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Johnson v. City of Saginaw

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

December 20, 2017

RITA R JOHNSON, Plaintiffs,


          THOMAS L. LUDINGTON United States District Judge

         On September 22, 2017, Plaintiff Rita R. Johnson filed suit in the Saginaw County Circuit Court against Defendants City of Saginaw and Water Department Worker No. 1. Johnson contends that Defendants “arbitrarily and capriciously turned off the water supply” to her business on May 7, 2011, “without notice or authority.” Compl. at 2, ECF No. 10, Ex. B.[1] Defendants removed the case to this Court several days later. ECF No. 1. On September 29, 2017, Johnson filed a motion to remand the case, arguing that it was improperly removed. ECF No. 3. In response, Defendants filed an amended notice of removal, ECF No. 4, and later filed a second amended notice of removal, ECF No. 10. On October 2, 2017, Defendants filed a motion to dismiss the suit. ECF No. 7.

         Defendants attach a number of exhibits to their reply brief in support of their motion to dismiss, including the transcript of an administrative hearing held by the City and a work order related to the reinstatement of water services. ECF No. 12. On October 17, 2017, Johnson filed a motion to strike those exhibits. ECF Nos. 13, 14.[2] And, on October 26, 2017, Johnson filed a motion for Federal Rule of Civil Procedure 11 sanctions against Defendants. ECF No. 19. For the following reasons, the motion to remand, motion to dismiss, motion to strike, and motion for sanctions will all be denied.


         Rita Johnson owns and operates Rita's Southern Soul Café in Saginaw, Michigan. Compl. at 2. She alleges that, on May 7, 2017, the City of Saginaw “arbitrarily and capriciously turned off the water supply” to her café. Id. Johnson was current on her payments at the time. Johnson believes that her water was turned off “in a backhanded way to shut down any use of Plaintiff's building.” Id. At the filing of the complaint, more than four months had passed “without the restoration of water services[, ] . . . any notice of any sort of hearing to challenge the discontinuation of water services[, ] . . . [and] without any opportunity or ability to end the discontinuation of water services.” Id. Johnson's counsel has made verbal demands that the City of Saginaw turn on her water services, but, as of the filing of the complaint, that had not happened.[3]

         Johnson asserts two causes of action. First, she alleges that Defendants' actions have violated her substantive due process rights. She argues that Defendants “arbitrarily and/or capriciously ended Plaintiff's delivery of water without any ability or opportunity to have any process or procedure to halt the proposed depravation and/or seek its restoration.” Id. at 3. She further alleges that “[e]nding water services when there is no on-going violations of City Ordinances or lack of payment makes the continued suspension of water services arbitrary and/or capricious, of such a character to shock the consciousness of this Court; and/or is an unreasonable restriction is [sic] without a valid rational basis.” Id. In Count Two, Johnson alleges that her procedural due process rights have been violated. Specifically, Defendants did not provide her with notice before they ended her water services, and they did not provide a pre- (or post-) deprivation hearing.


         Defendants are moving for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not provide “detailed factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” and “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678-79 (quotations and citation omitted).


         Johnson challenges the removal of this case from state court. If removal was improper, then this Court lacks jurisdiction to adjudicate the case. The threshold jurisdictional issue will thus be addressed first. Because the Court declines to remand, Defendants' motion to dismiss will be considered next. The parties strenuously dispute which documents the Court can consider in resolving that motion. In fact, that issue is the subject of Johnson's motion to strike. Accordingly, the motion to strike and motion to dismiss must be considered together. Finally, Johnson's motion for Rule 11 sanctions will be addressed.


         In her motion to remand, Johnson argues that Defendants did not strictly comply with the statutory requirements for removal. Those requirements are provided in 28 U.S.C. § 1446(a):

A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.


         Johnson argues that Defendants did not provide a copy of all process served in the state court action because the notice of removal did not include a copy of the summons.

         As Defendants argue, the defect Johnson identifies was a de minimis error that has since be rectified. See Sec. Am. Not. Removal, ECF No. 10. Courts have consistently and uniformly held that de minimis, non-jurisdictional defects in notices of removal do not warrant remand if they are timely cured. As explained in Federal Practice and Procedure,

The notice must be accompanied by copies of all process, pleadings, and orders that have been served upon the defendant or defendants in the state court action. The failure to conform to these procedural rules is not a jurisdictional defect, however, and both the failure to file all the state court papers and the failure to provide the Federal Civil Rule 11 signature are curable in the federal court.

14C Charles Alan Wright and Arthur R. Miller, Procedure for Removal-Content and Amendment of the Notice of Removal, Fed. Prac. & Proc. Juris. § 3733 (4th ed.) (collecting cases).

