HVT, Inc. v. Port Authority of New York and New Jersey
Filing
78
ORDER ADOPTING REPORT AND RECOMMENDATION. For the reasons set forth in the attached Memorandum and Order, the Court adopts the Report and Recommendation and grants in part the parties' proposed 69 and 70 remedies. The Court approves as sati sfying due process the following: (1) within five business days of a vehicle seizure, the Port Authority Police Department must send notice of the seizure to titled owners, registered owners and lienholders via certified mail; (2) the notice should i ndicate the right to a hearing; (3) the notice should explain the hearing process; and (4) the titled owner, registered owner or lienholder is responsible for paying the towing fee when a car must be seized and towed for safekeeping after the arrest of the driver. In addition, the Court directs the parties to submit, within forty-five days of the date of this Memorandum and Order, the additional information requested in a joint submission. Ordered by Chief Judge Margo K. Brodie on 8/26/2021. (Bacchi, Joseph)
Case 1:15-cv-05867-MKB-VMS Document 78 Filed 08/26/21 Page 1 of 6 PageID #: 1132
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------HVT, INC.,
Plaintiff,
ORDER
15-CV-5867 (MKB) (VMS)
v.
PORT AUTHORITY OF NEW YORK AND NEW
JERSEY,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff HVT, Inc., commenced the above-captioned action on October 13, 2015, against
Defendant Port Authority of New York and New Jersey, pursuant to 42 U.S.C. §§ 1983 and
1988, alleging deprivation of property without due process in violation of the Fourteenth
Amendment and the New York State Constitution and bringing additional claims for declaratory
relief, replevin, and municipal liability based on Defendant’s impounding of a vehicle after the
driver was arrested at John F. Kennedy International Airport. (Compl. ¶¶ 6, 8, 13, Docket Entry
No. 1.) On July 14, 2017, the parties cross-moved for summary judgment, and on April 26,
2017, the Court referred the motions to Magistrate Judge Vera M. Scanlon for a report and
recommendation. (Def.’s Mot. for Summ. J., Docket Entry No. 18; Pl.’s Mot. for Summ. J.,
Docket Entry No. 25; Order Referring Mots. dated Apr. 26, 2017.) On February 15, 2018, Judge
Scanlon recommended that the Court (1) grant Plaintiff’s motion except as to certain damages
and payment of the towing fee and deny Defendant’s cross-motion except as to the towing fee,
(2) order Plaintiff’s bond to be released less the $80.00 towing fee to be paid to Defendant,
(3) award Plaintiff nominal damages in the amount of $1.00, and (4) order the parties to submit
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for the Court’s review joint proposed revised regulations or procedures consistent with the report
and recommendation (the “Summary Judgment R&R”). (Summ. J. R&R, Docket Entry No. 32.)
By Memorandum and Order dated March 21, 2018, the Court adopted the unopposed R&R in its
entirety. (Mem. and Order, Docket Entry No. 34.) Since then, the parties have exchanged
multiple drafts of proposed rules and regulations and submitted letters to the Court outlining their
respective positions1 but have been unable to agree on a complete joint submission, necessitating
the Court’s intervention.
Currently before the Court is Judge Scanlon’s August 6, 2021 report and
recommendation (the “R&R”) regarding the parties’ draft proposals. (R&R, Docket Entry No.
77; see also Def.’s Letter dated Nov. 15, 2019 (“Def.’s Draft Proposal”), Docket Entry No. 69;
Pl.’s Letter dated Nov. 15, 2019 (“Pl.’s Draft Proposal”), Docket Entry No. 70.) For the reasons
set forth below, the Court adopts the unopposed R&R in its entirety.
I.
Background
Plaintiff challenges the notice and process given to the owner of a vehicle when the Port
Authority seizes the vehicle incident to arrest. (R&R 5.) In the Summary Judgment R&R, Judge
Scanlon examined the constitutionality of the Port Authority’s Rules and Regulations, 21
NYCRR 1260.1 et seq., and found that they violate the Constitution by permitting seizure and
retention of vehicles without providing due process. (Summ. J. R&R 12 & n.4.) Judge Scanlon
recommended that the Court direct the parties to submit joint proposed revised regulations or
procedures consistent with the Summary Judgment R&R. (Id. at 20.) In addition, Judge Scanlon
1
(See Letter dated Nov. 1, 2018, Docket Entry No. 53; Status Rep., Docket Entry No.
61; Mot. for Clarification, Docket Entry No. 64; Mot. for Extension of Time to File Revised
Rules and Regulations, Docket Entry No. 67; Second Mot. for Extension of Time to File
Proposed Revised Rules and Regulations, Docket Entry No. 68; Status Rep., Docket Entry No.
73; Status Rep., Docket Entry No. 75.)
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recommended that, at a minimum, the procedures include that the notice must be sent to titled
owners, registered owners, and record lienholders of the seized vehicles; that the notice must be
sent promptly after the seizure; that the notice must clearly provide an opportunity for a hearing;
and that the government must be responsible for arranging and conducting the hearing. (Id.)
The Court adopted the unopposed Summary Judgment R&R, (Mem. and Order), and the parties
have since filed partially competing proposed procedures, (Def.’s Draft Proposal; Pl.’s Draft
Proposal).
