Glassman et al v. City of Memphis, Tennessee

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Tenn.February 14, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION RICHARD GLASSMAN, ALAN GLASSMAN and IRENE M. LIPPE, Plaintiffs, No. : 2:17-cv-02087-JPM-dkv v. CITY OF MEMPHIS, Defendant. MOTION OF DEFENDANT, CITY OF MEMPHIS, TO DISMISS COMES NOW Defendant, City of Memphis (“City”), by and through its counsel of record, and for its Motion to Dismiss, pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure, states as follows: 1. Plaintiffs fail to state a claim upon which relief can be granted. 2. In all events, Plaintiffs claims are barred by the applicable statutes of limitations. See T.C.A. Sections 28-3-104, 28-3-105, 28-3-110 and 67-1- 903. 3. Moreover, by the plain terms of T.C.A. Section 29-20-205(2), Defendant is immune from liability for the civil rights claims asserted on behalf of Plaintiffs. 4. It affirmatively appears that no rights of Plaintiffs have been violated and they are not entitled to any relief whatsoever from Defendant. Case 2:17-cv-02087-JPM-dkv Document 7 Filed 02/14/17 Page 1 of 3 PageID 89 2 5. There can be no recovery for alleged federal and/or state constitutional law violations where the broad general conclusory allegations are explained and refuted in precise detail. 6. Similarly, Plaintiffs cannot recover for alleged statutory law violations and/or common law claims where the broad general conclusory allegations are likewise explained and refuted in precise detail. 7. Plaintiffs’ Complaint, in light of the additional facts contemporaneously submitted of record herewith by Defendant, fails to allege facts sufficient to constitute a cause of action against this Defendant. 8. Clearly, the general conclusory allegations of lack of notice by Plaintiffs are insufficient when viewed against the detailed meticulous record assembled by Defendants documenting multiple ample notice, including signed and dated certified mail return receipts. 9. This Defendant is not liable to Plaintiffs where there is no showing that a right complained of was in fact violated. 10. Where there is proper legal basis and foundation for the action taken by the Defendant there can be no recovery by Plaintiff. WHEREFORE, premises considered, the Defendant, City, prays this Court to grant its Motion to Dismiss, asks that the claims against this Defendant be dismissed and that this Defendant be allowed to go hence with its reasonable costs. In support of its motion, Defendant relies upon the separate Memorandum of Law and Affidavits of Melinda Neal and John Patrick Black, respectively, with attached separate exhibits, all contemporaneously filed of record herein. Case 2:17-cv-02087-JPM-dkv Document 7 Filed 02/14/17 Page 2 of 3 PageID 90 3 Respectfully submitted, BRUCE A. MCMULLEN CHIEF LEGAL OFFICER/CITY ATTORNEY s/Prince C. Chambliss, Jr. Prince C. Chambliss, Jr. (#5071) Assistant City Attorney 125 N. Main Street, Room 336 Memphis, TN 38103 PH: (901) 636.6514 prince.chambliss@memphistn.gov CERTIFICATE OF SERVICE I hereby certify that on February 14, 2017, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system. I also certify that upon filing a copy was mailed by counsel upon: Edwin E. Wallis, Esq. Jonathan S. Stokes, Esq. 26 N. Second Street Memphis, TN 38120 s/Prince C. Chambliss, Jr. Prince C. Chambliss, Jr. Case 2:17-cv-02087-JPM-dkv Document 7 Filed 02/14/17 Page 3 of 3 PageID 91 1 IN THE UNITED STATES DISTRICT OURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION RICHARD GLASSMAN, ALAN GLASSMAN and IRENE M. LIPPE, Plaintiffs, No: 2:17-cv-02087-JPM-dkv vs. CITY OF MEMPHIS, TENNESSEE Defendant. MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANT, CITY OF MEMPHIS, TO DISMISS COMES NOW Defendant, City of Memphis (“City”), by and through its counsel of record, and for its Memorandum in Support of its Motion to Dismiss, pursuant to Rule 12 (b)(6) of the Federal Rules of Civil Procedure, states as follows: FACTUAL AND PROCEDURAL BACKGROUND This is a lawsuit seeking