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Barnaby v. Witkowski

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

January 12, 2018

OWEN BARNABY, Plaintiff,
BRET WITKOWSKI, et al., Defendants.


          ELLEN S. CARMODY United States Magistrate Judge.

         This 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.


         In 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 A).

         Plaintiff 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).

         Plaintiff 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 judgment.


         I. Motion to Dismiss

         A Rule 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).

         Pursuant 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 observed:

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).

         When 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)").

         II. Summary Judgment

         Summary 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 ...

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