Trazell v. Wilmers ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DELONTE EMILIANO TRAZELL, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-01369 (ABJ)
)
ROBERT G. WILMERS, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Delonte Emiliano Trazell, proceeding pro se, filed this case against defendants
Manufactory and Traders Trust Bank (“MT&T”); Robert G. Wilmers, CEO and Director of
MT&T; and Michael Trayder, in his capacity as an employee of MT&T (collectively
“defendants”). In his amended complaint, plaintiff alleges that defendants repossessed his
vehicle on June 19, 2012, in violation of:
the Treaty of Watertown of 1776;
the Fourth and Fifth Amendments to the United States Constitution;
12 U.S.C. § 83;
15 U.S.C. § 1681s-2;
18 U.S.C. §§ 112, 1341;
42 U.S.C. § 1983;
United Nations Resolution 61/295 on the Declaration of Rights of Indigenous
Peoples;
United Nations Resolution 60/147; and
D.C. Municipal Regulations title 16, §§ 341.1, 341.3, 341.5.
Am. Compl. at 1–2 [Dkt. # 7].
Defendants filed a motion to dismiss for failure to state a claim upon which relief can be
granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mot. to Dismiss (“Defs.’
Mot.”) [Dkt. # 13]; see also Defs.’ Mem. in Supp. of Defs.’ Mot. to Dimiss (“Defs.’ Mem.”)
[Dkt. # 14]. In response, plaintiff filed a motion for summary judgment and a supplemental
memorandum. Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”) [Dkt. # 17]; Pl.’s Supplemental Mem. in
Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Supp. Mem.”) [Dkt. # 23]. For the reasons stated below,
the Court will grant defendants’ motion to dismiss in part and deny it in part. The Court will also
deny plaintiff’s motion for summary judgment.
BACKGROUND
Based on the limited information provided in the amended complaint, the Court has
ascertained the following facts: Plaintiff is the registered owner of a Dodge Charger. Am.
Compl. ¶ 1. On June 19, 2012, his vehicle was removed from southeast Washington, D.C., id.
¶¶ 1, 3(a), and MT&T employee Timothy Worrell left his business card on plaintiff’s front door,
id. ¶ 3. The vehicle is now being stored in Clinton, M.D. Id. ¶ 1. According to plaintiff, “[t]here
is NO ‘instrument of security’ or ‘document of title’ between M & T BANKING CORP or
MANUFACUTORY AND TRADERS INC. and [plaintiff]” regarding his vehicle. Id. ¶ 2.
Plaintiff filed suit giving rise to the instant case. In his amended complaint, plaintiff
alleges that defendants violated several of his constitutional and statutory rights, international
resolutions, and three District of Columbia Municipal Regulations. Defendants moved to
dismiss plaintiff’s amended complaint for failure to state a claim upon which relief can be
granted. Plaintiff opposed the motion to dismiss and filed his own motion for summary
judgment.
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STANDARD OR REVIEW
I. Motion to Dismiss
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); accord Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two
principles underlying its decision in Twombly: “First, the tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 129 S.
Ct. at 1949. And “[s]econd, only a complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. at 1950.
A claim is facially plausible when the pleaded factual content “allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949.
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than
“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id.,quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice,” id.When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed
liberally in plaintiff’s favor, and the Court should grant plaintiff “the benefit of all inferences that
can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994). This is particularly true where the plaintiff proceeds pro se because a pro se
complaint is held “to less stringent standards than formal pleadings drafted by lawyers.” Haines
v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Nevertheless, the Court need not accept
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inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the
complaint, nor must the Court accept plaintiff’s legal conclusions. See id.; Browning v. Clinton,
292 F.3d 235, 242 (D.C. Cir. 2002). Additionally, regardless of the less stringent standard for
pro se litigants, plaintiff’s complaint “must present a claim upon which relief can be granted.”
Wada v. U.S. Secret Serv., 525 F. Supp. 2d 1, 9 (D.D.C. 2007), quoting Henthorn v. Dep’t of
Navy, 29 F.3d 682, 684 (D.C. Cir. 1994) (internal quotation marks omitted).
In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily
consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated
by reference in the complaint, and matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).
