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Asmar v. City of Walled Lake

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

October 16, 2017

FRANK ASMAR and TINELLE PROPERTIES, LLC, Plaintiffs / Counter-Defendants,
CITY OF WALLED LAKE and DENNIS WHIT, Defendants / Counter-Claimants.



         Plaintiffs 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.


         Tinelle 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.

         A new 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.

         On 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.[1] 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.


         The 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).

         Federal 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).


         I. Motion for Judgment on the Pleadings

         A. Exhibits attached to Defendants' Motion for Judgment on the Pleadings will not be considered.

         First, 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 Plaintiffs' ...

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