Van Lokeren v. City of Grosse Pointe Park

Decision Date13 March 2014
Docket NumberCase No. 13-14291
PartiesTHOMAS W. VAN LOKEREN, Plaintiff, v. CITY OF GROSSE POINTE PARK, MICHIGAN, CITY OF GROSSE POINTE PARK POLICE OFFICER THOMAS CARD, JOHN DOE(S), UNKNOWN POLICE OFFICERS OF THE CITY OF GROSSE POINTE PARK, DALE KRAJNIAK, CITY MANAGER OF GROSSE POINTE PARK, GROSSE POINTE PARK CITY COUNCIL MEMBER AND MAYOR PRO TEM GREGORY THEOKAS, FORMER GROSSE POINT PARKE CITY COUNCIL MEMBER ANDREW RICHNER, and TIMOTHY KOLTUN, COUNSEL FOR DEFENDANTS RICHNER AND THEOKAS, Defendants.
CourtU.S. District Court — Eastern District of Michigan

Hon. Patrick J. Duggan

OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO
DISMISS AND DENYING PLAINTIFF'S REQUEST TO AMEND

Pro se Plaintiff Thomas W. Van Lokeren initiated this action against Defendants the City of Grosse Pointe Park, Thomas Card, John Doe(s) (unknown Grosse Pointe Park police officers), Dale Krajniak, Gregory Theokas, Andrew Richner, and Timothy Koltun alleging violations of his Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983, as well as violations of Michigan statutory and common law, in connection with Defendants' conduct in removingPlaintiff and his personal property from real property situated in Grosse Pointe Park, Michigan. Two motions are presently before the Court: (1) Defendants Grosse Pointe Park, Card, Doe, Krajniak, and Theokas's (collectively, the "Grosse Pointe Park Defendants") Motion to Dismiss, filed pursuant to Federal Rule of Civil Procedure 12(b)(6), and (2) Defendants Richner and Koltun's Motion to Dismiss, filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Having determined that oral argument would not significantly aid the decisional process, the Court dispensed with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons stated herein, the Court grants both motions to dismiss.

I. BACKGROUND
A. Facts

Prior to the events giving rise to this case, all of which transpired on October 8, 2010, Done Been B Triad, LLC ("Done LLC"), a Michigan limited liability company, executed a lease in a commercial building located at 153241 EastJefferson Avenue in Grosse Pointe Park, Michigan (hereinafter, the "Rental Property"). (Compl. ¶¶ 11-12.) Plaintiff is a member of the aforementioned LLC. (Id. at ¶ 12.)

The present conflict originated when at some point after Done LLC executed the lease, the building's ownership ceased paying property taxes. In accordance with the tax-foreclosure procedures set forth in Michigan Compiled Laws § 211.57 et seq., the Wayne County Treasurer obtained title to the building housing the Rental Property. This is evidenced by a Notice of Judgment of Foreclosure the Grosse Pointe Park Defendants produced to this Court.2 (Grosse Pointe Park Defs.' Mot. Ex. B.) This Notice indicates that property located at 15324 Jefferson was forfeited to the Wayne County Treasurer on March 1, 2009, and that on April 5, 2010, the Circuit Court for the Third Judicial Circuit, entered a Judgment of Foreclosure against the real property described therein. The document explicitly provides that absolute title to the property would pass to the Wayne County Treasurer if the owner did not redeem within twenty-one days after entry of Judgment. In other words, if not redeemed, the Judgment of Foreclosure wouldbecome final and unappealable on April 26, 2010, and any recorded or unrecorded interests and all liens would be extinguished subject to certain exceptions not relevant here. The building's prior ownership failed to redeem and title passed to the Wayne County Treasurer. On October 7, 2010, Grosse Pointe Park Partners, LLC purchased the building and received a quitclaim deed. (Id. Ex. C.)

Plaintiff alleges that on October 8, 2010, he hired two environmental consultants to test air samples at the Rental Property to determine whether a partially-remediated spill of toxic dry cleaning solvent years earlier posed any health risks. (Compl. ¶ 12.) Upon the consultants' arrival, Plaintiff went "out and about taking care of his business agenda." (Id. at ¶ 13.) While out, Plaintiff received a call from one of the consultants who indicated that there were two individuals at the Rental Property threatening the consultants with arrest. (Id.)

