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Anders v. Lievens

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

April 9, 2019

J. HENRY LIEVENS, Defendants.

          United States Magistrate Judge Anthony P. Patti



         I. Introduction

         Plaintiff initiated this suit on December 18, 2018, alleging several civil rights violations under § 1983. Dkt. No. 1. Defendants now move to dismiss all claims in Plaintiff's Complaint. Dkt. No. 4.

         Present before the Court is Defendants' Motion to Dismiss [#4]. The Court will resolve the matter without a hearing. See E.D. Mich. LR 7.1(f)(2). For the reasons set forth below, the Court will GRANT the Motion IN PART and DENY the Motion IN PART.

         II. Background

         Plaintiff Shane Anders is the owner of Area Towing, a business operating in the state of Michigan. Dkt. No. 1, p. 2 (Pg. ID 2). On November 21, 2017, a court officer requested Plaintiff to remove all vehicles from a location where a tenant was being evicted. Id. at p. 3 (Pg. ID 3). Among the vehicles that Plaintiff removed and impounded was a Denali travel trailer purportedly registered to a woman named Michelle Rae Yoscovits (“Yoscovits”). Id. at p. 4 (Pg. ID 4).

         On June 11, 2018, Yoscovits came to Plaintiff's office and demanded that he release the trailer to her immediately. Id. Plaintiff explained that he could not do so because the trailer was part of an ongoing bankruptcy proceeding, and he would thus need authorization from the court. Id. On July 6, 2018, Plaintiff received a call from a man named J. Henry Lievens (“Defendant Lievens”), again demanding that Plaintiff immediately release the trailer to Yoscovits. Id. at p. 5 (Pg. ID 5). Plaintiff declined. Id. at p. 6 (Pg. ID 6). Defendant Lievens is an attorney and the Chairman of the Monroe County Board of Commissioners. Id. at p. 2 (Pg. ID 2). Yoscovits is an employee at Defendant Lievens' law firm. Id. at p. 9 (Pg. ID 9).

         On August 3, 2018, Plaintiff claims to have received a call from Monroe County Commissioner David Hoffman, informing him that Defendant Lievens had been “bad mouthing” Plaintiff and his company for “allegedly breaking the law.” Id. at pp. 6-7 (Pg. ID 6-7). Plaintiff asserts that he received a second call from Commissioner Hoffman on September 19, 2018, again informing him that Defendant Lievens had been making “false and defamatory statements” about Plaintiff. Id. at p. 7 (Pg. ID 7). Later that day, Plaintiff called Defendant Lievens and explained that “as an elected official, he should not be making false and defamatory statements about the Plaintiff considering such false statements could jeopardize Plaintiff's business.” Id. According to Plaintiff, Defendant Lievens immediately hung up the phone. Id. at p. 8 (Pg. ID 8).

         Following this conversation, Plaintiff allegedly received another call from a member of the Monroe County Board of Commissioners -- Commissioner Moore. Id. at p. 8 (Pg. ID 8). Commissioner Moore, like Commissioner Hoffman, informed Plaintiff that Defendant Lievens had been making statements about Plaintiff suggesting he was violating the law. Id. Subsequently, Plaintiff had his attorney send a cease and desist letter to Defendant Lievens, requesting that he refrain from making any further defamatory remarks. Id. at pp. 8-9 (Pg. ID 8-9).

         At some point, Plaintiff learned of an “anonymous letter” allegedly sent to Monroe County Prosecutor William Nichols that questioned Plaintiff's business practices. See Id. at p. 10 (Pg. ID 10). On September 13, 2018, Plaintiff sent a Freedom of Information Act (“FOIA”) request to the Monroe County Board of Commissioners seeking this letter. Id. After not receiving a response, Plaintiff sent a second FOIA request on September 19, 2018 to both the Board of Commissioners and the County Prosecutor's Office. Id.

         In an email dated September 28, 2018, Michael Roehrig, Chief Assistant Prosecuting Attorney, advised Plaintiff that the Office was not in possession of the anonymous letter and that the Board of Commissioners' FOIA coordinator would tender an official response. Id. at p. 11 (Pg. ID 11). That same day, Michael Bosanac, the Board of Commissioners' designated FOIA coordinator, issued a letter denying Plaintiff's FOIA request. Bosanac's letter informed Plaintiff that the document he requested did not exist. Dkt. No. 4-1. The letter further informed Plaintiff that he could appeal the denial to the Board of Commissioners' Chairman -- Defendant Lievens. Dkt. No. 1, p. 11 (Pg. ID 11). On October 15, 2018, Plaintiff sent Defendant Lievens a formal written request appealing the denial. Id. at p. 12 (Pg. ID 12). Within twenty-four hours, Defendant Lievens denied Plaintiff's FOIA appeal. Id.

         Plaintiff now files suit raising several state and federal claims. First, Plaintiff raises a First Amendment Retaliation claim, alleging Defendant Lievens' made defamatory remarks -- under the color of state law -- about Plaintiff's business following Plaintiff's refusal to release Ms. Yoscovits' Denali travel trailer from impound. Second, Plaintiff raises a Fourteenth Amendment “Class-of-One” Equal Protection claim, alleging Defendant Lievens treated his FOIA appeal differently than others by issuing a denial without first presenting the appeal to the entire Board of Commissioners. Finally, Plaintiff raises several claims arising under Michigan state law, including (1) failing to timely respond to a FOIA request, (2) failing to disclose documents sought in a FOIA request, and (3) denying a FOIA appeal without due process.

         III. ...

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