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UNITED STATES DISTRICT COURT Civil Action No. 3:00-CV-693 JOHN D. LEE, II vs. CITY OF KNOXVILLE, TENNESSEE MAYOR VICTOR ASHE CHIEF OF POLICE PHIL KEITH OFFICER RYAN FLORES SUTHERLAND AVENUE WRECKER SERVICE, INC. Defendants CLASS ACTION COMPLAINT The above named ndividual and representative plaintiff, on behalf of himself and all others similarly situated, state: NATURE OF THE CASE 1. The City of Knoxville through its employees have and will continue to enforce certain city towing ordinances which were declared unconstitutional by Judge Robert Taylor in Hale v Tyree, 491 F.Supp. 622, E.D.Tenn., Nov 15, 1979, or will continue to deny due process to individuals whose automobiles the City has seized or will seize. Plaintiff John D. Lee, II has suffered the deprivation of an property, i.e., an automobile, without due process in violation of Judge Taylor's 1979 order, in violation of 42 U.S.C. 1983, the Fourteenth Amendment, and state law over which this court has pendent jurisdiction. This case, in part, seeks a declaratory judgment and an injunction on behalf of a class of motorists against the City of Knoxville, Honorable Mayor of Knoxville, the Honorable Police Chief of the City of Knoxville on terms similar to the Hale v. Tyree. 2. Plaintiff also seeks damages against the City defendants for deprivation of property in violation of the Fourteenth Amendment and against Sutherland Avenue Wrecker Service, Inc. for the tort of conversion, negligent bailment, and for unjust enrichment. Plaintiff John D. Lee, II seeks punitive damages from Sutherland Wrecker and from Officer Flores. JURISDICTION 3. This court has jurisdiction under 28 U.S.C. 1331 and 1343(3) and (4) for redress under 42 U.S.C. 1983 et seq for deprivation of rights, privileges, or immunities secured by the constitution and laws of the United States. The court also has supplemental jurisdiction over any state law aspects of the questions here presented under 28 U.S.C. 1347, i.e., the court also has pendant jurisdiction over the claims against Sutherland Avenue Wrecker Service, Inc. |
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PARTIES 4. Plaintiff John D. Lee, II lived at 422 South Gay Street, Knoxville, TN 37902, within the city limits of Knoxville, and owned and parked an automobile near his home. He has since moved to another location within Knox County, Tennessee. 5. Defendant City of Knoxville is an incorporated city in the State of Tennessee. Defendant Mayor Victor Ashe is the mayor and agent of the City of Knoxville. Defendants Keith and Flores are employees and/or police officers of the City of Knoxville. 6. Defendant Sutherland Avenue Wrecker Service, Inc. is a corporation offering towing services, and towed plaintiff's automobile upon request by the City. CLASS 7. The named plaintiff bring the action on his own behalf and, pursuant to Rule 23(a) and (b)(2) and (b)(3) of the Federal Rules of Civil Procedure, on behalf of all other persons similarly situated. The class is comprised of all persons who have had in the past year or will have an automobile towed in the future.Some of such persons have had their constitutional rights violated by the City. The rights include the right to be notified of their rights by means of the Motorists Bill of Rights. 8. The requirements of Rule 23 are met in that: (a) The class is so numerous that joinder of all members is impracticable. The exact number of persons in the class is not presently known to plaintiff, but can be adduced through discovery. (b) The common issue of fact with regard to the class is whether defendant City has towed cars without due process of law. The issue of law common to the class is the taking of property without due process and the continued application of an unconstitutional ordinance, as found in Hale v Tyree, 491 F.Supp. 622, E.D.Tenn., Nov 15, 1979. (c) The claims of the representative party are typical of the claims of the class; the named plaintiff's interests are not antagonistic to the claims of other members, but in fact, his action if successful will protect the rights and interests of other members of the class. (d) The representative party will fairly and adequately protect the interest of the class. (e) Defendant City has by its policy and practice acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole. (f) Common questions of law and fact as to the legality of the City's towing policy predominate over questions of computation of claims affecting individual members, which can be easily determined by reference to City records of individual