United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
F. Cox United States District Court Judge
through counsel, two named Plaintiffs filed this putative
class action challenging the constitutionality of Defendant
Garden City's Weed and Nuisance Ordinance and its Rental
Ordinance. The matter is currently before the Court on the
City's Motion to Dismiss, brought under Fed.R.Civ.P.
12(b)(1) and (c). The motion has been fully briefed by the
parties and the Court concludes that oral argument would not
aid the decisional process. Thus, the Court orders that the
motion shall be decided without a hearing. As explained
below, the Court shall GRANT the motion because the two named
Plaintiffs have failed to meet their burden of establishing
that they have standing to bring the substantive claims they
assert in this action. In addition, the remaining counts,
that do not assert separate substantive claims, shall also be
through counsel, Plaintiffs Investment Realty Services, LLC
(“IRS”) and Safevest Oakland Acquisitions, LLC
(“Safevest”) filed this putative class action
against Defendant the City of Garden City (“the
City”) on January 21, 2019, based on federal question
jurisdiction. The original complaint included multiple
state-law claims, along with the federal claims, and asked
this Court to exercise supplemental jurisdiction over them.
This Court declined to do so and dismissed the state-law
claims without prejudice.
Scheduling Order in this case provides that: 1) amendment to
pleadings had to be made by April 25, 2019; 2) motions to
dismiss had to be filed by June 7, 2019; 3) class
certification discovery is to be completed by July 26, 2019;
and 4) a class certification motion is to be filed by August
Amended Complaint, filed on April 8, 2019, is now the
operative complaint in this case. It asserts the following
seven counts: 1) “Violation of Due Process”
(Count One), asserted on behalf of IRS; 2) “Violation
of the Eighth Amendment” (Count Two), asserted on
behalf of IRS; 3) “Violation of Due Process (failure to
provide notice)” (Count Three), asserted on behalf of
IRS; 4) “Violation of Due Process / Unconstitutional
Conditions Doctrine (Forcing Plaintiff to Forfeit their
Constitutional Rights in order to Rent Property)”
(Count Four), asserted on behalf of Safevest; 5)
“Violation of Fourth Amendment (Warrantless
Searches)” (Count Five), asserted on behalf of
Safevest; 6) “Declaratory Judgment Invalidating Liens
& Injunctive Relief” (Count Six), asserted on
behalf of IRS; and 7) “Violation of 42 USC 1983”
(Count Seven), asserted on behalf of both IRS and Safevest.
The Amended Complaint asks this Court to certify the
126. Class Definition. Plaintiffs seek to certify
the following class
A) All persons and entities who have been charged/levied any
amounts by the City under their Weeds Ordinances or Nuisance
Ordinances from January 21, 2013 through final judgment in
this matter, or such longer period as may be allowed by law;
B) All persons and entities that paid any registration or
inspection fees to the City of Garden City at any time from
January 21, 2013 through the date of final judgment under the
City Rental Ordinances.
(Am. Compl. at ¶ 126).
7, 2019, the City filed a “Motion To Dismiss Pursuant
To Fed.R.Civ.P. 12(b)(1) And/Or For Judgment On The Pleadings
Pursuant To Fed.R.Civ.P. 12(c)” (ECF No.13).
City brings the instant Motion to Dismiss under both
Fed.R.Civ.P. 12(b)(1) and 12(c). The City's standing
challenges are brought under Fed.R.Civ.P. 12(b)(1) and its
remaining challenges are asserted as a motion for judgment on
the pleadings under Fed.R.Civ.P. 12(c).
The City's Standing Challenges
portion of the City's Motion to Dismiss that challenges
the standing of the named Plaintiffs to bring the claims
asserted in this action is made under Fed.R.Civ.P. 12(b)(1).
motion to dismiss brought under Fed.R.Civ.P. 12(b)(1) is a
challenge to subject matter jurisdiction. “Motions to
dismiss for lack of subject matter jurisdiction fall into two
general categories: facial attacks and factual
attacks.” United States v. Ritchie, 15 F.3d
592, 598 (6th Cir. 1994). “A facial attack is
a challenge to the sufficiency of the pleading itself.”
Id. (emphasis in original). “A
factual attack, on the other hand, is not a
challenge to the sufficiency of the pleading's
allegations, but a challenge to the factual existence of
subject matter jurisdiction.” Id. (emphasis in
the City's motion clearly states that the City is making
a factual attack to subject matter jurisdiction.
(See Def.'s Br. at 6). (“This motion
presents a factual attack.”).
such a motion, no presumptive truthfulness applies to the
factual allegations” and this Court “is free to
weigh the evidence and satisfy itself as to the existence of
its power to hear the case.” Ritchie, 15 F.3d
at 598. “[W]hen a defendant produces evidence
challenging the existence of standing, a plaintiff must
generally prove standing with evidence, even at the
motion-to-dismiss stage.” Harris v.
Lexington-Fayette Urban Cnty. Govt., 685 Fed.Appx. 470,
472 (6th Cir. 2017). And it is well established that the
plaintiff, as the party invoking federal jurisdiction, bears
the burden of establishing standing. Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016).
