Gordon v. Aimco, Inc. et al
Filing
128
OPINION and ORDER directing that the Court RESERVES ruling with respect to the availability of an attorney's fee award. Defendant's motion for summary judgment (ECF No. 105) is DENIED except with respect to the availability of an attorney 039;s fee award. Plaintiff's motion for summary judgment (ECF No. 68) is GRANTED in part and DENIED in part; the motion is GRANTED with respect to the defendant's liability for violation of Section 307(a) of the Servicemembers Civil Relief Act and otherwise DENIED, except with respect to the availability of an attorney's fee award. The Clerk is DIRECTED to enter judgment for the plaintiff with respect to the defendant's liability under Count IV of the complaint, which allege s a violation of Section 307(a) of the Servicemembers Civil Relief Act. A determination as to any monetary damages shall be reserved for jury trial. The parties are ORDERED to SHOW CAUSE why summary judgment should not be granted to the plaintiff wit h respect to the defendant's liability under Count III of the complaint, which asserts a common-law claim for conversion. The parties may submit written briefs with respect to this issue, not to exceed ten pages, within 7 days of date of this Order. Signed by Magistrate Judge F. Bradford Stillman and filed on 12/2/11. (mwin, )
IN THE UNITED
FiLED
STATES DISTRICT COUIW
FOR THE EASTERN DISTRICT OF VIRGINI
DEC -2 2011
Newport News Division
CLERK, US DISTRICT COURT
NORFOLK. VA
ANDRE GORDON,
Plaintiff,
Action No.
V.
PETE'S AUTO SERVICE OF DENBIGH,
4:08cvl24
INC.,
Defendant.
OPINION AND
ORDER
This matter has been referred to the undersigned United States
Magistrate
Judge
on
consent
provisions of 28 U.S.C.
of Civil Procedure.
§
of
636(c)
the
parties,
pursuant
to
the
and Rule 73 of the Federal Rules
Before the Court are cross-motions
for summary
judgment.
The
plaintiff,
Andre
Gordon,
filed
judgment and a brief in support on June 20,
The defendant,
Service"),
July 22,
2011.
Pete's Auto
2011.
ECF No.
ECF No.
a
Gordon
motion
2011.
Service of Denbigh,
for
ECF Nos.
Inc.
summary
68,
69.
("Pete's Auto
filed a brief in opposition to the plaintiff's motion on
76.
brief
filed
in
a
Gordon filed a reply brief on July 27,
80.
Pete's Auto Service
and
a
support
brief
in
filed its own motion for
on
October
opposition
11,
to
2011.
the
summary judgment
ECF Nos.
defendant's
105,
106.
motion
on
October
13,
2011.
ECF No.
107.
rebuttal brief on October 14,
A
hearing
Rebecca
S.
Richard H.
on
both
Colaw,
Esq.,
Roston, Esq.,
Pete's
2011.
motions
Auto
ECF No.
was
appeared
on
held
Service
filed
a
108.
on
November
behalf
of
the
2,
2011.
plaintiff.
appeared on behalf of the defendant.
The
official court reporter was Tami Tichenor.
On November 4,
2011,
the Court issued a Rule 56(e)(l)
Order,
directing the plaintiff to file a supplemental brief and supporting
documents
in
opposition
judgment.
ECF No. 112.
to
the
defendant's
motion
for
summary
The plaintiff filed his supplemental brief
with supporting documents on November 21,
2011.
ECF No.
defendant filed a brief in response on November 22,
120.
2011.
The
ECF No.
123.
I.
In this action,
Auto
Service
Cherokee,
for
the
BACKGROUND
Gordon seeks to recover damages from Pete's
loss
of
his
automobile,
a
2002
Jeep
Grand
which the defendant towed and sold while the plaintiff,
an enlisted member of the United States Navy,
was deployed.
Gordon
asserts a federal claim against Pete's Auto Service for violation
of Section 307(a)
50
app.
U.S.C.
of the Servicemembers Civil Relief Act
§ 537(a),
In January 2007,
and a state
law claim for conversion.
Gordon received orders
Navy directing him to report to Norfolk,
a Norfolk-based warship.