towing victims. A class action is the superior and the only available method for the fair and efficient adjudication of the controversy. PLAINTIFFS Plaintiff John D. Lee, II as proposed class representative has had a car towed upon request and by color of law by the City of Knoxville. Upon information and belief, no plaintiff, including the representative plaintiff, has been informed of the their rights as required by City of Knoxville Ordinance. City Ordinance No. O-260-00, or Sec. 26-227. Such ordinance requires that all such persons receive a Motorist Bill of Rights. This action is brought and may properly be maintained as a class action pursuant to the provisions of Federal Rules of Civil Procedure. This action satisfies the numerosity, commonality, typicality, adequacy, superiority and predominancy requirements of those provisions. Plaintiff proposes the Plaintiffs' class definition as follows: (a) All persons who have had their vehicles towed by order of the City of Knoxville, in the past year; and (b) All persons hereinafter who will have their vehicles towed by order of the City of Knoxville in the future. 10. Excluded from the Class are Defendants herein, any entity in which any of the Defendants has a controlling interest, any officers, directors or employees of any of the Defendants, and legal representatives, heirs, successors, and assignees of any of the Defendants. COMMON FACTS 11. Plaintiffs have had or will have their cars towed by order of the City of Knoxville. 12. Upon information and belief, neither plaintiff nor any other person whose car has been towed has received a Motorists' Bill of Rights. City Ordinance No. O-260-00, or Sec. 26-227. Definitions, states: Motorists' Bill of Rights means a "hand-bill" which certificate holders shall distribute to each vehicle owner or operator being towed, and which contains information relating to the laws applicable to the wrecker industry. The class of plaintiffs can be notified by means of their addresses required to be maintained under city ordinance Sec. 26-279. Daily log sheet; and/or Sec. 26-280. Invoice documentation. 14. Upon information and belief, neither plaintiff nor any person whose car has been towed has received a hearing as required by the laws of the United States or under local ordinance, Sec. 26-289. Enforcement generally; wrecker inspector authority, and duties of the department, which states: (c) Hearing. At the hearing before the wrecker service commission, the wrecker inspector, or other designee of the chief of police, shall present to the commission evidence of alleged violation(s). The certificate holder or its representative shall be afforded an opportunity to defend and to present evidence on its own behalf. A representative of the law department shall preside over the hearing as hearing officer. The commission, at its discretion, may adopt rules of procedure for conduct of the hearing. At the conclusion of the hearing, the commission, by majority vote, shall determine whether there has occurred a violation of this article and the appropriate disposition thereof. Upon information and belief, the defendants Flores and Sutherland violated Federal Law and local ordinance by towing a legally parked car without ticketing such car as follows: Sec. 17-76. Citation on illegally parked vehicle. Whenever any motor vehicle without a driver is found parked, standing or stopped in violation of any of the restrictions imposed by ordinance of the city or by state law, the officer finding such vehicle shall take its registration number and may take any other information displayed on the vehicle which may identify its user, and shall conspicuously affix to such vehicle a parking citation for the driver to answer to the charge against him within five (5) days during the hours and at a place specified in the citation. Sec. 17-98. Vehicles subject to impoundment. Members of the police department shall have the authority to impound any vehicle, by towing such vehicle to the vehicle pound, under the following circumstances:
