United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING LEAVE TO AMEND AND
GRANTING DEFENDANTS' MOTION TO DISMISS
F. COX, UNITED STATES DISTRICT JUDGE.
2004 case was reassigned to this Court in 2017, when the
Honorable Gerald Rosen retired. The case involves protracted
state-court litigation between Plaintiff David Kircher, a
property owner in Ypsilanti, Michigan, and the City of
Ypsilanti and several of its officials. The case is currently
before the Court on: 1) Plaintiff's motion seeking to
file an amended complaint, which Defendants oppose; and 2) a
Motion to Dismiss filed by Defendants, that asserts multiple
grounds for relief. The motions have been briefed and the
Court heard oral argument on April 12, 2018. For the reasons
set forth below, the Court shall deny Plaintiff's motion
seeking leave to amend, and grant Defendants' motion to
dismiss, because the constitutional claims that Plaintiff
wishes to pursue in this action are barred under the
applicable preclusion doctrines.
through counsel, George Ward, Plaintiff David Kircher filed
this action on July 1, 2004, naming the following Defendants:
1) the City of Ypsilanti; 2) Cheryl Farmer, Mayor of
Ypsilanti; 3) Charles Boulard, Building Inspector of
Ypsilanti; 4) Jon Ichesco, Fire Marshall of Ypsilanti; 5)
Robert Barnes, 6) Donald Shelton, Washtenaw County Circuit
Court Judge; and 7) Timothy Connors, Washtenaw County Circuit
Court Judge. The action was assigned to the Honorable Gerald
filed a First Amended Complaint on July 9, 2004, against the
same Defendants. (D.E. No. 3). This is the operative
complaint and it contains four separate counts - none of
which are titled.
Defendants, Judge Shelton and Judge Connors, filed an early
Motion to Dismiss, based on judicial immunity and other
grounds, that was granted by Judge Rosen. Thus, they are no
longer in the case.
remaining Defendants filed a Motion to Dismiss or Stay action
on September 10, 2004. (D.E. No. 17 & 18).
October 10, 2006, Judge Rosen issued an “Order Staying
Case In Favor Of Parallel State Court Proceedings”
(D.E. No. 37) wherein he “ORDERED that all proceedings
in this case are STAYED until such time as the related state
court actions have fully concluded, including any appeals
that are pending or that the parties might elect to
pursue.” (Id.). Judge Rosen remanded the
matter to state court under the Younger abstention
ten years later, on November 9, 2016, Plaintiff filed a
motion seeking to end the stay (D.E. No. 69), which this
Court granted in an Order issued on May 12, 2017. (D.E. No.
October 4, 2017, Plaintiff, who is now represented by new
counsel, filed a “Motion for Leave to Amend Complaint
and for Discovery” (D.E. No. 84). That motion is
opposed by Defendants. Plaintiff attaches his proposed Second
Amended Complaint as Exhibit A. It includes the same five
Defendants but now has five separately-titled counts: 1)
“Inverse Condemnation - Taking Of Property For Economic
Rejuvenation and/or Economic Development” (Count I); 2)
“Inverse Condemnation - De Facto Taking” (Count
II); 3) “Inverse Condemnation - Unreasonable Delay In
Acquiring Property” (Count III); 4) “Substantive
Due Process” (Count IV); and 5) “Procedural Due
Process” (Count V).
November 7, 2017, Defendants filed Motion to Dismiss,
pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). (D.E. No. 88).
Standard of Decision
has filed a motion seeking leave to file his proposed Second
Amended Complaint, which asserts that the same claims against
the same Defendants. Plaintiff asserts that he wishes to file
this amended pleading in order to clarify the claims (by
asserting them in titled counts) and by including additional
factual allegations as to proceedings that have occurred
since the time that Plaintiff filed his last complaint.
Defendants agree that it raises the same claims as raised in
the First Amended Complaint (see D.E. No. 85 at Pg
oppose Plaintiff's motion on futility grounds. In
addition, Defendants have filed a separate Motion to Dismiss,
pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6).
of a complaint is futile when the proposed pleading would not
permit the complaint to survive a motion to dismiss under
Fed.R.Civ.P. 12(b)(6). Miller v. Calhoun Cnty., 408
F.3d 803, 817 (6th Cir. 2005).
this Court must consider whether Plaintiff's proposed
Second Amended Complaint can withstand a motion to dismiss.
If it can, the Court should grant Plaintiff's motion for
leave to file it and deny Defendants' Motion to Dismiss.
