Procedural due process violation claim under 42 USC § 1983; Revocation of a tow permit without a hearing; Motion to strike a witness’s declaration; Whether the word “belief” prohibited a finding that the witness testified from “personal knowledge”; FedRCivP 56(c)(4); Award of only “nominal damages”; Carey v Piphus; Detroit Police Department (DPD)

[This appeal was from the ED-MI.] The court held that while defendant-City of Detroit violated plaintiff-Nationwide Recovery’s procedural due-process rights by revoking its towing permit without a hearing, the district court did not err by awarding Nationwide only “nominal damages” because its “conduct justified the termination” and any due-process violation did not “cause” Nationwide’s loss. Nationwide operated under a permit from the City’s Board of Police Commissioners that allowed them to charge for recovering stolen vehicles. The City suspended the permit without a hearing after suspecting that at least one Nationwide driver was obtaining location information from the car thieves. This conclusion was supported by a DPD investigation, led by then-Lieutenant P. Nationwide sued the City under § 1983, alleging violation of its due-process rights by suspending its permit without a hearing. The district court ruled Nationwide was “deprived of its property interest without the required hearing,” but eventually awarded it only nominal damages of one dollar. On appeal, Nationwide challenged the district court’s denial of its motion to strike P’s declaration “that the Board would have terminated the permit even if there had been a hearing.” The court held that the district court had discretion to rule that P’s use of the words “‘[i]t is my belief ’” regarding the permit’s likely termination did not violate “the personal knowledge requirement of Rule 56(c)(4).” And the fact that there were 11 members of the Board did not make P’s “testimony conjectural. Again, the district court pointed to the City’s record evidence, which showed that [P’s] role as the supervisor of the DPD towing program had familiarized him with the Board’s approach to permits.” The court added that “Rule 56(c)(4)’s requirement of personal knowledge doesn’t exclude all opinion testimony in declarations.” As to the nominal damages award, the court rejected Nationwide’s argument that if there had been a hearing, the City would have only been able to consider the evidence that was available at the date of termination. The “inquiry into whether a deprivation was justified need not be artificially limited to what the City could prove on the date of termination.” It noted that it was “the failure to provide this post-deprivation hearing—not the termination itself—that Nationwide” was challenging. And the court held that the evidence that “would have been presented if the Board had conducted a timely hearing . . . would have been sufficient grounds to terminate Nationwide’s permit.” Affirmed.