United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS
DETECTIVE BARTLE AND WATERFORD TOWNSHIP'S MOTION FOR
SUMMARY JUDGMENT [#67]
Page Hood Chief Judge.
the Court is a Motion for Summary Judgment filed by
Defendants Bartle and Waterford Township [Docket No. 67,
filed July 25, 2014]. Plaintiffs Mary McKenzie Trust, Michael
Perry (individually and as trustee for the Mary McKenzie
Trust), American Cycle Mart, Inc., American Discount Cycle
Mart, Inc., MC Perry Enterprises, Inc., HMP Family LLC, and
Car Buyer Direct, Inc. filed a Response to the Motion for
Summary Judgment [Docket No. 79, filed September 15, 2014].
Defendants Bartle and Waterford Township filed a Reply to the
Response [Docket No. 82, filed September 29, 2014].
October 5, 2012, Plaintiffs filed the Complaint in this case.
An Amended Complaint was filed on March 29, 2013 (Doc. # 19),
containing seven counts: (1) 4th Amendment violation under 42
U.S.C. § 1983; (2) 5th Amendment violation and 14th
Amendment violation under 42 U.S.C. § 1983; (3)
Municipal Liability under 42 U.S.C. § 1983; (4)
Conspiracy to violate civil rights; (5) Conversion; (6) Abuse
of Process; and (7) Intentional Interference With
Advantageous Economic Relationships. The Complaint alleges
that Plaintiff was a successful businessman who had operated
a variety of enterprises, which included repairing motor
vehicles, selling and repairing motors vehicles, selling
motorcycle apparel parts and accessories and leasing
property. In 2004, Plaintiff moved his business to a larger
location, with more space and the ability to set up displays
2008, Plaintiff Michael Perry (“Perry”) is
alleged to have been operating a motorcycle dealership in
Waterford Township. The name of that dealership is unclear
though Defendants state that the business records indicate
the name to be “American Cycle Mart.” Defendants
assert that the license the dealership was operated under was
for “American Discount Cycle Mart Inc” but that
both companies, American Cycle Mart, Inc. (“ACM”)
and American Discount Cycle Mart, Inc. (“ADCM”),
exist independent of one another.
license issued for ADCM was issued to Perry's ex-wife and
Co-Defendant, Cheryl Chuby (“Chuby”). Only Chuby
was listed as a corporate officer on the application for ADCM
and only Chuby was issued a dealer's license. Defendants
note that the tax filings for ADCM for the years 2004 and
2005 also indicate that Chuby owned all of ADCM's stock.
November 10, 2008, Perry filed a report with the Waterford
Township Police Department that property, including trailers,
motorcycles, and motorcycle parts, had been stolen from ACM.
Perry reported that he had located the stolen property and
that it was being stored in Wixom, Michigan. Perry reported
that Chuby had taken the property. Defendant Detective Bartle
followed up on Perry's claims and contacted the Wixom
Police Department. Detective Bartle was informed that the
property Chuby had taken was licensed to her. Detective
Bartle spoke to Chuby and confirmed that all of the business
licenses, including the dealer's license for ADCM, were
held in her name and determined that no action should be
taken against Chuby because she was the licensed holder of
to Perry's report of stolen goods, the Waterford Township
Police Department had received various reports from customers
of ACM and Perry that they had “not received money owed
to them for the sale of their motorcycles or received titles
to the vehicles they had purchased.” Detective
Bartle's investigation ultimately led to the arrest,
prosecution, and no contest plea of Perry to seven different
counts, including larceny by conversion, embezzlement, and
intent to pass false title.
filed a summary judgment motion arguing that: (1) Plaintiffs
lack standing to sue; (2) the Heck doctrine
precludes Plaintiffs from challenging the search warrants;
(3) many of Plaintiffs claims are barred by the statute of
limitations; (4) Detective Bartle is entitled to qualified
immunity; (5) Waterford Township is entitled to immunity; and
(6) Detective Bartle is entitled to qualified immunity
regarding the state law claims.
counter that they do have standing to bring this suit and a
challenge to the search warrants does not impugn Perry's
criminal conviction. They also maintain that neither
Detective Bartle nor Waterford Township are entitled to
December 10, 2015, Plaintiffs dismissed Defendant Chuby.
STANDARD OF REVIEW
should grant summary judgment if "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250-57 (1986). A fact is material if it could
affect the outcome of the case based on the governing
substantive law. Id. at 248. A dispute about a
material fact is genuine if on review of the evidence, a
reasonable jury could find in favor of the nonmoving party.
moving party bears the initial burden to demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
movant meets this burden, the nonmoving party must "go
beyond the pleadings and … designate specific facts
showing that there is a genuine issue for trial."
Id. at 324. The Court may grant a motion for summary
judgment if the nonmoving party who has the burden of proof
at trial fails to make a showing sufficient to establish the
existence of an element that is essential to that party's
case. See, Muncie Power Prods., Inc. v. United Tech.
Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003).
"The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff." Anderson, 477 U.S. at
252. "Conclusory allegations do not create a genuine
issue of material fact which precludes summary
judgment." Johari v. Big Easy Restaurants,
Inc., 78 F.App'x 546, 548 (6th Cir. 2003).
reviewing a summary judgment motion, the Court must view the
evidence and all inferences drawn from it in the light most
favorable to the nonmoving party. Kochins v.
Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986). The Court "need consider only the cited
materials, but it may consider other materials in the
record." Fed.R.Civ.P. 56(c)(3). The Court's function
at the summary judgment stage "is not to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial."
Anderson, 477 U.S. at 249.
Defendants contend that Plaintiff HMP Family, LLC
(hereinafter “HMP”), does not have standing to be
involved in this lawsuit. HMP was not a legal entity until
2010, and the assets at issue were allegedly converted and
stolen in November 2008. The assets could not have been taken
from HMP since it did not exist at the time.
state that HMP does have standing because prior to her death,
Perry's mother, loaned ACM money and secured those loans
by placing liens on motorcycles owned by ACM. When
Perry's mother died, assets from her estate, which
included the accounts receivable, were used to create HMP.
HMP is a successor in interest and has the ability to
challenge the alleged illegal seizure of property.
is a question of fact as to whether HMP has standing. A
successor in interest is defined as “someone who
follows another in ownership or control of property. A
successor in interest retains the same rights as te original
owner, with no change in substance.” Bryan A. Garner,
Black's Law Dictionary 1660 (10th ed. 2014).
Since HMP stands in the shoes of Perry's mother, it may
have a lien on the property that was allegedly illegally
seized. The parties do not cite any case law that support
their positions. The Court did not find any caselaw that
answers this decisive question. Summary judgment is denied
regarding the proposition that HMP lacks standing.
Defendants argue that the Mary McKenzie Trust (the
“Trust”) does not have standing as to any claim
in this lawsuit that is a derivative of its ownership
interest in the other named Plaintiff corporations. The Trust
claims ownership interests in MC Perry Enterprises, Inc.
(“MCP”), ACM, ADCM, and Car Buyer Direct, Inc.
(“CBD”). As a shareholder of the entities, the
Trust does not have standing in this lawsuit. Rather, the
corporation must bring suit for injuries sustained by the
concede that because the individual named corporations are
suing in their corporate capacity, the Trust as a
shareholder, lacks standing to pursue claims for alleged
injuries to ACM and MCP because “an action to redress
injuries to a corporation cannot be maintained by a
shareholder in his own name but must be brought in the name
of the corporation.” NBD Bank, N.A. v. Fulner,
109 F.3d 299, 301 (6th Cir. ...