recovery of fees and penalties assessed, for violations of the Code of Ordinances for being derelict, blighted or dangerous, as a tax against improved real property located in Memphis, Tennessee. By letter dated June 24, 2004, Defendant notified Plaintiff, Alan Glassman, as one of the owners of the property identified as 4440-4444 Summer Avenue, Case No. 1242, of the amount of $500 for inspection fees to be charged quarterly, the additional penalty of $10 per day and inability to waive fees and penalties after certification to City Treasurer. (Complaint ¶ ¶ 19 and 20, Exhibit A to Complaint, also page 177 of Exhibit A, attached to Affidavit of Melanie Neal, attached as Exhibit A to Defendant’s Motion) A signed and dated certified mail return receipt documents delivery of the letter (page 179, Id.) Of course, the letter will speak for itself. The letter included copy of a June 23, 2004 Inspection Report, detailing a list of the violations. (included as a part of Exhibit A to Complaint).On or about June Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 1 of 10 PageID 92 2 7, 2005, Plaintiffs were assessed a $500 fee and notified of late penalty of $10 per day upon failure to pay within fifteen (15) days. (Complaint ¶ 15, Exhibit D to Complaint, also page 157, Id.) A signed and dated certified mail return receipt documents delivery of the letter (page 159, Id.)The June 7, 2005 letter will also speak for itself. Two more inspection fees were assessed in 2006. (Complaint ¶ 25, Exhibit D to Complaint). See Inter-Office Memoranda, dated March 22, 2006 and July 6, 2006, respectively. (pages 141 and 138, Id.) By letters, dated February 22, 2006 and May 25, 2006, respectively, notice was provided by Defendant of assessment of additional fees in the event of failure of measurable progress to remedy the violations. (pages 144 and 139, Id.) A signed and dated certified mail return receipt documents delivery of both letters (pages 140 and 145, Id.) Alleging violation of City of Memphis Ordinance Section 14-8-5, Defendant sued Plaintiffs in General Sessions Criminal Court, Division XIV (“Environmental Court”) on or about July 5, 2006. (Complaint ¶ 27, Exhibit D) Following demolition of the building structure in June of 2008, the lawsuit was dismissed shortly thereafter. (Complaint ¶ ¶ 36, 45, Exhibit D) Later in 2009, the property at issue, 4440 Summer Avenue in Memphis, was the subject of a lawsuit filed in Shelby County Chancery Court, seeking to collect for delinquent taxes. (Complaint ¶ 46, Exhibit D) It appears that the Chancery Court proceeding was ultimately dismissed. (Complaint ¶ 50) Plaintiffs sold the property in 2014. (Complaint ¶ 53) At paragraph 55 of the Complaint, Plaintiffs describe the dollar amount at issue as follows: “There is a difference of $487.23 in unaccounted-for-funds between The amounts of $28,482 in Anti-Neglect assessments certified by the City as ‘taxes’ and $27,994.77 in total monies that the City collected from its January 2014 misappropriation of Plaintiffs’ tax payment and its May 2016 collection of the Escrowed Funds.” Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 2 of 10 PageID 93 3 Eleven years after notification of the first fee and penalty information, on or about June 24, 2004, Plaintiffs file this lawsuit seeking recovery of the amounts paid and other relief. (Exhibit A to Complaint) LEGAL STANDARD A defendant may bring a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). This motion only tests whether the plaintiff has pleaded a cognizable claim. