Opinion
Case No. 1:02-cv-673
June 13, 2003
OPINION
This is at least the sixth in a series of state and federal court lawsuits by plaintiffs and corporations they own and control stemming from the development of a parcel of real estate in Grand Rapids, Michigan formerly occupied by the Berkey Gay furniture factory and a related dispute over an easement: (1) Proto-CAM, Inc., et al., v. 940 Monroe, L.L.C., et al., No. 00-08231-CZ (Kent County Circuit Court) (" 940 Monroe case"); (2) The Local Area Watch v. City of Grand Rapids, et al., No. 02-00218-CZ (Kent County Circuit Court) ("LAW case"); (3) William Q. Tingley III, et al. v. 900 Monroe L.L.C., et al., No. 02-03723-NZ (Kent County Circuit Court) (" 900 Monroe case"); (4) William Q. Tingley III v. Ward A. Kortz, et al., No. 02-09503-CE (Kent County Circuit Court) (" Kortz case"); and (5) United States of America ex rel. William Q. Tingley III, et al. v. 900 Monroe, L.L.C., et al., No., 1:02-cv-319 (W.D. Mich.) ("qui tam" or "companion case").
William Q. Tingley III, his father William Q. Tingley, and their business associate Daniel R. Bradley initiated this pro se lawsuit on September 18, 2002. The Tingleys and Bradley own, operate and control four corporations. The first three corporations, collectively referred to in the complaint as "Plaintiffs Businesses," are Proto-CAM Incorporated, Bend Tooling Inc., and Tennine Corporation. Plaintiffs allege that these three corporations "suffered the greatest damage and loss" as a consequence of defendants' actions." (Complaint, ¶ 8). William Q. Tingley III and William Q. Tingley own and operate a fourth corporation named "The Local Area Watch" ("LAW") created by the Tingleys in February 2001. Plaintiffs allege that LAW "is a non-profit organization chartered to monitor Grand Rapids Area government bodies, non-profit organizations, and public institutions for conflicts of interest, self-dealing and other misconduct." (Complaint, ¶¶ 6-7). None of the four corporations owned, operated, and controlled by the plaintiffs are parties to this lawsuit. At the time they filed the complaint in September 2002, the individual pro se plaintiffs were certainly aware, based upon their prior unsuccessful state court lawsuits against defendants, that as non-attorneys they could not represent any of their four corporations in court. Plaintiffs are limited to pursuing their own personal claims pro se. See 28 U.S.C. § 1654.
A number of spelling variations appear in pleadings and other documents with regard to these corporations. Tennine Corporation and Ten Nine Corporation are the same corporate entity. Proto-CAM Incorporated, Proto-CAM Inc., Proto-Cam Incorporated and Proto-Cam Inc. all relate to the same corporate entity.
Plaintiffs' complaint names twelve defendants, primarily the judges presiding over, and the attorneys and law firms representing party opponents, in the numerous lawsuits listed in the opening paragraph of this opinion. The lawsuits have proceeded in a snowball fashion, picking up additional defendants and new claims based upon a theory of an ever-expanding conspiracy adverse to plaintiffs' business interests. The twelve named defendants in this lawsuit are as follows:
1. Kent County Circuit Judge H. David Soet; 2. Kent County Circuit Court Judge Dennis B. Leiber; 3. Attorney William J. Fisher III; 4. Attorney Todd R. Dickinson; 5. Attorney Robert F. Wardrop II; 6. Dickinson Wright, P.L.L.C.; 7. City of Grand Rapids; 8. Grand Rapids Mayor and Attorney John H. Logie; 9. Assistant City Attorney Daniel A. Ophoff; 10. Warner, Norcross Judd, L.L.P.; 11. Spectrum Health Corporation; and 12. Fifth Third Bancorp.
Attorneys William J. Fisher III and Robert F. Wardrop II will generally be referred to herein without Roman numeral designations.
Attorneys William J. Fisher III and Robert F. Wardrop II will generally be referred to herein without Roman numeral designations.
Plaintiffs contend that defendants' actions, primarily in Kent County Circuit Court proceedings, deprived plaintiffs of their rights, in violation of 42 U.S.C. § 1983, 1985 and 1986. (Complaint, ¶ 4). Plaintiffs also purport to bring state law tort claims of "Malicious Use of Process" (Count IV); "Malicious Use of Sanctions" (Count V); and "Fraud" (Count VI). Plaintiffs' complaint asks this court to enter a judgment against the defendants "in the amount of damages that Plaintiffs, the Plaintiffs' Business, and LAW would have recovered in the matters of Proto-CAM v. 940 Monroe, Tingley v. 900 Monroe, and LAW v. Grand Rapids were it not for Defendants' deprivation of Plaintiffs' civil rights." (Complaint, p. 24).
The matter is now before the court on five sets of motions: (1) plaintiffs' motions for Rule 11 sanctions against defendants City of Grand Rapids, Mayor John Logie, and against Assistant City Attorney Daniel Ophoff (docket #'s 70, 71); (2) plaintiffs' motion for summary judgment as to the liability of all defendants under 42 U.S.C. § 1985 (docket #95); (3) motion for summary judgment by defendant Judges Leiber and Soet (docket #25): (4) motions to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted by all remaining defendants: Todd R. Dickinson and William J. Fisher (docket #19); Warner, Norcross Judd (docket #22); Dickinson Wright P.L.L.C. (docket #36); Fifth Third Bancorp (docket #40); Robert F. Wardrop II (docket #47); Spectrum Health Corporation (docket #57); and the City of Grand Rapids, John Logie and Daniel Ophoff (docket #73); and (5) motions by all defendants for an award of attorney's fees incurred in defending this lawsuit pursuant to 42 U.S.C. § 1988 (docket #'s 19, 22, 25, 36, 40, 47, 57, 73). Upon review, plaintiffs' motions will be denied, defendants' motions will be granted, and judgment will be entered in favor of defendants.
I.
Plaintiffs have filed two motions asking the court to impose Rule 11 sanctions against defendants City of Grand Rapids, Mayor John Logie, and Assistant City Attorney Ophoff (docket #'s 70, 71). Plaintiffs' motions require little discussion.
Plaintiffs seek Rule 11 sanctions against the city, mayor and assistant city attorney based upon plaintiffs' contention that defendants' answers to plaintiffs' complaint were inadequate. Plaintiffs' motions for Rule 11 sanctions are supported by six exhibits, most notably, the answer filed by the City of Grand Rapids, the Grand Rapids City Commission and the Grand Rapids Historic Preservation Commission to the complaint in the LAW case (Ex. 1); and an affidavit from Peter W. Steketee, the attorney who represented the corporate plaintiff LAW regarding discovery problems that Steketee encountered in the LAW case. (Ex. 6). Obviously, the plaintiffs cannot relitigate in this lawsuit either the discovery proceedings or the outcome of the state court LAW case, a case which is currently on appeal to the Michigan Court of Appeals. The federal district courts lack appellate jurisdiction over the state courts. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). Furthermore, the named plaintiffs in this case, Tingley III, Tingley and Bradley, were never parties to the LAW case. Plaintiffs have no standing to complain about either the discovery permitted or the outcome of the LAW case.
Less than a month after Judge Leiber of the Kent County Circuit Court dismissed with prejudice The Local Area Watch v. City of Grand Rapids, et al., No. 02-00218-CZ (" LAW case"), plaintiffs filed their 108-paragraph complaint in this case.
Notably absent from plaintiffs' exhibits in support of their motions for Rule 11 sanctions are any documents evidencing plaintiffs' compliance with the safe harbor provisions of Rule 11 of the Federal Rules of Civil Procedure. Because plaintiffs have failed to demonstrate compliance with the mandatory safe harbor provisions of Rule 11, their motion for sanctions must be denied. See First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 510-11 (6th Cir. 2002); Ridder v. City of Springfield, 109 F.3d 288, 297 (6th Cir. 1997).
Alternatively, even assuming that plaintiffs had shown compliance with Rule 11's safe harbor provisions, the record before the court would not support imposition of Rule 11 sanctions. See First Bank of Marietta, 307 F.3d at 510. Rule 11 "affords the district court discretion to award sanctions when a party submits to the court pleadings, motions, or other papers that are presented for an improper purpose, are not warranted by existing law or a nonfrivolous extension of law, or if the allegations and factual contentions do not have evidentiary support." Id. Plaintiffs' complaint is a prolix 108-paragraph document composed largely of legal conclusions and vague and conclusory allegations of conspiracy. Nonetheless, defendants Logie, Ophoff and City of Grand Rapids patiently attempted to answer the allegations plaintiffs made against them, no matter how far-fetched or attenuated. For example, defendants responded to plaintiffs' allegations regarding a 1994 zoning decision which the plaintiffs had opposed, even though plaintiffs' civil rights claims filed approximately eight years after that zoning decision was made would obviously be barred by the applicable three-year statute of limitations. See Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986). Furthermore, the court finds that the defendants' responses were adequate under the Federal Rules of Civil Procedure. Plaintiffs' motions for Rule 11 sanctions will be denied.
II.
Plaintiffs have filed a motion for summary judgment as to the liability of all twelve defendants upon plaintiffs' claims under 42 U.S.C. § 1985. (docket #95). Also before the court is the motion for summary judgment by defendants Leiber and Soet. (docket #25).
Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) (en banc). The standard for determining whether summary judgment is appropriate is "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.'" See Adcox v. Teledyne, Inc., 21 F.3d 1381, 1385 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)); see also, Burnett v. Tyco Corp., 203 F.3d 980, 982 (6th Cir. 2000); Crabbs v. Copperweld Tubing Products Co., 114 F.3d 85, 88 (6th Cir. 1997). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party may be entitled to judgment in its favor even in the absence of a cross-motion for summary judgment where the court concludes that there is no genuine issue of fact and the law compels a judgment in favor of the nonmovant and the movant has had an adequate opportunity to present its evidence and arguments. See 10A CHARLES A. WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE PROCEDURE, § 2720 (3d ed. 1998); see also Ramsey v. Coughlin, 94 F.3d 71, 73-74 (2d Cir. 1996); Davis v. Milwaukee County, 255 F. Supp.2d 967, 970-71 (E.D. Wisc. 2002); International Union of Operating Engineers v. Village of Orland Park, 139 F. Supp.2d 950, 957 (N.D. Ill. 2001). Applying these standards, the motion for summary judgment by defendants Soet and Leiber will be granted. Plaintiffs' motion for summary judgment as to the liability of all defendants under 42 U.S.C. § 1985 will be denied and judgment will be entered in favor of all defendant on plaintiffs' section 1985 claims.
In this case, even if plaintiffs had not invited summary judgment in favor of defendants, defendants would nonetheless be entitled to judgment in their favor under Rule 12(b)(6) because plaintiffs' complaint fails to state a claim upon which relief can be granted under 42 U.S.C. § 1985.
Facts
The following facts are beyond genuine issue. Plaintiff William Q. Tingley III is the "secretary and general manager of Proto-CAM Inc." (docket #96, Ex. 2, ¶ 1; Ex. 3, ¶ 1). Plaintiff William Q. Tingley is the "president of Proto-CAM Inc." (Ex. 4, ¶ 1). Plaintiff Daniel R. Bradley is the "vice president of Proto-CAM Inc." (Ex. 5, ¶ 1). Proto-CAM unsuccessfully opposed the 1994 rezoning of the neighboring Berkey Gay property. (Ex. 17).
First Lawsuit
On August 21, 2000, Proto-CAM, Incorporated, represented by licensed attorneys Douglas W. Van Essen and Lee T. Silver of the law firm Silver and Van Essen, P.C., filed a lawsuit in Kent County Circuit Court. See Proto-CAM, Inc. v. 940 Monroe, et al., No. 00-08231-CZ (" 940 Monroe case"). (docket #25, Ex. 1). Judge Soet was the presiding judge. The case was a property dispute, and a pivotal question was whether an easement granted to Proto-CAM had been intended to be exclusive or non-exclusive. On September 12, 2000, attorney Robert F. Wardrop II, the draftsman of the easement in question, signed an affidavit which favored the defendants' argument that the easement was non-exclusive. Wardrop stated that his client, the grantor, had not intended to provide Proto-CAM Inc., the grantee, with an exclusive easement. Wardrop's affidavit stated as follows:
3. In my capacity as an attorney, I represented Charleviox Club III, Inc., a Michigan Corporation ("Charlevoix"), in the drafting of a grant of easement from Charlevoix to Proto-Cam incorporated ("Proto-Cam").
4. I drafted the grant of easement that was ultimately executed on January 16, 1995 by Charlevoix as grantor and Proto-Cam as grantee and record[ed] in liber 3597, page 69 (the "Easement Agreement").
5. The Easement Agreement resulted from negotiations between the City of Grand Rapids and Charlevoix Club III, Inc. concerning the rezoning of adjacent property. Proto-Cam refused to participate in the negotiations. The parties to the negotiations intended that Proto-Cam (who was understood to own the property benefitted) would have use of the property subject to the easement, but that Charlevoix Club III, Inc. and its successors, would also have use of the property.
6. During the negotiations with the City of Grand Rapids, and at the time I drafted the Easement Agreement, it was my understanding that Proto-Cam owned the property to be benefitted.
7. The language of the Easement Agreement was intended to reflect the understanding of the parties to the negotiations (being the City of Grand Rapids and Charlevoix Club, Inc. — not Proto-Cam) that Proto-Cam was to have the right to travel over the property subject to the Easement Agreement for purposes of ingress, egress and parking. It was not the intention of the parties to the negotiation that the property subject to the Easement Agreement be reserved exclusively for Proto-Cam's use. On the contrary, it was the intention of the parties that Proto-Cam have a right-of-way easement over the property (along with the ability to park on the property) and that the Charlevoix retain the right to travel over the property to the extent that its exercise of that right did not interfere with Proto-Cam's rights under the Easement Agreement.
8. Two weeks after the Easement Agreement was executed, I wrote a letter to Charlevoix Club III, Inc. that opined that it could still use the property as long as such use did not prevent Proto-Cam from exercising its easement rights.
(docket H 96, Ex. 7).
On September 14, 2000, Judge Soet conducted a hearing on Proto-CAM's motion for injunctive relief. By order dated October 30, 2000, Judge Soet denied the motion. (docket #25, Ex. 2). Judge Soet's order stated as follows:
The Court having issued a ruling from the bench on September 14, 2000, contents of which are incorporated by reference herein;
THE COURT FINDS THAT:
A. Plaintiff has failed to establish that it would suffer irreparable harm if an injunction is not issued.
B. If an injunction is issued, the harm to Defendants far exceeds the potential benefits to be gained by Plaintiff.
C. Plaintiff has failed to establish that there is a substantial likelihood that Plaintiff will prevail on the merits of the action underlying this Motion.
D. The public interest would be harmed if this injunction were issued.
NOW THEREFORE, IT IS ORDERED THAT:
1. Plaintiff's Motion for Preliminary Injunction is denied.
2. Defendants Pioneer and 940 Monroe and their agents, officers, contractors and employees are restrained and enjoined from parking their vehicles on the portion of Walbridge Street east of the railroad tracks and from parking their vehicles or otherwise entering the Plaintiff's parking lot north of Walbridge and east of the railroad tracks.
3. No bond is necessary since there is no demonstrated injury to the Defendants caused by this injunction.
4. This Order shall remain in effect until a final adjudication of the merits of the Plaintiff's Complaint or until further order of the Court.
(10/30/2000 Order, docket #25, Ex. 2).
In October 2000, during the course of the 940 Monroe lawsuit, Attorney Van Essen filed a First Amended Complaint in which the named plaintiffs were Proto-CAM, Inc., and Ten Nine Corporation. (docket #25, Ex. 1; docket #37, Ex. A). The defendants named in the First Amended Complaint were 940 Monroe L.L.C. and Pioneer, Incorporated. Attorney William J. Fisher of Dickinson Wright, P.L.L.C. represented the defendants. Plaintiffs' First Amended Complaint alleged state law claims of trespass and a violation of an exclusive easement.
On May 15, 2001, Judge Soet issued an order denying plaintiffs' renewed motion for injunctive relief
The Court having received and reviewed Plaintiff's [sic] verified Complaint for Injunctive Relief and a Motion for Preliminary injunction and Motion for Contempt and the Defendants' response thereto and related briefs, and the Court having held hearings on September 14, 2000 and March 12, 15, and 23, 2001;
THE COURT HEREBY FINDS THAT:
A. Plaintiffs have failed to establish they would suffer irreparable harm if an injunction is not issued;
B. If the injunction sought by Plaintiffs were issued, the harm to Defendants far exceeds the potential benefits to be gained by Plaintiffs;
C. Plaintiffs have failed to establish that there is a substantial likelihood that Plaintiffs will prevail on the merits of the action underlying the Motion;
D. The public interest would be harmed if the injunction sought by Plaintiffs were issued;
E. Defendants have made good faith efforts to obtain compliance with the Court's prior order regarding parking on Walbridge Street, dated October 30, 2000, from various contractors and vendors;
F. However, Defendants good faith efforts have not been completely successful;
G. Although the evidence does not merit holding anybody in contempt, it does demonstrate problems causing some interference with deliveries to Proto-Cam that warrant amending the Court's prior order, dated October 30, 2000;
NOW THEREFORE, IT IS HEREBY ORDERED THAT:
1. Plaintiffs' Motion for a Preliminary Injunction is DENIED.
2. Plaintiffs' Motion to hold Defendants in contempt is DENIED.
IT IS FURTHER ORDERED THAT:
3. Defendants Pioneer and 940 Monroe and their agents, officers, employees, and all of Defendants' contractors, vendors and persons delivering to Defendants' construction project commonly known as the "BG Project" who have actual notice of this Order are restrained and enjoined from parking their vehicles on the portion of Walbridge Street east of the railroad tracks and from parking their vehicles or otherwise entering the Plaintiffs' parking lot north of Walbridge and east of the railroad tracks.
4. Beginning on May 10, 2001, or as soon thereafter as is reasonably possible, and continuing for four consecutive work weeks, Defendants shall hire the services of an independent security firm to provide a guard, who shall be stationed on Walbridge east of the railroad tracks, between the hours of 7:00 a.m. and 5:00 p.m., furnished with a sufficient number of copies of this Order, and charged with communicating the applicable restrictions set forth herein to anyone attempting to park on Walbridge east of the railroad tracks or in the Plaintiffs' parking lot north of Walbridge and east of the railroad tracks.
5. The person so employed by the Defendants shall be directed to serve a copy of this Order upon anyone who violates its provisions, and, if any such person shall refuse to comply with this Order after receiving actual notice of it, to make a record of all appropriate information identifying such persons.
