# Appendix — Audio Odyssey, Ltd. v. Brenton First National Bank

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 990

## Text

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APPENDIX A— OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT
FILED APRIL 10, 2002

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 00-1634

Audio Odyssey, Ltd., an lowa Corporation;
Dogan A. Dincer; Ann M. Dincer,

Appellants,

V.

Brenton First National Bank, an Iowa Banking Corporation;
Michael M. Bladel, Sheriff of Scott County, Iowa; John M.
Norris, Deputy Sheriff of Scott County, Iowa; Charles A.
Barton; John C. Bradley; Chris A. Pieper; Roger Hoffman;
Merchants Bonding Company, a Corporation,

Appellees.

Audio Odyssey, Ltd., an Iowa Corporation;
Dogan A. Dincer; Ann M. Dincer,

Appellants,

V.

Bernard J. Hofmann; Anderson & Nelson,
a professional corporation,

Appellees.

ee em na ee tn ee er a a a nS EE A A NT a NR — — Y -g SSS-g———

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Appendix A

Submitted: September 13, 2001
Filed: April 10, 2002

Before WOLLMAN, ' Chief Judge, McCMILLIAN, BOWMAN,
LOKEN, HANSEN, MORRIS, SHEPPARD, ARNOLD,
MURPHY, BYE, and RILEY, Circuit Judges.

BYE, Circuit Judge.

Audio Odyssey and its owners brought a variety of claims
under 42 U.S.C. § 1983 and state law against Brenton First
National Bank, the Bank’s attorney and law firm, the Bank’s
bonding company, various Scott County officials, and a loan
officer of the Small Business Administration (SBA).
The claims sought redress for the defendants’ mishandled
execution of an ex parte writ of replevin authorizing the
seizure of Audio Odyssey’s inventory, fixtures, accounts,
furniture, equipment and machinery.

The district court dismissed the owners’ individual claims
for lack of standing as well as Audio Odyssey’s § 1983 claim
against the SBA loan officer. The district court later granted
summary judgment to the defendants on all federal claims
and subsequently dismissed the remaining state law claims
under 28 U.S.C. § 1367(c).

Audio Odyssey and its owners perfected an appeal from
the district court’s multiple adverse rulings. A divided panel

1. The Honorable Roger L. Wollman stepped down as Chief
Judge of the United States Court of Appeals for the Eighth Circuit at
the close of business on January 31, 2002. He has been succeeded
by the Honorable David R. Hansen.

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Appendix A

of our court affirmed in part, reversed in part, and remanded
for further proceedings. Audio Odyssey, Ltd. v. Brenton First
Nat 'l Bank, 245 F.3d 721 (8th Cir. 2001). We granted rehear-
ing en banc, vacated the panel opinion, and heard additional
arguments. Having considered the many issues raised by the
parties’ suggestions for panel rehearing and rehearing en
banc, we now reinstate the panel opinion in full.

The panel opinion addresses the full array of issues
presented in this appeal in considerable detail. We cannot
improve upon that opinion’s discussion, but we do feel
obliged to respond briefly to the thoughtful dissenting
opinion, which now offers three arguments suggesting the
absence of any Fourth Amendment violations.

First, the dissent states “it was constitutionally reasonable
for the sheriffs to construe the writ as authorizing them to
close the store for a reasonable period while the replevied
property was inventoried and removed.” Post at 8. While true,
this statement does not go far enough. Tabulating and
removing Audio Odyssey’s personalty undoubtedly took time.
Had the Bank and the sheriff moved expeditiously to
inventory and remove Audio Odyssey’s property while the
store was closed, a Fourth Amendment claim would surely
fail. But that is not what transpired. The Bank was unprepared
to cart away Audio Odyssey’s personalty on Friday, J uly 14,
or even Monday, July 17 — despite the sheriff’s requirements
to this effect. Instead, the Bank and the sheriff dallied until
the middle of that week even to commence their inventorying.
During that period, the defendants unreasonably deprived
Audio Odyssey of its leasehold estate. Audio Odyssey was
entitled to possess the store premises even though it was not

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Appendix A

entitled to some of its personalty. And Audio Odyssey’s interest
was hardly ephemeral. Among other aspects of its business,
it operated a service center and repair department. It serviced
warranty claims and received consignments of other electronic
equipment owned by consumers for resale in which the Bank
had no financial or security interest whatsoever. Beyond that,
there were product lines (Sony, for example) located upon
the premises also held for resale in which the Bank did not
own a security interest and to which the replevin order did
not apply.

The value of being allowed to continue in business
without the inventory financed by the bank at its disposal
may not have been conceptualized in its business plan as
initially intended, however, there remained a legitimate
business interest in continuing viable operations after the
replevin action ran its course pursuant to the court order.
While such value may not have been substantial, Audio
Odyssey is nevertheless entitled to the consideration of
damages, even if nominal (and the retention of its
supplemental state law claims in the district court) for the
constitutional violation.

Second, the dissent relies on a three-party lease assignment
only partially executed by Audio Odyssey and the Bank,
but not the landlord: “the lease assignment forecloses Audio
Odyssey’s claim that the initial entry violated its Fourth
Amendment rights.” Post at 10. Assuming dubitante that the
lease assignment is valid in the first place, we fail to
understand how the dissent’s argument furthers the analysis.
The panel opinion did not hold, nor do we, that the initial
entry alone violated the Fourth Amendment. To the extent

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Appendix A

the lease assignment may be read to permit the Bank to take
possession of the store premises in order to remove or sell
the personalty, this right would not extend further than the
writ of replevin the Bank actually obtained and executed.
And even if the lease assignment permitted the Bank to
transfer possessory interest to another party, the facts of
this case reveal the Bank never took such action. Thus,
the arguments advanced above explain adequately why the
defendants’ seizure under that writ was constitutionally
impermissible.

Third, the dissent appears to argue the defendants did
not violate the Fourth Amendment because Audio Odyssey
bears some measure of blame for making no attempt to seek
judicial relief to reacquire the store property. Post at 11-12.
We do not believe the record fully supports this character-
ization of Audio Odyssey’s conduct after the seizure was
accomplished. In any event, Audio Odyssey’s delay — if such
it was — may well reflect its minimal damages. Perhaps its
owner did not act more quickly because little could be done
to salvage the business’s good name and capital investment.
But this point would do nothing to vitiate an underlying
Fourth Amendment violation. Defendants who violate the
Fourth Amendment must be held accountable for their
actions, even if the ultimate measure of damages assessed
seems hardly to justify the time and expense of litigation.
A failure to mitigate damages is not an affirmative defense
to a constitutional tort. And it is not the law that state actors
may violate the constitutional rights of others, yet avoid
liability for their actions simply because the injured victim
does not suffer very much.

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Appendix A
HANSEN, Chief Judge, specially concurring.

I concur in the court’s reinstatement of the prior panel
opinion, which affirmed in part, reversed in part, and remanded
the case to the district court, except 1 do not concur in those
portions of Part IV A and Part IV B of the prior panel opinion
which hold that the initial execution of the writ of replevin
by the deputy sheriff on Friday afternoon by closing the store
and changing its locks constituted an unreasonable seizure
of Audio-Odyssey’s leasehold interest in violation of the
Fourth Amendment. In my view, the initial seizure was
constitutionally reasonable, and the sheriff’s department’s
seizure of the premises only became unreasonable under the
Fourth Amendment when the inventorying deputy turned the
newly minted keys to the store over to the Bank on the
following Wednesday afternoon after he had inventoried the
personal property for the purposes of the writ. To the extent
the court’s opinion can be read otherwise, I do not concur in
it. In order to make my position more clear, I join the dissent’s
factual recitation, chronology, and the analysis Judge Loken
makes in Part A of that dissent; however, I do not join the
balance of the dissent.

LOKEN, Circuit Judge, with whom BOWMAN, WOLLMAN,
and MURPHY, Circuit Judges, join, dissenting. :

I adhere to my dissent from Part IV of the reinstated
panel opinion. 245 F.3d at 742-43. Chief Judge Hansen’s
special concurrence joins Part A of this dissent, which is )
therefore the opinion of the court overruling Part IV A of the :
panel opinion.

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Appendix A

As the court recognizes, the key to Audio Odyssey’s
Fourth Amendment claims is “whether there is a triable claim
that Sergeant Barton and Deputy Norris committed a
constitutionally unreasonable seizure of the real property”
when they executed the state court’s writ of replevin.
245 F.3d at 735. If the state actors did not violate the Fourth
Amendment, then Audio Odyssey has no § 1983 claim against
their alleged private conspirators, the Brenton Bank and its
officers and attorney. See Johnson v. Outboard Marine Corp.,
172 F.3d 531, 536 (8th Cir. 1999).

Audio Odyssey contends the deputy sheriffs violated the
Fourth Amendment in two ways, by seizing and locking down
the store premises on the evening of Friday, July 14, 1995,
and by unreasonably barring Audio Odyssey as tenant from
regaining possession of the premises for the following six
weeks. To put these issues in sharper focus, the following is
a brief chronology of this time period:

July 14: Brenton Bank commences replevin action
in state court, obtains writ of replevin,
and delivers the writ to Sergeant Barton at
the Sheriff’s office. Deputy Norris serves
the writ, and the Audio Odyssey store is
closed. Norris posts “no trespassing” signs,
and a locksmith hired by the Bank changes
the locks.

July 17: Deputy Norris meets with Bank represen-
tatives at the store. Store employees retrieve
personal possessions not subject to the writ.
Norris and the Bank agree to inventory
the personal property in the store on
Wednesday, July 19.

July 19:

July 26:

August 2:

August 4:

August 11:

August 16:

DY

August 17:

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Appendix A

Inventory begun and completed. Deputy
Norris delivers keys and the completed
inventory list to the Bank and quits the
premises, without removing the “no tres-
passing” signs.

Audio Odyssey demands that the Bank
either allow time to arrange a sale of the
business, or reinstate Audio Odyssey on the
premises with a working capital loan and a
public apology.

Audio Odyssey sends a certified letter to
the Rock County Sheriff demanding that
he “surrender possession” of the store
premises.

Audio Odyssey files motion to dismiss the
replevin action.

Hearing on the motion to dismiss.

State court denies motion to dismiss.
Another Audio Odyssey creditor obtains a
writ of replevin and removes Sony products
from the store pursuant to its purchase
money security interest.

When notified Audio Odyssey’s motion to
dismiss had been denied, the Bank arranges
to remove its collateral.

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Appendix A

August 25: Bank removes the collateral and places it
in storage.

August 31: Trial of the replevin action is delayed
indefinitely. State court orders that Audio
Odyssey may regain access to the premises
and remove the “no trespassing” signs.

October 12: Landlord bills Brenton Bank for unpaid
rent from July 14 to August 31. (Bank later
pays more than $3500.)

A. Was the Initial Seizure Constitutionally Reasonable?
The writ of replevin directed the sheriff to seize “[a]ll inventory,
fixtures, accounts, furniture, equipment and machinery on
property described as follows: [the legal description of the
Audio Odyssey store premises].” Sergeant Barton and Deputy
Norris testified that they thought this authorized seizure of
the store premises. They were mistaken in that regard, though
I do not share the court’s view that deputy sheriffs who fail
to parse a state court order with the legal acumen of lawyers
and federal judges thereby lose the benefit of qualified
immunity. See, e.g., Saucier v. Katz, 121 S. Ct. 2151, 2158-59
(2001). But I put qualified immunity aside, because the merits
of the Fourth Amendment issue are more important. It is clear
that the sheriffs’ faulty interpretation of the writ of replevin
is not dispositive — the Fourth Amendment issue turns on
the objective reasonableness of their conduct, not on their
subjective intent. See Whren v. United States, 517 U.S. 806,
814 (1996). In my view, there are two distinct reasons why
the initial seizure was objectively reasonable.

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Appendix A

1. The writ authorized immediate seizure of substantially
all the personal property located in the store premises.
To execute the writ, the personal property found in the store
needed to be inventoried to determine what was subject to
seizure. That process takes time. Because removal of all the
personalty covered by the writ would obviously have left the
store inoperable until Audio Odyssey could acquire new
“inventory, fixtures, accounts, furniture, equipment and
machinery,” it was constitutionally reasonable for the sheriffs
to construe the writ as authorizing them to close the store
for a reasonable period while the replevied property was
inventoried and removed.

The writ was served late on a Friday afternoon. Brenton
Bank wanted to move quickly because Audio Odyssey had
scheduled a major sale the next day, which would doubtless
dispose of a portion of the Bank’s inventory collateral.
The court criticizes the sheriffs for acceding to a “zealous
creditor’s” demands. 245 F.3d at 738. But the law requires a
sheriff to act decisively when a creditor has obtained a court
order enforcing a drastic legal remedy such as replevin,
a remedy that is available to protect the rights of secured
creditors. Perhaps Brenton Bank acted unreasonably as a
creditor. That is a matter between Audio Odyssey and the
Bank governed by state law, not § 1983. In this type of
situation, the Fourth Amendment is rarely implicated.
See Soldal v. Cook County, 506 U.S. 56, 71-72 (1992).

