Decision Date16 April 1980
Docket NumberNo. G-78-648.,G-78-648.
Citation488 F. Supp. 767
PartiesLAKE LANSING SPECIAL ASSESSMENT PROTEST ASSOCIATION, Plaintiff, v. INGHAM COUNTY BOARD OF COMMISSIONERS, Ingham County Board of Public Works, Office of Drain Commissioners, and Meridian Township, Defendants.
CourtU.S. District Court — Western District of Michigan

Lance Fertig and James D. Lovewell, Lansing, Mich., for plaintiff.

David VanderHaagen of Foster, Swift, Collins & Coey, Lansing, Mich., for Meridian Twp.

Joseph A. Fink of Dickinson, Wright, McKean, Cudlip & Moon, Lansing, Mich., for Ingham County defendants and Office of Drain Commissioner and Co-Counsel for Ingham County Bd. of Public Works.

Larry Salstrom of Peter Cohl and Associates, Lansing, Mich., for Ingham County Bd. of Com'rs, Office of Drain Commissioner and Co-Counsel for Ingham County Bd. of Public Works.


ENSLEN, District Judge.

Plaintiff filed a Complaint on September 15, 1978, seeking to invoke the jurisdiction of this Court, and seeking injunctive and declaratory relief. At approximately the same time Plaintiff filed a substantially similar suit in the State Court seeking the same type of relief, and subsequently, has filed an action in the Michigan Tax Tribunal.

Plaintiff contends, among other things, that Defendants' establishment of a special assessment district was arbitrarily and capriciously formulated in such a manner that certain constitutional rights of the Plaintiff (taxpayers) were violated. Plaintiff also contends that no plain, efficient and speedy remedy exists in the State Courts to redress the wrongs which they (taxpayers) have allegedly suffered.

Plaintiff took no action on its Complaint in this Court, but apparently pursued its State remedies. It appeared before the Circuit Court in Ingham County, Michigan where its Complaint was dismissed by an Accelerated Judgment. Plaintiff then appealed to the Michigan Court of Appeals, where the matter is presently pending. Plaintiff also has the same matter pending before the Michigan Tax Tribunal.

On March 3, 1980 Defendants filed a Motion to Dismiss for lack of subject matter jurisdiction, and also requested Leave to File an Amended Twelfth Affirmative Defense, and to drop the Office of Drain Commissioners as party Defendant.

On April 4, 1980 Plaintiff filed an amended Complaint, adding additional jurisdictional averments and a new claim, Count VII. Plaintiff, at this time, also filed a Memorandum in support of its position. Defendant filed two legal memoranda in support of Defendants' position.

Plaintiff's Motion to Amend its Complaint was granted, during oral argument, on April 11, 1980. Defendants' Motion to Dismiss was granted, following argument, and, consequently, no ruling was made on Defendants' Motions for Leave to Amend, etc.

Essentially Defendants argue that their Motion to Dismiss ought to be granted because:

(1) This Court lacks subject matter jurisdiction, and

(2) 28 U.S.C. § 1341 further bars this Court from taking jurisdiction over Plaintiff's Complaint.


Rule 8(a) FRCP states, in part:

a) Claim for relief. A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the Court's jurisdiction depends, unless the Court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it . . .

Plaintiff, in its original Complaint, and in its Amended Complaint, relies, for jurisdiction, upon the following assortment of legal authority:

(1) 28 U.S.C. § 2201

(2) FRCP 57

Plaintiff seeks to confer jurisdiction upon this Court for declaratory relief under the Statute and Rule above cited. Both the Statute and the Court Rule refer to declaratory relief.

The Supreme Court has held that the Declaratory Judgment Act 28 U.S.C. §§ 2201 and 2202 is procedural in nature and cannot serve as a basis for federal jurisdiction. Skelly Oil Company v. Phillips Petroleum Company, 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); King v. Sloane, 545 F.2d 7 (CA 6, 1976).

In James v. Ambrose, 367 F.Supp. 1321 at p. 1324 (D.Virgin Islands 1973), the court stated:

It is clear that the aforesaid statutes (28 U.S.C. 2201 and Rule 57) cited and relied upon by the Plaintiff (to confer jurisdiction upon the Court) do not themselves confer subject matter jurisdiction; these statutes are procedural and only provide for remedies which this Court may give in actions otherwise within its jurisdiction.

The Statute and the Court Rule, then, do not extend the jurisdiction of the District Court to cases not otherwise within the competence of the Court.