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434,436 (6th Cir. 1988). Essentially, it allows the court to dismiss, on the basis of a dispositive issue of law, meritless cases which would otherwise waste judicial resources and result in unnecessary discovery. See, e.g., Neitzke v. Williams, 490 U.S. 319,326-27 (1989). To determine whether a motion to dismiss should be granted, the court must examine the complaint. The complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and it must provide the defendant with "fair notice of what the plaintiffs claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41,47 (1957); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). While a complaint need not present detailed factual allegations, to be cognizable it must provide more than "labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007); see also Scheid, 859 F.2d at 436-37. A complaint must have a factual foundation, and the mere possibility "that a plaintiff might later establish some set of undisclosed facts to support recovery" is insufficient to survive a 12(b)(6) challenge. Twombly, 550 U.S. at 561 (internal quotation marks and brackets omitted). In reviewing the complaint, the court must accept as true all factual allegations in the complaint and construe them in the light most favorable to the plaintiff. Neitzke, 490 U.S. at 326- 27 ("Rule 12(b)(6) does not countenance dismissals based on a judge's disbelief of a complaint's Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 3 of 10 PageID 94 4 factual allegations."); Windsor v. The Tennessean, 719 F.2d 155,158 (6th Cir. 1983). Where there are conflicting interpretations of the facts, they must be construed in the plaintiff’s favor. Sinay v. Lamson & Sessions Co,, 948 F.2d 1037,1039-40 (6th Cir. 1991). However, only well- pleaded facts must be taken as true, and the court need not accept legal conclusions or unwarranted factual inferences. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389,405 (6th Cir. 1998). Generally, when ruling on a Rule 12(b)(6) motion to dismiss, the court does not consider matters outside the pleadings. Weiner v. Klais & Co., 108 F.3d 86, 88-89 (6th Cir. 1997); Rhea v. Dollar Tree Stores, Inc., 395 F. Supp. 2d 696,702-03 (W.D. Tenn. 2005). The Sixth Circuit Court of Appeals has held, however, that "[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to her claim."' Id. at 89 (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,431 (7th Cir. 1993)). Moreover, "[c]ourts may also consider public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies." Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). LAW AND ARGUMENT 1. Plaintiffs fail to state an actionable claim against the Defendant City of Memphis for alleged federal Constitutional law violations Plaintiffs fails to state a claim for due process violations under the Fourteenth Amendment to the U.S. Constitution because 42 U.S.C. § 1983 is the exclusive mechanism for bringing suits against a state actor, government entity, or municipality for violations of the rights secured by § 1981. While Plaintiffs herein merely asserted a claim under the Fourteenth Amendment, with no mention of either § 1981 or 1983, the law is clear that the only cognizable claim must be asserted under 1983. Jett v.Dallas Indep. Sch. Dist, 491 U.S. 701 (1989) (holding that § 1983 provides the exclusive remedy for damages for the violation of rights guaranteed by § 1981 when a state actor is the alleged violator); McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012) (concluding that"§ 1983 is the exclusive mechanism to vindicate violations of § 1981 by an Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 4 of 10 PageID 95 5 individual state actor acting in his individual capacity"); Grinter v. Knight, 532 F.3d 567,577 (6th Cir. 2008)("§ 1983 provides an exclusive remedy for violations against state actors sued in their official capacities. An official capacity lawsuit against... a state actor, for constitutional violations, such as race discrimination, cannot be brought under § 1981."); Arendale v. City of Memphis, 519 F.3d 587, 598-99 (6th Cir. 2008)("[W]e hold that 'the express cause of action for damages created by§ 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units,'... no independent cause of action against municipalities is created by § 1981(c)."). Because 42 U.S.C. § 1981 is not the proper statutory action against Defendant, the due process claim allegedly brought under that statute should be dismissed. 