Grimm v. City of Portland et al
Filing
103
Opinion and Order: For the reasons given above, I DENY Andrew Grimm's Motion for Summary Judgment [ECF 95] and GRANT the City of Portland's Motion for Summary Judgment [ECF 94]. Signed on 3/9/2023 by Judge Michael W. Mosman. (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ANDREW GRIMM,
Plaintiff,
Case No. 3:18-cv-00183-MO
v.
OPINION & ORDER
CITY OF PORTLAND,
Defendant.
MOSMAN, J.,
Plaintiff Andrew Grimm challenges the constitutionality of Portland’s pre-tow notice
procedures after neglecting to return to his vehicle parked in downtown Portland for approximately
ten days and finding that the vehicle had been towed. Both Defendant City of Portland (“the City”
or “Portland”) and Mr. Grimm filed Motions for Summary Judgment [ECF 94, 95]. Oral argument
took place on February 7, 2023. For the reasons given below, I GRANT the City’s Motion for
Summary Judgment and DENY Mr. Grimm’s Motion for Summary Judgment.
PROCEDURAL BACKGROUND
On August 21, 2020, the Court of Appeals for the Ninth Circuit reversed this Court’s grant
of summary judgment to the City and remanded the case for further proceedings consistent with
its opinion. Grimm v. City of Portland, 971 F.3d 1060 (9th Cir. 2020). The Ninth Circuit held that
I erred in applying Mathews v. Eldridge, 424 U.S. 319 (1976), instead of Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306 (1950), to analyze Mr. Grimm’s adequacy of notice
claim. Id. at 1062.
1 – OPINION & ORDER
Further, the Ninth Circuit called attention to Mr. Grimm’s argument that Jones v. Flowers,
547 U.S. 220 (2006), extends Mullane by holding that the state’s method of notice was inadequate
because “additional reasonable steps were available” upon knowledge that the original method of
service was ineffective. Id. at 1066 (citing Jones, 547 U.S. at 225). The panel advised that “[t]he
analysis under Mullane and Jones will require the district court to decide whether the citations and
tow placard provided ‘reasonably calculated’ notice of the tow, and whether, if Portland had
knowledge that notice was ineffective, it was practicable to notify Grimm through other means.”
Id. at 1068.
The Ninth Circuit remanded the case and instructed this Court to consider the following,
among other questions:
(1) Is putting citations on a car that do not explicitly warn that the car will be towed
reasonably calculated to give notice of a tow to the owner?;
(2) Did the red tow slip placed on Grimm’s car shortly before the tow provide
adequate notice?; and
(3) Was Portland required under Jones to provide supplemental notice if it had
reason to suspect that the notice provided by leaving citations and the tow slip
on Grimm’s windshield was ineffective?
Id.
FACTUAL BACKGROUND
On December 14, 2017, Mr. Grimm parked his vehicle in downtown Portland and paid for
parking using the Parking Kitty mobile parking payment application. Joint Notice of Stipulated
Facts [ECF 93] ¶¶ 34–35. Mr. Grimm received notifications from Parking Kitty three minutes
before and at the time of parking expiration. Id. ¶¶ 10, 11, and 36. Parking Kitty is not currently
configured to allow the City to send notifications pertaining to citations or towing. Id. ¶ 14. Parking
Kitty is owned by the company Passport Parking, Inc., id. ¶ 5, which does not regularly share
users’ contact information with the City, id. ¶ 20.
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Mr. Grimm understood that having his vehicle remain in a metered spot without payment
could result in the vehicle being towed. Id. ¶ 29. Beginning at 8 A.M. on December 15, 2017, Mr.
