United States District Court, E.D. Michigan, Southern Division
SHANE ANDERS, STAR TOWING AND RECOVERY, LLC, and AREA TOWING AND RECOVERY, INC., Plaintiffs,
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,
CARAM STEEH, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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. 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
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.
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.)
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.
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.
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).
City of Taylor Defendants' Motion
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
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). 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.
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