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Freije v. Montmorency County

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

July 16, 2018

MONTMORENCY COUNTY, et al., Defendants.



         This 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 without prejudice.

         I. BACKGROUND

         On June 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).

         On May 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.

         Freije 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, PageID.629.

         Freije 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.

         Letter 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.

         After 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.[1] See Ives Dep. Tr., Ex. D. to Ives Mot., at 76, PageID.535 (Dkt. 48-5).

         Brown 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.

         At some 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, PageID.1902-1903.

         On 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.

         Richard 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 ‚Äúthere 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 ...

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