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O'Connell v. Pursuit, LLC

United States District Court, E.D. Kentucky, Central Division

February 5, 2019

PURSUIT, LLC, et al., Defendants.




         The 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 at 3.]

         While 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.

         Finally, 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.

         As a 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.



         Summary 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).

         The 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).

         All of 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).


         The 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 ...

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