Mosley v. Alabama Lock & Key Co, Inc. et al

Filing 54

MEMORANDUM OPINION that dfts' 43 and 45 MOTIONS for Summary Judgment are due to be granted and dft's 51 MOTION to Strike is DENIED. Signed by Judge Abdul K Kallon on 3/31/2016. (YMB)

FILED
2016 Mar-31 AM 09:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JABARI MOSLEY,
Plaintiff,
v.
ALABAMA LOCK & KEY CO.,
INC., et al.,
Defendants.

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Civil Action No.
2:10–cv–02817–AKK

MEMORANDUM OPINION
Jabari Mosley brings this suit against Alabama Lock & Key Co., Inc.,
(“ALK”) and the City of Birmingham (“City”) alleging conversion of personal
property. Before the court is ALK’s motion for summary judgment, doc. 43, and
the City’s motion for summary judgment, doc. 45. The motions are briefed and
ripe for review. See docs. 44, 46, 49, and 50. For the reasons explained below, the
court will grant the motions. 1
I. Background
A. Factual Background
The bizarre series of events in this case trace their origin to May 18, 2010,
when Mosley called Ross Spurlock, a locksmith at ALK, to inquire about whether

1

The court also has for consideration ALK’s motion to strike, doc. 51, the affidavit
Mosley submitted in opposition to the motion for summary judgment. Because the affidavit
helped the court to understand Mosley’s contentions in this case, the motion to strike is
DENIED.
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ALK could open a safe for which Mosley represented he had forgotten the
combination.

2:10-cv-2601-AKK, doc. 1 at ¶ 5(a). 2

Based on Spurlock’s

response, Mosley subsequently arrived at ALK with a safe. Id. at ¶ 5(b). When
Spurlock opened the safe “with a crowbar”, doc. 1 at 45, he saw that it contained a
large amount of money packed in seven plastic bags (which was subsequently
inventoried as $894,800 in U.S. currency). Id. at ¶¶ 5(b) & (d). To no surprise,
given the suspicious nature of the scene, Spurlock told Mosley, “Ah, that’s a lot of
cash. . . . We’ve got to call the police, because if this cash is stolen, it’s a crime.”
Doc. 1 at 45. Mosley offered Spurlock one of the seven bags of money as an
enticement to keep quiet. 2:10-cv-2601-AKK, doc. 1 at ¶ 5(b). Spurlock declined
and called the police, id. at ¶ 5(c), probably because the offer to keep a seventh’s
share for simply opening a safe reaffirmed his suspicions that something seemed
amiss.
City of Birmingham police officers arrived at ALK at some point with a
drug detection dog that indicated the presence of drugs in the safe. Id. However,
Mosley maintains that he “did not see any noticeable reaction in the dog.” Doc. 1
at 45.

Shortly thereafter, United States Drug Enforcement Administration

(“DEA”) task-force agents arrived and interviewed Mosley. 2:10-cv-2601-AKK,
doc. 1 at ¶ 5(d). In response to questions from the agents, Mosley made it clear
2

This action originates from three consolidated cases. Unless otherwise noted, reference
to a document number, “Doc.
,” refers to the number assigned to documents in the present
action, 2:10–cv–02817–AKK.
2

that the safe belonged to him and that he had saved the money over a 10-year
period, id., presumably because he had more faith in his memory recall or in the
ability of locksmiths to save him from his memory, than in the nation’s banking
system.
Perhaps because of the positive hit by the drug detection dog, or because the
officers simply refused to believe that Mosley could have accumulated the cash
legally, John Walker, a DEA agent, confiscated the money. Walker left his
business card with Mosley, doc. 1 at 14, and gave Mosley a receipt for the cash
seized, id. at 61. The DEA subsequently sent Mosley written notice of the seizure
by certified mail. Id. at 26, 32, 35, 38, and 52.
B. Procedural History
Two days after the seizure, Mosley filed an in rem action in the Circuit
Court of Jefferson County seeking the return of the allegedly unlawfully seized
$894,800, or in the alternative, a civil action against ALK, the City, and Walker in
his capacity as a DEA officer. 3 Doc. 1 at 10–12. Walker subsequently removed
the action to this court, id. at 1–5, which then substituted the United States as a
defendant in place of Walker and consolidated the action with the forfeiture
proceedings the United States had initiated regarding the $894,800, docs. 8 & 10.
To make matters even more interesting, the DEA executed a search warrant and
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Mosley subsequently filed an amended complaint in this court alleging a new
conversion claim against ALK seeking damages totaling $894,800. Doc. 16.
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seized another $25,000 in U.S. currency from Mosley’s residence, leading to
another action by the United States seeking the forfeiture of this additional amount.
See 2:11-cv-1156-AKK, doc. 1.