6. Copies of the record of identified violators shall be provided to the representatives of both Plaintiffs and Defendants, and Plaintiffs may move to have such persons held in contempt by this Court.
7. No bond is necessary since there is no demonstrated injury to the Defendants caused by this injunction.
8. This Order shall remain in effect until a final adjudication on the merits of the Plaintiffs' Complaint or until further order of this Court.
IT IS SO ORDERED.
(docket #25, Ex. 3). The Kent County Circuit Court's docket sheet (docket #25, Ex. 1) does not reflect any motion made by plaintiffs' counsel on or after May 15, 2001, to have any individual or individuals held in contempt of Judge Soet's order.
On October 22, 2001, William Q. Tingley III, as Proto-CAM's general manager, filed a letter complaint with Michigan's Judicial Tenure Commission. (docket #25, Ex. 9). The opening paragraph of the letter states, "I request an investigation of Judge H. David Soet of the Kent County Circuit Court for conduct prejudicial to the administration of justice. My company filed a lawsuit, Proto-CAM, Inc. vs. Pioneer Incorporated (Case No. 00-08231-CZ), in August 2000 to enforce an exclusive easement we possess against Pioneer and related parties who claim to be successors of the original grantor. Soet is the judge presiding over this case. I believe Soet has been corruptly influenced to prejudicially deny enforcement of our easement against Pioneer." Thereafter, Mr. Tingley III proceeded to present a lengthy list of objections to alleged actions by Judge Soet and others.
On or about October 24, 2001, Mr. Tingley wrote the following letter to Judge Soet regarding his rulings in the 940 Monroe lawsuit.
Judge Soet:
Enclosed is a copy of the complaint my company, Proto-CAM Inc., has filed with the Judicial Tenure Commission. I instructed my son, Proto-CAM's general manager, to do this when I learned of the bias you have against my family and my company and the corrupt influence behind it.
Your job is the impartial administration of justice. Nothing permits you to take sides. We are entitled to have our case succeed or fail on its merits, not because of Wardrop's corrupt bargain with the City. Nothing is more telling of your bias against us than your blithe acceptance of Wardrop's lies in your courtroom and your intemperate declaration that Pioneer had the right to take our driveway because you said they could.
However, you have rationalized your bias against us, your actions have harmed more than us. When you gave Pioneer our driveway, you allowed them to dump several thousand tons of contaminated soil in the middle of the Creston area neighborhood. That soil was poisoned with toxic levels of lead and arsenic and two dozen other chemicals, and you let them spread that pollution across our city, onto our public streets, into our storm sewer system, and into our neighborhoods to say nothing of the risk to the unprotected workers who excavated and transported this poison. It is certainly no coincidence that it is this very information about the soil's hazards which Pioneer's lawyers continue to conceal from discovery — in direct violation of your order that continues to go unenforced.
You gave Pioneer the means to spread this poison for what? What could have justified letting this threat to the public health loose in our city. Certainly not accommodating Wardrop's backroom deal with Logie. Your decision to take sides in Proto-CAM vs. Pioneer has had unfortunate consequences beyond denying us a fair hearing in court. It is time that you do the decent thing and remove yourself from this case and cooperate with all investigations into what lies behind the taking of our driveway.
(docket #25, Ex. 9). Mr. Tingley's letter did not indicate that he had mailed a copy of this letter to the attorneys representing Proto-CAM and Ten Nine Corporation in court. Judge Soet received this letter on October 29, 2001, and he had it filed as part of the state-court record.
Judge Soet conducted a bench trial on May 20, 2002. The court's docket sheet indicates that post-trial briefs were filed in July 2002. The record presently before this court does not indicate when, or if, Judge Soet entered a final judgment.
Plaintiffs' filed this lawsuit on September 18, 2002. William Q. Tingley III filed an affidavit dated December 12, 2002, stating that Silver and Van Essen sought leave to withdraw as plaintiffs' counsel in the 940 Monroe case after learning that plaintiffs had filed this pro se lawsuit. The circuit court's docket sheet shows that Silver Van Essen, P.C. sought leave to withdraw as counsel on September 24, 2002. Tingley III's affidavit goes on to state that the court allowed the attorneys to withdraw from the representation. Tingley III complains that, "After this Silver sent several bills with new charges to us and then, without any further request for payment, immediately filed on December 3, 2002, a lawsuit to collect those bills." (docket #96, Ex. 2, ¶ 12).
Second Lawsuit
On January 7, 2002, licensed attorney Peter W. Steketee filed a complaint (docket #37, Ex. D) on behalf of "The Local Area Watch." See The Local Area Watch v. City of Grand Rapids, et al., No. 02-00218-CZ (" LAW case"). The complaint alleged that The Local Area Watch ("LAW") was a Michigan Non-Profit Corporation. LAW's principal office was identified as a post office box located in Grand Rapids, Michigan. (Complaint, ¶ 1, docket #37, Ex. C). The complaint stated that LAW had been "founded in February 2001, as a watchdog organization to monitor governmental and public agencies for self-dealing." (Id.). Paragraph nine of the complaint identified William Tingley as "the Executive Director of Local Area Watch." (Id., ¶ 9).
The complaint named four defendants: the City of Grand Rapids, the Grand Rapids City Commission, the Monroe North Tax Increment Finance Authority and the Grand Rapids Historic Preservation Commission. Paragraph 7 of the complaint indicated that the lawsuit was being brought pursuant to the Michigan Freedom of Information Act, MICH. COMP. LAWS § 15.231 et seq. Attached to the complaint as Exhibit 1 was a June 23, 2001, letter addressed to Mayor John H. Logie from William W. Tingley III as Executive Director of Local Area Watch listing sixty-five separate categories of documents requested including the following:
1. All writings to and from Butterworth Health Corporation (d/b/a/ Spectrum Health Corporation), Blodgett Memorial Medical Center (also d/b/a/ Spectrum Health Corporation), their subsidiaries, and their board members;
* * *
5. All writings to and from Old Kent Bank, Fifth Third Bank, and their board members;
6. All writings to and from 900 Monroe L.L.C., 940 Monroe L.L.C., and their members;
21. All writings concerning the allegations William Tingley III has made of releases from the BG building and unauthorized disposal of hazardous substances at the water filtration plant;
22. All writings of the investigation or response the City of Grand Rapids has made to these allegations;
64. All writings related to statements Logie (or any other city official or employee) has made concerning William Tingley, Wm. Q. Tingley III, Proto-CAM Inc., and the Local Area Watch.
(docket #37, Ex. D). Also attached to LAW's complaint were copies of the City's July 18, 2001 responses to LAW's FOIA request.
On August 29, 2002, Judge Leiber dismissed this lawsuit with prejudice. Judge Leiber's order of dismissal states as follows:
This matter having come before the Court on Plaintiff's motion for summary disposition and for sanctions against Defendants for failure to provide or permit discovery, and the parties having filed pleadings in support of their various positions; and, this Court having heard counsels' arguments; and, this court further fully advised in the premises;
NOW, THEREFORE, IT IS HEREBY ORDERED that for the reasons set out in this Court's oral opinion rendered from the bench August 16, 2002 that Plaintiff's Motion For Summary Disposition And For Sanctions Against Defendants For failure To Provide or Permit Discovery and Plaintiffs additional request for sanctions set out in the Response of Plaintiff Local Area Watch, To the Court's Request Regarding Its Position On Sanctions For The Failure of The City To Respond To Plaintiff's Motion For Summary Disposition And Sanctions In A Timely Manner Under MCR 2.116(G)(1)(A)(ii) is hereby and herewith denied.
IT IS FURTHER ORDERED AND ADJUDGED that for the reasons set out in the Court's oral opinion rendered from the bench on August 16, 2002 that the Plaintiff's action is hereby dismissed with prejudice and without costs.
IT IS FURTHER ORDERED AND ADJUDGED that the Court's preliminary injunction entered in this matter on July 5, 2002 is hereby and herewith rescinded and set aside.
(8/29/2002 Order, docket #25, Ex. 5). On September 17, 2002, LAW filed a claim of appeal through attorney Peter W. Steketee. (docket #25, Ex. 6). It appears that this case is still pending before the Michigan Court of Appeals. See The Local Area Watch v. City of Grand Rapids, et al., No. 243849 (Mich.Ct.App.).
Third Lawsuit
On April 15, 2002, Proto-CAM, Inc., Bend Tooling, Inc. and Tennine Corp. filed a related third lawsuit in Kent County Circuit Court. See Proto-CAM, et al. v. Robert F. Wardrop, II, et al., No. 02-03723-NZ (Kent County Circuit Court) (docket #48, Ex. A; docket #37, Ex. B-1) (subsequently amended and renamed William Q. Tingley III, et al. v. 900 Monroe L.L.C., et al., No. 02-03723-NZ (" 900 Monroe case")). (docket #37, Ex. B-2; docket #48, Ex. C). The first page of the initial complaint advised the court that this lawsuit was related to the 940 Monroe case. The related case was assigned to Judge Soet pursuant to state and local court rules. (Soet Aff, ¶ 1, docket #72). Paragraph one of the complaint stated, "This is an action to recover damages Proto-CAM Inc. and related entities suffered as a consequence of coercive and fraudulent acts committed by Defendants. Defendants are attorneys who twice committed fraud upon the court to obtain for their clients a valuable facility belonging to the Plaintiffs. This facility was vehicle access to their client's property and was worth many millions of dollars to their clients. Defendants knowingly made false statements, used false pretenses, and manufactured false evidence to deceive the court and thereby obtain and then hold onto the facility for their clients without compensation or consideration to Plaintiffs. As a consequence Defendants caused significant damage to Plaintiffs and unjustly enriched their clients at Plaintiffs' expense." (docket #48, Ex. A, ¶ 1). The six defendants named in the original complaint were attorneys and law firms representing plaintiffs' opponents in the above lawsuits: Robert F. Wardrop II; William J. Fisher III; Todd R. Dickinson, Wardrop Wardrop, P.C.; Dickinson Wright P.L.L.C.; and Fisher Dickinson, P.C. The complaint alleged that attorneys William Fisher and Todd Dickinson and their firms of Dickinson Wright and Fisher Dickinson had represented "the Developers": 940 Monroe L.L.C.; 900 Monroe L.L.C. and Pioneer, Incorporated. Attorney Wardrop of the firm Wardrop Wardrop, P.C. had represented Riverfront Fitness Center in the preparation and execution of quitclaim deeds to the driveway allowing use of an easement in the Berkey Gay renovation project. The complaint asserted that the quitclaim deeds were part of a "sham transaction." It further asserted that Attorney Fisher, representing his clients and attorney Wardrop, as a witness, "deceived Judge Soet" during hearings in the 940 Monroe case, resulting in Judge Soet's denial of plaintiffs' motions for injunctive relief and for summary judgment in that case. The complaint also claimed that the developers, assisted by their attorneys, had violated numerous state and federal environmental laws.
The three original plaintiffs in the 900 Monroe lawsuit were corporations owned and operated by the Tingleys: Proto-CAM, Inc.; Bend Tooling, Inc.; and Tennine Corporation. The complaint stated that these corporations were Michigan corporations. Tennine Corporation was identified as owning a manufacturing plant located at 1009 Ottawa Avenue, N.W., in Grand Rapids, Michigan. The complaint stated that Tennine leased the plant to Proto-CAM, Inc. and Bend Tooling, Inc. Proto-CAM manufactured machined products. Bend Tooling marketed and sold the products Proto-CAM manufactured. (docket #48, Ex. A, ¶¶ 2-4). William Q. Tingley III, a non-attorney, purported to represent all three corporate entities and signed the complaint as general manager of Proto-CAM, Inc. ( Id., p. 15).
On May 17, 2002, Judge Soet conducted a hearing on a series of motions, including a motion by plaintiffs asking Judge Soet to disqualify himself as the presiding judge because, among other things, Tingley III intended to take Judge Soet's deposition and call Judge Soet as a witness at trial. (docket #25, Ex. 8). Judge Soet denied plaintiffs' motion to disqualify, stating as follows:
I'll address the motion to disqualify first, and then, I might have a few other generalized comments in the context of what we're dealing with here.
The problem with the motion to disqualify is that it's essentially based, first, on the assertion that I have personal knowledge of the facts, which to a degree is true, because I'm the Judge in the prior case, which most of the allegations seem to arise, so I might have some knowledge of some of the facts.
But then if you look at Rule 2.113(c)(2), anybody filing a complaint has to state on the complaint whether or not there is any other transaction or occurrence arising — or if there's any other pending action arising out of the same transaction or occurrence, and the reason for that rule is that under our local court rule, that means that the case has to be assigned to the same Judge, because he has knowledge of the prior case.
But the basic problem that you've got, Mr. Tingley, is that you can't take my deposition, and you can't call me as a witness. There is lots of precedent that no party may call a Judge to take his deposition for the purpose of asking him what he thought of a particular case, or what his reasons were for the rulings that he made, or what his impressions were.
Specifically, you might want to read Wood v. General Teamsters Union Local 406, that's Western District of Michigan, 1984, it's 583 F. Supp. 1471, and the particular material is on page 1473, and I've made a copy of that opinion, and I'll be happy to give it to each of the attorneys.
The reason is that Courts speak only from the bench. They do not speak off the bench. Any reasons that I had for any ruling that I've made is contained in my comments from the bench or in the opinions that I've written. No one is allowed to call me as a witness or take my deposition to inquire behind that as to what my reasons were. It's simply prohibited.
I'll be happy to give each of you, and I've presented here on the bar, a copy of that opinion. It's an opinion by Judge Gibson, in a local action, and he outlines at some length a large number of cases which hold to that effect. So basically you can't take my deposition, and you can't call me as a witness. It's prohibited by law.
That's the ruling on this motion, and I'll be happy to send it to Judge Buth for him to review.
This sentence addressed plaintiffs' argument that if Judge Soet did not grant his motion, he would appeal the decision to the Chief Judge.
This sentence addressed plaintiffs' argument that if Judge Soet did not grant his motion, he would appeal the decision to the Chief Judge.
The motion is denied.
(docket #25, Ex. 8, 5/17/2002 Transcript ("TR"), at 12-13).
Plaintiffs appealed Judge Soet's decision denying the motion to disqualify. On June 19, 2002, Kent County Circuit Court Chief Judge George S. Buth affirmed Judge Soet's decision. Tingley, Tingley III and Bradley appealed this decision to the Michigan Court of Appeals. (docket #48, Ex. B). The record does not indicate that any of the corporate plaintiffs participated in the appeal.
Judge Soet then took up the issue of non-attorney Tingley III's efforts to represent the three corporate plaintiffs. Judge Soet advised Mr. Tingley III that he could sue on his own behalf, but the corporations had to be represented in court by an attorney. (TR at 14-17). Judge Soet also held that the statements made by witnesses in court and statements made by attorneys in court and in their pleadings were privileged.
There are some other problems that I think you're going to have to take a look at. Basically, I think you're alleging fraud, that's basically what you're saying, that the attorneys for defendants in this underlying case of Proto-Cam v. 940 Monroe lied, misstated facts, and that Mr. Wardrop, who was not an attorney in that case, but who was a witness for some of his activities as an attorney and who furnished, I think, a sworn affidavit, lied, and that you've been defrauded.
You've got several problems here. First of all, anything that a lawyer says in a pleading or in argument is absolutely privileged. You can't sue for it. If what he said is relevant to this action, then it's not a basis for a lawsuit. You can't sue him. The same is true for all statements by witnesses. They're absolutely privileged as long as they're relevant. You can't sue them.
The only recourse you have in those situations is if you feel that perjury was committed, you may apply to the prosecuting attorney and ask that he issue a warrant, and that's about all you can do.
But you've got some other problems here. You might want to read a couple of cases. Relative to the privilege enjoyed by attorneys for things said in pleadings and arguments, you can look at Hartung v. — oh, I'm having trouble reading my own handwriting, Hartung v. — it starts with an "S." I'll find it. The citation is 130 Mich. 177. It's a 1902 case. You might want to look also at Sanders v. Lesson Air Conditioning Corporation, that's a Supreme Court case, 362 Mich. 692. Relative to the privilege that witnesses have, you can look at Meyer v. Hubbell, 117 Mich App. 699.
See Hartung v. Shaw, 89 N.W. 701 (Mich. 1902).
See Sanders v. Lesson Air Conditioning Corp., 108 N.W.2d 761 (Mich. 1961).
See Meyer v. Hubbell, 324 N.W.2d 139 (Mich.Ct.App. 1982).
See Hartung v. Shaw, 89 N.W. 701 (Mich. 1902).
See Sanders v. Lesson Air Conditioning Corp., 108 N.W.2d 761 (Mich. 1961).
See Meyer v. Hubbell, 324 N.W.2d 139 (Mich.Ct.App. 1982).
(TR at 14-15).
Jude Soet explained to Tingley III the foundational defects in plaintiffs' fraud claim.
You're alleging basically fraud, I think, that's the basic — fraud or conspiracy to commit fraud. Causes of action, which is what legal claims are called, causes of action have specific elements. The elements of a fraud claim are that there is a statement of fact made.
Secondly, that the statement was false.
Thirdly, that the defendant knew it was false.
Fourthly, that the statement was made with the intention that the plaintiff rely upon it.
Fifth, that the plaintiff did rely upon it.
And sixth, that the plaintiff was damaged as a result of the reliance.
Now, I understand your claims, as best as I can make them out in reading your complaint, do state that the defendants, attorneys, and Mr. Wardrop as a witness made statements that were false, and they knew they were false. But you have to show and allege that you relied on them, that they made them and you believed them, and that you acted in reliance on it, and that you were damaged because you relied on it. And everything I've seen of the underlying case is you didn't believe it, you didn't agree with it, and you said so. So you've got some serious problems in trying to establish fraud.
Furthermore, there's a rule that says when you claim fraud, you've got to have specific pleadings, and the pleading has to specifically say what the statement was that was false and how you relied on it and why you were damaged by your reliance.
(TR at 15-16).