On March 16,
-
2
-
("SCRA"),
from the United States
Virginia,
2007,
to serve aboard
he and his wife signed
a
lease
at
an
apartment
complex
in
nearby
Newport
News,
where
Gordon explained that he was subject to deployment and that during
his deployments his wife would return to their prior residence in
Jacksonville,
Florida.
On the
lease,
Gordon identified his 2002
Jeep Grand Cherokee and provided emergency contact information for
his
wife.
Gordon's ship was subsequently deployed in late March 2007,
which time his wife returned to their home in Florida.
was
away
complex's
deployed,
on
deployment,
parking
Gordon
lot.
In
left
May
his
2007,
Jeep
while
in
While he
the
Gordon
at
apartment
was
still
a representative of the apartment complex notified Pete's
Auto Service that Gordon's Jeep had a flat tire and requested that
it be towed.
On May 17,
2007,
Pete's Auto Service towed the Jeep
away and then stored it for 35 days.1
On June 22,
2007,
Pete's
Auto Service sold the vehicle to itself at auction in satisfaction
of
the
$1,200
lien
it
had asserted
for
towing
and
storage
Pete's Auto Service was the only bidder in attendance.
1
During
this
time
period,
the
following
towing
fees.
2
Pete's Auto
and
storage
fees accrued: a $120 towing charge, apparently authorized by city
ordinance, $980 in storage charges which accrued at the rate of $28
per day, and a $100 processing charge.
See PL's Ex. 33, ECF No.
120 attach. 34, at 7.
The plaintiff contests the validity of the
specific amounts charged, but it is undisputed that Pete's Auto
asserted and then enforced
these
towing
and
storage
2 In doing so,
enforcement of
a
$1,200
lien against
the
vehicle
fees.
Pete's Auto followed certain procedures
storage
for
liens,
as established by state law.
for the
See Va.
Code § 43-34.
The plaintiff argues that Pete's Auto did not fully
comply with these state law procedural requirements, nor with the
requirements
of
the
SCRA.
-
3
-
Service had the vehicle re-titled in its own name and then sold the
Jeep to a third party for $4,500 on June 25, 2007.
Auto Service nor the
apartment
wife,
Auto
nor
enforcing
did
its
Pete's
lien on
On December 17,
In
addition
apartment
to
2008,
Pete's
The
complex contacted Gordon or his
Service
Service,
company
four
and
from the
the
three
apartment
court
order
complaint
related
management
the
companies
defendants
41
as
were
of
the
leaving only Pete's Auto Service
defendant.
On November 17,
case
sua
sponte,
2009,
the Court dismissed the remainder of the
finding
that
the
SCRA
did
not
provide
private right of action to recover damages at law.
Gordon v.
Pete's Auto Serv.
(E.D.
2009).
Va.
On October
signed into
right
of
13,
2010,
to
recover
2878
fees.
Inc.,
a
See generally
670 F.
Supp.
2d 453
the Veterans'
Benefits Act
of 2010 was
amending the SCRA to expressly permit a private
for
attorney's
Auto Serv.
law,
of Denbigh,
for
Gordon appealed.
action
plaintiffs
2864,
before
named
case pursuant to Rule
Federal Rules of Civil Procedure,
a
a
Gordon filed the complaint in this case.
Auto
subsequently dismissed
as
obtain
the vehicle.
management
defendants.
Neither Pete's
See
monetary
litigation
SCRA §
(codified at
of Denbigh,
damages,
50
Inc.,
and
costs,
to
allow
prevailing
including
reasonable
802,
Pub.
L.
U.S.C.
app.
§ 597a);
F.3d 454,
457
637
-
4
-
No.
111-275,
124
Gordon v.
(4th Cir.
Stat.
Pete's
2011).
On
February 14,
case,
2011,
the Fourth Circuit reversed and remanded this
finding that the amended statute applied retroactively with
respect to compensatory and punitive damages.
See id^. at 461.
Fourth Circuit declined to consider whether
the
provision applied retroactively.
attorney's
The
fees
See id.
The case now approaches the eve of trial.
The defendant has
conceded liability with respect to the plaintiff's SCRA claim, but
contests liability with respect to his state law conversion claim.
The defendant further contests the amount of compensatory damages
due
to
the
plaintiff
under
either
theory
of
recovery,
availability and amount of any award of punitive damages,
the
and the
availability of an attorney's fees award for violation of the SCRA.
II.