The court eventually consolidated the two

forfeiture actions. See 2:10-cv-2601-AKK, docs. 14 & 15.
Nearly four years after Mosley walked into ALK to seek its assistance in
opening the safe, the United States and Mosley settled their dispute, and entered
into a Stipulation of Settlement resolving all issues regarding the forfeiture of the
currency and all claims by Mosley against the United States. Doc. 40 at 3.
Consistent with their agreement, the court entered a Final Order and Judgment of
Forfeiture awarding the United States $176,960 and extinguishing Mosley’s
interest in that $176,960. Doc. 41 at 4. The United States remitted $742,840 to
Mosley. See id. Mosley subsequently filed a Stipulation of Dismissal, dismissing
the United States from all further proceedings, acknowledging “full payment” of
its obligations of the settlement, and with regards to the United States, disclaiming
his interest in the remaining $176,960 of the cash found in the safe. Doc. 52.
Having reached an agreement with the United States, the only remaining issue is
Mosley’s conversion claim against ALK and the City, and Defendants’ contention
that they are entitled to summary judgment.

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II. Legal Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” “Rule
56[] 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, 322 (1986) (alteration in original). The moving party bears the initial burden
of proving the absence of a genuine issue of material fact. Id. at 323. The burden
then shifts to the nonmoving party, who is required to “go beyond the pleadings” to
establish that there is a “genuine issue for trial.” Id. at 324 (citation and internal
quotation marks omitted).

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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
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competent evidence supports that party’s version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party’s favor when that party’s version of
events is supported by insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that the jury could
reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252)).
III. Analysis
As a preliminary matter, the court turns first to Mosley’s contention that the
court should deny summary judgment because Mosley has not had an opportunity
to engage in discovery. Doc. 48 at 1. To succeed on these grounds, Mosley “may
not simply rely on vague assertions that additional discovery will produce needed,
but unspecified, facts, but rather . . . must specifically demonstrate how
postponement of a ruling on the motion will enable [him], by discovery or other
means, to rebut the movant’s showing of the absence of a genuine issue of
fact.” Vitech Am., Inc. v. Gateway, Inc., 149 F. App’x. 860, 861 (11th Cir. 2005)
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(quoting Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843–44
(11th Cir.1989)). Rather than making the necessary showing, Mosley relies solely
on his counsel’s statement that “based upon practicing law in the State of Alabama
for forty years, I am convinced that neither Plaintiff Jabari Mosley nor I can
adequately present to the Court all ‘facts essential to justify’ his opposition to the
motions for summary judgment filed by [the Defendants] until after discovery is
completed.” Doc. 48–2 at 3. Such a contention is precisely the kind of vague
assertion that this Circuit has rejected. See Vitech Am., 149 F. App’x at 861.
Accordingly, in light of the verified complaints the United States filed, 2:10-cv2601-AKK, doc. 1 and 2:11-cv-1156-AKK, doc. 1, and the sworn affidavit Mosley
filed in response to Defendants’ motions for summary judgment, doc. 48-1, the
court will proceed with the merits of the motions without any delay for discovery.
See U.S. v. 3402 53rd Street West, Bradenton, FL, 178 Fed. App’x. 946 (11th Cir.
2006) (affirming grant of summary judgment in an in rem civil forfeiture action
that relied heavily on a sworn affidavit).
To establish a claim for conversion under Alabama Code §6–5–261, 4 there
must be “[1] a wrongful taking or [2] a wrongful detention or interference, or [3]
an illegal assumption of ownership, or [4] an illegal use or misuse of another’s
property.” Edwards v. Prime, Inc., 602 F.3d 1276, 1303–04 (11th Cir. 2010)
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Code of Ala. §6–5–261 states, “Mere possession of a chattel, if without title or
wrongfully, will give a right of action for any interference therewith, except as against the true
owner or the person wrongfully deprived of possession.”
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(citing Covington v. Exxon Co., 551 So. 2d 935, 938 (Ala.1989)). Usually,
conversion consists “either in the appropriation of the thing to the party’s own use
and beneficial enjoyment, or its destruction, or in exercising of dominion over it, in
exclusion or defiance of the plaintiff’s right, or in withholding the possession from
the plaintiff, under a claim of title inconsistent with his own.” Perkins v. City of
Creola, 713 F. Supp. 2d 1326, 1348–49 (S.D. Ala. 2010). Relevant here, Mosley
concedes in his complaint that the seized funds ultimately came to rest in the
possession of DEA Agent Walker. Doc. 1 at 11–12. Nonetheless, Mosley still
maintains that ALK and the City converted his funds because ALK seized the
money, and transferred it to the City, who in turn transferred it to the DEA. See
doc. 1 at 11-12.
A. ALK’s Motion for Summary Judgment
The question of who seized Mosley’s property is a legal one for the court to
decide. See Goolesby v. Koch Farms, LLC, 955 So. 2d 422, 430 (Ala. 2006). As it
relates to ALK, it purportedly seized Mosley’s money when Spurlock, after
opening the safe with a crowbar, refused to give the contents to Mosley and
insisted on calling the police. See docs. 1 at 45; 48-1 at 4. Even if Mosley is
correct that Spurlock’s conduct resulted in a seizure of his property, “the bare
possession of property without some wrongful act in the acquisition of possession,