On June 19, 2002, Judge Soet issued an order granting leave to file an amended complaint with the understanding that any attorney representing the corporate plaintiffs in subsequent proceedings would necessarily have to address by amendment the defects in the original complaint highlighted during the hearing. Mr. Tingley III's response was not to retain licensed counsel for the corporate plaintiffs. Instead, on June 11, 2002, Mr. Tingley III filed a 152-paragraph first amended complaint, purporting to eliminate all the original corporate plaintiffs, adding the Tingleys and Daniel R. Bradley as the three named plaintiffs, and adding numerous claims against an expanded list of defendants. Daniel R. Bradley was identified as "the vice president and a director of Proto-Cam, Bend Tooling, and Tennine." "Together, Tingley III, Tingley, and Bradley were the sole owners and operators" of Proto-CAM, Bend Tooling and Tennine Corporation. (docket #37, Ex. B-2, First Amended Complaint, ¶¶ 8-10). The First Amended Complaint listed eleven defendants:
(1) 900 Monroe, L.L.C.; (2) 940 Monroe, L.L.C.; (3) City of Grand Rapids; (4) Dickinson Wright P.L.L.C.; (5) Dykema Excavators Inc.; (6) Fifth Third Bancorp; (7) Pioneer Incorporated; (8) Todd R. Dickinson; (9) William J. Fisher III; (10) John H. Logie; and (11) Robert F. Wardrop II.
The amended complaint acknowledged that this lawsuit was related to the 940 Monroe and LAW cases that had previously been filed in Kent County Circuit Court. In the amended complaint, the plaintiffs sought to recover compensatory and exemplary damages for "damages the Plaintiffs ha[d] suffered personally and to their business property as a consequence of Defendants' conspiracy to remove and disposed of hazardous waste from the site of the old Berkey Gay Furniture factory in violation of the Environmental Response Act, MCL 324.201101 et seq., and the Hazardous Waste Act, MCL 324.11101 et seq." (First Amended Complaint ¶ 1). The amended complaint alleged that defendants had "provoked and then abusively prolonged the litigation of Proto-CAM v. 940 Monroe to remove control of the driveway from plaintiffs to the Court, which Defendants could and did corrupt through fraud to prevent resolution of Plaintiffs' property rights until the Defendants' critical need for the facility had passed. After Defendants no longer needed the facility, they furthered their fraud on the court to deny Plaintiffs fair compensation for the benefit the Defendants received from the facility." (Id. ¶ 5). The amended complaint asserted "continued abuse of process" in the 940 Monroe case was in retaliation against the plaintiffs for plaintiffs reporting of "unlawful removal and disposal of hazardous waste to state and federal officials." Paragraph seven of the amended complaint, alleged that defendants' actions had "[1] injured the environment of the Berkey Gay site in violation of the Environmental Response Act; [2] injured the environment of the Monroe Avenue water filtration plant also in violation of the Environmental Response Act; [3] created an unlicenced hazardous waste landfill at the filtration plant in violation of the Hazardous Waste Act; and damaged the Plaintiffs' business and property, unjustly enriched themselves at Plaintiffs' expense, and caused personal injury to the Plaintiffs."
The amended complaint further alleged that the City of Grand Rapids sold defendant Dykema the Monroe Avenue filtration plant property to assist in the unlawful disposal of hazardous waste and assisted other defendants in concealing such disposal. Plaintiffs claimed that defendant Logie and the City obstructed discovery in the LAW case and violated Michigan's Open Meetings Act. Defendant Dickenson Wright purportedly obstructed discovery in the LAW case. Defendant Fifth Third purportedly directed Pioneer to improperly dispose of hazardous waste, and "also acted to conceal Defendants' conspiratorial acts by withholding from government review a fraudulent environmental site assessment of the Berkey Gay site and by obstructing the Plaintiffs' discovery in the matter of Proto-CAM v. 940 Monroe." The amended complaint claimed that attorney Dickinson "abusively prolonged" litigation of the 940 Monroe case to facilitate the removal of hazardous waste. Facilitating unlawful removal of hazardous waste was added to the list of purported misdeeds by defendant Fisher in representing his clients in the 940 Monroe litigation and by defendant Wardrop in providing testimony in the 940 Monroe case. Finally, with regard to defendant Logie, plaintiff alleged as follows:
Defendant John H. Logie ("Logie") is Mayor of the City of Grand Rapids and a senior partner of the law firm Warner Norcross Judd L.L.P, of which defendant Fifth Third is one of its largest clients. . . . As Mayor Logie, on information and belief, made an agreement with defendant Wardrop that the Plaintiffs' rights to their driveway would not be enforced against Defendants, which had its effects in Proto-CAM v. 940 Monroe. He also arranged and approved the sale of the Monroe Avenue water filtration plant to defendant Dykema for the purpose of "storing dirt" in its defunct concrete water tanks, waived enforcement of the contractual ban on landfilling the filtration plant with the hazardous waste removed from the Berkey Gay site, and then obstructed public inquiry into the unlawful disposal of hazardous waste at the filtration plant. Logie continues to assist in the concealment of the Defendants' conspiratorial acts by, upon information and belief, directing the destruction of documents evidencing such acts after they were requested in discovery in the matter of Local Area Watch v. City of Grand Rapids.
(First Amended Complaint, ¶ 19). The First Amended Complaint listed nine separate counts: (I) violations of the Michigan Environmental Response Act at the project site; (II) violations of the Michigan Environmental Response Act at the Monroe Avenue filtration plant; (III) Hazardous Waste Act violations; (IV) fraud on the court; (V) conspiracy; (VI) abuse of process; (VII) unjust enrichment; (VIII) unjust enrichment; and (IX) exemplary damages.
The case was subsequently renamed William Q. Tingley III et al. v. 900 Monroe, LLC, et al., No. 02-03723-NZ. On July 11, 2002, Judge Soet issued an opinion and order setting aside the portion of the amended complaint which purported to dismiss the claims of all three of the original corporate plaintiffs. Judge Soet observed that the posture of the case was "one of those strange and awkward situations which arise when non-lawyers practice law." (Op. at 2). Judge Soet's opinion detailed how the amended complaint had "completely changed" the substance of the original complaint. (Op. 3-4). Judge Soet's opinion explained that because the parties had not stipulated to the dismissal of the corporate plaintiffs as required by the Michigan Court Rules, the corporations remained parties to the 900 Monroe case.
Judge Soet's opinion summarized the initial 940 Monroe case as a "case involving the scope and extent of an easement." He described how the defendants in the 900 Monroe case were, "respectively, a key witness in that case [940 Monroe case, Wardrop] and the attorneys representing the defendants in that case." (Op. 2, docket #112, Ex. 1). Judge Soet's opinion recounted the significant defects in the original complaint the court had identified at the May 17, 2002 hearing. Judge Soet explained how the court's order allowing leave to amend had been signed by the court to "enable Mr. Tingley to obtain counsel who would then have an opportunity to make whatever amendments were necessary to state a viable cause of action if one existed . . . [and] in the belief that an Amended Complaint would bring some order out of what had previously amounted to legal chaos." (Op. 2-3).
Plaintiff Tingley did not file a Motion for Leave to Amend the Complaint. In submitting the Order he failed to comply with MCR 2.602(B). The Court orally agreed on the record in the course of a hearing on a different motion to allow him to amend because in the posture in which the case then sat Mr. Tingley needed to have an attorney represent the plaintiffs and any attorney might wish to file an Amended Complaint. At the time it signed the Order allowing the amendment the Court did not realize that Mr. Tingley's First Amended Complaint would simply eliminate all the plaintiffs and present an entire new case and cause of action replete with a large number of new defendants. This as the movants have pointed out would prevent them from seeking to recover attorneys fees and costs against the plaintiff corporations which have been dismissed from the case without the Court's prior knowledge. The dismissal violates MCR 2.504(A) because answers had been filed, the parties had not stipulated to the dismissal and the Court was unaware that Mr. Tingley was going to dismiss all the plaintiffs in the case. Furthermore, defendants have a reasonable position to advocate as the original Complaint at least facially appears to be without any redeeming legal merit. Hence, defendants were entitled to pursue remedies available to them by seeking such a finding and order for sanctions permissible under MCR 2.114 and MCL 600.2591.
(Op., 4-5). The corporate plaintiffs therefore remained parties in the case, and the defendants could proceed against the corporate plaintiffs for "expenses and reasonable attorney fees" incurred in defending the lawsuit. (Op. 6). The Court declined to set aside the entire first amended complaint because "that would simply require the same Complaint to be filed again as we are sure Mr. Tingley is prepared to do. That would be needlessly repetitious and would serve no useful purpose." ( Id.).
On July 22, 2002, the Circuit Court dismissed this action. Judge Soet's order dismissing all plaintiffs' claims against all defendants stated as follows:
This Court having considered the brief and arguments on July 19, 2002 and placed its Opinion on the record at such time, now
IT IS ORDERED that Counts I and II alleging violations of the Environmental Response Act are dismissed as against defendants Dickinson, Fisher, Wardrop and Dickinson Wright, P.L.L.C. pursuant to MCR 2.116(C)(8) and (C)(10) for failure to give notice as required by MCL 324.20135(3)(a)(iii); and
IT IS FURTHER ORDERED that the Court having found them frivolous and without legal merit Count IV "Fraud on the Court", Count VI "Abuse of Process", Count VII "Unjust Enrichment" and Count VIII "Unjust Enrichment" are dismissed pursuant to MCR 2.116(C)(8) and (C)(10) as against defendants Dickinson, Fisher, Wardrop and Dickinson Wright, P.L.L.C.; and
IT IS FURTHER ORDERED that, the Court having found that the in propria persona plaintiffs Tingley, Tingley and Bradley are not the real parties in interest and that plaintiff William Q. Tingley is unlawfully practicing law on behalf of others, all Counts of the First Amended Complaint and the original Complaint are dismissed pursuant to MCR 2.116(C)(8) and (C)(10) as against all defendants; and, lastly
IT IS ORDERED that should William Q. Tingley III file additional in propria persona litigation or other litigation acting as counsel the Clerk of the court shall refer it to the Chief Judge who may make a determination as to whether such litigation shall be accepted for filing.
(docket #25, Ex. 10; docket #37, Ex. C).
On or about August 8, 2002, William Q. Tingley, William Q. Tingley III and Daniel R. Bradley filed a claim of appeal with regard to Judge Soet's July 22, 2002 order. The notice of appeal did not reflect that any corporate plaintiff participated in the appeal. (docket #37, Ex. I; docket #48, Ex. E).
On September 6, 2002, Judge Soet granted the motion for sanctions by Fisher Dickinson P.C., William J. Fisher, and Todd R. Dickinson. The court awarded sanctions in favor of these defendants in the amount of $6,630.00, payable by plaintiffs William Q. Tingley III; ProtoCam, Inc.; Bend Tooling, Inc., and Tennine Corporation. (docket #112, Ex. 4). Judge Soet's September 6, 2002 opinion (docket #112, Ex. 3) flatly rejected Tingley's assertion that Judge Soet had acted arbitrarily in reinstating the corporations as plaintiffs.
Finally, plaintiff Tingley asserts that the court arbitrarily ordered the corporate [plaintiffs] in this action, Proto Cam, Inc., Bend Tooling Inc. and Ten Nine Corporation to be reinstated as plaintiffs in this action. Allegedly, the court did this to enable it to accuse plaintiff Tingley of representing corporations although he was unauthorized to practice law. Plaintiff describes this as "corrupt." In fact, what occurred is that in a hearing on June 7, 2002 the court very carefully explained three things to Mr. Tingley. First, that as a lay person he could not appear and represent the corporate [plaintiffs] who were the original plaintiffs in this action. Second, that he had completely failed to state the elements of a cause of action for fraud and misrepresentation both because the allegations in the original complaint (A) did not state the elements of fraud, and (B) were not particularized in their description of the alleged fraud. Third, there was an absolute privilege which extended to statements made by counsel and witnesses in the course of litigation. The Court suggested that plaintiff Tingley obtain counsel to represent plaintiffs and agreed to sign an order granting leave to amend the complaint. The court did this so that any lawyer that Mr. Tingley might hire could file a complaint which actually stated recognizable causes of action. Mr. Tingley submitted an order granting leave to amend which the court signed and then used it to dismiss all of the plaintiff corporations and replace them with himself and two other individuals. He added sweeping allegations of environmental misconduct and added numerous defendants while repeating his original allegations of fraud and misrepresentation. He then reappeared in propria persona. Unfortunately, the corporations whom he dismissed were the real parties in interest. Defendants objected to the dismissal of the corporations as the court had made plain on the record previously that the allegations of fraud and misrepresentation in addition to failing on technical grounds might also fail because there was an absolute privilege protecting the defendant attorneys and Mr. Wardrop who was a witness in the underlying action. They objected because they felt the original complaint had been frivolous and without merit and that they should be able to pursue sanctions against the plaintiff corporations.
(Op. at 4-5).
Judge Soet's September 6, 2002 opinion also engaged Mr. Tingley's assertion that Judge Soet had pressured Dickinson into calling Wardrop as a witness so that Soet could grant Wardrop immunity.
[P]laintiff Tingley asserts that on May 20, 2002 this court informed defendant Dickinson that defendant Wardrop had a "credibility problem" and pressured defendant Dickinson into calling Wardrop as a witness thereby enabling the court to hold that Wardrop' s testimony was privileged. (Defendant Wardrop had previously in the presence of all counsel in the court's chambers in the underlying action advised the court of certain factual matters). Mr. Tingley asserts that the court did this to enable it to grant Wardrop immunity for his statements of fact. Mr. Tingley is apparently referring to the court's comment on the record at the commencement of trial on May 20 that plaintiffs motion for partial summary disposition which the court denied in a written opinion had served as useful purpose as it enabled the court to spend a number of days working on the documentation and exhibits prior to trial. The court did say that while it thought that it might be able to grant summary disposition for one party and then thought it might be able to grant it for the other, it finally decided that there were questions of credibility which needed determination. Mr. Wardrop's name was not mentioned at that time. The reference the court made relates to the written opinion which it entered on February 12, 2002 denying plaintiffs motion for reconsideration of its prior denial of plaintiffs motion for partial summary disposition. In its opinion at that time the court pointed out that, based upon the sworn affidavit of Mr. Wardrop filed by defendants in the underlying action there were unresolved questions of fact which prevented the court from granting the motion. None of this amounts to the court pressuring Mr. Dickinson (a defendant in this action) to call Mr. Wardrop as a witness in the underlying action.
(Op. 2-3, docket #112, Ex. 2).
On September 10, 2002, plaintiff William Tingley III filed a motion asking Judge Soet to set aside the July 22, 2002 order and "all related orders granting sanctions." (docket #37, Ex. K). Judge Soet denied the motion.
On September 17, 2002, Judge Soet granted a motion for sanctions by Dickinson Wright P.L.L.C. The court imposed sanctions in the amount of $11,796.25 against William Q. Tingley III; Proto-CAM, Inc.; Bend Tooling, Inc., and Tennine Corporation. On September 17, 2002, the court granted the motion for sanctions by Wardrop Wardrop, P.C. and Robert F. Wardrop. The court awarded sanctions in the amount of $5,549.25 against plaintiffs. On September 20, 2002, the court granted the motion for sanctions by Dykema Excavators. The court awarded sanctions in the amount of $847.43, payable by the same parties. On September 23, 2002, Judge Soet, pursuant to MCR 2.114 and Mich. Comp. Laws § 600.2519, granted Fifth Third Bancorp's motion for sanctions. The court again awarded sanctions against William Q. Tingley III; Proto-CAM, Inc.; Bend Tooling, Inc., and Tennine Corporation. The monetary sanctions in Fifth Third's favor totaled $3,797.00. On October 7, 2002, Judge Soet granted the motion for sanctions by the City of Grand Rapids and John H. Logie. The court awarded sanctions in the amount of $1,185.79 against William Q. Tingley III; Proto-Cam, Inc.; Bend Tooling, Inc., and Tennine Corporation, bringing the total awarded to $29,805.72.
Plaintiffs filed this lawsuit in federal court on September 18, 2002, one day after the circuit court imposed monetary sanctions.
Plaintiffs pursued an appeal. Upon appeal, the Michigan Court of Appeals affirmed Judge Soet's decision. See Tingley v. 900 Monroe, et al., No. 242445 (Mich.Ct.App. Nov. 15, 2002). Nothing in the record suggests that plaintiffs sought leave to appeal this decision to the Michigan Supreme Court or petitioned the United States Supreme Court for a writ of certiorari.
Fourth Lawsuit
On September 25, 2002, plaintiff William Q. Tingley III filed yet another lawsuit in Kent County Circuit Court. William Q. Tingley III v. Ward A. Kortz et al., No. 02-09503-CE ( Kortz case). The complaint (docket #37, Ex. E) listed nine defendants: Ward A. Kortz: 900 Monroe, L.L.C.; 940 Monroe, L.L.C.; City of Grand Rapids; Dickinson Wright, P.L.L.C.; Dykema Excavators Inc.; Fifth Third Bancorp; Pioneer Incorporated; and Superior Environmental Corporation. Mr. Kortz was allegedly an employee of Pioneer who operated a front-end loader and dump truck in the Berkey Gay excavation. Plaintiff Tingley III claimed that defendants' actions chronicled in paragraphs 1-105 of the complaint violated Michigan's environmental laws.
On November 15, 2002, the Honorable George S. Buth, Chief Judge of the Kent County Circuit Court, issued the following Order of Dismissal and Sanctions.
The Court having reviewed Plaintiff's Complaint and Request for Determination, and the Court having reviewed the file in the matter entitled William Q. Tingley III et al. v. 900 Monroe LLC, et al., Case No. 02-03723-NZ, and the Court having heard Plaintiffs arguments in open court and being otherwise fully advised of the premises;
IT IS ORDERED that, the Court having found that plaintiff William Q. Tingley III filed this lawsuit in violation of the Court's July 22, 2002 Order entered in William Q. Tingley III et al. v. 900 Monroe, LLC, et al., Case No. 02-03723-NZ, this lawsuit is hereby dismissed in its entirety with prejudice.
IT IS FURTHER ORDERED, for the reasons set forth from the bench, that William Q. Tingley III is hereby sanctioned for bringing this action, and he shall pay all the costs, attorneys fees, and/or damages in the equivalent of attorneys fees that Defendants have incurred in the defense of this action; and
IT IS FURTHER ORDERED that the Defendants shall have fourteen days from entry of this Order to submit their respective Bills of Costs to the court relating to the sanctions imposed by this Order.
On January 10, 2003, plaintiff Tingley III filed an appeal of this decision in the Michigan Court of Appeals. See Tingley v. Kortz, et al., No. 245974 (Mich.Ct.App.).
