United States District Court, E.D. Michigan, Southern Division
EDGAR J. DIETRICH, Plaintiff,
2010-1-CRE MI-RETAIL, LLC, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT UNDER RULE 56 OR, IN THE ALTERNATIVE, TO DISMISS
UNDER RULE 12(B)(6) [#47] AND CANCELING HEARING
Honorable Gershwin A. Drain, Judge
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).
reasons that follow, the Court will grant Defendant's
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.
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.
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.
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.
LAW & ANALYSIS
Standards of Review
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).
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.
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 ...