United States District Court, E.D. Michigan, Northern Division
MARK P. DONALDSON, Plaintiff,
AUSABLE TOWNSHIP, et al Defendant.
Patricia T. Morris Magistrate Judge
ORDER DENYING MOTION FOR RECONSIDERATION
L. Ludington United States District Judge
January 20, 2016, Plaintiff Mark P. Donaldson filed suit in
Roscommon County Circuit Court against Defendants Au Sable
Township, Joe Meadows, and Mark Smith. ECF No. 1.
Donaldson's initial complaint brought eleven state law
claims related to violations of the Michigan Freedom of
Information Act. His claims arise out of an animated
billboard which has been placed next to the road Donaldson
must use to access his home. He contends that the billboard
(and a nearby firearms range) are in violation of local
zoning ordinances. But when he brought the noncompliance to
the attention of the local zoning board, they refused to act.
He alleges that the Defendants have exhibited personal bias
against him. Donaldson filed an amended complaint on April 8,
2016. That first amended complaint included allegations that
Defendants' conduct violated the Fourteenth Amendment. On
the basis of those allegations, Defendants removed the case
to this Court on April 29, 2016. ECF No. 1.
5, 2016, Defendants filed a motion to dismiss Counts 13, 14,
and 15 of Donaldson's first amended complaint. ECF No. 3.
Several days later, all pretrial matters in this case,
including that motion, were referred to Magistrate Judge
Patricia T. Morris. ECF No. 6. On May 26, 2016, Donaldson
filed a motion requesting that the Court sever his state law
claims and remand them to state court. ECF No. 12. He also
filed a second amended complaint pursuant to Federal Rule of
Civil Procedure 15(a)(1)(B). ECF No 13.
16, 2016, Defendants filed a motion to dismiss Counts XI,
XII, XIII, XIV, XV, XVI, and XVII of the second amended
complaint. ECF No. 20. On August 26, 2016, Judge Morris
issued a report recommending that Defendants' second
motion to dismiss be granted, Donaldson's federal
constitutional claims be dismissed with prejudice, his state
law claims be dismissed without prejudice, and that all his
other pending motions be denied as moot. ECF No. 35.
Donaldson filed nineteen objections to Judge Morris's
report and recommendation on September 8, 2016. On February
28, 2017, the Court overruled the objections, adopted the
report and recommendation in part, dismissed Donaldson's
federal claims, and remanded the state claims. ECF No. 43.
Now, Donaldson has filed a motion for reconsideration. ECF
No. 47. For the reasons stated below, it will be denied.
to Eastern District of Michigan Local Rule 7.1(h), a party
can file a motion for reconsideration of a previous order,
but must do so within fourteen days. A motion for
reconsideration will be granted if the moving party shows:
“(1) a palpable defect, (2) the defect misled the court
and the parties, and (3) that correcting the defect will
result in a different disposition of the case.”
Michigan Dept. of Treasury v. Michalec, 181
F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich.
LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or
plain.” Id. at 734 (citing Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d
262, 278 (E.D. Mich. 1997). “[T]he Court will not grant
motions for rehearing or reconsideration that merely present
the same issues ruled upon by the Court, either expressly or
by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3).
See also Bowens v. Terris, No. 2:15-CV-10203, 2015
WL 3441531, at *1 (E.D. Mich. May 28, 2015).
makes several arguments in this motion for reconsideration.
First, he contends that the February 28, 2017, opinion and
order is ambiguous regarding which amended complaint is being
remanded. At the time the February 28, 2017, opinion and
order was issued, the complaint filed on May 26, 2016, ECF
No. 13, was the operative complaint. Accordingly, that was
the complaint remanded to state court. Donaldson's
confusion appears to stem from the fact that he requested
leave to file another amended complaint on July 25, 2016. ECF
No. 32. That motion was denied because even if leave had been
given, this Court would not have had jurisdiction.
next argues that the Court's analysis of his federal
claims was erroneous. He faults the Court for failing to take
all of his pleaded facts as true. But the Court did accept
all of Donaldson's pleaded facts as true. The Court
simply concluded that Donaldson's alleged injuries did
not give rise to cognizable federal claims. In his motion for
reconsideration, he simply references the “Michigan
constitution and statutes including MCL 125.3815(9) and MCL
125.3601(9)” as forming the basis of the alleged
conflicts of interest which underlie his claims for relief.
Mot. Recon. at 4. Regardless of whether Donaldson's
allegations, if accepted as true, would establish violations
of the Michigan constitution or Michigan statutes, more must
be shown to establish federal jurisdiction. In his motion for
reconsideration, Donaldson provides no reason to second-guess
the analysis of his federal claims in the February 28, 2017,
opinion and order.
also challenges the Court's denial of his motion to file
yet another amended complaint. In reviewing that motion, the
Court concluded that jurisdiction would not exist even under
the new allegations in the third amended complaint.
Accordingly, it would have been futile to allow the
amendment. Donaldson does not point to any allegations in his
proposed third amended complaint which would provide a basis
for jurisdiction. The Court offers no opinion on whether
Donaldson is entitled to relief on his state claims. If he
wishes, Donaldson is free to seek leave from the state court
to file his third amended complaint. But this Court no longer
has jurisdiction over this case.
Donaldson challenges the Court's conclusion that he has
not sufficiently alleged a procedural due process violation.
The Court explained that “to establish a procedural due
process claim, Donaldson must demonstrate that he has been
deprived of a property interest through Defendants'
actions.” Feb. 28, 2017, Op. & Order at 6. The
Court explained that property owners have a right to access
their property from the public highways. Id. But, a
property owner is only entitled to “convenient and
reasonable access.” Id. quoting Grand
Rapids Gravel Co. v. William J. Breen Gravel Co., 262
Mich. 365, 370 (1933)). The Court concluded that “a
distracting billboard does not deny Donaldson
“‘convenient and reasonable access' to his
home.” Id. at 8.
now argues that the Grand Rapids case holds that the
right of access includes a right to a safe and convenient
highway. In Grand Rapids, the court held that the
plaintiff could not prevent the defendant gravel company from
crossing the highway with trucks. Id. at 370. The
court explained that the truck traffic was related to the
ongoing construction of an underpass, which “would tend
to make the highway safe and convenient and to facilitate
travel.” Id. Because the highway was being
used for a public purpose, the traffic was “no invasion
of plaintiff's servient estate in the highway.”
Id. Thus, Grand Rapids actually stands for
the proposition that individual property owners may be
inconvenienced without infringing on their property rights if
the infringement is for a public purpose. Although a private,
commercial billboard is not an example of “public use,
” it also does not deny Donaldson the ability to access
his home. Even accepting all of Donaldson's allegations
as true, he has not alleged facts which demonstrate the
deprivation of a property interest.
Donaldson faults the Court for not granting judgment on his
conflicts of interest and fiduciary duty claims. But these
are state law claims. As explained above, all state law
claims have been remanded to state court because this Court
no longer possess jurisdiction. The Court offers no opinion