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Aaron v. Moulatsiotis

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

June 21, 2019

JOHNNY AARON, et al., Plaintiffs,
v.
TONY MOULATSIOTIS, et al., Defendants.

          Hon. Janet T. Neff

          REPORT AND RECOMMENDATION

          ELLEN S. CARMODY U.S. Magistrate Judge.

         This matter is before the Court on Defendants' Motion to Dismiss, (ECF No. 10), and Defendant's Motion to Dismiss, (ECF No. 30). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that both motions be granted.

         BACKGROUND

         On February 5, 2019, Plaintiffs Johnny Aaron, Ervin Lamie, and Steve Stewart initiated the present action against: (1) Tony Moulatsiotis, Muskegon County Treasurer; (2) Donna VanderVries, Muskegon County Equalization Director; (3) Ted Karnitz, Norton Shores Fire Marshall; (4) Tim Burgess, Muskegon County Land Bank Authority Coordinator; and (5) Jeffrey Lewis, City of Muskegon Director of Public Safety. (ECF No. 1).

         Plaintiffs' complaint is largely unintelligible and consists primarily of bare legal conclusions, nevertheless, the following allegations can be gleaned from Plaintiffs' complaint. On an unknown date, Plaintiffs became owners of the following three Muskegon County properties: (1) 2943 Valk Street; (2) 417 Jackson Avenue; and (3) 1442 East Broadway (hereinafter collectively “the property”). Plaintiffs failed to pay the property taxes assessed on the property for the 2015 tax year. Defendant Moulatsiotis unlawfully initiated foreclosure proceedings regarding the property resulting in Plaintiffs losing ownership of such. However, the amount of tax assessed on the property was incorrectly calculated by Defendant VanderVries in violation of Michigan law. Defendant VanderVries also concealed or destroyed documents pertaining to one of the subject properties. This conduct was part of a conspiracy, entered into with Defendant Moulatsiotis and Defendant Burgess to unlawfully deprive Plaintiffs of their ownership of the property. Defendants Karnitz and Lewis participated in separate conspiracies pursuant to which Plaintiffs' property was unlawfully searched. Defendant Burgess authorized the unlawful impound of vehicles located at the property.

         Plaintiffs allege that Defendants: (1) violated their Fourth Amendment right to be free from unreasonable searches; (2) violated their Fourteenth Amendment right to due process of law; (3) committed fraud and conspiracy; (4) violated 18 U.S.C. § 241 and 18 U.S.C. § 2071. Plaintiffs seek $99, 540, 000.00 in damages. Defendants Moulatsiotis, VanderVries, Burgess, and Lewis now move to dismiss Plaintiffs' claims on the grounds that the Court lacks subject matter jurisdiction in this matter and that Plaintiffs' allegations fail to state a claim on which relief may be granted.

         LEGAL STANDARD

         A Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief may be granted tests the legal sufficiency of a complaint by evaluating the assertions therein in a light most favorable to Plaintiff to determine whether such states a valid claim for relief. See In re NM Holdings Co., LLC, 622 F.3d 613, 618 (6th Cir. 2000).

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to raise a right for relief above the speculative level on the assumption that all of the complaint's allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). As the Supreme Court more recently held, 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, 677-78 (2009). This plausibility standard “is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” If the complaint simply pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. As the Court further observed:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . .Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . .Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not “show[n]” - “that the pleader is entitled to relief.”

Id. at 678-79 (internal citations omitted).

         When resolving a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider the complaint and any exhibits attached thereto, public records, items appearing in the record of the case, and exhibits attached to the defendant's motion to dismiss provided such are referenced in the complaint and central to the claims therein. See Bassett v. National Collegiate Athletic Assoc., 528 F.3d 426, 430 (6th Cir. 2008); see also, Continental Identification Products, Inc. v. EnterMarket, Corp., 2008 WL 51610 at *1, n.1 (W.D. Mich., Jan. 2, 2008) (“an exhibit to a pleading is considered part of the pleading” and “the Court may properly consider the exhibits. . .in determining whether the complaint fail[s] to state a claim upon which relief may be granted without converting the motion to a Rule 56 ...


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