Nappier v. Snyder et al

BRIEF in support of MOTION to dismiss 16 and Certificate of Service

W.D. Mich.July 15, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TAMARA NAPPIER, et al., Plaintiffs, Case No. 1:16-cv-00636-GJQ-PJG v. Hon. Gordon J. Quist RICHARD SNYDER, et al. Defendants. __________________________________________________________________ BRIEF IN SUPPORT OF BRADLEY WURFEL’S MOTION TO DISMISS Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.542 Page 1 of 33 i TABLE OF CONTENTS STATEMENT OF QUESTIONS PRESENTED........................................................................... iii CONTROLLING AND MOST APPROPRIATE AUTHORITIES .............................................. iv INDEX OF AUTHORITIES............................................................................................................v I. INTRODUCTION................................................................................................1 II. BACKGROUND..................................................................................................1 III. STANDARD OF REVIEW .................................................................................4 IV. ARGUMENT .......................................................................................................5 A. The Complaint’s Improper Collective Pleading Violates Fed. R. Civ. P. 8 and Fails to State a Proper Claim Against Mr. Wurfel. ..............................................5 B. Mr. Wurfel is Immune from Plaintiffs’ Claims....................................................6 1. Plaintiffs’ Official Capacity Claim is Barred by the Immunity Granted Under the Eleventh Amendment of the United States Constitution............................7 2. Plaintiffs’ Claims Against Mr. Wurfel are Barred by Michigan’s Absolute Statutory Immunity...........................................................................................7 3. Plaintiffs’ Negligence Claim Against Mr. Wurfel is Barred by Michigan’s Limited Statutory Immunity. ..........................................................................10 C. Plaintiffs Have Failed to State Claims Against Mr. Wurfel for Gross Negligence and/or Negligence. ..........................................................................11 1. Plaintiffs Have Failed to Plead a Duty Owed Them by Mr. Wurfel. .............11 2. Plaintiffs Have Failed to Plead any Facts Showing that Mr. Wurfel Breached Any Duties. .....................................................................................................13 3. Plaintiffs Have Failed to Plead that Mr. Wurfel is the Proximate Cause of Their Purported Injuries..................................................................................15 D. Plaintiffs’ Claims Alleging that Mr. Wurfel Made Inaccurate Public Statements are Barred by the Absolute and Qualified Privileges. ........................................17 1. Mr. Wurfel’s Communications are Protected by Absolute Privilege. ............17 2. Mr. Wurfel’s Communications are Protected by Qualified Privilege. ...........19 E. Plaintiffs’ Common Law Cause of Action is Preempted by the MSDWA........21 1. Michigan Statutes Can Preclude Common Law Claims. ...............................21 2. The MSDWA is a Comprehensive Statute which Expressly Provides that Only the Michigan Attorney General May Bring a Civil Action. ..................22 Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.543 Page 2 of 33 ii 3. Plaintiffs’ Alleged Duties Fall Within the Scope of the MSDWA.................23 V. CONCLUSION ..................................................................................................24 Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.544 Page 3 of 33 iii STATEMENT OF QUESTIONS PRESENTED I. Should this Court dismiss the Complaint because its improper collective pleading violates Fed. R. Civ. P. 8 and fails to state a proper claim against Mr. Wurfel? Defendant Bradley Wurfel answers: Yes Plaintiffs answer: No II. Are Plaintiffs’ claims against Mr. Wurfel in his “official” capacity barred by Eleventh Amendment sovereign immunity? Defendant Bradley Wurfel answers: Yes Plaintiffs answer: No III. Is Mr. Wurfel absolutely immune from Plaintiffs’ gross negligence and/or negligence claims under MCL 691.1407(5)? Defendant Bradley Wurfel answers: Yes Plaintiffs answer: No IV. Is Plaintiffs’ negligence claim against Mr. Wurfel barred by the statutory immunity granted by MCL 691.1407(2)? Defendant Bradley Wurfel answers: Yes Plaintiffs answer: No V. Does Plaintiffs’ complaint fail to state a gross negligence and/or negligence claim against Mr. Wurfel? Defendant Bradley Wurfel answers: Yes Plaintiffs answer: No VI. Are Plaintiffs’ claims alleging that Mr. Wurfel made inaccurate public statements barred by the absolute and qualified privileges? Defendant Bradley Wurfel answers: Yes Plaintiffs answer: No VII. Are Plaintiffs’ state law tort claims preempted by Michigan’s Safe Drinking Water Act? Defendant Bradley Wurfel answers: Yes Plaintiffs answer: No Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.545 Page 4 of 33 iv CONTROLLING AND MOST APPROPRIATE AUTHORITIES Rules Fed R. Civ. P. 