2. In 1991, as acondition to obtaining a loan from Brenton
Bank guaranteed by the Small Business Administration,
Audio Odyssey signed a document entitled Assignment of
Real Estate Lease and Agreement, on a form prescribed by
the SBA, which provided in relevant part:

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Appendix A

4. In the event of any default by Borrower
[Audio Odyssey] in the performance of any of the
obligations of [its] note to Assignee [the Bank]
evidencing the aforesaid loan, any renewal or
extension thereof, or any other agreement made
in connection therewith, including [its] agreements
herein, then, Assignee, at its option, may, without
notice, using such force as may be necessary,

enter said leased premises and do any one or more
of the following: :

a. Remove all property of Borrower there-
from that is hypothecated as collateral for
its aforementioned loan.

b. Sell the property referred to in paragraph
a. On Said premises.

c. Transfer and assign said lease and
Borrower’s rights therein to parties
Satisfactory to Assignee. .. .

Under Iowa law, “[w]hen one accepts the assignment of
a lease. . . . [h]e stands in the shoes of the lessee at least for
the period of time he occupies the premises.” Berg v, Ridgway,
140 N.W.2d 95, 99 (Iowa 1966); accord Midland Mut. Life
Ins. Co. v. Mercy Clinics, Inc., 579 N.W.2d 823, 833-34
(lowa 1998). Therefore, the lease assignment forecloses
Audio Odyssey’s claim that the initial entry violated its
Fourth Amendment rights — because the Bank as assignee
had the right to take possession of the leased premises “using
such force as may be necessary,” the deputy sheriffs acted in
an objectively reasonable manner in helping the Bank take

12a
Appendix A

possession peaceably, at least for the purpose of removing
its collateral.’

Audio Odyssey argues that the Assignment of Real Estate
Lease was invalid because the store’s iandlord never signed
it. I disagree. In general, “an express restriction against an
assignment does not render an assignment void as between
the lessee and the assignee, and as between such parties it is
still effectual to carry the interest of the lessee.” 49 Am. Jur. 2d
Landlord & Tenant § 1110 (1995). That principle should
certainly apply here, because Audio Odyssey’s promise to
assign the lease in the event of default was a precondition to
obtaining the bank loan and SBA guarantee. Moreover,
a landlord who is entitled to reject a lease assignment waives
that right and consents to the assignment if he does not object
promptly. See Restatement (Second) of Property: Landlord
& Tenant § 15.2 cmt. f (1977). Here, the store’s landlord
knew no later than July 24 that the Bank had taken possession.
Rather than object, the landlord billed the Bank for unpaid
rent in October, consistent with a waiver of any right to object.

B. Was the Seizure of the Store Unconstitutionally
Extended? I agree with the court that the Fourth Amendment
protects against a seizure which, though initially reasonable,
is extended for an unreasonable period of time. Our Jerry
stop cases, for example, confirm that principle. But I do not
agree the principle was violated.

2. The Bank’s attorney testified that he told a deputy sheriff
about the lease assignment on July 14, before the writ was served,
but did not presenta copy of that agreement. It was objectively
reasonable for the deputy sheriffs to accept that representation as
establishing the Bank’s right to take over the store premises.

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Appendix A

If the Assignment of Real Estate Lease gave Brenton
Bank the right to possess the store premises after declaring a
default, then the claim that the initial seizure was unconstitu-
tionally extended necessarily fails. The point is not that Audio
Odyssey lost its tenant’s right of possession. The point is
that the Assignment gave the Bank a competing right of
possession that included, not only the removal of its
collateral, but also the right to “[t]ransfer and assign said
lease ... to parties satisfactory to Assignee.” In these
circumstances, when Deputy Norris completed the task of
supervising execution of the writ of replevin on July 19,
it was not constitutionally unreasonable for him to deliver
the keys to the premises to one of the parties entitled to
possession.

But even ignoring the Assignment of Real Estate Lease,
so that the initial seizure of the store premises may only be
upheld as a reasonable temporary measure to permit inventory
and removal of the replevied personal property, I conclude
that on the facts of this case the deputy sheriffs did not violate
the Fourth Amendment by reason of the lengthy process
which followed the initial seizure before Audio Odyssey
regained possession of the store. Having protected employees
and others with an interest in the personal property by
conducting an inventory of the property found on the
premises, Deputy Norris reasonably concluded on July 19
that the Sheriff’s role in executing the writ of replevin was
concluded. This court asserts that Audio Odyssey was denied
its “unquestioned legal right . . . to enjoyment of the empty
premises. . . . for an indefinite period, and for an unauthorized
purpose.” 245 F.3d at 738. But on July 19, every aspect of

l4a

Appendix A

that assertion was open to question. The store was not empty,
the Bank asserted the right to continued possession (correctly,
in my view, given the lease assignment), and Audio Odyssey
had made no attempt to seek judicial relief. In these
circumstances, I conclude Deputy Norris was objectively
reasonable in surrendering keys to the store to the Bank,
leaving the private parties and the state court to sort out
remaining legal issues.

Once the deputy sheriffs had surrendered the keys and
quit the premises, I simply cannot fathom how they could
have had a Fourth Amendment duty to restore Audio Odyssey
to possession of the store. The state court issued the writ of
replevin and could have vacated the writ or issued an order
allowing Audio Odyssey to regain possession of the store.
Yet Audio Odyssey never asked the court for emergency relief
granting it possession. Although Audio Odyssey belatedly
wrote the Sheriff on August 2 demanding return of the
premises, the state court was the proper authority to resolve
_ any dispute over possession of the store premises. Not until
August 4 — nineteen days after the initial seizure —
did Audio Odyssey move the court to dismiss the Bank’s
replevin action. This lack of diligence is not surprising,
because an empty store would have been of no immediate
value to Audio Odyssey unless it had the financial ability to
restock. Audio Odyssey’s July 26 demand to the Bank
strongly suggests that Audio Odyssey lacked the capital
necessary to resume store operations on its own.

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Appendix A

The Fourth Amendment question is whether the deputy
sheriffs were objectively unreasonable in extending the
duration of the replevin seizure. Audio Odyssey’s failure to
assert its non-obvious claim to renewed possession of the
store premises is relevant in weighing whether the deputy
sheriffs were responsible for unconstitutionally extending the
seizure. On this record, I conclude the district court properly
granted summary judgment dismissing this claim.

For the foregoing reasons, I would affirm the district court.
A true copy.
Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

l6a

APPENDIX B — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT
FILED APRIL 6, 2001

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 00-1634

AUDIO ODYSSEY, LTD., an Iowa Corporation;
DOGAN A. DINCER; ANN M. DINCER,

Plaintiffs/Appellants,

We

BRENTON FIRST NATIONAL BANK, an Iowa Banking
Corporation; MICHAEL M. BLADEL, Sheriff of Scott
County, Iowa; JOHN M. NORRIS, Deputy Sheriff of Scott
County, lowa; CHARLES A. BARTON; JOHN C. BRADLEY;
CHRIS A. PIEPER; ROGER HOFFMAN; MERCHANTS
BONDING COMPANY, a Corporation, CORPORATION,

Defendants/Appellees.

AUDIO ODYSSEY, LTD., an Iowa Corporation;
DOGAN A. DINCER; ANN M. DINCER,

Plaintiffs/Appellants,

V.

BERNARD J. HOFMANN; ANDERSON & NELSON,
a Professional Corporation,

Defendants/Appellees.

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Appendix B

Appeal from the United States District Court for
the Southern District of Iowa

Submitted: January 10, 2001
Filed: April 6, 2001

Before LOKEN and BYE, Circuit Judges and SACHS',
District Judge.

SACHS, District Judge.

In mid-July 1995, Brenton First National Bank obtained
a writ of replevin for seizure of certain property of Audio
Odyssey, Ltd., an electronics store in Davenport, Iowa.
A sheriff’s deputy executed the writ later that day, ordered a
locksmith to change the locks at the store, and posted
“No Trespassing” signs even though the writ called for the
seizure of personal, rather than real, property. Audio
Odyssey’s president and sole shareholder, Dogan A. Dincer,
could not (or did not) enter the premises for several weeks,
and the store went out of business. Seeking redress for the
writ’s ex parte issuance and mishandled execution, Audio
Odyssey, Dincer, and Dincer’s wife brought a variety of
claims under 42 U.S.C. § 1983 and state law against the Bank,
the Bank’s attorney and law firm, the Bank’s bonding
company, the county officials who aided the writ’s execution,
and a loan officer of the Small Business Administration.
Plaintiffs now appeal from the district court’s many adverse
rulings. These include the dismissal of the Dincers’ individual
claims for lack of standing, the dismissal of the section 1983

1. The Honorable Howard F. Sachs, United States District Judge
for the Western District of Missouri, sitting by designation.

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Appendix B

claim against the SBA loan officer, and the grant of sumniary
judgment to other defendants on all federal claims. We affirm
in part, reverse in part, and remand for further proceedings.

I

We view the record in the light most favorable to plaintiffs.
Dogan Dincer, previously an employee and minority
shareholder of Audio Odyssey, purchased the business for
$270,000 in 1991. The purchase was partially financed
through a $200,000 loan from the Bank, and the SBA
guaranteed 85 percent of the loan. Audio Odyssey, in turn,
executed a “Business Security Agreement” giving the Bank
a security interest in the store’s accounts, general intangibles,
contract rights, instruments, chattel paper, documents,
inventory, machinery, equipment and fixtures. The Agreement
required Audio Odyssey to perform its payment obligations
under the note, and to take other steps such as maintaining
insurance on the collateral and keeping current with all tax
obligations. In the event of default, the Agreement allowed
the Bank to accelerate the loan and to enter the store and
take the collateral.

In the weeks preceding July 14, 1995, Bank personnel
came to believe that Audio Odyssey was failing to perform
its duties under the loan and Agreement, including the duty
to make timely payments, to maintain insurance, and to pay
taxes. On July 13, 1995, Dincer paid $6,983 to the Bank,
and instructed the teller to apply the payment so as to satisfy
the store’s monthly obligation for June and July. The Bank
instead applied the payment to a previous overdraft. The next
morning, John C. Bradley, a commercial loan officer and vice

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Appendix B

president at the Bank, hand-delivered a letter to Dincer stating
that the Bank was accelerating the loan, and demanding
payment of the remaining balance (some $127,000) within
ten minutes. Dincer contacted his attorney and surmised that
he could not raise the sum in such a short time. The attorney
faxed a letter to the Bank at around noon, contending that
Audio Odyssey was not in default.

The Bank was not persuaded, and it brought an ex parte
replevin action later that afternoon. Attorney Bernard
Hofmann filed a Petition in Replevin in the Iowa District
Court for Scott County, contending, among other things,
that (i) Audio Odyssey was delinquent in its loan payments
and other obligations, (ii) the Bank was entitled to possession
of the collateral under the Agreement, and (iii) immediate
action was necessary because the collateral might be
destroyed, concealed, moved, sold, or fraudulently transferred
(Bank personnel had told Hofmann that an “annual sale” was
scheduled for that weekend, and the petition was filed on a
Friday). Along with the petition, Hofmann filed a “Bond for
Replevin” in the amount of $300,000, or more than twice
the value of the collateral. The judge asked Hofmann whether
the state’s replevin statute required notice to the defendant,
and Hofmann advised that the court had discretion to give
such “notice and opportunity for hearing as it may prescribe”
under lowa Code § 643.5. Hofmann also explained that the
Bank’s collateral was in danger of being sold. The judge
reviewed the statutory framework, considered the matter very
briefly, and signed the order that Hofmann had drafted.
Pursuant to the order, the clerk of the court issued a writ of
replevin directing the sheriff to deliver the following property
to the Bank’s possession:

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Appendix B

All inventory, fixtures, accounts, furniture, equipment
and machinery on property described as follows:

4500 square feet located at 1718 E.
Kimberly Road, Davenport, Iowa, legally
described as: Part of the Northwest
Quarter of the Southwest Quarter of
Section 18, Township 78, Range 4,
East of the Sth P.M.... to the City of
Davenport, Scott County, Iowa.

Armed with the writ and order, Hofmann visited the Scott
County Sheriff’s Department and requested that the writ be
served immediately. Sergeant Charles A. Barton reviewed
the writ and asked Hofmann if the Bank was prepared with
moving trucks to remove the collateral, as is customary.
Hofmann said that the Bank did not have moving trucks
immediately available. Sergeant Barton explained that the
Department could not serve the writ because it was already
late in the afternoon and the Bank did not have moving trucks.
Hofmann called Bradley at the Bank for instructions, and
Bradley told him that the Bank’s intention was to change the
locks and keep Dincer and other store personnel off the
premises. Hofmann relayed this information to Sergeant
Barton, insisted that the writ be executed that afternoon,
and asked whether the Sheriff’s Department could lock the
premises over the weekend to prevent Audio Odyssey from
selling the collateral. Sergeant Barton, in turn, reviewed the
writ and said that it would be possible to lock the store.
At Sergeant Barton’s request, Hofmann completed a form

2la

Appendix B

entitled “Directions to Sheriff,”? which stated that Bradley
and a locksmith would meet the deputies at Audio Odyssey.

Deputy John M. Norris served the writ of replevin at
Audio Odyssey at 4 p.m. He met Bradley and the locksmith
at the premises, and ordered everyone inside to leave the
store. Deputy Norris thereafter directed the locksmith to
change the locks, secured the inventory and other collateral,
and posted “No Trespassing” signs on the front and back
doors. During the next week, Deputy Norris and others
completed an inventory of the items described by the writ,
removed the items, and turned them over to the Bank (along
with keys to the premises).

