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Koenigs, L.L.C. v. City of Savannah

United States District Court, W.D. Tennessee, Eastern Division

July 18, 2019

KOENIGS, L.L.C., Plaintiff,
CITY OF SAVANNAH; GARRY WELCH, individually and in his official capacity; RICKY BRATTON, individually only; CURTIS MANSFIELD JR., individually only; and JOHN ALBERTSON III, individually only, Defendants.



         Plaintiff provides a service desired by few yet needed by many: towing. Because some needing a tow are unable to acquire it, the Tennessee Department of Safety and Homeland Security (“DOSHS”) maintains a “towing rotation list.” This list is comprised of towing companies meeting requirements outlined in the Towing Service Standards Manual. The State does not employ or subcontract towing services: it merely facilitates contact and access to listed towing companies. Conversely, it provides towing companies with reliable business-that is, for companies maintaining their list placement.

         Plaintiff lost its place on the State's towing rotation list and now challenges various aspects of that removal pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court previously dismissed all but one of Plaintiff's claims against Defendants Ricky Bratton, Curtis Mansfield Jr., and John Albertson III (collectively “Defendants”). Thus, the sole issue before the Court on summary judgment is whether Plaintiff was owed and denied procedural due process when Defendants removed Plaintiff from the State's towing rotation list. (ECF No. 51.)

         Notably, the Court is not reviewing Plaintiff's services or charges, which were the subjects of the DOSHS's review. Such an appellate review would have been within the Chancery Court's jurisdiction.


         Plaintiff Koenigs, LLC, is a private company engaged in the towing and recovery business. In 2013, Mr. Koenig applied for inclusion on the DOSHS Towing Rotation List (“list”). (ECF No. 51-3 at 2.) When he applied for list placement, Mr. Koenig agreed to comply with the policies and procedures set forth in the Tennessee Highway Patrol Towing Service Standards Manual (“Manual”).[2] Plaintiff remained on the list until its permanent removal pursuant to the Manual in 2017. (ECF No. 51-4 at 10.) The Manual's scope, policies, and procedures, as applied at the time of Plaintiff's removal from the list, are at the heart of this suit.

         The purpose of the Manual is “to state the policies, procedures, and standards for Members of the [DOSHS] and for towing companies in regards to towing service standards and to further ensure the safe and efficient removal, storage[, ] and safekeeping of any and all vehicles being towed by and placed into custody of such towing companies.” (ECF No. 58-6 at 2.) In furtherance of this purpose, the Manual regulates various aspects of towing services performed by its members. (See ECF No. 58-6.)

         Absent a vehicle owner's request for a specific towing company, the Tennessee Highway Patrol (“THP”) calls only listed towing companies. The list's establishment protects Tennessee drivers by ensuring “that the towing company is reputable, reliable, possesses adequate equipment, and qualified employees; [t]hat the towing company is properly licensed and insured; and [t]hat the towing company charges a fair, equitable, and reasonable rate for services rendered.” (ECF No. 58-6 at 2) (emphasis added). Advancing the latter, the Manual requires that rates “be reasonable, fair, and equitable to all persons whose vehicles are towed at the request of the DOSHS.” (ECF No. 58-6 at 25.) Plaintiff is found to have violated this provision. (See ECF No. 51-4 at 10.)

         On June 9, 2016, a tractor trailer owned by TNJ Trucking Company crashed on Pyburn Road in Hardin County, Tennessee. (ECF No. 51-3 at 20.) The DOSHS called Plaintiff to the scene to perform towing and recovery services. Plaintiff cleaned up the accident site and billed TNJ Trucking Company $45, 090.00 for its services. (ECF No. 58-8 at 5.) After payment was remitted (ECF No. 58-8 at 8), TNJ Trucking Company or its insurer submitted a complaint to DOSHS Lieutenant Ricky Bratton alleging that Plaintiff overcharged TNJ Trucking Company for the services provided.

         Lieutenant Bratton sent Plaintiff a letter on September 22, 2016, notifying Plaintiff of two complaints[3] filed against it. (ECF No. 51-3 at 20.) The letter cited one complainant as Noel Williams, owner of TNJ Trucking Company, for excessive charges related to the commercial vehicle crash on Pyburn Road in Hardin County, Tennessee. (Id.) Lieutenant Bratton requested that Plaintiff cooperate with his investigation by providing information explaining the charges (id.), but Plaintiff did not. (ECF No. 57 at 7.)

         Lieutenant Bratton investigated and found that Plaintiff overcharged TNJ Trucking Company in excess of $29, 000.00. (ECF No. 51-8 at 9.) Lieutenant Bratton reportedly reached his conclusion in accordance with his years of experience, the rental rates he was able to obtain for similar equipment that Plaintiff rented, what the Manual states a towing company can charge, Koenig's tow rate sheet, and the recommendation by Lieutenant Sarah Lund (the District Wrecker Lieutenant in Nashville) of the charges that she believed were allowed based on her review of the bill. (ECF No. 57 at 8.) Lieutenant Bratton submitted the findings of his investigation to DOSHS Captain Mansfield on October 26, 2016. (ECF No. 51-4 at 8.)

         On January 23, 2017, Captain Mansfield issued a Determination that Plaintiff overcharged complainant TNJ Trucking Company by $29, 126.28. (ECF No. 51-3 at 21.) Captain Mansfield cited permanent removal from the list as the predetermined action, because TNJ Trucking Company's complaint was Plaintiff's third severe violation within a five-year period. (Id.) In accordance with the Manual, a Pre-removal Hearing was scheduled. (See Id. at 22.)