However, where the plaintiff proceeds pro se, the Court may “consider supplemental material
filed by a pro se litigant . . . to clarify the precise claims being urged.” Greenhill v. Spellings,
482 F.3d 569, 572 (D.C. Cir. 2007).
II. Motion for Summary Judgment
Summary judgment is appropriate “if the movant shows 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). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing that there is a
genuine issue for trial.” Id. at 324 (internal quotation marks omitted). Merely identifying a fact
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in dispute is not enough to preclude summary judgment, Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986); a dispute is “genuine” only if a reasonable fact-finder could find for
the non-moving party, and a fact is only “material” if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party’s motion, “[a]ll underlying facts and inferences are analyzed in the light most
favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d
57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.
ANALYSIS
In his amended complaint, plaintiff alleges that defendants violated his constitutional and
statutory rights, international law, and D.C. Municipal Regulations by repossessing his vehicle.
Defendants moved to dismiss plaintiff’s amended complaint for failure to state a claim upon
which relief can be granted. As described in more detail below, the Court concludes that
plaintiff failed to allege enough facts in his complaint to state claims for violations of the Treaty
of Watertown, the Fourth Amendment, the Fifth Amendment, 12 U.S.C. § 83, 15 U.S.C. §
1681s-2, 18 U.S.C. § 112, 18 U.S.C. § 1341, 42 U.S.C. § 1983, United Nations Resolution
60/147, United Nations Resolution 61/295, D.C. Municipal Regulation § 341.1, and D.C.
Municipal Regulation § 341.3. However, the Court also finds that plaintiff did allege sufficient
facts to state a claim for a violation of D.C. Municipal Regulation § 341.5 and the claim that
defendants did not have a valid security interest in plaintiff’s vehicle. Therefore, the Court will
grant defendants’ motion to dismiss in part and deny it in part.
I. Plaintiff failed to state a claim for violation of the Treaty of Watertown.
The Treaty of Watertown of 1776 was the first treaty to recognize the United States as an
independent nation. The Historical Society of Watertown, http://historicalsocietyofwatertown
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ma.org/HSW/index.php?option=com_content&view=article&id=86&Itemid=66 (last visited Oct.
8, 2013). It was signed by “the Governors of the State of Massachusetts Bay, and the Delegates
of the St. John’s and Micmack Tribes of Indians.” Treaty of Watertown of 1776,
http://historicalsocietyofwatertownma.org/HSW/HSWdocs/treatyofwatertown.pdf (last visited
Oct. 8, 2013). The treaty memorialized an agreement for peace between the recently declared
independent American colonies and the St. John’s and Micmack nations as well as those nations’
agreement to support American rebels in the ongoing Revolutionary War against Great Britain.
Id. Additionally, the treaty stated that, “if any robbery or outrage happens to be committed by
any of the subjects . . . of the United States of America upon any of the people of said Tribes, the
said State shall upon proper application being made, cause satisfaction and restitution speedily to
be made to the part injured.” Id.
In his amended complaint, plaintiff summarily states that defendants violated the Treaty
of Watertown when they repossessed his vehicle. Am. Compl. at 1. Presumably in support of
his claim, plaintiff indicates that he is a member of the Cherokee-Choctaw nation and attaches to
his complaint a photocopy of his Indigenous Government Identification card. Ex. 1 to Compl.
[Dkt. # 1-1]. Plaintiff did not provide any other facts as to why he believes that defendants
violated the treaty. Granting plaintiff the benefit of the facts alleged in his amended complaint –
specifically that defendants repossessed his vehicle – the Court presumes that plaintiff bases his
Treaty of Watertown claim on the provision in the treaty that provides that the State will redress
an injury suffered by a member of the St. John’s or Micmack nations if that injury is a result of a
robbery or outrage committed by a U.S. citizen.
Even granting plaintiff that inference, however, the Court concludes that plaintiff fails to
state a claim for violation of the Treaty of Watertown. As alleged in the amended complaint and
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established by plaintiff’s government identification card, plaintiff is a member of the Cherokee-
Choctaw nation. Id.; see also Am. Compl. at 1. He does not allege that he is also a member of
either the St. John’s nation or the Micmack nation, which were the only two Native American
nations that signed the treaty. As a result, the Treaty of Watertown affords plaintiff no rights,
and the Court therefore finds that plaintiff failed to state a claim for violation of the treaty.
