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Masjid Malcom Shabazz House of Worship, Inc. v. City of Inkster

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

November 14, 2019

Masjid Malcom Shabazz House of Worship, Inc., Plaintiff,
City of Inkster, Michigan, and Mark Minch, in his individual capacity, Defendants.




         Plaintiff Masjid Malcolm Shabazz House of Worship brought this civil rights case in state court in February 2019. In May 2019, the state court dismissed for non-service and Plaintiff filed a motion to reinstate. In June 2019, while the motion to reinstate was still pending, Defendants Mark Minch and the City of Inkster, Michigan removed the action to federal court. On July 19, 2019, Defendants filed a motion to dismiss. In response, Plaintiff challenged this Court's authority to hear the case, arguing that, because the case had been dismissed in state court, there was no action to remove and no federal jurisdiction over the matter.

         For the reasons stated below, removal and jurisdiction are both proper. The Court GRANTS Plaintiff's motion to reinstate and DENIES Defendants' motion to dismiss.

         I. BACKGROUND

         On February 20, 2019, Plaintiff Masjid Malcolm Shabazz House of Worship, Inc. (“Shabazz”) filed a complaint in the Wayne County Circuit Court (“WCCC”). (ECF No. 9-2, PageID.185.) Plaintiff alleged that Defendants-Inkster Building Official Mark Minch and the City of Inkster, Michigan-unlawfully designated Plaintiff's properties for demolition in violation of Plaintiff's statutory and constitutional rights. (ECF No. 1, PageID.12-17.) Plaintiff also filed a motion on February 20, 2019 for a temporary restraining order.[1] (ECF No. 9-2, PageID.185.) That same day, WCCC issued a summons that would expire on May 22, 2019.[2](ECF No. 1, Page ID.5.)

         Plaintiff attempted to serve Defendants via FedEx on May 20, 2019. (ECF No. 9-2, PageID.188, 191.) Plaintiff's attorney signed proofs of service stating, “I served by registered or certified mail (copy of return receipt attached) a copy of the summons and complaint, together with Complaint and Jury Demand with Exhibits.” (ECF No. 9-3, PageID.187.) Plaintiff attached FedEx delivery slips and receipts to these proofs stating that FedEx delivered the pleadings to Defendants on Monday, May 20, 2019, at 9:18 a.m. (ECF No. 9-3, PageID.187-192.) The FedEx slips state that the packages were “signed for by: Y.HOLMES.” (ECF No. 9-3, PageID.188, 191.) On the date of service, the summons was still valid. (ECF No. 1, PageID.5.)

         On May 23, 2019-the day after the summons expired-Plaintiff attempted to file the proofs of service with WCCC, but WCCC rejected the filing as noncompliant with court guidelines.[3] (ECF No. 9-4, PageID.194.) Pursuant to M.C.R. 2.102(E), which requires dismissal “as to a defendant who has not been served with process as provided in these rules” upon “expiration of the summons, ” WCCC dismissed Plaintiff's action without prejudice. (ECF No. 9-2, PageID.185.) Later that day, after communicating with Plaintiff about the erroneous filing, the WCCC clerk then re-filed the proofs and docketed three entries: two entries titled “Service of Complaint, filed” and one entry titled “Proof of Service, filed.” (ECF No. 9-2, PageID.185; see ECF No. 9-4, PageID.195.) Though WCCC docketed the proof of service, WCCC did not reinstate the case that day.

         On May 31, 2019, Plaintiff filed an ex parte motion to reinstate its cause of action. (ECF No. 9-4, PageID.194.) On June 3, 2019, Defendants' counsel sent Plaintiff's counsel an email identifying himself as the Inkster City Attorney. (ECF No. 9-5, PageID.219.) Defendants' email noted that they “recently received a Summons & Complaint drafted by [Plaintiff] on behalf of the Shabazz House of Worship” and asked Plaintiff to “advise when you served my Client and whether you will agree to a two [sic] extension of time in which to file an Answer or a responsive pleading.” (Id.) On June 6, 2019, Plaintiff filed a notice of hearing for its ex parte reinstatement motion for a June 21, 2019 hearing. (ECF No. 9-6, PageID.221.) Plaintiff did not serve Defendant with this notice. (See Id. at PageID.221, 223.)

         On June 19, 2020, Defendants removed this case to the Eastern District of Michigan pursuant to 28 U.S.C. § 1331. (ECF No. 9-8, PageID.231.) Defendants emailed Plaintiff's attorney on the same day to notify her of the removal. (ECF No. 9-8, PageID.230.) Defendants filed a notice of removal with WCCC on June 20, 2019, and WCCC's proof of service indicates that Plaintiff's counsel was formally served through WCCC's e-filing system. (ECF No. 9-7, PageID.227-228.)