In the meantime, Dincer tried to regain access to the
premises — albeit somewhat circuitously. He called the judge
at home the night that Deputy Norris served the writ, and the
judge advised him to employ an attorney. Dincer and Audio
Odyssey retained their present counsel the next Monday.
Meetings on July 26 and August 4 between attorneys for
Audio Odyssey and the Bank were unfruitful. On August 2,
1995, plaintiffs’ attorney wrote a certified letter to the Scott
County Sheriff and demanded the immediate surrender of
the premises. The letter went unanswered; it is unclear who

2. Under the Sheriff’s Department’s policy, a deputy reads the
writ of replevin along with the “Directions to Sheriff’ in order to
understand what the plaintiff wants. If the directions conflict with
the order and writ, the court documents control.

3. None of the parties contends that there were fixtures involved;
that is, improvements of value belonging to Audio Odyssey and
affixed to the premises.

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Appendix B

may have received and reviewed it. Two days later, Audio
Odyssey moved to dismiss the replevin action, requested an
order directing the sheriff to return the real estate, and filed
a jury demand. There was no record of a request for expedited
handling, and no evidentiary hearing until August 22, 1995.
That hearing was continued and never completed. On August
31, 1995, some six weeks after Deputy Norris executed the
writ, a court order allowed Audio Odyssey to enter the
premises and remove the “No Trespassing” signs. Dincer
elected not to re-open the business, surmising that its
goodwill and commercial relationships had been destroyed.
Ultimately, the state court did not reach a judgment in the
replevin action. It dismissed the case without prejudice at
the Bank’s urging in September 1999 — or more than two
years after the federal litigation commenced.

In their lawsuit, plaintiffs essentially alleged that Deputy
Norris, Sergeant Barton and the private defendants committed
an unreasonable seizure of Audio Odyssey’s real property
by changing the locks and erecting “No Trespassing” signs
without a court order authorizing such measures, and that
the defendants deprived, and conspired to deprive, plaintiffs
of personal property without due process of law, by use of an
unconstitutional replevin statute. The district court dismissed
the federal claim against the SBA loan officer, and dismissed
the Dincers’ claims for lack of standing. It later (i) granted
summary judgment to the county officials (among other
things, finding no violation of plaintiffs’ constitutional rights,
and alternatively, granting qualified immunity to the relevant
officials), (11) held that the Iowa replevin statute comported
with the requirements of due process, and (ili) rejected the
conspiracy claims against the Bank and others, having

ee, OS Ee ee ee a eee ee ee ee ee ee _

23a

Appendix B

rejected the underlying claims of constitutional injury.
The court dismissed some of the pendent claims on the merits,
while dismissing others without prejudice to refiling in state
court. It entered a final judgment consolidating the various
rulings on January 25, 2000, and plaintiffs timely appealed.

II

As a threshold matter, we hold that the Dincers lack
individual standing to sue defendants for the replevin. It is
well established that a shareholder or officer of a corporation
cannot recover for legal injuries suffered by the corporation.
See Heart of America Grain Inspection Serv., Inc. v. Missouri
Dep t of Agric., 123 F.3d 1098, 1102 (8th Cir. 1997); Chance
Memt., Inc. v. South Dakota, 97 F.3d 1107, 1115-16 (8th Cir.
1996). The rule applies even to a corporation’s sole shareholder.
See Smith Setzer & Sons, Inc. v. South Carolina Procurement
Review Panel, 20 F.3d 1311, 1317 (4th Cir. 1994). Here,
it was Audio Odyssey whose premises and personal property
were taken, rightfully or not. Any constitutional violations
presented by this case were visited upon Audio Odyssey,
and any injuries to the Dincers occurred solely because of
their relationship with Audio Odyssey.

It is true that the “shareholder standing rule” does not
apply when the alleged injury is distinct from that suffered
by the corporation or other shareholders. See, e.g., Soranno’s
Gasco, Inc. v. Morgan, 874 F.2d 1310, 1318 (9th Cir. 1989).
The Dincers seek redress for various emotional and
reputational injuries stemming from the replevin of the
Bank’s collateral and the seizure of the premises, including
the loss of business relationships with customers and

24a

Appendix B

suppliers. We do not think these injuries are “distinct” from
the corporation’s. A “distinct” injury is one in which the
claimant's rights have been violated, not merely one in which
the claimant is indirectly harmed because of one party’s injury
to another. See, e.g., Gersman v. Group Health Ass'n,
725 F.Supp. 573, 577-78 (D.D.C. 1989) (holding that a Jewish
president and principal shareholder of company could not
maintain suit under 42 U.S.C. § 1981 against insurer charged
with discriminatorily terminating contract with company),
aff'd in relevant part, 931 F.2d 1565, 1567 (D.C. Cir. 1991),
vacated on other grounds, 502 U.S. 1068 (1992). The premises
and replevined items belonged to the corporation, not the
Dincers. Doubtless a sole shareholder may suffer shame and
humiliation when the corporation is destroyed, but an
“emotional injury” exception would swallow the rule against
shareholder standing. The district court correctly dismissed
the individual claims.

Ill

We also agree with the district court’s grant of summary
judgment on the federal claims regarding Audio Odyssey’s
personal property. Audio Odyssey maintains that the Iowa
replevin statute, Iowa Code §§ 643.1-643.22 (1999),
is unconstitutional because it deprives debtors of property
without due process of law. As best we can surmise, Audio
Odyssey challenges the statute facially and as applied by the
defendants and the state court. We reject both challenges.

25a

Appendix B
-,

A number of Supreme Court cases have examined
whether various state property seizure schemes comport with
due process. In Fuentes v. Shevin, 407 U.S. 67 (1972),
for example, the Court invalidated Florida and Pennsylvania
Statutes that permitted an ex parte replevin upon bare
conclusory allegations by the creditor and the creditor’s
posting of a bond, allowed the clerk of court to issue the
writ without meaningful judicial Oversight, and permitted
the defendant to regain its property only by posting a bond
or, in Pennsylvania, by initiating a separate lawsuit. See id.
at 73-78. Fuentes held that in the absence of “extraordinary
situations,” a debtor could not be deprived of a significant
property interest unless provided with notice and a pre-
deprivation opportunity to contest the creditor’s claim. Id.
at 90. The Court refined and perhaps narrowed this holding
two years later. See Mitchell v. W.T. Grant Co., 416 U.S. 600
(1974). Mitchell upheld a Louisiana sequestration statute that
did not provide for prior notice to the debtor and a prior
hearing, in light of other procedural safeguards that,
on balance, satisfied due process and permissibly
accommodated the competing property interests of debtors
and creditors. See id. at 608-10. Specifically, the Louisiana
statute required a factually detailed affidavit explaining the
debtor’s delinquency, the posting of a bond, an immediate
post-deprivation hearing, and judicial supervision of the
entire process; the debtor could tegain the property by posting
a bond, and the creditor remained potentially liable for
wrongful attachment. See id.

2. Oe

26a

Appendix B

The Court invalidated a Georgia garnishment statute the
next year. See North Georgia Finishing, Inc. v. Di-Chem,
Inc., 419 U.S. 601 (1975). The statute in question allowed a
writ of garnishment to issue by a court clerk without judicial
participation in the process and upon a conclusory affidavit;
the statute did not provide for a prompt hearing, and the
debtor could not challenge the garnishment without posting
a bond. See id. at 606-08.

On the basis of Fuentes and subsequent authorities, our
Court attempted to distill “five primary factors” that must
be evaluated in considering a replevin or attachment scheme’s
constitutionality in the absence of prior notice and a pre-
deprivation hearing. Watertown Equip. Co. v. Norwest Bank
Watertown, N.A., 830 F.2d 1487, 1491 (8th Cir. 1987).‘
These include:

(1) an affidavit accompanying the petition for the
writ of attachment which contains facts alleged
by a person with knowledge; (2) an opportunity
for the debtor to dissolve the writ by posting a
bond; (3) an “early” post-deprivation hearing at
which the creditor bears the burden of proving

4. We believe the Watertown elements remain sound despite
Connecticut v. Doehr, 501 U.S. 1 (1991), and United States v. James
Daniel Good Real Property, 510 U.S. 43 (1993), at least in the
personal property context, and when, as here, the dispute is between
a creditor and debtor rather than a plaintiff and defendant in tort.
See Doehr, 501 U.S. at 17 (“[D]isputes between debtors and creditors
more readily lend themselves to accurate ex parte assessments of the
merits. Tort actions, like the assault and battery claim at issue here,
do not.”).

27a
Appendix B

the legality of the writ of attachment; (4)
indemnification of the debtor for a wrongful
attachment; and (5) judicial supervision of the
attachment process.

Id.; see also Lewis Service Center v. Mack Financial Corp.,
696 F.2d 66, 68 (8th Cir. 1982). As Watertown noted,
however, there is no easy formula to follow, because due
process requirements are not “technical,” and the creditor
remedy scheme must be evaluated ‘“‘as a whole.” 830 F.2d at
1490 (quoting Mitchell).

B

We believe that Iowa’s statute satisfies the Watertown
evaluation. First, the statute adequately (perhaps generously)
indemnifies the debtor in the event of a wrongful taking.
Section 643.7 requires the creditor to post a bond of at least
“twice the value of the property sought to be taken.” Iowa
Code § 643.7. The aggrieved debtor may seek a judgment on
the creditor’s bond, or request that a jury “assess the value
of the property and the damages for the taking or detention
thereof.”* See Iowa Code §§ 643.16, 643.17, 643.20.
By contrast, the defective statute in Watertown limited the

5. Watertown turned on gross deficiencies in the fourth and fifth
factors listed above.

6. Such damages may exceed the value of the property. See
Universal C.1.T. Credit Corp. v. Jones, 227 N.W.2d 473, 479-80 (Iowa
1975); see also lowa Code § 643.17 (stating that judgment “shall
also award such damages to either party as the party may be entitled
to for the illegal detention [of the property]”).

RS Se OR a oe pec

28a

Appendix B

creditor’s bond to $10,000, while the property seized was
worth over $275,000. See Watertown, 830 F.2d at 1494.
Damages were unavailable under the statute or common law
absent a showing of malice or lack of probable cause. See id.
Iowa’s replevin statute differs from the one we invalidated
in Watertown in that it protects the debtor against losses from
wrongful replevins that may be reasonably foreseeable.
The damages to Audio Odyssey could conceivably exceed
the bond, but that hardly relates to the ex parte nature of the
proceeding. In any event, it is Iowa replevin practice in
general that is in question here, not the more bizarre
circumstances and events surrounding the execution of this
particular writ of replevin.

Second, the debtor may routinely regain the taken property
by posting a bond of its own. See Iowa Code § 643.12. Audio
Odyssey insists that such a right terminates once the officer
transfers the property to the creditor. Even so, the collateral
in this case was not transferred to the Bank until some five
days after Deputy Norris executed the writ. We conclude that
a counter-bond could have been timely posted even under
Audio Odyssey’s reading of the statute.’

Third, the statute provides adequate judicial supervision
of the replevin process. A clerk may issue a writ of replevin
only “upon direction of the court after notice and opportunity
for such hearing as [the court] may prescribe.” lowa Code
§ 643.5. The replevin suit is governed by “ordinary proceedings”
and presumptively ends in a judgment that one party or the

7. We confess some skepticism about the financial ability of
Audio Odyssey to post a large bond, but theoretical ability is all that
Watertown contemplates.

29a

Appendix B

other is entitled to possess the property in question, with or
without an award of damages. Iowa Code §§ 643.2, 643.17.
These features distinguish Iowa’s statute from the ones
stricken in Watertown and Fuentes, which permitted a clerk
to issue a writ on his or her own. See Watertown, 830 F.2d at
1492; Fuentes, 407 U.S. at 74.

Fourth, we discount Audio Odyssey’s argument that the
Statute makes no allowance for a prompt post-deprivation
hearing. Iowa Code § 643.2 provides that a replevin action
shall be tried “by ordinary proceedings.” We agree with the
defendants and the district court that the term “ordinary
proceedings” incorporates general motion practice under state
law, specifically, Iowa Rule of Civil Procedure 100. We see
nothing in the statute to prevent a replevin defendant from
filing a post-deprivation motion to dismiss under Rule 100
(or a motion to vacate the writ of replevin) and requesting a
very prompt hearing from the court. In this case the judge
was immediately available by telephone, and would presumably
have been procedurally accommodating if plaintiff had an
attorney prepared to deal with the matter.

The statute does specifically preclude defendants from
asserting counterclaims and joining “any cause of action not
of the same kind.” Iowa Code § 643.2. By negative
implication, then, it would not preclude a request for a prompt
hearing in support of a defense to a replevin suit. Cf. Guzman
v. Western State Bank, 516 F.2d 125, 131 (8th Cir. 1975)
(invalidating North Dakota attachment scheme, which required
debtor to post a bond in order to obtain a post-seizure
hearing). Indeed, the state court did permit Audio Odyssey
to seek a “post-deprivation hearing” to address whether
“the method by which the Replevin Order was and has been

30a

Appendix B

enforced was incorrect” — the very sort of hearing that is
now asserted to be statutorily forbidden.

