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Anders v. Cuevas

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

September 12, 2019

SHANE ANDERS, STAR TOWING AND RECOVERY, LLC, and AREA TOWING AND RECOVERY, INC., Plaintiffs,
v.
TONY CUEVAS, in his individual capacity as Post Commander for the Michigan State Police, DARZEIL HALL, in his individual Capacity as a Michigan State Trooper, CITY OF TAYLOR, HERMAN “BUTCH” RAMIK, in his individual and official Capacities as an elected member of the Taylor City Council, and RICK SOLLARS, in his individual and official capacities as the elected Mayor of the City of Taylor, Defendants.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS (ECF. NOS. 10, 12)

          GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE.

         Before the court are two motions to dismiss, one filed by Defendants Tony Cuevas and Darzeil Hall and one filed by the City of Taylor, Herman “Butch” Ramik, and Rick Sollars (“City of Taylor Defendants”). The court heard oral argument on September 5, 2019, and took the matter under advisement. For the reasons explained below, Defendants' motions are granted in part and denied in part.

         BACKGROUND FACTS

         Plaintiff Shane Anders is the owner of Star Towing and Recovery, LLC, and Area Towing and Recovery, Inc., which are also plaintiffs in this action. Plaintiffs allege that Defendants retaliated against them for exercising their First Amendment rights. See Doc.1.

         Star Towing was on the Michigan State Police's non-preference tow rotation list for the Monroe Post for approximately fifteen years. In December 2015, Anders cooperated in a Michigan State Police internal affairs investigation regarding tickets he had given to state troopers to sporting events. Id. at ¶¶ 18-20. Anders provided investigators with a list of approximately eighteen troopers to whom he had given tickets. Id. at ¶¶ 22-23. Each of these troopers received verbal or written reprimands for accepting the tickets. Id. at ¶ 25. As a result, the post commander, Tony Cuevas, was displeased with Anders. Id. at ¶ 26. Soon after Anders met with investigators, Cuevas removed Star Towing from the non-preference tow rotation list for the Monroe Post. Id. at ¶¶ 27-33.

         Plaintiffs contend that Star Towing was removed from the tow list in retaliation for Anders' cooperation with the internal affairs investigation. Doc. 1 at ¶ 35. Plaintiffs further allege that Star Towing was removed in retaliation for Anders' refusal to comment in published media reports about the federal criminal investigation of Gasper Fiore.[1] Id. at ¶ 36. Plaintiffs contend that Cuevas “wrongfully assumed that Plaintiff Anders was involved in possibly unlawful or unethical conduct, and unfairly removed Plaintiff Star Towing from the non-preference tow rotation list.” Id. at ¶ 37.

         One of the troopers who received a reprimand as a result of accepting tickets from Anders was Defendant Darzeil Hall, who was angry with Anders for revealing his name to internal affairs. Doc. 1 at ¶¶ 52-53. Since then, Hall has “constantly pressured” Area Towing to hold auctions during the week when it is only able to conduct them on weekends. Id. at ¶¶ 54-59. Anders is concerned that Hall “is attempting to create a situation by which the Michigan State Police could somehow remove Plaintiff Area Towing from the towing rotation.” Id. at ¶ 59.

         Plaintiffs assert a First Amendment retaliation claim against Hall and a First Amendment retaliation claim and equal protection claim against Cuevas. Based upon a separate set of facts, Plaintiffs also assert a First Amendment retaliation claim against Defendant Rick Sollars, who is the mayor of the City of Taylor. (The complaint also names Herman “Butch” Ramik as a Defendant, but it does not allege he engaged in wrongdoing.)

         Plaintiffs allege that Sollars wanted to steer city towing business to Gasper Fiore and away from Area Towing. Doc. 1 at ¶¶ 104-105. Anders was required to use Fiore's company for heavy-duty tows at the direction of Sollars. Although Anders complained to the city police chief and corporation counsel that he did not feel comfortable using Fiore's company, he was advised that it would be “in his best interest” to do so and that if he did not, his contract would not be renewed. Id. at ¶¶ 120-24. After Fiore was indicted, Anders cooperated in the investigation of the FBI and the U.S. Attorney's office.

