U.S. v. Certain Land in Detroit, Mich.

• Decision Date: 24 March 1999
• Docket Number: No. 79-CV-73934-DT.,No. 96-CV-75495-DT.,79-CV-73934-DT.,96-CV-75495-DT.
• Citation: 43 F.Supp.2d 762
• Parties: UNITED STATES of America, Plaintiff, v. CERTAIN LAND SITUATED IN THE CITY OF DETROIT, WAYNE COUNTY, MICHIGAN; Detroit International Bridge Company; Commodities Export Company; and Walter H. Lubienski, Defendants. and United States of America, Plaintiff, v. 0.074 Acre Of Land, More or Less, Situated in the City of Detroit, Wayne County, Michigan and Commodities Export, Inc., et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 762

43 F.Supp.2d 762

UNITED STATES of America, Plaintiff, v. CERTAIN LAND SITUATED IN THE CITY OF DETROIT, WAYNE COUNTY, MICHIGAN; Detroit International Bridge Company; Commodities Export Company; and Walter H. Lubienski, Defendants. and United States of America, Plaintiff, v. 0.074 Acre Of Land, More or Less, Situated in the City of Detroit, Wayne County, Michigan and Commodities Export, Inc., et al., Defendants.

No. 79-CV-73934-DT.

No. 96-CV-75495-DT.

United States District Court, E.D. Michigan, Southern Division.

March 24, 1999.

Donald F. Rosendorf, Washington, D.C., for plaintiff.

Walter H. Lubienski, Rogert E. Craig, Dearborn, Naples, FL, for defendant.

OPINION AND ORDER REGARDING THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT/DISMISSAL (IN CASE NO. 79-73934), AND DEFENDANTS' MOTION (IN CASE NO. 96-75495) TO DISMISS COMPLAINT AND VACATE DECLARATION OF TAKING

ROSEN, District Judge.

I. INTRODUCTION

This matter is presently before the Court on four dispositive Motions:

1) Commodities Export Company and Walter H. Lubienski's "Motion for Summary Judgment and for Permanent Injunction or Alternately for Preliminary Injunction";

2) the Government's Cross-Motion for Summary Judgment;

3) DIBC's [the Detroit International Bridge Company's] Cross-Motion for Summary Judgment;¹ and

4) Commodities Export Company's and Walter Lubienski's Motion to Dismiss Complaint and Vacate Declaration of Taking in Case No. 96-76495.²

Responses and Reply Briefs have been filed with respect to these Motions. The parties have also filed Supplemental Briefs pursuant to the Court's directive at the close of the hearing held on October 15, 1998.

Having reviewed and considered the parties' respective motions and briefs, and having heard the oral arguments of counsel, the Court is now prepared to rule on this matter. This Opinion and Orders sets forth the Court's ruling.

II. PERTINENT FACTS AND PROCEDURAL HISTORY

This matter has a long, protracted history. To briefly summarize, in 1979, the United States initiated an eminent domain action (the "1979 action") to acquire certain lands from the Detroit International Bridge Company ("DIBC") for a project to expand the U.S. Customs Cargo Inspection facility on the American side of Detroit's Ambassador Bridge. The Ambassador Bridge is owned by DIBC.

In an effort to resolve the 1979 action, on March 29, 1991 the United States Government, acting through the General Services Administration ("GSA"), and DIBC entered into a Memorandum of Agreement ("MOA") regarding the condemnation of property for the expansion of the Customs facility. The MOA was approved by the Justice Department on April 30, 1992.

Part of the expansion contemplated under the MOA includes the expansion of a truck ramp from the Bridge to the Cargo Inspection facility. It is the expansion of the truck ramp from the Bridge to the Cargo Inspection facility which is at the heart of the present dispute involving Commodities Export Company ("Commodities") and Walter Lubienski.³

A small portion of the land contemplated to be condemned pursuant to the MOA is owned by Commodities and Lubienski. Commodities operates a "duty free" shop located on the Detroit side of the Ambassador Bridge near the proposed expanded truck ramp. Walter Lubienski is the owner of Commodities. Condemnation complaints for the taking of Commodities and Lubienski's property were filed in December 1996.

The condemnation proceedings against Commodities' property consists of the taking in fee of a corner of Commodities' parking lot to complete the ramp off the Bridge, and the taking of an easement across Commodities' parking lot for access to a to-be-constructed government parking lot on adjacent property. The easement will be open at all times to Commodities for its own use. See diagram attached to the Government's Complaint in 96-CV-75495-DT. The taking in fee of the corner of Commodities' parking lot and the easement over Commodities' property together constitute less than 0.1 acre of land.⁴

Commodities and Lubienski moved to intervene in the 1979 action in December 1991, prior to the initiation of condemnation proceedings against their property, in order to block, by way of preliminary injunction, the implementation of the MOA. The Court denied the motion to intervene finding that Commodities and Lubienski lacked standing to intervene in this case. See U.S. v. Certain Land, No. 79-CV-73934-DT, April 3, 1992 Opinion and Order. The Court also summarily denied Commodities and Lubienski's motion for preliminary injunction. Id.

