United States District Court, E.D. Michigan, Southern Division
NILI 2011, LLC, EETBL, LLC, and Investment Realty Services, LLC D/B/A SBYC Garner, LLC Plaintiffs,
The City of Warren, Defendant.
Steven Whalen United States Magistrate Judge.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
case concerns rental ordinances enacted by the City of
Warren, Michigan. Plaintiffs NILI 2011, LLC, EETBL, LLC, and
Investment Realty Services, LLC doing business as SBYC
Garner, LLC filed a Complaint on September 28, 2015.
See Dkt. No. 1. Plaintiffs assert the following
claims against the Defendant City of Warren: violations of
procedural due process (Count I); violations of due process
through ordinances that are void for vagueness (Count II);
violations of the Fourth Amendment prohibition on
unreasonable searches and seizures (Count III); assumpsit
under Michigan law (Count IV); and violations based on
municipal liability and 42 U.S.C. § 1983 (Counts V and
VIII). Plaintiffs request injunctive and declaratory relief
in Counts VI and VII, respectively.
filed a Motion for Summary Judgment on August 16, 2017, and
this motion is fully briefed. Dkt. No. 55.
before the Court is the Defendant's Motion for Summary
Judgment . A hearing on this motion was held on Tuesday,
November 7, 2017 at 10:00 A.M. For the reasons that follow,
the Court will GRANT IN PART and DENY IN PART Defendant's
Motion for Summary Judgment . The Court will GRANT
Defendant's Motion on Counts II and IV, and DENY
Defendant's Motion on Counts I, III, and V-VIII.
Plaintiffs are limited liability companies who own rental
properties in Warren, Michigan. Dkt. No. 1, p. 2 (Pg. ID 2).
The Defendant is the City of Warren, located in Macomb
County, Michigan. Id.
City has enacted ordinances covering the maintenance of
rental properties. Id. at p. 3 (Pg. ID 3). These
ordinances are largely from the International Property
Maintenance Code (“IPMC”). Renting a
property in Warren requires satisfying several requirements.
First, in applying for a rental license, rental owners must
certify that they agree to “release the City of Warren,
its agents, servants and employees from any and all liability
resulting from the required inspections and observations
hereunder.” Dkt. No. 55, p. 27 (Pg. ID 588). Next, a
person must register the property with the City and obtain a
certificate of compliance with the rental code. Dkt.
No. 1, p. 5 (Pg. ID 5). To obtain a certificate of
compliance, the rental property must pass an inspection
conducted by a City housing code official. Id. A
certificate of compliance is valid for two years. Dkt. No.
55-2, p. 7 (Pg. ID 606).
housing code official must personally inspect a property
prior to the issuance of a certificate of compliance. Dkt.
No. 60-4, pp. 5-6 (Pg. ID 1492-93). The City's procedure
for gaining access to a rental property is described in
Section 104.3 of the IPMC. Dkt. No. 55-6, p. 12 (Pg. ID 643).
Under that section, where a premises is occupied a code
official must request permission from the occupant to enter.
Id. “If entry is refused, the code official
shall have recourse to the remedies provided by law to secure
City's code officials apply the IPMC when inspecting a
rental property. Dkt. No. 1, p. at 3 (Pg. ID 3). The
IPMC does not define some key terms, namely “good
repair.” See Dkt. No. 55, p. 21 (Pg. ID 582).
Instead, the IPMC provides that any undefined terms
“shall have ordinarily accepted meanings such as the
context implies.” Id.; see also Dkt.
No. 55-6, p. 18 (Pg. ID 649). In some instances, the IPMC
offers examples regarding the meaning of an undefined term.
For example, the IPMC understands the exterior of a building
to be in “good repair” where that building is
“structurally sound and sanitary so as not to pose a
threat to the public health, safety or welfare.” Dkt.
No. 55-6, p. 21 (Pg. ID 652).
City's rental coordinator, Marilyn Tremberth, testified
that City inspectors sometimes apply different, conflicting
interpretations of code provisions. Dkt. No. 60-3, pp. 49-50
(Pg. ID 1354-55). Likewise, a Warren property manager
observed that City inspectors subjectively administer the
IPMC and sometimes require changes not mandated by the IPMC.