Fifth Lawsuit
On May 13, 2002, William Q. Tingley III, William Q. Tingley, and The Local Area Watch filed a pro se complaint in this court purporting to bring a qui tam action under the False Claim Act, 31 U.S.C. § 3729, ostensibly on behalf of the federal government. The initial complaint was captioned as United States of America ex. rel. The Local Area Watch v. 900 Monroe, L.L.C., et al., No. 1:02-cv-319 (W.D. Mich.). Paragraph 7 of the complaint stated, "Plaintiff and Relator, the Local Area Watch ("LAW") is a Michigan non-profit corporation whose principal place of business is Grand Rapids, Michigan. LAW is chartered by the State of Michigan to monitor public, non-profit, and government organizations for conflicts of interests, self-dealing, and other misconduct. LAW was organized by William Tingley and William Tingley III in September 2000 and incorporated in February 2001." Plaintiffs' complaint consisted of 106 numbered paragraphs and purported to assert: claims under the False Claims Act (Count I, Complaint p. 26) and a False Claims Act conspiracy (Count II, Complaint p. 27). This original complaint listed a total of twelve defendants. The original complaint was not signed by an attorney. It was signed by William Q. Tingley III as "Executive Director, The Local Area Watch."
"` Qui tam' is an abbreviation for the Latin phrase ` qui tam pro domino rege quam pro Si ipso in hac parte sequitur,' meaning `Who sues on behalf of the King as well as himself.'" United States v. Horizon Healthcare Corp., 160 F.3d 326, 329 n. 1 (6th Cir. 1998) (quoting BLACK'S LAW DICTIONARY 1251 (6th ed. 1990)).
On June 28, 2002, plaintiffs filed a first amended complaint listing William Q. Tingley and William Q. Tingley III as the named "relators." Plaintiffs listed four counts within the 130 numbered paragraphs of the amended complaint: (1) CERCLA violations; (2) Solid Waste Disposal Act violations; (3) False Claims Act violations; (4) and False Claims Act conspiracy. The amended complaint was not signed by any attorney. It was signed by "William Q. Tingley III in pro per" and "William Q. Tingley in pro per." On December 7, 2002, the United States declined to intervene in the purported qui tam action (docket #10). The first amended complaint listed a dozen defendants:
900 Monroe L.L.C.; 940 Monroe L.L.C.; Pioneer Incorporated; Dykema Excavators, Inc.; Fifth Third Bancorp; Superior Environmental Corp.; Prein Newhof, Inc.; Dickinson Wright P.L.L.C.; Frank D. Marshall; William J. Fischer III; John H. Logie; and Thomas Beckering.
In an accompanying opinion and judgment, this court has granted defendants' motions to dismiss the purported qui tam action and imposed sanctions against Tingley III, Tingley, and The Local Area Watch. The opinion in the companion case is incorporated herein by reference.
Sixth Lawsuit
On September 18, 2002, plaintiffs William Q. Tingley III, William Q. Tingley, and Daniel R. Bradley initiated this pro se lawsuit. The complaint named a now-familiar list of nine defendants, but added Spectrum Health Corporation and Kent County Circuit Court Judges Soet and Leiber to the list. The defendants are:
1. City of Grand Rapids; 2. Dickinson Wright, P.L.L.C. 3. Fifth Third Bancorp; 4. Spectrum Health Corporation; 5. Warner, Norcross Judd, L.L.P.; 6. Todd R. Dickinson; 7. William J. Fisher III; 8. Dennis B. Leiber; 9. John H. Logie; 10. Daniel A. Ophoff; 11. H. David Soet; and 12. Robert F. Wardrop II.
The complaint expresses significant dissatisfaction with the results achieved in the four state-court cases previously examined and with the participants in those court proceedings. Plaintiffs also express dissatisfaction with the government's response to the Tingleys' claims that the construction project at the neighboring Berkey Gay site was causing or had caused environmental damage. Plaintiffs attribute their lack of success on either front to a massive conspiracy. The opening paragraphs of the complaint constitute a representative sampling of plaintiffs' allegations:
1. On the afternoon of Friday, September 6, 2002, Defendant Soet denied, in direct violation of Michigan court rules, William Tingley III's request for an evidentiary hearing of his allegations of fraud on the court. Immediately afterwards outside on the steps of the Kent County Courthouse the Plaintiffs' lawyer Lee Silver, once out of earshot of any passerby, warned Tingley III of the futility of challenging corruption in the local court because his case will never get a fair hearing in Kent County Circuit Court. Silver continued that justice will only be had if the case were brought before another court. However, the Plaintiffs would be on their own to do so, because Silver was unwilling to take on a case that alleged wrongdoing by the local court and bar upon which his livelihood depended.
2. There exists within the Grand Rapids legal community a phalanx of powerful and influential attorneys, judges, and law enforcement officials who protect a corrupt enterprise of self-dealers looting government and nonprofit institutions from redress by denying due process to complainants seeking remedy through the Kent County Circuit Court, the City of Grand Rapids, and even the State of Michigan in some instances.
3. The Plaintiffs are such complainants who discovered financial abuse of the largest hospital in the Grand Rapids area by self-dealers and attempted to rectify this wrongdoing by various proper and lawful means, including a lawsuit filed in Kent County Circuit Court. The wrongdoing is serious, extensive and ongoing. It includes a pattern of professional misconduct, public corruption, self-dealing, bankruptcy fraud, tax evasion, money laundering, bank fraud and other illicit activity which Defendants have engaged in or abetted. In fact, this pursuit of self-dealt funds has even resulted in the poisoning of central Grand Rapids with the release of an estimated 157,000 pounds of hazardous substances into the environment in deliberate violation of state and federal environmental laws, which in turn instigated a cover-up of these violations from law enforcement officials by false affidavits and other obstruction of justice.
Plaintiffs claim violations of their rights under 42 U.S.C. § 1983, 1985 and 1986. (Complaint, ¶¶ 47, 74-95). Plaintiffs also contend that defendants violated state law through "malicious use of process" and "malicious use of sanctions."
Discussion
A. Plaintiffs Tingley III. Tingley. and Bradley Lack Authority to Bring a Pro Se Action on Behalf of Anyone Other Than Themselves.
Federal law specifies that cases in the courts of the United States may be conducted only by the parties personally or through counsel. 28 U.S.C. § 1654. The statute clearly makes no provision for a non-attorney's representation of others. Lay individuals do not have any constitutional right to be represented by or to represent other lay individuals. "That a non-lawyer may not represent another person in court is a venerable common law rule based on the strong state interest in regulating the practice of law." Heldt v. Nicholson, No. 99-2120, 2000 WL 1176879, at *1 (6th Cir. Aug. 10, 2000) (citing Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 231-32 (3d Cir. 1998) (collecting cases)).
Even if the issue had not been raised by the parties, this court would have an obligation to sua sponte consider whether the plaintiffs could represent the claims of others. See Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 125 (2d Cir. 1998); see also McPherson v. School Dist. No. 186, No. 00-3318, 2002 WL 648980, at *1 (7th Cir. Apr. 18, 2002); accord Osei-Afriyie v. Medical College, 937 F.3d 882-83 (3d Cir. 1991). Plaintiffs are not licensed attorneys. It is patent that they are not authorized to pursue any claim on behalf of other persons, corporations, or government entities.
It is well established that private citizens lack standing to initiate criminal proceedings. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); Associated Builders and Contractors v. Perry, 16 F.3d 688, 692-93 (6th Cir. 1994).
By statute, plaintiffs are only authorized to pursue their own claims pro se. "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." 28 U.S.C. § 1654 (emphasis added); see Shepherd v. Wellman, 313 F.3d 963, 970-71 (6th Cir. 2002). Plaintiffs are not authorized to represent their corporations. See Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993); see also Systems Mgt. Am. Corp. v. England, No. 01-1164, 2001 WL 1563981, at *1 n. 1 (Fed. Cir. Nov. 21, 2001) (corporation must be represented by counsel and the statutory requirement cannot be waived); Pritchard v. Lubman (In re Tamojira, Inc.), Nos. 01-1482, 01-1483, 2001 WL 1129122, at *1 (4th Cir. Sept. 25, 2001) ("well settled that a corporation must be represented by an attorney in federal court"); Securities Exch. Comm'n v. Novaferon Labs, Inc., No. 91-3102, 1991 WL 158757 (6th Cir. Aug. 14, 1991). Furthermore, as shown in greater detail in the court's opinion in the companion case (case no. 1:02-cv-319 (W.D. Mich.)), pro se parties are not authorized to represent the United States in bringing a qui tam action. See United States v. Onan, 190 F.2d 1 (8th Cir. 1951); United States ex rel. Schwartz v. TRW, Inc., 118 F. Supp.2d 991, 994 (C.D. Cal. 2000). Accordingly, all claims brought by plaintiffs on behalf of anyone other than the three named plaintiffs Tingley III, Tingley and Bradley must be dismissed. Tingley, Tingley III and Bradley are limited to bringing their own individual claims.
B. This Court Lacks Appellate Jurisdiction Over the Kent County Circuit Court and Direct Supervisory Authority Over the Michigan Court of Appeals.
The federal courts are courts of limited jurisdiction, and plaintiffs have the burden of proving the court's jurisdiction. Fisher v. Peters, 249 F.3d 433, 444 (6th Cir. 2001); United States ex rel. Jones v. Horizon Healthcare Corp., 160 F.3d 326, 329 (6th Cir. 1998). Even where subject-matter jurisdiction is not raised by the parties, the court must consider the issue sua sponte. See Norris v. Schotten, 146 F.3d 314, 324 (6th Cir. 1998); Mickler v. Nimishillen Tuscarawas Ry. Co., 13 F.3d 184, 189 (6th Cir. 1993); see also Hyman v. City of Louisville, No. 01-5531, 2002 WL 31780201, at *2 (6th Cir. Dec. 9, 2002); accord Securities Exch. Comm'n v. Basic Energy Affiliated Resources, Inc., 273 F.3d 657, 665 (6th Cir. 2001). Plaintiffs invoke this court's federal question jurisdiction under 28 U.S.C. § 1331 and seek to impose liability upon the defendants pursuant to 42 U.S.C. § 1983, 1985 and 1986. Plaintiffs also purport to bring state law claims for malicious use of process, malicious use of sanctions, and fraud. Plaintiffs are dissatisfied with the results they have achieved thus far in state court. The recourse available to plaintiffs in response to adverse state-court decisions was to pursue timely appeals in the Michigan Court of Appeals, thereafter seek leave to appeal to the Michigan Supreme Court, and if necessary, to apply for a writ of certiorari to the United States Supreme Court. This court lacks jurisdiction to review the state-court decisions plaintiffs attempt to challenge in this lawsuit. See District of Columbia Circuit Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); United States v. Owens, 54 F.3d 271, 274 (6th Cir. 1995)
C. Section 1985 Claims Against All Defendants
Plaintiffs' purported "conspiracy" claims against defendants under 42 U.S.C. § 1985 suffer from numerous fatal flaws. Discussion of only the most obvious defects will suffice for purposes of this opinion. Plaintiffs' complaint is limited to alleged violations of § 1985(2). ( See Complaint, ¶¶ 89, 91-95). Section 1985(2) states as follows:
As is shown in greater detail herein, plaintiffs attempt to assert additional claims under section 1985 for the first time in their brief.
(2) Obstructing justice; intimidating party, witness, or juror
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.
There are two distinct clauses in subsection 2 of section 1985. The first clause relates to intimidation of witnesses or parties in federal proceedings. Claims under this first clause do not require allegations of class-based animus. See Kush v. Rutledge, 460 U.S. 719, 726-27 (1983); see also Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999); Miller v. Dowagiac Police Dep't, No. 96-2141, 1997 WL 640127, at *5 (6th Cir. Oct. 14, 1997). Not one of the 108 paragraphs of the plaintiffs' complaint alleges the existence of any other federal court proceeding, much less facts establishing an unlawful conspiracy to intimidate witnesses or parties to such federal court proceedings in violation of the first clause of § 1985(2). Apparently feeling completely unconstrained by their own complaint, plaintiffs' brief argues that there has been a conspiracy to obstruct plaintiffs as parties "to the matter of United States ex rel. Tingley v. 900 Monroe . . . from attending to this federal action, from testifying in it, and to injure the property of Plaintiffs on account of having initiated that action." (docket #96 at 18-19). There is absolutely nothing in the record of the companion qui tam lawsuit remotely supporting plaintiffs' assertions that plaintiffs had been prevented from attending court proceedings or testifying in that case. Rather, the voluminous filings in the companion case would support a finding directly to the contrary. Furthermore, as pro se parties, the plaintiffs lacked authority to bring a qui tam action on behalf of the United States. See United States v. Onan, 190 F.2d 1 (8th Cir. 1951); United States ex rel. Schwartz v. TRW, Inc., 118 F. Supp. 991, 994 (C.D. Cal. 2000).
What plaintiffs are attempting to do in their section 1985 action is challenge the sanctions imposed by the state courts for the plaintiffs' litigation abuses in state court. Their brief makes this point pellucid. Plaintiffs argue that defendants "City, Dickinson Wright, the Bank, Dickinson, Fisher, Logie, Ophoff, and Wardrop" have "conspired to deter by force of the state court and financial intimidation . . . and in the furtherance of the object of this conspiracy, each of these Defendants maliciously prosecuted Plaintiff Tingley III for the unauthorized practice of law and sought sanctions as against all Plaintiffs without probable cause specifically as a means to stop the Plaintiffs from ever raising again the issue of the Enterprise's violations of Environmental law." (docket #96 at 18-19). Plaintiffs may not relitigate the issue of state court sanctions in this court.
Plaintiffs' brief laments that Fifth Third has "threatened Plaintiffs' business relationship with it because of their involvement in federal lawsuits against it." Specifically, Tingley III contends that, "On November 26, 2002, George Bailey and Matthew McGowan, loan officers of the Bank met with me. Bailey threatened to terminate the business relationship I have with the bank if I did not turn over information to the bank that would facilitate the collection of sanctions against me." (Ex. 2, ¶ 13, docket #96). Tingley III and related corporations are judgment debtors of Fifth Third Bank. The bank obviously has the right to look after its own business interests, which may include electing not to continue doing business with Tingley III or businesses he controls if they fail to pay their debts.
In the same vein, plaintiffs argue that "Wardrop provoked the Plaintiffs' legal counsel, Silver Van Essen, to breach its fiduciary duty of loyalty and retaliate against the Plaintiffs for filing this lawsuit." (docket #96 at 19). Once again, plaintiffs' argument is devoid of moorings in the complaint. Wardrop purportedly informed Lee Silver of Silver Van Essen P.C. that this lawsuit had been filed. Plaintiffs' lawsuit is not a secret. It is a matter of public record. Silver VanEssen sought to withdraw from state court representations. Mr. Tingley III resisted their efforts. The attorneys subsequently filed motions with the state court seeking leave to withdraw from the representation. The state court found that under the circumstances, withdrawal was justified and granted the motion. Thereafter, Silver Van Essen filed a lawsuit on December 3, 2002, to collect payment of unpaid legal bills. (docket #96, Ex 2, ¶ 12). Nonparties Silver Van Essen had no obligation to continue doing business with clients who refused to pay for services rendered. More directly to the point, nothing in plaintiffs' frivolous argument remotely supports plaintiffs' assertion that defendants violated the first clause of § 1985(2).
Plaintiffs seek summary judgment as to the defendants' liability under the second clause of § 1985(2) on the basis of a claimed conspiracy to "obstruct Proto-CAM v. 940 Monroe" (Plfs. Brief at 14-16) and a conspiracy to "obstruct and defeat" plaintiffs' lawsuit in " Tingley v. 900 Monroe." (Plfs. Brief at 17-18). Defendants are clearly entitled to judgement in their favor because plaintiffs' complaint fails to state a claim upon which relief can be granted under the second clause of section 1985(2). Plaintiffs have not alleged the requisite membership in a protected class or class-based animus necessary to support a claim under the second clause of section 1985(2). See Miller, 1997 WL 640127, at *5; Greco v. Fitzpatrick, No. 94-2248, 1995 WL 373108, at *1 (1st Cir. June 23, 1995)("to state a cause of action under the second clause of 42 U.S.C. § 1985 (2), plaintiff was required to allege class-based, invidiously discriminatory animus"); Daigle v. Gulf State Utilities Co., 794 F.2d 974, 979 (5th Cir. 1986); Harrison v. Springdale Water Sewer Comm'n, 780 F.2d 1422, 1429 (8th Cir. 1986); McDuffy v. Degeorge Alliance, Inc., No. 99014205LR, 2002 WL 1858779, at *4 (D. Del. Aug. 9, 2002); Lodal, Inc. v. Great Am. Ins. Co., No. 2:00-cv-180, 2001 WL 1699213, at *7 (W.D. Mich. Sept. 19, 2001). Plaintiffs have not presented any specific allegations how each defendant denied each plaintiff access to the state court because of the plaintiffs' membership in a protected class. See Bragg v. Madison, No. 00-3237, 2001 WL 1041764, at *6 (6th Cir. Aug. 31, 2001); Nielson v. Legacy v. Health Sys., 230 F. Supp. 1206, 1220 (D. Ore. 2001). Plaintiffs' allegations of an economically motivated conspiracy among defendants does not suffice. See Nowicki v. Ullsvik, 69 F.3d 1320, 1325 (7th Cir. 1996); see also Breslin v. Brainard, No. 01-CA-7269, 2002 WL 3153425, at *9 n. 14 (E.D. Pa. Nov. 1, 2001); Archbold v. Northwest Community Hosp., Ass'n, No. 98-43 13, 1999 WL 518933, at *2 (7th Cir. July 16, 1999)("Archbold's claim under clause two of § 1985(2) fails because that section applies only to conspiracies with a racial or other class-based discriminatory motive, not to conspiracies with an economic motive such as the one Archbold alleges.").
Furthermore, the right to sue for damages for an alleged violation of section 1985(2) clause 2 is limited to parties. Being a witness is insufficient. See Blankenship v. McDonald, 176 F.3d 1192, 1196 (9th Cir. 1999); see also Powers v. Fallman, No. 00-16646, 2002 WL464013, at *1 (9th Cir. Mar. 14, 2002)("a witness who is not a party to the [precedent] litigation cannot show an injury cognizable under § 1985(2)); Heffernan v. Hunter, No. 97-6041, 1998 WL 150953, at *3 (E.D. Pa. Mar. 26, 1998) (the statute `does not extend the right to sue to `any witness'"). Tingley III, Tingley and Bradley were not parties to the LAW and 940 Monroe cases. Those cases were brought by corporations through licensed counsel. The remedies of relief under section 1985(2) clause 2 is limited to parties.
