United States District Court, E.D. Michigan, Southern Division
Lilly Investments, Dentists on Main, P.C., and Louis E. Leonor, Plaintiffs,
City of Rochester and Rochester Planning Commission, Defendants, and City of Rochester, Counter Claimant,
Louis E. Leonor and Lilly Investments, Counter, Defendants
Lilly Investments, Dentists on Main, P.C., Louis E. Leonor,
Plaintiffs: David B. Viar, LEAD ATTORNEY, Rochester, MI;
Richard L. Merpi, LEAD ATTORNEY, Miller Law Firm, P.C.,
City of Rochester, Rochester Planning Commission, Defendants:
Lisa A. Anderson, Michael E. Rosati, Steven P. Joppich,
Timothy S. Wilhelm, Johnson, Rosati, Schultz & Joppich PC,
Farmington Hills, MI; Carol A. Rosati, Johnson, Rosati,
Farmington Hills, MI.
City of Rochester, Counter Claimant: Lisa A. Anderson,
Michael E. Rosati, Johnson, Rosati, Schultz & Joppich PC,
Farmington Hills, MI; Carol A. Rosati, Johnson, Rosati,
Farmington Hills, MI.
Louis E. Leonor, Lilly Investments, Counter Defendants: David
B. Viar, LEAD ATTORNEY, Rochester, MI; Richard L. Merpi, LEAD
ATTORNEY, Miller Law Firm, P.C., Rochester, MI.
JUDITH E. LEVY, United States District Judge. Mag. Judge
David R. Grand.
AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' OBJECTIONS  TO THE MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION 
JUDITH E. LEVY, United States District Judge.
matter is before the Court on defendants' Objection to
the Report and Recommendation of October 17, 2014, Granting
in Part and Denying in Part Defendants' Motion to
Dismiss. ( See Dkt. 80.) The Magistrate Judge
recommends granting defendants' Motion to Dismiss, (Dkt.
30), as to plaintiffs' claim for mandamus and
plaintiffs' claim for superintending control, insofar as
the claim for superintending control seeks " an order
requiring the City of Rochester and planning commission to
lift the stop work order and approve the revised site
plan." ( See Dkt. 77 at 52.) The Magistrate
Judge recommends denying defendants' motion in all other
claimant City of Rochester and defendant City of Rochester
Planning Commission (collectively " defendants" )
filed timely objections to the Report and Recommendation,
(Dkt. 80), plaintiffs' responded to those objections,
(Dkt. 83), and defendants replied. (Dkt. 86.)
object to the factual findings set forth in the Report and
Recommendation, arguing that the Magistrate Judge makes
erroneous factual findings related to Ed Francis, the Special
Projects approval process, and the approval process in
general. Defendants also object to the Magistrate Judge's
legal conclusions, arguing that plaintiffs' claims are
not ripe for adjudication, the Court has no basis for
retaining jurisdiction over any part of plaintiffs' claim
for superintending control, the wrong legal standard was
applied to the breach of contract claim, and plaintiffs'
promissory estoppel claim should be dismissed.
reasons set forth below, the Court adopts in part and rejects
in part the Magistrate Judge's Report and Recommendation.
Factual and Procedural Background
Court adopts the factual background set forth in the Report
and Recommendation, except as addressed infra at
. The relevant procedural background is set forth below.
January 2014, plaintiffs sued defendants, seeking a writ of
mandamus, superintending control, injunctive relief, and
damages. ( See Dkt. 1 at 6-25.) Plaintiffs allege in
their complaint " taking/inverse condemnation,"
violation of procedural due process, violation of substantive
due process and equal protection, breach of contract, "
promissory/equitable estoppel," and violation of 42
U.S.C. § 1983. ( Id. ) Defendants removed to
this Court, (Dkt. 1), and counter-sued, alleging nuisance and
seeking a declaratory judgment and permanent injunction. (
See Dkt. 3.) Both parties filed motions for
preliminary injunction. ( See Dkt. 22; Dkt. 27.)