“[t]o defeat a factual attack, a plaintiff ‘must
prove the existence of subject-matter-jurisdiction by a
preponderance of the evidence” and is “obliged to
submit facts through some evidentiary method to sustain his
burden of proof.'” Superior MRI Svs., Inc. v.
Alliance Healthcare Svs., Inc., 778 F.3d 502, 504 (6th
Cir. 2015) (citations omitted).
Claims Asserted By Safevest
is the sole named Plaintiff that asserts the claims that
pertain to the City's Rental Ordinance (Counts Four,
Five, and part of Count Seven, of the Amended Complaint).
Five of the Amended Complaint alleges a violation of the
Fourth Amendment of the United States Constitution,
specifically that the Rental Ordinance is unconstitutional on
its face and as-applied based on Safevest's allegation
that the ordinances authorize warrantless searches.
Four alleges that the Rental Ordinance violates the Fifth and
Fourth Amendments of the United States Constitution, and
specifically the unconstitutional conditions doctrine, by
conditioning the sale or rental of a property on property
owners' consent to relinquish their Fourth Amendment
protection against warrantless searches. This claim is
derivative of Count V in that Plaintiffs assert that by
conditioning a rental certificate on an owner's agreement
to refrain from exercising his or her constitutional right to
be free from unlimited warrantless searches, the City has
violated the unconstitutional conditions doctrine.
Seven is also asserted by Safevest. In that count, Safevest
seeks to bring a claim under § 1983 but does not raise
any substantive claim, other than those asserted in Counts
Four and Five.
City's motion asserts that Safevest lacks standing to
bring all of those claims.
Relevant Facts As To Rental Ordinance And Safevest
City has adopted the International Property Maintenance Code
(“IPMC”) in Section 151.01 of the City's
codes and ordinances. (Pls.' Ex. B).
City's local ordinances include a chapter that governs
“Inspection of Rental Dwellings, ” Chapter 153.
(Pls.' Ex. A). The Court will refer to this chapter as
the “Rental Ordinance” as Plaintiffs do in the
City's Rental Ordinance requires owners of rental
dwellings in the City to register each rental dwelling:
§ 153.02 Registration For Rental Or Lease Of Dwellings.
(A) It shall be unlawful for an owner to rent or lease a
dwelling unless a registration certificate has been issued
and maintained for the dwelling in the manner required by
(B) Any person who violates this section shall be responsible
for a municipal civil infraction and subject to the civil
fines set forth in § 41.06.
(Id. at 2-3). The City's Rental Ordinance
requires the submission of an application for registration of
such dwellings and requires that the “application shall
be accompanied by a registration fee in such amount as City
Council shall from time to time establish by
resolution.” (Id. at 3). It further provides
that an inspection of the dwelling is required for
registration and for the issuance of a registration
certificate as follows:
§ 153.04 Inspection Required For Registration.
The owner of the dwelling identified in the application
shall make the dwelling available for inspection by the
department as may be necessary for the department to
determine whether the dwelling complies with the
International Property Maintenance Code, the state building
code, the state residential code, the state electrical code,
the state mechanical code, the state plumbing code, the state
uniform energy code, the state elevator code, the state
housing law, and the city's zoning code, as amended.
§ 153.05 Issuance Of Registration Certificate.
After receiving the application and fee for registration, the
department shall inspect the dwelling applying the standards
set forth in the above-stated codes, housing law, and zoning
code. Upon determining that the dwelling is in compliance,
the department shall issue to the applicant a registration
certificate, which shall be valid for three calendar years.
The registration certificate shall be in the name of the
owner and cannot be transferred.
(Id. at 3) (emphasis added).
IPMC, which has been adopted by the City, provides as follows
regarding entries for inspections:
104.3 Right of entry. Where it is necessary to make an
inspection to enforce the provisions of this code, or
whenever the code official has reasonable cause to believe
that there exists in a structure or upon a premises a
condition in violation of this code, the code official is
authorized to enter the structure or premises at reasonable
times to inspect or perform the duties imposed by this code,
provided that if such structure or premises is occupied the
code official shall present credentials to the occupant and
request entry. If structure or premises is
unoccupied, the code official shall first make a reasonable
effort to locate the owner, owner's authorized agent or
other person having charge or control of the structure or
premises and request entry. If entry
is refused, the code official shall have recourse to the
remedies provided by law to secure entry.
(See IPMC § 104.3, in Pls.' Ex. C) (bolding
added for emphasis).
after an inspection, the City finds that the property
complies with the codes, the City issues a registration
certificate that is valid for three calendar years. (§
153.05). On the other hand, if the City finds that the
property is not in compliance with the codes and denies the
application (or suspends or revokes a certificate), the
ordinance provides the owner the right to appeal the denial
of the certificate to the Zoning Board of Appeals. (§
about September 5, 2018, Safevest submitted an application
for registration of a rental dwelling to the City for a
property located at 5918 Cardwell. (First Am. Compl. at
¶ 48; Def.'s Ex. 13). Safevest paid a $200.00 fee