United States District Court, E.D. Michigan, Southern Division
FRANK ASMAR and TINELLE PROPERTIES, LLC, Plaintiffs / Counter-Defendants,
CITY OF WALLED LAKE and DENNIS WHIT, Defendants / Counter-Claimants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
JUDGMENT ON THE PLEADINGS  AND DENYING DEFENDANTS'
MOTION FOR LEAVE TO FILE AMENDED AFFIRMATIVE DEFENSES AND
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
Frank Asmar ("Asmar") and Tinelle Properties, LLC
("Tinelle") sued the City of Walled Lake
("City") and its manager, Dennis Whitt
("Whitt"), for alleged constitutional violations
arising from Plaintiffs' attempted use of property
located at 1109 Decker Road (the "Property").
Before the Court are Defendants' motion for judgment on
the pleadings and motion for leave to file an amended
affirmative defense and counterclaims. For the reasons set
forth below, the Court will grant Defendants' motion for
judgment on the pleadings and deny Defendants' motion for
leave to file amended affirmative defenses and counterclaims.
Properties purchased the Property in 2003. ECF 1, PgID 3. The
Property housed a large mixed-use warehouse and an office
space building situated on several acres. Id.
Tinelle Properties spent resources rehabilitating the
Property. Id. The City allegedly notified Tinelle
Properties and Frank Asmar that compliance with municipal
codes was required before using the Property for commercial
storage. Id. Compliance with the municipal codes
required the installation of a fire suppression system in the
warehouse and the clearance of trees from the surrounding
area. Id. at 4. Installation of a "wet"
fire suppression system carried an estimated cost of
approximately $1, 000, 000. Id. A "dry"
system was not feasible because, if activated, the system
would "completely ruin the contents of the
facility[.]" Id. In accordance with City
requirements, Tinelle hired "a professional
forester" to "name and tag all of the trees
[Tinelle] intended to remove[.]" Id. Attempts
to comply with the municipal codes-"caused solely by the
arbitrary and capricious conduct" of the City and
Whitt-delayed the opening of a storage facility. Id.
at 5. Accordingly, Tinelle could not generate revenue
sufficient to cover its tax liabilities, id., and
the Property was subsequently foreclosed. Id.
purchaser took possession of the Property and allegedly began
to operate an indoor storage facility, but did not comply
with the City's fire code. Id. The new purchaser
also removed trees-in noncompliance with municipal
ordinances-and used the land for outdoor storage.
Id. The new purchaser was allegedly allowed to make
renovations without proper permits. Id. The City and
Whitt's treatment of the new purchaser allegedly
"violated Plaintiff's constitutionally protected
rights by treating Asmar and Tinelle differently than the new
purchaser." Id. at 6.
November 18, 2016, Frank Asmar and Tinelle Properties filed a
complaint alleging violations of the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, ECF 1, PgID
7, for which 42 U.S.C. § 1983 creates the cause of
action. Defendants answered, ECF 9, and subsequently filed a
Motion for Leave to File Amended Affirmative Defense and
Counterclaims, ECF 16, and a Motion for Judgment on the
Pleadings, ECF 20. Plaintiffs did not amend the complaint,
but instead responded to the motions. ECF 21, 25. The Court
held a hearing to address the motions on June 27, 2017 and
will now resolve both pending motions.
Court analyzes a Rule 12(c) motion for judgment on the
pleadings with the same standard it would employ for a
12(b)(6) motion to dismiss. Tucker v. Middleburg-Legacy
Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008) (citation
omitted). The Court accepts as true all well-pleaded material
allegations of the pleadings and draws reasonable factual
inferences in favor of the non-moving party, but "need
not accept as true legal conclusions or unwarranted factual
inferences." JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 581-82 (6th Cir. 2007) (quoting
Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)).
The complaint must "give the defendant fair notice of
what the claim is and the grounds upon which it rests, "
Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir.
2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93
(2007)), "raise a right to relief above the speculative
level, and  state a claim to relief that is plausible on
its face." Hensley Mfg. v. ProPride, Inc., 579
F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)). It is not
enough to just offer "'labels and conclusions'
or 'a formulaic recitation of the elements of a cause of
action[.]'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
Rule of Civil Procedure 15 governs the Court's analysis
of amendments to pleadings. Courts should "freely give
leave" to amend "when justice so requires."
Fed.R.Civ.P. 15(a)(2). Denial of leave may be appropriate
when there is "undue delay, [a] bad faith or dilatory
motive on the part of the movant . . . [or] futility of
amendment[.]" Foman v. Davis, 371 U.S. 178, 182
(1962). Moreover, compulsory counterclaims must be stated if
it "arises out of the same transaction or occurrence
that is the subject matter of the opposing party's
claim." Fed.R.Civ.P. 13(a)(1).
Motion for Judgment on the Pleadings
Exhibits attached to Defendants' Motion for Judgment on
the Pleadings will not be considered.
the Court must determine the appropriateness of considering
exhibits attached to Defendants' Rule 12(c) motion.
Because the Court reviews a Rule 12(c) motion as it would a
Rule 12(b)(6) motion, it will focus on the Plaintiffs'
allegations, but can consider "matters of public record,
orders, items appearing in the record of the case, and
exhibits attached to the complaint[.]" Barany-Snyder
v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quotation
omitted). The Court may also consider exhibits attached to
the motion, "so long as they are referred to in the
Complaint and are central to the claims contained
therein." Bassett v. Nat'l Collegiate Athletic
Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). The