April 22, 2014, defendants filed a motion to dismiss, (Dkt.
30), which was referred to Magistrate Judge David R. Grand.
(Dkt. 32.) The Magistrate Judge heard oral argument on
defendants' motion to dismiss on June 23, 2014, (see Dkt.
72), and issued a Report and Recommendation granting the
motion in part and denying it in part on October 17, 2014.
(Dkt. 77.) On November 11, 2014, defendants filed objections
to the Report and Recommendation. (Dkt. 80.)
courts review de novo those portions of a report and
recommendation to which a specific objection has been made.
28 U.S.C. § 636(b)(1)(C). " De novo review
in these circumstances entails at least a review of the
evidence that faced the magistrate judge; the Court may not
act solely on the basis of a report and recommendation."
Spooner v. Jackson, 321 F.Supp.2d 867, 869 (E.D.
Mich. 2004). But objections to the Report and Recommendation
must not be overly general, such as objections that dispute
the correctness of the Report and Recommendation but fail to
specify findings believed to be in error. Spencer v.
Bouchard, 449 F.3d 721, 725 (6th Cir. 2006); see
also Howard v. Sec'y of HHS, 932 F.2d 505,
509 (6th Cir. 1991). " The objections must be clear
enough to enable the district court to discern those issues
that are dispositive and contentious." Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995).
considering a facial attack to subject matter jurisdiction,
" the district court must assume that Plaintiffs'
allegations are true and must construe them in a light most
favorable to Plaintiffs." Little Traverse Bay Bands
of Odawa Indians v. Great Spring Waters of Am., 203
F.Supp.2d 853, 855 (W.D. Mich. 2002) (citing RMI Titanium
Co. v. Westinghouse Electric Corp., 78 F.3d 1125,
1134-35 (6th Cir. 1996)). But if the motion attacks the
factual basis for jurisdiction, the district court " is
free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case." RMI
Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125,
1134 (6th Cir. 1996) (quoting Mortensen v. First Fed.
Sav. & Loan Ass'n, 549 F.2d 884, 890-91 (3d Cir.
1977)); see United States v. Ritchie, 15
F.3d 592, 598 (6th Cir. 1994); Ohio Nat'l Life Ins.
Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
may not bring a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) after answering the complaint.
See Fed.R.Civ.P. 12(b)(6). This technical error has
" no impact" on a district court's review,
though, because courts generally consider such a motion as if
it had been brought as a motion for judgment on the pleadings
under Rule 12(c). Satkowiak v. Bay Cty. Sheriff's
Dep't, 47 Fed.Appx. 376, 377 n.1 (6th Cir. 2002);
see, e.g., Scheid v. Fanny Farmer Candy Shops,
Inc., 859 F.2d 434, 436 n.1 (6th Cir. 1988); Wagner
v. Higgins, 754 F.2d 186, 188 (6th Cir. 1985). And a
motion for judgment on the pleadings under Rule 12(c)
is analyzed using the same standard as for a motion to
dismiss under Rule 12(b)(6). Tucker v. Middleburg-Legacy
Place, 539 F.3d 545, 549 (6th Cir. 2008).
deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must " construe the
complaint in the light most favorable to the plaintiff and
accept all allegations as true." Keys v. Humana,
Inc., 684 F.3d 605, 608 (6th Cir. 2012). " To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face." Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). A plausible claims need not contain "
detailed factual allegations," but it must contain more
than " labels and conclusions" or " a
formulaic recitation of the elements of a cause of
action[.]" Bell A. Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Findings of Fact
raise several objections to the Magistrate Judge's
findings of fact. In addition to the objections raised in
defendants' brief, defendants attach an exhibit "
adopted [t]herein as if fully set forth in the text of"
the brief, which lists objections to forty-two additional
factual findings in the Report and Recommendation. (Dkt. 80
at 13; Dkt. 80-1.) The Court will not consider the factual
objections included in the exhibit, because they do not
comply with the Stipulated Order for Additional Pages and
Additional Time to Serve Objection to Magistrate's Report
and Recommendation, which set a thirty-five page limit. (
See Dkt. 79 at 3 (" Counsel for Defendants
assert that a thirty-five page limit is necessary to
adequately identify the parts of the Report and
Recommendation to which Defendants object and to state with
specificity the basis for the objections. . . . The parties
therefore stipulate and agree to an Order granting Defendants
an extension of ten pages pursuant to E.D. Mich. LR
7.1(d)(3)(A) . . . ." ).)
