Cohen v. Riverside Parking, Inc. et al

Filing 18

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 1/9/2015; re 7 MOTION for Summary Judgment filed by Dave's Towing Service, Inc. ; an appropriate order shall issuecc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-00312-TBR

ALANA COHEN

Plaintiff,

v.
DAVE’S TOWING SERVICE, INC.

Defendant.

MEMORANDUM OPINION
This matter comes before the Court upon the Motion for Summary Judgment of Defendant
Dave’s Towing Service, Inc. (“Dave’s”). (Docket No. 7.) Plaintiff Alana Cohen has responded. (Docket
No. 10.) Dave’s has submitted no reply, and the time for doing so has elapsed. Fully briefed, this matter
stands ripe for adjudication. For the reasons set forth below, Dave’s motion will be DENIED.
Factual Background
On May 14, 2013, Cohen paid $7.00 to park in a private lot in downtown Louisville, Kentucky.
When she returned, she discovered that her vehicle had been towed at the direction of Riverside, the lot’s
owner. Cohen attempted to retrieve her vehicle from Dave’s, a Louisville towing service. Dave’s
charged Cohen $142.00, which she says exceeds the statutory limits. Although local ordinances confine
Dave’s to charging $107.00, Cohen alleges that Dave’s charged her an excess $35.00 for what it
characterized as a “dolly fee,” despite the fact that no dolly was used to transport her vehicle. Moreover,
according to Cohen, Dave’s required Cohen to remit $800.00 to Riverside for unpaid “tickets” issued
when she allegedly failed to pay an advance parking fee on previous occasions. She alleges that Dave’s
would release her vehicle only after she satisfied these payments and Riverside granted her a “release.”
Cohen then filed this lawsuit in Jefferson Circuit Court on May 22, 2013, alleging claims against
both Dave’s and Riverside Parking, Inc. (“Riverside”). (Docket No. 1-1.) On March 14, 2014, she filed

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an Amended Complaint. She alleges that her circumstances are not unique, but that Dave’s routinely
cooperates with Riverside to collect unauthorized fees on Riverside’s behalf. She thus reasons that
Dave’s operates as a debt collector for the private parking lot, causing consumers to pay substantially
more than they actually owe in order to recover their vehicles.
On April 11, 2014, Riverside removed the case to this Court on the basis of federal question
jurisdiction pursuant to 28 U.S.C. § 1331. Riverside has since been dismissed from this lawsuit, (see
Docket No. 5), leaving seven counts pending against Dave’s. Her claims against Dave’s allege violation
of various Louisville Metro Ordinances, fraud, and the Fair Debt Collections Practices Act, theft, or
conversion. She seeks class certification, as well as monetary damages and injunctive relief.
Legal Standard
Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on
file, and any affidavits show “that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether summary
judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against
the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact.”
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing
the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d
795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of
his position; he must present evidence on which the trier of fact could reasonably find for him. See id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to
defeat a motion for summary judgment: “[T]he mere existence of a colorable factual dispute will not
defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an
issue of material fact must exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys.

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Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition
Corp., 681 F.3d 312 (6th Cir. 2012).
Analysis
I.

Fair Debt Collection Practices Act
Dave’s asserts a number of grounds for summary judgment in its motion. Its first argument

challenges this Court’s jurisdiction: Dave’s argues that Cohen’s claims fall below the $75,000 amountin-controversy requirement established in 28 U.S.C. § 1332(a). However, the company misperceives the
basis of federal jurisdiction in this case. Because Cohen’s claim is not based upon diversity, the amount
in controversy is of no moment; instead, her cause of action includes a federal question. Cohen asserts
that Dave’s violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C § 1692—a federal
statute. Accordingly, because district courts may exercise jurisdiction over “all civil actions arising under
the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, Cohen’s complaint is properly
raised in federal court.
Having acknowledged the fact of Cohen’s FDCPA claim, the Court now turns to its substance.
Congress enacted this consumer protection statute “to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are
not competitively disadvantaged, and to promote consistent State action to protect consumers against debt
collection abuses.” 15 U.S.C. § 1692(e). The legislation regulates various aspects of the business of debt
collection. See generally 15 U.S.C. §§ 1692b-1692e. Therefore, Dave’s liability under the FDCPA
hinges upon whether it may be considered a “debt collector” as defined by the statute. See Aubert v.
American General Finance, Inc., 137 F.3d 976, 980 (7th Cir. 1998) (affirming district court’s award of
summary judgment to credit card issuer and affiliate because neither were debt collectors under the
FDCPA).