Grimm’s vehicle was parked illegally pursuant to Portland City Code 16.20.430A. Id. ¶ 41. That
day, in accordance with city policy, id. ¶¶ 17–18, a Parking Enforcement Officer (“officer”) issued
two citations: (1) for failing to display current registration tags and (2) for unlawfully parking in a
metered zone without proof of payment, id. ¶ 42. On December 18, 2017, an officer issued two
additional citations for the same violations. Id. ¶ 43. The next day, an officer issued an additional
citation for the unlawful parking in a metered zone. Id. ¶ 44. This citation included a “CITE AND
WARN” comment, which referred to the red warning slip placed on the vehicle stating that “your
vehicle will be subject to tow/citation if it is not moved,” with “tow/citation” circled and “tow”
underlined by the officer. Id. On December 21, 2017, an officer issued an additional parking
citation for being parked in a metered zone without proof of payment. Id. ¶ 45. The officer also
placed a separate tow slip on the windshield. Id. That day, the officer contacted Retriever Towing
to tow and impound Mr. Grimm’s vehicle. Id. ¶ 47.
Mr. Grimm did not see the postings before his car was towed and did not return to the
vehicle between December 14, 2017, and December 24, 2017. Id. ¶ 48. On December 22, 2017,
the City mailed letters to the address registered with Mr. Grimm’s vehicle to provide retrieval
information and state that the vehicle had been towed. Id. ¶ 49. The City “did not use telephone,
email, Internet, contact information from Parking Kitty, or the Parking Kitty app to notify Mr.
Grimm that his vehicle would be towed.” Id. ¶ 51.
The City has the following policies for vehicles remaining in metered spaces past paid-for
time:
The City’s policy and procedure is that after a minimum of two citations are issued
for overtime parking in a metered zone, a Parking Enforcement Officer working for
3 – OPINION & ORDER
[the Portland Bureau of Transportation] places a red warning placard in the form
attached as Exhibit A (“Warning Placard”) on the vehicle’s windshield. The City’s
policy and procedure is that the Parking Enforcement Officer circles “tow” on the
Warning Placard where it states: “Your vehicle will be subject to tow/citation
__________ if it is not moved.” The City’s policy and procedure is that after
placing the Warning Placard on the vehicle, if the vehicle is not moved within
twelve hours, a City Parking Enforcement Officer places a tow placard in the form
attached as Exhibit B on the vehicle and contacts a contracted towing company to
tow and impound the vehicle.
Id. ¶¶ 17, 18.
LEGAL STANDARD
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.” Fed. R. Civ. P. 56(a).
The initial burden for a motion for summary judgment is on the moving party to identify the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once that burden is satisfied, the burden shifts to the non-moving party to demonstrate, through
the production of evidence listed in Fed. R. Civ. P. 56(c)(1), that there remains a “genuine issue
for trial.” Celotex, 477 U.S. at 324. The non-moving party may not rely upon the pleading
allegations, Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995) (citing Fed.
R. Civ. P. 56(e)), or “unsupported conjecture or conclusory statements,” Hernandez v. Spacelabs
Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). All reasonable doubts and inferences to be drawn
from the facts are to be viewed in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
I.
Mullane/Jones Standard
Mullane v. Central Hanover Bank & Trust Co. held that “[a]n elementary and fundamental
requirement of due process . . . is notice reasonably calculated, under all the circumstances, to
4 – OPINION & ORDER
apprise interested parties of the pendency of the action and afford them an opportunity to present
their objections . . . with due regard for the practicalities and peculiarities of the case.” 339 U.S.
306, 314–15 (1950). Mullane established a “reasonably calculated” due process standard that has
been understood to govern inquiries into adequacy of notice. See, e.g., Robinson v. Hanrahan, 409
U.S. 38, 39–40 (1972) (collecting cases).
The reasonably calculated standard does not demand “best practicable” notice, contrary to
Mr. Grimm’s argument. Rather, Supreme Court and Ninth Circuit case law outlining a best
practicable standard of notice is limited to the context of class action notice under Fed. R. Civ. P.
23. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985); Silber v. Mabon, 957 F.2d
697 (9th Cir. 1992). Other circuit courts have also referred to “best notice practicable” primarily
in the context of Fed. R. Civ. P. 23. Compare Greenfield v. Villager Industries, Inc., 483 F.2d 824
(3d Cir. 1973), In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088 (5th Cir. 1977), Fidel
v. Farley, 534 F.3d 508 (6th Cir. 2008), Pollard v. Remington Arms Company, LLC, 896 F.3d 900
(8th Cir. 2018), DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935
(10th Cir. 2005), and Juris v. Inamed Corp., 685 F.3d 1294 (11th Cir. 2012) with In re Drexel
Burnham Lambert Group Inc., 995 F.2d 1138, 1144 (2d Cir. 1993) (using “best notice practical
under the circumstances” when referring generally to the Due Process Clause). In conclusion, I
reject the argument that Mullane requires best practicable notice.
Jones v. Flowers acknowledges Mullane’s reasonably calculated due process standard but
notes that the Supreme Court had “never addressed whether due process requires further efforts
when the government becomes aware prior to the taking that its notice attempt has failed.” 547
U.S. 220, 220 (2006). Jones held that “when mailed notice of a tax sale is returned unclaimed, the
State must take additional reasonable steps to attempt to provide notice to the property owner
5 – OPINION & ORDER
before selling his property, if it is practicable to do so.” Id. at 225. The Court emphasized the
individualized notice requirements by clarifying that “[t]he government must consider unique
information about an intended recipient regardless of whether a statutory scheme is reasonably
calculated to provide notice in the ordinary case.” Id. at 221.
II.
Notice of Individualized or Systemic Failure
Prior to evaluating the adequacy of individualized pre-tow notice, I first assess whether
there were systemic issues to Portland’s notice protocol regarding towing. The briefing indicates
that the City was not on notice that its procedures of providing pre-tow notice were deficient.
Unlike in Greene v. Lindsey, 456 U.S. 444 (1982), in which posting notice on the property was
insufficient because of known instances of having notice removed prematurely, here, there is no
information that the City’s method of notice by posting citations and a warning slip on the vehicle
was repeatedly failing to notify drivers. Based on the record before me, Portland’s pre-tow notice
protocol at the systemic level is constitutionally adequate.
Jones extends the due process analysis to evaluate the individualized adequacy of notice
when the government had reason to suspect that notice was ineffective. Here, the parties stipulated
that the parking citations remained on the windshield but disagree on the inference to make from
this fact. On summary judgment, all reasonable doubts and inferences to be drawn from the facts
are to be viewed in the light most favorable to the nonmoving party.
A.
City of Portland’s Motion for Summary Judgment
In the light most favorable to Mr. Grimm, the citations remaining on his vehicle indicated
that he had not received the City’s warnings. The citations indicated ineffective service because
had Mr. Grimm seen the citations on the windshield, he would have retrieved them and presumably
read them. Therefore, the City had reason to suspect that its attempt at providing notice had failed.
6 – OPINION & ORDER
However, as explained later in this opinion, I find that the City did not have reasonable,
practicable alternatives to provide notice.
B.
Andrew Grimm’s Motion for Summary Judgment
Even if Mr. Grimm’s motion meets the requirements to trigger Jones, his motion fails
because of the lack of reasonable alternatives available to the City.
III.
Availability of Reasonable Alternatives
In Jones, there were additional reasonable steps available to the State to provide notice,
such as resending notice by regular mail and posting notice on the front door. Jones, 547 U.S. at
221–22. Notably, Jones did not require the State to “search the local phone book and government
records” to satisfy the supplemental notice requirement, establishing that there are limitations to
what is considered reasonable. Id. at 222. Mr. Grimm suggests that the City could have sent notice
through Parking Kitty, email, phone call, text message, or pre-tow mail. I address each proposed
alternative below.
The parties stipulated to the fact that the City did not have access to the contact information
inputted into Parking Kitty. The City did not have Mr. Grimm’s email address or phone number,
making these methods of communication impracticable for providing service. Further, the parties
agreed to the fact that Parking Kitty is not configured to allow the City to send notifications
regarding towing or citations.