MOTION FOR SUMMARY JUDGMENT STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure,
summary
judgment should be granted only if "there is no genuine dispute as
to any material
fact and the movant
matter of law."
if
it might
Lobby,
477
"genuine"
Fed.
R.
Civ.
P.
is
56(a).
entitled to judgment
only
242,
if
248
the
(1986).
evidence
Anderson v.
A dispute of material
"is
such
that
a
Id.
a
the
whole
judgment
and in the
motion,
light most
the
Court
favorable
—
5
—
must
view
Liberty
fact
reasonable
could return a verdict for the non-moving party."
summary
a
A fact is "material" only
affect the outcome of the case.
U.S.
as
is
jury
In deciding
record
to the nonmovant.
as
a
Terry's
Floor Fashions,
(4th Cir.
Inc. v. Burlington Indus., Inc.,
763 F.2d 604,
610
1985) .
The
party
seeking
summary
judgment
"bears
the
initial
responsibility of informing the district court of the basis for its
motion,"
and demonstrating the
material fact.
absence
of
Celotex Corp. v. Catrett,
If the movant makes such a showing,
specific facts,
a
genuine
477 U.S.
317,
dispute
of
323 (1986).
the nonmovant must set forth
supported by the record,
demonstrating that "the
evidence presents a sufficient disagreement to require submission
to the jury."
Anderson,
477 U.S.
at 251-52.
When confronted with cross-motions for summary judgment,
standards
upon which the
judgment do not
F.2d
240,
248
court
change."
(6th
Cir.
evaluates
Taft
Broad.
1991).
Co.
"[T]he
motion separately on its own merits
the motions
v.
Inc.
v.
316 F.3d 516,
Harshbarger,
523
122
Court
must
review
929
each
'to determine whether either of
(4th Cir.
F.3d
summary
United States,
the parties deserves judgment as a matter of law.'"
Voorhaar,
for
"the
58,
62
2003)
n.4
Rossignol v.
(quoting Philip Morris
(1st
Cir.
1977)).
The
mere fact that both sides have moved for summary judgment does not
establish
that
requiring that
no
genuine
exists,
thus
judgment be granted to one side or the other.
See
Worldwide Rights Ltd.
Cir.
1992);
F.2d 214,
Am.
216
Fid.
dispute
P'ship v.
& Cas.
(4th Cir.
of
material
Combe Inc.,
Co.
v.
1965).
fact
955 F.2d 242,
London & Edinburgh Ins.
244
Co.,
(4th
354
Even if the basic facts are not in
-
6
-
dispute,
that
the parties may nevertheless disagree as to the inferences
reasonably
may
judgment may be
motions.
be
drawn
from
inappropriate,
See Am.
Fid.
& Cas.
A.
in
which
case
summary
necessitating the denial of both
Co.,
III.
them,
354 F.2d at 216.
ANALYSIS
Liability Under the Servicemembers Civil Relief Act
In Count IV of his complaint, Gordon asserts a federal claim
for damages against the defendant,
307(a)
of the SCRA,
alleging a violation of Section
which provides that
A person holding a lien on the property or effects
of a servicemember may not, during any period of
military service of the servicemember and for 90
days thereafter, foreclose or enforce any lien on
such property or effects without a court order
granted before
foreclosure or enforcement.
50 app. U.S.C.
§ 537 (a) (1).
October
authorizes
2010,
monetary damages
§ 597a(a).
in
this
for
Section 802 (a)
a
any violation
As noted above,
case
that
private
Section
of the SCRA,
right
of
the
of
SCRA.
Count
Gordon
now
moves
recover
app.
50
to
U.S.C.
the Fourth Circuit has previously held
802 (a)
applies
retroactively
this plaintiff to assert a claim for damages.
459-61.
action
enacted in
for
summary
Gordon,
to
637
judgment
with
and
at
allow
F.3d at
respect
to
IV.
It
times,
is
an
undisputed
active
duty
that
Gordon
military
is,
was
servicemember.
It
all
is
relevant
undisputed
that Pete's Auto Service enforced its lien against Gordon's vehicle
-
7
-
without first obtaining a court order.
strict liability statute;
667 F.
Fully
Supp.
2d 650,
cognizant
liability—but
Def.'s Br.
not
of
See United States v.
