In re: William Edmond McCrary
| Decision Date | 31 March 2011 |
| Docket Number | Case No. 08-31241,Adv. Pro. No. 08-03097 |
| Parties | In re: William Edmond McCrary, Debtor. William Edmond McCrary and Jeanne Overweg,Plaintiffs, v. J.M. Jarrard and The City of Flint,Defendants. |
| Court | U.S. Bankruptcy Court — Eastern District of Michigan |
OPINION TEXT STARTS HERE
Honorable Daniel Opperman
DISMISSAL, OR ALTERNATIVELY, FOR SUMMARY JUDGMENT
The City of Flint seeks summary judgment and dismissal on the only counts pending in this action against it—Counts VIII and XII of the Plaintiffs' Third Amended Complaint filed on October 6, 2009.1 Although the Plaintiffs' Third Amended Complaint contains twelve counts, the only counts pled against Defendant City of Flint are Counts VIII and XII.
The parties do not dispute the following relevant facts:
On May 17, 2007, the Plaintiffs, William Edmond McCrary and Jeanne Overweg purchased from the individual Defendant, J.M. Jarrard, real property located at 1036 Dupont Street, Flint, MI, by jointly executing two promissory notes and a first and second mortgage to Defendant. At some point thereafter, the Plaintiffs failed to make payments to Defendant Jarrard, who then initiated foreclosure proceedings against the Plaintiffs.
On September 20, 2007, Plaintiff, William Edmond McCrary filed a voluntary Chapter 13 petition, which was assigned the case number 07-33169. On or about August 8, 2007, Defendant Jarrard filed a small claims action against only Plaintiff Jeanne Overweg, in the 68th District Court, which was assigned Case No. 07-0892-SC, for non-payment of the promissory notes. On September 25, 2007, Magistrate Tanille Brooks of the 68th District Court held a hearing on case no. 07-0892-SC, and awarded a $3,000 judgment against Plaintiff Overweg and in favor Defendant Jarrard. Plaintiff Overweg appealed Magistrate Brooks' decision, which was assigned to Judge Herman Marable of the 68th District Court, who held at least one hearing on the appeal. Judge Marable ultimately did not rule on the appeal as Defendant voluntarily dismissed that lawsuit, ostensibly because Plaintiff McCrary, as obligor on the note concerning the residence, had filed a Chapter 13 bankruptcy.
While Plaintiff Overweg's appeal of Case No. 07-0892-SC was pending, Defendant Jarrard filed a second small claims action in the 68th District Court on October 2, 2007, against only Plaintiff Overweg, Case No. 07-1045-SC, for $1,885.23 in legal fees he allegedly incurred due to the default under the promissory notes. This action was ultimately dismissed after Magistrate Brooks determined that a previous judgment had been obtained by Defendant Jarrard against Plaintiff Overweg, and that any claim for attorney fees in small claims court was not allowed.
Plaintiffs assert that both Defendant Jarrard and the City of Flint had notice of the bankruptcy and proceeded to act in a manner that violated the stay-Defendant Jarrard by pursuing the indicated state court actions, as well as other alleged actions taken against Plaintiffs, and Defendant City of Flint, through the 68th District Court, by presiding over these cases and entering judgments in favor of Defendant Jarrard.
On February 15, 2008, the Plaintiff McCrary's bankruptcy Case No. 07-33169 was dismissed before his Chapter 13 plan was confirmed. On March 6, 2008, Defendant Jarrard dismissed both state court civil actions against Plaintiff Overweg. On March 27, 2008, Plaintiff McCrary filed a second Chapter 13 petition, which was assigned Case No. 08-31241. Plaintiff McCrary voluntarily converted this second bankruptcy case to Chapter 7 on March 25, 2009.
On June 12, 2008, Plaintiffs commenced this adversary proceeding by the filing their original complaint against the individual Defendant Jarrard. On October 6, 2009, Plaintiffs filed their Third Amended Complaint. In the Third Amended Complaint, Plaintiffs added the City of Flint as a defendant. Although the Third Amended Complaint contains twelve counts, only Counts VIII and XII apply to the City of Flint.
In Count VIII, Plaintiffs seek to recover damages for an alleged violation of the automatic stay and co-debtor stay by both Defendant Jarrard, and Defendant City of Flint.