II. Plaintiff failed to state a claim for violation of the Fourth Amendment, the Fifth
Amendment, and 42 U.S.C. § 1983 because he failed to assert sufficient facts to
establish the state action required to trigger the protection of those provisions.
The Fourth Amendment to the United States Constitution establishes, in pertinent part,
that “[t]he right of the people to be secure in their . . . effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. Its purpose is to “secure the citizen in
the right of unmolested occupation of his dwelling and the possession of his property, subject to
the right of seizure” through the legal process. Burdeau v. McDowell, 256 U.S. 465, 475 (1921).
It applies only to government action, id.; see also Coolidge v. New Hampshire, 403 U.S. 443,
487–90 (1971) (analyzing whether the defendant’s wife could be considered an agent of the
government so as to implicate the defendant’s Fourth Amendment rights), which arises when an
individual acts in his or her official government capacity or where an individual, who is not
officially affiliated with the government, acts as an agent of the government, Skinner v. Ry.
Labor Execs.’ Ass’n, 489 U.S. 602, 614 (1989) (“Although the Fourth Amendment does not
apply to a search or seizure, even an arbitrary one, effected by a private party on his own
initiative, the Amendment protects against such intrusions if the private party acted as an
instrument or agent of the Government.”).
The Fifth Amendment Due Process Clause, on the other hand, provides that “[n]o person
shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const.
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amend. V. Like the Fourth Amendment, the Due Process Clause only applies to government
action. Shelley v. Kraemer, 334 U.S. 1, 13 (1948); Comm. of U.S. Citizens Living in Nicar. v.
Reagan, 859 F.2d 929, 946 (D.C. Cir. 1988). More specifically, the Fifth Amendment Due
Process Clause only applies to actions of the federal government, see Shelley, 334 U.S. at 13;
Comm. of U.S. Citizens, 859 F.2d at 946, and it only applies to private action in cases where a
“private party’s behavior . . . [is] instigated by or dependent upon the exercise of governmental
authority,” Comm. of U.S. Citizens, 859 F.2d at 946, quoting Franz v. United States, 707 F.2d
582, 591 (D.C. Cir. 1983).
Finally, 42 U.S.C. § 1983 creates a civil cause of action for individuals who have been
deprived of “any rights, privileges, or immunities secured by the Constitution and laws.” 42
U.S.C. § 1983 (2012). Like the protections afforded by the Fourth and Fifth Amendments, the
cause of action created by section 1983 only applies to individuals acting “‘under color of’ the
law of a state, territory or the District of Columbia.” Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir.
1991). In other words, it only applies to those individuals working in their official state
governmental capacity or to private parties that are deemed to be acting under color of state law.
See id. “Private parties . . . may be deemed to have acted under color of law in two
circumstances: when they conspire with state officials, and when they willfully engage in joint
activity with a state or its agents.” Id.; see also Nader v. McAuliffe, 593 F. Supp. 2d 95, 100
(D.D.C. 2009) (“Although § 1983 ordinarily does not create a cause of action related to the
conduct of private parties, private conduct may be deemed to be ‘under color of state law’ when
it is ‘fairly attributable’ to the state.”), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982).
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Here, plaintiff’s amended complaint names three parties as co-defendants in this case:
MT&T – a privately owned bank – and two employees of that privately owned bank. Am.
Compl. at 1. He does not allege any facts that suggest that defendants acted in an official
government capacity when they repossessed his vehicle, nor does he allege any facts that suggest
defendants were acting as an instrument of the government when they repossessed his vehicle.
See generally id. Consequently, the Court concludes that plaintiff failed to state a claim for
violation of the Fourth Amendment, the Fifth Amendment Due Process Clause, and section
1983.
III. Plaintiff failed to state a claim for violation of the cited United States Code
provisions.
In his amended complaint, plaintiff alleges that defendants violated several U.S. Code
provisions. See Am. Compl. But plaintiff has not provided sufficient facts “to state a claim to
relief that is plausible on its face” for violations of these statutes. See Iqbal, 129 S. Ct. at 1960;
quoting Twombly, 550 U.S. at 570.