or its detention, and without illegal assumption of ownership or illegal user or
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misuser, is not conversion.” Perkins, 713 F. Supp. 2d at 1349. Rather, when
personal property is withheld from the true owner for a reasonable time, to enable
the entity in possession to determine who has the right to possession, the detention
is reasonable, and does not rise to a conversion. See Scott Paper Co. v. Novay
Cherry Barge Service, Inc., 265 So. 2d 150 (Ala. Civ. App. 1972); Bolling v.
Kirby, 90 Ala. 215, 7 So. 914 (1890); Gabrielson v. Healthcorp of Eufaula, Inc.,
628 So. 2d 411, 414 (Ala. 1993) (A limited or qualified refusal to surrender the
property is not per se a conversion if it is reasonable and in good faith).
Based on the complaint and Mosley’s affidavits, docs. 1 at 45 and 48-1 at 4˗
5, Spurlock made a qualified refusal to return the property after finding almost
$900,000 in cash, packed in Ziploc bags, in a locked safe to which Mosley did not
know the combination and which Spurlock opened with a crowbar. These facts are
sufficient for Spurlock to have a reasonable basis to suspect illegal activity and to
be apprehensive about his own role in opening the safe, especially in light of the
one-seventh share Spurlock claims Mosley offered him to entice Spurlock to
refrain from calling the police. These facts unequivocally fall within the “rule that
where chattels are withheld from the true owner or his agent for a reasonable time
after demand, for the purpose of enabling the holder to determine who has the right
to possession, the detention is reasonable and does not constitute conversion.”
Scott, 265 So. 2d at 153. Therefore, because ALK made a qualified refusal, and
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Mosley has not offered a valid reason for discovery and has thus failed to meet his
burden of going beyond the pleadings, and based on Mosley’s own affidavits, 5 the
court grants ALK’s motion.
B. City of Birmingham’s Motion for Summary Judgment
The City’s motion for summary judgment is due to be granted for the same
reasons, i.e. the City never possessed Mosley’s property and had sufficient
reasonable apprehension considering the circumstances to contact the DEA.
Moreover, even if the City’s police officers’ conduct constituted a seizure, no
liability exists because the officers had the authority to do so under Alabama law:
“seizure without process may be made if . . . [t]he state, county or municipal law
enforcement agency has probable cause to believe that the property was used or is
intended to be used in violation of this chapter.” Ala. Code §20–2–93(b)(4).
Probable cause existed here because of the suspicious nature of the entire episode,
including, in part, the alert for the presence of drugs in the safe by the drugdetection dog. See Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (quoting
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Mosley raises two arguments in opposition to Defendants’ motions. First, Mosley
contends that he had no obligation to make a demand for his property in order to retain his
conversion claim. Doc. 48 at 6 (citing Horne v. TGM Associates, L.P., 56 So. 3d 615, 629 (Ala.
2010) (held that because plaintiffs presented substantial evidence that the defendants wrongfully
took dominion and control of their personal property, plaintiffs were not required to demand its
return in order to maintain their conversion claim). This contention is unavailing because the
defendants are not challenging the conversion claim based on Mosley’s failure to demand his
property. For the same reasons, the contention that the conversion claim does not fail because
the seized property was “specific bills or notes squirrelled away in . . . bags,” doc. 48 at 4
(quoting U.S. Fidelity and Gauranty Co. v. Bass, 619 F.2d 1057, 1060 (5th Cir. 1980), also
misses the mark.
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Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998) (“Arguable
probable cause exists ‘where reasonable officers in the same circumstances and
possessing the same knowledge as the [officer] could have believed that probable
cause existed . . . .’”). 6 All these facts enabled the police officers to withhold
Mosley’s property or seize it without process under the suspicion that it was
“furnished or intended to be furnished by any person in exchange for a controlled
substance in violation of any law of this state.”

Ala. Code §20-2-93(a)(4).

Therefore, Mosley’s contention that Code of Ala. §20–2–93 “afforded none of the
Defendants authority to seize Plaintiff’s personal property because none of its
conditions, found at Code of Ala., §20-2-93(b)(1)-(4) were met and none have
since been met,” doc. 1 at 11, is unavailing.
In sum, because Alabama law authorized the police officers’ actions and for
the same reasons the court discussed regarding ALK’s motion, the City’s motion is
due to be granted.

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The court recognizes that Mosley challenges the positive hit for drug residue by the
dog. See docs. 1 at 45 (Mosley’s statement that he “did not see any noticeable reaction in the
dog”), and 48-1 at 7-8 (Mosley’s reliance on expert contention that 90% of currency in
circulation has traces of cocaine). However, whether an officers actions are reasonable are
judged from the perspective of the officer. See Terrell v. Smith, 668 F.3d 1244, 1251 (11th Cir.
2012) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989) (“The Supreme Court has
reminded us that [an] officer’s conduct ‘must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.’”)).
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IV. Conclusion
For the reasons stated above, Defendants’ motions for summary
judgment are granted and ALK’s motion to strike is denied. The court will
enter a separate order consistent with this opinion.
DONE the 31st day of March, 2016.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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