Count XII is pled only against Defendant City of Flint. Count XII is grounded on a violation of the Plaintiffs' civil rights under 42 U.S.C. § 1983, which is rooted in Defendant City of Flint's violation of the co-debtor stay through the policies, practices, and customs engaged in by its agents/ employees, including Magistrate Brooks and Judge Marable. Under Count XII, Plaintiffs seek an award of "damages consistent with the injuries suffered, costs, and attorney fees pursuant to the Civil Rights Attorneys' Fees Awards Act of 1976."
In support of its Motion for Summary Judgment, the City of Flint makes two arguments. First, the City argues that it is not liable for the actions of Magistrate Brooks and Judge Marable taken in their capacity of judicial officers for the 68th District Court because: (a) Neither Magistrate Brooks or Judge Marable are employees or agents for the City of Flint; and (b) the City of Flint is not responsible for and has no administrative authority over the policies, practices, or customs of the 68th District Court. In support of this argument, the City relies on: (1) The 1963 Constitution of the State of Michigan, Article 6, § 26; (2) Mich. Comp. Laws §§ 600.8101 600.8104(1)(b); (3) Judicial Attorneys Assoc. v. State of Michigan, 459 Mich. 291, 586 N.W.2d 894 (1998); (4) Pucci v. Michigan Supreme Court, 601 F. Supp.2d 886 (E.D. Mich. 2009); and (5) the Chief Judge Rule, MCR 8.110.
Second and alternatively, the City of Flint argues that if the Court concludes that Magistrate Brooks and Judge Marable are its employees, the Plaintiffs' claims against it still must fail because they are barred by absolute judicial immunity. In support of this argument, the City relies on Ireland v. Tunis, 113 F.3d 1435 (6th Cir. 1997), and Mich. Comp. Laws § 691.1407.
The City also requests an award of attorney fees and costs that it unnecessarily incurred as a result of the Plaintiffs' lack of due diligence and investigation in suing the proper government unit responsible for the actions of Magistrate Brooks and Judge Marable.
On May 27, 2010, the City of Flint filed the Affidavit of Judge Archie L. Hayman, the Chief Judge of the 68th District Court as a supplemental exhibit to its Summary Judgment Motion.
In their response to the City of Flint's Summary Judgment Motion, Plaintiffs focus primarily on their Section 1983 claim as alleged in Count XII of the Third Amended Complaint. In their response, the Plaintiffs assert:
The City of Flint was added to the Adversary Proceedings in October 2009 for violations of 42 U.S.C. § 1983. Specifically, the City of Flint was joined to the adversary proceeding because it continued the actions against Jeanie [sic] Overweg despite notice that it was divested of jurisdiction by the filing of a bankruptcy case and the treatment of the real property underlying the collection action. Despite this notice, the defendant City allowed the continuance of state court collection proceedings against the co-debtor, Jeanie Overweg [sic], in violation of the co-debtor stay. 11 U.S.C. § 1301.
The Plaintiffs contend that genuine issues of material fact exist:
Specifically, Plaintiffs contend that: (1) the Magistrate Brooks' and Judge Marable's status as employees of the City of Flint is not relevant to their Section 1983 action due to Plaintiffs' allegations of "repeated refusal" to recognize the bankruptcy stay and the jurisdiction of the bankruptcy court; (2) any claim of judicial immunity for the actions of Magistrate Brooks and Judge Marable is also not relevant to their Section 1983 action because Plaintiffs assert that any actions taken by these judicial officers were the result of an official policy and/or custom of the City of Flint, rather than taken on an individual basis; and (3) judicial immunity is not relevant because the 68th District Court lacked subject matter jurisdiction over the small claims actions during the pendency of the bankruptcy case of Plaintiff McCrary.
In their response to the City of Flint's Motion for Summary Judgment, Plaintiffs admit that they failed to supply any documentation to Magistrate Brooks or Judge Marable (or any other personnel of the 68th District Court) to substantiate Plaintiff McCrary's then bankruptcy Case No. 07-33169, which was pending during the subject state court proceedings. The Plaintiffs contend that neither Magistrate Brooks, Judge Marable, or any other 68th District Court personnel requested such documentation from the Plaintiffs, or advised the Plaintiffs what kind of proof was required to be provided by them to the 68th District Court.
In support of their position that the City of Flint is the proper Defendant, the Plaintiffs rely on (1) admission made by the City of Flint about the employment status of Magistrate Brooks; (2) certain admissions made by the 68th District Court Administrator, Paula McGlown, during her deposition including that Magistrate Brooks is a City of Flint employee; (3) the...
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