First, plaintiff alleges a violation of 18 U.S.C. § 112, which provides protection to foreign
officials, official guests, and internationally protected persons from physical attack or
imprisonment. 18 U.S.C. § 112 (2012). Even assuming that plaintiff is within the class
protected by this statute, his amended complaint contains no facts that suggest that he was either
physically attacked or imprisoned. Instead, the facts in plaintiff’s amended complaint appear
only to assert that his vehicle was wrongfully repossessed. See Am. Compl. Consequently,
plaintiff failed to state a claim for violation of 18 U.S.C. § 112.
Second, plaintiff asserts that defendants violated 12 U.S.C. § 83 and quotes subsection (a)
of that statute, which provides that “[n]o national bank shall make any loan or discount on the
security of the shares of its own capital stock.” 12 U.S.C. § 83(a) (2012); accord Am. Compl. ¶
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6(a)(i). He then states that “Michael N. Trayder, M&T Bank employee sent posting stating [sic],
‘there’s not enough collateral to secure loan.’” Am. Compl. ¶ 6. But section 83 does not
prohibit a bank from denying customers loans based on an insufficiency of collateral; instead, it
prohibits a bank from using the bank’s capital stock as security for loans or discounts. 12 U.S.C.
§ 83. Even if a violation of this provision could give rise to a private cause of action, plaintiff
does not allege that the bank has used or is using its capital stock as security for loans or
discounts, and he has not asserted facts that support an inference that defendants violated section
83. He therefore failed to state a claim for violation of 12 U.S.C. § 83.
Third, plaintiff alleges a violation of 15 U.S.C. § 1681s-2 and quotes subsection
(a)(1)(A), which provides that “[a] person shall not furnish any information relating to a
consumer to any consumer reporting agency if the person knows or has reasonable cause to
believe that the information is inaccurate.” 15 U.S.C. § 1681s-2(a)(1)(A) (2012); accord Am.
Compl. ¶ 5(a)(i). Although plaintiff’s amended complaint flatly states that there were “(11)
HARD inquiries to credit report,” Am. Compl. ¶ 5, he does not allege facts that suggest that
defendants knowingly provided false information about him to a credit reporting agency, nor
does he even allege facts that demonstrate that defendants provided information about his credit
to anyone. Thus, despite the additional facts in connection with this claim, plaintiff failed to
state a claim for violation of section 1681s-2 because he failed to allege sufficient facts to create
an inference that defendants violated that statute.
Fourth, plaintiff alleges a violation of 18 U.S.C. § 1341 – commonly referred to as the
“mail fraud” statute – which criminalizes the use of United States Postal Service or an interstate
carrier to further a fraudulent purpose. 18 U.S.C. § 1341 (2012). In support for his assertion that
defendants violated this statute, plaintiff merely states “(10) post items,” Am. Compl. ¶ 4, and
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“when post is delivered to addressee spelled as ‘PROPER NAME’ under the guise to extort
resources from an individual it denotes mail fraud,” Pl.’s Supp. Mem. at 4. Putting aside the
question of whether a private party can bring a civil action complaining of the alleged
commission of this offense, plaintiff does not allege any facts that would indicate that defendants
defrauded him or used the mail in furtherance of the alleged fraud. As a result, his amended
complaint does not state sufficient facts necessary to make it plausible that defendants violated
section 1341, and plaintiff therefore failed to state a claim for violation of that statute.
As a final point, the Court notes that plaintiff cannot rely on statutory quotes or his
conclusory statements that defendants violated a statute to satisfy the pleading requirement. In
Iqbal, the Supreme Court stated that a pleading must offer more than “labels and conclusions” or
a “formulaic recitation of the elements of a cause of action” to survive a motion to dismiss for
failure to state a claim. 129 S. Ct. at 1949, quoting Twombly, 550 U.S. at 555. The Supreme
Court also reemphasized that, when considering a motion to dismiss for failure to state a claim,
the requirement that the court “accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. Consequently, in order to survive a motion to dismiss,
plaintiff must provide facts that support his claim that defendants violated the listed statutory
provisions instead of just announcing that the provisions were violated and quoting parts of the
statutes. As discussed above, plaintiff did not provide those facts. Thus, the Court finds that
plaintiff failed to state a claim for relief based on alleged violations of 12 U.S.C. § 83, 15 U.S.C.
