United States District Court, E.D. Michigan, Southern Division
Hakim Fakhoury, April Lynn Fakhoury, Michael Fakhoury, and Ray Fakhoury Plaintiffs,
John B. O'Reilly, Jr., William Debiasi, Andreas Barnette, Ron Haddad, Debra Walling, and the City of Dearborn Defendants.
Steven Whalen United States Magistrate Judge
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTIONS TO DISMISS [15, 16]
GERSHWIN A. DRAIN United States District Judge
are family members residing in the City of Dearborn.
Plaintiffs' Amended Complaint alleges that the
Defendants, officials of the City of Dearborn, unlawfully
harassed, prosecuted, and conspired against them with the
goal of divesting the family of its commercial properties in
the City. Pending before the Court are two Motions to Dismiss
filed by the Defendants. A hearing on these matters was held
on May 22, 2017. For the reasons that follow, the Court will
GRANT IN PART and DENY IN PART the Motions
to Dismiss [15, 16].
case involves four Plaintiffs (hereinafter “April,
” “Hakim, ” “Michael, ” and
“Ray”), all members of the Fakhoury family. Dkt.
No. 3 at Pg ID 165. April and Hakim are married; Michael and
Ray are their sons. Id. The Fakhoury family resides
in the City, where they own and operate various businesses in
the West District of the City. Id. at Pg ID 168-69.
Hakim was vocally critical of the Mayor of Dearborn,
Defendant John B. O'Reilly, Jr. (hereinafter
“O'Reilly”). Id. at Pg ID 169. Hakim
would criticize O'Reilly on matters that he believed were
inappropriate or not lawfully being done within the City.
Id. O'Reilly would often become upset after
Hakim voiced his criticisms. Id. at Pg ID 170.
source of contention between Hakim and O'Reilly involved
the Brownfield Credit. Id. Hakim qualified for this
credit which allows a property developer to obtain millions
of dollars in state tax credit so long as the owner builds
adjacent to properties that are blighted. Id.
O'Reilly demanded repeatedly that Hakim sell the
Brownfield Credit to the City, which Hakim rejected.
Id. Eventually, Hakim filed a lawsuit against the
City alleging a due process violation concerning the
City's efforts to take the Brownfield Credit away from
the Fakhoury family. Id. at Pg ID 170. This caused
further strained relations between Plaintiffs and
O'Reilly. Id. Another source of contention
between the Plaintiffs and O'Reilly was the issue of paid
parking. Id. Under the City's parking ordinance,
tenants and customers were repeatedly ticketed, which
affected the Plaintiffs' businesses and their tenants.
Id. O'Reilly and the City refused the Plaintiffs
repeated requests to remove paid parking to make the West
District more business friendly. Id. at Pg ID 171.
the paid parking dispute, Plaintiffs partnered with Mike
Hamame. Id. Under the business partnership, Hamame
and the Fakhoury family assumed equal ownership interests
within the West District of Dearborn. Id. According
to the Plaintiffs, unbeknownst to them at the time, Hamame
collaborated with O'Reilly to divest the Fakhoury family
of its properties within the City. Id.
February 15, 2013, O'Reilly and Defendant Debra Walling,
the City's Chief of Staff for the Mayor (hereinafter
“Walling”), met with Hamame to discuss the issue
of paid parking. Id. At this meeting, O'Reilly
advised Hamame that if his family wanted to do business in
the City, they must dissolve their partnership with the
Fakhoury family. Id. at Pg ID 172. O'Reilly
indicated that once Hamame fulfills the objective of
divesting the Plaintiffs of their properties, O'Reilly
would make the West District more business friendly,
including with respect to paid parking. Id. The
relationship between the Fakhoury family and the Hamame
family soon deteriorated resulting in thirteen lawsuits
regarding ownership of properties within the City.
Id. at Pg. ID 172-73.
this, Plaintiffs allege that O'Reilly used his office to:
(1) order police to target and harass the Fakhoury family;
(2) order police and City attorneys to prevent the Fakhoury
family from entering their own business properties; and (3)
instruct prosecutors to charge the Fakhoury family without
probable cause. Id., p. 10-11 (Pg. ID 173-74). It is
alleged that O'Reilly orchestrated his plan to deprive
the Fakhoury family of their properties by stating publicly
that he had a meeting with Hamame and that “Mike Hamame
has taken . . . and begun the eviction process on the
property.” Also, in February of 2013, in an open
session before the public, in order to further his scheme to
oust the Plaintiffs from the City, O'Reilly stated that
“Hakim Fakhoury no longer owns property in the
District. Mike Hamame owns the notes.” Consequently,
O'Reilly explained “[t]his is a new day in the
District and the future is bright.”
also allege that Defendant Ron Haddad, the Chief of Police
for the City, encouraged harassment of the Fakhoury family by
ratifying his officers numerous arrests, condoning their
unlawful actions towards the Fakhoury family and allowing the
Hamame family to threaten and keep the Fakhoury family from
entering their jointly owned properties. Id., p. 3,
11 (Pg. ID 166, 174). Haddad and O'Reilly issued a
Special Intelligence Bulletin to other police officers which
casted the Fakhoury family as “threats to
business” and “suspects”. Id., p.
14-15 (Pg. ID 177-78). The Bulletin stated that “court
proceedings and evictions are imminent” and
“Hamame feels that the possibility for violence will
escalate[, ]” thus officers were “asked to give
special attention and extra patrols” of the jointly
owned properties in the West District during February of
2013. According to the Plaintiffs, the Bulletin subjected the
Fakhoury family to arbitrary arrests and caused extreme
embarrassment. On one occasion, before the Bulletin was even
issued, Plaintiffs claim that at least five police officers
(some with weapons drawn), circled Hakim's car to show
force and intimidate him. During this altercation, Defendant
Andreas Barnette, a Sergeant in the Dearborn Police
Department, was one of the officers present. Id., p.