We do not believe that the statutory provision for a
prompt hearing must be explicit. See Watertown, 830 F.2d at
1492 (“The South Dakota statute can be interpreted as having
provided for an immediate hearing.”) (emphasis added).
The Iowa statute does not expressly provide for a hearing,
much less a prompt one. Yet, the statute is no different in
this regard from the one upheld by the Supreme Court in
Mitchell.* There, the Louisiana statute provided that
“The defendant by contradictory motion may obtain the
dissolution of a writ of attachment or of sequestration, unless
the plaintiff proves the grounds upon which the writ was
issued.” La. Code Civ. Proc.Art. 3506 (unchanged since 1961).
In upholding the statute, the Supreme Court observed that
the debtor “was not left in limbo to await a hearing that might
or might not eventually occur [as in Fuentes]. Louisiana law
expressly provides for an immediate hearing and dissolution
of the writ ‘unless the plaintiff proves the grounds upon which
the writ was issued.’ ” Mitchell, 416 U.S. at 618.° Just as a
Louisiana creditor must “prove the grounds upon which the
writ was issued,” Iowa’s statute places the burden of proof

LIES OL IF 8 PE LEA RAR, as

wasieurNee

8. See also Watertown, 830 F.2d at 1491 (“Although the statute
did not specify when a hearing must occur, its language was,
in essence, no different on this point from the Louisiana sequestration
statute which in Mitchell, the Supreme Court said provided for an
immediate post-deprivation hearing.”).

9. The Court’s interpretation of Louisiana’s statute is noticeably
generous, but we will adhere to “the principle that courts are to adopt
constructions of statutes that avoid grave and doubtful constitutional
questions.” United States v. Rea, 223 F.3d 741, 744 (8th Cir. 2000).

3la

Appendix B

upon the creditor throughout the proceedings. See Wilson v.
Findley, 275 N.W. 47, 56 (1937).

Although the wording of Iowa’s procedural plan might
well be improved by fine-tuning, the worst that might be
said of it is that a particular debtor might fail to persuade a
particular judge to hold a prompt hearing, notwithstanding
constitutional requirements. But this possibility does not
render the statute invalid on its face. A statute should not be
stricken based upon a “worst case” scenario that “may never
occur.” Ohio v. Akron Center for Reproductive Health,
497 U.S. 502, 512 (1990). Nor is the statute unconstitutional
as applied. It allows for a prompt post-deprivation hearing,
but Audio Odyssey did not seek one.'° Audio Odyssey, then,
had a meaningful opportunity to be heard. See Hroch v. City
of Omaha, 4 F.3d 693, 696 (8th Cir. 1993). Its failure to seize
that opportunity is not a denial of due process. See Marler v.
Missouri State Bd. of Optometry, 102 F.3d 1453, 1456-57
(8th Cir. 1996),"!

10. The somewhat leisurely activity suggests that Audio
Odyssey was already fatally damaged when the sale was stopped —
if not before — but that remains subject to proof on remand.

11. It could even be argued that Audio Odyssey waived its due
process attack by not timely resorting to the available procedures
that it now claims are inadequate — even if its attorneys did not
realize that an immediate hearing could be requested and provided.
See Krentz v. Robertson Fire Protection Dist., 228 F.3d 897, 904-05
(8th Cir. 2000) (holding that plaintiff waived claim that termination
violated due process, where plaintiff (a) forewent administrative
remedies held by the court to be available under state law, and
(b) “could have ascertained the applicability [of state administrative
law] from a reading of the statutes and pertinent cases”); Hroch,
4 F.3d at 696 (holding that party waived argument against adequacy
of pre-deprivation remedies that he forewent).

32a

Appendix B

Fifth and finaliy, the Iowa statute sufficiently requires a
plaintiff to substantiate the legal basis for obtaining an ex parte
replevin, and we conclude that as a practical matter there
was constitutionally adequate compliance — the essential
message reached the judge. The Watertown framework speaks
of “an affidavit accompanying the petition for the writ of
attachment which contains facts alleged by a person with
knowledge.” 830 F.2d at 1491. Absent advance notice and a
hearing, due process requires that the creditor explain not only
the debtor’s delinquency, but also the exigent circumstances
that justify a summary deprivation. See Guzman, 516 F.2d
at 130 (“In the absence of an assertion in the affidavit that
the creditor believes that the property will be concealed,
disposed of, or destroyed and the creditor’s interest therein
lost or defeated, we do not believe that the ex parte issuance
of the warrant of attachment is justified.... If such an
emergency situation does not exist, the creditor’s interest in
the property probably will not be impaired by a short delay
to provide notice and a hearing to the debtor.”).

We discern no infirmity in the Iowa statute as written.
lowa Code § 643.1 requires a verified petition (functionally
equivalent to an affidavit), specifying “[t]he facts constituting
the plaintiff’s right to the present possession thereof,
and the extent of the plaintiff’s interest in the property.”
At the very least, this language would require a creditor to
specify the nature and extent of the debt owing, the nature of
any delinquency, and the extent of the creditor’s security
interest. Cf. Fuentes, 407 U.S. at 74 (“Florida law
automatically relies on the bare assertion of the party seeking
the writ that he is entitled to one . . .”). The statute does not
expressly require the creditor to specify the exigent circum-

33a

Appendix B

stances justifying an ex parte proceeding, but that is not fatal.
For one thing, the statute could readily be so construed. Exigency
would be among “the facts constituting the plaintiff’s right
to the present possession,” given the defendant’s due process
right to continued possession in the absence of exigent
circumstances. See Guzman, 516 F.2d at 130. For another,
the court has discretion to provide advance notice and a
hearing when the circumstances are not exigent. See lowa
Code § 643.5 (providing that writ may issue “upon direction
of the court after notice and opportunity for such hearing as
it may prescribe”). It appears from the record that the state
court judge in this case considered doing just that,
then relented after the Bank’s attorney explained the danger
that the collateral would be sold. The Statute, then, is not
facially unconstitutional on this basis.'2

Nor are we greatly troubled by the replevin petition in
this case. The Bank offered considerably more than a “bare
assertion,” see Fuentes, 407 U.S. at 74, that it was entitled
to the collateral. The petition described and attached the note
of $200,000 that Audio Odyssey had executed, explained
Audio Odyssey’s obligations under the note, described and
attached the Business Security Agreement and the extent of
the Bank’s security interest, and, correctly or otherwise,
specified various alleged delinquencies including $6,233.63
in monthly installments, failing to insure the collateral, failing
to pay state payroll and sales taxes, and failing to provide

12. “A facial challenge to a legislative Act is, of course,
the most difficult challenge to mount successfully[.]” United States
v. Salerno, 481 U.S. 739, 745 (1987). Subject to certain exceptions
not here relevant, “[T]he challenger must establish that no set of
circumstances exists under which the Act would be valid.” Jd.

34a

Appendix B

the Bank with certain business records. Moreover, the petition
explained the need for immediate action. Among other things,
the Bank alleged that “harm .. . will result from the sale,
transfer or assignment of the disputed property to the extent
[that] such sale, transfer or assignment is fraudulent or in
derogation of the plaintiff’s rights in such property.” We need
not rule that such boilerplate language is adequate by itself,
because attorney Hofmann explained to the judge his specific
concern that “collateral in which [the Bank] had a security
interest in was in danger of being sold with the proceeds not
going to satisfy their — the debts that were owed to them.”
The Bank knew that Audio Odyssey was planning an “annual
sale” the following day, and that much or all of the collateral
was in danger of being sold. Hofmann’s oral statement
adequately apprised the judge of this exigent circumstance.”

The only noticeable failing is that the petition was
verified by the Bank’s attorney rather than “a person with
knowledge.” See Watertown, 830 F.2d at 1491. This defect
alone does not create a viable due process claim. Attorney
Hofmann drafted the petition in reliance on what his client
told him. There is no indication that a petition executed by a
Bank official would have been narrower in scope or otherwise
different from Hofmann’s, or that such a petition would not
have recited the allegations essential to the Bank’s replevin
claim (the debt, the security interest, the delinquencies,
and the exigency). The Bank’s books apparently did reflect a
deficiency, although plaintiff claims a deposit was misapplied.

13. Since the proceedings were ex parte, and the question is
whether a creditor has adequately explained to the court why a writ
of replevin should issue, the fact that there was an oral showing rather
than a written one is not constitutionally significant.

35a

Appendix B

Without some plausible showing that a properly verified
petition would have made a difference, we cannot say that
its absence violated due process under these particular facts.
See id. (“[T]he necessary procedural safeguards in a given
case are determined by comparing the extent to which they
further the defendant’s interest in avoiding a wrongful or
arbitrary deprivation of his property with their negative effect
upon the interest of the state in providing protective creditor
remedies.”). More importantly, it must be emphasized that
due process does not require any “particular form of
procedure.” Mitchell, 416 U.S. at 610 (citation omitted).
Rather, the question is whether the protections afforded Audio
Odyssey (and other replevin defendants in Iowa) are sufficient
on balance, i.e., whether the statute “as a whole” constitutionally
accommodates the property interests of debtors and creditors.
Id. We hold that it does, both in general and in this case.
Considering Audio Odyssey’s ability to obtain a prompt post-
deprivation hearing, its adequate indemnification under the
Statute, its ability to regain the property by posting its own
bond, and the Bank’s detailed allegations (albeit through an
attorney) that Audio Odyssey was delinquent under the note
and was planning to sell the collateral, we are satisfied that
any harm occasioned by the improperly verified petition was
no more than “slight” in comparison to the statute’s
“substantial advancement of the state interest in protecting
a creditor from a dissipation of collateral.” Watertown,
830 F.2d at 1491.

We thus agree with the district court and with a summary
statement by the lowa Supreme Court, sustaining the
constitutionality of the replevin statute. See Interfirst Bank
of Dallas v. Hanson, 395 N.W.2d 857, 860 (Iowa 1986).

ee ee ee es

36a

Appendix B

We also agree with the district court that due process was
observed in the seizure of the personal property in question.
It may be, of course, that the Bank had no sound factual and
legal basis for seeking replevin, which is a matter we do not
decide. That will presumably be litigated in state or federal
courtin connection with a damage claim on the bond.

We have no need to approve the initial state court decision
to issue an ex parte order having the effect of stopping Audio
Odyssey’s “annual sale.” Even if we might suppose that
discretion was poorly exercised, and that too much weight
may have been given to the assumed risk of the collateral’s
loss in the event of notice to the debtor, what is involved in
this portion of the case is the ordinary risk of judicial error,
not a substantial constitutional question of due process.

IV

The judicially unauthorized lockout of Audio Odyssey’s
real property is a more troubling federal question, although
perhaps less damaging.'* We must determine whether there
is a triable claim that Sergeant Barton and Deputy Norris
committed a constitutionally unreasonable seizure of the real
property, whether the officers are entitled to qualified
immunity, and whether the Bank and its attorneys conspired
with the officers to violate Audio Odyssey’s Fourth Amendment
rights (and whether they might prevail under some notion of
“good faith” immunity). For the reasons set forth below,
we reverse the grant of summary judgment on these claims.

14. Whether plaintiff’s six week exclusion from the empty shell
of its store was seriously damaging remains to be determined.

37a

Appendix B
A

The Fourth Amendment prohibits unreasonable searches
and seizures by law enforcement officers, whether of a person
or property. See Gardner v. Buerger, 82 F.3d 248, 251
(8th Cir. 1996). A “seizure” of property occurs whenever
“there is some meaningful interference with an individual’s
possessory interests in that property.” Soldal v. Cook County,
506 U.S. 56, 61 (1992) (citation omitted). We believe the
officers seized Audio Odyssey’s premises by entering the
store, ordering those inside to leave, arranging for the locks
to be changed, and erecting “No Trespassing” signs, thereby
excluding the company’s principals from the store’s property.
Such an exclusion from one’s property, even for a rather brief
period, is “meaningful interference” as a matter of law.

Somewhat less obvious is whether the seizure was
objectively unreasonable. A seizure of property that is
unsupported by a warrant or other court order is presumptively
unreasonable within the meaning of the Fourth Amendment.
See, e.g., id. at 68-69. The order and writ of replevin relied
upon by Sergeant Barton and Deputy Norris did not authorize
a seizure of Audio Odyssey’s real property. Rather, it directed
the officers to seize various enumerated types of personal
property located at a specific address. Although the writ and
order listed a legal address, they did so only to describe the
location of the items to be seized, specifically, “All inventory,
fixtures, accounts, furniture, equipment and machinery on
property described as follows [followed by legal
description].” This language cannot reasonably be read to
authorize a seizure of the electronics store — particularly in
the context of a writ of replevin, which, time out of mind,

38a

Appendix B

has authorized the seizure of personal rather than real property.'°
Presumably an officer may briefly secure real property for
minutes or hours while seizing personal property located
thereon, in order to maintain the peace or even to prevent
customers or employees from absconding with the collateral.
Compare Illinois v. McArthur, _ U.S. _, 121 S. Ct. 946
(2001) (permitting temporary seizure of homeowner while
officers obtained search warrant).'* But erecting (and failing
to remove) “No Trespassing” signs, changing the locks, and
giving the keys to the Bank far exceeded the scope of any
temporary seizure that might be justified. Defendants do not
even argue that the replevin writ and order, fairly construed,
conferred a right to seize the real estate for the several days
required to conduct an inventory and arrange for the removal
of personal property. They do contend, however, that they
acted reasonably.

Defendants’ reliance upon Johnson v. Outboard Marine
Corp., 172 F.3d 531 (8th Cir. 1999), is misplaced. There,
we held that an erroneous seizure of personal property is not
necessarily an “unreasonable” one, and that the officer in
that case had a reasonable basis for seizing a boat and trailer
that fell outside of a writ of execution. Johnson did not

15. Interestingly, a civil procedure manual kept by the Sheriff’s
Department defines “replevin” as “the redelivery to the owner the
possession of personal property which is his and which is wrongfully
detained from him and to which he has a right to immediate
possession” (emphasis added).

16. We also assume there is an adequate law enforcement reason
for seizing real property for a fairly long time to secure a crime scene,
but here we are dealing with a routine civil proceeding.

