City of Highland Park v. Menge, 21-10528

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Docket Number21-10528
PartiesCITY OF HIGHLAND PARK Plaintiff, v. BRIAN MENGE, Defendant.
Decision Date21 March 2022


BRIAN MENGE, Defendant.

No. 21-10528

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

March 21, 2022




This matter is before the Court on Defendant Brian Menge's motion for sanctions (Dkt. 13), Plaintiff City of Highland Park's motion to remand (Dkt. 15), and Menge's motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. 17). For the reasons stated below, the Court denies the motion for sanctions, denies the motion to remand, grants the motion to dismiss, and dismisses this action without prejudice.[1]


The City employs Menge within its police department. Am. Compl. (Dkt. 7). This declaratory-judgment action-and other related actions-stem from Menge's transfer from the detective bureau of the police department to the patrol division. Id. ¶ 20, 22. In January 2021, Menge filed suit against the City, alleging in part that he was demoted and/or transferred from the detective


bureau to the patrol division without cause and without proper notice and a hearing, in violation of his Fourteenth Amendment procedural and substantive due process rights as well as his rights under Michigan's Veteran Preference Act (VPA), Mich. Comp. L. § 35.402 (No. 21-10152, Dkt. 15). Menge's suit against the City, case No. 21-10152, is pending in this Court. In addition, Menge's union filed before the Michigan Employment Relations Commission an unfair labor complaint related to his move from the detective bureau to the patrol division. Am. Compl. ¶ 52; Mot. to Remand at 3-4; Resp. to Mot. to Remand at 3.

In March 2021, the City filed the present declaratory judgment action in Michigan's Wayne County Circuit Court. State-Ct. Compl. (Dkt. 1-1). Menge removed the action to this Court. Notice of Removal (Dkt. 1). The City alleges that Menge is attempting to litigate the same procedural due process claim in multiple forums. Am. Compl. ¶¶ 47-48. In its amended complaint filed post-removal, the City seeks declaratory relief to determine whether: (i) the City violated Menge's rights under the VPA; (ii) Menge has a right under the statute to his position as a detective within the City police department; (iii) the City violated the statute; (iv) Menge is entitled to a remedy under the statute; and (v) state court is the proper forum to adjudicate a claim asserting a violation of the statute. Am. Compl. ¶ 54.[2]

In August 2021, Menge filed another suit against the City in this Court, case No. 21-11963, alleging that the City violated his First Amendment rights and his Fourteenth Amendment


procedural and substantive due process rights by retaliating against him for filing case No. 21-10152. (No. 21-11963, Dkt. 1-1).

Three motions filed in the declaratory judgment action are now before the Court. The first is Menge's motion for sanctions. The second is the City's motion to remand. The third is Menge's motion to dismiss. The Court discusses each motion in turn.


A. Motion for Sanctions

In the motion for sanctions, Menge contends that an allegation in the City's amended complaint lacks evidentiary and factual support, and, therefore, sanctions are warranted under Federal Rule of Civil Procedure 11. Mot. for Sanctions at 5-7. Specifically, the amended complaint alleges that “Plaintiff filed a motion to dismiss the removal.” Am. Compl. ¶ 42. The City later filed a motion to remand, but at the time that it filed the amended complaint, it had not filed a motion to dismiss the removal. Menge states that, over the course of approximately one week, he emailed the City's counsel three times requesting that counsel stipulate to striking this paragraph and that counsel refused to do so. Mot. for Sanctions at 4-5. He argues that, even if counsel inadvertently or mistakenly included the false allegation in the pleading, counsel behaved unreasonably when he refused to correct the pleading. Id. at 7. Menge requests that the Court enter an order striking paragraph 42 from the amended complaint and directing the City to pay the costs and attorney fees incurred in connection with the motion for sanctions. Id.

Rule 11 states the following:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances


(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]

Fed. R. Civ. P. 11(b)(1)-(3). For purposes of assessing whether sanctions should be awarded, counsel's conduct is measured by an objective standard of reasonableness under the circumstances. INVST Fin. Grp., Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 401 (6th Cir. 1987).

A motion filed pursuant to Rule 11 must be served on opposing counsel at least 21 days before it is filed with the court. Fed.R.Civ.P. 11 (c)(2). “[I]f the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service, ” the motion must not be filed. Id. This requirement is often referred to as the “safe harbor” provision, and it provides that the target of the motion has the opportunity to revise or withdraw otherwise sanctionable filings. Fed.R.Civ.P. 11 advisory committee notes to 1993 Amendments. The rule and the advisory committee notes indicate that the motion itself must be served. Less formal notice does not satisfy the safe harbor requirement, although the advisory committee notes the expectation that informal notice will generally precede service of the motion. Id. “If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.” Fed.R.Civ.P. 11(c)(1).

Menge provides no indication that he served the Rule 11 motion on plaintiff's counsel at least 21 days before filing the motion with the Court. Rule 11 sanctions are unavailable when the moving party fails to comply with the safe harbor filing requirements. Ridder v. City of Springfield, 109 F.3d 288, 297 (6th Cir. 1997)


(holding that, in “adher[ence] to the rule's explicit language and overall structure, ” “sanctions under Rule 11 are unavailable, unless the motion for sanctions is served on the opposing party for the full twenty-one day ‘safe harbor' period before it is filed with or presented to the court”).

Even if Menge had complied with these requirements, sanctions are not warranted under Rule 11. The advisory committee notes emphasize that Rule 11 motions should not be prepared for minor or insignificant violations of the rule. Fed.R.Civ.P. 11 advisory committee notes to 1993 Amendments. They also state that, in deciding whether to impose sanctions, a court may consider factors such as whether the improper conduct “was part of a pattern of activity, or an isolated event” and whether it “infected the entire pleading, or only one particular count or defense.” Id. The improper conduct here involved one allegation in the amended complaint that did not infect the entire pleading. The City's counsel alleged that the City filed a motion to remand, rather than alleging that the City intended to file a motion to remand. And the City did subsequently file a motion to remand. Even Menge does not argue that the allegation at issue was somehow material or significant. The Court finds that this conduct is not so objectively unreasonable under the circumstances as to warrant sanctions under Rule 11.

Therefore, the Court denies Menge's motion for sanctions.

B. Motion to Remand

The City argues that this action should be remanded to Michigan's Wayne County Circuit Court because the Court lacks jurisdiction to decide the matter. Mot. to Remand at...

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