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BARRETT v. HARWOOD

June 28, 1997

JOHN AND LYNNE BARRETT, Plaintiffs,
v.
MARY HARWOOD; SCOTT SMITH; JOHN DURANT, Police Officer, Village of Malone; JAMES PHILLIPS, Chief of Police, Village of Malone; VILLAGE OF MALONE, Defendants.



The opinion of the court was delivered by: MCAVOY

 Plaintiffs John and Lynne Barrett ("John" and "Lynne") bring this action pursuant to 42 U.S.C. ยง 1983, alleging violations of their due process rights under the Fourteenth Amendment to the United States Constitution in connection with the alleged repossession of their vehicle. Plaintiffs also bring state law claims for conversion, breach of contract, and violation of the Uniform Commercial Code. Plaintiffs seek damages and injunctive relief.

 Plaintiffs now move for a preliminary injunction ordering defendant Scott Smith to immediately return their truck and to transfer any title that he has to them. Plaintiffs also request that this Court enter default judgment against defendant Mary Harwood.

 I. BACKGROUND

 John and Lynne purchased a 1982 Kenworth Truck from defendant Mary Harwood in June of 1995. (Affidavit of John and Lynne Barrett ["Barrett Aff."] P 3). The total purchase price of the truck was $ 11,000, to be paid in minimum payments of $ 300 per month during the first ten days of the month. (Id. PP 3-4). Plaintiffs took possession of the truck, as well as original title, in Harwood's name. (Barrett Aff. P 5).

 On November 8, 1996, Harwood contacted defendant Scott Smith, a towtruck operator, and asked Smith to assist with the repossession of the truck. (Smith Dep. at 21-22). Harwood told Smith that John had forged her name on certain papers and was behind on truck payments. (Id. at 22). Smith verified with the Department of Motor Vehicles that Harwood was the title owner of the truck, then contacted the Village of Malone Police, concerned that there may be violence at the scene of the repossession. (Id. at 24-25). He was told by a Sergeant Richie that the police could not assure that a patrol would swing by, but that if one became available, it would be sent over. (Id. at 25).

 Smith arrived at the scene of the repossession. Defendant John Durant arrived a few minutes later, by which time Smith had already hooked up to the truck. (Smith Dep. at 40). John then arrived at the scene and asked Officer Durant what was going on. (Durant Dep. at 14; Barrett Aff. P 11). Officer Durant responded to the effect that the truck was being repossessed for nonpayment. (Durant Dep. at 14; Barrett Aff. P 11). John stated that he had proof that he had made the payments on the truck; Officer Durant replied that he was "only there to keep the peace." (Smith Dep. at 41; John Barrett Dep. at 66).

 John then went to get his wife. When Lynne arrived on the scene she attempted to show Officer Durant papers regarding their right to the truck. (Durant Dep. at 16; Barrett Aff. P 12). Officer Durant responded that this was a civil matter in which he could not get involved. (Durant Dep. at 17; Smith Dep. at 28). Soon thereafter, Harwood arrived on the scene. John and Harwood then became involved in an argument, during which John struck Smith. (John Barrett Dep. at 68-69; Durant Dep. at 18; Smith Dep. at 30). Officer Durant told John that if he struck Smith again, he would be arrested and placed in the squad car. (Lynne Barrett Dep. at 21-22; Durant Dep. at 19; Smith Dep. at 29).

 Eventually, Smith asked John for the keys to the truck. (Smith Dep. at 30). John gave them to Smith voluntarily, the parties dispersed, and Smith towed the truck to his establishment. (Smith Dep. at 30, 55).

 II. DISCUSSION

 A. Standard for a Preliminary Injunction

 In order to obtain a preliminary injunction, the plaintiffs must show (1) irreparable harm; and (2) either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping in the movant's favor. Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811 (2d Cir. 1996); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).

 A. Irreparable Harm

 Courts in this Circuit have repeatedly held that "'perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.'" Borey v. National Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir. 1991) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)). The party seeking the preliminary injunction must demonstrate that "it is likely to suffer irreparable harm if equitable relief is denied." Borey, 934 F.2d at 34 (quoting JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. ...


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