39a

Appendix B

purport to immunize all errant seizures; rather, the question
is whether the officer’s mistake is objectively reasonable.
See id. at 536-37; Dawkins v. Graham, 50 F.3d 532, 534
(8th Cir. 1995) (“[T]he Fourth Amendment’s allowance for
officers’ honest mistakes is limited to mistakes that are
objectively reasonable.”). That is the same question we ask
today. Our answer differs from that reached in Johnson
because the facts of the two cases stand in sharp contrast.
The writ of execution in Johnson authorized the seizure of
“any and all personal property of the judgment debtor
(a dissolved corporation) located at” the address of the
corporation’s secretary. While executing the writ, an officer
seized a boat and trailer that were later discovered to be the
property of the corporation’s secretary and president rather
than the corporation itself. Various circumstances not here
present made the officer’s decision reasonable:

— The boat and trailer were not identifiable as property
| of one entity or another, and were the same sort of property
handled by the judgment debtor in the course of its business.

— The officer had been told by a superior that, .
even if the property were not the corporation’s, the secretary
of the corporation was not protected under state law from
an execution to satisfy a judgment against the corporation.
We tacitly accepted that as authorization similar to legal
advice.

— The officer confronted the secretary when seizing
the boat, and the secretary was unable to produce any
documentation of ownership for the boat or trailer.

40a
Appendix B

In short, the officer in Johnson relied upon specific facts
creating a reasonable belief that the writ of execution
authorized a seizure of the property at issue, while the officers
in this case did not. An officer’s mere recitation of a mistaken
belief does not make the mistake “reasonable” as a matter of
law, and we cannot agree that the seizure of Audio Odyssey’s
real property was “reasonable” under the Fourth Amendment."’

B

The more challenging question is whether the officers
are entitled to qualified immunity. “In resolving a case in which
the defense of qualified immunity has been raised, this Court
must determine whether the appellees asserted a violation of
a federal right, whether that right was clearly established,
and whether a reasonable official in [the defendant’s] position
would have known that his conduct violated that right.”
Walden v. Carmack, 156 F.3d 861, 868-69 (8th Cir. 1998).
We believe not only that Audio Odyssey has demonstrated a
violation of a constitutional right, but that the right in
question is well established, namely, the Fourth Amendment’s
protection against seizure of one’s property in the absence
of a warrant, an equivalent court order, or circumstances
justifying a recognized exception to the warrant requirement.

17. As Deputy Norris’s superior, Sergeant Barton is potentially
liable as a supervisor as well as individually, since he “directly
participated in the constitutional violation.” Otey v. Marshall,
121 F.3d 1150, 1155 (8th Cir. 1997). We explain in Part V, however,
that Sergeant Barton’s supervision of Deputy Norris is not itself
actionable. We also leave open the question of whether Deputy Norris
could rely, for some of his conduct, on advice from a superior —
as in Johnson.

4la

Appendix B

See id. at 872 (upholding denial of qualified immunity,
where officer allegedly seized items outside the boundaries of
that described in search warrant and did not posit a reasonable
belief that the items were located within such boundaries).

Finally, we examine whether a reasonable officer in Sergeant
Barton or Deputy Norris’s position would have known that
the seizure at issue violated the right in question. The tests
for Fourth Amendment legality and qualified immunity both
use the term “reasonable,” but the two questions are distinct.
A seizure comports with the Fourth Amendment if it is
objectively reasonable; one way for a seizure to be objectively
reasonable is for the officer to have a reasonable belief that
a court order allows the seizure. See, e.g., Johnson, 172 F.3d
at 536-37. Qualified immunity, on the other hand, somewhat
expands the leeway already afforded by the substantive
Fourth Amendment law. It may not bé useful to ask whether
an officer’s conduct is “reasonably reasonable,” but we do
examine the conduct more deferentially at the qualified
immunity stage. An analogy might be drawn from the
standard governing a qualified immunity defense to a charge
that an arrest was lacking in probable cause; then, “the issue for
immunity purposes is not probable cause in fact but arguable
probable cause.” Habiger v. City of Fargo, 80 F.3d 289, 295
(8th Cir. 1996).

Whatever measure of deference is due Sergeant Barton
and Deputy Norris, it cannot immunize an error as significant
as theirs. “Qualified immunity does not protect plain incom-
petence.” Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir.
1995) (affirming denial of qualified immunity to officers
who, among other things, erroneously executed a search

|
ee

42a

Appendix B

warrant at 611 Adam Street rather than 611 Byrd Street);
Wooley v. City of Baton Rouge, 211 F.3d 913, 926-27
(Sth Cir. 2000) (holding that officers who delivered child
from mother to grandparents under court order awarding
temporary custody to grandparents were not entitled to
qualified immunity, where the order did not direct officers
to effect a transfer of custody, and state law required a
separate civil warrant for such transfers); Bins v. Artison,
721 F.Supp. 1034, 1038 (E.D. Wis. 1989) (rejecting qualified
immunity defense to due process claim and entering judgment
for plaintiff, where officer seized plaintiff’s racing car when
executing judgment against other parties, without
ascertaining car’s owner), vacated in part on other grounds,
Nos. 90-1149, 90-1339, 1991 WL 10625 (7th Cir. Feb. 4,
1991). The mere inclusion of Audio Odyssey’s legal address
within a writ and order requiring the seizure of various
enumerated items on the premises does not colorably justify
a seizure of the premises themselves — even if one ignores
the legal distinction between real and personal property,
the purpose ofa replevin, and the distinct possibility that the
officers did not even harbor the claimed reasonable belief
on the day in question."* At the very least, a zealous creditor’s
request for measures clearly exceeding those authorized by

18. Ifthe officers truly believed that the writ and order allowed
the Bank to seize the premises and use them to store the personal
property, then it is unclear why moving trucks would be necessary to
remove the personal property (and why Sergeant Barton asked
attorney Hofmann if the Bank had arranged for such moving trucks).
It is equally likely — and probably should be assumed on summary
judgment — that the officers correctly understood the writ and order,
but were persuaded by Hofmann and the Bank to carry out a seizure
beyond the one authorized by the court.

43a

Appendix B

the court should have given the officers pause, either to
consider their actions more carefully or to seek disinterested
legal advice from the county attorneys they regularly consult.
“Where an official could be expected to know that certain
conduct would violate statutory or constitutional rights,
he should be made to hesitate.” Harlow v. Fitzgerald,
457 U.S. 800, 819 (1982).

We are aware that certain practical arguments can be
asserted in favor of the real estate seizure. As the district
judge and the dissent would have it, we also suppose that
seizure of the premises may have been the “sensible” thing
to do, at least while taking an inventory of the property.
But to make this dispositive simply strong-arms away the
unquestioned legal right of Audio Odyssey to enjoyment of
the empty premises, however that may be valued at trial.
It may be equally “sensible” to create a path across the vacant,
unused land of another when needed, even though consent
has not been given. But the right of expropriation and self-
help is clearly limited. There was no reason to doubt that
Audio Odyssey’s legal right to its property was being invaded
without judicial approval, for an indefinite period, and for
an unauthorized purpose — be it to store and inventory the
collateral, to effectuate the Bank’s desire to possess the
premises, or otherwise. We therefore reverse the grant of
summary judgment to Sergeant Barton and Deputy Norris
on the basis of qualified immunity.'®

19. The facts at trial may differ from those we have presented,
but any reassessment of qualified immunity will ultimately be a
question of law for the court. See Buffkins v. City of Omaha,
922 F.2d 465, 472 n.16 (8th Cir. 1990); Garionis v. Newton,

(Cont’d)

44a

Appendix B
C

A further aspect of the case concerns the length of the
wrongful seizure for which the officers and the other
defendants are potentially liable. Audio Odyssey contends
that the premises were seized for six weeks; Deputy Norris
changed the locks and erected “No Trespassing” signs on
July 14, 1995, and Dincer did not regain access to the
premises until the court’s order of August 31, 1995 — despite
the certified letter sent to the Sheriff’s Department and the
meetings between attorneys from Audio Odyssey and the
Bank, during which demands for the real estate were made.
Audio Odyssey contends that defendants are liable for the
entirety of the company’s exclusion from the premises, as
well as the foreseeable consequences of that exclusion —
including the store’s failure. Defendants insist that the
plaintiffs should have more promptly sought a judicial
remedy, and we agree that Audio Odyssey could have gone
to court very quickly to seek immediate return of its real
estate. In addition, defendants argue that plaintiffs could have
posted a bond to have possession restored, and the record
suggests that Audio Odyssey claims to have been financially
able to do so.

The issues include whether the defendants proximately
caused Audio Odyssey’s extended injuries, and beyond that,
whether the injuries are more fairly attributable to plaintiff’s

(Cont’d)
827 F.2d 306, 309 (8th Cir. 1987) (holding that district court erred
by submitting the ultimate issue of qualified immunity to the jury).

Qualified immunity is unavailable to the officers on the record before
us as we have construed it.

45a

Appendix B

failure to promptly mitigate damages. Those are jury questions.
“Causation is generally a jury question unless, in a particular
case, the question is so free from doubt as to justify taking it
from the jury.” Ricketts v. City of Columbia, 36 F.3d 775,
779 (8th Cir. 1994) (citation and quotation omitted).
The possibility of an intervening cause does not generally
defeat an inference of proximate cause as a matter of law.
See Trudeau v. Wyrick, 713 F.2d 1360, 1367 (8th Cir. 1983).
Here, the question of who caused the extended lockout is
not free from doubt.”°

D

We next consider the responsibility of various private
defendants for seizing the real property. Recovery is available
under section 1983 only for violations of federal rights
committed by persons acting “under color of state law.”
Private conduct is actionable under section 1983 under two
conditions. First, the constitutional deprivation at issue
“must be caused by the exercise of some right or privilege
created by the State . . .” Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 (1982) (describing the right to seek a
garnishment or attachment as qualifying). Second, the private
party must have “acted together with or ... obtained
significant aid from state officials” or engaged in conduct

20. Because of our reversal on the Fourth Amendment claim,
we need not decide whether a brief or extended seizure of the real
estate violated Audio Odyssey’s right to procedural due process.
On remand, such a claim (if pursued) may depend upon whether the
seizure is characterized as “random and unauthorized,” or as the result
of established state procedures. See Hudson v. Palmer, 468 U.S. 513,
533 (1984); Coleman v. Watt, 40 F.3d 255, 262 (8th Cir. 1994).

9 ee ae ae

46a

Appendix B

that is “otherwise chargeable to the State.” Jd.; Wyatt v. Cole,
504 U.S. 158, 162 (1992). The second element requires more
than the private misuse of a state statute (as alleged in the
taking of the personal property in this case); a plaintiff must
show that the private party acted in concert with or obtained
significant aid from state officials who were themselves
involved in a constitutional violation. See Hassett v. Lemay
Bank & Trust Co., 851 F.2d 1127, 1129-30 (8th Cir. 1988);
Apostol v. Landau, 957 F.2d 339, 343 (7th Cir. 1992).
Otherwise stated, there must be a “meeting of the minds”
or a “mutual understanding” between a private party and
public officials to engage in conduct that violates the plaintiff’s
federal rights. Miller v. Compton, 122 F.3d 1094, 1098
(8th Cir. 1997).

Audio Odyssey has clearly made a sufficient showing to
survive summary judgment. A reasonable jury could find a
“meeting of the minds” between Bank’s loan officer and
vice-president Bradley and attorney Hofmann, on one hand,
and Sergeant Barton and Deputy Norris, on the other, to seize
Audio Odyssey’s real estate even though the state court
ordered no such thing. Indeed, on the present record, the idea
appears to have been Bradley’s to begin with.

We are unpersuaded that the Bank, Bradley, and Hofmann
are entitled to any sort of immunity. Qualified immunity does
not extend to private defendants who conspire with public
officials to violate constitutional rights — at least in the replevin
context. See Wyatt, 504 U.S. at 168-69. Wyatt reserved the
question of whether such private defendants might be entitled
“to an affirmative defense based on good faith and/or probable
cause[,] or that § 1983 suits against private, rather than

47a

Appendix B

governmental parties could require plaintiffs to carry
additional burdens.” Jd. at 169. We have not squarely addressed
this question, although other circuits have answered it
affirmatively. See, e.g., Jordan v. Fox, Rothschild, O’Brien
& Frankel, 20 F.3d 1250, 1276 (3d Cir. 1994); Wyatt v. Cole,
994 F.2d 1113, 1118 (Sth Cir. 1993); Pinsky v. Duncan,
79 F.3d 306, 313 (2d Cir. 1996). The precise scope of “good
faith” immunity accorded by these cases is unclear.

We need not decide whether to recognize such a defense,
or define its scope, because doing so would not assist the
private defendants. Any immunity that might apply would
be no broader than the qualified immunity accorded public
officials. See Wyatt, 504 U.S. at 167-69 (discussing rationale
of public immunity and of extending it to private parties).
Hofmann and the Bank’s view of the scope of the court’s
order is no more reasonable than what is now claimed by
Sergeant Barton and Deputy Norris.?! If Sergeant Barton and
Deputy Norris are not entitled to qualified immunity, then

those who conspired with them are not entitled to its private
sector analogue.

As a separate basis for affirmance, Hofmann and his firm
offer an “Assignment of Real Estate Lease and Agreement”
signed by Dogan Dincer on behalf of Audio Odyssey.
The document purports to assign Audio Odyssey’s lease to
the Bank, but it is unsigned by the store’s landlord (one Frank

21. Although Bradley was not present, and perhaps had no
opportunity to study the documents, he had even greater notice that
the store itself was not subject to seizure: Sergeant Barton’s initial
Statement that the replevin could not be accomplished without
contemporaneous removal of the personal property.