Finally, plaintiffs argue that they are entitled to judgment as a matter of law as to the defendants' liability under 42 U.S.C. § 1985 (3). (Plfs. Brief at 13-14 and 16-17). Under section 1985(3), plaintiffs must plead a conspiracy motivated by racial or other class-based discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971); see also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268-278 (1993). Plaintiffs' complaint does not contain even a hint of racial or class-based animus, and it is virtually impossible to imagine any under the facts alleged here. See Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th Cir. 1992) (land owners challenging rezoning regulation were not a "class" within the meaning of Breckenridge). Plaintiffs' complaint fails to state a claim under section 1985(3).
D. Section 1986 Claims Against All Defendants
Plaintiffs fail to state a claim upon which relief may be granted against any defendant under 42 U.S.C. § 1986. Section 1986 is merely a remedial provision for conspiracies properly alleged under section 1985. In the absence of a proper section 1985 claim, section 1986 provides no remedy. See Haverstick Enterprises, Inc. v. Financial Federal Credit Union, Inc., 32 F.3d 989, 993 (6th Cir. 1994); Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993); Koch v. Mirza, 869 F. Supp. 1031, 1039 (W.D.N.Y. 1994) (without violation of section 1985, there can be no remedy under section 1986).
It is purely for purposes of convenience that section 1986 is discussed in this section of the opinion. It would needlessly lengthen this opinion to set forth this Rule 12(b)(6) analysis of plaintiffs' claims under 42 U.S.C. § 1986 with regard to each individual defendant.
The court will now address plaintiffs' remaining claims against defendants under 42 U.S.C. § 1983 and state tort laws.
E. Judge Soet
1. Section 1983 Claims
The majority of the allegations made by plaintiffs Tingley III, Tingley, and Bradley are directed towards Judge Soet and are based upon rulings Judge Soet made in the 900 Monroe and 940 Monroe cases. For example, paragraph 80 of the complaint alleges as follows:
By means of his acts alleged herein, Defendant Soet, under color of his office as a judge of Kent County Circuit Court, deprived Plaintiffs Tingley III, Tingley, and Bradley, all United States Citizens, rights of redress in the courts in the matters of Proto-CAM v. 940 Monroe and Tingley v. 900 Monroe, access to the courts, an adversarial trial in those same matters, self-representation in court, due process, and equal protection.
It is patent that plaintiffs are attempting to relitigate those state-court cases under the guise of a civil rights action. This court lacks appellate jurisdiction over the Michigan trial courts. Younger abstention prevents this court from interfering with the ongoing 940 Monroe case.
See Younger v. Harris, 401 U.S. 37 (1971); Fieger v. Thomas, 74 F.3d 740, 744 (6th Cir. 1996); see also Ken-N.K. v. Vernon Twp., No. 98-1871, 2001 WL 1006265, at *3 (6th Cir. Aug. 23, 2001). This court has no doubt that Judge Soet would have already rendered a decision in the 940 Monroe case if it were not for the burdens imposed by the other lawsuits chronicled herein initiated by plaintiffs or their corporations.
Furthermore, Judge Soet is entitled to absolute judicial immunity upon plaintiffs' section 1983 claims. State judges enjoy absolute immunity from federal damage suits for acts performed in their judicial capacities, except for acts done in the clear absence of jurisdiction. See Pierson v. Ray, 386 U.S. 547 (1967); Alkire v. Irving, 305 F.3d 456, 469 (6th Cir. 2002). A claim that the state court judge acted "maliciously or corruptly" and in excess of his jurisdiction is insufficient to overcome judicial immunity. See Stern v. Mascio, 262 F.3d 600, 606 (6th Cir. 2001).
"[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872). This immunity applies to actions brought under 42 U.S.C. § 1983 to recover for alleged deprivation of civil rights. See Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The Supreme Court explained: "If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits. The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication. . . . Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability." Forrester v. White, 484 U.S. 219, 226-27, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988).Stern v. Mascio, 262 F.3d at 606.
The Supreme Court has made it clear that absolute judicial immunity is overcome in only two sets of circumstances." Mireles v. Waco, 502 U.S. 9, 11 (1991). First, a judge is not immune for non-judicial actions, i.e., actions not taken in a judicial capacity. Id. Second, a judge is not immune for actions, although judicial in nature, done in complete absence of all jurisdiction. Id. In determining whether certain conduct is judicial in nature, the court must adopt a functional approach, asking whether the act is one normally performed by a judge. Stump v. Sparkman, 435 U.S. 349, 362 (1978); Barnes v. Winchell, 105 F.3d 1111, 1116 (6th Cir. 1997).
Plaintiffs present several frivolous arguments in a hopeless effort to avoid judicial immunity. First, plaintiffs claim that the City of Grand Rapids "usurped defendants' judicial offices." Plaintiffs present the argument in these terms:
By executing City policy in concert with the other Defendants, Leiber and Soet acted as executives and not judges in protecting the Enterprise and its self-dealing backers from exposure by the Plaintiffs. The City of Grand Rapids has no judicial function and no authority over the Kent County Circuit Court. The City has no legitimate basis for providing judicial instructions to Leiber and Soet. The City cannot lawfully direct Leiber and Soet as judges. Therefore, when Leiber and Soet took direction from the City government to implement its policy concerning the Plaintiffs, they acted as executives — as does every other government official who implements City policy. Leiber and Soet allowed the City to usurp their judicial offices to execute its policy.
Plaintiffs are correct that the city (and county) lack authority over the state's circuit courts. The circuit court is part of Michigan's one court of justice and is entitled to Eleventh Amendment immunity. See MICH. CONST. 1963, art. 6 § 1; see also Bridges v. Senger, 730 F. Supp. 1401, 1405 (W.D. Mich. 1990); accord Alkire v. Irving, 305 F.3d 456, 467 (6th Cir. 2002) (Ohio judge entitled to Eleventh Amendment immunity "since Ohio law considers county courts arms of the state."). The Eleventh Amendment bars suit in federal court against a state and its departments or agencies unless the state has waived its sovereign immunity or unequivocally consented to be sued. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The State of Michigan has not consented to civil rights suits in federal court. See Abick v. Michigan, 803 F.3d 874, 877 (6th Cir. 1986); see also Hill v. Michigan, No. 02-2320, 2003 WL21005236, at *1 (6th Cir. May 2, 2003). Judges Soet and Leiber were sued in their official capacities. See Moore v. City of Harriman, 272 F.3d 769, 773 (6th Cir. 2001) (en banc). A suit against a state officer in his official capacity is simply another way of pleading an action against the state. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Plaintiffs' claims for monetary damages against Judges Soet and Leiber in their official capacities is barred by the Eleventh Amendment. Id. at 70-71.
Plaintiffs are correct that the city (and county) lack authority over the state's circuit courts. The circuit court is part of Michigan's one court of justice and is entitled to Eleventh Amendment immunity. See MICH. CONST. 1963, art. 6 § 1; see also Bridges v. Senger, 730 F. Supp. 1401, 1405 (W.D. Mich. 1990); accord Alkire v. Irving, 305 F.3d 456, 467 (6th Cir. 2002) (Ohio judge entitled to Eleventh Amendment immunity "since Ohio law considers county courts arms of the state."). The Eleventh Amendment bars suit in federal court against a state and its departments or agencies unless the state has waived its sovereign immunity or unequivocally consented to be sued. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The State of Michigan has not consented to civil rights suits in federal court. See Abick v. Michigan, 803 F.3d 874, 877 (6th Cir. 1986); see also Hill v. Michigan, No. 02-2320, 2003 WL21005236, at *1 (6th Cir. May 2, 2003). Judges Soet and Leiber were sued in their official capacities. See Moore v. City of Harriman, 272 F.3d 769, 773 (6th Cir. 2001) (en banc). A suit against a state officer in his official capacity is simply another way of pleading an action against the state. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Plaintiffs' claims for monetary damages against Judges Soet and Leiber in their official capacities is barred by the Eleventh Amendment. Id. at 70-71.
(Plfs. Brief at 13, docket #52). Despite plaintiffs' protestations to the contrary, and attempts to label the defendants' rulings as "executive," the function plaintiffs are attempting to attack is the judges' decisions in the context of a lawsuit. Plaintiffs' argument in this regard is frivolous.
Next, plaintiffs make an unsupported argument that defendants' "conspiratorial acts" are nonjudicial. Specifically, plaintiffs' argue defendants' "wholesale disregard of Michigan statutes and court rules, case law, and the Plaintiffs' argument and evidence in Proto-Cam v. 940 Monroe, Tingley v. 900 Monroe, and Local Area Watch v. City of Grand Rapids was both a means and end to their co-conspirators' goal." (Plfs. Brief at 14). Plaintiffs' arguments that various rulings were incorrect as a matter of state law are matters for the Michigan appellate courts to determine. They do not make the judges' underlying rulings non-judicial.
Plaintiff Tingley III makes a novel and nonsensical argument that Judge Soet "entrapped him" into engaging in the unauthorized practice of law.
Soet entraps Tingley III: On July 19, 2002, Soet — by his lights — entrapped Tingley III as engaging in the unauthorized practice of law in the matter of Tingley v. 900 Monroe. On June 11, 2002, the Plaintiffs appeared in that lawsuit in their individual capacity as pro se litigants. On July 11th Soet arbitrarily added the three corporations owned by the Plaintiffs as co-plaintiffs in Tingley v. 900 Monroe. When the Plaintiffs all appeared for the hearing on July 19th — the first opportunity for the Plaintiffs to appear before Judge Soet since his ruling — Soet falsely charged Tingley III with illegally representing the corporate plaintiffs in violation of MCL 600.916. On that basis Soet dismissed the remainder of Tingley v. 900 Monroe and later levied tens of thousands of dollars in sanctions on Tingley III. Entrapment and malicious prosecution are prosecutorial in nature and are not judicial acts.
(Plfs. Brief at 15-16). Judge Soet's imposition of sanctions for the misconduct committed in a case before him is a quintessential judicial act. Tingley III's claim that such action is prosecutorial and not a judicial action entitled to judicial immunity is frivolous.
As a circuit judge, Judge Soet had unquestioned jurisdiction to preside over contempt proceedings. MICH. COMP. LAWS § 600.1701. As long as a judge has jurisdiction, the judge is entitled to judicial immunity, even if the jurisdiction is exercised erroneously. The Supreme Court has specifically held that the commission of grave procedural errors, including those involving due process, does not constitute action taken in the clear absence of all jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 359 (1978). The Sixth Circuit has upheld the recognition of absolute judicial immunity in favor of a judge alleged to have exceeded his authority by summarily imposing a jail sentence without a hearing or other necessary process, an alleged violation of the Due Process Clause. See Stern v. Mascio, 262 F.3d 600, 606-08 (6th Cir. 2001). Defendant Soet is entitled to judgment in his favor on the basis of judicial immunity upon plaintiffs federal claims.
2. State Law Claims Against Judge Soet
Plaintiffs' complaint, liberally construed, attempts to assert two state law tort claims against Judge Soet: (a) "Malicious Use of Process" (Count IV) and (b) "Malicious Use of Sanctions" (Count V). Plaintiffs' claims of malicious use of process and malicious use of sanctions require very little discussion. They are based upon contempt proceedings before Judge Soet against William Q. Tingley III for practicing law without a license and Judge Soet's dismissal of claims in the Tingley v. 900 Monroe lawsuit. Count IV is labeled as "Malicious Use of Process" and is directed towards Judge Soet and defendants Dickinson Wright, Todd Dickinson, William Fisher, and Robert Wardrop. Plaintiffs allege as follows:
97. Defendants DW, Dickinson, Fisher, and Wardrop commenced, and Defendant Soet knowingly abetted, a civil proceeding in the matter of Tingley v. 900 Monroe to find Tingley III in contempt of the Supreme Court of the State of Michigan for engaging in the unauthorized practice of law in the absence of any probable cause for such a proceeding by alleging without any factual basis that Tingley and Bradley were "sham" pro se litigants enlisted by Tingley III in a scheme to unlawfully represent their claims in court.
98. The purpose of this proceeding was to intimidate, oppress, and punish Tingley III and the other Plaintiffs for seeking redress of the frauds on the court and the unlawful disposal of hazardous waste which these Defendants had committed or abetted. Tingley III and the other Plaintiffs were damaged as a result when Soet corruptly used the proceeding that DW, Dickinson, Fisher and Wardrop had maliciously commenced as a pretext for dismissing all of Plaintiffs' claims in Tingley v. 900 Monroe.
(Complaint, ¶¶ 98-99). Count IV is frivolous in the extreme. Contempt proceedings are among the powers of state circuit court judges. The Michigan Circuit Courts are trial courts of general jurisdiction. MICH. CONST. art. VI, § 1. The Sixth Circuit has recognized the broad subject-matter jurisdiction of the Michigan Circuit Courts and the power of those courts to effectuate their own judgments. See Mann v. Conlin, 22 F.3d 100, 105 (6th Cir. 1994). All Michigan's circuit courts have contempt powers. MICH. COMP. LAWS § 600.1701. Plaintiffs' avenue for challenging Judge Soet's decisions was to pursue and prevail upon appeal. Plaintiffs do not receive a "second bite at the apple" by simply instituting a new federal court lawsuit when they fail to prevail in state court proceedings. Furthermore, plaintiffs have not alleged the requisite elements of either malicious prosecution or abuse of process under state law. See Matthews v. Blue Cross Blue Shield, 572 N.W.2d 603, 609-10 (Mich. 1998); Friedman v. Dozorc, 312 N.W.2d 585 (Mich. 1981); Bonner v. Chicago Title Ins. Co., 487 N.W.2d 807 (Mich.Ct.App. 1992); see also Radzinski v. Doe, No. 233998, 2002 WL 31105281, at *2 (Mich.Ct.App. Sept. 20, 2002); Freund v. Silagy, No. 228974, 2002 WL 988573, at *3-5 (Mich.Ct.App. May 14, 2002).
Judge Soet is entitled to statutory privilege under state law against any state-law claim against him. The privilege was accorded by the state legislature to judges, legislators and high-ranking executive officials, making them "immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority." MICH. COMP. LAWS § 691.1407(5); see Olsen v. County of Muskegon, No. 233258, 2002 WL 31934158, at *2 (Mich.Ct.App. Nov. 19, 2002). In applying this statutory immunity, the Michigan appellate courts often rely on federal precedents to determine the scope of immunity. See, e.g., Deihl v. Danuloff, 618 N.W.2d 83, 87-88 (Mich.Ct.App. 2000). The discussion of judicial immunity previously set forth applied with equal force to plaintiffs' state tort claims.
Count V of the complaint for "Malicious Use of Sanctions" is equally frivolous. An exhaustive search of state law fails to yield any precedent supporting plaintiffs' claim of malicious use of sanctions. Plaintiffs' allegations are directed towards Judge Soet and the parties Judge Soet granted judgments against Tingley III and corporate plaintiffs under his control for abusive litigation in the 900 Monroe case. Plaintiffs allege as follows:
99. Defendants Bank, DW, Dickinson, Fisher, and Wardrop, commenced and Defendant Soet corruptly granted, motions for sanctions in the matter of Tingley v. 900 Monroe against Tingley III and the Plaintiffs' Business in the absence of any probable cause, sworn denial of the truth of the Plaintiffs allegations, or finding of fact contesting the truth of Plaintiffs' allegations that the defendants in Tingley v. 900 Monroe had defrauded the court and had unlawfully disposed of hazardous waste.
100. The purpose of the sanctions was to intimidate, oppress, and punish Tingley III and the other Plaintiffs (through their Business) for seeking redress of the frauds on the court and the unlawful disposal of hazardous waste which these Defendants had committed and abetted. Tingley III and the other Plaintiffs were damaged as a result of Soet's corrupt grant of these sanctions.
Plaintiffs filed their complaint in this case on September 18, 2002. One day earlier, Judge Soet entered judgments awarding monetary sanctions to Dickinson Wright, Dickinson and Wardrop. The judgment in favor of Fifth Third was not entered until September 23, 2002, so plaintiffs must have anticipated an award of sanctions in favor of that defendant. Plaintiffs never amended the complaint to allege "malicious use of sanctions" against the City of Grand Rapids or Mayor John Logie, judgment having been entered in favor of those parties on October 7, 2002.
Plaintiffs filed their complaint in this case on September 18, 2002. One day earlier, Judge Soet entered judgments awarding monetary sanctions to Dickinson Wright, Dickinson and Wardrop. The judgment in favor of Fifth Third was not entered until September 23, 2002, so plaintiffs must have anticipated an award of sanctions in favor of that defendant. Plaintiffs never amended the complaint to allege "malicious use of sanctions" against the City of Grand Rapids or Mayor John Logie, judgment having been entered in favor of those parties on October 7, 2002.
Suffice it to say that Judge Soet found that significant monetary sanctions against Tingley III and the corporations were warranted. Plaintiffs' means of challenging Judge Soet's sanctions was to pursue and prevail on appeal. Judge Soet is also entitled to judgment in his favor as a matter of law on plaintiffs claim of malicious use of sanctions on the basis of statutory immunity.
F. Judge Leiber
Judge Leiber was the presiding judge in the LAW case, a state law FOIA action brought by the corporation The Local Area Watch through licensed counsel. Plaintiffs' claims against Judge Leiber are based upon Judge Leiber's rulings in that lawsuit. Plaintiffs disagree with Judge Leiber's decision in favor of the defendants. (Amended Complaint, ¶ 16). Plaintiffs express particular dissatisfaction with one of Judge Leiber's rulings.
66. Then Leiber responded to the City's destruction of the public records. He brazenly declared that Tingley III should have anticipated the City's destruction of this evidence by requesting a pre-emptory order from the court. Because Tingley III had not done so, ruled Leiber, the City was free to destroy those records despite the fact that they had been explicitly identified in a FOIA request, the FOIA complaint, and the document production request — despite the fact that those public records were the very object of the lawsuit and their destruction by the City was a contemptuous violation of the very purpose of the FOIA statute.
(Complaint, ¶ 66).