         The Determination informed Plaintiffs that the Pre-removal Hearing would be conducted by Captain Mansfield on February 7, 2017. (Id.) The Hearing proceeded as planned. (ECF No. 57 at 9.) Ronald and Trina Koenig, Defendant Lieutenant Bratton, Defendant Captain Mansfield, and Lieutenant Taylor were present. (Id. at 9.) Captain Mansfield presided over the Hearing and first had Lieutenant Bratton explain his determination of the charges. (Id.) Then, Mr. and Mrs. Koenig were given an opportunity to testify and produce any documentation that they wanted Captain Mansfield to consider. (Id.)

         Mr. Koenig stated that he had a separate contract for the cleanup of the TNJ Trucking Company accident site and provided the names of the individuals purported to have knowledge of the agreements between the owner of the damaged load and Plaintiff. (Id.) Additionally, Mr. Koenig showed Captain Mansfield a photo of a Class A wrecker at the scene to support his assertion that such a wrecker was present. (Id. at 10.) Mr. Koenig did not, however, formally submit this photo into evidence for Captain Mansfield to consider. (Id.) Mr. Koenig also showed Captain Mansfield a bank statement purportedly showing an entry attributed to the rental charge for the skid steer that was utilized. (Id.) Mr. Koenig similarly refused to submit the bank statement into evidence. (Id.)

         After the Hearing, Captain Mansfield went to Git'er Done Equipment Rental, where Plaintiff reported to have rented the skid steer, in an attempt to ascertain Plaintiff's skid steer rental fee. (Id. at 11.) The company's inadequate record keeping prohibited Captain Mansfield from accurately determining the amount Git'er Done charged Plaintiff. (Id.)

         Captain Mansfield also contacted the individuals with whom Mr. Koenig stated there was a separate contract for the cleanup. (Id.) Each person, however, denied having a separate contract with Plaintiff. (Id.)

         Following Captain Mansfield's investigation, he issued a Final Determination permanently removing Plaintiff from the DOSHS towing rotation list for the Jackson district. (ECF No. 51-7.) Plaintiff appealed the Final Determination to Lieutenant Colonel John Albertson III. Pending the appeal, Plaintiff remained on the DOSHS towing rotation list. (ECF No. 51-7 at 3.)

         Pursuant to the Manual, Lieutenant Colonel Albertson III's review of Captain Mansfield's Final Determination was based “solely on the record compiled by the District Wrecker Lieutenant [(Defendant Bratton)] and the District Captain [(Defendant Mansfield)].” Such a review was required to include “the District Wrecker Lieutenant's investigatory report, the transcript of the hearing, and any documentation submitted during the hearing.” (ECF No. 58-6 at 33.) On April 4, 2017, Lieutenant Colonel Albertson III upheld Plaintiff's permanent removal from the list. (ECF No. 51-4 at 10.)

         Plaintiff could have appealed Lieutenant Colonel Albertson III's decision to the Davidson County Chancery Court, but Plaintiff did not. Instead, Plaintiff filed suit in this Court on June 9, 2017. (ECF No. 1.) The Court has since dismissed Plaintiff's claims, with the exception of its allegation that Defendants deprived Plaintiff of procedural due process when they eliminated Plaintiff from the towing rotation list. (ECF Nos. 33 and 48.) That issue is now before the Court on summary judgment. (ECF No. 51.)


         Summary judgment is appropriate if the Court determines that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A “genuine issue of material fact” is a fact which, if proven at trial, could lead a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering whether summary judgment is appropriate, the Court must “look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial.” Sowards v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir.), cert. denied, 531 U.S. 875 (2000).

         The Court must view the evidence and all inferences drawn from underlying facts “in the light most favorable to the party opposing the motion.” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986); Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir.), cert. denied, 534 U.S. 896 (2001). The moving party must demonstrate “the absence of a genuine issue of material fact as to at least one essential element on Plaintiff's claim, ” at which point the non-moving party “must present sufficient evidence from which a jury could reasonably find for him.” Jones v. Muskegon Cty., 625 F.3d 935, 940 (6th Cir. 2010).


         The only remaining claim in this case is for the deprivation of procedural due process. Defendants assert that Plaintiff was not entitled to due process; but, even if it was so entitled, Defendants afforded due process. Conversely, Plaintiff contends that it was entitled to due process and that its rights were violated. The parties also disagree as to whether Defendants are entitled to qualified immunity. For reasons that follow, the Court finds that Defendants are entitled to summary judgment in their favor as a matter of law.

         I. Plaintiff's Response neither raises a genuine issue of material fact nor responds to the merits of Defendants' procedural due process analysis.

         Circuit precedent prescribes that “[w]hen a plaintiff ‘fails to address [a claim] in response to a motion for summary judgment,' the claim is deemed waived.” Alexander v. Carter for Byrd, 733 Fed.Appx. 256, 261 (6th Cir. 2018) (quoting Haddad v. Sec'y, U.S. Dept. of Homeland Sec., 610 Fed.Appx. 567, 568-69 (6th Cir. 2015) (citing Brown v. VHS of Mich., Inc., 545 Fed.Appx. 368, 372 (6th Cir. 2013))). “Where claims are so waived, district courts in this Circuit grant summary judgment as a matter of course.” Id.

         Here, while Plaintiff purports to address Defendants' procedural due process arguments, Plaintiff instead relies almost entirely on irrelevant claims and arguments. Plaintiff does not address the issue by refuting case law or material facts as set forth by Defendants. The Court is confounded by ...

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