(6) At any place where official signs or markings designate a no parking or tow away zone. Sec. 17-99. Notice to registered owner. (a) After a vehicle has remained unclaimed in the pound for forty-eight (48) hours, the officer in charge of the pound shall send a notice by certified mail, return receipt requested, to the registered owner of the impounded vehicle. The officer shall determine the name and address of the registered owner from state registration records using the vehicle's license plate number and vehicle identification number. b) The officer in charge shall deliver the same notice to owners or authorized agents who appear at the impoundment lot to claim a vehicle. The owner or authorized agent shall acknowledge in writing receipt of the notice. If any person required by this section to sign a notice refuses to do so, the officer in charge shall note this fact in writing, which shall constitute prima facie evidence of delivery of notice as required by this section. Sec. 17-101. Release of vehicle from impoundment. (a) The owner of a vehicle impounded pursuant to this division or his authorized agent may make application to take possession of the vehicle and remove such vehicle from the vehicle pound upon presentation of an application for certificate of title or a certificate of title, and upon payment of the cost of towing the vehicle and all charges which may have accrued for the storage of the vehicle. However, payment of towing and storage fees shall not relieve the owner of responsibility for the violation. (b) Any owner who requests a hearing pursuant to section 17-102 may obtain the release of his vehicle from the pound without prepayment of any towing or storage costs; provided, however, as security for the impoundment costs, he shall either make a cash deposit or execute a bond with one (1) or more sureties as approved by the director of public safety, payable to the city, in a sum equal to the total impoundment fees at the time of release of the vehicle. Upon information and belief, plaintiffs assert that City ordinance Sec. 17-102 violates Federal Law and Judge Taylor's order in Hale because the ordinance requires payment of a bond or deposit BEFORE the hearing. Judge Taylor held that the Ordinance is unconstitutional insofar as it does not provide for a hearing by a neutral official before payment of towing and storage fees, and insofar as it provides for summary seizure of abandoned vehicles which are not blocking traffic. It is a proper Ordinance, however, insofar as it provides for removal of vehicles which impede the flow of traffic. The unconstitutional ordinance is Sec. 17-102. Hearing: (a) An owner whose vehicle has been towed and impounded pursuant to this division shall have an opportunity for a hearing in municipal court on the parking or traffic violation which resulted in the impoundment. (b) If the court enters a dismissal as to the violation, the court may order the release of the impounded vehicle to the owner, the return of the cash deposit to the owner, or the release of the bond, whichever is applicable. 17. On these facts Plaintiffs seek a declaratory judgment and injunctive relief, claiming that the Ordinance is unconstitutional in that it: (1) Does not provide for prior notice or opportunity for hearing before seizure of a vehicle. (2) Requires payment of a deposit or bond for towing and storage fees without opportunity for a hearing before an owner can recover his impounded vehicle. 18. On these facts, Plaintiffs seek a declaratory judgment and injunctive relief claiming that the policy and practice of the City of Knoxville does not in any event provide for any type of hearing before an impartial decision maker on the merits of the violation giving rise to the tow. |
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INDIVIDUAL FACTS The car was not blocking the 2-lane "alley" and was safely positioned in plaintiff's commercial loading zone along Fire Street, under or next to the Promenade Garage near the corner of State Street and Union Avenue. Plaintiff had routinely parked in that location, as many others continue to park their cars, and had never been ticketed or warned that doing so violated any laws. On one occasion the city compensated plaintiff approximately $120 after a city vehicle caused minor damage plaintiff's car parked legally in the exact place from which the car was towed. 20. At about 3 A.M., early on a Saturday morning, January 15, 2000, Defendants Flores, "John Doe", employees of Sutherland Avenue Wrecker Service, Inc., and others unknown to plaintiff John D. Lee, II conspired to unlawfully take plaintiff's car. Plaintiff asserts that the causes of action against these unknown "John Does" are tolled because plaintiff cannot through reasonable diligence determine the identity of such persons. A review of the 911 Dispatch tapes reveal that Knoxville Police Department Officer Ryan Flores was ordered to look specifically at plaintiff's car, a 1990 Honda Accord, despite other cars being parked in the alley at that time. 22. Officer Flores declared publicly via his recorded radio discussion at about 3 A.M. on Saturday morning, January 15, 2000, as follows: There's a car in the alley but it's not blocking anything. You can pass all the way through there. I was down there. There's a guy in his little orange service truck and he advised there was no problem. I'll be back around. 