         On March 20, 2018, the Taylor City Council voted to approve a three-year contract for Area Towing to serve as the primary towing contractor for the city. Sollars vetoed the resolution. Plaintiffs contend that Sollars vetoed the resolution because Anders refused to give him campaign contributions, Anders complained about being forced to use Fiore for heavy-duty tows, and Anders provided information to the FBI and the U.S. Attorney about Sollars' conduct. Id. at ¶¶ 145-47. Plaintiffs assert a First Amendment retaliation claim against Sollars in his individual and official capacities.

         LAW AND ANALYSIS

         Defendants seek dismissal of Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6), based upon Plaintiffs' failure to state a claim upon which relief can be granted. In reviewing such a motion, the court must “accept all the . . . factual allegations as true and construe the complaint in the light most favorable” to the plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (internal quotation marks omitted). “To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass'n, 176 F.3d 315, 319 (6th Cir.1999) (internal quotation marks omitted). “[E]ven though a complaint need not contain ‘detailed' factual allegations, its ‘factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true.'” Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must state a claim that is plausible on its face, meaning that the plaintiff has pleaded “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         I. City of Taylor Defendants' Motion

         The City of Taylor Defendants make two arguments in support of their motion to dismiss. First, they argue that Anders lacks standing to assert a retaliation claim because he did not suffer an injury. One of the requirements of standing is that the plaintiff suffered an injury in fact. See generally Cranpark, Inc. v. Rogers Group, Inc., 821 F.3d 723, 730 (6th Cir. 2016). Area Towing was injured when Sollars vetoed the council resolution to award it the city towing contract. Anders has not alleged an injury that is separate from the injury to Area Towing. Although Anders is the owner of Area Towing, he does not have standing to bring a claim on behalf of the company. “[A] shareholder of a corporation does not have a personal or individual right of action for damages based solely on an injury to the corporation.” Gaff v. Fed. Deposit Ins. Corp., 814 F.2d 311, 315 (6th Cir.), on reh'g in part, 828 F.2d 1145 (6th Cir. 1987). “This rule applies even in cases where the person seeking redress is the corporation's sole shareholder.” Old Blast, Inc. v. Operating Engineers Local 324 Pension Fund, 663 Fed.Appx. 454, 457 (6th Cir. 2016). Because Anders has not alleged an injury separate from Area Towing's injury, he does not have standing to assert a First Amendment retaliation claim. See also Williams v. City of Detroit, 2019 WL 2410719 at *3-5 (E.D. Mich. June 7, 2019) (Michelson, J.) (dismissing claims brought by individual members for injuries to a limited liability company because the individuals lacked standing and were not the real parties in interest under Fed.R.Civ.P. 17(a)). The court will dismiss Anders' First Amendment retaliation claim against the City of Taylor Defendants.

         Defendants also seek dismissal of Area Towing's First Amendment retaliation claim. The elements of a retaliation claim are (1) the plaintiff engaged in constitutionally protected conduct; (2) defendant took adverse action against the plaintiff that would chill a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was motivated by the protected activity. See Lucas v. Monroe Cty., 203 F.3d 964, 973 (6th Cir. 2000).[2] Defendants argue that Area Towing did not engage in any protected activity because Plaintiffs allege that it was Anders who refused to contribute to Sollars' campaign, complained about being forced to use Fiore for heavy-duty tows, and provided information to the FBI and the U.S. Attorney about Sollars' conduct.

         Plaintiffs respond that Anders was acting on behalf of Area Towing when he engaged in the protected conduct. See generally Innotext, Inc. v. Petra'Lex USA Inc., 694 F.3d 581, 591 (6th Cir. 2012) (“[I]t is well known that companies act through their agents.”). Plaintiffs have plausibly alleged that at least a portion of Anders' protected activity was done on behalf of Area Towing. For example, he complained to city officials about having to use Fiore's company for heavy-duty tows. A reasonable inference is that ...


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