United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
matter comes before me on Defendant Retriever Towing's
(“Retriever Towing”) Motion to Dismiss . For
the reasons given below, I GRANT that motion and DISMISS
Andrew Grimm's pro se claim against Retriever Towing with
prejudice and without leave to amend.
December 14, 2017, Mr. Grimm parked his car in downtown
Portland and, using Portland's mobile parking app, paid
for a parking spot from 5:41pm to 7:00pm. (Compl. dkt. no. 1
¶ 25). Mr. Grimm never refilled the meter or moved his
car. (Id. ¶ ¶ 30, 31). Over the next seven
days, Defendants Officers Earle and McHenry issued Mr. Grimm
four parking citations, placing each citation on the exterior
of his car's windshield. (Id. ¶¶
34-37). On December 21, 2017, after Officer Earle attached
Mr. Grimm's fourth citation to the windshield, he
contacted Retriever Towing and ordered it to tow and impound
Mr. Grimm's car. (Id. ¶ 37, 43). Retriever
Towing promptly did so. (Id. ¶¶ 45, 47).
Mr. Grimm did not see the citations until after Retriever
Towing towed his car. (Id. ¶¶ 34-37).
discovering what happened to his car, Mr. Grimm brought this
civil rights action under 42 U.S.C. § 1983 against
Retriever Towing, and three other defendants, claiming
Retriever Towing violated his right to due process because he
did not receive adequate notice before Retriever Towing towed
his car. (Id. ¶ 183). Retriever Towing now
moves to dismiss under Federal Rule of Civil Procedure
12(b)(6). (Mot. to Dismiss, dkt. no. 7).
may grant a motion to dismiss “only where there is no
cognizable legal theory or an absence of sufficient facts
alleged to support a cognizable legal theory.”
Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001).
At this stage, a court usually assumes all factual
allegations as true. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Legal conclusions, in contrast, are not
entitled to that assumption. Id.
process generally requires the government to provide a car
owner with notice before taking his or her car. See
Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th
Cir. 2008). However, the government does not need to provide
that person with “actual notice” before doing so.
Jones v. Flowers, 547 U.S. 220, 226 (2006);
Dusenberry v. United States, 534 U.S. 161, 171
(2002) (“[O]ur cases have never required actual
Sackman v. City of Los Angeles, No. CV 15-0090, 2015
WL 13357951 (C.D. Cal. May 8, 2015), aff'd, 677
F. App'x 365 (9th Cir. 2017), a California district court
rejected a claim similar to Mr. Grimm's claim. In that
case, Ms. Sackman parked her van about a block away from her
home and left for a trip with her husband. Id. at
*1. Seventy-two hours after an officer initially marked the
van, another officer cited Ms. Sackman for violating Los
Angeles's municipal code, leaving the citation on her
car's windshield. Id. Forty-eight hours later
the officer returned to the car, contacted a towing company,
and ordered it to tow and impound Ms. Sackman's van.
Id. The next day, after Ms. Sackman and her husband
returned home, her husband discovered that Los Angeles towed
the van. Id. at *2. Ms. Sackman subsequently filed
suit, alleging, among other claims, that Los Angeles violated
her right to procedural due process because it failed to
provide adequate notice before towing her car. Id.
at *1, *4.
district court disagreed and dismissed the claim with
prejudice and without leave to amend. Id. at *5. The
court found that by leaving a citation on the van's
windshield before towing the vehicle, Los Angeles provided
Ms. Sackman adequate notice. Id. On appeal, the
Ninth Circuit affirmed the lower court's decision and
rejected Ms. Sackman's contention that Los Angeles should
have done more, like post signs about the seventy-two-hour
law, to comport with due process, stating:
a legislature generally provides the requisite level of
notice “simply by enacting the statute, publishing it,
and, to the extent the statute regulates private conduct,
affording those within the statute's reach a reasonable
opportunity to familiarize themselves with the general
requirements imposed and to comply with those
Sackman, 677 F. App'x at 366 (quoting Lone
Star Sec. & Video, Inc. v. City of Los Angeles, 584
F.3d 1232, 1237 (9th Cir. 2017)). The Ninth Circuit
additionally concluded, Los Angeles “provided further
pre-towing notice by attaching a citation to Ms.
Sackman's vehicle two days before it was towed.”
Sackman, Mr. Grimm does not dispute that he
unlawfully parked his car or that Officers McHenry and Earle
cited him for parking unlawfully. Mr. Grimm contends, rather,
that he should have received better notice--for example, by
emailing, calling, or texting him--before Retriever Towing
towed his vehicle. (Mem. in Opp'n to Mot. to Dismiss dkt.
no. 15 at 7). However, due process does not require Mr. Grimm
to receive such notice. Defendant City of Portland
(“the City”) is authorized to tow cars that are
unlawfully parked. In both cases, the code was enacted,
published, and provided each plaintiff a reasonable
opportunity to familiarize themselves with the ...