If it cannot, then the Court should grant Defendants'
Motion to Dismiss, deny Plaintiff's motion for leave, and
dismiss the case.
determining whether to grant a Rule 12(b)(6) motion, the
court primarily considers the allegations in the complaint,
although matters of public record, orders, items appearing in
the record of the case, and exhibits attached to the
complaint, also may be taken into account.” Amini
v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).
there have been extensive proceedings in the state court that
are relevant to Plaintiff's claims and Defendant's
Motion to Dismiss. What follows is the factual history, taken
from the allegations in Plaintiff's proposed Second
Amended Complaint, the orders and opinions entered in the
state court case, and facts stipulated to by the parties.
to this Court's directive, both Plaintiff and Defendants
submitted statements of material facts, so that they could
acknowledge the numerous facts that are not in dispute. (D.E.
Nos. 91-28 & 95). The Court shall refer to those
submissions as “Pl.'s Stmt.” and
“Defs.' Stmt., ” followed by the
corresponding paragraph number.
David Kircher is a graduate engineer of the University of
Michigan, a licensed electrical mechanical contractor and
licensed master electrician, and a former Ypsilanti City
council member. (Pl.'s proposed Sec. Am. Compl. at ¶
claims in this action relate to three state-court actions
concerning three properties owned by Plaintiff in Ypsilanti,
The Cross Street Property
“Cross Street Property, ” 510 W. Cross Street, is
a residential apartment complex that Plaintiff purchased in
the 1960's. (Pl.'s proposed Sec. Am. Compl. at ¶
46-47). In 2000, Defendant Robert Barnes owned the remaining
properties on the Cross Street block and Barnes's
principal place of business was 520 W. Cross Street. In 2000,
Barnes made an offer to Plaintiff to buy the Cross Street
Property, but Plaintiff refused to sell it to Barnes.
(Id. at ¶¶ 48-49). Plaintiff alleges that,
“[s]tarting in approximately 2001, Defendants intended
to transfer the Cross Street Property from [Plaintiff] to
Barnes for the purpose of making a better economic use of the
property;” “[s]pecifically, the Defendants
desired to transfer the Cross Street Property to Barnes to
enable Barnes to turn the property into a sorority or
fraternity house.” (Id. at ¶¶
14, 2001, the City of Ypsilanti (the “City”) and
the Fire Marshal for the City, Jon Ichesco
(“Ichesco”), filed a “Complaint for
Nuisance Abatement and/or Raze the Building and Order to Show
Cause” regarding the Cross Street Property. (Pl.'s
& Defs.' Stmts. at ¶ 1). The Cross Street
Complaint was filed under MCL 29.23, part of the Fire
Prevention Code. (Id. at ¶ 2).
August 20, 2001, the circuit court entered an Order for Fire
and Building Code Compliance. (Pl.'s & Defs.'
Stmts. at ¶ 3; see D.E. No. 91-9). That “Order for
Fire and Building Code Compliance Repairs” stated that,
the “parties having appeared in Court for a Show Cause
hearing, ” the Court was ordering certain relief and
attached a list of 224 repair items. It provided that a
“valid certificate of occupancy must be obtained from
the building inspection department before any unit in the
building may be occupied.” It also stated, in Section
G, that Plaintiff, “Harvey Hutchison, Jon Ichesco, will
meet within two weeks to resolve as many issues as possible
with the understanding that the parties will litigate the
rest at an evidentiary hearing on 08-30-01 at 2:00.”
(D.E. No. 91-9 at Pg ID 1776). That evidentiary hearing was
adjourned, however, because the parties entered a stipulated
order. (See D.E. No. 91-2 at Pg ID 1696).
City requested, and the circuit court ordered, that the Cross
Street Property be vacated. (Pl.'s & Defs.'
Stmts. at ¶ 4).
November 21, 2001, Harry Hutchinson, Director of the
City's Department of Public Works, sent a letter to
Kircher specifying repairs that needed to be made to the
Cross Street Property before a certificate of occupancy would
be issued. (D.E. No. 91-19 at Pg ID 1859). Although prior
evidentiary hearings had been scheduled, they had not
occurred for various reasons, including stipulated orders
from the parties and a cancellation by the circuit court. On
May 28, 2002, the circuit court held an evidentiary hearing,
during which testimony was taken regarding the Cross Street
Property. That evidentiary hearing was the only evidentiary
hearing regarding the Cross Street Property prior to any
appeals to the Michigan Court of Appeals. (Pl.'s &
Defs.' Stmts. at ¶ 9).
14, 2002, the circuit court entered an Order giving the City
the exclusive right to repair the building and fire code
violations at the Cross Street Property. (Pl.'s &
Defs.' Stmts. at ¶ 10). The June 14, 2002 circuit
court order specified five repairs to be made by the City.
(Id. at ¶ 11).