”
a

48a

Appendix B

Brown) or by any representative of the Bank. In the event of
default, the Assignment allows the Bank to enter the premises
without notice, and “using such force as may be necessary,”
to remove or sell all collateral. Hofmann argues that the
Assignment gave him a reasonable belief that Audio Odyssey
consented to the seizure of the real estate, and that changing
the locks arguably falls within the Assignment’s allowance
for “such force as may be necessary” to remove the collateral.
The district court did not rule on the Assignment’s
significance, and the issue is not adequately briefed by the
parties. We may affirm a grant of summary judgment on any
basis supported by the record, see Wilson v. Spain, 209 F.3d
713, 716 (8th Cir. 2000), but the record is not adequately
clear in this instance. The parties are free to urge their positions
before the district court — hopefully in greater detail.”

V

Audio Odyssey’s remaining assignments of error are
without merit. First, there is no viable claim under either
section 1983 or otherwise against SBA loan officer Roger
Hoffman. On behalf of the SBA, Hoffman authorized the
Bank to accelerate Audio Odyssey’s loan and to seek a
replevin. This act alone does not create liability — regardless
of whether Hoffman is alleged to have conspired with the
state officials to violate Audio Odyssey’s constitutional
rights, or whether he is charged with violating them himself
as a federal official. The replevin of the personal property
was not unconstitutional in the first place. As for the real

22. We observe that Fuentes rejected an argument similar to
Hofmann’s. See 407 U.S. at 95-96.

49a

Appendix B

property, there is no contention that Hoffman had advance
knowledge of any scheme to seize Audio Odyssey’s premises
without court authorization, or that he participated in such a
scheme. Accordingly, there was no “mutual understanding”
between Roger Hoffman and the other defendants to violate
Audio Odyssey’s rights. Miller v. Compton, 122 F.3d 1094,
1098 (8th Cir. 1997). At most, Hoffman’s decision might
have breached the SBA’s agreement with Audio Odyssey and
the Bank, but that is not a constitutional violation and cannot
support a viable claim under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
See Buford v. Runyon, 160 F.3d 1199, 1203 n.6 (8th Cir. 1998)
(stating that Bivens claims lie “for violations of constitutionally
protected rights”); Schlake v. Beatrice Production Credit
Assoc., 596 F.2d 278, 281 (8th Cir. 1979) (no constitutional
violation “when a governmental agency breaches a contract
it has entered into in the commercial world”).

We also reject the supervisory claims against Scott
County Sheriff Michael M. Bladel. The suit against Bladel
in his official capacity is a suit against the municipality he
serves. See Spencer v. Knapheide Truck Equip. Co., 183 F.3d
902, 905 (8th Cir. 1999), cert. denied, 528 U.S. 1157 (2000).
The County may be liable for unconstitutional acts that
implement a county policy or are invoked pursuant to a
governmental custom; the custom or policy must be the
“moving force” behind the constitutional violation. Patzner
v. Burkett, 779 F.2d 1363, 1367 (8th Cir. 1985). Audio
Odyssey claims that Bladel did not adequately supervise the
officers under him. A failure to train officers may amount to
a “policy,” but this variety of claim generally requires the
municipality to have prior notice of its officers’ misbehavior

50a

Appendix B

and to act with deliberate indifference thereafter. See id.
Audio Odyssey cites no evidence of previous Fourth
Amendment violations committed by Scott County officials
that resemble the one committed by Deputy Norris and
Sergeant Barton, nor any evidence that the County had notice
of such misconduct. Nor was the danger of Deputy Norris’s
and Sergeant Barton’s seizure “so obvious” that a single
occurrence will make the County liable for not training its
employees to prevent it. See Board of County Comm'rs v.
Brown, 520 U.S. 397, 409 (1997); City of Canton v. Harris,
489 U.S. 378, 390 (1989). Finally, Audio Odyssey points to
the County’s “policy” of allowing private parties to complete
a “Directions to Sheriff’ form to aid officers in serving and
executing writs and orders. This argument misstates the
County’s policy, which requires the officer to follow the writ
or order if it conflicts with the “Directions to Sheriff.” For
that matter, the “policy” of using “Directions to Sheriff’
forms is not itself unconstitutional, as an express policy or
affirmative custom must be to create municipal liability. See
Patzner, 779 F.2d at 1367.

Equally without merit is the supervisory claim against
Sheriff Bladel in his individual capacity. Sheriff Bladel can
be liable for Deputy Norris and Sergeant Barton’s
constitutional violation only if he “directly participated in
the constitutional violation, or if his failure to train or supervise
the offending actor caused the deprivation.” Otey v. Marshall,
121 F.3d 1150, 1155 (8th Cir. 1997) (citation and quotation
omitted). The Sheriff did not know about this replevin until
he was notified of this lawsuit, and there is no contention
that he directly participated in the writ’s execution. To be
individually liable for failing to train his subordinates,

Sla
Appendix B

Sheriff Bladel must have “received notice of a pattern of
unconstitutional acts committed by subordinates . . .,
demonstrated deliberate indifference to or tacit authorization
of the offensive acts . . ., [and] failed to take sufficient
remedial action” — and the failure must have proximately
caused Audio Odyssey’s injury. Jd. As explained above, there
is no showing of previous illegalities that place Sheriff Bladel
on the requisite notice. The supervisory claim against
him necessarily fails. A similar claim against Sergeant Barton
for improperly supervising Deputy Norris fails for the
same reason.

VI
For the foregoing reasons, the judgment of the district
court is affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion.”?

LOKEN, Circuit Judge, dissenting in part.

23. Insofar as there may be individualized matters that are not
referred to in this opinion and that the parties have not briefed,
such as the liability of defendants Chris A. Pieper and the law firm,
Anderson & Nelson, P.C., nothing in this opinion is intended to
preempt issues that would otherwise be available for trial — so long
as those issues are resolved in a manner consistent with the opinion.
In addition, the district court is free to reconsider its dismissal of
Audio Odyssey’s pendent claims in light of our resolution of the
federal claims. Damages from the inability to conduct plaintiff’s sale
as scheduled cannot, of course, be litigated further except to the extent
authorized by state law.

52a

Appendix B

As the Court’s thorough opinion makes clear, hindsight
suggests that all the parties to this July 1995 dispute acted
unreasonably. The Bank sought a replevin order it was
unprepared to implement and then insisted its borrower’s
store premises be immediately seized. The County Sheriffs
padlocked store premises that were not encompassed by the
replevin order without discussing with Audio Odyssey
whether less drastic measures would protect the Bank’s
interest in the replevined collateral. And Audio Odyssey
dallied for weeks rather than take prompt legal action to
recover the store premises.

In my view, the key to unraveling these events, at least
for purposes of Audio Odyssey’s § 1983 claims, lies in the
breadth of the replevin order — “All inventory, fixtures,
accounts, furniture, equipment and machinery” found on the
store premises. The premises were part of a shopping center.
Audio Odyssey was a tenant, not the owner, of those
commercial premises. Audio Odyssey’s only interest in
possession of the premises was to operate its retail store.
If the store was stripped of ail the personal property listed in
the court order, it would obviously be inoperable, at least
until Audio Odyssey replaced the inventory, fixtures, furniture,
equipment, and machinery.

The replevin order gave the Bank the right to immediate
possession of all the named personal property. If the order
thereby authorized the County Sheriffs to prevent Audio
Odyssey from selling the replevied property before the order
could be executed — and the court now agrees that it did —
then Audio Odyssey’s right as a tenant to continuing
possession of the store premises was of no immediate value.

53a
Appendix B

That is why it was reasonable for the Bank as secured creditor
to urge that Audio Odyssey’s store operations cease until the
replevin order could be executed. That is why it was
objectively reasonable for Sergeant Barton to review the
breadth of the replevin order and conclude that it authorized
the County Sheriffs to close the store for a reasonable period
of time. And that is why Audio Odyssey made no effort to
reaccess the store premises until August, after its debtor-
creditor negotiations with the Bank had proven unsuccessful.

The district court thoroughly analyzed the applicable
constitutional principles and, mindful of the practical
considerations that underlie any Fourth Amendment
reasonableness inquiry, concluded that defendants are entitled
to summary judgment dismissing all § 1983 claims. Applying
its own more selective hindsight, the court reverses in part,
thereby casting doubt on the accuracy of the Supreme Court’s
prediction that, when creditors obtain state court orders
before seizing property, the Fourth Amendment “should not
foment a wave of new litigation in the federal courts.” Soldal
v. Cook County, 506 U.S.56, 72 (1992). In my view,
permitting this case to proceed further in federal court is both
wrong and regrettable. Accordingly, I respectfully dissent
from Part IV of the court’s opinion. I would affirm the
judgment of the district court.

A true copy.
Attest:

CLERK, U.S. COURT OFAPPEALS, EIGHTH CIRCUIT

54a

APPENDIX C — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF IOWA, DAVENPORT DIVISION
DATED JANUARY 21, 2000

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

No. 3-97-CV-10082
No. 3-97-CV-10125 Consolidated

AUDIO ODYSSEY, LTD., an Iowa Corporation,
DOGAN A. DINCER, and ANN M. DINCER,

Plaintiffs,
VS.

BRENTON FIRST NATIONAL BANK, an Iowa Banking
Corporation, MICHAEL M. BLADEL, Sheriff of Scott
County, Iowa, JOHN M. NORRIS, Deputy Sheriff of Scott
County, lowa CHARLES A. BARTON, Deputy Sheriff of
Scott County, Iowa, JOHN C. BRADLEY, CHRIS A. PIEPER,
ROGER HOFFMAN, MERCHANTS BONDING COMPANY
(Mutual) a Corporation, BERNARD J. HOFMANN and
ANDERSON & NELSON, a professional corporation,

Defendants.

ORDER

55a

Appendix C

Before the Court is a motion for summary judgment by
defendants Brenton First Nationa] Bank, John C. Bradley,
Chris A. Pieper and Merchants Bonding Company (collectively,
“defendants”) filed on October 27, 1999. Audio Odyssey,
Ltd., Dogan A. Dincer and Ann M. Dincer (“plaintiffs”) filed
their resistance to this motion on December 7, 1999. Plaintiffs
filed an 82 page brief detailing its resistance, and simultaneously
requested the Court grant permission to file an overlength
brief. On December 14, 1999 Chief United States Magistrate
Judge Ross A. Walters granted plaintiffs’ request to file an
overlength brief, but limited the brief to 30 pages. Plaintiffs
complied with this order and re-filed its brief on December
20, 1999.' Defendants replied to plaintiffs’ resistence on

December 14, 1999. The matter is now considered fully
submitted.

1. BACKGROUND

The basic facts underlying plaintiffs’ claims were detailed
in this Court’s prior Order dated October 13, 1999. The Court
finds it is unnecessary to fully reiterate all of the facts.

However, for purposes of clarity in this Order, a brief capsule
of the facts is as follows:

1. Plaintiffs also filed a Motion to Preserve Record on December
20, 1999. Plaintiffs requested the Court maintain the original 82 page
brief the plaintiff filed in resistance to defendants’ motion for
summary judgment. The Court grants plaintiffs’ motion, and will
maintain on file plaintiff’s 82 page brief for the limited purpose of
preserving plaintiffs’ record in the event a claim is made that

an argument or point of fact was not contained in the plaintiffs’
resistance brief.

56a

Appendix C

Plaintiffs entered into a small business loan agreement
with defendant, Brenton First National Bank, on October 3
1991. On July 13, 1995, plaintiff Dogan Dincer went to the
Bank to make payments for June and July of 1995. Dincer
saw defendant Christopher Pieper, Vice President of the
Bank, on this day and told Pieper he was making these
payments. Pieper said that he understood, and did not inform
Mr. Dincer that the payments might be applied in a manner
contrary to Dincer’s instructions. On July 14, 1995 at
approximately 8:50 a.m., defendant John Bradley, a Brenton
employee, hand delivered a letter to Dogan Dincer. This letter
stated that payment of the balance of the loan, $126,915.20,
was to be delivered by 9:00 a.m. as the loan was in default
and the Bank was accelerating the debt. Thereafter,
defendants instituted a replevin action against the plaintiffs.
This action included locking down the Audio Odyssey
premises late in the afternoon of July 14. The following week,
property was removed from the business premises in accord
with the loan agreement.

