United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO JUDGE UNITED STATES DISTRICT COURT
case arises from the repossession of Plaintiff Brian
O'Day's Hummer H2 sport utility vehicle by Defendants
Ally Financial Inc., UAR Direct LLC, Tri-Force Inc., and four
repo men identified as John Does 1-4 (collectively, the
“Defendants”). Mr. O'Day alleges several
claims, but relevant here, is the assertion that Defendants
violated Mr. O'Day's Fourth Amendment rights under 42
U.S.C. § 1983 by unlawfully taking his vehicle with the
assistance of law enforcement officers.
Defendants now move to dismiss the § 1983 claim
under Federal Rule of Civil Procedure 12(b)(6) for failing to
state a claim upon which relief can be granted. The motion
has been briefed and is ripe for ruling. [DE's 14, 15,
19, 27, 28, 29].
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint when it fails to set forth a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a Rule 12(b)(6) motion to dismiss, the court must
decide whether the complaint satisfies the
“notice-pleading” standard. Indep. Trust
Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934
(7th Cir. 2012). The notice-pleading standard requires that a
complaint provide a “short and plain statement of the
claim showing that the pleader is entitled to relief, ”
sufficient to provide “fair notice” of the claim
and its basis. Id. (citing Fed.R.Civ.P. 8(a)(2));
Maddox v. Love, 655 F.3d 709, 718 (7th Cir. 2011)
(internal citations omitted); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P.
8(a)(2)). In determining the sufficiency of a claim, the
Court construes the complaint in the light most favorable to
the nonmoving party, accepts all well-pleaded facts as true,
and draws all inferences in the nonmoving party's favor.
Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146
(7th Cir. 2010) (internal citations omitted).
Supreme Court has adopted a two-pronged approach when
considering a Rule 12(b)(6) motion to dismiss. See
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). First,
pleadings consisting of no more than mere conclusions are not
entitled to the assumption of truth. Id. This
includes legal conclusions couched as factual allegations, as
well as “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements.” Id. at 678 (citing
Twombly, 550 U.S. at 555). Second, if well-pleaded
factual allegations are present in the complaint, courts
should “assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.” Id. at 679.
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The
complaint “must actually suggest that the plaintiff has
a right to relief, by providing allegations that raise a
right to relief above the speculative level.”
Maddox, 655 F.3d at 718 (internal citations
omitted). A plaintiff's claim, however, need only be
plausible, not probable. Indep. Trust Corp., 665
F.3d at 934 (quoting Twombly, 550 U.S. at 556).
“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and
unlikely.” Id. In order to satisfy the
plausibility standard, a plaintiff's complaint must
supply “enough facts to raise a reasonable expectation
that discovery will yield evidence supporting the
plaintiff's allegations.” Twombly, 550
U.S. at 556. Determining whether a complaint states a
plausible claim for relief is “a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 679 (internal citations omitted). Factual allegations,
however, “that are merely consistent with a
defendant's liability . . . stop short of the line
between possibility and plausibility of entitlement to
relief.” Id. at 678.
allegations in the complaint indicate that Mr. O'Day
purchased a used 2008 Hummer H2 on August 15, 2011, from
Martin Buick Pontiac GMC for $32, 000. [DE 1 ¶ 17]. The
retail contract and security agreement between Mr. O'Day
and Martin Buick Pontiac GMC was assigned to Ally Financial
[DE 1 ¶¶ 18-19]. Mr. O'Day missed payments and
became in default under the terms of the contract. [DE 1
¶ 21]. Ally Financial Inc. contracted with UAR Direct
LLC to repossess the Hummer, who then contracted with
Tri-Force Inc. to take such action. [DE 1 ¶¶
evening hours of October 30, 2017, four individuals working
as repo men for Tri-Force Inc. went to Mr. O'Day's
apartment to repossess the Hummer from his attached garage.
[DE 1 ¶¶ 24-26]. At approximately 8:30 p.m.,
Racheal Selman, who lived with Mr. O'Day at the time,
went to close the overhead garage door, but the repo men
prevented the door from closing. [DE 1 ¶ 27]. After the
repo men failed to produce identifying documentation, a
physical altercation ensued between Mr. O'Day and the
repo men (during which Mr. O'Day was injured). [DE 1 at
¶¶ 28-35, 46]. Thus, Mr. O'Day had Ms. Selman
call 911. [DE 1 ¶ 36]. When officers from the Mishawaka
Police Department arrived, they had everyone vacate the
garage. [DE 1 ¶ 41]. The police officers then made Mr.
