United States District Court, E.D. Michigan, Southern Division
JOAN FIORE; JAVION AND SAM'S 24 HOUR TOWING SERVICE, INC.; CITY WIDE TOWING, INC.; and PAUL OTT, Plaintiffs,
CITY OF DETROIT, Defendant.
OPINION AND ORDER GRANTING MOTION TO DISMISS
J. MICHELSON UNITED STATES DISTRICT JUDGE.
Fiore and Paul Ott own multiple towing companies. They used
to be in business with Joan's ex-husband, Gasper Fiore,
who was recently convicted in a public corruption case. They
are upset because the City of Detroit stopped doing business
with them. So they sued the City in state court, raising a
number of claims under state and federal law. After the City
removed the case, this Court declined to exercise
supplemental jurisdiction over the state-law claims. That
left only Plaintiffs' claims that the City violated the
Federal Wiretap Act and their right to freedom of
association. Now, the City argues that neither states a
plausible claim. For the reasons that follow, the City's
motion to dismiss is granted.
case arises out of a bribery scandal involving towing
companies in the Detroit metro area. The relevant facts are
contained in the underlying complaint as well as public court
filings in several other cases.
years ago, Gasper Fiore (Joan's ex-husband) wanted to
secure a towing contract with Clinton Township. See
Rule 11 Plea Agreement at 2-3, United States v.
Fiore, No. 16-20732 (E.D. Mich. 2017). So he used an
intermediary to bribe one of the Township's trustees.
Id. Unfortunately for Gasper, the intermediary
worked for the FBI. Id. Gasper pleaded guilty to
federal program bribery on December 20, 2017. Rule 11 Plea
Agreement, Tr. of Plea Hearing, United States v.
Fiore, No. 16-20732 (E.D. Mich. 2017).
the same time, Celia Washington was working as a legal
advisor to the Chief of the Detroit Police Department. Rule
11 Plea Agreement at 2-3, United States v.
Washington, No. 17-20662 (E.D. Mich. 2108). She
attempted to arrange contracts for certain towing companies
in exchange for a bribe. See Id. On January 2, 2018,
she pleaded guilty to federal program bribery. Rule 11 Plea
Agreement, Tr. of Plea Hearing, United States v.
Washington, No. 17-20662 (E.D. Mich. 2018). Public
filings in that case reveal that the bribe money was coming
from Gasper Fiore.
Washington pleaded guilty, the government gave her an
affidavit from an FBI agent containing information that had
been lawfully collected from Title III wiretaps during the
investigation of Washington (the Wiretap Affidavit).
(See ECF No. 1, PageID.18; ECF No. 5, PageID.56-57.)
Washington's defense attorney docketed the Wiretap
Affidavit as part of a pre-trial motion to suppress but
inadvertently neglected to seal it. (See ECF No. 5,
PageID.56.) The court later sealed the record. (Id.)
But the City “has come into possession” of the
Wiretap Affidavit anyway. (ECF No. 1, PageID.18.) The Wiretap
Affidavit reveals that Joan Fiore “was personally a
party to an intercepted conversation, ” although
Plaintiffs' complaint does not describe the contents of
that conversation. (ECF No. 17, PageID.190 n.1.)
10, 2018, Joan's towing company, Javion & Sam's
24 Hour Towing Service, and Ott's City Wide Towing,
received notice that the City of Detroit was ending their
ability to work for the City. (ECF No. 1, PageID.11.) Shortly
afterwards, the City notified Joan and Ott individually that
it would not do business with them. (Id.) The City
also “debarred” them from working for the City
“for years to come.” (Id.)
lawsuit followed. Plaintiffs brought most of their claims
under state law. (See ECF No. 1, PageID.11-17,
20-27.) But they also alleged that the City “continues
to use and willfully disclose the Wiretap Affidavit . . . to
support its actions against Plaintiffs.” (ECF No. 1,
PageID.18.) That, they say, violates federal law.
(Id.) In addition, Plaintiffs say that the City
“punished [them] for their perceived association with
Gasper Fiore, ” thereby violating their rights to
“freely associate” with him. (ECF No. 1,
City now asks this Court to dismiss both the wiretap claim
and the freedom of association claim under Rule 12(b)(6).
(See ECF No. 5.) Having reviewed the parties'
briefs, the Court does not believe oral argument would aid in
resolving the motion. See E.D. Mich. LR 7.1(f)(2).
defendant moves to dismiss pursuant to Rule 12(b)(6), the
plausibility standard articulated in Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), governs. Under that
standard, a court first culls legal conclusions from the
complaint, leaving only factual allegations to be accepted as
true. Iqbal, 556 U.S. at 679. The inquiry then
becomes whether the remaining assertions of fact
“allow the court to draw the reasonable inference
that the defendant is liable.” Id. at 678.
Although this plausibility threshold is more than a
“sheer possibility” that a defendant is liable,
it is not a “‘probability
requirement.'” Id. (quoting
Twombly, 550 U.S. at 556). Whether a plaintiff has
presented enough factual matter to
“‘nudg[e]'” his claim
“‘across the line from conceivable to
plausible'” is “a context-specific
task” requiring this Court to “draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679, 683 (quoting Twombly, 550 U.S. at
of the complaint “must ordinarily be undertaken without
resort to matters outside the pleadings.” Gavitt v.
Born, 835 F.3d 623, 640 (6th Cir. 2016). But “a
court may consider exhibits attached to the complaint, public
records, items appearing in the record of the case, and
exhibits attached to the defendant's motion to dismiss,
so long as they are referred to in the complaint and are
central to the claims contained therein.” Id.;
see also Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007) (instructing courts to
examine “documents incorporated into the complaint by
reference, and matters of which a court may take judicial
notice”); 5B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1357 (3d ed.
2019) (explaining that “matters incorporated by
reference or integral to the claim” are “deemed
part of every complaint by ...