United States District Court, E.D. Michigan, Southern Division
& ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS
CHAD BROWN AND MONTMORENCY COUNTY'S MOTION FOR SUMMARY
JUDGMENT (Dkt. 51); DENYING DEFENDANTS DIANE IVES AND TROPHY
CLASS PROPERTY MANAGEMENT'S MOTION FOR SUMMARY JUDGMENT
(Dkt. 48); AND DENYING DEFENDANT NANCY GUIMOND'S MOTION
FOR SUMMARY JUDGMENT (Dkt. 42)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
matter is before the Court on several motions for summary
judgment, from Defendants Nancy Guimond (Dkt. 42); Diane Ives
and Trophy Class Property Management (Dkt. 48); and Chad
Brown and Montmorency County (Dkt. 51). Briefing on all
motions is complete, and a hearing was held on December 7,
2017. For the reasons that follow, the Court finds that Brown
and Montmorency County are entitled to summary judgment on
Plaintiff Claude Freije's federal claims and, therefore,
dismisses those claims with prejudice. Because the dismissal
of these federal claims means that this case no longer
retains a federal character, the Court dismisses Freije's
state-law claims without prejudice and denies those portions
of Defendants' motions challenging the state-law claims
30, 2010, Plaintiff Claude Freije purchased property located
at 11839 M-33, Atlanta, Michigan (the “Property”)
from Defendant Nancy Guimond. Ives Statement of Material
Facts (“SMF”) ¶ 1 (Dkt. 48). Under the terms
of the contract for the sale, Freije would pay Guimond $80,
000 for the Property, at a rate of $600 per month.
See Land Contract, Ex. A to Guimond Br., at
PageID.800 (Dkt. 52-2). Freije opened a restaurant called
“The Dinner Table” on the Property, and purchased
restaurant equipment to use at The Dinner Table. SMF ¶
5. At some point, Freije began having financial difficulties,
and on May 22, 2013, he executed a quit claim deed in lieu of
Guimond foreclosing on the Property. See id. ¶
13. Freije continued to live on the Property after the
execution of the quit claim deed, with the understanding that
he would have to vacate the premises within ninety days once
Guimond found a purchaser for the Property. See
Freije Dep. Tr., Ex. A to Pl. Resp. to Ives Mot., at 30-31,
PageID.1877 (Dkt. 60-2).
28, 2014, Guimond entered into an agreement with Defendant
Diane Ives, a real estate agent, to sell the Property,
including “the assets of a business known as The Dinner
Table.” Ives SMF ¶¶ 6, 17. On June 18, 2014,
the Property, including the restaurant equipment that Freije
had purchased, was sold to Tracy and Glenn Gilliam.
Id. ¶¶ 35-36. Freije learned of the sale
on this same day when Glenn Gilliam arrived at the Property
and asked when Freije would be moving out. Id.
¶ 38. Freije then texted Ives, and she told him that he
could obtain the paperwork regarding the sale when it was put
in at the Register of Deeds office. Id. ¶ 39.
contacted the Attorney General's office; he asserts that
they told him this was larceny by conversion. Ives SMF
¶¶ 40-41. He then called the local prosecutor's
office; prosecutor Terrie Case later returned his call.
Freije Dep. Tr. at 69-71, PageID.1887. The record reflects
some disagreement about what was said in this call. Freije
testified that Case told him that this was larceny by
conversion, and that it was legal for him to demand money
from Guimond, then “go after” Ives for any money
he did not receive from Guimond. Id. at 72,
PageID.1887. Case, for her part, testified that she
remembered speaking with Freije, but could not recall what
she said. See Case Dep. Tr., Ex. W to Ives Mot., at
20, PageID.627 (Dkt. 48-24). Case did, however, say that she
never told Freije to send a letter to Ives. Id. at
27, PageID.629. She could not recall telling him that the
sale of the personal property of The Dinner Table would
amount to larceny by conversion. Id. at 28,
then contacted Guimond and told her that he wanted
compensation for his restaurant equipment. See Ives
SMF ¶ 45. She eventually paid him $10, 000. See
id. ¶ 49. The same day that Freije collected the
$10, 000 from Guimond - June 30, 2014 - he wrote a letter to
Ives, and gave it to a friend to drop off. Freije Dep. at
109-110, PageID.1897. The letter said:
I do not know if Nancy [Guimond] filled you in on what you
two did so I will. When you two put my equipment on her land
contract and sold it, I called an attorney. He wanted $3, 500
to review and start court proceedings, but I thought it was
criminal and not civil. So I called the State Attorney
General's office and this is what they said. What you two
did was criminal. You took stolen goods and then sold stolen
goods for a profit. It is covered under the RICO statues,
[sic] which if convicted carries mandatory jail time. So all
I have to do they said was file a report at the Sheriff's
or State Police and then talk to the prosecutor, which is of
course Terri [sic] Case. I did not file but I did talk to
Terri [sic], and she confirmed what I was told. No cost or
aggravation to me. I did collect all the necessary paperwork
she needs, including land contract, sellers agreement &
so on. Nancy agreed to pay me quite a bit more but I am still
out $6000. She made me promise, in writing, not to prosecute
her. But there is no safe guard for you.
So from you I want the $6000 your scam cost me. The thing you
have going for you, when you talk to Nancy, is that if I do
not get my money and file, they will also prosecute Nancy,
you two are conspirators.