2. Plaintiffs’ tort claims against Defendant City are barred under the "civil rights" exception in Tenn. Code Ann. § 29-20-205(2) of the TGTLA. Plaintiffs tort claims against Defendant City are barred under the "civil rights" exception in Tenn. Code Ann. § 29-20-205(2) of the Tennessee Governmental Tort Liability Act ('TGTLA"). The alleged misrepresentations by Defendant were committed in the context of a violation of Plaintiffs’ civil rights. The state law tort claims against Defendant City arise out of and are directly related to Plaintiffs’ federal civil rights claim. As a result, Defendant City has absolute immunity to these tort claims under the TGTLA. See, e.g., Jackson v. Thomas, M2010- 01242-COA-R3CV, 2011 WL 1049804 (Tenn. Ct. App. Mar. 23, 2011); Gregory v. City of Memphis, 07-02445, 2013 WL 1966969, at *11 (W.D. Tenn. May 10,2013); Newby v. Sharp, 3:ll-CV-534,2012 WL 1230764, at *5 (E.D. Tenn. Apr. 12,2012); Graham v. Sequatchie Cnty. Gov't, L10-CV-20, 2011 WL 1305961, at *37 (E.D. Tenn. Apr. 4, 2011)("); Dillingham v. Millsaps, 809 F. Supp. 2d 820, 853 (E.D. Tenn. 2011); Campbell v. Anderson Cnty., 695 F. Supp. 2d 764, 770 (E.D. Tenn. 2010); Uhuru v. City of Memphis, 08-2150-V, 2008 WL 4646156, at *14 n.5 (W.D. Tenn. Oct. 17,2008); Rhodes v. City of Chattanooga, Tennessee, l:04-CV- Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 5 of 10 PageID 96 6 045,2005 WL 2647921, at *9 (E.D. Tenn. Oct. 14,2005) ("There is an additional reason why the plaintiffs' claim against the City for assault and battery must be dismissed. This tort is alleged to have been committed solely in the context of officer Hutson violating Daniel Rhodes' civil rights. The Court cannot lose sight of the fact that this is fundamentally a civil rights suit. Tenn. Code Ann. § 29-20-205(2) under GTLA provides that the City has immunity from suit on a negligence cause of action if the injury arises out of 'civil rights.' The civil rights exception in Tenn. Code Ann. § 29-20-205(2) is applicable here and the City is immune from this suit on the assault and battery claim."). As a result, any TGTLA state law tort claims against Defendant City should be dismissed. 3. Under the circumstances of the instant case, any limits upon the amount of fees and penalties imposed upon Plaintiffs are inapplicable. In response to Plaintiffs claims about the alleged excessive amount paid by them as a result of their most serious long-term violations of the City’s Code of ordinances, clearly, they only have themselves to blame. The record documents how relatively minimal the actual fees were. What added to the accumulated total was the failure of Plaintiffs to pay attention and timely correct the violations. Unfortunately, for Plaintiffs, the courts considering this issue have concluded that those who fail to timely take steps to eliminate the circumstances responsible for escalation of penalties are simply not entitled to any relief. See Moustakis v. City of Fort Lauderdale, 338 F. Appx. 820 (11 th Cir. 2009), which is remarkably similar to the instant case. Completely rejecting the plaintiff’s claim that $700,000 in fines and was excessive, the district court’s action granting the motion to dismiss, with prejudice, was affirmed. See also, Express Valet, Inc. v. City of Chicago, 869 N.E. 2d 964 (App. Ct. Ill. 2007) and City and County of San Francisco v. Sainz, 92 Cal. Rptr. 2d 418 (CA Ct. App. 2000), both to the same effect. In situations very similar to the instant case, courts have found that, in spite of high accumulated penalties, the complaining parties had Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 6 of 10 PageID 97 7 only themselves to blame and no relief was provided. Of course, this is exactly where we find Plaintiffs in this case. Without regard to the many inspections, notices, reports and efforts to obtain compliance, Plaintiffs were, apparently, too busy to pay attention and allowed time to pass, resulting in accumulation of fees and penalties. T.C.A. 6-54-306 permits the original fees imposed in this case. City Ordinance 1852 provides for home rule for the City of Memphis. Had Plaintiffs complied with the requirements, the expense would’ve been relatively minimal and there would be no need for a federal court lawsuit. Instead, Plaintiffs failed to expeditiously address the matter and the amount of the obligation grew. As determined by other courts facing complaining parties in similar circumstances, the Court should leave Plaintiffs where they are as a result of their own inaction for so many years. 