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Grimm v. City of Portland

United States District Court, D. Oregon, Portland Division

April 16, 2018

ANDREW GRIMM, Plaintiff,
v.
CITY OF PORTLAND, L. MCHENRY, F. EARLE, RETRIEVER TOWING, Defendant.

          OPINION AND ORDER

          MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE

         This matter comes before me on Defendant Retriever Towing's (“Retriever Towing”) Motion to Dismiss [7]. 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.[1]

         BACKGROUND

         On 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.[2] (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).

         After 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).

         LEGAL STANDARD

         A court 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.

         DISCUSSION

         Due 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 notice.”).

         In 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.

         The 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 requirements.”

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.” Id.

         As in 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.[3] In both cases, the code was enacted, published, and provided each plaintiff a reasonable opportunity to familiarize themselves with the ...


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