PHILADELPHIA – A non-party towing company is now the target of sanctions from class action attorneys taking on the City of Philadelphia, over claims that its vehicle towing relocation program both fails to abide by due process and provide adequate notice or fair procedures for owners to locate and recover their vehicles after they have been moved.
Kathleen Eastman, Mary Henin, Amanda Hay and Matthew Allen (individually and on behalf of all others similarly situated) of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 17, 2021 versus the City of Philadelphia.
“Vehicles parked on City streets may be towed and impounded for specific infractions enumerated in the City Code, and procedures exist for notifying owners of impounded vehicles, including a publicly accessible database to assist owners in locating and recovering their vehicles. The City, however, has failed to provide the same or similar procedures for the Relocation Program,” the suit said.
“The Relocation Program authorizes the towing and moving of vehicles that have been lawfully parked under circumstances requiring the moving of the vehicles to allow for, among other things, construction, repairs, emergency work or public gatherings authorized by the City. At times, temporary ‘no stopping’ signs are posted and vehicles that were legally parked are moved to another location.”
According to the plaintiffs, the Relocation Program “provides no notice to the vehicles’ owners or registered operators that their vehicles have been relocated,” and “no notice posted at that location advising the vehicle owners or operators where their vehicles have been taken or how they can get information regarding the new location of the vehicle.”
The suit alleges that the only notice regarding the Relocation Program on how a vehicle owner or operator may retrieve the vehicle is provided on a page buried several levels down on the City’s website, which suggests only that a call should be made to the PPD district in which the vehicle had been parked.
“As a matter of practice and custom, there has been a systemic lack of adequate notice to vehicle owners and operators regarding the City website and how to locate their vehicles, failure of towers and the PPD to provide timely and adequate notice of the new location of the vehicle, and a lack of adequate training and supervision of police personnel to ensure that owners and operators are provided timely and accurate information as to the vehicle location,” per the suit.
“Making matters worse, although relocated vehicles are to be moved to a legal parking spot within a short radius from where they were legally parked, as a matter of practice and custom, some vehicles are relocated to arbitrary locations at considerable distances from their original locations.”
Each of the named plaintiffs cited their own relevant experiences in having their vehicles towed, relocated and illegally parked without proper notice, to support their allegations.
In the case of plaintiff Henin, after she initially reported her own vehicle as stolen (as directed by the Philadelphia Police Department) in February 2020, she recovered her vehicle and instructed the authorities that her car was found.
But nonetheless, she said she was later stopped, forced from her vehicle at gunpoint and detained by New Jersey police officers, who alleged that the car was stolen based on a still-existing PPD report that the vehicle was indeed stolen.
“The City, as a matter of practice and custom has failed to provide adequate procedures to prevent vehicles from being relocated to places where it is illegal to park or in time-limited or metered parking spaces, which unfairly exposes innocent owners to parking infractions. The constitutional violations alleged in this Complaint are ongoing, and without judicial relief will cause harm to the class members who will be subjected to the Relocation Program,” the suit stated.
The City filed an answer to the complaint on Nov. 30, 2021, arguing that the plaintiffs failed to state a claim upon which relief could be granted and providing 10 separate affirmative defenses to that effect.
According to the City, the actions complained of are not theirs, but rather that of third-party towing companies and that due to the separate circumstances surrounding each tow, certification of the plaintiffs as a class would be inappropriate.
Counsel for the plaintiffs authored a letter to U.S. District Court for the Eastern District of Pennsylvania Judge Mitchell S. Goldberg on May 3, outlining what they felt was three months’ worth of resistance from the City in providing required discovery documents.
“This case is about plaintiffs’ cars and then plaintiffs falling down the rabbit hole of the City’s vehicle relocation program, but staying in Philadelphia instead of emerging in Wonderland. Plaintiffs are trying to avoid a similar situation with discovery,” plaintiff counsel’s letter read, in part.
Plaintiff counsel then described a three month-long process of conferring with counsel for the City in an attempt to obtain responses to interrogatories and necessary documents to prove its case, but to no avail.
Finally, they requested a judicial order from Goldberg. Much as plaintiff counsel requested, they received their requested judicial order compelling production of discovery documents on June 2.
Three months later, plaintiffs Allen and Hay accepted settlement offers from the City totaling $15,000 each, on Sept. 7. Their co-plaintiffs Eastman and Henin also received equal settlement offers, but have not made decisions regarding them as of yet and remains as plaintiffs in the pending case.
“Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant, the City of Philadelphia, by and through Kristin K. Bray, Chief Deputy City Solicitor, hereby offers to allow judgment to be taken against it and in favor of the plaintiffs, for all claims for damages, costs, attorneys’ fees and interest accrued to date in the above-captioned action in the following amounts: 1) For plaintiff Kathleen Eastman, the total amount of $15,000; 2) For plaintiff Mary Henin, the total amount of $15,000; 3) For plaintiff Amanda Hay, the total amount of $15,000; 4) For plaintiff Matthew Allen, the total amount of $15,000,” the offers of judgment stated.
“This offer of judgment is made solely for the purposes specified in Federal Rule of Civil Procedure 68 and is not to be construed either as an admission that the defendant is liable in this action, or that the plaintiffs have suffered any damages. Said judgment is to have no effect whatsoever except in settlement of this case. Additionally, this offer of judgment is not admissible as evidence in any proceeding, except, if rejected, in a proceeding to determine costs.”
