United States District Court, E.D. Michigan, Southern Division
HALPERN 2012, LLC, on behalf of themselves and others similarly situated, Plaintiff,
CITY OF CENTER LINE, Defendant.
ORDER AND OPINION GRANTING IN PART DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT   
G. EDMUNDS UNITED STATES DISTRICT JUDGE
putative class action, Plaintiff Halpern 2012, LLC challenges
the constitutionality of Defendant City of Center Line's
rental property ordinance. Pending before the Court is
Defendant's motion for summary judgment. Plaintiff
opposes the motion. On July 10, 2019, the Court held a
hearing in connection with the motion. For the reasons set
forth below, the Court GRANTS IN PART
Defendant's motion for summary judgment. In addition,
pursuant to Federal Rule of Civil Procedure 56(f), the Court
GRANTS partial summary judgment in favor of
Plaintiff on Count II of its complaint.
is a municipal corporation in the State of Michigan. Like
many municipalities, Defendant has a Property Maintenance
Code (“PMC”) that includes provisions regulating
landlords and the leasing of residential housing units.
Defendant's PMC requires property owners who rent out
their properties to, among other things, register their
property with the City, comply with habitability standards,
and submit to inspections. Defendant charges fees for
occupancy certificates and inspections, and imposes fines
when inspections are refused. Defendant's ordinances are
derived from the International Property Maintenance Code of
2009, a widely used set of standards.
owns a single-family rental property located at 8424 Harding
in Center Line, Michigan that is subject to Defendant's
PMC. Plaintiff's property is managed by Garner Property
Management. At all relevant times, Plaintiff's property
has been occupied by a tenant. After Plaintiff was issued a
citation for failing to schedule a follow-up inspection,
Plaintiff initiated this putative class action challenging
the constitutionality of Defendant's rental property
inspection ordinances. Plaintiff alleges that Defendant's
PMC is unconstitutional because the version of the PMC in
effect when the case was filed authorizes rental property
inspections without a warrant or an opportunity for
pre-compliance review. Asserting various legal theories,
Plaintiff asks the Court to void the PMC and order Defendant
to return all fees and fines collected under it.
specific ordinance challenged by Plaintiff requires
inspection of rental properties to ensure compliance with
Defendant's ordinance requirements and habitability
standards. Pursuant to Center Line Rental Ordinance §
14-212(a), the city building department shall inspect
“on a biennial basis any non-owner occupied residential
building in the city including the individual residential
dwelling units therein.” (Id. at §
14-212.) The building official “shall determine whether
the building complies with the standards of the city
building, plumbing, electrical and heating ordinances.”
(Id. at § 14-213.) If the building inspected
complies with these standards, the city building department
will issue a certificate of compliance to that effect.
(Id. at § 14-214.) Should a property owner
dispute the findings of the inspector, the owner is afforded
an appeal procedure as a matter of right. (Id. at
§ 14-219.) No. person is permitted to occupy any such
building without a certificate of compliance. (Id.
at § 14-215.)
the inspections are mandatory for a certificate of compliance
to be issued, it is the owner of the property who must
schedule the inspection. Defendant sends a letter requesting
the inspection be scheduled, and the owner is expected to
call and do so. A property owner faces a range of penalties
if it fails to schedule the inspection and comply with the
April 10, 2017 an initial inspection of Plaintiff's
property was conducted. The parties appear to agree that
consent by either the property owner or the tenant was given
for the inspection. The inspection report identified a number
of issues with the dwelling, including repairs needed to the
basement, ceiling, and garage, which were necessary to be
completed before a certificate of compliance could be issued.
After the inspection, Defendant sent a letter to
Plaintiff's property manager detailing the required
repairs and setting May 10, 2017 as the completion date. On
May 11, 2017, a second letter was sent to the property
manager noting that a certificate of compliance was missing
in violation of § 14-215. This letter instructed the
property manager to contact Defendant within five days to
schedule a reinspection that would confirm completion of the
repairs. On June 8, 2017, the property manager wrote to
Defendant requesting a 45-day extension. Defendant concedes
this extension was granted. However, by August 5, 2017,
reinspection had still not occurred and third letter was sent
to Plaintiff's property manager requesting a follow up
inspection. On September 13, 2017, Defendant issued Plaintiff
a citation for continuing to rent a residential property
without a valid certificate of compliance in violation of
§ 14-215. In October of 2017 the citation was dismissed
by Defendant. Plaintiff did not pay any fines or receive any
criminal penalties in connection with the dismissed citation.
13, 2018, Plaintiff initiated this putative class action
lawsuit against Defendant. The complaint includes six counts
all arising from the constitutionality of the inspection
ordinance. Specifically, Plaintiff claims Defendant's
ordinance violates the Fourteenth Amendment's Due Process
Clause (Count I) and the Fourth Amendment (Count II) and
raises claims of unjust enrichment and the “remedy of
assumpsit” under state law (Count III). The complaint
also includes claims for injunctive and declaratory relief
(Counts IV and V), and for liability under 42 U.S.C. §
1983 (Count VI).