On October 12, 1993, the Sixth Circuit reversed this Court's decision denying the motion to intervene holding that Commodities and Lubienski were entitled to intervention as a matter of right. See, United States v. Detroit International Bridge Co., et al., 7 F.3d 497 (6th Cir.1993). In so doing, however, the Court of Appeals made no determination and no findings with respect to the Intervenor-Defendants' proposed motion for preliminary injunction.

On remand, Commodities and Lubienski renewed their motion for a preliminary injunction to enjoin the implementation of the MOA and more specifically, to enjoin the condemnation of their property, arguing that the MOA is invalid (1) because there is no legislation authorizing the condemnation of their property⁵ and (2) because the MOA calls for DIBC, a private entity, to fund the contemplated acquisition of their property, the project had no "public purpose." With respect to this "lack of public purpose" argument, the Intervenors also argued that the stated public purpose of the project is a sham and a cover-up for the purpose of putting Commodities out of business, to the benefit of its sole competitor in the duty-free market in Detroit, Ammex, Inc., which shares a commonality of principal ownership with DIBC.

This Court thoroughly analyzed the Intervenors' arguments in its Opinion and Order of December 30, 1994, see United States v. Certain Land Situated in the City of Detroit, 873 F.Supp. 1050 (E.D.Mich.1994), and found no legal merit in any of them. The Court, therefore, concluded that the Intervenor-Defendants failed to establish a likelihood of success on the merits. Id. at 1059. The Court also determined that the Intervenors failed to establish that the contemplated implementation of the MOA or the condemnation of their property would result in irreparable harm to them or harm to others. Id. The Court further determined that the Intervenors failed to show that the public interest would be advanced by the issuance of the injunction they sought. Id. at 1059-60. Therefore, the Court denied Commodities' and Lubienski's motion for preliminary injunction. Id. at 1060.

Commodities and Lubienski subsequently appealed this Court's denial of their motion for preliminary injunction to the Sixth Circuit Court of Appeals. On January 23, 1996, in an unpublished opinion, the Sixth Circuit agreed with this Court's conclusion that the Intervenors were not entitled to a preliminary injunction and affirmed the Court's order "for the reasons stated by the [district] court in its opinion dated December 30, 1994." United States v. Certain Land Situated in the City of Detroit, 76 F.3d 380, 1996 WL 26915 (6th Cir.1996) (unpublished decision, text available on WESTLAW) Although the Intervenors attempted to raise before the appellate court one of the arguments they now assert here — to wit, that the MOA is invalid because it was the product of "improper collusion" — the Court of Appeals made no findings with respect to that argument and made clear that the only issue before it was whether the district court properly denied the motion for preliminary injunction. Id.⁶

Commodities and Lubienski subsequently filed a petition for a writ of certiorari before the United States Supreme Court. The Supreme Court denied that petition on October 7, 1996. See Commodities Export Company v. United States, 519 U.S. 819, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996).

The case was then remanded to this Court once again. Upon remand, on December 6, 1996, the Government filed two complaints for the specific condemnation of Lubienski's and Commodities' property.⁷ With the Commodities/Lubienski condemnation complaints having been filed, on December 12, 1996, the Court conducted a status conference with counsel for all parties. At that conference, the parties requested to conduct discovery on the Intervenor-Defendants "improper collusion" claim. The Court granted that request and gave the parties until the end of June 1997 to conduct their requested discovery.⁸ At that conference, all counsel were in agreement that Commodities and Lubienski could raise their "improper collusion"/invalidity of the MOA arguments in the condemnation actions for the condemnation of their particular parcels of property and, therefore, their participation in the 1979 case was no longer necessary. The parties, therefore, agreed to submit a Stipulation and Order agreeing to Commodities' and Lubienski's dismissal from the 1979 action. (Commodities and Lubienski subsequently reneged on this agreement and refused to stipulate to being dismissed from the 1979 action.)

Meanwhile, the re-assignment of the Commodities/Lubienski condemnation complaints to this Court was put at issue. As noted above, although the complaints were originally assigned to other judges, they were re-assigned to this Court pursuant to the "companion case rule" set forth in Eastern District of Michigan Local Rule 83.11. In January 1997, Commodities and Lubienski challenged this Court's jurisdiction to hear the two 1996 condemnation actions under the companion case rule and moved to disqualify the Court. This matter was referred to United States Magistrate Judge Thomas A. Carlson for hearing and recommendation. Upon the Report and Recommendation of the Magistrate Judge, on September 30, 1997 this Court denied the Intervenors' disqualification motion. Commodities and Lubienski...