Agema v. City of Allegan

• Decision Date: 16 June 2016
• Docket Number: No. 15-1431,15-1431
• Citation: 826 F.3d 326
• Parties: David Agema; Elizabeth Griffin; Mark Gurley ; Willis Sage, Plaintiffs–Appellants, v. City of Allegan; Rick Hoyer, Chief of Police, City of Allegan; Allegan Public School District; Jim Mallard, Principal, individually and in his official capacity as a Principal in the Allegan Public School District, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

826 F.3d 326

David Agema; Elizabeth Griffin; Mark Gurley ; Willis Sage, Plaintiffs–Appellants

v.City of Allegan; Rick Hoyer, Chief of Police, City of Allegan; Allegan Public School District; Jim Mallard, Principal, individually and in his official capacity as a Principal in the Allegan Public School District, Defendants–Appellees.

No. 15-1431

United States Court of Appeals, Sixth Circuit.

Argued: April 28, 2016

Decided and Filed: June 16, 2016

Rehearing En Banc Denied September 13, 2016

ARGUED: Erin Elizabeth Mersino, Thomas More Law Center, Ann Arbor, Michigan, for Appellants. Thomas R. Meagher, Foster, Swift, Collins & Smith, P.C., Lansing, Michigan, for Appellees City of Allegan and Rick Hoyer. Mark T. Ostrowski, Kluczynski, Girtz, & Vogelzang, Grand Rapids, Michigan, for Appellees Allegan Public School District and Jim Mallard. ON BRIEF: Erin Elizabeth Mersino, Richard Thompson, Thomas More Law Center, Ann Arbor, Michigan, for Appellants. Thomas R. Meagher, Liza C. Moore, Foster, Swift, Collins & Smith, P.C., Lansing, Michigan, for Appellees City of Allegan and Rick Hoyer. Mark T. Ostrowski, Kluczynski, Girtz, & Vogelzang, Grand Rapids, Michigan, for Appellees Allegan Public School District and Jim Mallard.

Before: MERRITT, SUHRHEINRICH, and DONALD, Circuit Judges

DONALD

, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined and MERRITT, J., joined in part. MERRITT, J. (pp 334–38), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BERNICE BOUIE DONALD

, Circuit Judge.

David Agema, Elizabeth Griffin, Mark Gurley, and Willis Sage (“appellants”) wanted to stage an event at a public high school to provide information about proposed legislation to prevent Sharia law from being used in Michigan, and to warn about the dangers posed by radical Muslims generally. After receiving and investigating a tip that one of the speakers had a significant bounty on his head, authorities canceled the event. Shortly thereafter, the appellants brought this suit, asserting claims under both 42 U.S.C. § 1983

and state law against the city of Allegan and its police chief Rick Hoyer (“Hoyer”), as well as the school district and the high school principal Jim Mallard (“Mallard”).

The appellants appeal from the district court's decisions to (1) dismiss their complaint for failure to state plausible 42 U.S.C. § 1983

claims against the city of Allegan, (2) allow the school district to withdraw its Fed. R. Civ. P. 68 offer to stipulate to judgment, and (3) grant summary judgment to the school district. We AFFIRM in part and REVERSE in part.

I.

A. Factual Background

This case stems from a free speech event organized by the appellants at Allegan High School on January 26, 2012. The event was intended “to inform the public about the importance of honoring the United States and Michigan Constitutions in Michigan schools” and to educate the public about David Agema's (“Agema”) House Bill 4769, which aimed to limit foreign law's influence in Michigan. Appellant Br. 7. The appellants also wanted to warn citizens about the “internal threat to America posed by radical Muslims” and “to alert the public about the dangers to our free society caused by the imposition of Sharia law.” First Amended Complaint, R. 49, Pg. ID# 595. The event featured Kamal Saleem (“Saleem”), founder of Koome Ministries. The appellants allege that he has a unique perspective on threats posed by radical Islam and Sharia law as a former terrorist who converted to Christianity.

The Allegan Public School District agreed to rent a room to the appellants on January 26, 2012 from 6:00 pm to 9:00 pm. The appellants paid the customary $90 fee. On or about January 24, 2012, Dawud Walid, Executive Director of the Council on American-Islamic Relations, Michigan (“CAIR–MI”) and Michael Keegan, President of the People for the American Way (“PFAW”), wrote a joint letter to Allegan Public School District Superintendent Kevin Harness (“Harness”). The letter argued that Saleem was a purveyor of hatred and intolerance, and questioned Saleem's claims about his life story. The letter further asked the district to rescind its permission for Saleem to use Allegan High School's facilities. Allegan High School received several calls expressing the view that Saleem should not speak at the school. Saleem's planned participation in the event also received local press coverage.

