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Fiore v. City of Detroit

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

August 21, 2019

JOAN FIORE; JAVION AND SAM'S 24 HOUR TOWING SERVICE, INC.; CITY WIDE TOWING, INC.; and PAUL OTT, Plaintiffs,
v.
CITY OF DETROIT, Defendant.

          OPINION AND ORDER GRANTING MOTION TO DISMISS [5]

          LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE.

         Joan 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.

         I.

         This 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.

         A few 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).

         Around 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.

         Before 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.)

         On May 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.)

         This 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, PageID.19-20.)

         The 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).

         II.

         When a 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 570).

         Analysis 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 ...


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