         On June 21, 2019-after all entities had notice that the case was removed to federal court-Plaintiff requested a hearing with the state court on Plaintiff's reinstatement motion. (ECF No. 9-9, PageID.234.) WCCC heard ex parte oral argument on the motion that same day. (ECF No. 9-2, PageID.185.) Plaintiff then filed a proposed order granting Plaintiff's motion to reinstate, which Defendants received through WCCC's e-filing system. (ECF No. 9-10, PageID.236-237.) On June 24, 2019, WCCC granted Plaintiff's proposed order and reinstated the case in state court. (ECF No. 9-11, PageID.239.) The following day, on June 25, 2019, WCCC issued a scheduling order in the case. (ECF No. 9-12, PageID.241.) Both the June 24 order reinstating the case and the June 25 scheduling order were entered after Defendants removed this case to this Court.

         On July 19, 2019, Defendants filed a motion in this Court to dismiss Plaintiff's complaint for improper service. (ECF No. 9, PageID.169.) Defendants' motion also requested that this Court vacate the two WCCC orders entered after this case was removed. (Id.) Plaintiffs responded on August 23, 2019, arguing that this Court does not have subject matter jurisdiction over this case and Defendants do not have standing to bring their motion to dismiss. (ECF No. 12, PageID.250-251.) Plaintiff also requested attorney fees and costs associated with responding to this motion. (Id.)


         For the reasons below, this case was properly removed pursuant to 28 U.S.C. § 1441(a) and is appropriately before this Court. WCCC was thus divested of jurisdiction on the date of removal, and WCCC's two post-removal orders are VOID. Further, both Plaintiff's motion to reinstate and Defendants' motion to dismiss turn on whether Plaintiff properly served Defendant under Michigan law. In finding that Plaintiff timely served Defendant and that Defendant received actual notice of the action, this Court GRANTS Plaintiff's motion to reinstate and DENIES Defendants' motion to dismiss.

         A. Removal and Jurisdiction

         Before turning to the parties' pending motions, the Court must first establish that the case is properly before this Court. The question here is whether a case that has been dismissed in state court with a pending motion to reinstate may still be properly removed to federal court.

         District courts may hear “any civil action brought in a State court, ” so long as three conditions are met: 1) the district court would have original jurisdiction over the claim had it been brought in federal court; 2) the district court represents “the district and division embracing the place” where the suit was removed from state court; and 3) the action before the court was pending at the time of removal. See 28 U.S.C. § 1441(a). Here, Plaintiff challenges the third component of proper removal, [4] arguing that this case was not “pending” within the meaning of § 1441 because, when Defendants removed this action, WCCC had not yet reinstated the case after its May 23 dismissal. (See ECF No. 12, PageID.260.) The remedy for improper removal is a remand to state court. Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 913 (6th Cir. 2007).

         Upon removal, the district court must “take up the case where the State court left it off.” Chaz Const., LLC v. Codell, 137 Fed.Appx. 735, 742-43 (6th Cir. 2005). Because this Court “inherited the entire case upon removal, ” id., we look to the state court docket prior to removal to determine the posture of the case in federal court.

         Defendants removed this case after WCCC dismissed it for improper service. At the time of removal, Plaintiff's motion to reinstate had been pending before WCCC for nineteen days. (ECF No. 9-2, PageID.185.) The posture of this case “on removal” is therefore: dismissed with a pending motion for reinstatement. See Burniac v. Wells Fargo Bank, N.A., 810 F.3d 429, 433 (6th Cir. 2016) (quoting Granny Goose Foods, Inc. v. Bhd. of Teamsters and Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 438 (1974)). As such, the question is whether a dismissed case with a pending motion for reinstatement is “pending” within the meaning of 28 U.S.C. 1441(a).

         The Sixth Circuit has not spoken to this question. The Seventh Circuit, however, recently analyzed the term “pending” in a similar suit. In Yassan v. J.P. Morgan Chase & Co., the state court dismissed a case for want of prosecution after the plaintiff's counsel failed to appear at a status hearing. 708 F.3d 963, 965 (7th Cir. 2013). Unaware of the dismissal, the defendant removed the case to federal court on the following day. Id. The question was thus whether “a case dismissed for want of prosecution on the previous day in state court can still be considered pending there.” Id. at 968. While the Seventh Circuit could not find a “federal ...

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