United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING MOTION TO REMAND, DENYING
MOTIONS TO STRIKE, DENYING MOTION TO DISMISS, AND DENYING
MOTION FOR SANCTIONS
L. LUDINGTON United States District Judge
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. 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.
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. 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.
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
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.
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).
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.
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.
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.
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
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).
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. 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).
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.
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
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.
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.
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).
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).
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 ...