662-64
this,
(E.D.
the
damages—with
in Opp'n 5,
Section 307 is a
it does not require proof of any mens rea
to establish civil liability.
Inc.,
Moreover,
ECF No.
Va.
76.
Enters.,
2009).
defendant
respect
B.C.
expressly
to
the
Accordingly,
concedes
SCRA violation.
the Court will
grant summary judgment to the plaintiff with respect to liability
under
Count
Section
IV
of
307(a)
the
of
complaint,
the
SCRA,
which
alleges
app.
U.S.C.
50
determination as to monetary damages,
if any,
a
violation
§ 537 (a) .
of
A
is reserved for jury
trial.
B.
In
Count
of
III
Liability for Conversion
his
complaint,
Gordon
claim for damages against the defendant,
tort
of
asserts
a
state
law
alleging the common law
conversion.
To assert a claim for conversion, a plaintiff must
prove by a preponderance of the evidence (i) the
ownership or right to possession of the property at
the time of the conversion and (ii) the wrongful
exercise of dominion or control by defendant over
the plaintiff's property, thus depriving plaintiff
of
Airlines
(E.D.
Va.
S.E.2d
possession.
Reporting Corp.
2001)
359,
365
v.
Pishvaian,
155
F.
Supp.
2d
(citing Universal C.I.T. Credit Corp. v.
(Va.
1956)).
"The
conversion is purely and simply a
-
8
mental
state
659,
Kaplan,
required
664
92
for
specific intent to appropriate
-
the property.
that
the
appropriation
necessary."
1986).
Knowledge that the property belongs to another,
is
unauthorized
by
the
owner,
is
or
not
United States v. Stockton, 788 F.2d 210, 216 (4th Cir.
"[0]ne may be held liable in conversion even though he
reasonably supposed that he had a legal right to the property in
question."
(1952).
Morissette v.
United States,
342 U.S.
246,
270 n.31
Neither party moves for summary judgment with respect to
the defendant's liability for conversion, but based upon its review
of the record,
it appears to the Court that summary judgment as to
the defendant's liability for conversion is appropriate.3
Gordon's ownership of the vehicle at the time of the alleged
conversion
is
undisputed.
It
is
further
undisputed
that,
in
transferring title to the vehicle to itself, and then subsequently
to a third party, Pete's Auto Service exercised dominion or control
over
Gordon's
property,
thus
Pete's Auto Service suggests,
wrongful
because
it
depriving
however,
strictly
Gordon
of
possession.
that its actions were not
complied
with
the
procedural
requirements of Virginia Code § 43-34 in enforcing its storage lien
against
Gordon's
Jeep.
3 The plaintiff's motion for summary judgment is expressly
limited to Count IV, alleging violation of the SCRA.
See PL's
Mot
for Summ. J., ECF No. 68.
The defendant's motion seeks
summary judgment on Count III, alleging conversion, solely on the
absence of any admissible evidence to establish damages; the
defendant has expressly declined to request summary judgment on the
issue of liability for conversion.
See Def.'s Br. in Supp. 5-7,
ECF No. 106; Def.'s Rebuttal Br. 6, ECF No. 108.
The Court
addresses the damages issues separately below.
-
9
-
The plaintiff disputes whether Pete's Auto Service strictly
complied with the requirements of Va. Code § 43-34, but this issue
is not material to the defendant's liability for conversion.
assuming
that
Pete's
Auto
Service
procedures established by state law,
comply with Section 307(a)
complied
it most
fully
Even
with
the
certainly failed to
of the SCRA, which required Pete's Auto
Service to obtain a court order before enforcing its lien against
Gordon's
vehicle.
That
Pete's Auto
Service may have mistakenly
believed that it had a legal right to re-title the Jeep is of no
moment.
See
defendant
had no
first
Morissette,
obtaining
legal
a
342
right
court
U.S.
at
to take
order,
its
270
n.31.
title
Because
to the
acquisition
of
the
Jeep without
the
vehicle
constitutes the wrongful exercise of dominion or control over the
plaintiff's property,
Accordingly,
the
pursuant to Rule 56(f)
its
inclination to
respect
to
complaint,
the
depriving the plaintiff of possession.