§ 1681s-2, 18 U.S.C. § 112, and 18 U.S.C. § 1341.
IV. Plaintiff failed to state a claim for violation of either United Nations resolution.
On September 13, 2007, the General Assembly of the United Nations adopted a
resolution titled “61/295. United Nations Declaration on the Rights of Indigenous Peoples.”
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G.A. Res. 61/295 (Sept. 13, 2007). The resolution sets forth various statements regarding the
equality of indigenous populations and propounds forty-six articles listing internationally
recognized rights, such as that “[i]ndigenous peoples have the right to determine the
responsibilities of individuals to their communities” and “[i]ndigenous peoples have the right to
redress . . . for the lands, territories and resources which they have traditionally owned or
otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged
without their free, prior and informed consent.” Id. art. 28, 35. In other words, the resolution –
which was officially endorsed by President Obama in 2010 – creates an expectation that
members of the United Nations will maintain a certain level of respect for indigenous peoples,
their culture, and their independence.
United Nations Resolution 60/147, on the other hand, sets forth basic principles and
guidelines on the rights of victims of gross violations of international human rights law and
international humanitarian law. G.A. Res. 60/147 (Dec. 16, 2005). Specifically, it creates the
expectation that nations will respect, and ensure that others respect, international human rights
law and international humanitarian law by ensuring that domestic law is consistent with
international legal obligations, investigating alleged violations of international humanitarian law,
and aiding in prosecution of those who violate international humanitarian law. Id. It also creates
guidelines for redressing injuries caused by violations of international human rights and
humanitarian law. Id.In his amended complaint, plaintiff asserts that defendants violated both resolution
61/295 and resolution 60/147. Am. Compl. at 2, 4. The first problem with these allegations is
that the resolutions are meant to govern the conduct of nations, not private parties. And there are
serious questions as to whether one can bring a civil action to enforce the resolutions. But even if
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these hurdles could be surmounted, plaintiff provides no facts in support of these claims. He
states that, under “UN 61/295 ARTICLE 25[,] Indigenous peoples have the right to the lands
which they have traditionally owned, occupied or otherwise acquired,” id. at 4, and he appears to
include his vehicle in that category, see id. But plaintiff’s conclusory statements that defendants
repossessed his vehicle and violated the two UN resolutions do not satisfy the pleading
requirements under Twombly and Iqbal. See Iqbal, 129 S. Ct. at 1949, quoting Twombly, 550
U.S. at 555. 1 There is no indication in the complaint that plaintiff’s vehicle would fall within the
protection of the resolutions.
Moreover, plaintiff has not provided any facts indicating that, even if a UN resolution
protects his vehicle from repossession, the vehicle was unlawfully taken in a manner that violates
the expectation that the State “give legal recognition and protection to these lands, territories and
recourses.” G.A. Res. 61/295 at art. 26. In other words, plaintiff does not – and likely cannot –
set forth facts indicating that his vehicle is a resource traditionally owned by Cherokee-Choctaw
natives or that defendants’ taking of the vehicle amounted to the type of forced government
taking of the lands and natural resources that led to the adoption of resolution 61/295. Finally,
plaintiff makes no attempt to explain or provide facts in support of his claim that the
repossession of his vehicle violates international human rights law or international humanitarian
law, thereby triggering the protection of UN resolution 60/147. Consequently, the Court
concludes that plaintiff failed to state a claim for violation of UN resolution 61/295 or UN
resolution 60/147.
1 In his amended complaint, plaintiff actually refers to article 25 of UN resolution 61/295.
See Am. Compl. at 4. However, the language he then provides regarding the right of indigenous
peoples to lands they have traditionally owned is actually found in article 26. Therefore, the
Court presumes that plaintiff intended to refer to article 26, not article 25, which provides that
“[i]ndigenous peoples have the right to maintain and strengthen their distinctive spiritual
relationship.” G.A. Res. 61/295 at art. 25.