The FDCPA, in relevant part, defines a “debt collector” as “any person who uses any

instrumentality of interstate commerce or the mails in any business the principal purpose of which is the

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collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed
or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6).
Count Ten of Cohen’s Amended Complaint asserts that Dave’s alleged practice of refusing to
release a towed vehicle until its owner satisfies certain debts that she purportedly owes, it acts as a debt
collector for purposes of the FDCPA. (Docket No. 1-3 at 8-9.) Dave’s rejects the notion that it acts as a
“debt collector,” insisting that the company does not regularly collect or attempt to collect the debts
contemplated by the statute. (Docket No. 7-1.) Neither party presents evidence beyond its own selfserving assertions, nor does either offer case law supporting its position. The Court requires more
comprehensive and thorough argument to resolve this question. Given the limited nature of the parties’
arguments, and viewing the facts in the light most favorable to Cohen, the Court concludes that an award
of summary judgment would be premature at this stage.1
II.

Remaining claims
Cohen’s remaining claims assert that Dave’s committed conversion, violated the Kentucky

Consumer Protection Act, and failed to abide by various Louisville Metro Ordinances governing the
towing of vehicles. (Docket No. 1-3.) Dave’s has moved for summary judgment on each of these claims.
(Docket No. 7.) The Court will deny Dave’s motion at this stage, as it is unwilling to rely upon the scant
arguments before it: Dave’s two-page memorandum in support of its motion provides largely conclusory
arguments, and the company failed to submit a reply to Cohen’s response brief.
Moreover, the bulk of Cohen’s response addresses the alleged violations of Louisville ordinances.
(Docket No. 10.) As stated above, however, Cohen’s single federal claim asserts that Dave’s violated the
FDCPA. The Court now makes no judgments as to the substance of Cohen’s allegations at this stage, and

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In addition, the president of Dave’s avers that the company did not use any instrumentality of interstate commerce
or the mails to help Riverside collect any debt owed to it. (See Docket No. 7-6, Affidavit of David Jones.) By way
of rebuttal, Cohen insists that Dave’s operated a tow truck, drove it upon various roadways, and called her on a
telephone—all of which operate in or constitute instrumentalities of interstate commerce. The Court must agree.

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more developed arguments may indicate that Dave’s is entitled to summary judgment on the FDCPA
claim. Should Dave’s motion for summary judgment on the federal count succeed, the Court may
exercise supplemental jurisdiction over the remaining state and local claims pursuant to 28 U.S.C. §
1367(a) only if the “interests of judicial economy and the avoidance of multiplicity of litigation”
outweigh the need to avoid “needlessly deciding state law issues.” Harper v. AutoAlliance Int’l, Inc., 392
F.3d 195, 211 (6th Cir. 2004). Generally, when “the federal claims are dismissed before trial . . . the state
claims should be dismissed as well.” Id. at 210 (internal quotation marks omitted). Bearing in mind the
undetermined status of the FDCPA claim and the pending discovery disputes, the Court will refrain from
addressing the issues of state and local law at this time.
CONCLUSION AND ORDER
Therefore, for the reasons set forth above, the Court will DENY the Motion for Summary
Judgment of Defendant Dave’s Towing Service, Inc. (“Dave’s”). (Docket No. 7.) An appropriate Order
will issue concurrently with this Memorandum Opinion.

January 9, 2015

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