Court
provides
the
parties
with
notice
of the Federal Rules of Civil Procedure of
grant
summary
defendant's
judgment
liability
to the plaintiff with
under
Count
III
of
which asserts a common-law claim for conversion.
the
The
parties will be ordered to show cause why summary judgment should
not
be granted to the
liability
for
plaintiff with
conversion.
-
10
-
respect to the defendant's
C.
Both parties move
Compensatory Damages
for
summary judgment with
issue of compensatory damages.
for
both
Counts
III
and
IV
respect
to the
The measure of compensatory damages
is
the
same—the
value
of
Gordon's
vehicle at the time when Pete's Auto Service transferred title to
itself
and
then
(recognizing that
a
third
See
compensatory damages
and conversion claims
4
party.4
The defendant
Gordon,
for
this
637
F.3d
at
plaintiff's
460
SCRA
are coextensive).
suggests that the measure of damages
for the
plaintiff's SCRA claim differs from that of his conversion claim,
arguing that any damages for the SCRA violation must be determined
with reference only to the defendant's failure to obtain a court
order prior to enforcement of its lien.
Based on this strained
construction, the defendant argues that the resultant harm is too
speculative to support an award of damages because even if the
defendant had petitioned a court for an order allowing the sale of
Gordon's vehicle, there would have been "a multitude of possible
outcomes," some of which would have resulted in the very same loss.
Def.'s Br. in Supp. 7-8, ECF No. 106.
But by its terms, Section
307 (a)
of
the
SCRA
clearly
prohibits
a
lienholder
from
"foreclos [ing]
or enforcing] any lien on [the property of a
servicemember]
without a court order granted before foreclosure or
enforcement."
50 app. U.S.C. § 537 (a) (1).
It is the act of
foreclosing or enforcing the lien without first obtaining a court
order that triggers liability, not simply the lienholder's failure
to seek a court order.
Gordon's loss of the vehicle was a
consequence of the defendant's wrongful enforcement of its lien,
and thus it constitutes a compensable actual injury.
See Standard
Oil Co.
of N.J.
v.
S.
Pac.
Co.,
268 U.S.
146,
155
("It is
fundamental in the law of damages that the injured party is
entitled to compensation for the loss sustained.").
Whether the
plaintiff can prove damages with the requisite specificity to
justify recovery of more than nominal damages is another matter.
See generally Town & Country Props., Inc. v. Riqqins, 457 S.E.2d
356,
399
(Va.
1995)
("An
award
of
nominal
damages
is
appropriate . . . where, from the nature of the case, some injury
has been done but the proof fails to show the amount.").
-
11
-
In his motion for
award
of
summary judgment,
compensatory
damages
in
articulating any factual basis
the
the plaintiff requests
amount
for this
of
$33,507
figure.5
an
without
The plaintiff
having failed to cite to any materials in the record to support his
claim
to
damages,
plaintiff
with
damages.
See
In
summary
its
the
Court
respect
Fed.
R.
motion,
judgment
failed to
adduce
determine
the
to
the
Civ.
the
on
must
P.
deny
requested
Counts
any admissible
quantum of
judgment
award
of
to
the
compensatory
56(c)(l)(A).
defendant
both
summary
argues
III
that
and
evidence
damages.
This
IV
it
is
entitled
because
upon which
Gordon
the
has
jury may
argument presupposes
exclusion of the plaintiff's expert witness,
to
Dale Fitzwater,
the
who is
expected to testify at trial that Gordon's Jeep was worth as much
as
$14,300
at the time of
Fitzwater
3,
ECF
defendant's
motion,
testimony
was
See
of
Order
to
114.
a
pending,
Nov.
pending motion
respect
No.
in
conversion.
3,
motion
but
2011,
limine,
Fitzwater's
At
to
that
ECF
nor
the
time
of
exclude
motion
No.
any
expert
See Expert
other
filing
Dale
of
the
Fitzwater's
expert
denied.
There
form
testimony
of
subsequently
was
111.
the
Report
at
of
is
currently
objection,
trial.
The
no
with
Court
further notes that the defendant has proffered the expert testimony
5 This figure appears to represent the original purchase price
of the Jeep as a new vehicle when sold in 2002.
But the record is
clear,
and
the
plaintiff
concedes
in
its
response
to
the
defendant's motion for summary judgment, that Gordon purchased the
Jeep as
a
used vehicle
in 2005
-
for $20,000.
