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Boulevard & Trumbull Towing, Inc. v. City of Detroit

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

January 9, 2018

Boulevard & Trumbull Towing, Inc., Plaintiff,
v.
City of Detroit, et al., Defendants.

          OPINION & ORDER DISMISSING FEDERAL PROCEDURAL DUE PROCESS CLAIM WITHOUT PREJUDICE

          Sean F. Cox United States District Court Judge

         Currently pending before this Court is an Amended Motion for Preliminary Injunction filed by Plaintiff. The Court is currently scheduled to begin an evidentiary hearing on the motion on January 17, 2018. On December 5, 2017, however, this Court issued an Order To Show Cause, that ordered the parties to address a jurisdictional issue regarding Plaintiff's federal procedural due process claim. The parties have since responded to that Show Cause Order. For the reasons that follow, the Court shall dismiss Plaintiff's federal procedural due process claim without prejudice.

         As explained below, there are two types of federal procedural due process claims. In the first type of claim, a plaintiff shows that he was deprived of property as a result of some established state procedure that itself violates due process. Second, a plaintiff can allege that the defendants deprived him of property pursuant to a “random and unauthorized act, ” but in that case the plaintiff also must also plead and prove the inadequacy of state remedies in order to proceed with the claim. Here, Plaintiff has alleged the second type of claim but Plaintiff has an adequate state-law remedy available to it - Plaintiff's freestanding mandamus claim under Michigan law that is currently proceeding in Plaintiff's chosen forum, the Wayne County Circuit Court. Accordingly, the Court shall dismiss Plaintiff's federal procedural due process claim without prejudice.

         BACKGROUND

         Plaintiff Boulevard & Trumbull Towing, Inc. (“B&T”) filed a six-count complaint against Defendants the City of Detroit, the City of Detroit Police Department, and Detroit Board of Police Commissioners (hereinafter collectively referred to as “the City”) in state court, asserting the following counts: 1) “Mandamus” (Count I); 2) “Injunctive Relief” (Count II); 3) “Substantive Due Process Violation” (Count III); 4) “Procedural Due Process;” 5) “Open Meetings Act Violation” (Count V); and 6) “Damages Under MCL 600.4431” of Michigan's mandamus statute (Count VI).

         B&T's complaint includes the following allegations. B&T is a towing company that has done work for the City for over thirty years. B&T alleges that although it was issued a towing permit by the Defendant Board to operate in the City until 2021, the Defendant Board “has a history of animosity toward” B&T, including a statement by one former Board member that she wanted B&T “out of business.” (Compl. at 3). B&T alleges that, in violation of the City's ordinances, the City's Charter, rules promulgated by the Defendant Board, and in violation of Michigan's Open Meetings Act, the City terminated B&T's towing permit. B&T alleges that the termination “decision was made in secret at a closed session, without any input or defense by Plaintiff, in contradiction of the strict procedures outlined in the ordinance” and that “Defendants' arbitrary and capricious actions” amount to a violation of B&T's procedural due process rights. (Id. at 10). B&T also alleges that Defendants' “arbitrary and capricious actions” also constitute a violation of its substantive due process rights. (Id. at 8).

         B&T's complaint also asserts a claim under Michigan's mandamus statute. B&T alleges that given the applicable ordinances and rules that apply to its permit, it has a “clear legal right to performance” of specific duties by Defendants, including:

a) Full benefit of the issued towing permit for five years pursuant to the specific provisions of Detroit Ordinance §§ 55-15-1 et seq., and § 55-2-82;
b) Defendants' Compliance with the termination procedures specifically stated in Detroit Ordinance § 55-15-1(4), and § 11-15-1 et seq.;
c) A written order detailing the specifics of the termination;
d) A hearing prior to the issuance of any termination, or alternatively a hearing as soon as practicable, depending on what aspect of the termination proceedings of Detroit Ordinance § 55-15-1(4) are relied upon;
e) Notice and opportunity to be heard prior to any meeting or Board action regarding the property right inherent in the permit at issue;

(Compl. at 6). B&T alleges that:

37. These acts are ministerial in nature as Detroit Ordinance § 55-15-1(4) spells out without ambiguity the procedures required for the Board's actions regarding Plaintiff's permit.
38. While the eventual outcome of the proceedings may be discretionary, the Ordinance, and City Charter, and Open Meetings Act leave absolutely no discretion whatsoever to Defendants in publicizing, notifying, and otherwise allowing for Plaintiff to be heard by holding a hearing regarding the property right of the permit at issue.

(Id. at 7). B&T asks the Court to issue a writ of mandamus and compel Defendants to “fulfill their ministerial duties and properly hold a hearing, with appropriate notice, in order to determine Plaintiff's rights pursuant to the strict provisions” of the applicable ordinances, rules, etc. (Id.).

         The City removed the action to this Court, based upon federal-question jurisdiction over the federal portions of Counts III and IV, and asked this Court to exercise supplemental jurisdiction over the remaining state-law claims. In addition, soon after removing the case to this Court, the City filed a Counter-Complaint and Third-Party Complaint wherein six state-law counter-claims were asserted against B & T, which were also asserted as third-party claims against nine different third-party Defendants.

         In response, B&T filed a “Motion to Remand” (D.E. No. 9) wherein B&T argued that this “entire matter should be remanded to state court.” (Id. at Pg ID 169) (emphasis added); see also Pg ID 178, arguing that “[g]iven the absence of a significant federal question and the predominance of state law matters, Plaintiff moves to remand this case to state court” and Pg ID 180-82 “This case is predominately a state law dispute with only the interjection of a federal question being the parallel quotation of the Michigan Constitutional provisions regarding due process, which the state courts are fully equipped to hear. The remainder of the case deals with the violation of state and local laws lacking any basis for federal jurisdiction.”). In that motion, B&T also noted that its claims “deal with the arbitrary ...


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