Amen v. City of Dearborn

• Decision Date: 24 March 1976
• Docket Number: No. 74-1650,74-1650
• Parties: Katherine AMEN et al., Plaintiffs-Appellees, v. CITY OF DEARBORN, a Municipal Corp., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 554

532 F.2d 554

Katherine AMEN et al., Plaintiffs-Appellees, v. CITY OF DEARBORN, a Municipal Corp., et al., Defendants-Appellants.

No. 74-1650.

United States Court of Appeals, Sixth Circuit.

Argued April 17, 1975.

Decided March 24, 1976.

Joseph Burtell, Carl P. Garlow, Lawrence B. DiBasio, Dearborn, Mich., James E. Tobin, Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendants-appellants.

Michael J. Barnhart, Center for Urban Law & Housing, Detroit, Mich., Sam Tsoutsanis, Marilyn Mosier, Abdeen M. Jabara, Detroit, Mich., Elizabeth Alexander, Madison, Wis., for plaintiffs-appellees.

Before PECK, McCREE and ENGEL, Circuit Judges.

JOHN W. PECK, Circuit Judge.

Plaintiffs-appellees filed the instant complaint in district court claiming that their properties, in an urban renewal area, had been "taken" without just compensation. Named defendants were the City of Dearborn, its mayor and city council, its plan commission and planner, its building and safety division and its superintendent, its community development department and its director, its licenses, weights and measures department and its director, its sanitation department and its director, its housing department and its director, and the city school board. ¹ By pretrial memorandum opinion and order, the district court certified plaintiffs as representing six subclasses. After more than nineteen trial days which produced more than 2,600 pages in transcript, the district court found jurisdiction through 28 U.S.C. §§ 1331, 1343(3) (1970), reaffirmed its class action order, found that certain defendants' activities combined to "take" certain plaintiffs' properties without due process, ² and, choosing to exercise its pendent jurisdiction, found that the City had violated the state relocation assistance for displaced persons act, M.S.A. § 8.215(61) et seq., and the state rehabilitation of blighted areas act, M.S.A. § 5.3501 et seq., as incorporated in a city ordinance. By the same opinion and a later judgment, the district court granted far-reaching relief against certain city officials, the city council, and the city plan commission, and their successors, collectively referred to in the opinion and judgment as "the City." The judgment required, inter alia, the City to divest itself of properties it had acquired ³ and to pay those plaintiffs who had sold their properties "the difference between the price paid by the City and the price later determined to be the fair market value of the property at the time of the taking of the property."

On this appeal, the district court's finding of jurisdiction is challenged as are its findings of an unconstitutional "taking" and of state law violations, and its remedy. We find it necessary to discuss only the challenge to jurisdiction.

For jurisdictional purposes, there are two classes of defendants, (1) the "City defendants" consisting of the City, its council, its plan commission, its building and safety division, and four of its departments, ⁴ and (2) the "individual defendants" consisting of the mayor, the city planner, the building and safety superintendent, and directors of four city departments. Similarly, plaintiffs invoked, and the district court found, two jurisdictional bases, the general federal question jurisdictional statute 28 U.S.C § 1331, and the civil rights jurisdictional statute 28 U.S.C § 1343(3).

I. Jurisdiction As To The Parties

Service of Process. Axiomatically, due process requires proper service of process in order to obtain in personam jurisdiction over either the "City defendants" or the "individual defendants." See, e. g., Jaynes v. Jaynes, 496 F.2d 9 (2d Cir. 1974); Backo v. Local 281, United Brotherhood of Carpenters and Joiners, 438 F.2d 176, 180 (2d Cir. 1970), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 99 (1971); Beecher v. Wallace, 381 F.2d 372 (9th Cir. 1967); Surowitz v. New York City Employees' Retirement System, 376 F.Supp. 369, 372 (S.D.N.Y.1974).

Fed.R.Civ.P. 4(d) governs the service of process, providing, in part, that service may be made,

"(1) Upon an individual . . . by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. . . .

"(6) Upon a state or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by law of that state for the service of summons or other like process upon any such defendant.

"(7) Upon a defendant of any class referred to in paragraph (1) . . . , it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state."

