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Zanke-Jodway v. Capital Consultants

March 30, 2010

ALAINA M. ZANKE-JODWAY AND TIMOTHY M. JODWAY, PLAINTIFFS,
v.
CAPITAL CONSULTANTS, INC., A MICHIGAN CORP., LAWRENCE FOX, AN INDIVIDUAL, JAMES E. HIRSCHENBERGER, AN INDIVIDUAL, BEN SACKRIDER, AN INDIVIDUAL, PHILLIP VAN DERMUS , AN INDIVIDUAL, AND BEN SACKRIDER AND PHILLIP VAN DERMUS D/B/A TRI-COUNTY EXCAVATING, DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul L. Maloney

OPINION and ORDER

" Zanke 5 "

Declining Supplemental Jurisdiction over the Remaining State-Law Claims; Remanding the Case to the Circuit Court for Charlevoix County, Michigan; Terminating and Closing the Case

This pro se action implicates Michigan's Natural Resource and Environmental Protection Act ("NREPA"), which is Chapter 324 of the Michigan Compiled Laws. Counts seven, eight and nine may all implicate NREPA Article I - General Provisions (especially Part 3 - Definitions and Part 17 - Michigan Environmental Protection Act ("MEPA")). Count seven implicates NREPA Part 31. Count eight implicates NREPA Article II Chapter 2 - Nonpoint Source Pollution Control (especially Part 91 -- Soil Erosion and Sedimentation Control). Count nine implicates NREPA Article III, Chapter 1, Part 301, especially§§ 30101, 30102 & 30106. The plaintiffs also asserted many tort claims under Michigan's statutory and common law.

Plaintiffs asserted seven claims against the three TCE Defendants: Count 7 NREPA Part 31, Clean Water Act Count 8 NREPA Part 91, Soil & Sedimentation Act Count 9 NREPA Part 301, Inland Lakes and Streams Act Count 10 Nuisance Per Se in violation of MICH. COMP. LAWS § 125.3407 Count 11 Trespass in violation of MICH. COMP. LAWS § 600.2919 Count 14 Negligence Count 25 Intentional Infliction of Emotional Distress ("IIED") Amended Complaint filed December 6, 2008 (Doc 45) ("Am Comp"). The claims which were previously dismissed are listed in "strikeout" font.

Zanke 1

For the factual background underlying this controversy, and an overview of the plaintiffs' theory of the case, the court incorporates by reference the discussion in Zanke 4, 2010 W L 914339 at *1-4.Jodway filed the original complaint in the Circuit Court of Charlevoix County, and the Boyne City Defendants removed to this court in October 2008. In December 2008 -January 2009, plaintiffs filed an amended complaint, and defendants filed answers and affirmative defenses. In October 2009, the court partly granted and partly denied the Capital Defendants' motion to dismiss or for summary judgment. See Zanke-Jodway v. Boyne City et al., No. 08-cv-930, 2009 WL 3205969 (W.D. Mich. Sept. 29, 2009) (Maloney, C.J.) ("Zanke 1"). That eliminated one of plaintiffs' seven claims against the Capital defendants. The court determined that:

(1) plaintiffs have standing to bring the environmental statutory claims in counts 7-9, and the statutes invoked in those counts permit private-citizen suits, but only for declaratory and equitable relief, not damages, fines, attorneys fees and costs, etc., see Zanke 1, 2009 WL 3205969 at *14-19;

(2) The Michigan Supreme Court's Fultz tort/contract doctrine forecloses count 14 (negligence) as to Capital, but they presented no authority for applying Fultz to foreclose counts 7-9 (enforcement of state environmental-protection statutes), count 10 (statutory nuisance per se based on violation of a city stormwater ordinance), or count 11 (statutory trespass), see Zanke 1, 2009 WL 3205969 at *20-35; and

(3) even if plaintiffs seem to have made out a prima facie case on the environmental statutory claims in counts 7-9 as to Capital which those defendants thus far have not yet persuasively rebutted, summary judgment would be premature before completion of discovery, see Zanke 1, 2009 WL 3205969 at *38;

(4) Capital did not seek dismissal or summary judgment on count 25, IIED.

Zanke 2 and 3

In February 2010, this court ordered the plaintiffs to show cause why part or all of their case should not be dismissed due to their prolonged failure to prosecute, as evinced by their failure to respond to about half a dozen timely-filed dispositive motions, failure to request more time for discovery pursuant to FED. R. CIV. P. 56(f), and failure even to seek a further extension of time in which to do any of the foregoing (even months after the motion response deadlines passed).See Zanke-Jodway, No. 1:2008-cv-930, 2010 WL 520697 (W.D. Mich. Feb. 5, 2010) (Maloney, C.J.) ("Zanke 2 "). The plaintiffs filed a detailed and emotionally compelling response to the order, but they failed to show cause for the extent and duration of their failure to prosecute their case against those moving defendants. Accordingly, earlier this month, this court dismissed plaintiffs' claims against eighteen defendants with prejudice, pursuant to FED. R. CIV. P. 41, for lack of prosecution:

-- The City of Boyne City, Eleanor Stackus, Ronald Grunch, Dan Adkison, Jerry Douglas, Dennis Jason, Michael Cain, and Dan Meads.

-- Michael E. Gabos and Ann Gabos; -- Fifth Third Mortgage-Michigan, LLC -- Deborah A. Spence and Deborah A. Spence d/b/a A.C.E. Appraisal -- James J. Luyckx and Carolyn S. Luyckx -- Clarke R. Haire, Betty Jane Haire, and Lynn J. Haire SeeZanke-Jodway v. Boyne City et al., No. 08-cv-930, Doc. ____, 2010 WL ____ (W.D. Mich. Mar. 3, 2010) (Maloney, C.J.) ("Zanke 3"). That resulted in the dismissal with ...


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