United States District Court, E.D. Kentucky, Central Division
FRANKFORT PATRICK J. O'CONNELL, et al., Plaintiffs,
PURSUIT, LLC, et al., Defendants.
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
O'Connells allege that their ownership of their dream
vehicle, a 2011 Ford F-450 Super Duty truck, turned into a
nightmare. [R. 41-1.] Like most vehicle buyers, they financed
their purchase with a bank loan. Id. But the
O'Connells were unable to stay current on their
obligations. [R. 39-1; R. 41-1.] This caused their lender,
SunTrust, to seek repossession of the truck. With that goal
in mind SunTrust hired Defendant Primeritus, which in turn
subcontracted the job out to Defendant Pursuit, LLC. [R. 41-1
out on other business, Pursuit employees spotted the
O'Connell's truck at O'Reilly Auto Parts.
Id. at 4. Knowing that they had an outstanding order
for repossession, they sprang into action. Id. at 5.
But before the employees went to the O'Reilly Auto Parts
parking lot, they contacted a member of the police department
to join them. Id. Shortly after arriving, Pursuit
requested Mr. O'Connell turn over the truck-he refused.
Id. So, began the stand-off that lasted more than a
half-an-hour. Id. at 1. At no point during this
exchange was a police officer not present. Id. at
6-10. Indeed, at times the police officers interacted with
both Mr. O'Connell and Pursuit employees. Id.
Mr. O'Connell relented. Id. at 10. From that
point, Pursuit alleges that they drove the truck to a storage
lot for safe-keeping. [R. 39-1 at 4.] Impossible, Mr.
O'Connell claims. In addition to significant damage to
the truck, Mr. O'Connell says the truck was returned with
a “bunch more miles on it” and half the tank of
fuel missing. Id. at 6.
result of the repossession, the O'Connells sued. [R. 1.]
They claim that the repossession violated federal and
Kentucky law, including: (i) the Fair Debt Collection
Practices Act, (ii) Negligence Per Se, (iii), the Kentucky
Consumer Protection Act, and (iv) Kentucky's tort for
conversion. Id. And, as a result of these violations
the O'Connells argue they are entitled to statutory,
emotional, and punitive damages. Id. The Defendants
moved for summary judgment on the O'Connell's claims
for violation of the KCPA and the tort of conversion; this
same motion also moved to dismiss the O'Connell's
request for emotional and punitive damages. [R. 39.] A day
later, the O'Connells moved for summary judgment on their
FDCPA and Negligence Per Se claims. [R. 41.] Both motions for
Partial Summary Judgment are GRANTED for the
reasons outlined below.
judgment is appropriate when “the pleadings, discovery
and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c)(2); Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). “A genuine dispute exists on a
material fact, and thus summary judgment is improper, if the
evidence shows ‘that a reasonable jury could return a
verdict for the nonmoving party.'” Olinger v.
Corp. of the President of the Church, 521 F.Supp.2d 577,
582 (E.D.Ky.2007) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986)). The moving party has the initial burden of
demonstrating the basis for its motion and identifying those
parts of the record that establish the absence of a genuine
issue of material fact. Chao v. Hall Holding Co.,
Inc., 285 F.3d 415, 424 (6th Cir.2002). The movant may
satisfy its burden by showing “that there is an absence
of evidence to support the non-moving party's
case.” Celotex Corp., 477 U.S. at 325, 106
S.Ct. 2548. Once the movant has satisfied this burden, the
nonmoving party must go beyond the pleadings and come forward
with specific facts to demonstrate there is a genuine issue
in dispute. Hall Holding, 285 F.3d at 424 (citing
Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548).
Court must then determine “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th
Cir.1989) (quoting Anderson, 477 U.S. at 251-52, 106
S.Ct. 2505). In making this determination, the Court must
review the facts and draw all reasonable inferences in favor
of the non-moving party. Logan v. Denny's, Inc.,
259 F.3d 558, 566 (6th Cir. 2001) (citing Anderson,
477 U.S. at 255, 106 S.Ct. 2505). Summary judgment is
inappropriate where there is a genuine conflict “in the
evidence, with affirmative support on both sides, and where
the question is which witness to believe.” Dawson
v. Dorman, 528 Fed.Appx. 450, 452 (6th Cir.2013).
the claims presented, including the sole federal claim, rely
on Kentucky substantive law. Nonetheless, federal procedural
law will govern as applicable, including in establishing the
appropriate summary judgment standard. Weaver v. Caldwell
Tanks, Inc., 190 Fed.Appx. 404, 408 (6th Cir. 2006).
O'Connell's FDCPA and Negligence Per Se claims do not
stand on their own. Instead, Mr. and Mrs. O'Connell must
show that the Defendants' repossession of their truck
violated the Kentucky law. In Kentucky, KRS 355.9-609
provides the limitations on how a secured party may seek to
repossess collateral. Therefore, the Court begins its
analysis by determining ...