Tingley III and the other plaintiffs in this lawsuit were never parties to the LAW case. Remarkably, plaintiffs now allege that on August 16, 2002, "Leiber, the presiding judge, dismissed Tingley III's claims in LAW v. Grand Rapids and denied Tingley III the recovery required under the FOIA statute of thirty-two thousand dollars in attorney fees." (Complaint, ¶ 66). Judge Leiber's ruling did not deprive the present plaintiffs of anything. Plaintiffs cannot recover for any injuries the corporations may have suffered. A section 1983 action is cognizable only by the party whose civil rights were violated. See Jaco v. Bloechle, 739 F.3d 239, 241 (6th Cir. 1984); Wingrove v. Forshey, 230 F. Supp.2d 808, 824 (S.D. Ohio 2002). Corporations are legal entities separate from their shareholders, officers and employees. A suit to enforce the corporation's rights can only be brought by the corporation. See Environair, Inc. v. Steelcase Inc., 475 N.W.2d 366, 367 (Mich.Ct.App. 1991); Michigan Nat'l Bank v. Mudgett, 444 N.W.2d 534, 536 (Mich.Ct.App. 1989); see also Belle Isle Grill Corp. v. City of Detroit, No. 231913, ___ N.W.2d ___, 2003 WL 21012705 (Mich.Ct.App. May 6, 2003). A corporation may only appear in federal or state court through licensed counsel. See Rowland v. California Men's Colony, 506 U.S. 194, 195 (1993); Detroit Bar Ass'n v. Union Guardian Trust Co., 281 N.W. 432, 433 (1938); Peters Production, Inc. v. Desnik Broadcasting Co., 429 N.W.2d 654, 655 (Mich.Ct.App. 1988). Judge Leiber's decision did not deprive plaintiffs Tingley III, Tingley and Bradley of "their rights of redress in court, an adversarial trial in court, due process of law, equal protection of the laws and [right to] petition the government for redress of grievances in the matter of LAW v. Grand Rapids." (Complaint, ¶ 71). The corporation LAW's means of challenging Judge Leiber's decision was an appeal through counsel in Michigan's appellate courts. Even if the plaintiffs had suffered injury as a result of Judge Leiber's decisions, Judge Leiber would nonetheless be entitled to absolute judicial immunity upon plaintiffs' purported civil rights claims.
It does not appear from the complaint or plaintiffs' brief that plaintiffs are attempting to allege any state tort claims against Judge Leiber. To the extent that such claims were intended, plaintiffs' complaint fails to state a claim upon which relief could be granted. Furthermore, Judge Leiber is entitled to statutory immunity on any such state tort claim.
In summary, plaintiffs fail to raise any genuine issue of fact for trial and defendant Leiber is entitled to judgment in his favor upon all plaintiffs' claims against him as a matter of law.
III.
The court will now address the motions to dismiss by the remaining defendants. Under Rule 12(b)(6), a complaint may be dismissed only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. See Ludwig v. Board of Trustees, 123 F.3d 404, 408 (6th Cir. 1997); Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The court must construe the complaint in the light most favorable to plaintiff, accept all factual allegations as true, and determine whether it is established beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief See Nelson v. Miller, 170 F.3d 641, 649 (6th Cir. 1999); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. 58 F.3d at 1109. The court need not accept as true legal conclusions or unwarranted factual inferences. Murphy v. Sofamor Danek Group, Inc. (In re Sofamor), 123 F.3d 394, 400 (6th Cir. 1997) (quoting Morgan, 829 F.2d at 12). "In practice, a '. . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); see Begala v. PNC Bank, 214 F.3d 776, 779 (6th Cir. 2000); Board of Trustees of Painesville Twp v. City of Painesville, 200 F.3d 396, 399 (6th Cir. 1999); Hahn v. Star Bank, 190 F.3d 708, 718-19 (6th Cir. 1999). Consideration of public records of court proceedings does not convert a Rule 12(b)(6) motion into a motion for summary judgment. "`In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations of the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.'" Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)); see also Becker v. Manning Family Trust (In re Becker), No. 01-5312, 2002 WL 31388769, at * 7-8 (6th Cir. Oct. 22, 2002); Thomas v. Publishers Clearing House, Inc., No. 00-3948, 2002 WL 193935, at *2 (6th Cir. Feb. 5, 2002); Harris v. J.M. Smucker's Co., No. 98-6784, 2000 WL 658040, at *1 (6th Cir. May 8, 2000).
A. Claims Against Defendant Attorneys and Law Firms
1. Attorney William J. Fisher, Todd Dickinson and Dickinson Wright, P.L.L.C.
Plaintiffs make extensive allegations against the attorneys and the law firms that have represented party opponents in Kent County Circuit Court. Attorney William J. Fisher III of the law firm of Dickinson Wright, P.L.L.C. represented 940 Monroe and Pioneer Incorporated in the 940 Monroe case. On or about February 2001, Fisher and attorney Todd R. Dickinson formed the professional corporation Fisher Dickinson P.C. Thereafter, Fisher and Dickinson represented 940 Monroe and Pioneer in the 940 Monroe case. (Complaint, ¶¶ 10, 14, 15). Fisher, Dickinson, Fisher Dickinson P.C., and Dickinson Wright, P.L.L.C. were all named as defendants in the 900 Monroe case.
On January 22, 2002, Judge Soet held that plaintiffs' claims of fraud on the court, abuse of process and unjust enrichment were "frivolous and without legal merit." Judge Soet dismissed the corporate plaintiffs' environmental claims for failure to comply with statutory notice requirements. Judge Soet dismissed all claims of Tingley III, Tingley, and Bradley because Tingley III was practicing law without a licence and the purported plaintiffs were not the real parties in interest. Judge Soet issued an injunction requiring that in the event Tingley III filed a pro se lawsuit on his own behalf or purporting to act as counsel, the case would be referred to the chief judge for a determination whether it should be accepted for filing. Judge Soet subsequently granted a motion for sanctions by these defendants. Judgment was entered in the amount of $6,630.00 against William Q. Tingley III, Proto-CAM, Inc., Bend Tooling, Inc. and Tennine Corporation. (Complaint, ¶¶ 50-61). Plaintiff Tingley III named Dickinson Wright as a defendant in the Kortz case. In November 2002, Judge Buth issued an order of dismissal of Tingley III's claims in that case and imposed sanctions against Tingley III.
Plaintiffs persist in claiming that William Fisher, Todd Dickinson and Dickinson Wright "made false statements to, submitted false evidence to, and fraudulently concealed material facts from Judge Soet in the course of the litigation of Proto-CAM v. 940 Monroe to the effect that Plaintiffs' property rights in the Plant's driveway were not enforceable against Defendants." (Complaint, ¶ 41). "These frauds included a pair of quitclaim deeds representing a sham transaction of property underlying the driveway, a false affidavit signed by Wardrop, and concealment of a buy-sell agreement in which the enterprise disavowed any right or interest in the driveway." (Id.). None of the named plaintiffs in this lawsuit were parties to the 940 Monroe case. They were parties to the 900 Monroe case wherein Judge Soet found that claims of fraud on the court were "frivolous and without legal merit." If any challenge to that determination was to be made by plaintiffs, it had to be made in Michigan's appellate courts.
Paragraph 43 of the complaint alleges that William Fisher, Todd Dickinson and Dickinson Wright "either obstructed or hindered discovery in Proto-CAM v. 940 Monroe by refusing, misrepresenting or delaying the production of documents and witnesses." (Complaint, ¶ 43). Proto-CAM and the other corporate plaintiffs in that case were represented by licensed counsel. The discovery arguments set forth in the present complaint should have been made, if at all, by corporate counsel in the 940 Monroe case sometime before trial. The named plaintiffs in this lawsuit suffered no possible injury and certainly no deprivation of any federally guaranteed right by defendants.
Plaintiffs allege that Tingley III filed allegations of "fraud on the court" with Michigan's Attorney Grievance Commission against William Fisher on June 11, 2001 and against Todd Dickinson on September 25, 2001. (Complaint, ¶ 47). However, such allegations by disappointed litigants against opposing counsel are not uncommon. They do not establish the violation of any federally guaranteed right.
Next, plaintiffs allege that these defendants "deprived the Plaintiffs of their civil rights by obstructing the due course of justice in the matters of Tingley v. 900 Monroe and LAW v. Grand Rapids." (Complaint, ¶ 50). Plaintiffs' complaint takes issue with Judge Soet's determinations in the 900 Monroe case concerning plaintiffs' inability to sue Wardrop as a witness for testimony he provided in court or the attorneys of party opponents for arguments the attorneys made in court in the course of representing their clients. Plaintiffs likewise take issue with Judge Soet's findings that plaintiffs' claims of fraud on the court were frivolous and legally meritless and that an awards of significant sanctions were warranted in the 900 Monroe case. (Complaint, ¶¶ 50-61). Any perceived defects in the actions of opposing counsel were matters requiring a timely and specific objection at the trial court level to preserve the objection, and if not corrected by the trial court, were matters to raise before the Michigan Court of Appeals. Plaintiffs cannot relitigate the outcome of prior state cases or the imposition of sanctions by state courts in this court under the guise of bringing a civil rights action.
Paragraph 55 of plaintiffs' complaint contains the following allegations:
Consequently, on May 20, 2002, just prior to the start of the bench trial of Proto-CAM v. 940 Monroe, Soet, in his chambers informed Dickinson that Wardrop had a "credibility problem" and pressured Dickinson to call Wardrop to testify at trial by telling him that he would likely lose the trial if he did not. Dickinson complied, and Wardrop testified that day. By falsely affirming under oath the frauds referred to in paragraph 41 of this complaint Wardrop perjured himself but by Soet's lights had obtained the witness immunity needed as a pretext for dismissal of the Plaintiffs' fraud on the court claims.
(Complaint, ¶ 55). Proto-CAM and all other parties to the 940 Monroe case were represented by counsel during the meeting in chambers prior to the start of trial. In the 900 Monroe case, Judge Soet found that plaintiffs' assertions concerning Soet's alleged statement of Wardrop's "credibility problem" were untrue and frivolous. Plaintiffs' means of challenging Judge Soet's decisions or the purported misdeeds of these defendants were through the state's appellate process.
Plaintiffs allege that these defendants deprived plaintiffs of their rights of redress in court, an adversarial trial in court, due process of law, and equal protection of laws in Proto-Cam v. 940 Monroe to prevent plaintiffs from enforcing their right to exclude the hospital and the enterprise from their property. (Complaint, ¶ 67). Again, the plaintiffs in the present case were not the plaintiffs in the 940 Monroe case. The real estate and any easement rights were owned by corporations, not the plaintiffs in this lawsuit. Paragraph 68 of the complaint makes nearly identical allegations with regard to the 900 Monroe case. (Complaint, ¶ 68). The plaintiffs in this case were plaintiffs in the 900 Monroe case, but the plaintiffs may not relitigate an unfavorable state-court outcome in this forum. Paragraphs 76 and 77 repeat the allegations of paragraphs 67 and 68, but also add claims that William Fisher's actions in the 940 Monroe and 900 Monroe cases deprived plaintiffs of a right of self-representation in court and to petition the government for redress of grievances. Mr. Tingley III did not and does not enjoy any right to represent anyone other than himself Judge Soet, not defendant Fisher, sanctioned Mr. Tingley III and corporations under his control for state court litigation abuses and practicing law without a license.
a. Color of State Law
Section 1983 is not itself a source of any substantive right, but merely provides a remedy for deprivation of rights that are elsewhere conferred by federal law. Albright v. Oliver, 510 U.S. 266, 271 (1994). Plaintiffs seek a remedy under section 1983 for deprivation of rights purportedly guaranteed by the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment cannot be violated by private individuals or corporations, but only by the state. Consequently, in order to assert a section 1983 claim, a plaintiff must plead and prove that the deprivation was committed by a state employee or other person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir. 1996). An attorney does not become a state actor merely by representing a client. See Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1991). "Attorneys, by virtue of being officers of the court, do not act under color of state law within the meaning of section 1983." Hahn v. Star Bank, 190 F.3d 708, 717 (6th Cir. 1999). Attorneys fulfill a private function in representing their clients and do not act as agents of the state. See Polk County v. Dodson, 454 U.S. 312, 321 (1981); see also Otworth v. Vanderploeg, Nos. 02-2035, 02-2201, 2003 WL 1465399, at *2 (6th Cir. Mar. 19, 2003) ("A lawyer representing a client is not by virtue of being an officer of the court, a state actor under color of law within the meaning of § 1983."); Newsome v. Merz, No. 00-4307, 2001 WL 1006189, at *1 (6th Cir. Aug. 21, 2001); Koukios v. Ganson, No. 99-4060, 2000 WL 1175499, at *1 (6th Cir. Aug. 11, 2000) ("A lawyer representing a client is not, by virtue of being an officer of the court, a state actor under color of state law."); Roderick v. Kreckel, No. 00-308-P-H, 2001 WL225016, at *2 (D. Me. Mar. 8, 2001) ("The status of defendants as lawyers and the fact that the plaintiffs alleged injuries a[rose] out of the defendants' use of the state courts does not and cannot establish that their conduct is chargeable to the state."). It is well settled that neither a litigant nor an attorney representing a party acts under color of state law merely by bringing or defending a matter before a state court or administrative body. See Catz v. Chalker, 142 F.3d 279, 289 (6th Cir. 1998); Kelm v. Hyatt, 44 F.3d 415, 421-22 (6th Cir. 1995); see also Newsome v. Merz, No. 00-4307, 2001 WL 1006189, at *2 (6th Cir. Aug. 21, 2001). Merely being on the winning side of a lawsuit does not make a party a co-conspirator or joint actor with a judge. See Dennis v. Sparks, 449 U.S. 24, 28 (1980). Mere allegations of joint action or conspiracy do not demonstrate that defendants acted under color of state law "and are not sufficient to survive a motion to dismiss." Fries v. Helsper, 146 F.3d 452, 456 (7th Cir. 1998); see Sterling v. Trotter, No. 62-01-528, 2002 WL 31409437, at *1 (S.D. Ohio Aug. 13, 2002). Plaintiffs' claims under section 1983 against defendants Fisher, Dickinson and Dickinson Wright fail for want of a state actor.
b. Claim Preclusion
Section 1983 actions in federal court are subject to traditional rules concerning the preclusive effect of prior judgments. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see also Falk v. State Bar of Mich., 631 F. Supp. 1515, 1518 (W.D. Mich. 1986). The doctrine of claim preclusion provides that if an action results in a judgment on the merits, that judgment operates as an absolute bar to any subsequent action on the same cause between the same parties, with respect both to every matter that was actually litigated in the first case, as well as to every ground of recovery that might have been presented. Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir. 1994).
The purposes of claim preclusion are to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, prevent inconsistent decisions, encourage reliance on adjudication, and promote comity between the state and federal courts. Allen v. McCurry, 449 U.S. 90, 94, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). A federal court must give a state court judgment the same preclusive effect it would have in the courts of the rendering state. 28 U.S.C. § 1738; Heyliger v. State University and Community College System, 126 F.3d 849, 851-52 (6th Cir. 1997). As such, the preclusive effect of previous state court judgments in this case is governed by Michigan law on preclusion.Dubuc v. Green Oak Twp., 312 F.3d 736, 744 (6th Cir. 2002); see Hutcherson v. Lauderdale County Tenn., 326 F.3d 747, 754 (6th Cir. 2003) ("Federal courts must give state court judgments the same effect the rendering state court would give them."); Stuhlreyer v. Armco, Inc., 12 F.3d 75, 77 (6th Cir. 1993)("State judicial proceedings are entitled to the same preclusive effect in federal court as they would receive in the judgment-rendering state."); 28 U.S.C. § 1738 (Full Faith and Credit Act). The Sixth Circuit's recent Hutcherson decision borrowed this convenient rule of thumb from the Seventh Circuit: "`A plaintiff who loses [in state court] and tries again [in federal court] encounters the law of preclusion [ res judicata]. The second complaint shows that the plaintiff wants to ignore rather than upset the judgment of the state tribunal." Hutcherson, 326 F.3d at 755 (quoting Homola v. McNamara, 59 F.3d 647, 650 (7th Cir. 1995)).
Defendants have asserted the defense of claim preclusion, but even if they had not, the present case falls within the heartland of the "special circumstances" exception warranting the court's raising the issue sua sponte. Hutcherson, 326 F.3d at 757.
Under Michigan law, "[t]here are three prerequisites to application of the doctrine of res judicata: (1) the prior action must have been decided on its merits; (2) the issues raised in the second case must have been resolved in the first; and (3) both actions must have involved the same parties or their privies." Roberts v. City of Troy, 429 N.W.2d 206, 211 (Mich.Ct.App. 1988). Here, plaintiffs' prior actions against defendants meets all three prerequisites under Michigan law. First, plaintiffs' prior action in the 900 Monroe case involved the same parties or their privies. Second, the actions involved the same issues regarding the development of the Berkey Gay property, conspiracy and purported violations of environmental laws. Third, the decision of the Kent County Circuit Court with regard to the claims of Tingley III, Tingley and Bradley was a decision on the merits. Plaintiff Tingley III's claims are barred by a second level of claim preclusion stemming from his unsuccessful lawsuit as the plaintiff in the Kortz case.
Michigan follows the broad Restatement of Judgments rule, which bars "not only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not." Sewell v. Clean Cut Mgmt., Inc., 621 N.W.2d 222, 225 (Mich. 2001); see Gose v. Monroe Auto Equip. Co., 294 N.W.2d 165, 167 (Mich. 1980). All the claims plaintiffs attempt to assert against these defendants in this lawsuit could have and should have been asserted against defendants in the 900 Monroe case. Plaintiffs argue, "It is difficult to understand" how they "could have pled claims in Tingley v. 900 Monroe such as malicious use of sanctions before those events ever took place." (Plfs. Brief at 16, docket #60). The simple answer is that sanctions were imposed by the court in the 900 Monroe case and that the place for plaintiffs to challenge the sanctions was on appeal, not by filing a separate lawsuit in federal court. A state-court judgment, even if gravely erroneous, is entitled to full faith and credit, unless the error deprived the rendering court of jurisdiction under the law of the state. See In Re Brady, Texas Mun. Gas Corp., 936 F.2d 212, 219 (5th Cir. 1991); United States v. Straits Steel Wire Co., 810 F. Supp. 208, 211 (W.D. Mich. 1992). Until the judgment is set aside in the Michigan courts, "it is valid and binding for all purposes and cannot be collaterally attacked." Atman v. Nelson, 495 N.W.2d 826, 829 (Mich.Ct.App. 1992).
c. Other Fatal Defects
Plaintiffs fail to state a claim against these, or any other defendants, under 42 U.S.C. § 1985 and 1986, for the reasons previously set forth. The prior discussion concerning fatal defects in plaintiffs' "malicious use of process" and "malicious use of sanctions" claims under state law is likewise applicable to all defendants. In addition, defendants Fisher, Dickinson and Dickinson Wright cannot be held liable for their actions in state court in representing their clients under state law because they are entitled to the protection of an absolute state law privilege. See Sanders v. Lesson Air Conditioning Corp., 108 N.W.2d 761, 762 (Mich. 1961); Hartung v. Shaw, 89 N.W. 701 (Mich. 1902).
