United States District Court, E.D. Michigan, Southern Division
Nita Gordon, personal representative of Antonio Gordon, Plaintiff,
Keith Bierenga and City of Royal Oak, Defendants.
Steven Whalen, Mag. Judge.
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT  AND GRANTING
DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO
THE CITY OF ROYAL OAK 
E. Levy, United States District Judge.
Nita Gordon brings this case on behalf of Antonino
Gordon who was shot and killed by defendant
police officer Keith Bierenga, of the Royal Oak Police
Department. The complaint includes one count of excessive
force against Officer Bierenga and one count of municipal
liability against defendant the City of Royal Oak. After
defendants filed an answer, the City moved for judgment on
the pleadings on plaintiff's municipal liability claim.
In response, plaintiff filed a motion for leave to file an
amended complaint that includes additional allegations
regarding municipal liability and adds a count of gross
negligence against Officer Bierenga. Both motions are before
April 10, 2018, Officer Bierenga pursued Antonino Gordon in
his vehicle and pulled Gordon over in Royal Oak, Michigan.
(Dkt. 1 at 2.) Before Officer Bierenga could speak with
Gordon, he drove away fearing arrest on a potential
outstanding warrant. (Id. at 3.) Officer Bierenga
returned to his vehicle and searched for Gordon, who was
driving a BMW vehicle. (Id.) He eventually
identified the BMW in a parking lot of a White Castle
parking lot, Officer Bierenga exited his vehicle with his gun
drawn. (Id.) Gordon attempted to drive away, and
Officer Bierenga shot at Gordon in his vehicle “at
point blank range” four times. (Id.) He struck
Gordon. (Id.) Although Gordon managed to drive away,
he was mortally wounded. (Id.) He lost consciousness
while driving and died at some point thereafter.
(Id.) Gordon's personal representative, Nita
Gordon, brings this suit for excessive force and municipal
liability on behalf of his estate.
Motion to Amend
permitting amendments would moot defendants' motion for
judgment on the pleadings, the Court will address the motion
to amend first.
seeking to amend a claim, when such an amendment would not be
as a matter of course, “may amend its pleading only
with the opposing party's written consent or the
court's leave. The court should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave
should be denied where the amendment demonstrates defects,
such as “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Brown v. Chapman,
814 F.3d 436, 443 (6th Cir. 2016) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)). Defendants do not
argue that there has been any delay, bad faith, or dilatory
motive, but focus instead on futility. The Court will, as
proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.”
Parchman v. SLM Corp., 896 F.3d 728, 738 (6th Cir.
2018) (quoting Beydoun v. Sessions, 871 F.3d 459,
469 (6th Cir. 2017)). When deciding a motion to dismiss under
Fed.R.Civ.P. 12(b)(6), the Court must “construe the
complaint in the light most favorable to the plaintiff and
accept all allegations as true.” Keys v. Humana,
Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). A plausible claim
need not contain “detailed factual allegations, ”
but it must contain more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
proposed amended complaint does two things: it adds
additional allegations with respect to the municipal
liability claim against the City of Royal Oak and it adds a
state law claim of gross negligence against Officer Bierenga.
Defendants argue that both amendments are futile and should
therefore be denied. Neither party addresses the claim of
excessive force as it is largely unchanged from the original
complaint and defendants have not moved to dismiss this