Fritz v. Charter Tp. of Comstock

• Decision Date: 28 January 2010
• Docket Number: No. 08-2578.,08-2578.
• Citation: 592 F.3d 718
• Parties: Sue FRITZ, Plaintiff-Appellant, v. CHARTER TOWNSHIP OF COMSTOCK, a public body; Tim Hudson, individually and in his official capacity as the supervisor for the Charter Township of Comstock, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

592 F.3d 718

Sue FRITZ, Plaintiff-Appellant, v. CHARTER TOWNSHIP OF COMSTOCK, a public body; Tim Hudson, individually and in his official capacity as the supervisor for the Charter Township of Comstock, Defendants-Appellees.

No. 08-2578.

United States Court of Appeals, Sixth Circuit.

Argued: October 9, 2009.

Decided and Filed: January 28, 2010.

ARGUED:

William Frank Piper, II, William F. Piper, PLC, Portage, Michigan,

for Appellant. James R. Nelson, Scholten Fant, P.C., Grand Haven, Michigan, for Appellees.

ON BRIEF:

William Frank Piper, II, William F. Piper, PLC, Portage, Michigan, for Appellant. James R. Nelson, Scholten Fant, P.C., Grand Haven, Michigan, for Appellees.

Before: RYAN, COLE, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which COLE, J., joined.

RYAN, J. (p. 729), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

In this appeal from the district court order granting in part Defendant's Motion for Summary Judgment as to Plaintiff's claims of retaliation for the exercise of her First Amendment rights and denying in part Defendant's Motion as to Plaintiff's related state tort law claims but dismissing those claims without prejudice, Plaintiff, Sue Fritz, argues that the allegations in her complaint were sufficient to state a claim for retaliation under 42 U.S.C. § 1983. For the reasons that follow, we REVERSE the district court's order and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Because this appeal is from what was treated as a motion to dismiss on the pleadings, the facts as set forth in the complaint are taken as true for the purposes of this appeal. Plaintiff was an independent agent for the Farm Bureau Insurance Company ("Farm Bureau") doing business as the Fritz Agency out of an office in her home in Comstock, Michigan. The home had been purchased contingent upon approval for a home office, so Plaintiff applied for and received a Special Use Permit in October 2005.

While Plaintiff's Special Use Permit application was pending, she attended several Comstock Planning Commission and Board of Trustees meetings related to the approval of her home office and some other meetings, during which she noticed procedural irregularities. At one meeting, Defendant Township Supervisor Tim Hudson became irritated with Plaintiff's presence when she was not on the agenda and in another meeting he expressed frustration with Plaintiff's monitoring of the meetings, allegedly in an attempt to intimidate her from attending in the future.

Plaintiff then learned that Comstock zoning restrictions and ordinances restricted the way she could conduct her business with regards to a sign describing the business, employees working in the home office, and the proportion of the home used as an office. She applied for a zoning variance, which was denied, and subsequently Plaintiff was issued a signage violation. Plaintiff applied for a signage variance, which also was denied. During the application process, Plaintiff continued displaying her sign, but then removed it when her variance was denied.

In late 2005 and early 2006, citizens and Township officials allegedly made false statements about Plaintiff and her home office. In July 2006, Plaintiff complained to Defendant Hudson about Township officials falsely accusing her of zoning and other violations and about a neighbor's harassment.

On three occasions—July 28, 2006, November 15, 2006, and March 1, 2007— Defendant Hudson spoke via telephone with Plaintiff's supervisors at Farm Bureau ("Plaintiff's employer" or "employer") about her activities in Comstock, including her attendance of public meetings, public comments and advocacy of her business, her petitioning of Comstock for a redress of grievances related to her business, and her overall public relations with the community of Comstock.¹ In the first phone conversation, Defendant Hudson discussed Plaintiff's comments in planning commission meetings, a petition in the neighborhood against Plaintiff, and a letter to the editor written by Plaintiff in which Defendant Hudson alleged she "bashed" Comstock. (Dist.Ct.Doc. No. 1, Compl. ¶¶ 25-26). Defendant Hudson said that if Plaintiff would "tone down her speech and remove her sign, her problems might go away." (Dist.Ct.Doc. No. 1, Compl. ¶ 27). In the second phone call, Defendant Hudson emphasized that Plaintiff's public comments and her petitioning for redress of grievances would create adverse consequences for her and Farm Bureau from a "public relations perspective." (Dist.Ct. Doc. No. 1, Compl. ¶ 32). Finally, in the third phone conversation, Defendant Hudson again commented on the same issues and warned that Farm Bureau's presence in Comstock was in jeopardy because of Plaintiff's conduct inasmuch as the community was "allegedly in an uproar about it." (Dist.Ct.Doc. No. 1, Compl. ¶¶ 34-35).