Judge Soet cited the Sanders and Hartung opinions to plaintiffs at the May 17, 2002 hearing in the 900 Monroe case.
d. Defendants Did Not Owe Any Duty to Plaintiffs Under State Law
Defendants represented party opponents in state-court litigation. They did not owe any duty to plaintiffs for purposes of state law tort liability. The Michigan Supreme Court has recognized that "to impose a duty on an attorney to his client's adversary . . . would be inconsistent with basic precepts of the adversary system." Maiden v. Rozwood, 597 N.W.2d 817, 830 (Mich. 1999) (quoting Friedman v. Dozore, 312 N.W.2d 585, 591 (Mich. 1981)).
2. Attorney Wardrop
Plaintiffs allege that, "By means of his acts alleged herein, defendant Wardrop, under color of his duty as an officer of the court, deprived Plaintiffs Tingley III, Tingley, and Bradley, all United States citizens, rights of redress in the courts in the matters of Proto-CAM v. 940 Monroe and Tingley v. 900 Monroe, an adversarial trial in those matters, self-representation in court, due process, equal protection of the laws and petition of the government for redress of grievances. (Complaint, ¶ 81). Plaintiffs' complaint fails to state a claim upon which relief can be granted. Claim preclusion and the lack of a deprivation of any federally guaranteed right under color of state law, as discussed in the preceding section, are equally applicable to the claims against Wardrop. Defendant Wardrop did not owe any duty to plaintiffs and is entitled to witness immunity for his state court testimony.
"[T]he duty imposed on a witness is generally owed to the court, not the adverse party. Accordingly, a breach of a duty owed to the court does not give rise to a cause of action in tort by the adverse party." Maiden, 597 N.W.2d at 830. The Supreme Court has ruled that witnesses are absolutely immune from liability under the Civil Rights Act for testimony given in criminal proceedings. See Brisco v. LaHue, 460 U.S. 325, 342-45 (1983). The doctrine protects lay witnesses from civil rights suits, as long as they have given testimony. See Alioto v. City of Shively, 835 F.2d 1173, 1174 (6th Cir. 1987). State law recognizes that witness testimony is absolutely privileged. Witnesses are an integral part of the judicial process and are "wholly immune from liability for the consequences of their testimony or related evaluations. . . . Witness immunity is also grounded in the need of the judicial system for testimony from witnesses who, taking their oaths, are free of concern that they themselves will be targeted by the loser for further litigation. Absent perjury of a character requiring action by the prosecuting attorney, the testimony of a witness is to be weighed by the factfinder in the matter at the bar, not a subsequent jury summoned to determine whether the first lawsuit was tainted." Maiden v. Rozwood, 597 N.W.2d at 830. Consequently, this court finds that defendant Wardrop is clearly immune from plaintiffs federal and state-law claims.
3. City Attorney Ophoff
Plaintiffs allege that defendant Ophoff represented the City of Grand Rapids in the LAW case. Plaintiffs claim that in that case, Ophoff knowingly delayed a response to Tingley III's discovery request for certain records until after the city had destroyed those records. (Complaint, ¶ 18). Paragraphs 62-66 of the complaint also claim that Ophoff destroyed evidence Tingley III sought in the LAW case. Specifically, Tingley III claims that he made a January 28, 2002 request for production of documents in the LAW case. However, Tingley III could not and did not make any requests for production of documents in the LAW case. The corporation The Local Area Watch was the only plaintiff in that case and it was represented by attorney Peter W. Steketee. As a nonparty to the LAW case, Tingley III would not have been entitled to recover anything in the LAW case, much less the $32,000 claimed in paragraph 65 of the complaint. As a nonparty, Tingley III could not have been deprived of "rights of redress in the courts" or an "adversarial trial," or due process, equal protection, or the right to petition for redress of grievances asserted in paragraph 79 of the complaint.
Attorney Steketee's affidavit, filed by plaintiffs, states that Steketee served LAW's first request for production of documents on or about January 30, 2002. (docket #71, Ex. 6, ¶ 3).
Mr. Tingley III was one of the plaintiffs in the 900 Monroe case. However, it was Judge Soet, not defendant Ophoff, who granted judgment in favor of the defendants in that case and found that the plaintiffs' conduct of that case warranted imposition of significant sanctions. Accordingly, plaintiffs' complaint fails to state a claim upon which relief can be granted against defendant Ophoff under 42 U.S.C. § 1983.
Plaintiff Tingley III also attempts to assert a state tort claim of "fraud" against Ophoff. (Complaint, ¶¶ 108-08). The elements of fraud in Michigan are "(1) the defendant made a material representation; (2) the representation was false; (3) when the defendant made the representation, the defendant knew that it was false, or made it recklessly without knowledge of its truth as an assertion; (4) the defendant made the representation with the intention that the plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered damage. See Kassab v. Michigan Basic Property Ins. Ass'n, 491 N.W.2d 545, 548 (Mich. 1992); Diponio Const. Co. v. Rosati Masonry Co., 631 N.W.2d 59, 64 (Mich.Ct.App. 2001); see also Mitan v. TRW, Inc., No. 233856, 2003 WL 1440095, at *2 (Mich.Ct.App. Mar. 20, 2003). Among the numerous fatal defects to this claim are the following: (1) Tingley III was not a party or the attorney in the LAW case, therefore, Tingley III could not have made the document production request, nor detrimentally relied upon any request for an extension of time by defendant Ophoff; (2) claim preclusion stemming from Tingley III's prior unsuccessful state court lawsuits in the 900 Monroe and Kortz cases bars any such claim; (3) this court lacks appellate jurisdiction over the state court decisions in the LAW case, the 900 Monroe case, and the Kortz case. Defendant Ophoff's motion to dismiss will be granted.
4. Mayor John Logie
Plaintiff alleges that Mayor John Logie and nonparty city employee Ned Zimmerman "used their government offices on behalf of the Hospital to advance the Enterprise's schemes in Monroe North." (Complaint, ¶ 28). Plaintiffs state, "This included suppressing the Plaintiffs' opposition to the Enterprise's plans for Monroe North." (Id.). Plaintiffs allege that they vigorously opposed the 1994 rezoning of Monroe North at public hearings. (Complaint, ¶ 29). Zimmerman allegedly met with Tingley III on August 1, 1994 and purportedly told Tingley III that the plaintiffs' opposition was hopeless, because "City officials at the Hospital's behest had pre-determined to change the zoning without regard to the public hearing process." Plaintiffs now claim that back in 1994, Zimmerman "suggested that continued opposition might threaten Plaintiffs' unimpeded use of their Plant's driveway." (Complaint, ¶ 30). "Tingley III replied that the Plaintiffs would seek redress in the Kent County Circuit Court to protect their property rights. Zimmerman warned that if Plaintiffs sought the protection of the court, they would become `pariahs' in the City and that `powerful interests' behind the Enterprise — i.e., the Hospital, the Bank and WN J — would punish the Plaintiffs by denying them and their Businesses the rights and benefits of local government until they were driven out of the City." (Complaint, ¶ 31).
Paragraphs 32-33 of the complaint contain the following allegations concerning an alleged 1994 agreement "to deprive Plaintiffs of their civil rights."
32. Tingley III flatly refused to surrender the Plaintiffs' right to seek redress in court and to drop opposition to the zoning change. Consequently on August 9, 1994, representatives of the Hospital, the enterprise, and WN J (despite the fact that WN J had a duty of loyalty to plaintiffs as their counsel) met to discuss how to instruct city officials to suppress the Plaintiffs' opposition to their plans.
33. One result of this meeting was that Zimmerman and Logie, on behalf of the City, and Wardrop on behalf of the Enterprise, agreed in December 1994 that the Plaintiffs' property rights would not be enforced in the Kent County Circuit Court against the Hospital's Enterprise should it need the property of Plaintiffs' Plant to carry out the Hospital's development plans for Monroe North.
34. This agreement is the basis upon which the defendants acted to deprive Plaintiffs of their civil rights.
(Complaint, ¶¶ 32-34).
Plaintiffs allege that Logie deprived them of their rights in the 900 Monroe and LAW cases. (Complaint, ¶¶ 67-70). Plaintiffs may not relitigate those state court lawsuits in this court. Logie was a named defendant in the 900 Monroe case. Claim preclusion stemming from the plaintiffs' prior unsuccessful lawsuits bars plaintiffs' present claims.
Furthermore, plaintiffs' purported civil rights claims are barred by the three-year statute of limitations. The timeliness of civil rights claims under 42 U.S.C. § 1983 is to be measured by the most analogous state statute of limitations. 42 U.S.C. § 1988; see Wilson v. Garcia, 471 U.S. 261, 268-69 (1985). The Sixth Circuit has held that the three-year statute of limitations contained in Mich. Comp. Laws § 600.5805(9) is the uniform limitations period to be applied to civil rights claims arising in Michigan. See Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986); see also Otworth v. Vanderploeg, 2003 WL 1465399, at *2; Bullock v. McGinnis, No. 00-1591, 2001 WL 180978, at *2 (6th Cir. Feb. 14, 2001); Johnson v. Candelas, No. 99-2451, 2000 WL 1477503, at *1 (6th Cir. Sept. 26, 2000); McCune v. Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988). Plaintiffs' purported civil rights claim against Mayor Logie is barred by the statute of limitations.
Mr. Logie is also an attorney with the law firm of Warner, Norcross Judd. To the extent that plaintiffs are attempting to bring a malpractice action against Logie, any such claim is barred under the state's two-year statute of limitations. See Balcom v. Zambon, 658 N.W.2d 156, 163-64 (Mich.Ct.App. 2003).
5. Warner, Norcross Judd
Plaintiffs allege that Warner, Norcross Judd had a "conflict of interest" in representing the Hospital and plaintiffs' corporations. (Complaint, ¶ 13). Plaintiffs also state that Warner, Norcross Judd breached a duty of loyalty on August 9, 1994. (Complaint, ¶ 32). Warner did not act under color of state law for purposes of § 1983. The individual plaintiffs Tingley III, Tingley, and Bradley may not assert any malpractice claims the corporations may have had. Furthermore, any malpractice claims are barred by the two-year statute of limitations. See Balcom v. Zambon, 658 N.W.2d at 163-64, and by claim preclusion stemming from the unsuccessful state court 900 Monroe and Kortz cases.
It is worth noting that plaintiffs attached as an exhibit to their motion for summary judgment a July 25, 1994 letter from Warner, Norcross Judd concerning the firm's "representation of Proto-CAM in the ongoing dispute with the Charlevoix Club over the use of Walbridge Street" and potential conflicts of interest. (docket #96, Ex. 15). The second page of the letter states that Bransdorfer Bransdorfer would be assuming the responsibility for representing Proto-Cam in negotiations with the Charlevoix Club concerning Walbridge Street.
B. Claims Against Remaining Defendants
1. City of Grand Rapids
Plaintiffs claims against the municipal defendant under section 1983 fail for lack of adequate allegations to establish municipal liability. The City of Grand Rapids is not vicariously liable under section 1983 for the acts or omissions of its employees. See Monell v. Department of Social Servs., 436 U.S. 658, 692 (1978); Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir. 1997); see also Whitlow v. City of Louisville, No. 00-6557, 2002 WL 1455317, at *4 (6th Cir. July 1, 2002) ("It is axiomatic that § 1983 does not impose vicarious liability on a municipality for its agents' constitutional torts."). Local agencies of government are liable under section 1983 only for its policies that cause constitutional torts. These policies may be established by the municipality's lawmakers or by those whose acts or edicts may fairly be said to represent official policy. See McMillian v. Monroe County, Ala., 520 U.S. 781 (1997). In the present case, plaintiffs have not identified any custom or policy giving rise to the alleged violation of his constitutional rights. Plaintiffs' section 1983 claim is also barred by the three-year statute of limitations. Furthermore, all plaintiffs' claims against the City are barred by claim preclusion stemming from the LAW, 900 Monroe, and Kortz cases.
2. Spectrum Health Corporation
Plaintiffs' complaint against Spectrum is a model of obfuscation. Plaintiffs have not pled facts establishing the liability of this defendant. Rather, plaintiffs have adopted a blunderbuss approach, utilizing labels such as "enterprise," "hospital," "successor," "related entities," and "changes in corporate structure," "pattern of schemes," "these schemes," to avoid plaintiffs' obligation to plead facts establishing Spectrum's liability to plaintiffs under some viable legal theory. Plaintiffs make the following allegations:
12. Defendant Spectrum Health Corporation ("Spectrum") is a Michigan non-profit corporation which owns and operates the merger of Butterworth and Blodgett hospitals in Grand Rapids. Spectrum is the successor of Butterworth Corporation ("Butterworth") and all Butterworth's related entities, including Butterworth Occupational Health Corporation ("BOHC") and the Grand Rapids Medical Education Research Center ("MERC"). As such, Spectrum is legally liable for the acts of Butterworth, its related entities including BOHC and MERC, and their directors, officers and employees. "The Hospital" in this complaint means Butterworth and its related entities before the merger with Blodgett and Spectrum and its related entities since the merger. The Hospital's offices are located at 100 Michigan Street, N.E., Grand Rapids, Michigan 49503.
24. The Hospital created an enterprise, originally known as the Charleviox Club III Inc., in May 1993 to acquire and develop real property in the Monroe North section of downtown Grand Rapids, Michigan ("the Enterprise"). Since its inception, the Enterprise has undergone changes in corporate structure but has always been characterized by the Hospital's control of the Enterprise's real property through mortgages, leases, and subordination agreements.
25. Ostensibly the purpose of the Enterprise's acquisition and development of real property was to establish a satellite campus for the Hospital's secondary and tertiary operations, but, upon information and belief, this activity provides the opportunity for a pattern of schemes through which Hospital "insiders" — i.e., directors, officers, WN J, the Bank — have laundered Hospital funds that they were self-dealing to themselves or favored parties.
26. The Plaintiffs became aware of these schemes over time as a consequence of the Plaintiffs' Businesses owning and operating a manufacturing plant next-door to the Enterprise's properties ("Plaintiffs Plant"). The Plaintiffs' Plant is located at 1009 Ottawa Avenue N.W. in Grand Rapids, Michigan, and consists of a building, parking lot, and a driveway.
27. The Hospital has coveted the Plaintiffs' Plant for parking, access to the Enterprise's properties, and use as a medical supplies warehouse. To obtain Plaintiffs' Plant, the Hospital has attempted to drive the Plaintiffs and their Business off it by interfering with the business relationships the Plaintiffs possessed that facilitated the growth of their Business there — in particular, the Plaintiffs' relationship with the City.
Plaintiffs' corporations owned and operated the businesses on Ottawa Avenue. Plaintiffs cannot represent the corporations in court or any claims they may have had. Plaintiffs have not pled facts establishing state law tortious interference with any business relationship that Tingley, Tingley III, or Bradley had. Such tort claims must be pled "with specificity." See BPS Clinical Laboratories v. Blue Cross Blue Shield of Michigan, 552 N.W.2d 919, 925 (Mich.Ct.App. 1996); see also Flanagain v. City of Highland Park, No. 235218, 2003 WL 356666, at *2 (Mich.Ct.App. Feb. 14, 2003); Jemison v. Yukins, No. 225441, at *1 (Mich.Ct.App. Oct. 22, 2002)("to be actionable, the business `expectancy' must be a `reasonable likelihood or probability, not mere wishful thinking'") (quoting First Public Corp. v. Parfet, 631 N.W.2d 785, 794 (Mich.Ct.App. 2001)).
Plaintiffs' complaint reflects continued dissatisfaction with the results achieved in a 1994 challenge to rezoning of Monroe North mounted by Tingley III.
28. City officials Logie and Zimmerman both have had significant financial interests in the Hospital: The Hospital was and continues to be a major client of Logie's business, and Zimmerman's wife was a top executive with the Hospital. Therefore, they used their government offices on behalf of the Hospital to advance the Enterprise's schemes in Monroe North. This included suppressing Plaintiffs' political and legal opposition to the Enterprise's plans for Monroe North.
29. One of the Enterprise's plans was to have the City change the zoning of Monroe North by September 1994 which would simultaneously curtail Plaintiffs' expansion of their business and accommodate the redevelopment of a major property, the Berkey Gay furniture factory, that the Enterprise had recently acquired. The Plaintiffs vigorously opposed the change of zoning at public hearings.
30. The Enterprise instructed Zimmerman to quell the Plaintiffs' opposition. On August 1, 1994, Zimmerman met with Tingley III and told him that the Plaintiffs' opposition was hopeless, because City officials at the Hospital's behest had predetermined to change the zoning without regard to the public hearing process. Zimmerman then suggested that continued opposition might threaten plaintiffs' unimpeded use of their Plant's driveway.
31. Tingley III replied that the Plaintiffs would seek redress in the Kent County Circuit Court to protect their property rights. Zimmerman warned that if the Plaintiffs sought the protection of the court, they would become "pariahs" in the City and that the "powerful interests" behind the Enterprise — i.e., the Hospital, the Bank, and WN J would punish the Plaintiffs by denying them and their Business the rights and benefits of the local government until they were driven out of the City.
32. Tingley III flatly refused to surrender the Plaintiffs' right to seek redress in court and to drop opposition to the zoning change. Consequently on August 9, 1994, representatives of the Hospital, the Enterprise, and WN J (despite the fact that WN J had a duty of loyalty to the Plaintiffs as their counsel) met to discuss how to instruct City officials to suppress the Plaintiffs' opposition to their plans.
33. One result of this meeting was that Zimmerman and Logie, on behalf of the City, and Wardrop, on behalf of the Enterprise, agreed in December 1994 that the Plaintiffs' property rights would not be enforced in Kent County Circuit Court against the Hospital's Enterprise should it need the property of Plaintiffs Plant to carry out the Hospital's development plans for Monroe North.
34. This agreement is the basis upon which the Defendants acted to deprive Plaintiffs of their civil rights.
Plaintiffs fail to allege any viable claim against Spectrum. Plaintiffs' allegations on their face admit that the plant property did not belong to Tingley III, Tingley, or Bradley. The plant property was owned and operated by their corporations. Even if the nefarious agreement that plaintiffs now claim was made in 1994 occurred, any claim for damages would have belonged to the corporations and not the present plaintiffs. Plaintiffs do not allege that either they or their corporations initiated a court challenge to the city's rezoning of the Monroe North area.
The next four paragraphs of plaintiffs complaint appear under the heading of "Bank Fraud," and to the extent they are intelligible, assert that National City Community Development Corporation was "defrauded by the enterprise" into "overfunding" the project to develop the Berkey Gay site.
