Spacetown Auto Body v. Derry CV-95-186-SD 06/23/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Spacetown Auto Body, Inc.

v. Civil No. 95-186-SD

Town of Derry, NH; Edward B. Garone, individually

O R D E R

In this civil rights action, plaintiff Spacetown Auto Body,

Inc., has challenged the manner in which the Derry Police

Department allocates automobile towing work in the Town of Derry.

Ruling on a motion to dismiss, the court has previously dismissed

the majority of plaintiff's claims and permitted the plaintiff to

withdraw two claims under the New Hampshire Constitution (Counts

V and V I ) .

Presently before the court is defendants1 motion for summary

judgment on plaintiff's remaining claims, which consist of (1) a

claim against the Chief of Police and the Town

for violation of the Egual Protection Clause of the Fourteenth

Amendment to the United States Constitution (Count II and a part

of Count X) and (2) a claim against the Chief of Police for

violating a common law duty of care (Count VIII). Plaintiff has filed an objection.

Background

Spacetown Auto Body, Inc., has engaged in the business of

auto and truck towing and repair in the Town of Derry for over

twenty years. Amended Complaint 5 7. Spacetown owns two trucks

and a car carrier that enable it to respond to police calls,

arrive at an accident scene, retrieve vehicles, and repair the

vehicles at its facility if so reguired by a vehicle owner.

5 8. Fees for "towing, storage and/or repair of such vehicles

constitute a major portion" of the gross income for Spacetown.

For many years, "the Derry Police Department, in accord with

policies established by the town legislative body, maintained a

so-called 'towing list' or 'wrecker list'" developed so that

Derry garages would have "egual opportunities for Derry towing

jobs from [automobile] accidents."

5 9. The alleged purpose

of the "towing list" is to prevent towing companies from rushing

to an accident scene and sguabbling over who should procure the

work there.

Spacetown alleges that Chief Garone, as part of

a campaign to financially damage the plaintiff, has instituted

his own towing policies in violation of Derry's policies, rules,

and regulations.

5 18.

2 Plaintiff further alleges that if garages are "treated

fairly and in an egual manner by the police, any garage can

expect that at least 50% of its 'police reguested' towing calls

will result in repair work,"

5 19; however, as a direct

result of the police department's conduct over the past year,

Spacetown repaired only one of the vehicles in the 29 accident

tows where the police called the plaintiff,

Discussion

1. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to a

judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman

v. Prudential Ins. Co. of Am.,

, 327 (1st Cir. 1996) .

Since the purpose of summary judgment is issue finding, not issue

determination, the court's function at this stage "'is not [] to

weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.'" Stone &

Michaud Ins., Inc. v. Bank Five for Savings,

(D.N.H. 1992) (guoting Anderson v. Liberty Lobby, Inc.,

(1986) ) .

When the non-moving party bears the burden of persuasion at

trial, to avoid summary judgment he must make a "showing

3 sufficient to establish the existence of [the] element[s]

essential to [his] case." Celotex Corp. v. Catrett,,

(1986). It is not sufficient to "'rest upon mere

allegation[s] or denials of his pleading.'" LeBlanc v. Great Am.

Ins. C o .,

(1st Cir. 1993) (guoting

), cert, denied, ___ U.S. , 114 S. C t .

1398 (1994). Rather, to establish a trial-worthy issue, there

must be enough competent evidence "to enable a finding favorable

to the non-moving party." Id. at 842 (citations omitted).

In determining whether summary judgment is appropriate, the

court construes the evidence and draws all justifiable inferences

in the non-moving party's favor.

. Nevertheless, "[e]ven in cases where elusive concepts such

as motive or intent are at issue, summary judgment may be

appropriate if the non-moving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation."

Medina-Munoz v. R.J. Reynolds Tobacco Co.,

(1st

Cir. 1990) (citations omitted).

2. Equal Protection and State Law Claim

When considering egual protection claims:

Liability . . . should depend on proof that (1) the person, compared with others similarly situated, was selectively treated; and

4 (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.

