) a
certificate of authority from the PGCPD to dispose of
Plaintiff Sanders' vehicle (“Exhibit 9”) (ECF
No. 80-10). Plaintiff Sanders argues that Defendant's
“proffers are grossly inadmissible under the [Federal
Rules of Evidence] for want of evidence from a percipient
witness thus lacking material relevant evidence, hence the
[motion for summary judgment] is deniably facially.”
(ECF No. 84, at 4). Plaintiff Sanders adds that “[t]he
proffer in support of [Defendant's] motion is
inadmissible, lacking foundation, lacking proof of
genuineness of documents, gross double and triple hearsay and
attorney vouching[.]” (Id., at 6).
Sanders, in effect, argues that the evidence Defendant has
presented in support of its motion is inadmissible under
Fed.R.Civ.P. 56(c)(2), which permits parties to object to
material supporting or disputing a fact if that material
“cannot be presented in a form that would be admissible
in evidence.” “The objection  contemplated by .
. . Rule [56(c)(2)] is not that the material has not been
submitted in admissible form, but that it cannot be.”
Brown v. Siemens Healthcare Diagnostics, Inc., No.
DKC-11-0769, 2012 WL 3136457, at *5 (D.Md. July 31, 2012)
(citations and internal quotation marks omitted); see
also Humphreys & Partners Architects, L.P. v. Lessard
Design, Inc., 790 F.3d 532, 538-39 (4th Cir.
2015) (“The court and the parties have great
flexibility with regard to the evidence that may be used on a
[summary judgment] proceeding. The court may consider
materials that would themselves be admissible at trial, and
the content or substance of otherwise inadmissible materials
where the party submitting the evidence show[s] that it will
be possible to put the information into admissible
form.” (citations and internal quotation marks
it is not clear that Plaintiff Sanders made a proper
objection that “the material cited by [Defendant]
cannot be presented in a form that would be admissible in
evidence.” Fed.R.Civ.P. 56(c)(2). Second, Plaintiff
Sanders makes only bare assertions that the materials
provided by Defendant are inadmissible without explanation as
to why each individual item is ineligible for submission at
trial. Finally, it nevertheless appears that all of the
materials are likely to be admissible at trial. Thus,
Plaintiff Sanders' evidentiary objections are without
merit. Accordingly, all of Defendant's exhibits will be
preliminary matter, Plaintiff Sanders argues that
Defendant's motion for summary judgment must be denied
because the parties have not conducted discovery. (ECF No.
84, at 4). Plaintiff Sanders states that discovery has
“not been engaged or completed” and invokes
Fed.R.Civ.P. 56(d) as support for his argument.
(Id., at 1-3).
summary judgment is inappropriate if “the parties have
not had the opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4thCir. 2011). Rule
56(d) allows the court to deny a motion for summary judgment
or delay ruling on the motion until discovery has occurred if
the “nonmovant shows by affidavit or declaration that,