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Man Wins Suit vs. Parents Who Threw Away His Porn Collection (or, How Pornography Is Like Wine)

This case has been in the news, because of a decision last month by Judge Paul L. Maloney (W.D. Mich.) granting the plaintiff summary judgment (Werking v. Werking); but the more interesting legal analysis can be seen in a decision from last year, denying defendants’ motion to dismiss and for summary judgment:

David Werking moved into his parents’ home in Michigan on October 5, 2016 [after he and his wife got divorced]. He moved out on August 23, 2017, leaving some of his possessions in the basement. Those possessions included a trove of pornography and an array of sex toys.

In November, Plaintiff requested that his parents return his property, and they did so—in part—on December 16, 2017. The pornography and sex toys were not among the possessions returned to David. Instead, the Defendants stated that “the items were destroyed.”

In the months that followed, David and Paul discussed what happened via email. On January 1, 2018, Paul wrote in one such email: “I do not possess your pornography. It is gone. It has been either destroyed or disposed of. I may well have missed a few items that are now in your possession, but at this point, if you don’t have it, it is gone. Ditto for your sex toys and smutty magazines.”

Paul added, “Frankly, David, I did you a big favor by getting rid of all this stuff for you.” A few months later, after local police became involved, Paul wrote another email, explaining why he had destroyed the porn: “Believe it or not, one reason why I destroyed your porn was for your own mental and emotional health.” …

Plaintiff filed suit in this Court, claiming that the value of his destroyed property was $25,557.89. He proceeds with a single-count complaint, raising statutory conversion under Michigan law. To prevail on his claim, David must establish that the Defendants converted his property “for [their] own use.” See Aroma Wines & Equip, Inc. v. Columbian Distribution Services, Inc. (Mich. 2015). If he prevails on the elements, the statute allows for the recovery of treble damages. See M.C.L. § 600.2919(a).

It is only the potentiality of treble damages that gets David before this Court…. [F]ederal courts have original jurisdiction over civil actions where the amount in controversy exceeds $75,000 and the matter is between citizens of different states. {David pleads diversity of citizenship by declaring that he is a citizen of Indiana, while his parents are citizens of Michigan.} … David has satisfied the amount in controversy for purposes of Section 1332, because, if successful, he could recover more than $75,000 based on his valuation of $25,557.89 for his destroyed possessions….

Getting to the heart of the coconut now, the legal issue before the Court is whether Paul and Beth converted David’s pornography “to their own use” by destroying it. The issue is easily resolved by reference to Aroma Wines.

There, the Michigan Supreme Court applied the statutory conversion statute to a set of facts involving a wholesale wine importer and warehouse operator. The wine importer, Aroma Wines, agreed to rent climate-controlled warehouse space from the Columbian Distribution Services to store some of its wine. When Aroma fell behind on its monthly payments, Columbian moved the wine from its climate-controlled warehouse to an uncontrolled environment, which resulted in the spoliation of much of the wine. While the parties disputed Columbian’s motive for moving the wine, Aroma filed suit raising, among other claims, statutory conversion.

At trial, Columbian moved for a directed verdict on the statutory conversion claim, arguing that there had been no evidence to support a claim that Columbian had converted Aroma’s wine to its own use. The trial court agreed, concluding that to “use” the wine, “one would have to drink [the wine] or perhaps sell it[.]” …

[On appellate review, t]he Michigan Supreme Court … concluded that the history of common-law conversion and the language of M.C.L. 600.2919a(1)(a) led to a conclusion that the Legislature intended to limit claims “to a subset of common-law conversions in which the common-law conversion was to the other person’s “own use.” It then proceeded to define what “own use” meant within the context of the statute, which, after some linguistic analysis, the Court read to mean “that the defendant employed the converted property for some purpose personal to the defendant’s interests, even if that purpose is not the object’s ordinarily intended purpose.” …

[The Court] relied upon Kreiter v. Nichols, a venerable [1874] Michigan Supreme Court opinion, explaining that “conversion to someone’s own use need not be geared toward the intended purpose of the converted property and held that a converter of beer was liable regardless of whether he or she “destroyed [it] from a belief in its deleterious effects, or made way with [it] in carousals or private drinking.” In other words, even destroying property could be an “own use.”

Finally, the court applied its definition to the case Aroma had presented at trial to assess whether evidence had been presented to conclude that “Columbian converted Aroma’s wine to its ‘own use,’ that is, for some purpose personal to Columbian.” It concluded that there was enough evidence …. “[I]f a jury believed the evidence showing that defendant moved plaintiff’s wine for its own purposes—whether it be to sell the space to other customers or complete a construction project—or that it used the wine as leverage against plaintiff, it could have determined that defendant converted the wine to its own use.”

In sum then, the lesson of Aroma Wines is that “own use” is to be broadly construed to mean any purpose personal to the defendant, which in that case included: (1) moving the wine to undertake an expansion project; (2) moving the wine to sell the space to other customers; or (3) simply using the wine as leverage against Aroma for its unpaid bills.

Now, applying the lesson to this case is as simple as substituting David for Aroma Wines and Paul and Beth for Columbian and changing the subject matter from wine to pornography. Paul’s emails to David, which are attached to the First Amended Complaint, make clear that he and Beth were motivated to destroy the pornography “from a belief in its deleterious effects.” Paul could not have been clearer on this point; he told David that he was motivated to destroy the pornography out of concern for David’s mental and emotional health.

Thus, as was explained in Kreitner and reaffirmed in Aroma Wines, even the destruction of property can be for one’s “own use,” so long as the person acts upon some personal motivation. David has accordingly pleaded a plausible claim for relief on his statutory conversion claim because he has alleged that his parents were motivated to destroy the pornography because of his deleterious effects on his mental and emotional health, so the motions to dismiss will be denied….

Damages remain to be resolved, and my sense is that it will be hard for David to show that, in this day and age, a porn and sex toy collection is worth $25,000. But even if the recovery thus ends up being less than $75,000, that won’t leave the federal court without jurisdiction, which is generally determined based on the plaintiff’s up-front allegations, and not retroactively based on the final judgment.


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About The Author

Eugene Volokh

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit https://reason.com

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