United States District Court, W.D. Michigan, Southern Division
S. CARMODY United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion for
Summary Judgment, (ECF No. 85), and Defendants'
Motion to Dismiss and/for Summary Judgment, (ECF No.
124). The parties have consented to proceed in this Court for
all further proceedings, including trial and an order of
final judgment. 28 U.S.C. § 636(c)(1). By Order of
Reference, the Honorable Janet T. Neff referred this case to
the undersigned. For the reasons discussed herein,
Plaintiff's motion is denied,
Defendants' motion is granted, and this
matter is terminated.
2005, Plaintiff purchased from Berrien County a foreclosed
parcel of property for five thousand two hundred fifty
dollars and zero cents ($5, 250.00). (Dkt. #125, Exhibit A).
Plaintiff failed to timely pay the 2005 and 2006 property
taxes on this parcel, but satisfied each delinquency before
such resulted in foreclosure. (Dkt. #125, Exhibit A).
Plaintiff failed to timely pay the 2007 and 2008 property
taxes, but unlike previous years did not satisfy the
delinquency. (Dkt. #125, Exhibit A). Berrien County
subsequently initiated foreclosure proceedings and the
property was eventually sold at auction. (Dkt. #125, Exhibit
later sought relief in state court to overturn the
foreclosure and sale of the property in question. (Dkt. #125,
Exhibits B-K). In an Order dated July 13, 2012, the Berrien
County Trial Court denied Plaintiff's request for relief
and upheld the foreclosure and sale of the property. (Dkt.
#125, Exhibit K). Subsequent motions for post-judgment relief
filed in the trial court were denied. (Dkt. #125, Exhibit M).
Plaintiff thereafter unsuccessfully sought relief in the
Michigan Court of Appeals. (Dkt. #125, Exhibits L and N).
initiated the present action on December 12, 2014, against
Berrien County and Berrien County Treasurer, Bret Witkowski,
asserting the following claims: (1) fraudulent
misrepresentation and omission; (2) negligence; (3)
unconscionability; (4) theft; (5) deprivation of due process;
and (6) breach of contract. (ECF No. 1). Plaintiff now moves
for summary judgment. Defendants move to dismiss
Plaintiff's claims and, in the alternative, for summary
Motion to Dismiss
12(b)(6) motion to dismiss for failure to state a claim on
which relief may be granted tests the legal sufficiency of a
complaint by evaluating the assertions therein in a light
most favorable to Plaintiff to determine whether such states
a valid claim for relief. See In re NM Holdings Co.,
LLC, 622 F.3d 613, 618 (6th Cir. 2000).
to Federal Rule of Civil Procedure 12(b)(6), a claim must be
dismissed for failure to state a claim on which relief may be
granted unless the “[f]actual allegations [are] enough
to raise a right for relief above the speculative level on
the assumption that all of the complaint's allegations
are true." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 545 (2007). As the Supreme Court subsequently held,
to survive a motion to dismiss, a complaint must contain
“sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" “shcroft v. Iqbal, 556 U.S.
662, 677-78 (2009). This plausibility standard”is not
akin to a 'probability requirement, 'but it asks for
more than a sheer possibility that a defendant has acted
unlawfully." If the complaint simply pleads facts that
are “merely consistent with" a defendant's
liability, it “stops short of the line between
possibility and plausibility of 'entitlement to
relief.'" Id. As the Court further
Two working principles underlie our decision in
Twombly. First, the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice. . .Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading
regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. . .Determining
whether a complaint states a plausible claim for relief will,
as the Court of Appeals observed, be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense. But where the wellpleaded facts
do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it
has not “show[n]" -”that the pleader is
entitled to relief."
Id. at 678-79 (internal citations omitted).
resolving a motion to dismiss pursuant to Rule 12(b)(6), the
Court may consider the complaint and any exhibits attached
thereto, public records, items appearing in the record of the
case, and exhibits attached to the defendant's motion to
dismiss provided such are referenced in the complaint and
central to the claims therein. See Bassett v. National
Collegiate Athletic Assoc., 528 F.3d 426, 430
(6th Cir. 2008); see also, Continental
Identification Products, Inc. v. EnterMarket,
Corp., 2008 WL 51610 at *1, n.1 (W.D. Mich., Jan. 2,
2008) (“an exhibit to a pleading is considered part of
the pleading" and “the Court may properly consider
the exhibits. . .in determining whether the complaint fail[s]
to state a claim upon which relief may be granted without
converting the motion to a Rule 56 motion");
Stringfield v. Graham, 212 Fed.Appx. 530, 535 (6th
Cir. 2007) (documents “attached to and cited by"
the complaint are “considered parts thereof under
Federal Rule of Civil Procedure 10(c)").
judgment “shall" be granted “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). A party moving for summary
judgment can satisfy its burden by demonstrating “that
the respondent, having had sufficient opportunity for
discovery, has no evidence to support an essential element of
his or her case." Minadeo v. ICI Paints, 398
F.3d 751, 761 (6th Cir. 2005). Once the moving party
demonstrates that “there is an absence of evidence to
support the nonmoving party's case, " the non-moving
party “must identify specific facts ...