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McGuire v. McCormick

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

October 6, 2017

ARLENE MCGUIRE, Plaintiff,
v.
JOSEPH A. MCCORMICK, ROBERT SITKAUSKAS, VALERIE BRADER, ARIC NESBITT, FRANK LIBERATI, and JOHN DOE DEFENDANTS 1-10, Defendants.

          Mona K. Majzoub United States Magistrate Judge.

         OPINION AND ORDER: (1) OVERRULING PLAINTIFF'S OBJECTIONS (ECF NO. 43); (2) ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE (ECF NO. 40); (3) GRANTING DEFENDANT BRADER'S MOTION TO DISMISS AS TO COUNTS I-V (ECF NO. 11); (4) GRANTING DEFENDANTS MCCORMICK AND SITKAUSKAS'S MOTION TO DISMISS AS TO COUNTS I-V (ECF NO. 13); (5) GRANTING DEFENDANTS NESBITT AND LIBERATI'S MOTION TO DISMISS AS TO COUNTS I-V (ECF NO. 17); (6) DISMISSING COUNTS I-V AS PLED AGAINST JOHN DOE DEFENDANTS 1-10 WITH PREJUDICE; (7) DISMISSING COUNTS VI-XIV WITHOUT PREJUDICE; AND (8) CLOSING THIS CASE

          Paul D. Borman United States District Judge.

         On August 29, 2016, Plaintiff Arlene McGuire filed suit against various Defendants based on utility Detroit Edison Company's (“DTE”) replacement of its customers' traditional electric and natural gas meters with a “smart grid” system made up of more technologically advanced, radio-transmitting meters. These “smart meters, ” which collectively make up DTE's Advanced Metering Infrastructure system (“AMI”), “can record near-real-time power consumption data and report that usage to the utility at frequent intervals.” In re Application of Detroit Edison Company to Implement Opt Out Program, No. 316728, 2015 WL 728383, at *1 (Mich. Ct. App. Feb. 19, 2015).

         The federal claims asserted in the Complaint (ECF No. 1) include violation of the Energy Policy Act of 2005, 16 U.S.C. § 2601 et seq. (Count I); violation of the federal wiretapping act, 18 U.S.C. § 2510 et seq. (Count II); violation of the Fourth Amendment (Count III); violation of the Fifth Amendment (Count IV); and violation of the Ninth and Tenth Amendments (Count V). Plaintiff also asserts a variety of state-law claims in Counts VI-XIV of the Complaint.

         The Defendants in this action are Joseph McCormick, director of DTE's AMI program; Robert Sitkauskus, a DTE employee also involved in the AMI program; Valerie Brader, Executive Director of the Michigan Agency for Energy; Aric Nesbitt, a legislator in the Michigan House of Representatives; Frank Liberati, another legislator in the Michigan House of Representatives; and ten unknown employees of DTE, named in the action as John Doe Defendants. In September 2016, all of the named Defendants moved to dismiss this action via three separate Motions to Dismiss. (ECF Nos. 11, 13, 17.)

         On May 22, 2017, Magistrate Judge Mona K. Majzoub issued a Report and Recommendation, recommending that this Court grant the Defendants' Motions to Dismiss, and also dismiss the John Doe Defendants for the same reasons as the two named DTE-affiliated Defendants should be dismissed. (ECF No. 40, Report and Recommendation.) Now before the Court are Plaintiff's Objections to the Report and Recommendation. (ECF No. 43, Pl.'s Objs.) Defendants filed three Responses to Plaintiffs Objections. (ECF Nos. 44-46.) Having conducted a de novo review of the parts of the Magistrate Judge's Report and Recommendation to which objections have been filed pursuant to 28 U.S.C. § 636(b)(1), the Court will overrule Plaintiff's Objections and adopt the Magistrate Judge's Report and Recommendation.