O'Day pull the car out of the garage and hand the keys
over to the repo men. [DE 1 ¶ 42]. Because Mr. O'Day
did not think that he could resist the officers'
instructions, the Hummer was seized by the Defendants
“in the presence of and with the active cooperation and
assistance of a law enforcement officer.” [DE 1
¶¶ 43, 45]. Eventually, Mr. O'Day paid-off the
loan and regained possession of his vehicle. [DE 1 ¶
issue here is Mr. O'Day's claim against Defendants
pursuant to 42 U.S.C. § 1983. To establish a section
1983 action, the plaintiff must show: (1) that the defendant
deprived him of a right secured by the “Constitution
and laws” of the United States; and (2) that the
defendant deprived him of this constitutional right
“under color of law.” Adickes v. S.H. Kress
& Co., 398 U.S. 144, 150 (1970). The unlawful
seizure of property is a violation of the Fourth Amendment,
see Soldal v. Cook Cty., Ill., 506 U.S. 56 (1992),
and the parties' briefs make clear that the only issue
raised for the Court's determination at this time is
whether Mr. O'Day has adequately alleged that Defendants
were acting under color of law.
that said, the law is well-settled that a private person who
acts under the color of state law may be subject to liability
under § 1983. Apostol v. Landau, 957 F.2d 339,
343 (7th Cir. 1992) (citing Dennis v. Sparks, 449
U.S. 24, 27 (1980); Del's Big Saver Foods, Inc. v.
Carpenter Cook, Inc., 795 F.2d 1344, 1346 (7th Cir.
1986); Malak v. Associated Physicians Inc., 784 F.2d
277, 281 (7th Cir. 1986); Greco v. Guss, 775 F.2d
161 (7th Cir. 1985)). Generally, the private use of
state-sanctioned remedies will not rise to the level of state
action. Id. (citing Edmonson v. Leesville
Concrete Co., 500 U.S. 614 (1991)). However, state
action will be found when private parties make extensive use
of state procedures with “the overt, significant
assistance of state officials.” Id. (citing
Tulsa Professional Collection Services v. Pope, 485
U.S. 478, 486 (1988); Lugar v. Edmondson Oil Co.,
457 U.S. 922 (1982); Sniadach v. Family Finance
Corp., 395 U.S. 337 (1969)). As the Seventh Circuit
pointed out in Greco v. Guss, “[t]hus, even if
a private party misuses a state statute,  the deprivation
can still be under color of state law if the authority of
state officials puts the weight of the State behind the
private decision.” 775 F.2d at 167. Accordingly, Mr.
O'Day may successfully assert a § 1983 claim against
the private Defendants if he sufficiently asserts that the
officers provided a level of assistance sufficient to bring
the Defendants' conduct under the rubric of state action.
end of the spectrum are situations involving de
minimis intervention not amounting to state action, such
as the guise of an officer at the scene, see
Fleming-Dudley v. Legal Investigations, Inc., No. 05 C
4648, 2007 WL 952026 (N.D. Ill. Mar. 22, 2007), or situations
involving an officer's attempt to maintain the peace
rather than affirmatively intervene, see Hershberger v.
Kline, No. 1:09-CV-198-TS, 2011 WL 781396, at *1 (N.D.
Ind. Mar. 1, 2011). See also Marcus v. McCollum, 394
F.3d 813 (10th Cir. 2004) (noting that because a self-help
repossession must not breach the peace, officers can diffuse
a volatile situation while ensuring lack of state action if
they direct both parties to seek a judicial determination,
but that a “curbside courtroom, in which officers
decide who was entitled to possession is precisely the
situation and deprivation of rights to be avoided”)
(quotation marks omitted).
considering the facts in the light most favorable to Mr.
O'Day, the Court finds that dismissal at this stage is
improper. The complaint in this case alleges that the
officers did more than act only to keep the peace; rather,
despite Mr. O'Day's resistance, the officers
“forced” Mr. O'Day to relinquish his vehicle,
which he would not have done absent the officers'
affirmative intervention. Accordingly, the level of
participation by the officers, though seemingly minimal,
raises a question of fact sufficient to allow the action
against Defendants to go forward. See, e.g., Harris v.
City of Roseburg,664 F.2d 1121, 1127 (9th Cir. 1981)
(“police intervention and aid in the repossession does
constitute state action” and factual questions
precluded the entry of summary judgment). And it matters not
(as the defense contends) that Mr. O'Day had the police
called to the scene. See, e.g., Johnson v. City ...