February 6, 2018, Plaintiff filed its motion for class
certification. Through this motion, Plaintiff seeks
certification of a class of all property owners who paid
inspection or registration fees under Defendant's
ordinance. Following a hearing, the Court took the class
certification issue under advisement pending the resolution
of Defendant's dispositive motions.
before the Court is Defendant's motion summary judgment
seeking dismissal of Plaintiff's claims in their
entirety. Plaintiff filed a response in opposition and
Defendant submitted a reply brief. Plaintiff has also filed a
motion to amend Count III of its complaint, which the Court
will grant through this Order, as discussed below.
Summary Judgment Standard
judgment is proper only if the moving party shows that the
record does not reveal a ‘genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.'” Benison v. Ross, 765 F.3d
649, 658 (6th Cir. 2014) (quoting Fed.R.Civ.P. 56(a)). A
genuine issue of material fact exists when there are
“disputes over facts that might affect the outcome of
the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). But
“[w]here the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citing First Nat. Bank of Ariz. v. Cities
Servs. Co., 391 U.S. 253, 289 (1968)).
addition, once the moving party has met its burden, the
non-moving party must make a “showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Bormuth v.
Cty. of Jackson, 870 F.3d 494, 503 (6th Cir. 2017). The
non-moving party must present some evidence in support of its
complaint to defeat a motion for summary judgment and show
that a genuine issue for trial exists-i.e., that a reasonable
jury could return a verdict for the non-moving party. See
Anderson, 477 U.S. at 248.
the complaint is styled in six counts, there are really only
two viable standalone causes of action: deprivation of due
process under the Fourteenth Amendment (Count I) and
violation of the Fourth Amendment prohibition against
unreasonable searches (Count II). The remaining counts either
address aspects of those claims brought under 42 U.S.C.
§ 1983 or the types of relief sought. See MS
Rentals, LLC v. City of Detroit, 362 F.Supp.3d 404, 411
(E.D. Mich. 2019) (addressing nearly identical claims).
parties agree that under Michigan law there is no independent
cause of action for the claim of assumpsit. See Fisher
Sand & Gravel Co. v Neal A. Sweebe, Inc., 494 Mich.
543, 564, 837 N.W.2d 244, 256 (2013). As Plaintiff points
out, however, Fisher preserved the substantive
remedies traditionally available under assumpsit.
Id. at 256-257. The availability of those remedies
depends in part on Plaintiff's success on its substantive
counts. See MS Rentals, 362 F.Supp.3d at 412;
Garner Properties & Mgmt. v. Charter Twp. of
Redford, No. 15-14100, 2017 WL 3412080, at *17 (E.D.
Mich. Aug. 8, 2017); NILI 2011, LLC v. City of
Warren, No. 15-13392, 2017 WL 5467746, at *9 (E.D. Mich.
Nov. 14, 2017).
filed a motion to amend its complaint to clarify that it
brings its count for restitution (Count III) under a theory
of unjust enrichment and to clarify the underlying cause of
action for restitution. The Court will grant leave to amend
the complaint. However, for the reasons discussed below, this
claim (Count III) will be dismissed. Similarly, the counts
styled as “Injunctive Relief” (Count IV) and
“Declaratory Relief” (Count V) do not state
independent claims. These remedies are dependent on the
viability of the Fourth and Fourteenth Amendment claims.
the claim styled as “Violation of 42 USC 1983”
(Count VI) alleges only that Plaintiff is entitled to relief
for the previously-alleged constitutional violations. To
prevail on a § 1983 claim, a plaintiff must show
“(1) the deprivation of a right secured by the
Constitution or laws of the United States; (2) caused by a
person acting under the color of state law.” Bayes
v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015) (citing
Sigley v. City of Parma Heights, 437 F.3d 527, 533
(6th Cir. 2006). There is no dispute here as to the second
element. Plaintiff argues the first element is satisfied by
the demonstrated unconstitutionality of the inspection
provisions challenged in Counts I and II. Count VI, then, is
merely a repetition of those counts. See MS Rentals,
362 F.Supp.3d at 412.
challenges Plaintiff's standing to assert its Fourth
Amendment claim (Count II) on two grounds. First, Defendant
argues Plaintiff lacks Fourth Amendment standing to assert a
constitutional violation resulting from a search of
tenant-occupied rental properties. Second, Defendant argues
Plaintiff has not suffered an injury-in-fact and therefore
fails to meet the Article III requirements for federal
Plaintiff's reasonable expectation of privacy in
undisputed that at all relevant times, Plaintiff's
property was occupied by a tenant. According to Defendant,
this means Plaintiff lacks standing to assert a claim under
the Fourth Amendment because it lacked a reasonable
expectation of privacy in its occupied rental property. (ECF
No. 24, PG. Id. 609.) Defendant cites
Shamaeizadeh v. Cunigan, 338 F.3d 535 (6th Cir.
2003) to support the proposition that a property owner of a
tenant-occupied property lacks standing to challenge the
constitutionality of a municipality's rental property
code on Fourth Amendment grounds. In response, Plaintiff
argues Shamaeizadeh is distinguishable from the
present case and that notwithstanding the occupancy status of
the property, it has standing to ...