Upon returning to the Rental Property, Plaintiff spoke with the two individuals - Defendants Theokas and Richner - as well as two police officers - Defendants Card and Doe - who had been dispatched to the scene. (Id. at ¶ 14.) Plaintiff tried to explain that he had a valid lease for portions of the premises and attempted to show them the lease. (Id.) None of the four Defendants present acknowledged the documentation and the consultants, who had not taken enough samples to produce an accurate air quality report, "hustled out of there[.]" (Id.) At that time, the police officers informed Plaintiff "that he would be arrested if he didnot immediately vacate the [Rental Property] and that he was prohibited from re-entering any part of the overall building." (Id. at ¶ 15.)

As the events above were unfolding, Plaintiff learned that Defendant Richner was one of the new building owners. (Id.) At some point, Defendant Koltun, Defendant Richner's attorney, arrived at the scene. (Id. at ¶ 16.) After putting Defendant Koltun on the phone with his own attorney, Plaintiff's phone battery died. (Id.) Plaintiff then "entered the side door of the building which went to the second floor and entered the architect Robert Wakely's suite and got his permission to use an outlet to recharge [his] phone." (Id.) Defendants Card and Doe followed Plaintiff into the building and "were in [his] face." (Id. at ¶ 17.) One of the officers was apparently on the phone with Grosse Pointe Park City Manager, Defendant Dale Krajniak, receiving instruction on how to proceed. (Id.) Defendant Card then threatened to arrest Plaintiff if he did not vacate the premises even though the officers "had no warrant to justify their order and there was no court action sanctioning an eviction[.]" (Id. at ¶ 18.)

Despite what Plaintiff believes was an assertion of unlawful authority by the officers, Plaintiff "yielded to the officers' pressure and left the building[.]" (Id. at ¶ 19.) While the timing is not abundantly clear from the Complaint, Plaintiff alleges that upon leaving, Defendants Richner and Theokas, as well as "one oftheir employees[,] picked up [Plaintiff's] personal property and papers from the suite and placed them on the sidewalk outside the building."3 (Id.)

B. Legal Proceedings

Although Plaintiff's Complaint does not list individual counts, the Court interprets the Complaint to allege that Defendants violated Plaintiff's Fourth and Fourteenth Amendment rights. (Compl. ¶¶ 10, 20.) The Fourth Amendment claim involves the alleged seizure of Plaintiff's personal property and the Fourteenth Amendment claim, which sounds in due process, rests on Defendants' conduct in wrongfully removing Plaintiff from the Rental Property, purportedly in violation of Michigan's antilockout statute codified at Michigan Compiled Laws § 600.2918.4 The Complaint also appears to allege that Defendants engaged in the tort of slander of title. (Compl. ¶ 21.) As relief for these various legal transgressions, Plaintiff seeks monetary damages in the amount of $400,000, special and/or exemplary damages, interest, costs and attorney's fees,5 and a permanent injunction. (Id. at 9.)

The Grosse Pointe Park Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on November 27, 2013. (ECF No. 11.) Defendants Koltun and Richner filed their Motion to Dismiss, brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), on December 24, 2013. (ECF No. 15.) Pursuant to a joint stipulation extending Plaintiff's time to do so, Plaintiff filed his response on February 3, 2014. (ECF No. 16.) In addition to responding to the arguments raised by Defendants, Plaintiff requested an opportunity to file an amended complaint should the Court be inclined to grant the present motions to dismiss. Both sets of Defendants filed a timely reply on February 18, 2014. (ECF Nos. 17, 18.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) permits courts to dismiss a complaint on the basis that the court lacks subject matter jurisdiction. Defendants Koltun are Richner are making a facial attack, which "is a challenge to the sufficiency of the pleading itself." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). "On such a motion, the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party." Id. A plaintiff bears the burden of demonstrating that a court has jurisdiction over the subject matter. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F3.d 1125, 1134 (6th Cir. 1986) (citation omitted).

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) allows a court to make an assessment as to whether a plaintiff's pleadings have stated a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). As articulated by the Supreme Court of the United States, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 555, 570, 127 S. Ct. 1955, 1974 (2007)). This facial plausibility standard requires claimants to put forth "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" the requisite elements of their claims. Twombly, 550 U.S. at 557, 127 S. Ct. at 1965. Even though a complaint need not contain "detailed" factual allegations, its "factual allegations must be enough to raise a right to relief above the speculative level." Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (citing Twombly, 550 U.S....

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