4. In all events, all of the claims asserted herein on behalf of Plaintiffs should be dismissed as being barred by the applicable statutes of limitations. At bottom, Plaintiffs seek recovery of the fees and penalties assessed and collected by Defendant as taxes. T.C.A. Section 67-1-903 requires that any such lawsuit be filed within six (6) months of the date of payment. Clearly, Plaintiffs had notice of payment long before such required date, as suit was only filed in January 2017. (Complaint ¶ ¶ 52, 53 and 54) The last payments were received by Defendant in April and June 2016. (Exhibit A to the Affidavit of John Patrick Black) In light of the policy and statute set forth in Exhibit B (Id.), Plaintiffs protestations about Defendant’s failure to honor their attempt at restricting and limiting application of the payments are simply without merit. T.C.A. Section 67-5-1801(b) very clearly governs the transactions and Defendant’s statement of policy is prominent and not subject to misinterpretation. As to Plaintiffs federal constitutional claims, the Tennessee one-year statute, T.C.A. Section 28-3-105, clearly applies. See Wright v. State of Tenn., 613 F 2d 647 (6 Cir, 1980). As Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 7 of 10 PageID 98 8 the court concluded, with respect to the equal protection claim, the District Court correctly held that it is time-barred. There is no applicable federal statute imposing a limitations period on constitutional claims. Therefore, the appropriate state statute is used. See 28 U.S.C. Section 1652 (1976); 42 U.S.C. Section 1988 (1976); Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976); Warner v. Perrino, 585 F.2d 171 (6th Cir. 1978). The court held that Tennessee's one-year statute, Tenn. Code Ann. Section 28-304 [predecessor version to 28-1-305], provides the applicable limitations period for the type of constitutional claim asserted here. See Harrison v. Wright, 457 F.2d 793 (6th Cir. 1972). Since plaintiff's claim arose more than a year before suit was brought, the claim is barred. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Lastly, Plaintiffs’ broad shotgun, bushel basket attempt to assert every possible conceivable theory of liability is simply insufficient to state a claim. In spite of Plaintiffs’ efforts to mask their claim in the guise of thirteen (13) alternative theories, in light of the Tennessee requirement that statute of limitations defenses be analyzed in terms of the gravamen of the complaint, the only real applicable theory for recovery is the claim for reimbursement for payment of property taxes. As stated in Defendant’s motion and above, T.C.A. Section 67-1-903 is the applicable limitations statute. Plaintiffs’ claims are time barred and should be dismissed forthwith. The fees and penalties began in 2004. In spite of Plaintiffs’ undocumented and unsupported protestations to the contrary, this is not a case where information was not provided to Plaintiffs from the very beginning and along each step of the way over the many years, beginning in 2004 and continuing for many years thereafter. The meticulously detailed file set forth as Exhibit A to the Affidavit of Melanie Neal makes it very clear. Plaintiffs had more than ample notice. Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 8 of 10 PageID 99 9 Plaintiffs’ reliance upon each of the thirteen separate counts, as set forth in the Complaint, is misplaced. In granting defendants’ motion to dismiss, the court in Precision Tracking, 2014 WL 3058396 U.S. Dist Ct. E.D. Knoxville 2014), found that there is no specific limitations statute in Tennessee for an unjust enrichment claim. See Precision Tracking *4 where it is concluded that: “The court looks to the gravamen of the complaint, or real purpose of the action, to determine the statute of limitations in each case. Id. Courts look to the “basis for which the damages are sought” to identify the gravamen of the action.” In the instant action, there can be no mistake but that Plaintiffs seek to recover for fees and penalties that began to accumulate in 2004 (page 177, Id.) Clearly, Plaintiffs were fully notified from the very beginning. The complete meticulously detailed record will speak for itself. The fact that Plaintiffs failed to properly address themselves to attending to their business does not in any way impose any obligation whatsoever upon Defendant. Obviously, Plaintiffs were not exercising due diligence. See the allegations of paragraph 29 of the Complaint. The implication is that extended travel prevented Plaintiffs from attending to their business. See also, page 63, Id. The plain written words of Plaintiffs very directly tell the story of lack of attention, apology for missed court appearance after the fact, and continual request for information already previously provided by certified mail, return receipt signed and dated. The time for Plaintiffs to have sought recovery for fees and penalties was many years ago. (Exhibit B to Affidavit of John Patrick Black) Similarly, Plaintiffs complaint about application of payment to overdue past debt instead of current amounts due is much ado over very little. In contravention of clearly stated policy, based upon Tennessee statutory law, Plaintiffs make claim, with no effort to address or explain their complete failure to comply with the requirements of T.C.A. Section 67-5-1801 (b). In summary, Plaintiffs’ lawsuit is much too Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 9 of 10 PageID 100 10 little, far too late and should be dismissed. Regardless, no rights were violated and the claims should all be dismissed. CONCLUSION For the reasons set forth in Defendant’s motion and herein, based upon the entire record, including the pleadings, affidavit and exhibits, Plaintiffs Complaint should be dismissed for failure to state a claim upon which relief can be granted. Respectfully submitted, Bruce McMullen Chief Legal Officer/City Attorney s/Prince C. Chambliss, Jr. Prince C. Chambliss, Jr., #5071 Senior Assistant City Attorney 125 N. Main Street, Room 336 Memphis, Tennessee 38103 (901) 636-6614 Office (901) 636-6524 Fax prince.chambliss@memphistn.gov CERTIFICATE OF SERVICE I hereby certify that on February 14, 2017, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system. I also certify that upon filing a copy was mailed by counsel to: Edwin E. Wallis, Esq. Jonathan S. Stokes, Esq. 26 N. Second Street Memphis, TN 38120 s/Prince C. Chambliss, Jr. Prince C. Chambliss, Jr. Case 2:17-cv-02087-JPM-dkv Document 7-1 Filed 02/14/17 Page 10 of 10 PageID 101 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ RICHARD GLASSMAN, ALAN GLASSMAN and IRENE M. LIPPE, Plaintiffs, Civil Action No. : 2:17-cv-02087-JPM-dkv v. CITY OF MEMPHIS, Defendant. _____________________________________________________________________________ STATEMENT OF UNDISPUTED FACTS ______________________________________________________________________________ 1. By letter dated June 24, 2004, Defendant notified Plaintiff, Alan Glassman, as one of the owners of the property identified as 4440-4444 Summer Avenue, Case No. 1242, of $500 inspection fees to be charged quarterly, the additional penalty of $10 per day and inability to waive fees and penalties after certification to City Treasurer. (Complaint ¶ ¶ 19 and 20, Exhibit A to Complaint, also page 177 of Exhibit A, attached to Affidavit of Melanie Neal, attached as Exhibit A to Defendant’s Motion) 2. The June 24, 2004 letter included copy of a June 23, 2004 Inspection Report, detailing a list of the violations. (included as a part of Exhibit A to Complaint) 3. On