Futernick v. Sumpter Tp.
| Citation | 78 F.3d 1051 |
| Decision Date | 25 April 1996 |
| Docket Number | No. 94-1902,94-1902 |
| Parties | Sheldon M. FUTERNICK, d/b/a Holiday West Mobile Home Park and d/b/a Holiday Woods Mobile Home Park, Plaintiff-Appellant, v. SUMPTER TOWNSHIP, Helen Teall, Barbara Dudek, Arness Cox and Louis Banotai, Sumpter Township Trustees; Marvin Banotai, Township Supervisor; Paul Johnson, Deputy Supervisor and Township Administrator; Joan Oddy, Township Clerk; John Morgan, Township Treasurer; Michigan Department of Natural Resources, Roland Harmes, Director; Michigan Department of Public Health, Vernice Davis Anthony, Director; Jon Caterino; and Michigan Mobile Home Commission, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
On Appeal from the United States District Court for the Eastern District of Michigan; Nancy G. Edmunds, Judge.
Mark A. Goldsmith (argued and briefed), Honigman, Miller, Schwartz & Cohn, Detroit, MI, for Sheldon Futernick.
Julie McCann-O'Connor (briefed), Christopher T. Koch (argued), O'Connor, DeGrazia & Tamm, Bloomfield Hills, MI, for Sumpter Tp.
John C. Scherbarth, Asst. Attorney Gen. (argued and briefed), Office of the Attorney General, Natural Resources Div., Lansing, MI, for Michigan Dept. of Natural Resources, Michigan Mobile Home Com'n.
R. Phillip Brown (argued and briefed), Office of the Attorney General, Lansing, MI, for the Michigan Dept. of Public Health.
Before: MERRITT, Chief Judge, and CONTIE and BOGGS, Circuit Judges.
Sheldon Futernick sued indiscriminately a host of state and local officials involved in regulating two mobile home parks that he owns and operates. He appeals from the district court's order dismissing all of his claims under Fed.R.Civ.P. 12(b)(6). Although we reverse the district court's erroneous decision regarding the Eleventh Amendment immunity of some of the named defendants, we affirm the district court's dismissal of all of Futernick's claims.
Sheldon Futernick owns and manages two mobile home parks in Sumpter Township, Holiday Woods and Holiday West. His parks discharge treated sewage effluent into surface water, pursuant to a permit issued by the Michigan Department of Natural Resources (MDNR). 1 On March 20, 1991, MDNR amended the permit to require substantial modifications to Futernick's mobile home parks by February 1, 1993. ("This was the most stringent permit issued to any mobile home park in ... the entire state of Michigan," complains Futernick in his brief to this court, estimating the cost of compliance to be over $700,000.) Futernick took little or no action in regard to the new permit requirements for at least a year.
In July 1992, Futernick had a series of meetings with Sumpter Township Supervisor Marvin Banotai to discuss a Township plan to construct a sewer system. The original plan included a sewer line running near Holiday West, but no line running near Holiday Woods. Futernick asked if a line could be extended to Holiday Woods, and Banotai agreed. Banotai sent confirming letters to Futernick announcing the plan to build a sewer accessible to both parks, and stating that the parks would be required to connect to the system.
Futernick then went to the state regulators and informed them that he planned to hook up to the Township sewer system--rendering unnecessary the costly improvements that his amended permit would require by February 1, 1993. Futernick's engineer, Seydou Diop, met with Barry Burns of the MDNR and Jon Caterino of the Michigan Department of Public Health (MDPH). 2 Diop summarized the results of the meeting in a letter to Burns and Caterino, dated August 19, 1992:
Holiday Woods MPH [mobile park homes] will continue to operate as they are currently under the effluent limitations and monitoring requirements as set forth on page 2 of the current permit pending connection to the Sumpter Township sewer system.
Neither Burns nor Caterino voiced disagreement with this summary of their position immediately, and Futernick took no steps to upgrade his parks to meet the tougher effluent regulations.
On October 27, 1992, Caterino wrote Futernick, suggesting that the facility improvements would not be necessary if Futernick used the Township's sewer system, but also said that he had no "firm knowledge" that the Township planned to build such a system. He asked Futernick to begin the facility improvements necessary for compliance. Futernick responded by letter on November 4, stating that he interpreted Caterino's silence in light of the Diop letter to be an agreement to forestall regulation of Holiday Woods "until the Township brings the sewer to the Park and the Park has connected to the Township sewer."