12
-
of
David Breeding,
independent
$6,150
the
appraisal
the
record
might
the
at
time
a
of
is
of
of
contains
base
time
who
expected to
testify that
the
in
vehicle
conversion.
other
Moreover,
competent
finding with
respect
conversion—namely,
which
three
Pete's
days
The
value
of
Auto
to
$1,200
Court
finds
Gordon's
issue
that
there
vehicle
at
that
the
of Gordon's
price
it
notes
which
jury
Jeep at
for which
Pete's
auction and the $4,500 price
the
vehicle
to
a
at
is
the
a
genuine
third
time
when
Pete's
judgment
as
Auto
to both parties
of
party
third party.
to
the
Service
Accordingly,
with
respect
compensatory damages.
an
of
Punitive Damages
Service moves
for
summary
Both Counts
III
and
damages.
punitive
punitive damages
IV of
the
respect to
complaint
request
Fourth Circuit
in this
case,
for conversion are available "when the defendant's
'willful
(quoting
PGI,
Inc.v.
2003)) .
Punitive
violation
judgment with
damages.
As previously recognized by the
was
dispute
a
punitive
wanton
upon
and then
Pete's Auto
conduct
Court
itself
D.
award
valuing
deny summary
Court must
to the
sold
prepared an
later.
transferred title to
the
the
the value
the
Service
2007
evidence
Auto Service acquired the vehicle at
for
June
he
and
Rathe
damages
of
the
wanton.'"
Prods.,
are
Inc.,
likewise
SCRA.
-
Id.
13
Gordon,
-
576
637
S.E.2d
available
F.3d
438,
for
(recognizing
at
444
willful
that
460
(Va.
and
punitive
damages
for
this
plaintiff's
SCRA
and
conversion
claims
are
coextensive).
The
the
key fact
at
issue with
respect
SCRA is whether Pete's Auto Service
belonged to a
servicemember when
to punitive damages
knew that the Gordon's Jeep
it put
the vehicle up for auction,
purchased the vehicle on its own account,
to a third party.
Certain evidence of
most
the
favorable
aware
of
the
court
order
property.
to
SCRA's
requirement
before
See
nonmovant,
enforcing
PL's
Ex.
Pete's Auto Service is
law."
Atkins v.
The
the
SCRA
are
support,
it
operator
of
deposition.
states
that,
Walker's
because
was
No.
to
U.S.
in
an
her
she
a
and
case
marker,
and
or
see
14
a
-
was
obtain
a
servicemember's
30.
Moreover,
knowledge of the
violation
of
of
In
law.
owner
testimony,
prior
The
for
transcript
any other
to
first
Walker,
deposition
Jeep
defendant
matter
the
testimony
anything
-
as
Lynne
servicemember.
deposition
damages
by
the
light
(1985).
and
Service,
inspected
sticker,
not
a
attach.
130
punitive
affidavit
did
120
affidavit
In
owned by
the
against
115,
this
Auto
affidavit
she
ECF
that
lienholder
lien
Pete's
when
a
any
that
unavailable
found no decal,
vehicle
472
argues
points
suggests
viewed in the
"presumptively charged with
Parker,
defendant
29,
and then sold the vehicle
record,
that
under
its
and
of
her
Walker
auction,
she
indication that
defendant
are
identify
argues
the
that
unrebuttted,
Gordon's
Jeep
and
as
belonging
to
willfully
or wantonly violated
The
servicemember,
plaintiff
military
Auto
a
base
vehicle
Service
and
his
papers
that
clearly
on
vehicle
apartment
that
the
date
complex,
See
Gordon's
testify
effects,
vehicle
the
vehicle
notes
the
fact
have
the
including
in
bear
placed
that
of
to
the
a
vehicle
uniform
the
a
Pete's
belonged
military
owner
have
SCRA.
did
should
not
items
vehicle
as
a
While the plaintiff is in no position to
nor that
when
Gordon
base
PL's
sworn
at
of
could
evidence that Walker in fact observed a vehicle pass
a military
Jeep.
307(a)
which
identifying
the vehicle,
on
Service
further
plaintiff
military servicemember.6
decal
the
decal
personal
provide direct
that
pass
The
Auto
Section
notice
on
servicemember.
contained
asserts
Pete's
to
based
on
decal
Auto
submits
31,
answers
trial,
Pete's
vehicle
Ex.
the
Service
decal
No.
