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ARP v. City of Romulus

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

February 13, 2018

TIFFANY M. ARP, Plaintiff,
v.
CITY OF ROMULUS, et al., Defendants.

          ORDER ORDER DENYING MOTION FOR FINAL POSSESSION PENDING JUDGMENT ON PLAINTIFF'S CLAIM AND DELIVERY CAUSE OF ACTION (ECF #5)

          MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE.

         In this action, Plaintiff Tiffany M. Arp alleges that Hussein Farhat, an officer with the City of Romulus Police Department, unlawfully seized (1) some of her personal property, including her cellular telephone, and (2) a sample of her DNA. (See Compl. at ¶¶ 59-64, ECF #1 at Pg. ID 19.) Arp has filed a “Motion for Possession Pending Judgment on Plaintiff's Claim and Delivery Cause of Action.” (See Mot., ECF #5.) In the motion, Arp also complains that, in addition to unlawfully obtaining the cellular phone and DNA sample, Farhat may have unlawfully obtained evidence from her social media accounts and cellular phone records. (See Id. at Pg. ID 82.) The motion requests entry of an order compelling the Defendants to return or destroy the property that they are alleged to have improperly obtained. (See id.) The motion is DENIED.[1]

         Arp has failed to demonstrate that prior to the entry of judgment she is entitled to the return of the property and/or to entry of an order requiring Defendants to destroy it. Arp does not cite any legal authority in her motion. The brief she filed in support of the motion provides, in its entirety: “Plaintiff relies on her allegations listed in Count V of her Complaint for Claim and Delivery pursuant to MCL 600.2920 and MCR 3.105.” (Id.) Neither the statute nor the Michigan Court Rule cited in Arp's brief support her claimed right to possession pending entry of final judgment.

         The statute simply creates a cause of action for claim and delivery. See Mich. Comp. Laws § 600.2920. It says nothing about the procedures to be employed in adjudicating such a claim and, more importantly, says nothing about a plaintiff's right to possession pending entry of final judgment. See id.

         The Michigan Court Rule does establish a procedure through which a plaintiff may seek the return of property pending final judgment, but Arp has not even attempted to satisfy the rule's test for pre-judgment return. The rule provides in relevant part:

(C) Complaint; Joinder of Claims; Interim Payments. A claim and delivery complaint must:
(1) specifically describe the property claimed;
(2) state the value of the property claimed (which will be used only to set the amount of bond and not as an admission of value);
(E) Possession Pending Final Judgment.
(1) Motion for Possession Pending Final Judgment. After the complaint is filed, the plaintiff may file a verified motion requesting possession pending final judgment. The motion must
(a) describe the property to be seized, and
(b) state sufficient facts to show that the property described will be damaged, destroyed, concealed, disposed of, or used so as to substantially impair its value, before final judgment unless the property is taken into custody by court order.

         MCR 3.105 (emphasis added). As the highlighted text makes clear, the rule “requires a showing that the property will be damaged, destroyed, concealed, disposed of, or used so as to substantially impair its value.” Vehicle Dev., Corp. PTY, LLD v. Livernois Vehicle Dev., LLC, No. CIV. 13-14090, 2013 WL 6196965, at *3 (E.D. Mich. Nov. 27, 2013) (emphasis in original). Arp does not address this required showing in her Complaint, motion, or brief. None of those filings say anything about damage, concealment, disposal, or impairment of the value of the property in question.[2] Thus, Arp has not demonstrated that she has a right to possession of the property pending the entry of final judgment (nor that she has a right to an evidentiary hearing on her motion for such judgment).[3]

         Accordingly, IT IS HEREBY ORDERED that Arp's motion for possession and/or destruction of the proper pending the entry of final judgment is DENIED.[4]

---------

Notes:

[1] The Court originally scheduled this motion for a hearing but has decided that the motion may appropriately be resolved without a ...


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