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Dietrich v. 2010-1 CRE MI-Retail, LLC

United States District Court, E.D. Michigan, Southern Division

October 25, 2016

2010-1-CRE MI-RETAIL, LLC, Defendant.


          Honorable Gershwin A. Drain, Judge


         Presently before the Court is the Defendant's Motion to Dismiss under Rule 12(b)(6), filed on August 2, 2016. Plaintiff has failed to file a Response to Defendant's present motion, and the time for doing so has expired. See E.D. Mich. L.R. 7.1(e)(1)(B)(“A response to a dispositive motion must be filed within 21 days after service of the motion.”). Upon review of the Defendant's present motion, the Court finds that oral argument will not aid in the disposition of this matter. Accordingly, the Court will resolve the present motion on the submitted brief and will cancel the hearing set for November 1, 2016. See E.D. Mich. L.R. 7.1(f)(2).

         For the reasons that follow, the Court will grant Defendant's present motion.


         Defendant was the holder of loan documents executed by The Edgar J. Dietrich Family Irrevocable Trust (“Borrower”), Eric Justin Dietrich and Maplewood Custom Millwork, LLC (“Guarantors”) and Michigan Heritage Bank pursuant to assignments from the FDIC as receiver for Michigan Heritage Bank and from 2010-1-CRE Venture, LLC. Borrower borrowed over $450, 000.00 from Defendant's predecessor in interest which was guaranteed by Guarantors and secured by a mortgage on real property located at 6332 Middlebelt Road, Garden City, Michigan 48135 (the “Property”). The Property was transferred from Borrower to the Le Chateau Art Gallery & Custom Framing (“Art Gallery”) subject to Defendant's mortgage lien. Borrower and Guarantors defaulted under their loan documents and Defendant commenced action in Wayne County Circuit Court, case number 13-013725-CH. Defendant sought the appointment of a receiver over the Property and for judgment against Guarantors on their guaranties.

         On March 11, 2014, Judge Sheila Ann Gibson of the Wayne County Circuit Court entered an Order Appointing Receiver Basil T. Simon as the receiver over the Property with the power to sell the Property. During the Wayne County litigation, Mr. Dietrich sought to intervene in the case, which was denied on September 15, 2014. The Receiver sold the Property following approval from the Wayne County Circuit Court and the Receiver was discharged on July 20, 2014.

         On September 25, 2015, Plaintiff filed this case alleging violation of the Fourth Amendment (Count I), conversion (Count II) and abuse of process (Count III). On November 10, 2015, the Court entered an Order granting Plaintiff's request to proceed in forma pauperis and request for service by the United States Marshal Service. For an unknown reason, the United States Marshal failed to serve Defendant.

         On February 29, 2016, Plaintiff filed a proof of service showing that the Summons and a copy of the Complaint were purportedly served by first class mail to the Defendant's counsel. However, Defendant's counsel never agreed to accept service and had not discussed the matter with Plaintiff nor Defendant. Based on Plaintiff's representation that he had served Defendant, the Clerk of the Court entered a default on April 13, 2016. Thereafter, Defendant retained counsel who sent a letter to Plaintiff requesting that the default be set aside. Plaintiff failed to respond, failed to set aside the default and has repeatedly sought entry of default judgment, which has been denied by the Clerk of the Court. On June 27, 2016, this Court granted Defendant's Motion to Set Aside Default.

         III. LAW & ANALYSIS

         A. Standards of Review

         Federal Rule of Civil Procedure 12(b)(6) allows the court to make an assessment as to whether the plaintiff has stated a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957). Even though the complaint need not contain “detailed” factual allegations, its “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true.” Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atlantic, 550 U.S. at 555).

         The court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiff's factual allegations present plausible claims. To survive a Rule 12(b)(6) motion to dismiss, plaintiff's pleading for relief must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citations and quotations omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'- ‘that the pleader is entitled to relief.'” Id. at 1950.

         The district court generally reviews only the allegations set forth in the complaint in determining on whether to grant a Rule 12(b)(6) motion to dismiss, however “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). Documents attached to a defendant's “motion to dismiss are considered ...

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