Finding that Ed Francis was intended to be the final arbiter
of a dispute between the parties.
Francis was retained as an independent historic preservation
expert to review plaintiffs' proposal and to prepare a
report on whether plaintiffs " reasonably complied"
with the United States Secretary of the Interior's
guidelines for historic redevelopment (" SOI
standards" ). ( See Dkt. 30-2 at 117-18; Dkt.
30-3 at 69-87.) Defendants object generally that the
Magistrate Judge makes " multiple errors in [his]
characterization of the evidence pertaining to . . . Francis
and the role [he] played relative to [p]laintiffs'
construction project." (Dkt. 80 at 13.) Defendants argue
that the Planning Commission did not hire Francis as an
arbiter to resolve the disagreement, as stated in the Report
and Recommendation. ( Id. at 13-14; see
Dkt. 77 at 10, 34.) This factual finding is critical to the
outcome of defendants' motion because it is dispositive
on the issue of ripeness. Defendants argue instead that
Francis' role was advisory, and that the Planning
Commission itself was to " make the final determination
as to reasonable compliance." (Dkt. 80 at 13.) According
to defendants, this undermines the Magistrate Judge's
determination that the Court has subject matter jurisdiction
over plaintiffs' constitutional claims.
take issue with three related factual findings in the Report
and Recommendation, on which the Magistrate Judge based his
conclusion that Francis was intended to be the final arbiter
in the case of a dispute between the parties. First,
defendants argue that the Report and Recommendation
incorrectly concluded--based on a December 28, 2012 letter
Manager Vettraino--that Francis would conclusively resolve
the disagreement between the parties regarding compliance
with the SOI standards. ( Id. at 14.) The letter
provides, in relevant part:
[T]he Planning Commission provided a very specific remedy if
there was a disagreement between Mr. Dziurman, representing
the City's Historical Commission, and Designhaus
Architecture, representing [plaintiff].
* * *
[I]t is proper for the project to proceed, with the
assurances received from the applicant, and with a final
review by the City selected expert being done at the
conclusion of the project. After the review by the expert,
[the Commission should] be provided a complete report from
the expert in order to consider if any action is warranted
regarding the Special Project approval.
(Dkt. 30-3 at 19). The Report and Recommendation summarizes
the letter as follows:
On December 28, 2012, City Manager Vettraino sent a letter to
the Commission about the project, . . . . [stating] that
Vettraino believed there was a disagreement between the
parties regarding compliance and that the Commission should
invoke its option to solicit the assistance of a preservation
expert to resolve the disagreement, which would take place at
the conclusion of the project's construction.
(Dkt. 77 at 9-10.) According to defendants, the letter
demonstrates that the Planning Commission, and not the "
City selected expert," (here, Francis), would resolve
any dispute as to compliance with the SOI standards. (Dkt. 80
at 14.) Plaintiffs contend that the reference in the letter
characterizing Francis' recommendation as a "
remedy" to any disagreement indicates that Francis was
selected to be the final arbiter of such a dispute. (Dkt. 83
letter is, at best, unclear as to whether Franics was charged
with resolving any dispute as to the SOI standards. Although
Vettraino referred to a City selected expert as a "
remedy," the letter also suggests that the Planning
Commission would consider whether any action was warranted on
plaintiffs' application after receiving the
expert's report. The Court thus amends the Magistrate
Judge's factual findings to indicate that Vettraino did
not indicate in his December 28, ...