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KOHN v. MUCIA

May 31, 1991

William B. Kohn, Plaintiff,
v.
Joseph Mucia, Leroy Martin, James E. O'Grady, Jeremy D. Margolis, E. Collins and the City of Chicago, Defendants



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 The plaintiff, William Kohn, brought this three-count action under 42 U.S.C. 1983, challenging the validity of certain sections of the Illinois Vehicles Code, and certain related sections of the Municipal Code of Chicago which authorize law enforcement agencies to seize and dispose of motor vehicles. Kohn filed suit on behalf of himself and all others similarly situated, against the City of Chicago; Joseph Mucia, individually, and in his capacity as Commanding Officer of the Automotive Pounds Section, Department of Police, City of Chicago; Leroy Martin, Superintendent of the Chicago Police Department, individually, in his official capacity and on behalf of all others similarly situated; James O'Grady, Sheriff of Cook County, individually, in his official capacity and on behalf of all others similarly situated; Jeremy Margolis, Director of the Illinois Police Department; *fn1" Edward Collins, a Chicago Police Officer; and John Doe, a person of unknown identity who tows vehicles to the Chicago Police Department Auto Pound.

 Currently pending for our consideration are several motions to dismiss and Kohn's motions for class certification and for partial summary judgment. Margolis has moved to dismiss the action against him for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). O'Grady has also moved to dismiss on the same grounds, but has framed his motion under Rule 12(b)(6) instead. Martin, Mucia, Collins, and the City of Chicago (City defendants), have moved to dismiss Kohn's complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, we decline to certify a class action. We grant Margolis and O'Grady's motions to dismiss because Kohn lacks standing to pursue a claim against them. We grant the City defendants' motion to dismiss in part, and grant partial summary judgment in favor of Kohn.

 I. Background

 The allegations of the amended complaint, and the additional submissions by the parties reveal the following facts. Kohn was the owner of a 1976 BMW automobile. Kohn's car was properly registered with the State of Illinois, and displayed current Illinois license plates. On July 24, 1989, Collins ordered defendant John Doe to tow Kohn's car from its legal parking space across the street from Kohn's apartment, at 7726 North Eastlake Terrace, Chicago, Illinois. Kohn did not personally receive prior notice of the towing nor had a notice been posted on the car that it would be towed.

 The Chicago Police Vehicle Tow Report described the tow as both an abandoned tow and an immediate ("hazard") tow. The report states that the car was "in a state of disrepair, rendering it incapable of being driven," and that it was "obstructing traffic flow" and was a "hazzard [sic] to traffic." *fn2" Kohn alleges that the specific description of disrepair noted in the report, "2 flats, no grill, rust all around," was "in part inaccurate," but he does not specify in what respects the report was inaccurate. Kohn maintains that the car was "intact," in "operating condition," and not abandoned. Thus, he disputes that the car was incapable of being driven.

 Subsequent to impounding Kohn's car on July 24, 1989, the police sold it for scrap metal on August 14, 1989. The police acted under the authority of III. Rev. Stat. ch. 95 1/2 § 4-209 (Disposal of Unclaimed Vehicles Without Notice) which provides for the sale, as junk, of impounded vehicles that are more than seven years old if disposition information has not been received from the registered owner within ten days of impoundment. Kohn alleges that he did not receive notice of the towing, impoundment or sale prior to December, 1989.

 Count I of the amended complaint seeks an order certifying plaintiff and defendant classes, and a declaration that certain provisions of the Illinois Vehicle Code, Ill. Rev. Stat. ch. 95 1/2 § § 4-201 through 4-214, are unconstitutional. Kohn claims that these sections violate the due process and equal protection clauses of the Fourteenth Amendment, and his Fourth Amendment right to be free from unreasonable searches and seizures. The challenged provisions provide for, inter alia, the removal and disposition of abandoned vehicles and vehicles creating a traffic hazard, and for notice to the owners of these vehicles. Count I also asks us to enjoin defendants Martin and O'Grady, and the defendant classes they represent, and defendants Mucia, Margolis, and the City of Chicago, from acting under the authority of Chapter 95 1/2 § § 4-201 through 4-214. Kohn complains that the provisions do not sufficiently define the requisite appearance characteristics that would allow a police officer to presume a vehicle is abandoned; that they permit seizure and detention of motor vehicles without prior notice and an opportunity for a hearing in violation of due process; that they authorize seizure and detention of motor vehicles without inquiry into probable cause for seizure and detention; and that they authorize procedures which allow for the sale of impounded motor vehicles without proper notice and opportunity for hearing.

 II. Plaintiff Class Certification

 Kohn seeks certification of two plaintiff classes under Fed. R. Civ. P. 23. The first class consists of all Illinois residents (1) whose then currently licensed or registered motor vehicles were more than seven years old at the time they were seized, detained and impounded as abandoned, lost, stolen or unclaimed vehicles by Illinois law enforcement agencies; (2) whose motor vehicles were subsequently sold or destroyed without their consent, or may be seized, detained and impounded and sold or destroyed without their consent; and (3) who did not or may not receive notice by certified United States mail, return receipt requested, of the seizure, detention and impoundment before the destruction or sale of their motor vehicles by law enforcement agencies ("Class I").

 Kohn's second proposed class consists of all persons residing in Illinois (1) whose then currently licensed or registered motor vehicles were seized, detained and impounded as abandoned, lost, stolen or unclaimed vehicles by the City of Chicago or its agents or may be so seized, detained and impounded by the City of Chicago or its agents or may be so seized, detained and impounded, pursuant to III. Rev. Stat. ch. 95 1/2 § § 4-201, 4-203, 4-208 and 4-209, or pursuant to § § 27-360, 27-372, and 27-423 through 27-429 of the Municipal Code of Chicago; (2) whose vehicles were subsequently sold or destroyed without their consent, or may be seized, detained and impounded and sold or destroyed without their consent, and (3) who did not or may not receive notice by certified United States mail, return receipt requested, of the seizure, detention and impoundment before the destruction or sale of their motor vehicles by or at the direction of the City of Chicago or its agents; or whose vehicles were not safely kept for a period of thirty days from the date of their impoundment by the City of Chicago or its agents ("Class II").

 In order to obtain class certification, a plaintiff has the burden of showing that the class should be certified and that the requirements of Rule 23 are met. Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976). Federal Rule of Civil Procedure 23(a) provides that:

 
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

 We begin with the requirement that a plaintiff class must be so numerous that the joinder of all the members is impracticable. Fed. R. Civ. P. 23(a)(1). The size of the class and the impracticability of joinder must be positively shown and not merely speculative. Marcial v. Coronet Ins. Co., 880 F.2d 954 (7th Cir. 1989); Kinzler v. New York Stock Exchange, 53 F.R.D. 75 (S.D.N.Y. 1971).

 In the present case, however, the question is not "what is the precise size of the class," but rather "is the class sizable at all?" Although he has presented evidence of the number of cars disposed of in a two year period by the City of Chicago, and has provided an indication that many of these cars were older than seven years, he has presented no basis in fact regarding whether any of these vehicles were properly registered. Leaving that crucial deficiency aside, even were we willing to assume, at least for the initial certification of the classes, that a sizeable number of vehicles disposed of were both older ...


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