         I. BACKGROUND

         The Magistrate Judge comprehensively set forth the factual background of this matter in her Report and Recommendation. The Court adopts that account here. (Report and Recommendation at 1-5, Pg ID 396-400.)

         In the Report and Recommendation, the Magistrate Judge also thoroughly articulated the reasons behind her recommendation that all claims in this action be dismissed. (See Id. at 6-15, Pg ID 401-410.) First, the Magistrate Judge recommended that this Court dismiss Plaintiffs claim under the Energy Policy Act of 2005 (Count I) as to all Defendants, because (assuming that statute creates a private right of action at all) Plaintiff has not shown that DTE's implementation of its smart-meter program violates that statute in any way. The Magistrate Judge then recommended that this Court dismiss Plaintiff's claim under the federal wiretapping act (Count II) as to all Defendants, noting that the claim does not appear to be directed at the non-DTE-affiliated Defendants; that smart-meter programs like DTE's are expressly authorized and funded by other federal statutory provisions; that the wiretapping statute is not implicated by DTE's smart-meter program because the information transmitted goes to its intended recipient (the utility) rather than being “intercepted”; and that the statute would not impose liability on any of the Defendants for interceptions by hackers or other third parties if they occurred.

         Counts III and IV warrant dismissal, the Magistrate Judge then explained, because Plaintiff has not set forth any plausible theory of liability under the Fourth and Fifth Amendments as to state-affiliated Defendants Brader, Nesbitt, and Liberati, and because the remaining Defendants cannot incur such liability given that they are not state actors. As to Count V, the Magistrate Judge recommended that the Court dismiss the Ninth and Tenth Amendment claims as to all Defendants, explaining that to the extent those claims are restatements of Plaintiff's Fourth and Fifth Amendment claims they should be dismissed for the reasons stated in the Magistrate Judge's discussion of Counts III and IV; that the Ninth Amendment confers no substantive rights beyond those also conferred by other parts of the Constitution; and that Plaintiff has not plausibly alleged a Tenth Amendment claim because she did not allege any commandeering of state regulatory schemes by the federal government. The Magistrate Judge recommended that the Court dismiss the remaining state-law claims (Counts VI-XIV) pursuant to 28 U.S.C. § 1367(c)(1), which authorizes district courts to decline to exercise supplemental jurisdiction over state-law claims where the court “has dismissed all claims over which it has original jurisdiction . . . .” Finally, the Magistrate Judge stated that all of Plaintiff s claims against the ten John Doe Defendants should be dismissed for the same reasons that they should be dismissed as against the named DTE-affiliated Defendants.

         II. STANDARDS OF REVIEW

         Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), the Court conducts a de novo review of the portions of the Magistrate Judge's Report and Recommendation to which a party has filed “specific written objections” in a timely manner. Lyons v. Comm'r Soc. Sec, 351 F.Supp.2d 659, 661 (E.D. Mich. 2004). A district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those portions of the magistrate's report that the district court must specially consider.” Id. (internal quotation marks omitted). “A general objection, or one that merely restates the arguments previously presented is not sufficient to alert the court to alleged errors on the part of the magistrate judge.” Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004). Likewise, an objection that does nothing more than disagree with a magistrate judge's determination “without explaining the source of the error” is not a valid objection. Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

         III. ANALYSIS

         Plaintiff raises fifteen objections to the Report and Recommendation. Having thoroughly reviewed Plaintiffs objections, this Court concludes that they lack merit for the reasons stated below. Accordingly, the Court will overrule Plaintiff's objections and adopt the Magistrate Judge's Report and Recommendation in full.