23. Upon making these statements upon the publicly accessible channel, Officer Flores was told to communicate with dispatch via a private, non public, "land line" after which he returned to plaintiff's car and assisted in the tow by Defendant Sutherland Avenue Wrecker Service. Approximately thirteen (13) hours later, after plaintiff realized his car was missing, plaintiff called KPD, Sutherland Avenue Wrecker, Cedar Bluff Towing and KPD Impound Lot, all of whom denied that a Honda Accord had been towed. Plaintiff reported his car stolen (KPD report # 000000002925). On February 23, 2000, Sutherland Avenue Wrecker sent plaintiff a letter alleging that $753.62 was owed for towing, and was increasing at $100/week. This communication was the first communication confirming that Plaintiff's car had been towed. Initially, Sutherland Avenue Wrecker would not allow plaintiff to see his car. In March, plaintiffs finally got to see his car, and at that time realized that the car stereo and CD player were stolen. There was also theft of other personal items. 28. When asked where plaintiff's stereo and CD player was, a Sutherland employee stated that it was all missing before they got to tow it. Officer Flores's Tow-In Report (KPD Vehicle Impoundment Form # 00-002147) noted some minor pre-existing damage to the steering wheel, but did not mention anything about a missing stereo. The missing stereo is now much more noticeable than the minor damage to the steering wheel. Plaintiff filed a stolen stereo report (KPD # 000000019098). No one at KPD would enforce the law against Sutherland, nor will anyone at KPD investigate these allegations of stolen property. CLAIMS FOR RELIEF FIRST CAUSE OF ACTION (SUBSTANTIVE DUE PROCESS VIOLATION) 31. Plaintiffs reallege paragraphs 1 through 30 of this complaint. 33. On these facts Plaintiffs seek a declaratory judgment and injunctive relief, claiming that the Ordinance is unconstitutional in that it: (1) Does not provide for prior notice or opportunity for hearing before seizure of a vehicle. (2) Requires payment of a deposit or bond for towing and storage fees without opportunity for a hearing before an owner can recover his impounded vehicle. 34. On these facts, Plaintiffs seek a declaratory judgment and injunctive relief claiming that the policy and practice of the City of Knoxville does not in any event provide for any type of hearing before an impartial decision maker on the merits of the violation giving rise to the tow. SECOND CAUSE OF ACTION (Unjust Enrichment) 35. Plaintiffs reallege paragraphs 1 through 30 of this complaint. 36.Plaintiff John D. Lee, II alleges that Sutherland Avenue Wrecker was unjustly enriched by towing plaintiff's vehicle and by taking various items of personal property belonging to plaintiff. 37. Plaintiff seeks all damages related to this unjust enrichment including punitive damages. |
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THIRD CAUSE OF ACTION (Conversion) 38. Plaintiffs reallege paragraphs 1 through 30 of this Complaint. 39.Plaintiff alleges that Officer Flores and Sutherland Avenue Wrecker engaged in a conspiracy to convert illegally plaintiffs' property under color of law. 40. Plaintiff seeks all damages related to this conversion including punitive damages. PRAYER FOR RELIEF Plaintiffs respectfully request that this court: (a) certify this action to proceed as a class action under Rule 23;(b) declare the challenged practice of defendant City to be in violation of the Plaintiffs' Constitutional Rights; (b) require defendant City, the Mayor, and the Chief of Police, and their successors to furnish all owners of vehicles towed in the past year or in the future with a Motorist Bill of Rights in accordance with Knoxville Ordinances and Federal Constitutional law so that all such persons known their rights and have the ability to act upon those rights; (c) require defendant City to refund to plaintiff and applicable members of their class all fines, towing charges, and storage costs previously collected; (d) require defendants Flores and Sutherland to pay all damages to plaintiff John D. Lee, II related to the unjust enrichment and conversion, and to pay punitive damages; (e) award plaintiffs their costs and attorney fees pursuant to 42 U.S.C. 1988. Respectfully submitted: David C. Lee, BPR # 015217 Address: David C. Lee, TN Bar # 015217 |