Shortly before the event began, an unidentified woman approached the police, claiming that Saleem had a $25 million bounty on his head. The parties dispute the extent to which Saleem's body guard Kevin Jones (“Jones”) corroborated the rumor. According to appellant Willis Sage (“Sage”), Jones said the rumor was five years old, and that any bounty was not $25 million. According to Hoyer however, the bodyguard implicitly acknowledged that there was a bounty.

The event began. When it was well underway, authorities shut it down. The parties dispute whether there were other events going on at the school when the event was canceled. The appellants allege that the defendants allowed people to stay in the school building for thirty to forty-five minutes after police shut the event down, and that Saleem remained safely inside without surveillance from law enforcement. The appellants allegedly transferred the event to Sunset Lanes in Allegan.

B. Procedural History

The appellants initiated a lawsuit under 42 U.S.C. § 1983

and asserted various state law claims with a first complaint on April 30, 2012. With leave of the court, the appellants amended their complaint on January 8, 2013. The amended complaint advanced four claims for relief. The first count charged the city of Allegan, Allegan School District, Hoyer, Harness and Mallard with abridging the appellants' freedom of speech under the First Amendment. The second count charged the above defendants with abridging the appellants' freedom of assembly under the First Amendment. The third count charged Allegan School District with breach of contract under Michigan law. Finally, the fourth count charged Walid, CAIR–MI, PFAW, and Keegan with tortious interference of contract under Michigan law.

a) Motion to Dismiss

On January 22, 2014, the district court granted the city of Allegan's Fed R. Civ. P. 12(b)(6)

motion to dismiss for claims one and two. At the same time, it dismissed claims one and two against Hoyer as redundant. The district court further held that CAIR–MI, Walid, PFAW, and Keegan were immune from suit under the Noerr-Pennington doctrine. See

E.R.R. Presidents Conference v. Noerr Motor Freight, Inc. , 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) ; United Mine Workers of America v. Pennington , 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The appellants do not challenge the district court's dismissal of the claims against CAIR–MI, Walid, PFAW, and Keegan. They also do not challenge the decision to dismiss Hoyer as redundant.

b) Motion to Stipulate to Judgment

On January 22, 2013, the school district and Mallard filed an offer of judgment pursuant to Fed. R. Civ. P. 68

for a lump sum of $500. On January 23, 2013, the school district and Mallard's attorney, William Vogelzang (“Vogelzang”), asked the appellants to hold off on accepting the offer because “my client may be having second thoughts about this.” Stipulation to Judgement Emails, R. 76-4, Pg. ID# 822. Later on January 23, 2013, the appellants purported to accept the offer. In the acceptance, the appellants wrote the following:

Plaintiffs accept in full the Offer of Judgment filed by Defendants Allegan Public School District, Kevin Harness, and Jim Mallard on January 22, 2013 for judgment to be entered in favor of Plaintiffs and against Defendants Allegan Public School District, Kevin Harness, and Jim Mallard. (Doc. # 64). Plaintiffs request that the Five Hundred and 00/100 ($500) be distributed as follows: $2 to Plaintiffs State Representative David Agema, Elizabeth Griffin, and Willis Sage representing nominal damages to each Plaintiff for Claims 1 and 2, and $494 to Plaintiff Mark Gurley representing nominal damages for Claims 1 and 2, as well as $492 as contribution to Claim 3.

January 23 Notice of Acceptance of Offer of Judgment, R.67, Pg. ID# 730.

On January 24, 2013, the school district and Mallard filed a motion to withdraw their offer of judgment. They claimed that “[d]efendants were not fully apprised of the terms, conditions and consequences of the Offer of Judgment process by their legal counsel. The Offer of Judgment was made without the full understanding and consent of the parties themselves.” Motion to Withdraw Offer of Judgment, R.70, Pg. ID# 740. Vogelzang added in an affidavit that the offer “was filed without knowledge, consent, and full understanding of the client.” Affidavit of William Vogelzang, R.70-1, Pg. ID # 742. At oral argument, counsel for the school district represented that Vogelzang “never talked to the school at all about making the offer.” April 29 Oral Argument Audio Recording. Counsel also said that Vogelzang's January 23, 2013 email saying that his clients were having “second thoughts” was not “entirely truthful.” Id. The clerk did not enter judgment. On January 25, 2013, the appellants filed a second acceptance without the original request to divvy the $500 up individually. On April 12, 2013, the district court granted the motion to withdraw offer of judgment. The district court concluded that the January 23 acceptance was really a counter-offer and hence a rejection. The district court did not address the school district's and Mallard's argument that they did not know about, or consent to Vogelzang's offer to stipulate to judgment. The appellants appealed the district court's grant of the motion to withdraw the offer of judgment to this Court. However, we dismissed the appeal for want of jurisdiction. Agema v. City of Allegan , 552 Fed.Appx. 549, 554 (6th Cir. 2014)

.

c) Summary Judgment

The appellants and the school district and Mallard filed ...