120
had
present
towed
own
been
attach.
interrogatories
his
still
it
documentary evidence
pass
ECF
was
the
suggest
issued
indicate
personal
from
to
32.
on the
for
his
Moreover,
that
he
knowledge,
will
that
the
vehicle bore a military base vehicle pass decal when he left
it
the
in
March
7.
The
apartment
2007.
See
complex
PL's
Ex.
parking
42,
ECF
evidence proffered by Gordon on
6 These
the
employees
upon
No.
120
his
deployment
attach.
summary judgment
items were apparently recovered
third-party
plaintiff.
lot
purchaser,
According
to
who
ultimately
Walker,
neither
ever inspected the contents
-
15
-
43,
at
is sufficient
in
for
from the vehicle by
returned
she
nor
of the vehicle.
them
to
the
any
of
her
a
reasonable
towed
by
jury
Pete's
The
Auto
are
insofar
Virginia
Code
question
of
§
immaterial
of
the defendant
the
§
43-34.
expert
this
times
with
as
in
law.
the
valuing
The plaintiff has
finds
present
when
punitive
damages
for
a matter
of
The
procedural
above
Dale
that
of
for a
a
law.
requirements
respect
conversion,
with
failed
the vehicle
with
for
complied
Moreover,
satisfaction
The Court
still
acted according to Virginia
noted
clearly
law requirement
testimony of
was
as
liability
strictly
it
case
Virginia
to
the
whether
law
is
the
the plaintiff argues
that
in
at
comply
to
of
with
acted willfully and wantonly
state
vehicle
that
all
But
federal
fraudulent appraisal
to avoid a
"at
defendant's
because
decal
in
complied
Service
requirements
it
43-34.
the
Auto
it
the
argues
further
that
as
that
Service.
unavailable
defendant argues
Pete's
infer
defendant
conversion
law,"
to
any event,
less
than
securing a
$7,500
court order prior
lien.
See
so as
to selling
generally
Va.
Code
proffered documentary evidence and the
Fitzwater
there
is
on
a
this
issue.
genuine
dispute
as
to whether
the actions of
Pete's Auto Service giving rise to its liability for
conversion
for violation of
and
the SCRA were
Accordingly,
the Court must deny summary
with
to
respect
the
issue
of punitive
-
16
-
willful
judgment
damages.
and wanton.
to the
defendant
E.
The Court
fee
award
at
reserves
this
Attorney/s
ruling on
the
1.
reasons,
the Court
Court
RESERVES
ruling
availability of an attorney's
is
fee
following:
respect
to
the
(ECF No.
105)
case.
summary judgment
case.
The plaintiff's motion for summary judgment
is GRANTED in part and DENIED in part;
respect
307(a)
in this
the
except with respect to the availability of an attorney's
award in this
3.
for
ORDERS
with
fee award
The defendant's motion
DENIED,
attorney's
CONCLUSION
foregoing
The
2.
the availability of an
time.
IV.
For
Fees
to
the
defendant's
(ECF No.
the motion is GRANTED with
liability
for
violation
of
this
The Clerk is DIRECTED to enter judgment for the plaintiff
respect
complaint,
to
if
5.
Civil
any,
the
defendant's
alleges
to
a
Relief
shall
Pursuant
Procedure,
judgment
the
which
Servicemembers
damages,
fee award
case.
4.
with
Section
of the Servicemembers Civil Relief Act and otherwise DENIED,
except with respect to the availability of an attorney's
in
68)
be
violation
Act.
A
reserved
Rule
parties
liability
are
56 (f)
of
-
Count
Section
determination
for
ORDERED
should not be granted to
of
under
IV
307(a)
as
to
of
the
of
the
monetary
jury trial.
the
to
Federal
SHOW
Rules
CAUSE
why
of
Civil
summary
the plaintiff with respect to the
17
-
defendant's
liability
under
Count
III
of
the
complaint,
which
asserts a common-law claim for conversion.
The parties may submit
written briefs with respect to this issue,
not to exceed ten pages
in length,
IT
IS
within 7 days of the date of this Order.
SO ORDERED.
UNITED
Norfolk,
Virginia
December 5>
,2011
-
18
-
STATES
MAGISTRATE
JUDGE
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