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Michigan Paralyzed Veterans of America v. Michigan Department of Transportation

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

May 25, 2017

MICHIGAN PARALYZED VETERANS OF AMERICA, et al., Plaintiffs,
v.
MICHIGAN DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          PAUL D. BORMAN, DISTRICT JUDGE

          OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT [55] AND DENYING PLAINTIFFS' MOTION TO FILE NOTICE WITH, AND TO CERTIFY TO, THE UNITED STATES ATTORNEY GENERAL [56]

          MONA K. MAJZOUB, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiffs Michigan Paralyzed Veterans of America (MPVA), Ann Arbor Center for Independent Living, Inc. (AACIL), Maurice L. Jordan, Michael Harris, Carolyn Grawi, James R. Briggs, Claire Abraham, Lloyd Shelton, National Federation of the Blind of Michigan, Angie Carlson, Linda Evans, Zach Damon, Jason Decamillis, A.S., a minor, through his next friend, Amy Sheperd, Larry Keeler, and LuAnne Bullington's Motion for Leave to File Third Amended Complaint, Under Federal Rule of Civil Procedure 15(a)(2). (Docket no. 55.) Defendants Pittsfield Charter Township, Washtenaw County Road Commission (WCRC), Michigan Department of Transportation (MDOT), and Ypsilanti Charter Township, respectively, responded to Plaintiffs' Motion (docket nos. 61, 63, 66, 67), and Plaintiffs replied to Defendants WCRC and MDOT's Responses (docket nos. 69, 70). Also before the Court is Plaintiffs' Motion to File Notice With, and to Certify to, the United States Attorney General Pursuant to Federal Rule of Civil Procedure 5.1(a)(1)(A) and (a)(2), and under 28 U.S.C. § 2403(a). (Docket no. 56.) Defendants filed Responses to Plaintiffs' Motion (docket nos. 62, 64, 65, 68), to which Plaintiffs replied (docket no. 71.) The Motions have been referred to the undersigned for consideration. (Docket no. 75.) The Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).

         I. BACKGROUND

         Plaintiffs initiated this action against Defendants on August 27, 2015, pursuant to Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, alleging that Washtenaw County's public right-of-way is not fully accessible to pedestrians with disabilities as required by law. (Docket no. 1.) On September 11, 2015, before any Defendant had filed a responsive pleading, Plaintiffs filed an Amended Complaint, to which each Defendant filed an answer. (Docket nos. 3, 10, 15, 17, 18.) Plaintiffs then filed a Motion for Leave to File a Second Amended Complaint on January 29, 2016. (Docket no. 22.) The Court granted Plaintiffs' Motion on September 22, 2016, and Plaintiffs filed the Second Amended Complaint the next day. (Docket nos. 43, 46.) In response to the Second Amended Complaint, Defendants WCRC and MDOT filed motions to dismiss, and Defendants Pittsfield Charter Township and Ypsilanti Charter Township filed answers. (Docket nos. 47, 50-52.) Plaintiffs now move to amend the complaint for a third time. (Docket no. 55.) Additionally, Plaintiffs assert that Defendant MDOT challenged the constitutionality of Title II of the ADA and Section 504 of the Rehabilitation Act in its motion to dismiss (docket no. 52), and they therefore move the court under Federal Rule of Civil Procedure 5.1(a) to (1) order Defendant MDOT to notify the United States Attorney General of the constitutional challenge; and (2) to certify the constitutional challenge to the United States Attorney General in accordance with 28 U.S.C. § 2403. (Docket no. 56.)

         II. PLAINTIFFS' MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT [55]

         Plaintiffs move for leave to file a third amended complaint to (1) “correct any possible pleading defects” in the Second Amended Complaint potentially raised by Defendants MDOT and WCRC's interpretation of the Sixth Circuit's opinion in Babcock v. Michigan, 812 F.3d 531 (6th Cir. 2016); (2) to name as a defendant MDOT Director, Kirk T. Steudle, in his official capacity for prospective injunctive relief pursuant to the Ex parte Young doctrine; (3) to allege that many Plaintiffs find the May 1, 2016 expanded portions of Washtenaw County's public transit service to be inaccessible due to Defendants MDOT and WCRC's construction of inaccessible bus stops, sidewalks, and street crossings; and (4) to redact the name of the minor Plaintiff in this matter to reflect only his initials. (Docket no. 55 at 4-6.)

         Federal Rule of Civil Procedure 15(a) provides that a “party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1)(A)-(B). Otherwise, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).

