Griffin v. Reznick
| Decision Date | 02 December 2008 |
| Docket Number | Case No. 1:08-cv-50. |
| Citation | 609 F.Supp.2d 695 |
| Parties | Lynn B. GRIFFIN and Suanne J. Griffin, Plaintiffs, v. Robert J. REZNICK, Thomas J. Royal II, Larry Nielson, Eric King, Due Process of Michigan Inc., County of Genessee, County of Gladwin, County of Eaton, City of Coleman, Jody Mann, Wienner & Gould P.C., Seth D. Gould, and David H. Ellenbogen,<SMALL><SUP>1</SUP></SMALL> Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Matthew S. DePerno, DePerno Law Office PLLC, Mattawan, MI, for Plaintiffs.
Bryan D. Marcus, Bryan D. Marcus PC, Southfield, MI, Thomas R. Meagher, Foster Swift Collins & Smith PC, James L. Dyer, Johnson Rosati Labarge Aseltyne & Field PC, Lansing, MI, H. William Reising, Plunkett Cooney, Flint, MI, Allan C. Vander Laan, Cummings McClorey Davis & Acho PLC, Grand Rapids, MI, Seth D. Gould, Wienner & Gould PC, Rochester, MI, Thomas R. Paxton, Garan Lucow Miller PC, Detroit, MI, for Defendants.
AMENDED
Granting in Part and Denying in Part Nielson & Royal's Motion for Summary Judgment:
Finding that Royal & Nielson Complied with Local Civil Rule 7.1; Declining to Consider Plaintiffs' Request for Rule 11 Sanctions; Holding that Michigan's Res Judicata Doctrine Does Not Preclude the Plaintiffs' Claims; Dismissing the Plaintiffs' FDCPA Claim as Time-Barred
This is a federal civil-rights and fair debt collection practices action against fifteen defendants. In June 2008, three of the defendants — Seth D. Gould ("Gould"), the firm Wienner & Gould, P.C. ("W & G"), and David Ellenbogen ("Ellenbogen"), collectively "the Wienner defendants" — moved to dismiss the complaint as to them, or in the alternative for summary judgment as to them, on the ground that a prior state-court ruling is res judicata under Michigan common law. By opinion issued October 28, 2008, 2008 WL 4741738, this court denied the motion of Gould, W & G, and Ellenbogen.
On September 24, 2008, two other defendants — Thomas J. Royal II ("Royal") and Larry Nielson ("Nielson") — filed a motion for summary judgment. Royal and Nielson contend that all of the Griffins' claims are barred by Michigan's doctrine of res judicata, and that their claim under the Fair Debt Collection Practices Act ("FDCPA") is barred by 15 U.S.C. § 1692k(d)'s one-year statute of limitations. For the reasons that follow, the court will deny Royal and Nielson's motion in part and grant it in part. Specifically, the court rejects Royal and Nielson's res judicata argument but agrees that the Griffins' FDCPA claim is time-barred.
Plaintiff Lynn Griffin owned Seldom Rest Farms, Inc. ("Seldom Rest") when it financed the purchase of a John Deere combine through former defendant John Deere Credit, Inc. ("Deere") in 1999. In September 2003, Deere sued Seldom Rest in the Circuit Court of Eaton County, Michigan, claiming breach of the security agreement pertaining to the combine, represented by the law firm of Wienner & Gould, P.C. ("W & G", also a defendant in the instant case). In April 2004, Deere won a judgment against Seldom Rest for about $97,600; after applying credits from the sale of the combine, the balance due from Seldom Rest to Deere was about $39,400.
Deere hired defendants Due Process of Michigan, Inc. ("DPM") and Robert J. Reznick ("Reznick") to collect on the remainder of the judgment against Seldom Rest. On December 22, 2005, DPM and Reznick attempted to collect the judgment at the corporate address of Seldom Rest, which was also the Griffins' home at the time.
Seldom Rest filed a motion in Michigan state court, seeking the return of seized property and the imposition of sanctions for alleged excessive fees charged by Deere. Seldom Rest contended that the individuals who seized the property were not authorized to do so. After an evidentiary hearing, the state court issued an opinion in April 2007 and ordered Deere to return a truck and $5,518 that its agents had seized from the Griffins. After discussing MICH. CT. R. 2.103, MICH. CT. R. 3.106(B), and MICH. COMP. LAWS 600.6001, and Michigan common law, the state court wrote, in part,
The Court finds that the Plaintiff's agents were authorized by statute and court rule to serve the writ.