         Courts in the Eastern District of Michigan have unvaryingly held that de minimis procedural errors like a “failure to attach certain state court documents” do not necessitate “remand to state court.” Long v. Ocwen Loan Servicing, LLC, No. 13-CV-14810, 2014 WL 1400115, at *2 (E.D. Mich. Apr. 10, 2014) (relying upon seven opinions from courts in the Eastern District of Michigan issued in the last five years which all reach the same conclusion). Johnson has not cited a single case where a suit was remanded based on the type of procedural error alleged here, much less one where remand occurred after the error had been cured. Every case cited in § 3733 of Federal Practice and Procedure and Long stands for the opposite proposition: de minimis procedural defects are curable and do not warrant remand. Courts have reached that conclusion almost without exception.[4] See also Gafford v. Gen. Elec. Co., 997 F.2d 150, 164 (6th Cir. 1993) (abrogated on other grounds) (holding that technically deficient notices of removal can be cured by subsequent filings).

         Johnson argues that Defendants' notice of removal deprives her of her preferred forum. But “the defendant's right to remove a case that could be heard in federal court is at least as important as the plaintiff's right to the forum of his choice.” McKinney v. Bd. of Trustees of Mayland Cmty. Coll., 955 F.2d 924, 927 (4th Cir. 1992). And “federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). Johnson does not dispute that this Court possesses subject matter jurisdiction over her claims. As such, and because the technical defects in the notice of removal have been cured, the Court has a duty to adjudicate this case. The motion to remand will be denied.


         Defendants argue that Johnson's substantive due process and procedural due process claims are both deficient as a matter of law. In support of that argument, Defendants attach three exhibits to their reply brief, ECF No. 12. The first is a transcript of a “show-cause” hearing held on May 11, 2017, by Dennis Jordan, the Director of Human Resources for the City of Saginaw. Hearing Tr., ECF No. 12, Ex. 1. The second exhibit is a service record involving the alleged reconnection of Johnson's water service. Service Rec., ECF No. 12, Ex. 2. The third exhibit is a portion of the City of Saginaw Code of Ordinances. In her motion to strike, Johnson argues that the first two exhibits cannot be considered by the Court while adjudicating the motion to dismiss.

         The threshold question is whether the Court may look beyond the complaint in resolving the motion to dismiss. For that reason, the motion to strike will be resolved before the motion to dismiss.


         As an initial matter, Federal Rule of Civil Procedure 12(f) permits the court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A reply brief in support of a motion to dismiss is not a pleading. See Fed. R. Civ. Pro. 7(a). As such, the exhibits in question will not be stricken, even if Johnson is correct that they should not be considered in adjudicating the motion to dismiss. See Rhea v. Dollar Tree Stores, Inc., 395 F.Supp.2d 696, 702 (W.D. Tenn. 2005). The amended motion to strike will be denied on that ground.

         The more important question is whether the Court may properly consider the challenged exhibits at this stage of the proceedings. A court faced with a Rule 12(b)(6) motion must typically limit its consideration to the pleadings or convert it to a motion for summary judgment under Federal Rule of Civil Procedure 12(d). Tackett v. M & G Polymers, USA, L.L.C., 561 F.3d 478, 487 (6th Cir.2009). Conversion to a motion for summary judgment, however, “‘should be exercised with great caution and attention to the parties' procedural rights.'” Id. (quoting 5C Charles Alan Wright & Arthur R. Miller § 1366). A court has discretion regarding whether to convert a motion to dismiss to a motion for summary judgment. Jones v. City of Cincinnati, 521 F.3d 555, 561-62 (6th Cir. 2008). The Sixth Circuit has held that “documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.” Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997).

         In addition to the general rule-that a document must be referred to in the complaint and central to the claim-the Sixth Circuit has permitted courts to take judicial notice of some documents of public record. Passa v. City of Columbus, 123 F. App'x 694, 697 (6th Cir. 2005). For example, a court may take judicial notice of other court proceedings, including transcripts. Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir. 2010). However, taking judicial notice of documents has been limited to allow only “the use of such documents . . . for the fact of the documents' existence, and not for the truth of the matters asserted therein.” Passa, 123 F. App'x at 697 (collecting cases).

         Indeed, judicial notice of public records should only be taken for those records “whose existence or contents prove facts whose accuracy cannot reasonably be questioned.” Id. That is, the Court “must only take judicial notice of facts which are not subject to reasonable dispute.” Id. “When considering public documents in the context of a motion to dismiss, a court may not accept a document to ...

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