The remaining plaintiffs, Eastman and Henin, authored a letter to Goldberg on Sept. 26 asking for a similar order to compel George Smith Towing Company, a non-party to the suit, to comply with an Aug. 18, 2022 subpoena.
“One of the named plaintiffs in this action, Amanda Hay, alleged that she was courtesy towed from a legal parking spot in Philadelphia to an illegal parking spot in a private lot. George Smith ultimately removed her vehicle from this private lot and impounded it, resulting in fines for the vehicle’s retrieval. Additionally, during the course of this lawsuit, defendant [City] has represented that private tow companies go ‘rogue’ and courtesy tow vehicles on their own, not at the direction of defendant. Defendant has further represented that this unlawful practice is largely, if not entirely, responsible for the courtesy towing problem in Philadelphia,” the letter stated.
“To determine the scope of the purported ‘rogue’ tow operator problem that the City appears to be asserting as a defense, as well as the extent to which the City is responsible for courtesy towing vehicles, plaintiffs served a subpoena for documents on George Smith, a private tow company, on Aug. 18, 2022. The subpoena indicated that George Smith’s responses were due by Sept. 12, 2022. It included document requests related to the named plaintiffs’ vehicles, including plaintiff Hay whose vehicle is known to have been towed by George Smith, documents related to George Smith’s towing practices and any communications with defendant related to vehicle tows.”
Simply stated, the plaintiffs claim that George Smith has made zero effort over a six-week span to respond with the requested information.
“The documents requested in the subpoena are within George Smith’s possession, are relevant to plaintiffs’ claims and the City’s representations about tow operators, and thus within the scope of discovery. The complaint alleges violations of the Fourth and Fourteenth Amendment, and defendant has asserted that the courtesy towing problem is caused in large measure by private towing companies that relocate cars without permission. The requested documents are relevant as to this factual issue. Furthermore, the complaint also alleges damages on behalf of the named plaintiffs, one of whom had a vehicle towed and impounded by George Smith. The requested documents related to this plaintiff and the other named plaintiffs are relevant to the issue of damages,” the letter continued.
“Plaintiffs have in good faith conferred or attempted to confer with George Smith’s Counsel to obtain these documents without court action, as required by Federal Rule of Civil Procedure 37(a)(1). Plaintiffs have received no response to the Subpoena, and the discovery deadline is today. As a result, plaintiffs respectfully request that this Court issue an order compelling George Smith’s production of documents in response to plaintiffs’ subpoena.”
Goldberg granted the motion on Oct. 13, ordering George Smith to comply with the subpoena within the following week.
UPDATE
Plaintiff counsel filed a dual-motion for sanctions and contempt against George Smith on Nov. 14, for its failure to comply with both the plaintiffs’ Aug. 18 subpoena and the Court’s Oct. 13, 2022 order.
“The requirements for a finding of civil contempt are met. Plaintiffs properly served the subpoena on George Smith – via hand delivery and mail – on Aug. 18, 2022. George Smith failed to obey the subpoena and provided no excuse for its failure. In fact, George Smith ignored plaintiffs’ communications regarding the subpoena on nearly every occasion. Thereafter, George Smith refused to obey the Court’s Oct. 13, 2022 order enforcing the subpoena. These actions constitute a violation of Rule 45. Furthermore, the high bar for a finding of civil contempt against a nonparty has been met,” the motion stated.
“First, a valid court order existed. Second, George Smith had knowledge of the order, as plaintiffs served it on George Smith’s counsel via e-mail on Oct. 13, 2022 and again via e-mail and mail on Oct. 25, 2022. George Smith’s counsel belatedly acknowledged the order in his e-mail dated Oct. 27, 2022, stating “I … stressed the need to get responses by tomorrow. I will continue to impress upon [George Smith] the necessity that they do so.” Lastly, George Smith defied and disobeyed the order; it did not produce documents within seven days of the date of the order and even failed to produce documents when plaintiffs offered an additional week’s grace period.”
As a result of George Smith’s unwillingness to cooperate, the plaintiffs argued they have been “unable to review potentially key documents, introduce them at depositions, and question witnesses about them” and has “prejudiced plaintiffs, by limiting their ability to complete discovery and develop their claims.”
The plaintiffs added their counsel “has unnecessarily expended time and incurred fees and costs seeking George Smith’s compliance with the subpoena and the order”, and thereby seek attorneys’ fees, costs, expenses and financial sanctions.
For counts of civil rights violations of both the Fourth and Fourteenth Amendments to the U.S. Constitution under 42 U.S.C. Section 1983, the plaintiffs are seeking certification of the Class defined above, declaratory and injunctive relief for plaintiffs and the class, compensatory damages for plaintiffs, attorneys’ fees and costs, and any further or other relief that the Court deems just and appropriate.
The plaintiffs are represented by Joseph C. Kohn, Craig W. Hillwig, Elias Kohn, William E. Hoese and Aarthi Manohar of Kohn Swift & Graf, in Philadelphia.
The defendant is represented by Anne B. Taylor, Kristin K. Bray and Christopher J. Johnson of the City of Philadelphia’s Law Department, plus Michelle L. Reinhart of White & Williams, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02248
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com