Meanwhile, Futernick and the Township began to disagree on the terms of their earlier understanding. The Township says that Futernick promised to pay for the extension of the sewer line to Holiday Woods. Futernick denies that he promised to pay to connect either park to the new sewer line. The parties also disagree as to whether the Township obligated itself unconditionally to build the sewer line, or merely announced a potential plan. Sometime in early November 1992, Futernick told Township engineers that he would not pay for the extension of the sewer line to either of his parks. In response, the engineers stopped work on the proposed extension.
Everyone involved--Caterino (MDPH), Burns (MDNR), the Township, some county officials, Futernick, and Diop--met on November 17 at the request of Caterino. Futernick and Diop were only allowed to attend part of the meeting. At this meeting, the Township refused (for the first time, says Futernick; again, says the Township) to build the sewer to Futernick's parks unless Futernick paid a hook-up fee. Caterino and Burns also refused to excuse Futernick from compliance with the new regulatory permit unless Futernick agreed to do what was necessary to hook up to the Township's sewers.
The parties' various positions became further entrenched at a second meeting (this time without Futernick or Diop) on December 1, 1992. At this meeting, the Township told the state regulators the amount of the hook-up fee they required, and Caterino and Burns decided that Futernick would have to sign a contract agreeing to pay this amount before he would be excused from his state regulatory obligations. Apparently, the Township was under significant time pressure because of a commitment to their sewage processing contractor. The Township and the state regulators set a deadline of December 31, 1992, for Futernick's financial commitment. Futernick received letters to this effect on December 4, 9, 10, and 14.
Futernick did nothing. On February 3, 1993, Caterino issued a Notice of Noncompliance concerning Futernick's effluent discharge permit. On February 23, Caterino issued a Certificate of Noncompliance, which is the first step in a series of government actions that could eventually result in the closing of the mobile home park.
On March 9, 1993, Futernick filed his complaint in this action. He sued the Township and various Township officials, pursuant to 42 U.S.C. § 1983 and various state laws, to enjoin them from constructing a sewer system that did not include free hook-up status for Futernick. All claims against the Township were settled. Futernick agreed to pay $650,000 in hook-up fees ($400,000 for Holiday Woods and $250,000 for Holiday West), and the Township agreed to provide him with sewer service. The settlement was entered into the record of the proceedings. The district court dismissed the claims against the Township with prejudice. After Futernick moved for reconsideration, the district court amended its order so that the dismissal would be without prejudice.
Futernick also sued under § 1983 for injunctive relief against MDNR, MDPH, and Caterino, and for money damages against Caterino only, for violation of his right to equal protection of the law under the Fourteenth Amendment. On a Rule 12(b)(6) motion by the defense, the district court dismissed the claims against MDNR and MDPH on grounds of Eleventh Amendment immunity. The district court dismissed the claim for money damages against Caterino on grounds of qualified immunity. The court dismissed the claim for injunctive relief against Caterino because Caterino was merely enforcing a facially neutral state regulation and, therefore, the complaint failed to state a claim upon which relief could be granted.
Futernick filed a timely notice of appeal. He raises three issues that we now address. First, did the district court err by dismissing the claims against the Township because of the settlement? Second, did the court err by dismissing the claims against the directors of MDNR and MDPH on grounds of Eleventh Amendment immunity? Third, did the court err by dismissing the claims against Caterino because the complaint failed to state a claim upon which relief could be granted?
The district court dismissed the claims against the Township without prejudice. Futernick claims that this dismissal was an impermissible alteration of the parties' settlement agreement, contrary to Brown v. County of Genesee, 872 F.2d 169 (6th Cir.1989) (). Futernick claims that the terms of the settlement required the court to retain jurisdiction of the case until the Township built the sewer line and hooked up Futernick. See Kohr v. Allegheny Airlines, Inc., 504 F.2d 400, 405 (7th Cir.1974) (), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975).
Futernick's argument fails because the settlement agreement says that the case will be stayed "with the court's permission." 3 Futernick argues that, despite this language, the...
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