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V. Plaintiff failed to state a claim for violation of D.C. Municipal Regulation title
16, §§ 341.1, 341.3.
Section 341 of Title 16 of the D.C. Municipal Regulations sets forth the duties of a holder
upon repossession of a vehicle. Specifically, it provides – among other things – that, if the
default leading to repossession “consists solely of the buyer’s failure to make one (1) or more
installment payments due under the instrument of security, and the default is not more than
fifteen (15) days past due, then the holder must deliver,” at least “ten (10) days before any motor
vehicle is repossessed, . . . a written notice of the holder’s intention to repossess the vehicle.”
D.C. Mun. Regs. tit. 16, §§ 341.1, 341.3 (2013).
In his amended complaint, plaintiff appears to assert that defendants did not abide by the
requirements of section 341 when they repossessed his vehicle. Specifically, he quotes the
regulatory language from sections 341.1 and 341.3. Am. Compl. ¶¶ 1(a)(i), 2(a)(i), 3(a)(i)(1).
He then states that he is the “registered owner of motor vehicle DODGE CHARGER,” that the
vehicle is “now unlawfully stored” in Clinton, M.D., and that he discovered his vehicle was
missing on June 19, 2012. Id. ¶ 1. He also states that “[t]here is NO ‘instrument of security’ or
“document of title’ between M & T BANKING CORP or MANUFACTORY AND TRADERS
INC. and [him],” id. ¶ 2, that “M&T BANK Agent Timothy Worrell left his business card on
[plaintiff’s] door,” id. ¶ 3, and that the removal occurred in southeast Washington, DC, id. ¶ 3(a).
Finally, plaintiff asserts that defendants never went through the civil process required to
repossess his vehicle. Id. at 4.
Despite the regulatory language he quotes and the facts he provides, plaintiff failed to
state a claim for violation of those regulations. As discussed above, quoting regulatory language
and making conclusory statements that a law is violated, without facts supporting that inference,
does not satisfy the pleading requirements. Iqbal, 129 S. Ct. at 1949. Although plaintiff claims
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that his vehicle was unlawfully repossessed, he does not provide facts to support the legal
determination that his vehicle was unlawfully repossessed. For example, plaintiff does not assert
that, at the time his vehicle was repossessed, his payments were either not in default or were in
default for fifteen days or less. As a result, plaintiff failed to establish that the notice
requirement set in section 341.1 is mandatory as applied to his case. Moreover, even if plaintiff
did set out sufficient facts to establish that notice was required, he still did not assert the facts
necessary to state a claim for violation of section 341.1 and section 341.3 because he failed to
assert that defendants did not comply with the notice requirement in section 341.1. Therefore,
plaintiff did not provide the facts necessary to infer that defendants violated the requirements
established in sections 341.1 and 341.3, and the Court finds that he failed to state a claim for
violation of D.C. Municipal Regulation §§ 341.1, 341.3.
VI. Plaintiff stated a claim for violation of D.C. Municipal Regulation § 341.5.
In addition to his other D.C. Municipal Regulation claims, plaintiff asserts that
defendants violated section 341.5 of title 16. That section provides:
For fifteen (15) days after the notice required by § 341.4 has been delivered
personally or mailed, the holder shall retain or store the repossessed motor vehicle
in the District or the state and county in which the consumer resides or the state
and county where it was located and repossessed. During this period the buyer
may redeem the motor vehicle and become entitled to take possession of it.
D.C. Mun. Regs. tit. 16, § 341.5 (2013). Unlike his other claims, plaintiff makes the express,
factual statement that defendants violated this provision by stating that “[t]he vehicle
repossession occurred within the District of Columbia and immediately stored in Maryland
[sic].” Pl.’s Supp. Mem. at 7. He therefore provides sufficient facts for the Court to find that it
is plausible that defendants violated section 341.5’s fifteen day requirement.
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It is true that this assertion appears in Plaintiff’s Supplemental Memorandum in Support
of his Motion for Summary Judgment and not his complaint. But because plaintiff is proceeding
pro se, this Court may consider supplemental filings in order to determine whether a motion to
dismiss is warranted. See Greenhill, 482 F.3d at 572. Consequently, based on plaintiff’s factual
allegation, which the Court must accept as true at the motion to dismiss stage, the Court
concludes that plaintiff has asserted sufficient facts to state a claim for violation of section 341.5.