15 (Pg. ID 178).
March of 2013, the City, at the direction of O'Reilly,
falsely informed tenants of Plaintiffs' properties that
they had been defrauded by the Plaintiffs and the Hamames
were the rightful owners of the properties. Id. at
Pg ID 176; Ex D. The City instructed at least one tenant to
contact the police and file a police report concerning the
purported fraud. Id. This tenant met with Barnette
and filed the police report. Id., Ex. D. Sergeant
Barnette also contacted the realtor involved with leasing the
subject property and informed the realtor that if he did not
come down to the station and provide a statement that he
would be considered a suspect in a potential fraud.
2013, April reported to police that Hamame threatened her
life. Id. Instead of investigating Hamame, Defendant
Barnette brought criminal charges against April, for
allegedly filing a false police report. Id. at Pg ID
179. A jury acquitted April. Id. This was one of
many criminal charges brought against the Fakhoury family.
to the Fakhoury family, as of June 2013, they had legal
control to manage all of their properties, which was granted
by a court. Id. at Pg ID 180. However, on August 16,
2013, Hamame wrongfully obtained an injunction from the state
court banning the Fakhoury family from entering their
properties to collect rent and manage the properties.
Id. After the injunction order was entered,
Plaintiffs pleaded with Defendants Haddad and Walling to stop
harassing them and to allow them to have full access to their
properties. Id. at Pg. ID 181. However, under
threats of arrest, the Fakhoury family was barred from
entering their property and collecting rent, which averaged
in excess of $500, 000 per month. Id.
William Debiasi is the City of Dearborn's Assistant
Prosecutor. Id., p. 3 (Pg. ID 166). According to the
Complaint, Debiasi issued “bogus” criminal
charges targeting the Fakhoury family Id., p. 21
(Pg. ID 184). For example, the charges against April include
. Filing False Police Report on March 4,
2013, Case No. 13C59570M;
. Frauds Unlawful on August l, 2013, Case
No. 13 C868l0M;
. Trespassing on August 22, 2013, Case
. Frauds Unlawful on August 22, 2013, Case
. Trespassing on September 17, 2013, Case
. Breaking and Entering, Entering Without
Authority on September 17, 2013, Case No. 13C80200M.
Id. ., p. 21 (Pg. ID 184).
charges against Hakim include the following:
. Trespassing on September 17, 2013, Case
. Trespassing on December 11, 2013, Case
Id. ., p. 23 (Pg. ID 186).
charges against Michael include the following:
. Breaking and Entering on August 24, 2013,
Case No. 13C78090M.
Id. ., p. 24 (Pg. ID 187).
charges against Ray include the following:
. Breaking and Entering on September 17,
2013, Case No. 13C80160M; and
. Trespassing on September 17, 2013, Case
Id. ., p. 25 (Pg. ID 188).
November 8, 2013, the Michigan state court judge who entered
the injunction order denied Dearborn Ventures Capital,
LLC's and West Village Common Holdings, LLC's motion
to hold the Fakhoury Plaintiffs liable for trespass based on
the August 16, 2013 injunction order. See Plfs.'
Sur-Reply, Pg ID 802. In January of 2014, the same state
court judge conducted a hearing on April's emergency
motion to address the August 16, 2013 order and held:
IT IS ORDERED that the validity of the Order entered by this
Court on August 16, 2013 (“Injunctive Order”) and
therefore the substance and import thereof, are matters still
to be determined in this Court upon further review and
determination after the parties are given an opportunity at a
motion and hearing to address the validity of that Order.
13, 2014, after numerous adjournments, the circuit court
entered an order which rescinded the August 16, 2013
injunction against the Fakhoury family. Id. at Pg ID
180-81. The court vacated the order ab initio “for
reason that the court was misled into its entry.”
Id. That same month, the Fakhoury family ended their
dispute with the Hamame family after a settlement, which
resulted in millions of dollars lost and a loss of assets for
the Plaintiffs. Id. at Pg ID 189. After the
settlement, Hamame phoned O'Reilly to inform him that the
Fakhoury family was divested of the property. Then, on
October 21, 2014, the City voted to phase out paid parking
“based on the recommendation of the Mayor.”
Id. at Pg ID 190.
to the Plaintiffs, even armed with the knowledge that the
injunction was unlawfully obtained and vacated, Defendant
Debiasi, under the direction and influence of O'Reilly,
Walling and the City of Dearborn, continued to prosecute the
Plaintiffs absent any probable cause. Id. at Pg ID
result of the Defendants' conduct, Plaintiffs allege a
litany of financial, personal, and emotional damages.
Id. at Pg ID 191. Plaintiffs bring a total of eight
counts (three counts of malicious prosecution under state and
federal law, violation of the Equal Protection Clause, First
Amendment Retaliation, conspiracy, undue process and gross
negligence) against six different defendants. Pending before
the Court are two separate Motions to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6): one on behalf of
the Defendants in their individual capacities and one on
behalf of the Defendant City. Both motions cross-reference
each other. Accordingly, the Court will consider both motions
Legal Standard for Motion to Dismiss Pursuant to Rule
Rule of Civil Procedure 12(b)(6) allows the court to make an
assessment as to whether the plaintiff has stated a claim
upon which relief may be granted. See Fed. R. Civ.
P. 12(b)(6). “[T]he tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 668 (2009). “Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.' ” Id. “[A] complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.' ” Id. The plausibility standard
requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id.
“[W]here the ...