Between the first and second phone conversations in September 2006, another Comstock Planning Commission member, Steve Gazdeg, spoke with Plaintiff's employer to express displeasure that Plaintiff had brought her attorney to a Planning Commission meeting.

After the first phone call, Plaintiff's employer spoke with her about changing her behavior in the community, and three weeks after the third conversation Plaintiff's employer terminated her relationship with Farm Bureau because of her "controversial community relations with [her] neighbors and with the local governmental unit." (Dist.Ct.Doc. No. 1, Compl. ¶¶ 30, 39).

Plaintiff's attendance at public meetings and her comments in public forums and in the press began prior to, but continued after the phone conversations and after her termination by Farm Bureau. Before the first phone conversation, she contacted Defendant Hudson on several occasions to complain about Comstock officials accusing her of zoning and other violations and to complain about harassment from a neighbor. After the second conversation, in January 2007, Plaintiff criticized Comstock administrators in a public meeting, which was reported in a local newspaper. Following her termination, Plaintiff attended a Comstock public meeting in April 2007 and engaged in a heated discussion with a Comstock resident, during which time the video camera Plaintiff brought to record the meeting was broken.

Plaintiff filed this lawsuit seeking damages, injunctive relief, and attorney's fees on December 14, 2007 in the United States District Court for the Western District of Michigan alleging that the Charter Township of Comstock ("Comstock") and its Supervisor, Tim Hudson, engaged in unlawful retaliation, under 42 U.S.C. § 1983, against her for exercising her First Amendment rights by speaking critically of Comstock in public forums and in the press and that this retaliatory conduct also resulted in several state tort law violations raised under supplemental jurisdiction.

On May 1, 2008, Defendants Comstock and Hudson filed a motion that was styled as a Motion for Summary Judgment, but which the court treated as a motion for judgment on the pleadings under Fed. R.Civ.P. 12(c) since Defendants relied upon that rule and did not offer any matters for consideration beyond the pleadings. On November 26, 2008, the district court granted Defendant's motion as to the retaliation claims, but denied it as to the state tort law claims, electing instead to dismiss those claims without prejudice under its discretionary power to decline jurisdiction over supplemental state law claims when the federal claim has been dismissed. Fritz v. Charter Tp. of Comstock, 2008 WL 5083503 at *5 (citing Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 583 (6th Cir.2007)); see also Musson Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1254-55 (6th Cir.1996).

Plaintiff filed notice of appeal on December 10, 2008, appealing only the district court's ruling as to the retaliation claim.²

DISCUSSION

Defendant's Motion to Dismiss Regarding the First Amendment Retaliation Claim

A. Standard of Review

Appeals from motions to dismiss on the pleadings under Fed.R.Civ.P. 12(c) are reviewed de novo, pursuant to the same standards that should have been applied in the district court. Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir.2008). The standard of review for a Rule 12(c) motion is the same as for a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511-12 (6th Cir.2001) (citing Mixon v. Ohio, 193 F.3d 389, 399-400 (6th Cir.1999)). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir.2007) (internal citations and quotation marks omitted).

The factual allegations in the complaint need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead "sufficient factual matter" to render the legal claim plausible, i.e., more than merely possible. Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). However, "a legal conclusion couched as a factual allegation" need not be accepted as true on a motion to dismiss, nor are recitations of the elements of a cause of action sufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Delay v. Rosenthal Collins Group, LLC., 585 F.3d 1003, 1005-06 (6th Cir.2009).

B. Plaintiff's Complaint Was Sufficient to State a Claim for First Amendment Retaliation

To survive a motion to dismiss a claim under 42 U.S.C. § 1983, the plaintiff must allege two elements: 1) the defendant acted under color of state law; and 2) the defendant's...