Sekulovski v. Commerce Twp. of Commerce
| Decision Date | 01 August 2022 |
| Docket Number | 21-10792 |
| Parties | LILIANA SEKULOVSKI, Plaintiff, v. CHARTER TOWNSHIP OF COMMERCE and JAY JAMES, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Plaintiff Liliana Sekulovski was the co-owner of a dog named Odin, a tan male Pit Bull Terrier, which was removed from Commerce Township after biting a child. The removal was ordered by a state court after the Township issued a citation to the other co-owner of the dog, Liliana's husband Ljupco (Lou), a hearing was conducted, and Lou agreed not to contest the removal order. Instead, Lou arranged for the dog to reside with a family member outside Commerce Township. Liliana sued the Township and its ordinance enforcement officer, alleging that she did not receive adequate notice of the proceedings and her rights under the Fourth and Fourteenth Amendments were violated. Both sides have moved for summary judgment. The undisputed evidence shows that there was no “seizure” of the dog within the meaning of the Fourth Amendment, and the plaintiff's rights under the Due Process Clause were not violated by the defendants. Therefore, the Court will grant the defendants' motion for summary judgment, deny the plaintiff's motion, and dismiss the case.
The underlying facts of the case, summarized below, are undisputed in all respects material to the pending motions for dispositive relief.
Liliana Sekulovski co-owned Odin jointly with her husband, Lou Sekulovski (now deceased), and the couple resided with the dog on Cheshire Lane in Commerce Township, Michigan. On September 12, 2017, Odin bit a child. The Oakland County Animal Control Unit investigated a report of the dog bite and determined that the dog was owned by Lou Sekulovski. The father of the child who was bitten requested that the Township take action. Defendant Jay James, who is a Commerce Township Ordinance Enforcement Officer, investigated the complaint and consulted the Township's attorney, who advised him to issue a civil infraction ticket to Lou Sekulovski, who was identified as the dog's owner.
James issued a citation against Mr. Sekulovski for a violation of Commerce Township Ordinance § 10-9, which states, in its entirety: “A person shall not keep, harbor, or maintain any dangerous animal within the Township.” See Municode: Commerce Charter Township Code of Ordinances § 10-9 https://library.municode.com/mi/commercechartertownship,(oaklandco.) /codes/codeofordinances?nodeId=COORCH10AN. Related sections of the Code state that “[a] violation of [the ordinance is] deemed to be a municipal civil infraction,” and “[t]he township may . . . enforce [the dangerous animal ordinance] by seeking and obtaining equitable or injunctive relief from a court of competent jurisdiction.” Id. §§ 10-15, 10-16.
The ticket was lodged with the State of Michigan's 52-1 District Court in Commerce Township. The state court issued several appearance notices, which were mailed to the Sekulovskis' residence, and Lou Sekulovski appeared for a hearing before the court on April 10, 2018. At that hearing Lou Sekulovski was represented by counsel, and he entered a plea of responsible for the infraction. It is undisputed that the Township did not ask for the dog to be destroyed, which was among the possible outcomes. See Mich. Comp. Laws § 287.322(3). Instead, it was the Township's intention all along to ask for the dog to be removed beyond its boundaries. During the hearing, the court acceded to that request and ordered that the dog be removed from the Township within 30 days. An order to that effect was docketed by the state court on April 23, 2018. After that, the order stated, if the dog was not removed, Lou Sekulovski could be held in contempt and subjected to a civil fine for each day the dog remained in the Township.
Sekulovski moved to stay the order of removal, indicating that he wanted to appeal to Oakland County Circuit Court, and the district court granted the stay pending appeal. However, he never followed up on that appeal on a timely basis. On June 12, 2018, he appeared again before the district court and stated that he no longer wanted to appeal the order, and that the dog had been removed from the Township the week before. He asked that the matter be closed. Odin thereafter resided at the home of Sekulovskis' nephew in Bloomfield Township, Michigan. The Sekulovskis still cared for the dog over the next eighteen months, taking him to several veterinary visits. Lou Sekulovski even went to live with the dog for a time. Plaintiff Liliana Sekulovski visited with the dog at her nephew's house every other weekend, usually staying for the night. Unfortunately, sometime in 2019 Odin was killed when he was struck by a car during a visit with the plaintiff at the plaintiff's mother's home in Fowlerville, Michigan.
Plaintiff Liliana Sekulovski admitted at her deposition that she signed the Oakland County Animal Control Unit report of the dog bite investigation, which identified her husband as the dog's owner. Liliana Sekulovski dep., ECF No. 8-4, PageID.143; see also Incident Report dated Sept. 12, 2017, ECF No. 8-3, PageID.172. Liliana also admitted that she knew that her husband was going to state court on April 10, 2018, because he had received a ticket after the dog bit a child. Sekulovski dep. at PageID.145. However, she did not attend the court hearing. Id. at 146. Although the ordinance authorized the court to order the dog removed, there is no evidence that either Liliana or her husband actually were aware before the hearing that the Township would seek that relief. When Lou Sekulovski returned from state court, he told the plaintiff that the court had ordered that the dog be removed from the Township. Id. at 148.
Liliana further admitted that after she was informed about the order, she did not promptly do anything to object to the removal. Id. at 149. When asked if anyone from the Township took the dog away, Liliana admitted that “nobody physically took [her] dog away.” Id. at 152. Liliana stated that when the dog was relocated, it was her husband's decision to move the dog to the nephew's house, he told her that's what he was going to do, and she “left it at that.” Id. at 154. When asked, who took Odin away from her, Liliana answered, “My husband took him away from me.” Id. at 157.
Eventually, in November 2018, Lou Sekulovski, through the same attorney that represents plaintiff Liliana in this matter, filed in the Oakland County circuit court a delayed application for leave to appeal the order of the 52-1 District Court commanding that the dog be removed from the Township. In his delayed application, Lou argued, among other things, that the order was an unconstitutional taking of private property and violated his due process rights. The application for a late appeal was denied. Lou Sekulovski also filed an application for leave to appeal in the Michigan Court of Appeals, and thereafter an application for leave to appeal in the Michigan Supreme Court, both of which also were denied.
Nearly 30 months after the unsuccessful state court appeal had run its course, the plaintiff filed her complaint in this matter alleging violations of her constitutional rights. She alleges via 42 U.S.C. § 1983 that her rights under the Fourth and Fourteenth Amendments were violated, and she included a count alleging conversion under state law. After discovery closed, the parties timely filed their cross-motions for summary judgment.
The fact that the parties have filed cross-motions for summary judgment does not automatically justify the conclusion that there are no facts in dispute. Parks v. LaFace Records, 329 F.3d 437, 444 (6th Cir. 2003) (). Instead, the Court must apply the well-recognized summary judgment standard when deciding such cross motions: the Court “must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party.” Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir. 2003); Fed.R.Civ.P. 56(c).
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When reviewing the motion record, “[t]he court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).
The party bringing the summary judgment motion must inform the court of the basis for its motion and identify portions of the record that demonstrate that no material facts are genuinely in dispute. Alexander, 576 F.3d at 558 (citing Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs, the party opposing the motion then may not ‘rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact' but must make an affirmative showing with proper evidence in order to defeat the motion.” Ibid. (quoting Street v. J.C. Bradford &...
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