Mr. Grimm also insists that sending pre-tow notice by mail was required to satisfy
Mullane/Jones. However, sending pre-tow notice by mail is not a “reasonable step” in the context
of street parking. The City has a legitimate interest in regulating downtown parking, which entails
towing vehicles that remain illegally parked for a certain period of time. Sending pre-tow mail
would severely interfere with the City’s ability to timely enforce its parking codes. The mail would
7 – OPINION & ORDER
take several days to arrive at the registered owner’s house or potentially longer if, as here, the car
is registered out of state. This is not a reasonable method of notice given the necessity of keeping
city streets clean, safe, and orderly. In short, requiring pre-tow notice by mail erases consideration
of the practicalities of the case. I categorically reject the argument that pre-tow notice by mail is
required by Mullane/Jones. Given that there were no reasonable alternatives for supplemental
notice, I grant the City’s Motion for Summary Judgment and deny Mr. Grimm’s Motion for
Summary Judgment.1
IV.
Ninth Circuit’s Questions
The Ninth Circuit outlined three questions for this Court to consider, which I briefly
address below.
A.
Is Putting Citations on a Car That Do Not Explicitly Warn That the
Car Will be Towed Reasonably Calculated to Give Notice of a Tow to
the Owner?
The citations do not constitute adequate notice under the Mullane reasonably calculated
standard. The citations lacked explicit statements warning the driver that their car would be towed.
The due process analysis instead centers on the adequacy of notice from the warning and tow slips.
B.
Did the Red Tow Slip Placed on Grimm’s Car Shortly Before the Tow
Provide Adequate Notice?
The Ninth Circuit assumed that there was no warning slip because the parties disputed its
presence on Mr. Grimm’s vehicle. Grimm v. City of Portland, 971 F.3d 1060, 1062 n.2 (9th Cir.
2020). Here, the parties have stipulated to the fact that an officer placed both a warning and tow
slip on Mr. Grimm’s vehicle. Therefore, I will analyze whether each slip provided adequate notice.
1
Mr. Grimm also moves for retrospective declaratory relief, which I deny under Bayer v. Neiman Marcus Grp., Inc.,
861 F.3d 853, 868 (9th Cir. 2017) (holding that “a declaratory judgment merely adjudicating past violations of federal
law—as opposed to continuing or future violations of federal law—is not an appropriate exercise of federal
jurisdiction.”).
8 – OPINION & ORDER
The warning slip provided notice because it explicitly warned that the vehicle would be
towed if not moved. City protocol states that after issuing two citations, at least twelve hours must
pass between placing the warning slip on the vehicle and having it towed. Here, approximately
two days passed. The warning slip provided adequate notice to Mr. Grimm that his vehicle would
be towed. In contrast, the tow slip did not provide adequate notice because it was issued shortly
before the towing took place, and therefore was not reasonably calculated to apprise Mr. Grimm
of the action.
C.
Was Portland Required Under Jones to Provide Supplemental Notice if It
Had Reason to Suspect that the Notice Provided by Leaving Citations and
the Tow Slip on Grimm's Windshield Was Ineffective?
Jones required the City to provide supplemental notice if it had reason to suspect
ineffective notice and if additional reasonable steps were available. Unlike in Jones, in which the
State had reasonable alternatives, here, the City had no such alternatives. While the Jones analysis
was triggered in this matter, the City ultimately did not have to provide supplemental notice
because of the lack ofreasonable, practicable alternatives.
CONCLUSION
For the reasons given above, I DENY Andrew Grimm's Motion for Summary Judgment
[ECF 95] and GRANT the City of Portland's Motion for Summary Judgment [ECF 94].
IT IS SO ORDERED.
.
~
DATED this _!(;_ day of March, 2023.
9 - OPINION & ORDER
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