Procedurally, this action was originally brought by plaintiffs
as two separate actions. This Court consolidated these
separate cases on June 30, 1999. The claims by plaintiffs
which remain? before this Court at this time are:

2. This Court has previously granted summary judgment on all
claims against two groups of defendants, the “Scott County
Defendants” and “Anderson & Nelson,” on the following counts in
its October 13, 1999 Order:

CountV — 42 U.S.C. § 1983 Deputy John M. Norris,
individual capacity

(Cont’d)

Count I

Count II

Count III

Count IV

57a

Appendix C

— 42 U.S.C. § 1983 Private Party
Brenton First National Bank

— 42US.C. § 1983 Private Party John
C. Bradley

— 42 U.S.C. § 1983 Private Party
Christoper A. Pieper

— 42 U.S.C. § 1983 Private Parties
Brenton First National Bank,

(Cont’d)
Count VI

Count VII
Count VIII

Count X
Count XI

42 U.S.C. § 1983 Sergeant Charles A. Barton,
individual and supervisory capacity

42 U.S.C. § 1983 Sheriff Michael M. Bladel,
individual capacity and supervisory liability
42 U.S.C. § 1983 Sheriff of Scott County,
official capacity

42 U.S.C. § 1983 Conspiracy

Trespass - pendant [supplemental] jurisdiction

Count I (3-97-cv-10125) — 42 U.S.C. § 1983 Private Party

Bernard J. Hoffman

Count II (3-97-cv-10125) — 42 U.S.C. § 1983 Private Party

Anderson & Nelson

Count III (3-97-cv-10125) — 42 U.S.C. § 1983 Conspiracy
Count IV (3-97-cv-10125) — 42 U.S.C. § 1983 Private Parties

Statute Unconstitutional

Count V (3-97-cv-10125) — Abuse of Process

The “Scott County Defendants” were Michael Bladel, John N.
Norris, and Charles A. Barton. “Anderson & Nelson” was the
Anderson & Nelson, P.C. Law Firm and one of its attorneys, Bernard

J. Hoffman.

Earlier, on December 15, 1997, the Court in another Order
granted defendant Roger Hoffman’s motion to dismiss Counts IX
(section 1983 claim) and X (conspiracy) against him. Roger Hoffman
was a loan officer with the Small Business Administration.

Count XII

Count XIII

Count XIV

Count XV

Count XVI

Count XVII

Count XVIII
Count XIX
Count XX
Count XXI

58a

Appendix C

Christopher A. Pieper, and John C.
Bradley — statute unconstitutional
Conversion — pendant [supplemental]
jurisdiction

Tortious Interference with Existing
Contractual Relations — pendent
[supplemental] jurisdiction

Tortious Interference with Prospective
Business Relationships — pendent
[supplemental] jurisdiction

U.C.C. Commercial Reasonableness
— pendent [supplemental] jurisdiction
U.C.C. General Obligation of Good
Faith — pendent [supplemental]
jurisdiction

Action on Replevin Bond — pendent
[supplemental] jurisdiction
Punitive Damages — Actual Malice
Punitive Damages — Legal Malice
Impairment of Collateral

Abuse of Process

II APPLICABLE LAW & DISCUSSION

A. Standard of Review

Summary judgment is properly granted when the
record, viewed in the light most favorable to the nonmoving
party, shows that there is no genuine issue of material fact,
and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Walsh v. United States, 31 F.3d
696, 698 (8" Cir. 1994). The moving party must establish its
right to judgment with such clarity that there is no room for

59a

Appendix C

controversy. Jewson v. Mayo Clinic, 691 F.2d 405, 408
(8 Cir. 1982). “{[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly
Supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 ( 1986) (emphasis
added). An issue is “genuine,” if the evidence is sufficient to
persuade a reasonable jury to return a verdict for the nonmoving
party. Jd. at 248. “As to materiality, the substantive law will
identify which facts are material... . Factual disputes that are
irrelevant or unnecessary will not be counted.” Jd.

B. Section 1983 Claims

42 U.S.C. § 1983 affords plaintiffs a remedy for
deprivations of federal rights.? To succeed under section 1983,
at a minimum, a plaintiff must prove that the deprivation

3. A § 1983 claim must state that a person acting under color of
state law has deprived the plaintiff of rights protected by the Constitution:

Every person who, under color of any statute, ordinance,
custom, or usage, of any State or Territory or the District of
Columbia, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action
against a judicial officer for an act or omission taken in
such officer’s judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable.

42 U.S.C. § 1983; see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
155-56 (1978).

60a

Appendix C

se 6

included “ ‘rights, privileges, or immunities secured by the
Constitution or laws of the United States.’ Montano v.
Hedgepeth, 120 F.3d 844, 848 (8" Cir. 1997) (citation omitted).
A section 1983 plaintiff must also allege “defendant deprived
[plaintiff] of a constitutional right while acting ‘under color of’
state law.”* Roudybush v. Zabel, 813 F.2d 173, 176 (8® Cir.
1987) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970)). Section 1983’s color of state law element requires
a defendant’s actions to be “fairly attributable” to the state.
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).
In defining “fairly attributable,” the Court has set forth a two-part
approach:

First, the deprivation must be caused by the exercise
of some right or privilege created by the State or by
a rule of conduct imposed by the State or by a person
for whom the State is responsible. . . . Second, the
party charged with the deprivation must be a person
who may fairly be said to be a state actor. This may
be because he is a state official, because he has
obtained significant aid from state officials, or
because his conduct is otherwise chargeable to the
State. Without a limit such as this, private parties
could face constitutional litigation whenever
they seek to rely on some state rule governing their
interactions with the community surrounding them.

Lugar, 457 U.S. at 937.°

4. “[MlJost rights secured by the Constitution are protected only
against infringement by governments.” Flagg Bros., 436 U.S. at 156.

5. The “state policy” component of the Lugar approach “may
be inferred from either a state statute . . . or a well-settled custom or
practice.” Roudybush, 813 F.2d at 176 (citations omitted).

6la

Appendix C

Lugar involved a debtor who filed a § 1983 action,
naming a corporate creditor as the defendant. Lugar, 457 U.S.
at 924-25. The debtor claimed that the creditor had acted
jointly with the state to deprive him of his property without
due process through a prejudgment attachment procedure.
Id. The Court discussed the federal remedies available to a
debtor: “If the creditor-plaintiff violates the debtor-
defendant’s due process rights by seizing his property in
accordance with statutory procedures, there is little or no
reason to deny to the latter a cause of action under the federal
statute, § 1983, designed to provide judicial redress for just
such constitutional violations.” /d. at 934. The Court also
made clear that “[jJoint action with a state official to
accomplish a prejudgment deprivation of a constitutionally
protected property interest will support a § 1983 claim against
a private party.” /d. at 927, n.6 (citing Adickes v. SH.Kress &
Co., 398 U.S. 144 (1970)).° However, the Court made clear
that it did “not hold [] that a ‘private party’s mere invocation
of state legal procedures constitutes ‘joint participation’ or
‘conspiracy’ with state officials satisfying the § 1983
requirement of action under color of law.’ ” Jd. at 939, n.21.

In discussing the “fairly attributable” approach, the Court
stated: “While the private misuse of a state statute does not
describe conduct that can be attributed to the State, the
procedural scheme created by the statute obviously is the

6. And more specifically, the Court stated “[i]f the creditor-
plaintiff violates the debtor-defendant’s due process rights by seizing
his property in accordance with statutory procedures, there is little
Or no reason to deny to the latter a cause of action under the federal
Statute, § 1983, designed to provide judicial redress for just such
constitutional violations.” Jd. at 934.

62a

Appendix C

product of state action.” Lugar, 457 U.S. at 941. After
examining the facts presented in Lugar, the Court dismissed
the plaintiff’s allegations of private misuse of the state
attachment procedure, and let survive the plaintiff’s claims
that the attachment occurred pursuant to an unconstitutional
statute. Jd. at 940-42. Defendant’s alleged misuse of
procedures sanctioned by the state was insufficient to satisfy
§ 1983’s state action requirement. /d. On the other hand, the
unconstitutionality assertion satisfied the color of state law
requirement because it was a scheme created and sanctioned
by the state. Jd.

Despite Lugar’s two-part approach, in some situations,
the state policy and state action components of the color of
law requirement are not separate and distinct:

Although related, the two principles are not the
same. They collapse into each other when the
claim of a constitutional deprivation is directed
against a party whose official character is such as
to lend the weight of the state to his decisions
(citation omitted). The two principles diverge
when the constitutional claim is directed against
a party without such apparent authority, i.e.,
against a private party.

Lugar, 457 U.S. at 937. The section 1983 counts remaining
at issue in this case, counts I-IV, involve private party’s only.
In I-III, the plaintiffs argue the defendants violated their rights
under the Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution.

63a
Appendix C

Plaintiffs claim defendants violated their Fourth
Amendment rights because real estate was seized, and the
state court order under which defendants were acting did not
include real estate. They also claim that it was unreasonable
for defendants to seize the real estate. This Court in its
October 13, 1999 Order found the seizure of property
effectuated by all defendants was reasonable. The Court cited
Soldal v. Cook County, 506 U.S. 56 (1992), Johnson v.
Outboard Marine Corporation, 172 F.3d 531 (8" Cir. 1999),
and Iowa Code §§ 331.653(51) and 643.5 as authority for its
finding. In its current resistence to defendants’ motion
for summary judgment, plaintiff asks this court to depart
from its earlier finding that the seizure was reasonable.
See Plaintiffs’ Brief in Resistance to Bank’s Summary
Judgment Motion, at 1. This Court finds plaintiffs have
presented no new legal authority nor factual evidence’ to sway
its decision that the seizure was reasonable.

Plaintiff has also alleged defendants subjected plaintiffs
to a temporary taking of the business’ premises in violation
of the Fifth Amendment. In the October 13, 1999 Order, this
Court granted summary judgment on plaintiff’s section 1983
claims pertaining to the Fifth Amendment. The Court cited
Walden v. Carmack, 156 F.3d at 873-4, as authority for

7. Plaintiffs refer to parts of the deposition testimony of Roger
Hoffman, attorney for Brenton Bank on July 14, 1995, and Sergeant
Barton, as evidence that locking down Audio Odyssey’s premises
was an unreasonable seizure. This testimony, however, only shows
that the joint decision between the Bank and the Scott County
Sheriff's office to lock down the premises occurred late in the day of
July 14, 1995. This matter of timing does not necessitate that the
seizure was unreasonable.

64a
Appendix C

granting summary judgment, as Walden points out the value of
post-deprivation remedies in seeking the return of seized
property. Plaintiffs present no new arguments with respect to
their similar claim against these defendants.

The due process violations alleged by the plaintiffs were
rejected in this Court’s previous opinion. Johnson v. Outboard
Marine Corporation, 172 F.3d 531 (8 Cir. 1999) was cited as
controlling precedent on the plaintiffs’ allegation of a procedural
due process violation, and the same applies with respect to the
current motion. And, concerning the substantive due process
claim, the previous Order governs as plaintiffs present no
explanation as to how this right was infringed.

Finally, under Count IV, plaintiffs argue that the lowa
replevin statute is unconstitutional and that the use of this statute
by private actors — the Bank, its vice president (Pieper) and an
employee (Bradley) — should afford plaintiffs damages under
42 U.S.C. § 1983. For this proposition, plaintiffs rely upon
Mullane v. Central Hanover Bank & Trust, Co., 339 U.S. 306
(1950), Matthews v. Eldridge, 424 US. 319, 332-33 (1976),
Connecticut v. Doehr, 501 U.S. 1 (1991 ),8 and Fuentes v. Shevin,

8. Just to briefly expand upon this Court’s prior Order, the Court
again notes plaintiffs’ reliance upon Conrecticut v. Doehr, 501 US.
1 (1991). At issue in Doehr was a state statute which allowed a
plaintiff to attach before judgment if plaintiff could show “there
is probable cause to sustain the validity of the plaintiff's claim.”
Id. at 13. Peter DiGiovanni used this statute to go into a state district
court, prepare an affidavit with five one-sentence paragraphs
regarding a physical altercation he had with Doehr, and the court
then found probable cause that Doehr had caused physical injury to

DiGiovanni. The court issued a writ of attachment “to the value of
(Cont'd)

65a
Appendix C

407 U.S. 67 (1972). “Without doubt, state procedures for
creating and enforcing attachments, as with liens, ‘are subject
to the strictures of due process.’ ” Doehr, 501 U.S. at 12
(citations omitted). However, as this Court already ruled in its
previous October 13, 1999 Order, the Iowa replevin statute is
constitutional facially and as applied. See Mitchell v. W. T: Grant,
Co., 416 U.S. 600 (1974) (“[A] hearing must be had before one
is finally deprived of his property.’’) (emphasis added).

(Cont'd)

$75,000,” which was carried out by the sheriff who attached Doehr’s
property and alerted Doehr of his right to a post-attachment hearing.
Id. at 5-7. The Supreme Court declared the Connecticut statute
unconstitutional. Clearly part cf the Supreme Court’s rationale for
finding this unusual state statute unconstitutional was that “[u]nlike
determining the existence of a debt or delinquent payments, the issue
does not concern ‘ordinarily uncomplicated matters that lend
themselves to documentary proof.’ ” Jd. at 14 (quoting Mitchell v.
W. T. Grant, 416 U.S. 600 (1974)). And as further rationale for its
decision, the Supreme Court noted that in Doehr’s case the plaintiff
did not have a concern that Doehr was about to encumber or transfer
his real estate, concerns which the Court stated “permit[] postponing
any notice or hearing until after the attachment is effectuated.”
Id. at 16 (citations omitted).

Doehr does not support plaintiff’s argument that the lowa
replevin statute is unconstitutional. In this case, the underlying facts
which led to the attachment were “uncomplicated matters that len([t}
themselves to documentary proof.” And at issue in this case was a
retail business, for which the transfer of property was a real concern.
The state court judge issuing the writ knew the debtor was a retail
business, thereby making the exigent circumstance of the sale of
inventory apparent to the state court judge at the time the writ was
issued.

66a

Appendix C

For the above stated reasons, defendants’ motion for
summary judgment on Counts I-IV of plaintiffs’ complaint
are granted.