35. After several false starts, the Enterprise, which now included 900 Monroe L.L.C. and 940 Monroe L.L.C., began the redevelopment of the Berkey Gay furniture factory in August 1999 into a multi-use building ("the Project"). The ostensible purpose of the Project was to house the Hospital's training consortium MERC and provide apartments for MERC's trainees. Upon information and belief, the actual purpose of the Project was to execute a bank fraud. The Enterprise and the Bank publicly valued the Project at $31,500,000 to obtain the participation of National City Community Development Corporation ("NCCDC") in funding the $25,000,000 loan commitment the Bank made to the Project. However, the Enterprise reported only $18,000,000 in acquisition and redevelopment costs; thus the Enterprise and the Bank defrauded NCCDC into overfunding the project by $11,500,000.
36. To minimize the Project's costs, thus increase the amount of cash the Enterprise would net from the bank fraud, the Enterprise and the Bank conspired to remove the hazardous waste contaminating the Berkey Gay site without due care in violation of the "Superfund" law, i.e., the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.; the Clean Water Act, 33 U.S.C. § 1251 et seq.; and part 201 of Michigan's Natural Resources and Environmental Protection Act, P.A. 451 of 1994 ("NREPA").
37. The City abetted this unlawful removal of the Berkey Gay hazardous waste by selling to one of the members of the Enterprise a nearby nationally registered historic site to serve as an unlicenced landfill for the hazardous waste. The site was the defunct Grand Rapids Water Filtration Plant ("Filtration Plant") which possessed huge empty concrete water tanks, into which the Enterprise had by September 2000 dumped approximately 20,000 cubic yards of hazardous waste from the Berkey Gay site in violation of the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq., and part 111 of NREPA.
38. To facilitate the rapid removal of hazardous waste from the Berkey Gay site, the Enterprise seized and claimed ownership of the Plaintiffs' Plant driveway. On August 15, 2000, Fisher coerced the Plaintiffs into immediate surrender of their driveway to the Enterprise under the threat of violence and then taunted the Plaintiffs to seek redress in Kent County Circuit Court if they did not like what happened.
Among the fatal defects in plaintiffs' assertion of bank fraud are the following: (1) plaintiffs have no standing to bring any action on behalf of National City; (2) plaintiffs may not relitigate the Kent County Circuit Court cases in this court; (3) the property rights infringed, if any, belonged to the corporations, not property of the plaintiffs in this lawsuit. In addition, plaintiffs did not plead facts showing that Spectrum acted under color of state law for purposes of section 1983. Claim preclusion bars any lawsuit by plaintiffs Tingley III, Tingley and Bradley against Spectrum. In summary, plaintiffs' allegations fail to state a claim against defendant Spectrum.
3. Fifth Third Bancorp
Plaintiffs allege that Fifth Third Bancorp merged with Old Kent Financial Corporation on April 2, 2001 and claims that Fifth Third is liable for the acts of "Old Kent, its subsidiaries, its affiliated banks, and their directors, officers and employees prior to the merger." The "Bank" in plaintiffs' complaint refers to "Old Kent and the entities it controlled until the merger and Fifth Third and the entities it has controlled since the merger." (Complaint, ¶ 11). Paragraph 25 of the complaint makes a conclusory allegation that Fifth Third somehow "laundered" Hospital funds. (Complaint, ¶ 25). This vague claim does not allege facts upon which this defendant could be found liable for depriving plaintiffs of any federally guaranteed rights under color of state law.
Plaintiffs' purported "bank fraud" claim was addressed in the previous section and is rejected for the reasons set forth therein. Claim preclusion bars the claims of Tingley III, Tingley and Bradley. Plaintiffs' complaint fails to state a claim upon which relief can be granted against this defendant.
IV.
Defendants seek to recover their attorney's fees incurred in defending this lawsuit pursuant to 42 U.S.C. § 1988. The Sixth Circuit reviews district court decisions awarding attorneys fees pursuant to 42 U.S.C. § 1988 under an abuse-of-discretion standard. See Tahfs v. Proctor, 316 F.3d 584, 595-96 (6th Cir. 2003). The Court of Appeals has repeatedly cautioned lower courts that a grant of an award of attorney's fees to a prevailing defendant under section 1988 is an extraordinary remedy. See Tahfs, 316 F.3d at 596; Dubuc v. Green Oak Township, 312 F.3d 736, 754 (6th Cir. 2003). "A court must be sensitive that an award of attorney's fees against a losing plaintiff in a civil rights action is an extreme sanction, and must be limited to truly egregious cases of misconduct." See Riddle v. Egensperger, 266 F.3d 542, 552-53 (6th Cir. 2001). The Court of Appeals recently summarized the applicable standard in these terms:
Such fee awards to defendants are limited to instances of egregious misconduct by a plaintiff, based "upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation . . . And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). See Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (applying this standard to a case involving § 1983 and § 1988); see also Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir. 2001); Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986); Smith v. Smythe-Cramer Co., 754 F.2d 180, 182 (6th Cir. 1985). A district court cannot engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. Christiansburg, 434 U.S. at 421-22, 98 S.Ct. 694.
As shown in the preceding pages, plaintiffs' lawsuit was frivolous, unreasonable, without foundation and in bad faith when filed on September 18, 2002, and it has been continued in the same vein. Under 42 U.S.C. § 1988, the court finds that defendants are entitled to recover their reasonable attorney's fees incurred in defending this lawsuit.
Defendants are prevailing parties. Generally, costs other than attorney's fees are allowed as a matter of course to the prevailing parties unless the court otherwise directs. FED. R. CIV. P. 54(d). This language creates a presumption in favor of awarding costs. Soberay Mach. Equip. Co. v. MRF Ltd., Inc., 181 F.3d 759, 770 (6th Cir. 1999). The court finds that defendants are entitled to tax their costs pursuant to 28 U.S.C. § 1920 and Rule 54 of the Federal Rules of Civil Procedure.
Defendants will have fourteen days from the date of this opinion within which to file affidavits and other documents establishing their reasonable costs and attorney's fees incurred in defending this lawsuit. Plaintiffs will have fourteen days after that within which to file objections, after which time, the court will consider the matter ready for decision.
V.
Defendants have also requested injunctive relief to protect them from yet another round of lawsuits initiated by plaintiffs or corporations under their control. The extension of protection against the corporations Proto-CAM Incorporated, Bend Tooling, Inc., Tennine Corporation and The Local Area Watch is necessary in this case because plaintiffs have, on at least two occasions, filed an initial lawsuit in the name of corporations without representation by legal counsel, then amended the complaint to substitute Tingley, Tingley III and Bradley as plaintiffs. Monetary sanctions of more than $29,000 and a permanent injunction issued by the Kent County Circuit Court have failed to deter plaintiffs from initiating and pursuing this lawsuit and the companion qui tam lawsuit. It is well established that federal courts have inherent powers to impose appropriate nonmonetary sanctions to deter future frivolous lawsuits and/or relitigation of the same lawsuit and frivolous and vexatious litigation. See Cauthon v. Rogers, 116 F.3d 1334, 1337 (10th Cir. 1997); United States v. Circuit Court for Taylor County, 73 F.3d 669, 670 (7th Cir. 1995); Wrenn v. Vanderbilt Univ. Hosp., Nos. 94-5453, 94-5593, 1995 WL 111480, at *3 (6th Cir. Mar. 15, 1995); accord Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998); Telechron, Inc. v. Intergraph Corp., No. 95-1039, 1996 WL 370136, at *2 (6th Cir. July 2, 1996) ("Although imposing sanctions pursuant to inherent power and Rule 11 are analogous, courts are not bound by the strictures of Rule 11 case law when exercising their inherent powers.").
Every paper filed with the Clerk of this court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice. See In re McDonald, 489 U.S. 180, 184 (1989). Federal district courts necessarily have considerable discretion in drafting orders restricting a litigious party's access to courts. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 (11th Cir. 2002) (given the plaintiffs "near obsession regarding his former employer, injunctive means [was] the only means that offer[ed] any chance of preventing further harassment"); Martin-Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir. 1993); United States v. MK-Ferguson Co., 99 F.3d 1538, 1548 (10th Cir. 1996); United States v. Hughes Aircraft Co., Nos. 94-55620, 94-55826, at *1 (9th Cir. Oct. 21, 1996); United States v. Barker, 182 F.R.D. 661, 664 (S.D.Ga. 1998). Both the Supreme Court and the Sixth Circuit have reaffirmed the district court's inherent authority to take action to prevent abuse of the judicial system. See Chambers v. Nasco, Inc., 501 U.S. 32, 43-45 (1991); Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308, 313 (6th Cir. 1997); accord First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 512 (6th Cir. 2002); Ulysses Co. v. Feldstein, No. 01 cv 3102 LAP, 2002 WL 1813851, at * 13 (S.D.N.Y. Aug. 8, 2002) ("The Federal courts have an institutional concern and obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions."). A prerequisite to the exercise of such power is a finding that a litigant has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Big Yank, 125 F.3d at 313. The concept of bad faith is an objective one. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim is brought in bad faith if it is frivolous. Id.; see Nabkey v. Gibson, 923 F. Supp. 117, 122 (W.D. Mich. 1990). Objectively, plaintiffs' present lawsuit was filed vexatiously and in bad faith and continued on the same basis.
The court's order under its inherent powers cannot completely foreclose a litigant from access to the court. See Ortman v. Thomas, 99 F.3d 807, 811 (6th Cir. 1996); Washington v. Alaimo, 934 F. Supp. 1395, 1400 (S.D. Ga. 1996). However, the right of access to courts is neither absolute or unconditional, and there is no right of access to the courts to prosecute an action that is frivolous and malicious. See Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989); Roscoe v. Hansen, No. 96-2250, 1997 WL 116992, at *2 (10th Cir. Mar. 17, 1997). Requiring court review of any proposed future filings by plaintiffs would likely result in waste of scarce judicial resources. See Sassower v. American Bar Ass'n, 33 F.3d 733, 736 (7th Cir. 1994). Plaintiff Tingley III violated an order requiring prefiling review when he filed the complaint in the Kortz case. The court finds that requiring plaintiffs to pay all costs and attorney's fees imposed in this case and to post a bond before allowing plaintiffs to file another civil lawsuit against defendants is the least restrictive remedy that bears any hope of deterring future frivolous lawsuits. See United States v. Circuit Court for Taylor County, 73 F.3d at 674; Johnson v. Tuff'n Rumble Mgmt., Inc., No. 99-1374, 2000 WL 622612, at *10 (E.D. La. May 15, 2000); Jean v. Dugan, 29 F. Supp.2d 939 (N.D. Ind. 1998) (requiring payment of all sanctions and imposing $5,000 bond before allowing plaintiff to bring any future lawsuits).
The court is authorized to issue an injunction requiring plaintiffs to post a bond in any future lawsuit to cover potential costs, attorney's fees, and other sanctions. See Stewart v. Fleet Fin., No. 99-2282, 2000 WL 1176881, at *2 (6th Cir. Aug. 10, 2000) (affirming this court's order requiring plaintiff to file a $25,000 cash bond along with any future action against any defendants in the case); Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998); Sassower v. American Bar Ass'n, 33 F.3d at 736; Anderson v. Steers, Sullivan, McNamara Rogers, 998 F.3d 495, 496 (7th Cir. 1993); Ehm v. Amtrak Bd. Of Directors, 780 F.2d 516, 517 (5th Cir. 1986); Hawes v. Club Ecquestre El Comandante, 535 F.2d 140, 143 (1st Cir. 1976); May v. Hatter, No. 00-4115-CIV-MOORE, 2001 WL 579782 (S.D. Fla. May 15, 2001); Dugan, 29 F. Supp.2d at 941; United States v. Barker, 182 F.R.D. at 664; Student Loan Mktg. Ass'n v. Hanes, 181 F.R.D. 629, 638 (S.D. Cal. 1998). If the bond is not posted, the lawsuit is dismissed. If posted, the bond is held by the clerk of the court. If the litigant conducts the litigation in accordance with law, the bond is returned at the conclusion of that case. 181 F.R.D. at 638.
The court concludes that the least severe sanction likely to deter these plaintiffs from filing future frivolous lawsuits is ordering plaintiffs to pay the defendants' reasonable attorney's fees and costs incurred in defending this lawsuit, and ordering nonmonetary sanctions in the form of a permanent injunction against plaintiffs, requiring plaintiffs to pay the sanctions imposed in this lawsuit prior to initiating another lawsuit against any defendant named in this or prior lawsuits listed in the first paragraph of this opinion, their agents or employees unless plaintiffs first file with the Clerk of the Court a cash bond in the amount of $30,000 to cover costs, fees, and sanctions that may be levied against plaintiffs in the litigation. The injunctive relief has no punitive aspect, and serves a purely deterrent function. Further, it does not close the courthouse to plaintiffs and should not deter the maintenance of meritorious litigation, as the bond secures plaintiffs' future liability for costs, attorney's fees, and sanctions in the future litigation, which presupposes that the litigation will be unsuccessful or that plaintiffs will engage in sanctionable behavior. If plaintiffs do not bring a meritless or sanctionable claim, they have nothing to fear. By the same token, defendants and the court are given real and substantial protection against the maintenance of meritless litigation in the future, as they are assured of a solvent fund for the satisfaction of costs, attorney's fees and sanctions.
Furthermore, the injunction will require plaintiffs to attach a copy of this opinion, the accompanying judgment and permanent injunction, and the opinion and judgment and permanent injunction issued in the companion case of United States of America ex rel. William Q. Tingley III et al. v. 900 Monroe, L.L.C., et al., No. 1:02-cv-319 (W.D. Mich.), to any future complaints William Q. Tingley, William Q. Tingley III, Daniel R. Bradley, Proto-CAM Incorporated, Bend Tooling, Inc., Tennine Corporation or The Local Area Watch file in this court or in state court. See Feldstein, 2002 WL 1813851, at *14-16 (extending the attachment requirement to state courts as well as federal courts for the purpose of providing notice, in the spirit of cooperative federalism, to prevent religitation of barred claims). Plaintiffs' failure to comply with the terms of the court's injunction shall be sufficient grounds to dismiss a future complaint in this court with prejudice and or grounds for contempt proceedings. See Martin v. United States, 245 F. Supp.2d 92, 93-94 (D.D.C. 2003); Barker, 182 F.R.D. at 665.
Conclusion
For the reasons set forth herein, plaintiffs' motions for sanctions against defendants City of Grand Rapids, Logie and Ophoff (docket #'s 70, 71) will be denied. The motion for summary judgment by defendants' Soet and Leiber (docket #25) will be granted. Plaintiffs' motion for summary judgment (docket #95) will be denied. The motions to dismiss plaintiffs' claims by the remaining defendants (docket #'s 19, 22, 36, 40, 47, 57, 73) will be granted.
Furthermore, defendants' motions for an award of costs and attorney's fees incurred in defending this lawsuit (docket #'s 19, 22, 25, 36, 40, 47, 57, 73) will be granted. Defendants will be ordered to file affidavits and other documents establishing the reasonable costs and attorney's fees incurred in defending this lawsuit within fourteen days of this opinion and accompanying judgment. Plaintiffs will have fourteen days after that within which to file objections to the reasonableness of the defendants' costs and attorney's fees, after which time the court will consider the issue ready for decision. A permanent injunction will issue to deter future abusive lawsuits by plaintiffs against defendants.
JUDGMENT AND PERMANENT INJUNCTION
In accordance with the opinion issued herewith:
IT IS ORDERED that plaintiffs' motions for sanctions against defendants City of Grand Rapids and John Logie (docket #70) and against defendant Ophoff (docket #71) are DENIED.
IT IS FURTHER ORDERED that the motion for summary judgment by defendants' Soet and Leiber (docket #25) is GRANTED and judgment is hereby entered in favor of those defendants on all claims against them.
IT IS FURTHER ORDERED that plaintiffs' motion for summary judgment as to the liability of all defendants under 42 U.S.C. § 1985 (docket #95) is DENIED.
IT IS FURTHER ORDERED that the motions by the remaining defendants to dismiss plaintiffs' complaint for failure to state a claim (docket #'s 19, 22, 36, 40, 47, 57, 73) are GRANTED, and plaintiffs' claims against all remaining defendants are hereby dismissed with prejudice.
IT IS FURTHER ORDERED that defendants' motions for an award of costs and attorneys fees incurred in defending this lawsuit pursuant to 42 U.S.C. § 1988 (docket #'s 19, 23, 25, 36, 40, 47, 57, 73) are GRANTED. Within fourteen days after this court's order, defendants shall file affidavits and other documents establishing the reasonable costs and attorney's fees incurred in defending this lawsuit. Plaintiffs will have fourteen days thereafter within which to file objections to the reasonableness of the defendants' costs and attorney's fees, after which time the court will consider the issue ready for decision.
IT IS FURTHER ORDERED that William Q. Tingley, William Q. Tingley III, Daniel R. Bradley, Proto-CAM Incorporated, Bend Tooling, Inc., Tennine Corporation, and The Local Area Watch, pursuant to the court's inherent authority, are hereby PERMANENTLY ENJOINED from filing civil lawsuits in this court or any other court against the defendants named in this lawsuit, their agents or employees, or the defendants in the related cases of United States of America ex rel. William Q. Tingley, et al. v. 900 Monroe, L.L.C., et al., 1:02-cv-319 (W.D. Mich.); Proto-CAM, Inc., et al. v. 940 Monroe, L.L.C., et al., No. 00-08231-CZ (Kent County Circuit Court); The Local Area Watch v. City of Grand Rapids, et al., No. 02-00218-CZ (Kent County Circuit Court); Proto-CAM, Inc., et al. v. 900 Monroe, L.L.C., et al., No. 02-03723-NZ (Kent County Circuit Court); William Q. Tingley III v. Ward A. Kortz, et al., No. 02-09503-CE (Kent County Circuit Court), unless (1) plaintiffs have first paid all attorney's fees and costs levied against them in this action and the companion case of 1:02-cv-319 and filed proof of such payments with the court, and (2) plaintiffs first post a cash bond with the Clerk of the Court in the penal amount of $30,000.00 to secure plaintiffs' liability for any costs, sanctions, or attorney's fees awarded against them in that action. Plaintiffs shall attach a copy of this judgment and accompanying opinion and the judgment and opinion in case no. 1:02-cv-319 (W.D. Mich.) to any future complaint filed in any court asserting any claim against the defendants in this lawsuit, their agents or employees, or the defendants in the related lawsuits previously listed. Plaintiffs' failure to comply with the terms of the court's injunction shall be grounds to dismiss any complaint filed in this court with prejudice and may subject plaintiffs to contempt proceedings.