         Factors relevant to the determination of whether to permit an amendment include “the delay in filing, the lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001). “Although Rule 15(a) indicates that leave to amend shall be freely granted, a party must act with due diligence if it intends to take advantage of the Rule's liberality.” U.S. v. Midwest Suspension and Brake, 49 F.3d 1197, 1202 (6th Cir. 1995) (citation omitted). “Delay alone . . . does not justify the denial of leave to amend. Rather, the party opposing a motion to amend must make some significant showing of prejudice to prevail.” Sec. Ins. Co. of Hartford v. Kevin Tucker & Assoc., Inc., 64 F.3d 1001, 1009 (6th Cir. 1995). The decision whether to grant a motion to amend is within the sound discretion of the court. Perkins, 246 F.3d at 605.

         Plaintiffs argue that justice and judicial economy would be served by granting the instant motion to amend because Defendants MDOT and WCRC's motions to dismiss the Second Amended Complaint are based on a decision that was issued while their Motion for Leave to File a Second Amended Complaint was pending. (Docket no. 55 at 2, 4, 9, 14-15.) This decision, Babcock v. Michigan, 812 F.3d 531 (6th Cir. 2016), concerned claims brought under Title II of the ADA and Section 504 of the Rehabilitation Act of 1973, the same statutes under which Plaintiffs bring their claims in the instant matter. Title II of the ADA provides, in pertinent part, that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In Babcock, the court distinguished “between services, programs, or activities and the facilities in which they are administered, ” and it held that “facility accessibility is not, standing alone, a cognizable claim under Title II's private right of action; rather, the inquiry is tied to whether that facility's inaccessibility interferes with access to public services, programs, or activities.” 812 F.3d at 535, 536.

         Plaintiffs assert that the proposed amendments cure any deficiencies of the Second Amended Complaint raised by Defendants WCRC and MDOT's application of Babcock to this case and that the efficient administration of justice requires that they be allowed to file those amendments. (Docket no. 55 at 13-15.) Plaintiffs also assert that their motion is timely because at the time of filing, the Court had recently granted them leave to file the Second Amended Complaint; the motion hearing on Defendant WCRC and MDOT's pending motions to dismiss was approximately 100 days off; and the discovery and dispositive motion deadlines set in the Joint Discovery Plan were about two and four months away, respectively. (Id. at 1-2.) Plaintiffs further assert that Defendants will not be severely prejudiced if leave to amend is granted because the proposed amendment keeps all the same parties and the same causes of action. (Id. at 9.)

         Defendant Pittsfield Charter Township opposes Plaintiffs' Motion on the basis that the Babcock decision was issued while Plaintiffs' Motion for Leave to File a Second Amended Complaint was pending, [1] and nothing prevented Plaintiffs from revising their proposed second amended complaint to address the issues raised by Babcock at that time. (Docket no. 61 at 7.) Defendant Pittsfield Charter Township further argues that it has already expended a lot of time and money responding to Plaintiffs' First Amended Complaint and Second Amended Complaint, and justice requires that Plaintiffs' Motion be denied and that Pittsfield Charter Township not be obligated to incur additional expense in responding to Plaintiffs' Third Amended Complaint. (Id. at 7-8.)

         Defendant Ypsilanti Charter Township concurs and incorporates into its response brief the facts and arguments set forth in Defendant Pittsfield Charter Township's response brief. (Docket no. 67 at 10 n.2.) It adds that Defendants should not be forced to pay for Plaintiffs' delay and inability to properly plead their cause of action. (Id. at 12.) Defendant Ypsilanti Charter Township further argues that Plaintiffs have failed to establish that the amendment is necessary because, to the extent that Plaintiffs seek to address the issues raised in the Babcock decision, those issues can be raised in responsive pleadings to Defendants MDOT and WCRC's motions to dismiss. (Id.)

         Defendant WCRC responds that Plaintiffs' Motion should be denied because the proposed amendments are futile, as they do not obviate the grounds for dismissal articulated in WCRC's motion to dismiss, which are: (1) “that Plaintiffs have failed to allege an injury in fact resulting from lack of meaningful access to a service, program, or activity of Defendant [WCRC];” and (2) “that sidewalks, street level transit stops, and other pedestrian walkways are not ‘facilities' or ‘services'” of Defendant [WCRC].” (Docket no. 63-1 at 7.) Defendant WCRC also argues that Plaintiffs' attempt to amend their complaint to show that they are really suing over exclusion from public services, programs, or activities in accordance with Babcock is misguided, over reaching, and ...


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