United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO
FILE A SECOND MOTION FOR SUMMARY JUDGMENT AND ADJOURNING
SCHEDULING ORDER DATES
L. LUDINGTON, UNITED STATES DISTRICT JUDGE.
February 15, 2017, Plaintiff Tuscola Wind III, LLC,
(“Tuscola”) filed a complaint naming the Almer
Charter Township and that Township's Board of Trustees as
Defendants. ECF No. 1. Tuscola Wind's claims arise out of
Defendants' denial of a Special Land Use Permit
(“SLUP”) that would have permitted Tuscola Wind
to construct the “Tuscola III Wind Energy Center”
in Tuscola County, Michigan. Compl. at 6. On February 26,
2018, Defendants filed a motion for summary judgment. ECF No.
55. On June 12, 2018, the Court granted the motion in part.
ECF No. 70. Presently, the only surviving claim involves an
alleged violation of the Michigan Open Meetings Act. Trial is
presently scheduled to begin on July 10, 2018, at 8:30 a.m.
25, 2018, the Township filed a motion for leave to file a
second motion for summary judgment. ECF No. 72. Tuscola
opposes the motion. ECF No. 73. On June 27, 2018, the Court
held a final pretrial conference. As discussed at that
conference and for the reasons stated below, the
Township's motion will be granted and the scheduling
order will be adjourned.
June 12, 2018, opinion and order, the Court summarized the
genuine issues of material fact surrounding the Open Meetings
Claim as follows:
. . . The attached emails clearly support a finding that
members of the Board repeatedly emailed all members via blind
carbon copy. Merely emailing all members does not violate the
OMA unless there was some level of discourse on an issue of
public policy. And neither of the exhibits cited by Tuscola
contain discourse between multiple members. But the emails
strongly suggest that the procedure was adopted in order to
facilitate communication between the Board. And, as the
Markel Court recognized, the fact that Board members
may have later acted consistently with emails they did not
reply to suggests that some level of participation in
deliberation occurred. [Markel v. Mackley, 2016
Mich. App. LEXIS 2004, at *12] (“This is especially
true where there was evidence that defendants intended to
subvert the OMA, as noted by the trial court, and at least
one commissioner was advised against sending emails that
included a quorum of the PRC actively deliberating. “).
In short, the emails identified by Tuscola do not clearly
constitute violations of the OMA. None of the identified
email chains involve replies by other commissioners, and no
evidence has been presented to suggest that Board members
later made decisions at public meetings in reliance on
information received by email. But the identified emails do
identify a procedure which expressly contemplated
communications which could violate the OMA. And, importantly,
Tuscola does not bear the burden of proving that an OMA
violation occurred at this stage. Rather, in order to justify
summary judgment, the Township must show that no violation
occurred as a matter of law. Given the Township's
threadbare briefing on this issue and the outstanding factual
questions, the Township has not met that burden.
Tuscola's OMA claim will be dismissed in part.
June 12, 2018, Op. & Order at 40-41, ECF No. 70.
courts may in their discretion permit renewed or successive
motions for summary judgment, particularly when the moving
party has expanded the factual record on which summary
judgment is sought.” Kovacevich v. Kent State
Univ., 224 F.3d 806, 835 (6th Cir. 2000). Here, Open
Meetings Act issue was given very limited attention during
the briefing for the first summary judgment motion. The
Township did not even address the question of whether the
practice of blind carbon copy emailing other board members
violated the OMA in the motion for summary judgment. Tuscola
devoted two paragraphs to the issue in its response brief. In
its reply brief, the Township provides three sentences on the
topic. Given this threadbare briefing (and similarly limited
factual support), a second summary judgment motion which
expands the factual record on this claim is warranted. The
Township's motion for leave to file a second motion for
summary judgment will be granted. In order to allow time for
that motion to be briefed and decided, an adjournment of the
trial date is necessary.
it is ORDERED that Defendants' motion
for leave to file a second motion for summary judgment, ECF
No. 72, is GRANTED.
further ORDERED that Defendants are
DIRECTED to file the second motion for
summary judgment on or before July 6, 2018.
further ORDERED that Plaintiff is
DIRECTED to file its response brief
on or before July 20, 2018. Defendants shall
file their reply ...