(3) 28 U.S.C. § 1331

Plaintiff (taxpayers) further attempt to invoke this Court's jurisdiction under 28 U.S.C. § 1331, which confers upon Federal District Courts original jurisdiction of suits arising under the constitutions, laws and treaties of the United States.

To bring a case within Section 1331 a Plaintiff must show that:

(a) . . . the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, law or treaties of the United States.
(b) Except when express provision therefore is otherwise made in a statute of the United States . . .

It is clear that the party invoking the jurisdiction of the Federal Court has the burden of establishing the existence of jurisdiction. Moreover, there is a presumption against federal jurisdiction. Basso v. Utah Power and Light Company, 495 F.2d 906 (CA 10, 1974); Whitelock v. Leatherman, 460 F.2d 507 (CA 10, 1972).

To bring a case under 28 U.S.C. § 1331 a Plaintiff must have a substantial claim founded directly upon federal law. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Wright, Federal Courts, Sec. 17 (2d Ed. 1970).

Plaintiff's allegation that the existence of a federal question arises under Article VII, Sections 5 and 14 of the Constitution of the United States is without merit. Article VII of the Constitution contains neither a Section 5 nor a Section 14, and the Article itself, relates to ratification and establishment of the United States Constitution.

Plaintiff also alleges the existence of a federal question arising under the Fifth and Fourteenth Amendments to the Constitution. It is well established that federal question jurisdiction may be invoked in an action by a plaintiff asserting constitutional rights under the amendments. Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Amen v. City of Dearborn, 532 F.2d 554 (CA 6, 1976); Wright and Miller, Federal Practice and Procedure, Sec. 3572.

However, to give a federal court jurisdiction under this statute (28 U.S.C. § 1331), the federal question must be substantial. Cuyahoga River Power Company v. Northern Ohio Traction and Light Company, 252 U.S. 388, 40 S.Ct. 404, 64 L.Ed. 626 (1920); Garvin v. Rosenau, 455 F.2d 233 (CA 6, 1972).

In Ex Parte Poresky, 290 U.S. 30 at p. 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933) the Court explained what substantial means:

The question may be plainly unsubstantiated, either because it is without merit, or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.

In the instant case, Plaintiff seeks declaratory and/or injunctive relief from the special assessments (which have not been disclosed) alleging that they were imposed upon the individuals comprising the Plaintiff in an arbitrary and capricious fashion. Plaintiff contends that such special assessment resulted in a taking without just compensation and that the procedures for providing notice were in violation of the Fifth and Fourteenth Amendments.

Upon a careful review of the Amended Complaint and Plaintiff's Memorandum in support of their position, this Court must conclude that the Plaintiff has not stated facts which would, under the present state of the law, constitute a violation of an individuals' Constitutional rights. The factual allegations set forth as contained in paragraphs 1 through 12 of their Amended Complaint contain no allegations of fact upon which a federal question could be construed, but rather assert a series of legal conclusions. Neither the Amended Complaint, the original Complaint, nor the Memorandum of Law indicate how the hearings deprived the individuals of their due process or how the assessments were so arbitrary and capricious as to deprive them of their due process or equal protection rights.

The Court finds that such a federal question, as contemplated by Section 1331, if one exists, is without merit and thus subject matter jurisdiction is not conferred upon this Court by virtue of alleging that a federal question arises under 28 U.S.C. § 1331.

(4) 28 U.S.C. § 1332

Plaintiff further attempts to invoke the diversity jurisdiction of this Court. This attempt failed since complete diversity is obviously lacking. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Bowman v. White, 388 F.2d 756 (CA 4, 1968).

The lack of diversity is indicated on the face of the Amended Complaint in paragraph 7, which reveals that some of the members of the Association are residents of the special assessment district.

(5) 42 U.S.C. § 4372

The statute is entitled: "Office of Environmental Control". The Court cannot locate, in this Section, any mention of the Court's jurisdiction. Nor can the Court, in examining the Complaints filed by Plaintiff, find any factual allegations involving environmental control.

(6) 42 U.S.C. § 331(2)

The Court can find no such statute, but the statute was invoked by Plaintiff in both its original and its Amended Complaint.

(7) 5 U.S.C. §§ 551.5 551(5) and 522

5 U.S.C. § 551 is entitled: "Administrative Procedure", and lists a definition of terms. No jurisdiction is conferred upon this Court by 5 U.S.C. § 551.


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