I also called the licensing board, Bob [redacted] (manager).
He said as soon as I filed a complaint with them, they would
send out investigators to go through all your paperwork. I
also have 2 other people who want to file complaints against
you (3 total).
So $6000 is cheap compared to hiring attorneys to fight a
criminal case and have the state also going through your
work. They will be separate investigations. You have my cell
([redacted]). I will be out of town until next week. Part of
me really wants to stick it to you but I am not that way. I
just want what I was due. When I get back, I will either see
you or Terri [sic] Case, let me know what you decide.
from Freije to Ives, Ex. R to Ives Mot. (Dkt. 48-19). Freije
testified that he was asking for $6, 000 because Guimond had
told him that Ives received a 6% commission and “I
figured if they sold the place for a hundred thousand, she
got $6, 000 out of it. . . . actually I wanted twenty, but
because that's all she got out of it, I figured she's
only giving up money that she shouldn't have gotten in
the first place.” Freije Dep. Tr. at 117, PageID.1899.
receiving Freije's letter, Ives contacted the Montmorency
Sheriff's Department. SMF ¶ 61. A short time later
Defendant Chad Brown, then a sergeant with the Sheriff's
Department, met Ives at her office, at which time she gave
him a copy of Freije's letter. Id. ¶ 62.
Brown and Ives did not know one another, other than as
members of the community, prior to her call to the
Montmorency Sheriff's Department. See Ives Dep. Tr.,
Ex. D. to Ives Mot., at 76, PageID.535 (Dkt. 48-5).
found the letter to be threatening in nature, Brown Dep. Tr.,
Ex. N to Pl. Resp. to Brown Mot., at 51, PageID.2303 (Dkt.
61-15), but had never investigated an extortion case before,
id. at 11, PageID.2293. After he completed his
interview of Ives, Brown consulted the statute for extortion.
Id. at 31-32, PageID.2298. Brown felt that the
letter constituted extortion, but he wanted a
prosecutor's opinion on the case. Id. at 37-38,
PageID.2300; see also Incident Report, Ex. P to Pl.
Resp. to Brown Mot., at 3 (cm/ecf page) (Dkt. 61-17)
(“I had Prosecutor [Terrie] Case review the letter and
determine if the letter has the potential to be considered a
criminal act.”). Brown corresponded via email with the
Montmorency Prosecutor's office regarding Freije's
letter. See 7/9/2014 Email from Terrie Case to Chad
Brown, Dinner Table, Ex. L to Pl. Resp. to Brown Mot. (Dkt.
61-13); 7/9/2014 Email from Chad Brown to Terrie Case, Dinner
Table, Ex. M to Pl. Resp. to Brown Mot. (Dkt. 61-14). Case
considered the letter to be a malicious threat to accuse Ives
of a crime, written with the intent to extort money. Case
Dep. Tr. at 23-25, PageID.628-629.
point between July and September 2014, Freije moved to
Gaylord, Michigan. Freije Dep. Tr. at 44, 48, PageID.1880,
1881. On September 12, 2014, a felony complaint was issued
against Freije, charging him with extortion. See
Felony Complaint, Ex. AA to Ives Mot. (Dkt. 48-28). The
complaint was signed by Brown, as the complaining witness,
and the warrant for Freije's arrest was authorized by
assistant prosecutor Vicki Kundinger. Id. At some
point in September 2014, Freije received a call from the
Montmorency Sherriff's Department that a warrant had been
issued for his arrest, and he turned himself in that evening.
Freije Dep. Tr. at 128-129, PageID.1901-1902. Freije remained
at the police station for several hours, and was released
before midnight after posting bond. Id. at 130-133,
November 10, 2014, Case filed a petition for the appointment
of a special prosecutor in the criminal case against Freije,
as Freije had indicated that he would be calling Case as a
witness. See Petition for Appointment of Special
Prosecutor, Ex. EE to Ives Mot. (Dkt. 48-32). Such a petition
is referred to the Michigan Attorney General's office,
which has discretion to take the case itself as the special
prosecutor or refer it to the Prosecuting Attorneys
Coordinating Counsel (the “PACC”). See
Cunningham Dep. Tr., Ex. FF to Ives Mot., at 8-10,
PageID.655-666 (Dkt. 48-33). If a PACC takes the case, a
local county prosecutor would handle the case as a special
prosecutor. Id. at 10, PageID.666. In this case, the
Michigan Attorney General's office decided to turn the
case over to the PACC. See id. The Otsego County
prosecutor, however, decided not to take the case, and the
case then came back to the Michigan Attorney General's
office. See id. at 15-16, PageID.657.
Cunningham, chief of the criminal division of the Michigan
Attorney General's office, reviewed the case and decided
not to prosecute. Id. at 4, 19, PageID.654, 658. An
order of Nolle Prosequi was entered on November 19, 2014,
dismissing the case against Freije. See Motion/Order
of Nolle Prosequi, Ex. JJ to Ives Mot. (Dkt. 48-37).
Cunningham nonetheless testified that “there was no
doubt in my mind that this was a good warrant because I think
the charges were supported . . . I felt pretty strongly that
there was a case here. You know, that's not the reason I
dismissed it, that I didn't think the evidence ...