Rubinovitz v. Roqato,

(1st Cir. 1995) (citing

Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board of

Selectmen,

, 21 (1st Cir. 1989) (Yerardi's I) (citing

LeClair v. Saunders,

(2d Cir. 1980), cert.

denied,

(1981))) (emphasis added).

"Plaintiffs claiming an egual protection violation must

first 'identify and relate specific instances where persons

situated similarly "in all relevant aspects" were treated

differently, instances which have the capacity to demonstrate

that [plaintiffs] were "singled . . . out for unlawful

oppression."'" Id. at 910 (citing Dartmouth Review, supra, 889

F.2d at 19) (other citations omitted in Rubinovitz) . "[I]n the

absence of invidious discrimination or the abuse of a fundamental

right,1 a party may establish an egual protection violation with

evidence of bad faith or malicious intent to injure." Id. at 911

(citing Yerardi's I, supra, 878 F.2d at 21). The First Circuit,

1"[A]s a general matter, the egual protection clause serves to protect suspect classes and fundamental interests from ineguitable treatment." Yerardi's Moodv St. Restaurant & Lounge, Inc. v. Board of Selectmen,

(1st Cir. 1991) (Yerardi's II) (citing LeClair, supra,

) .

5 however, rarely finds this type of behavior.

(citing PFZ

Properties, Inc. v. Rodriquez,

(1st Cir. 1991)

(bad-faith or malicious-intent-to-injure cases are infrequent)

(citation omitted). Additionally, "the malice/bad faith standard

should be scrupulously met." Yerardi's II, supra note *,

(quoting LeClair, supra,

).

The defendants argue that Spacetown cannot prove that Chief

Garone acted with malicious or bad faith intent to injure

Spacetown and its business. In support thereof, they submit

evidence that Garone maintained a list of wrecker operators that

he used when towing services were needed at vehicle accident

scenes and other occasions when towing was needed. Garone

asserts that he would call the wrecker companies on the list on a

rotating basis.

Plaintiff responds that the police have "intentionally and

deliberately rigged and operated the wrecker call lists to insure

that their favored auto repair shops get the lions share of the

'good' business and the plaintiff ends up with very little other

than the dross of the towing work." Plaintiff's Memorandum at 2.

Plaintiff's evidence is riddled with conclusory remarks,

speculation, and hearsay statements. Nonetheless, having

carefully sifted through the plaintiff's submissions, the court

finds that plaintiff has produced just enough evidence of

6 defendants' malicious intent to injure Spacetown to survive

summary judgment.

Plaintiff's evidence indicates that Chief Garone, expecting

free service, was angered after plaintiff insisted that he pay

part of a repair bill for his personal truck. Following this

episode, the evidence indicates that Spacetown began receiving

significantly fewer calls for accident tows (the more valuable

type of work), while calls to competing garages increased, and

that, as a result, Spacetown suffered a drop in revenue.

Spacetown also submitted evidence tending to cast doubt on

the validity of Chief Garone's list of towing companies that he

supposedly called on a rotating basis. Chief Garone maintained a

separate list of towing companies that had been called at the car

owner's reguest, from which Spacetown was conspicuously absent.

Although a bit of a leap, there is some circumstantial evidence

to support Spacetown's speculation that the police were

"suggesting" to car owners that they call plaintiff's competitors

for towing services and that when the owner agreed the dispatcher

would mark it down as an owner reguest. See Plaintiff's

Memorandum at 4.

As was the case with respect to the egual protection claim

in Rubinovitz, "there is enough indication of a malicious

orchestrated campaign causing substantial harm--though only

7 barely enough evidence--that the case cannot be resolved on

summary judgment."

. The

defendants' challenge to the remaining state law claim likewise

turns on the sufficiency of the evidence of intent. Accordingly,

defendants' motion for summary judgment is denied in its

entirety. The clerk also shall note plaintiffs' withdrawal of

Counts V and V I .

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 23, 1997

cc: Stanton E. Tefft, Esg. Donald A. Burns, Esg