Bey v. Smith

• Decision Date: 21 October 2011
• Docket Number: Civil Action No. 10-14641
• Parties: Alim Bey, Plaintiff, v. Judge Hon. Virgil C. Smith Jr., Raymond J. Wojtowicz-Wayne County Treasurer, Wayne County Sheriff, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Alim Bey, Plaintiff,

v. Judge Hon. Virgil C. Smith Jr., Raymond J. Wojtowicz-Wayne County Treasurer,Wayne County Sheriff, Defendants.

Civil Action No. 10-14641

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: October 21, 2011

District Judge Nancy G. Edmunds

Magistrate Judge Mona K. Majzoub

REPORT AND RECOMMENDATION

Before the Court is Defendants Raymond J. Wojtowicz-Wayne County Treasurer and Wayne County Sheriff's motion to dismiss or, alternatively, motion to strike Plaintiff Alim Bey's complaint. (Dkt. 8.) Plaintiff has not filed a response. The Court has been referred this matter pursuant to 28 U.S.C. § 636(b)(1)(B). (Dkt. 4.) The Court has reviewed the pleadings, dispenses with a hearing, and is now ready to issue this report and recommendation.¹

I. Recommendation

Defendants argue that the Court must dismiss Plaintiff's complaint because the Court lacks subject matter jurisdiction over Plaintiff's claims or because the complaint fails to state a claim. The Court rejects Defendants' first argument, finding that it does have subject matter jurisdiction over Plaintiff's claims. But because Plaintiff's complaint fails to allege facts necessary to survive amotion to dismiss, and does not give Plaintiff a private cause of action, the Court recommends that Defendants' motion to dismiss be granted and that Plaintiff's complaint be dismissed against all the named defendants.²

II. Report

A. Facts

On November 11, 2010, Plaintiff filed a complaint against Defendant Virgil C. Smith, Jr., Raymond J. Wojtowicz, the Wayne County Treasurer, and the Wayne County Sheriff.³ (Dkt. 1., Compl.) In his complaint, Plaintiff alleges several counts: fraud, violation of the Fair Debt Collection Practices Act (FDCPA), violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), violations of four additional criminal statutes, and a violation of 42 U.S.C. § 1983.

Plaintiff alleges that, around March 18, 2010, "Defendant" and "its undisclosed associate," foreclosed on a piece of property through an advertised, "public auction, held privately."⁴ (Compl. at 1.) Plaintiff states that the Wayne County Sheriff's Department conducted the auction. (Id.)

Before the sale, Plaintiff states that Defendants notified Plaintiff that the sale was going to take place and requested $9,384.54 "as the relief sought for their alleged losses." (Id.)

Also before the sale, Plaintiff states that he asked Defendants for documents: relating to the foreclosure; evidencing Defendants' interest; and relating to Plaintiff's liability. (Id.)

Plaintiff alleges that Defendants did not respond to his request for information. (Id. at 2.)

Plaintiff has attached several relevant documents to his complaint. The first is a notice of a pending tax foreclosure for 15690 W. Grand River, Detroit, Michigan, property allegedly belonging to Plaintiff. (Compl.) The next document is a tax bill from the City of Detroit to Plaintiff. (Compl.) The bill requests that payment be made payable to Defendant Wojtowicz, Wayne County Treasurer. (Id.) Another document indicates that the 15690 W. Grand River property was sold on October 27, 2010. (Id.) And finally, there are documents that show that Plaintiff filed a previous lawsuit regarding the foreclosure on 15690 W. Grand River, and that Defendant Virgil Smith, Jr., was the presiding judge over that case in Michigan state court. (Id.)

B. Standards

1. Rule 12(b)(1) subject mater jurisdiction standard

Because Defendants have challenged jurisdiction pursuant to Rule 12(b)(1), Plaintiff bears the burden of proving jurisdiction to survive the motion. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990). "[A] plaintiff's burden to prove federal question subject matter jurisdiction is not onerous." Metro Hydroelec. Co., LLC v. Metro Parks, 541 F.3d 605, 610 (2008) (quoting Kokkonen v. Guardian Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994)). Plaintiff must "show that the complaint alleges a claim under federal law and that the claim is substantial." Michigan Souther R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th Cir. 2002) (internal quotation marks and citations omitted). "A federal claim is substantial unless prior decisions inescapably render [it] frivolous." Metro Hydroelec., 541 F.3d at 610(quotation marks and citation omitted, insertion in original.) Plaintiff can survive the motion to dismiss by showing "any arguable basis in law for the claims set forth in the complaint." Id. (internal quotation marks and citations omitted). If the Court decides that it lacks subject matter jurisdiction, it must dismiss the case. Fed.R.Civ.P. 12(h)(3).

Rule 12(b)(1) motions fall into two general categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).

A facial attack is a challenge to the sufficiency of the pleading itself. On such a motion, the court must take the material allegations of the [complaint] as true and construed in the light most favorable to the nonmoving party.

A factual attack . . . is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction. On such a motion, no presumptive truthfulness applies to the factual allegations and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.

Id. (emphases and citations removed).

2. Rule 12(b)(6) motion to dismiss standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. In a light most favorable to the plaintiff, the court must assume that the plaintiff's factual allegations are true and determine whether the complaint states a valid claim for relief. See Albright v. Oliver, 510 U.S. 266 (1994); Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th Cir. 1996). To survive a Rule 12(b)(6) motion to dismiss, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and emphasis omitted). See also Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). "[T]hat a court must accept as true all of theallegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of all the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, ___ U.S. ____, 129 S. Ct. 1937, 1949 (2009). The court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 1950 (internal quotation marks and citation omitted). Moreover, "[o]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Id. (internal quotation marks and citation omitted). Thus, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. In sum, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Id. at 1949 (internal quotation marks and citation omitted).

C. Analysis

Defendants assert two bases for dismissal. They first argue that the Court lacks subject matter jurisdiction. The Court therefore must determine whether it has jurisdiction over Plaintiff's claims before it discusses Defendants' second argument-whether the complaint fails to state a claim. See Moir v. Greater Cleveland Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (stating that a courtis "bound to consider [a] 12(b)(1) motion first, since [a] 12(b)(6) challenge becomes moot if [the] court lack subject matter jurisdiction.").

1. The Court has subject matter jurisdiction over Plaintiff's claims

Defendants argue that the Court lacks subject matter jurisdiction because "Plaintiff's complaint regarding the tax foreclosure and auction of certain properties . . . is premised on a matter arising under state law and is wholly within the province of state courts." (Dkt. 8, Defs.' Mot. at 2.) Defendants argue that 28 U.S.C. § 1341 prohibits the Court from exercising jurisdiction over this case. That statute states that "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S.C. § 1341.

Despite their argument, Defendants have not supported their position with any case law suggesting that the Court must abstain from this action. See BellSouth Telecommunications, Inc. v. Farris, 542 F.3d 499, 501-03 (6th Cir. 2008) (giving examples of situations to which 28 U.S.C. § 1341 would apply.) In BellSouth, the Sixth Circuit held that 28 U.S.C. § 1341 applies "only in cases . . . in which state taxpayers seek federal-court orders enabling them to avoid paying state taxes." 542 F.3d at 501 (quoting Hibbs v. Winn, 542 U.S. 88, 107 (2004) (emphasis in BellSouth)). Here, 28 U.S.C. § 1341 does not apply. Although Plaintiff's end-goal may be...