United States District Court, D. Nebraska
THOMAS D. THALKEN, Magistrate Judge.
This is an action for the recovery of the plaintiff's interest in a vehicle, which, as a result of the vehicle's use in a vehicular homicide, was seized, impounded, deemed abandoned, and eventually sold at auction. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. The parties consented to proceed before the undersigned magistrate judge under 28 U.S.C. § 636(c). The parties submitted stipulated facts (Filing No. 52), indices of evidence (Filing Nos. 53-55 and 57), and written argument. The plaintiff filed a brief (Filing No. 56) in support of its argument. The defendant filed a brief (Filing No. 62) in response. The plaintiff filed a brief (Filing No. 63) in reply, whereupon the case was deemed submitted for decision.
On May 21, 2007, the plaintiff sold a vehicle to Roman Rodriguez-Rojas (Rodriguez) and Maria S. Alanis (Alanis) on credit and retained a duly perfected purchase money security interest. See Filing No. 52 - Stipulated Facts. On September 22, 2007, an Omaha Police Department (OPD) officer witnessed Rodriguez use the vehicle to intentionally pursue, run down, and kill an individual. Id. OPD officers impounded the vehicle as evidence. Id. After the defendant sent notice to the plaintiff the vehicle was no longer needed for law enforcement purposes, the vehicle remained unclaimed and was eventually sold at public auction free and clear of the plaintiff's interest. Id. The plaintiff now seeks to recover that interest.
On August 28, 2011, the plaintiff filed a complaint against the defendant in the District Court of Douglas County, Nebraska. See Filing No. 1 - Notice of Removal. On September 28, 2011, the defendant removed the action to this court. Id. On January 20, 2012, the plaintiff filed an Amended Complaint alleging four counts. See Filing No. 20 - Amended Complaint. In the first two counts, the plaintiff alleges a replevin and conversion action, respectively. Id. In count three, the plaintiff alleges the defendant deprived the plaintiff of its constitutional rights. Id. Lastly, in count four, the plaintiff seeks declaratory judgment that the impound statutes, Neb. Rev. Stat. §§ 60-1901, 60-1903, and 60-1903.01, are unconstitutional. Id. The defendant generally denies the plaintiff's allegations and asserts several affirmative defenses. See Filing No. 22 - Answer.
FINDINGS OF FACTS
The parties stipulated (Filing No. 52) to the following facts:
1. The court has jurisdiction over both the parties and the subject matter. Venue is proper pursuant to 28 U.S.C. § 1391.
2. The plaintiff is a Nebraska corporation with its principal place of business in Omaha, Nebraska.
3. The defendant is a city of the metropolitan class, a Nebraska municipal corporation, and a political subdivision of the State of Nebraska.
4. All relevant events, acts, and transactions occurred in Nebraska.
5. In May of 2007, the plaintiff entered into a promissory note with Rodriguez and Alanis for the purchase of a 1998 Lincoln Navigator, VIN #SLMPU28L4WLJ39237 (the vehicle). As security for the note, the plaintiff perfected a purchase money security interest in the vehicle. The vehicle was titled in the names of Rodriguez and Alanis, as owners, and listed the plaintiff as a first lienholder. The promissory note was in the amount of $9, 975.27.
6. On or about September 24, 2007, Rodriguez used the vehicle to intentionally pursue, run down, and kill Ryan Selway. Rodriguez committed these acts in plain view of an on-duty OPD officer. Rodriguez was arrested immediately and incarcerated. See Ex. 104.
7. The State of Nebraska, represented by the OPD, seized the vehicle from Rodriguez as evidence of felony motor vehicle homicide. On or about September 25, 2007, the State of Nebraska, represented by the Douglas County Attorney's Office, filed a criminal complaint against Rodriguez in the County Court of Douglas County, Nebraska, bearing case number CR07-28149. On or about November 1, 2007, Rodriguez was bound over to the District Court of Douglas County, Nebraska, and charged with manslaughter, use of a deadly weapon to commit a felony, and motor vehicle homicide. The criminal case was assigned to Douglas County District Court Judge Ashford. See Ex. 104.
8. On or about September 24, 2007, at the direction of the State of Nebraska, represented by the Douglas County Attorney, the vehicle was held as evidence and kept in the defendant's Impound Lot. The defendant thereafter held the vehicle as bailee. In accordance with Neb. Rev. Stat. § 29-818, the defendant's Impound Lot personnel held the vehicle as evidence awaiting the District Court of Douglas County or the Douglas County Attorney's direction the vehicle was no longer needed for evidentiary purposes.
9. By October of 2007, Rodriguez and Alanis were in default of the promissory note and owed a balance of $9, 606.49, plus an amount of interest at 17.99% per annum.
10. On or about April 16, 2009, the Douglas County Attorney's Office, on behalf of the State of Nebraska, authorized release of the vehicle. See Ex. 102.
11. By Certified Mail dated April 17, 2009, the defendant's Impound Lot personnel notified Rodriguez, Alanis, and the plaintiff that the vehicle was no longer needed for law enforcement purposes and could be claimed. See Ex. 103. The notice informed Rodriguez, Alanis, and the plaintiff that towing and storage fees must be paid, and that the defendant would dispose of the vehicle if it remained unclaimed after thirty (30) days from the date of the notice. The notice recited it was being given pursuant to Neb. Rev. Stat. § 60-1901, et seq. Id.
12. On April 20, 2009, Rodriguez plead nolo contendere to murder by use of the vehicle.
13. On July 27, 2009, Rodriguez was sentenced to a term of years in the Nebraska State Penitentiary.
14. The plaintiff did not obtain a repossession title for the vehicle. A repossession title was available to the plaintiff, as lienholder, based upon Rodriguez and Alanis' default, upon application to the Nebraska Department of Motor Vehicles. See Ex. 106. At no time subsequent to May of 2007, did the plaintiff acquire title to the vehicle.
15. The National Automobile Dealers Association (NADA) values for the vehicle (V8, four-wheel drive, approximate ...