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Sanders v. Callender

United States District Court, D. Maryland

August 6, 2019

KENNETH SANDERS, et al.
v.
DESIREE CALLENDER, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Defendant 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.

         I. Background [1]

         Plaintiffs 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).

         II. Standard of Review

         A 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 omitted).

         III. Analysis

         A. Defendant's Exhibits

         Defendant 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).

         Plaintiff 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 omitted)).

         First, 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 considered.

         B. Rule 56(d)

         As a 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).

         Ordinarily, 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, ...


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