Thus, Rules 4(d)(1) and 4(d)(7) govern the service on the "individual defendants," Rule 4(d)(6) the service on the "City defendants."

Rather than reflecting service on the "individual defendants" in compliance with either 4(d)(1) or 4(d)(7) by personal service, "residence" service, agent service, or service in compliance with Michigan law, the marshall's return reflects only that the summons and complaint were served on the secretary to the city clerk and on the city director of elections. Though the amended complaint fails to reflect whether the individuals were sued in their official or their individual capacities, even if they were sued in their official capacities, proper service of process would still be necessary to obtain personal jurisdiction over those officials. Gozdanovic v. Civil Serv. Comm'n, 361 F.Supp. 504 (W.D.Pa.1973); Bell v. Hosse, 31 F.R.D. 181, 184 (M.D.Tenn.1962). As in Hosse, nothing in the record indicates that either the secretary to the clerk or the director of elections was authorized as the individuals' agent for service of process.

The district court also could have acquired jurisdiction over the individual defendants had they voluntarily appeared, but the record, rather than reflecting such a voluntary appearance, reflects that the attorneys for the City, in their answers to plaintiffs' complaint and amended complaint, carefully limited their answer to "defendant City of Dearborn, only." ⁵

Service of process was, however, sufficient to permit the judgment to run against the City and the city council. Admittedly, no "chief executive officer(s)" of those organizations were served. Fed.R.Civ.P. 4(d)(6). Compare Mathias v. City of Milwaukee Dep't of City Development, 377 F.Supp. 497, 499 (E.D.Wis.1974) (service on department commissioner sufficient) with Mendoza v. City of Miami, 483 F.2d 430 (5th Cir. 1973) (service on wives of chief executive officers insufficient) and United States Steel Corp. v. Multistate Tax Comm'n, 367 F.Supp. 107, 118 (S.D.N.Y.1973) (service on commission tax auditor insufficient). But Fed.R.Civ.P. 4(d)(6) also authorizes a government organization to be served "in the manner prescribed by law of that state . . . upon any such defendant." Mich.Comp.Laws Ann. § 600.1925 (1968), and its corollary court rule, Mich.Gen.Court Rule 105.6 (1973), provide that

"(s)ervice of process on public, municipal, quasi-municipal, or governmental corporations, unincorporated boards, or public bodies, may be made by leaving a summons and a copy of the complaint with . . .

"(2) the mayor, city clerk, or city attorney, in the case of cities; . . .

"(8) the president, chairman, secretary, manager or clerk, in the case of any other public body organized or existing under the constitution or any law of this state, when by statute no other method of service is specially provided.

"The service of process may be made on any officer having substantially the same duties as those named or described irrespective of their titles. In any case, service may be made by leaving a summons and a copy of the complaint with a person in charge of the office of any of the above-described officers upon whom service may be made . . . ."

Service on the clerk's office ⁶ surely was sufficient service on the City through Mich.Comp.Laws Ann. § 600.1925(2), as supplemented by the provision that "service may be made by leaving a summons . . . with a person in charge of the office of any of the above-described officers upon whom service may be made." ⁷ Though section 600.1925(2) refers to service "in the case of cities," and though none of the few reported Michigan cases construing section 600.1925 have considered the applicability of 600.1925(2) to city councils or city plan commissions, we consider the service also sufficient on the city council, as such, as the City's legislative body.

Despite federal and Michigan courts' demand for compliance with Fed.R.Civ.P. 4(d)(6) and with Mich.Comp.Laws Ann. § 600.1925, see Mendoza,supra, United States Steel, supra, Brooke v. Brooke, 272 Mich. 627, 262 N.W. 426 (1935), service was arguably sufficient on the city plan commission. Thus, the district court may determine that the plan commission was properly present unless, on remand, it determines that the commission was to its prejudice unaware that it had been named as a party defendant in the litigation.

II. Subject Matter Jurisdiction

Introduction. In addition to acquiring in personam jurisdiction over the parties, federal courts, being courts of limited jurisdiction, must have subject matter jurisdiction.

Civil Rights jurisdiction over "city defendants." The district court properly found that the defendant city could not be sued through section...