While the testimony of witnesses varied, the Court is not clear as to what happened at the Griffin home on the date in question. Much of the testimony was contradictory and self-serving. Each side's testimony exaggerates their positions.2
The Court finds that the Plaintiff's agents improperly seized an asset that was not the property of the Defendant, Seldom Rest Farms, Inc. They also used this improper seizure to negotiate an agreement to return both vehicles if a $5,000 check cleared. The check cleared but only one vehicle was returned.
Also the agents improperly took $5178 in cash from Richard Seume. The Court finds his testimony credible as to the manner in which the money was taken from him. He was coerced and intimidated by the agents.
The Plaintiff's agents charged the following fees:
Statutory services and mileage: $116.01
Statutory percentage of line 6 fees: $365.54
Statutory expenses: $983.00
The Plaintiff concedes that its agents' fees were excessive by $49.26. In addition the balance of the fees and expenses charged are not proper inasmuch as the seizure of the property was not proper.
The Defendant requests treble damages against the plaintiff under 600.2559(b). However, the sanctions under the statute are directed against the person serving the process, not the Plaintiff.
* * *
The parties should be placed where they were prior to the improper seizure. The vehicles and money are to be immediately returned.
The judgment continues to be outstanding and the Plaintiff still has remedies. However, the Plaintiff should not benefit from the improper seizure.
No treble damages are awarded against the Plaintiff as the statute provides the remedy against the servers of the writ.
The Court also finds that the servers of the writ were authorized under the statute to do so. No sanctions are awarded on this basis.
This Court denies Defendant's request for actual attorney fees' sanctions, but allows Defendants its statutory costs and fees.
Seldom Rest did not file a motion for reconsideration or a motion for relief from judgment, nor did they appeal to the Michigan Court of Appeals. About one year later, in March 2008, the Griffins filed the state-court action which was removed to this court.
The Griffins sued Reznick and all the other defendants in the Circuit Court of Eaton County, Michigan, in late 2007, and defendants Seth D. Gould ("Gould") and the firm Wienner & Gould, P.C. ("W & G") timely removed the case to this court in January 2008. All other defendants who were served timely filed answers that same month, except Eaton County and Thomas J. Royal II, who timely filed answers in February and March 2008, respectively. Defendants Gould, W & G, and David Ellenbogen filed a motion to dismiss or for summary judgment, which the court denied by opinion and order issued on October 28, 2008.
On September 24, 2008, defendants Royal and Nielson moved for summary judgment as to the entire complaint on the ground of res judicata, and for summary judgment as to the FDCPA claim alone on the ground of untimeliness. On October 22, 2008, the Griffins filed a timely opposition brief, and on November 5, 2008 Royal and Nielson filed a timely reply brief.
Summary judgment is proper if the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Appalachian Railcar Servs., Inc. v. Consumers Energy Co., 602 F.Supp.2d 829, 845 (W.D.Mich.2008) (Maloney, J.) ("ARS") (quoting Conley v. City of Findlay, 266 Fed.Appx. 400, 404 (6th Cir.2008) (Griffin, J.)) (quoting FED. R. CIV. P. 56(c)). Accord Brown v. Brown, 478 Mich. 545, 739 N.W.2d 313, 316 (2007).
The movant has the burden of proving the absence of genuine issues of material fact and its entitlement to judgment as a matter of law. ARS, 602 F.Supp.2d at 845 (citing Conley, 266 Fed.Appx. at 404) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). However, the movant "need not support its motion with affidavits or other materials `negating' the opponent's claim"; rather, the movant's initial burden is only to "point out to the district court that there is an absence of evidence to support the nonmoving party's case...." Wilson v. Continental Dev. Co., 112 F.Supp.2d 648, 654 (W.D.Mich.1999) (Bell, J.) (citing Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th Cir.1993)), aff'd o.b., 234 F.3d 1271, 2000 WL 1679477 (6th Cir.2000).
Once the movant has met its burden, the non-movant must present "significant probative evidence" to demonstrate that there is more than "some metaphysical doubt as to the material facts." ARS, 602 F.Supp.2d at 845 (citing Conley, 266 Fed.Appx. at 404 (quoting Moore, 8 F.3d at 339-40)). The non-movant may not rest on the mere allegations of his pleadings. Wilson, 112 F.Supp.2d at 654 (citing FED. R. Civ. P. 56(e) and Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995)).3 Moreover, the mere existence of an alleged factual dispute between the parties will not defeat an otherwise properly supported summary judgment motion; there must be some genuine issue of material fact. ARS, 602 F.Supp.2d at 845 (citing Conley, 266 Fed.Appx. at 404 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))).
The court must accept the non-movant's factual allegations, ACLU v. NSA, ...
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