         A. Objection 1

         Plaintiff objects to the Magistrate Judge's citation of In re Application of Detroit Edison Company to Implement Opt Out Program, No. 316728, 2015 WL 728383 (Mich. Ct. App. Feb. 19, 2015), for the proposition that DTE's smart grid system was “intended to ‘increase the reliability of the electric grid, reduce outage time, and otherwise improve service.'” (Report and Recommendation at 2-3, Pg ID 397-98 (quoting In re Application of DTE, 2015 WL 728383, at *1).) Specifically, Plaintiff takes issue with the lack of proof of this statement, and argues that the Magistrate Judge's adoption of the statement despite the Defendants' failure to support it with “any electrical engineering standards” constitutes legal error. (Pl.'s Objs. at 2, Pg ID 421.) Plaintiff also appears to cite the dissenting opinion in In re Application of Consumer Energy to Increase Elec. Rates, 316 Mich.App. 231 (2016), though the quote that she attributes to that opinion does not actually appear in it. (See Pl.'s Objs. at 2-3, Pg ID 421-22.)

         In re Application of Consumer Energy is irrelevant here, in any event, as it involved the question of whether the Michigan Public Service Commission's approval of a utility's smart grid program was supported by sufficient evidence. See Id. at 233-40. This is a completely different legal context, both because this case concerns an individual plaintiff seeking redress for damages rather than judicial review of an agency decision, and because the Court's responsibility at this stage of the case is to assume Plaintiff's factual allegations to be true, and then determine whether they would entitle her to any remedy under the law. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For this reason, questions as to whether a particular factual assertion is supported by evidence are largely irrelevant at this time.

         The Court also notes that whether it is true or not that DTE's smart grid system was “intended to increase the reliability of the electric grid, reduce outage time, and otherwise improve service” (Report and Recommendation at 2-3, Pg ID 397-98) does not affect any of the reasons to dismiss Plaintiff's claims that the Magistrate Judge provided in the Report and Recommendation.

         For all of these reasons, Plaintiffs first objection is overruled.

         B. Objection 2

         Plaintiff also objects to the Magistrate Judge's quoting In re Application of DTE for a different factual proposition: “Michigan Public Service Commission (‘MPSC) staff have reported that ‘[o]ffering customers an electromechanical meter as an alternative to a smart meter is not a long-term solution, ' because ‘[t]he traditional electromagnetic meter is obsolete and currently not in production.'” (Report and Recommendation at 3, Pg ID 398 (quoting In re Application of DTE, 2015 WL 728383, at *2).) Plaintiff argues that “[t]his statement by the Magistrate [Judge] is simply false, and for her to use this as evidence to support her [Report and Recommendation] against this Plaintiff is not just wrong, but shows her bias and prejudice.” (Pl.'s Objs. at 3, Pg ID 422.)

         This objection has the same flaws as Plaintiff's first objection. Whether a fact quoted by the Magistrate Judge from a state-court opinion is supported by evidence is not relevant to the analysis conducted when Plaintiff's case is challenged with a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Further, the factual proposition Plaintiff challenges here is unrelated to any of the reasons that the Magistrate Judge recommended dismissal of the case. Finally, Plaintiff has not explained (and this Court fails to see) how the Magistrate Judge's quotation of In re Application of DTE by way of factual background represents bias or prejudice on the Magistrate Judge's part. Plaintiff's second objection is overruled.

         C. Objection 3

         Plaintiff makes several objections regarding the Magistrate Judge's adherence to the standards governing motions to dismiss under Rule 12 of the Federal Rules of Civil Procedure. The Court considers them in turn.

         Plaintiff argues that DLX, Inc. v. Kentucky,381 F.3d 511, 514 (6th Cir. 2004), cited by the Magistrate Judge for the general standards applicable to Rule 12(b)(1) motions, is distinguishable because the case involved a Rule 12(b)(1) motion that was granted on the basis of the ripeness and Rooker-Feldman doctrines, [1] neither of which is relevant to this case. This objection lacks merit for two reasons. First, the Magistrate Judge cited DLX for the standard applicable to Rule 12(b)(1) motions generally, which seek dismissal of a case based on the court's asserted lack of subject-matter jurisdiction; those standards do not differ based on the substantive reason for the challenge to the court's jurisdiction. Second, the Magistrate Judge did not ultimately recommend dismissal of any of ...


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