But, the Court cautions that this holding does not express any view on the merits of the claim.
VII. Plaintiff stated a claim that defendants repossessed his vehicle without a
valid security interest in that vehicle.
Plaintiff’s last claim asserts that defendants acted unlawfully when they repossessed his
vehicle because “[t]here is NO ‘instrument of security’ or ‘document of title’ between M & T
BANKING CORP or MANUFACTORY AND TRADERS INC. and [plaintiff].” Am. Compl. ¶
2. Without a valid security interest, defendants would have no lawful interest in plaintiff’s
vehicle, and repossession of that vehicle would be unlawful. Thus, plaintiff has asserted
sufficient facts for this Court to conclude that it is plausible that defendants acted unlawfully
when they repossessed plaintiff’s vehicle, and the motion to dismiss the claim will be denied.
Once again, though, the Court notes that this is not a determination that the repossession was
unlawful.
VIII. Plaintiff is not entitled to summary judgment on his remaining claims.
Because the Court finds that plaintiff failed to state claims for the violation of the Treaty
of Watertown, the Fourth Amendment, the Fifth Amendment, 12 U.S.C. § 83, 15 U.S.C. §
1681s-2, 18 U.S.C. § 112, 18 U.S.C. § 1341, 42 U.S.C. § 1983, United Nations Resolution
60/147, United Nations Resolution 61/295, D.C. Municipal Regulation § 341.1, and D.C.
Municipal Regulation § 341.3, those claims are dismissed and plaintiff’s motion for summary
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judgment on those counts will be denied as moot. Additionally, although plaintiff successfully
stated a claim for violation of D.C. Municipal Regulation § 341.5 and a claim that defendants did
not have a valid security interest in his vehicle, the Court finds that the entry of summary
judgment on these claims would be premature and inappropriate. Therefore, plaintiff’s motion
as to those counts will be denied without prejudice.
In order for the Court to grant summary judgment, “the movant [must] show[] 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). Therefore, the non-movant may defeat summary judgment by
“designat[ing] specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477
U.S. at 324 (internal quotation marks omitted). Here, a genuine issue of material fact exists with
respect to both of plaintiff’s remaining claims.
Again, plaintiff claims that defendants violated D.C. Municipal Regulation § 341.5
because, as he alleges, his vehicle was immediately removed from the District of Columbia upon
its repossession. Pl.’s Supp. Mem. at 7. Defendants have responded with evidence that the
vehicle was not removed until after the required fifteen day period. Nowicki Decl. ¶ 8 [Dkt. #
19-1]. This disagreement about when defendants removed the vehicle gives rise to a genuine
dispute about a material fact and defeats plaintiff’s motion.
Similarly, summary judgment is inappropriate with regard to plaintiff’s claim that
defendants did not have a valid security interest in his vehicle. Unlike at the motion to dismiss
stage, the Court may consider other filings in addition to the pleadings, such as “depositions,
documents, electronically stored information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A); see also
Anderson, 477 U.S. at 247. Additionally, in assessing a party’s motion for summary judgment,
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“[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving
party.” N.S. ex rel. Stein, 709 F. Supp. 2d at 65, citing Anderson, 477 U.S. at 247. Here,
plaintiff claims that there is no valid security agreement giving defendants a security interest in
his vehicle. Am. Compl. ¶ 2. Defendants rebutted this statement by filing both a declaration
stating that a valid security interest exists, Nowicki Decl. ¶ 7, and a copy of the retail sales
contract that purportedly creates the security interest, Ex. A to Nowicki Decl. [Dkt. # 19-1].2
Consequently, there is a genuine dispute of material fact that precludes a grant of summary
judgment in plaintiff’s favor on his claim that defendants repossessed his vehicle without a valid
security interest.
2 The Court notes that, even though defendants filed a copy of the retail sales agreement –
which is enough to create a genuine issue of material fact as to the existence of the security
interest – MT&T’s relationship and connection to the retail sales contract is unclear.
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