Dkt. No. 60-4, p. 4 (Pg. ID 1491).
premises fails an inspection, the City sends a notice to the
rental owner regarding the violation. Dkt. No. 1, pp. 8-9
(Pg. ID 8-9). The IPMC requires that certain information be
included in this notice, in particular, the right to appeal
and the City's ability to place a lien on a non-compliant
property; the City does not include this information in its
notices. Dkt. No. 55-6, p. 13 (Pg. ID 644); see,
e.g., Dkt. No. 60, pp. 1-7 (Pg. ID 1283-1289).
City's failure of inspection notices do, however, notify
rental owners that they have sixty days to rectify the
violations. See Dkt. No. 60-2, p. 3 (Pg. ID 1285).
Before a second inspection can occur, a rental owner must pay
a $40 fee, if the interior of the premises must be
re-inspected, and confirm that the violations have been
cured. Id. If the premises fails a second
inspection, the City gives the owner fifteen days to make the
necessary repairs. Id. at p. 8 (Pg. ID 1290). The
owner must schedule a third inspection within fifteen days
and, again, a $40 fee is imposed if the interior of the house
must be inspected a third time. Id.
rental owner fails or does not schedule a third inspection,
the City immediately issues the owner a ticket. Id.
This ticket subjects owners to fines of up to $1, 000.
Id. If a rental owner refuses to pay the fine, the
owner must attend a court proceeding. Id. This
proceeding solely concerns “why [rental owners] were
unable to complete inspections within the allotted
time.” Id. Put another way, the hearing only
allows rental owners to address whether they possess a
certificate of compliance; it does not allow them to contest
the merits of code inspectors' evaluations of a property.
Dkt. No. 1, p. 16 (Pg. ID 16).
IPMC contains a section detailing an appeal process which
allows rental owners to dispute a code inspector's
decisions-the City did not adopt this section, however.
Id. at p. 8 (Pg. ID 8); see also Dkt. No.
55-6, p. 16 (Pg. ID 647); see also Dkt. No. 55-2, p.
4 (Pg. ID 603). Instead, the City simply provides this court
hearing after the rental owner receives a fine for
non-compliance. See Dkt. No. 1, p. 16 (Pg. ID 16).
Federal Rule of Civil Procedure 56(c), “summary
judgment shall be granted if ‘there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.' ” Cehrs v.
Ne. Ohio Alzheimer's Research Ctr., 155
F.3d 775, 779 (6th Cir. 1998). A court must view the facts,
and draw reasonable inferences from the facts, in the light
most favorable to the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). No genuine dispute of material fact
exists where the record “taken as a whole could not
lead a rational trier of fact to find for the non-moving
party.” Matsushita Elec. Indus., Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). The key inquiry is “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52.
argues it is entitled to summary judgment on all of
Plaintiffs' claims. Dkt. No. 55, p. 12 (Pg. ID 573).
Specifically, Defendant contends there is no genuine dispute
about Plaintiffs' claims regarding (1) procedural due
process; (2) due process violations based on the void for
vagueness doctrine; (3) prohibitions on unreasonable searches
and seizures under the Fourth Amendment; (4) assumpsit under
Michigan law; (5) municipal liability; and (6) 42 U.S.C.
§ 1983. Defendant also opposes Plaintiffs' request
for injunctive and declaratory relief.
Court agrees with the Defendant that it is entitled to
summary judgment on Counts II and IV. The Court finds that
the Defendant is not entitled to summary judgment on Counts
I, III, and V-VIII, however.
Count I: Procedural Due Process
contends there is no genuine dispute that it has provided
Plaintiffs with notice that comports with procedural due
process. Conversely, Plaintiffs allege that reasonable minds
may disagree about whether the Defendant has violated their
procedural due process rights, as the City's failed
notices of inspection do not include all the information
required by the City's rental regulations. The Court
finds that the Plaintiffs' argument has merit.
‘Procedural due process imposes constraints on
governmental decisions which deprive individuals of
‘liberty' or ‘property' interests within
the meaning of the Due Process Clause of the Fifth or
Fourteenth Amendment.' ” Kaminski v.
Coulter, 865 F.3d 339, 347 (6th Cir. 2017) (quoting
Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct.
893, 47 L.Ed.2d 18 (1976)). As it concerns procedural due
process, “the deprivation of property by state action
is not itself unconstitutional; ‘what is
unconstitutional is ...