C. Remaining Counts

‘A district court may exercise supplemental jurisdiction
over state law claims that arise from the same nucleus of
operative fact as the plaintiff's federal claims and when the
plaintiff would ordinarily be expected to try all the claims in
one judicial proceeding.” Cossette v. Minnesota Power & Light,
188 F.3d 964, 973 (8" Cir. 1999) (citing Kansas Pub. Employees
Retirement Syst. v. Reimer & Koger Assocs., Inc., 77 F.3d 1063,
1067 (8" Cir. 1996)). However, the Court does not have to
exercise supplemental jurisdiction over state law claims if
“the [state law] claim[s] substantially predominate[] over the
claim or claims over which the district court has original
jurisdiction.” 28. U.S.C. § 1367 (c)(2). Nor does the Court
have to exercise its supplemental jurisdictional powers if it
“thas dismissed all claims over which it has original junsdiction.”
28 U.S.C. § 1367 (c)(3); see also Franklin v. Zain, 152 F.3d
783, 786 (8" Cir. 1998).

In this case, there remain no claims over which this Court
has original jurisdiction. The remaining counts involved in
the action implicate state law and will involve extensive
interpretation of state law. Furthermore, although this matter
has been before this Court for some time now, this Court has
not devoted significant time to adjudicating the remaining
specialized state law issues. Until now, this Court has dealt
primarily with the federal counts brought by the plaintiff.
The state claims are dismissed pursuant to Federal Rule of

67a

Appendix C

Civil Procedure 12(h)(3). The Court therefore declines to
exercise its supplemental jurisdiction in this matter when
Only state law claims remain.

Ill. CONCLUSION

Therefore, defendants’ motion for summary judgment
with respect to plaintiffs’ section 1983 clainis is granted.
Further, the state claims are dismissed pursuant to Federal
Rule of Civil Procedure 12(h)(3) to allow plaintiffs to refile
in lowa District Court.

IT IS SO ORDERED.
Dated this 21st day of January, 2000.
S/ Ronald E. Longstaff

RONALD E. LONGSTAFF, JUDGE
UNITED STATES DISTRICT COURT

68a

APPENDIX D —,ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF IOWA, DAVENPORT DIVISION
DATED AND FILED OCTOBER 13, 1999

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

No. 3-97-CV-10082
No. 3-97-CV-10125 Consolidated

AUDIO ODYSSEY, LTD., an Iowa Corporation,
DOGAN A. DINCER, and ANN M. DINCER,

Plaintiffs,
VS.

BRENTON FIRST NATIONAL BANK, an Iowa Banking
Corporation, MICHAEL M. BLADEL, Sheriff of Scott
County, lowa, JOHN M. NORRIS, Deputy Sheriff of Scott
County, lowa CHARLES A. BARTON, Deputy Sheriff of
Scott County, Iowa, JOHN C. BRADLEY, CHRIS A.
PIEPER, ROGER HOFFMAN, MERCHANTS BONDING
COMPANY (Mutual) a Corporation, BERNARD J.
HOFMANN and ANDERSON & NELSON, a professional
corporation,

Defendants.

ORDER

69a

Appendix D

The Court has before it two defendants’ motions for
summary judgment.' Defendants Michael Bladel, John N.
Norris, and Charles A. Barton (“Scott County Defendants”)
filed a motion for summary judgment March 15, 1999.
Plaintiffs’ resisted this motion May 10, 1999,3 and the Scott
County Defendants filed a reply brief May 27, 1999.
Defendants Bernard J. Hofmann (“Hofmann”) and Anderson
& Nelson, P.C. (“Anderson & Nelson’) (collectively “the
Anderson Defendants”) filed a motion for summary judgment
May 12, 1999. Piaintiffs resisted this motion June 8,
1999. Defendants filed a reply brief June 21, 1999, with a
supplemental appendix. Although plaintiffs filed a motion
to strike an exhibit in the Anderson Defendants’ supplemental
appendix, the Court denied the motion and instead granted
plaintiffs additional time to respond to the newly submitted
exhibit. Pursuant to this Court’s Order, plaintiffs filed a
response August 20, 1999.

On July 28, 1999, the Scott County Defendants filed a
supplement to their motion for summary jadgment, similar
to the supplement filed by the Anderson Defendants. Chief

1. The above-captioned case was originally filed as two separate
actions until this Court consolidated the cases June 30, 1999.
The motions for summary judgment were filed prior to consolidation.

2. In prior Orders, this Court has dismissed plaintiffs Dogan
and Ann Dincer from some, but not all, claims. To avoid confusion
in this Order, the Court shall use the term “plaintiffs” even when
discussing claims for which Audio Odyssey remains the sole plaintiff.

3. A brief and a statement of material facts in dispute were not
filed until May 19, 1999. Plaintiffs filed both a corrected brief anda
statement of material facts in dispute June 11, 1999.

SE ce ap Se

70a

Appendix D

Magistrate Judge Ross A. Walters granted plaintiffs until
August 18, 1999, to respond to the supplement. Plaintiffs
filed 4 motion to strike the supplement August 17, 1999.
The Scott County Defendants did not resist the motion, and
the motion is therefore granted. The Scott County Defendants’
Supplement to Motion for Summary Judgment, filed July
21, 1999, is accordingly stricken from the record.

I. BACKGROUND
A. Factual Background

Audio Odyssey is a retail electronics store, incorporated,
in Iowa. At all times pertinent to this action, Dogan Dincer
(“Dincer”’) was the sole shareholder and president of Audio,
and Ann Dincer (“Mrs. Dincer”) was Dogan’s wife. Dincer
purchased stock from the majority shareholder of Audio
Odyssey on October 3, 1991. Dincer then became the sole
shareholder. Prior to purchasing the company, he had worked
as an Audio Odyssey employee fourteen years, and had been
a part-owner for eight years. He purchased the stock in part
using proceeds from a $200,000 loan from Brenton First
National Bank (“Brenton”). The loan was guaranteed by the
Small Business Administration (“SBA”).

By terms of the note, Audio Odyssey promised to pay
the bank $200,000 plus interest through monthly payments
in the amount of $3,399, beginning November 3, 1991, and
continuing until October 3, 1998, or until the loan had been
paid. As security for the note, Audio executed a Business
Security Agreement (the “Agreement”). In the Agreement,
Audio granted Brenton a security interest in certain property
located on the Audio Odyssey business premises.

I AC awe aT, te ig Te Sa Sete ae ORAS ae RS a Sehip ta ay pyre

7la

Appendix D

On July 13, 1995, Dincer arrived at Brenton Bank to
make the June and July monthly payments on the loan to
Brenton. Dincer instructed the bank teller to apply the $6,983
payment to the Audio Odyssey loan. Dincer believed that
these payments would make his loan current. While Dincer
was at the bank, he saw Brenton’s Vice President, Christopher
Pieper. Dincer mentioned to Pieper that he had finished
making the June_and July payments on his loan. Pieper
responded that he understood, and did not inform Dincer that
the payments might be applied in a manner contrary to
Dincer’s instructions. The Bank apparently applied the
payment to overdrafts rather than the loan.

In a demand letter dated J uly 13, 1995, Steven Nelson,
one of the bank’s attorneys, informed Mr. Dincer that because
he was in default, Brenton was accelerating the debt.
The letter instructed Dincer to deliver payment of the
$126,915.20 balance to Brenton by 9:00 a.m., July 14, 1995
or to deliver to the bank possession of the property subject
to the Agreement by the same date and time. John Bradley, a
Brenton employee, hand-delivered the letter to Dincer on July
14, 1995, at approximately 8:50 a.m. Dincer telephoned
Bradley and told him that he could not obtain the funds in
ten minutes. Dincer gave Bradley the phone number of his
attorney, Stephen Wing. Around noon that day Wing faxed a
letter to Anderson & Nelson. The letter stated the Audio
Odyssey loan was not in default, Brenton’s actions involving
delayed decisions and misinformation regarding certain lines
of credit were wrongful; and Wing was authorized to accept
service for Audio.

72a

Appendix D

Bernard Hofmann (“Hofmann”), an Anderson & Nelson
attorney doing work for Brenton, one of the firm’s clients,
filed a petition in replevin* during the afternoon of July 14.
Hofmann also filed a bond. He presented the petition to a
Scott County judge and obtained an ex parte order of
replevin.* Pursuant to the judge’s order, the clerk’s office
issued a writ of replevin shortly after the order was filed.

The Replevin Order and the Writ of Replevin ordered
the sheriff or sheriff’s representative to take from Audio
Odyssey and deliver to Brenton Bank:

ALL INVENTORY FIXTURES ACCOUNTS
FURNITURE, EQUIPMENT AND MACHINERY
ON PROPERTY DESCRIBED AS FOLLOWS:
4,050 SQUARE FEET LOCATED AT 1718 E
KIMBERLY ROAD, DAVENPORT, IOWA,
LEGALLY DESCRIBED AS: PART OF THE
NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 18, TOWNSHIP 78,

4. Specifically, plaintiffs’ claim that the petition was false in
stating: (1) Audio Odyssey was “delinquent in the payment of
installments under this note”; (2) Audio Odyssey failed to maintain
insurance on July 14, 1995; (3) Audio Odyssey failed to provide
accurate and complete financial records; (4) immediate action was
required to protect the bank’s property; (5) waiving notice and
entering an ex parte order would be appropriate under the
circumstances; (6) Audio Odyssey had accumulated unpaid taxes of
$48,000. Complaint, ¥ 25.

5. The petition was filed at 1:44 p.m., and the order of replevin
was issued at 2:07 p.m.

73a

Appendix D

RANGE 4, EAST OF THE P.M... . TO THE CITY
OF DAVENPORT, SCOTT COUNTY, IOWA.

Exhibits 5 (Replevin Order), 6 (Writ of Replevin). The
Kimberly Road address referred to the Audio Odyssey
business premises.

At approximately 3:25 p.m. on July 14, 1995, Attorney
Hofmann arrived at the Scott County Sheriff’s office with
the Order and Writ of Replevin. He requested that the writ
be served immediately, and was instructed to fill out a
“Directions to Sheriff’ form (the “Directions” or “Directions
form”). Sergeant Barton explained to Hofmann that when a
party requests the sheriff’s office to enforce a writ of replevin,
the standard procedure is to ask the person to complete a
Directions form, explaining what action the creditor would
like the sheriff’s representative to undertake. Barton informed
Hofmann that because it was late F riday afternoon, the service
deputies would soon be leaving work. He also noted it would
be impossible to take the relevant property because Hofmann
was noi prepared with movers and trucks. Sergeant Barton
further explained to Hofmann that he needed to arrange to
have ready moving vehicles and people to perform inventory.

Realizing that he was unprepared to take the property
subject to replevin, Hofmann called John Bradley at Brenton
Bank. After speaking to Bradley, Hofmann asked Sergeant
Barton if they could lock down the Audio Odyssey premises
for the weekend until Monday when the sheriff’s department
could oversee the inventory of property and he could arrange
to have ready movers. Hofmann explained that locking down
Audio Odyssey would prevent the Dincers from selling off

74a

Appendix D

the property subject to the replevin. Sergeant Barton testified
to his response as follows:

I looked at the writ of replevin, and I did see a
legal description for the property on there, and I
said that would probably be possible; then
Monday morning go in and start inventorying the
items. I asked him to fill out the directions to the
sheriff and give it to one of the ladies [at the
sheriff’s department] and we’d have a a deputy go
up and meet him there.

Barton Depo. at 16. On the Directions, Hofmann wrote that
the sheriff’s representative should serve Dogan Dincer at the
premises and then should contact John Bradley from Brenton
Bank who would “meet you at store w/a locksmith.” Exhibit
6. Around this time, Sergeant Barton assigned the matter to
Deputy John Norris, and left the office.

Deputy Norris arrived at the Audio Odyssey premises
and met Bradley. Norris Depo. at 28. Norris carried with him
papers, including a copy of the order and writ.° /d. at 30-31.
He entered the store with Bradley and asked an employee
if he could speak to the owner. He proceeded to speak with
Dogan Dincer. At his deposition, Norris testified: “I told Mr.

6. Plaintiffs state in their Material Facts in Dispute: “[Deputy
Norris] apparently served the writ, but not the petition and order.
Nor did he serve an original notice. (See Group Exhibit 6, Norris
Deposition Transcript, pp. 29-32, 34, 34, 44.)” Plaintiff’s Corrected
Statement of Material Facts in Dispute, § 27. The Court has carefully
examined the cited transcript pages, and believes Deputy Norris did
not state that he failed to serve the petition, order, and original notice.

75a

Appendix D

Dincer that I had some legal papers for him filed by the bank
and explained to him what they were, then proceeded to read
the order of attachment explaining what we were going to
do, told him the bank was here to seize the property and if he
had any questions from that point.” Norris Depo. at 34. Norris
also testified that he served Dincer with copies of the papers
he was carrying.

Dincer asked Deputy Norris for additional time, and
Norris asked Bradley. Bradley wanted to proceed. Norris then
instructed the locksmith to begin changing locks on the front
and back door. He had a brief discussion with an Audio
Odyssey employee who asked if the employees could remove
their own personal property. Bradley consented, and Norris
told the employees they could remove their personal property
from the premises. At approximately 4:45 p.m., Norris told
the employees that they could continue to remove their
property until the locksmith was finished, and at that point,
the business would be locked down. When the locksmith
finished, Deputy Norris secured the premises and posted
“No Trespassing by Order of Mike Bladel, Sheriff of Scott
County, Iowa Number 353” notices on the front and back
doors. Norris may or may not have kept his key to the Audio
Odyssey premises.’ He met a bank representative at-Audio

7. The Answer of the Scott County Defendants admitted the
allegations in pa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0112%3A2. Public record. Not legal advice.