25, 2002, the City's Building Official, Charles Boulard,
sent a letter to Kircher stating that it was responding to
“the plethora of inspection requests that you have made
of the Building Department over the last several
weeks.” (D.E. No. 91-18). The letter referenced
requests relating to several properties. As to the Cross
Street Property, it said:
Address: 510 W. Cross
Request: Inspection of the chimney of the structure by
Building Inspector Avram
Response: Request cannot be honored. It is my sincere belief
that performing the requested inspection would be contrary to
the spoken and written orders of the Court.
22, 2002, Kircher appealed the circuit court's June 14,
2002 order to the Michigan Court of Appeals. (Pl.'s &
Defs.' Stmts. at ¶ 13).
November 21, 2002, the City hired Barnes & Barnes to make
the five repairs enumerated in the June 14, 2002 order to the
Cross Street Property. (Pl.'s & Defs.' Stmts. at
¶ 14). Barnes charged Kircher $54, 376.74 for those five
repairs. (Id. at ¶ 15).
completing the five repairs enumerated in the circuit
court's June 14, 2002 order, Barnes continued making
additional repairs and renovations to the Cross Street
Property. (Pl.'s & Defs.' Stmts. at ¶ 16).
As of November 14, 2003, Barnes claimed that the amount owed
by Kircher for repairs at the Cross Street Property was $95,
559.50. (Pl.'s & Defs.' Stmts. at ¶ 17). On
November 14, 2003, Barnes filed a complaint to foreclose
judicial lien on the Cross Street Property and to determine
interests in real property. (Pl.'s & Defs.'
Stmts. at ¶ 18).
December 17, 2003, the City and Barnes filed a joint motion
requesting authority from the circuit court to reconfigure
the Cross Street Property into a sorority or fraternity
house. (Pl.'s & Defs.' Stmts. at ¶ 19).
hearing in February of 2004, the attorney for the City stated
that the purpose of the circuit court's order giving the
City authority to make repairs to the Cross Street Property
to get a certificate of occupancy was intended to mean that
the City had authority to make the property
“economically viable.” (Pl.'s &
Defs.' Stmts. at ¶ 20).
February 11, 2004, Barnes had demolished the interior of the
Cross Street Property. (Pl.'s & Defs.' Stmts. at
February 11, 2004, the circuit court denied the City and
Barnes' request to reconfigure the Cross Street Property
into a sorority or fraternity house. (Id. at ¶
on March 17, 2004, Barnes applied to the City for a special
use permit to use the Cross Street Property as a sorority or
fraternity house. (Id. at ¶ 23).
April 27, 2004, the Court of Appeals remanded the case back
to the trial court. With regard to the Cross Street Property,
the Court of Appeals stated: “the order does not
provide for the trial court's approval of the amount
charged to defendant for the repairs. In light of the harsh
consequences of defendant's failure to pay, the order
must provide that charges to defendant shall be reviewed by
the trial court to determine whether they are appropriate and
reasonable before defendant is required to pay.”
(Id. at ¶ 24).
25, 2004, the City approved Barnes' request for a special
use permit to use the Cross Street Property as a sorority or
fraternity house. (Id. at ¶ 25).
1, 2004, Plaintiff filed his Complaint in the United States
District Court for the Eastern District of Michigan
concerning constitutional violations regarding the Cross
Street Property. (Id. at ¶ 26). On July 9,
2004, Plaintiff amended his Complaint as of right to state
constitutional claims regarding the Cross Street Property,
the Perrin Property, and the Thompson Building. (Id.
at ¶ 27).
charged at least another $163, 926.58 to Kircher between
April 8, 2003 and January 19, 2005 for repairs and
renovations to the Cross Street Property. The circuit court
did not review the nature of the repairs, the plans, or the
proposed costs, prior to the repairs or renovations being
made by Barnes. No evidentiary hearing occurred regarding the
$163, 926.58 claimed to be due for repairs and renovations
prior to Kircher's first appeal to the Michigan Court of
Appeals. (Pl.'s & Defs.' Stmts. at ¶¶
the Court of Appeals April 27, 2004 Order remanding the cases
to circuit court, the circuit court held an evidentiary
hearing on July 22, 2004 for the repairs made to the Thompson
Building and Cross Street Property, together with an
evidentiary hearing regarding the foreclosure sales of each
of those properties. (Id. at ¶ 31). The circuit
court expressly stated that it was not addressing any
constitutional issues at the July 22, 2004 evidentiary
hearing. (Id. at ¶ 32).
testimony at the July 22, 2004 evidentiary hearing regarding
the Thompson Building, the evidentiary hearing was adjourned
to December 10, 2004 to address the Cross Street Property.
(Id. at ¶ 33).
September 2 - 3, 2004, Kircher filed England
Reservations in each of the City's nuisance abatement