or about June 7, 2005, Plaintiffs were assessed a $500 fee and notified of late penalty of $10 per day upon failure to pay within fifteen (15) days. (Complaint ¶ 15, Exhibit D to Complaint, also page 157 of Exhibit A, attached to Affidavit of Melanie Neal, attached as Exhibit A to Defendant’s Motion ) Case 2:17-cv-02087-JPM-dkv Document 7-2 Filed 02/14/17 Page 1 of 3 PageID 102 2 4. Two more inspection fees were assessed in 2006. (Complaint ¶ 25, Exhibit D to Complaint). See Inter-Office Memoranda, dated March 22, 2006 and July 6, 2006, respectively. (pages 141 and 138 of Exhibit A, attached to Affidavit of Melanie Neal, attached as Exhibit A to Defendant’s Motion) 5. By letters, dated February 22, 2006 and May 25, 2006, respectively, notice was provided by Defendant of assessment of additional fees in the event of failure of measurable progress to remedy the violations. (pages 144 and 139 of Exhibit A, attached to Affidavit of Melanie Neal, attached as Exhibit A to Defendant’s Motion) 6. Alleging violation of City of Memphis Ordinance Section 14-8-5, Defendant sued Plaintiffs in General Sessions Criminal Court, Division XIV (“Environmental Court”) on or about July 5, 2006. (Complaint ¶ 27, Exhibit D) 7. Following demolition of the building structure in June of 2008, the lawsuit was dismissed shortly thereafter. (Complaint ¶ ¶ 36, 45, Exhibit D) 8. Later in 2009, the property at issue, 4440 Summer Avenue in Memphis, was the subject of a lawsuit filed in Shelby County Chancery Court, seeking to collect for delinquent taxes. (Complaint ¶ 46, Exhibit D) 9. It appears that the Chancery Court proceeding was ultimately dismissed. (Complaint ¶ 50) 10. Plaintiffs sold the property in 2014. (Complaint ¶ 53) 11. At paragraph 55 of the Complaint, Plaintiffs describe the dollar amount at issue as follows: “There is a difference of $487.23 in unaccounted-for-funds between The amounts of $28,482 in Anti-Neglect assessments certified by the Case 2:17-cv-02087-JPM-dkv Document 7-2 Filed 02/14/17 Page 2 of 3 PageID 103 3 City as ‘taxes’ and $27,994.77 in total monies that the City collected from its January 2014 misappropriation of Plaintiffs’ tax payment and its May 2016 collection of the Escrowed Funds.” 12. Defendant’s records document the amount paid as $27,593.32. (Exhibit A to Affidavit of John Patrick Black) 13. Pursuant to T.C.A. Section 67-5-1801 (b), it is the policy of the Treasurer of the City to require payment of back taxes on real property before accepting current year taxes, absent compliance with provision for exceptions. (Exhibit B to Affidavit of John Patrick Black) Respectfully submitted, BRUCE A. MCMULLEN, CHIEF LEGAL OFFICER/CITY ATTORNEY s/ Prince C. Chambliss, Jr. Prince C. Chambliss, Jr. BPR# 5071 Assistant City Attorney 125 N. Main, Room 336 Memphis, TN 38103 Telephone: (901) 636-6614 Facsimile: (901) 63606524 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was forwarded to, via the court’s electronic filing system (ECF) on this 14th day of February 2017. Prince C. Chambliss, Jr. Case 2:17-cv-02087-JPM-dkv Document 7-2 Filed 02/14/17 Page 3 of 3 PageID 104 Case 2:17-cv-02087-JPM-dkv Document 7-3 Filed 02/14/17 Page 1 of 2 PageID 105 Case 2:17-cv-02087-JPM-dkv Document 7-3 Filed 02/14/17 Page 2 of 2 PageID 106 Case 2:17-cv-02087-JPM-dkv Document 7-4 Filed 02/14/17 Page 1 of 4 PageID 107 Case 2:17-cv-02087-JPM-dkv Document 7-4 Filed 02/14/17 Page 2 of 4 PageID 108 Case 2:17-cv-02087-JPM-dkv Document 7-4 Filed 02/14/17 Page 3 of 4 PageID 109 Case 2:17-cv-02087-JPM-dkv Document 7-4 Filed 02/14/17 Page 4 of 4 PageID 110 Case 2:17-cv-02087-JPM-dkv Document 7-5 Filed 02/14/17 Page 1 of 4 PageID 111 Case 2:17-cv-02087-JPM-dkv Document 7-5 Filed 02/14/17 Page 2 of 4 PageID 112 Case 2:17-cv-02087-JPM-dkv Document 7-5 Filed 02/14/17 Page 3 of 4 PageID 113 Case 2:17-cv-02087-JPM-dkv Document 7-5 Filed 02/14/17 Page 4 of 4 PageID 114 Case 2:17-cv-02087-JPM-dkv Document 7-6 Filed 02/14/17 Page 1 of 2 PageID 115 Case 2:17-cv-02087-JPM-dkv Document 7-6 Filed 02/14/17 Page 2 of 2 PageID 116