II. Report and Recommendation
In her summary of the parties’ draft proposals, Judge Scanlon noted that the parties
“agree on multiple items” but disagree on “certain facets of the post-seizure notice and hearing
procedure,” including (1) “which types of seizures should be covered by the proposed remedy,”
(2) “how the hearing should be arranged,” and (3) “if there should be any tolling period during
which storage fees do not accrue in relation to notice that the vehicle was towed and can
immediately be claimed from the storage facility.” (R&R 6–7.) Judge Scanlon also noted that
“the parties have not supplied the Court with information regarding the substance of the hearing
by which the vehicle owner would contest the towing and/or imposition of fees.” (Id. at 8.)
Judge Scanlon reviewed the adequacy of the parties’ proposed remedies (1) “in light of the
disputes in this case — notice of the deprivation and a meaningful opportunity to challenge the
fees,” (2) with respect “to the situation of vehicles seized incident to criminal arrests, as the
[c]ourt cannot speculate as to whether a civil-incident car seizure presents the same legal
questions regarding due process,” and (3) with respect “to seizures for community safekeeping
purposes, as . . . this was the sole justification for the vehicle’s seizure.” (Id. at 10.) Judge
Scanlon recommended that the Court grant in part the parties’ proposed remedies “with respect
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to the items upon which they agree, finding that they comport with due process,” including
(1) “within five business days of a vehicle seizure, the [Port Authority Police Department
(‘PAPD’)] must send notice of the seizure to titled owners, registered owners and lienholders via
certified mail,” (2) “the notice should indicate the right to a hearing,” (3) “the notice should
explain the hearing process,” and (4) “the titled owner, registered owner or lienholder is
responsible for paying the towing fee when a car must be seized and towed for safekeeping after
the arrest of the driver.” (Id. at 12.) In addition, Judge Scanlon “accept[ed] the parties’ proposal
to use [the Office of Administrative Trials and Hearings (‘OATH’)]” as the forum for the postdeprivation proceedings,” but because it was “unclear from the parties’ submissions whether
they only agree OATH is the proper forum to adjudicate vehicle seizures for forfeiture, or if they
also agree OATH should adjudicate safekeeping tows and the imposition of fees,” Judge Scanlon
recommended that the Court request “further clarification on . . . the use of OATH.” (Id. at 12–
13.) Judge Scanlon recommended that the Court “decline to approve the parties’ proposed
remedies with respect to all else as there is not enough information presented.” (Id. at 13–14.)
Accordingly, Judge Scanlon recommended that the Court “request[] additional submissions from
the parties within [forty-five] days,” including “a joint proposal to the Court” regarding (1) “[a]
copy of the draft notice letter,” (2) “[c]larification whether OATH is the proposed forum for the
post-deprivation hearing, or if not, an alternative proposal,” (3) “[p]rocedures regarding how the
post-deprivation hearing would be arranged,” (4) “[p]rocedures regarding when storage fees
begin to accrue,” and (5) “[t]he issues to be adjudicated in the post-deprivation hearing.” (Id. at
15.)
No party has objected to the R&R and the time for doing so has passed.
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III. Discussion
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). “Where parties receive clear notice of the consequences, failure to
timely object to a magistrate’s report and recommendation operates as a waiver of further
judicial review of the magistrate’s decision.” Smith v. Campbell, 782 F.3d 93, 102 (2d Cir.
2015) (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002)); see also
Phillips v. Long Island R.R. Co., 832 F. App’x 99, 100 (2d Cir. 2021) (same); Almonte v. Suffolk
County, 531 F. App’x 107, 109 (2d Cir. 2013) (“As a rule, a party’s failure to object to any
purported error or omission in a magistrate judge’s report waives further judicial review of the
point.” (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003))); Sepe v. N.Y. State Ins. Fund,
466 F. App’x 49, 50 (2d Cir. 2012) (“Failure to object to a magistrate judge’s report and
recommendation within the prescribed time limit ‘may operate as a waiver of any further judicial
review of the decision, as long as the parties receive clear notice of the consequences of their
failure to object.’” (first quoting United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997);
and then citing Thomas v. Arn, 474 U.S. 140, 155 (1985))); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party
waives appellate review of a decision in a magistrate judge’s [r]eport and [r]ecommendation if
the party fails to file timely objections designating the particular issue.” (first citing Cephas, 328
F.3d at 107; and then citing Mario, 313 F.3d at 766)).
The Court has reviewed the unopposed R&R and, finding no clear error, adopts the R&R
pursuant to 28 U.S.C. § 636(b)(1).
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IV. Conclusion
Accordingly, the Court adopts the R&R and grants in part the parties’ proposed remedies.
The Court approves as satisfying due process the following: (1) within five business days of a
vehicle seizure, the PAPD must send notice of the seizure to titled owners, registered owners and
lienholders via certified mail; (2) the notice should indicate the right to a hearing; (3) the notice
should explain the hearing process; and (4) the titled owner, registered owner or lienholder is
responsible for paying the towing fee when a car must be seized and towed for safekeeping after
the arrest of the driver. In addition, the Court directs the parties to submit, within forty-five days
of the date of this Memorandum and Order, the additional information requested in a joint
submission.
Dated: August 26, 2021
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
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