8(a)(2) Fed. R. Civ. P. 12(b)(6) Statutes MCL 691.1407(2) MCL 691.1407(5) Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) (standard of review and group pleading) Cady v. Arenac Cty., 574 F.3d 344 (6th Cir. 2009) (official capacity claim barred by Eleventh Amendment) Chivas v. Koehler, 182 Mich. App. 467 (1990) (absolute state immunity) Cummins v. Robinson Township, 283 Mich. App. 677 (2009) (no duty owed to Plaintiffs) Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) (no liability for public statements) Benzman v. Whitman, 523 F.3d 119 (2d Cir. 2008) (no liability for public statements) Robinson v. Detroit, 462 Mich. 439 (2000) (“the” proximate cause requirement for gross negligence) Kefgen v. Davidson, 241 Mich. App. 611 (2000) (absolute privilege) Gonyea v. Motor Parts Fed. Credit Union, 192 Mich. App. 74 (1991) (qualified privilege) Millross v. Plum Hollow Golf Club, 429 Mich. 178 (1987) (statutory preemption) Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.546 Page 5 of 33 v INDEX OF AUTHORITIES CASES Am. Transmission v. Att’y Gen., 454 Mich. 135 (1997) ............................................................ 6, 8 Ammend v. BioPort, Inc., 322 F. Supp. 2d 848 (W.D. Mich. 2004) .............................................. 7 Armstrong v. Ypsilanti Twp., 248 Mich. App. 573 (2001) ........................................................ 8, 9 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................. 4, 5, 6 Anzaldua v. Neogen Corp., 292 Mich. App. 626 (2011) ............................................................. 21 Bacon v. Mich. Cent RR Co., 66 Mich. 166 (1887) ..................................................................... 19 Bah v. Mac’s Convenience Stores, LLC, 37 N.E.3d 539 (Ind. Ct. App. 2015) ............................ 19 Barr v. Matteo, 360 U.S. 564 (1959) ........................................................................................... 18 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................... 4, 5 Benzman v. Whitman, 523 F.3d 119 (2d Cir. 2008) ..................................................................... 16 Berlin v. Superintendent of Pub. Instruction, 181 Mich. App. 154 (1989) ................................... 8 Bolton v. Walker, 197 Mich. 699 (1917) ...................................................................................... 18 Bradley v. Saranac Bd. Of Educ., 455 Mich. 285 (1997) ............................................................ 22 Brown v. Indianapolis Housing Agency, 971 N.E.2d 181 (Ind. Ct. App. 2012) .......................... 19 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ............................................................................. 10 Butz v. Economou, 438 U.S. 478 (1978) ........................................................................................ 9 Cady v. Arenac County, 574 F.3d 334 (6th Cir. 2009) ................................................................... 7 Chivas v. Koehler, 182 Mich. App. 467 (1990) ......................................................................... 5, 9 Couch v. Schultz, 193 Mich. App. 292 (1992) ............................................................................. 17 Cummins v. Robinson Township, 283 Mich. App. 677 (2009) .............................................. 11, 13 Davis v. City of Detroit, 269 Mich. App. 376 (2006) .................................................................... 9 Dawe v. Dr. Reuven Bar-Levav & Assoc., PC, 485 Mich. 20 (2010) .......................................... 21 Dep’t of Agric. v. Appletree Mktg., LLC, 485 Mich. 1 (2010) ..................................................... 21 Dinoto v. City of Warren, 1998 Mich. App. LEXIS 962 (1998) ................................................... 8 EBI-Detroit, Inc. v. Detroit, 279 Fed. Appx. 340 (6th Cir. 2008) ............................................ 7, 11 Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631 (6th Cir. 2007) .................................... 5 Gonyea v. Motor Parts Fed. Credit Union, 192 Mich. App. 74 (1991) ...................................... 19 Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507 (6th Cir. 1999) ........................................... 5 Harvey v. Jones, 2009 Mich. App. LEXIS 775 (2009) .................................................................. 8 Hoerstman Gen. Contr., Inc. v. Hahn, 474 Mich. 66 (2006) ................................................. 21, 22 Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999) .......................................................... 4 Jasinski v. Tyler, 729 F.3d 531 (6th Cir. 2013) ........................................................................... 15 Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.547 Page 6 of 33 vi Jones v. Pramstaller, 678 F. Supp.2d 609 (W.D. Mich. 2009) .................................................... 15 Kefgen v. Davidson, 241 Mich. App. 611 (2000) .................................................................. 17, 19 Kraft v. Detroit Entm’t, LLC, 261 Mich. App. 534 (2004) .......................................................... 21 Lakeshore Community Hosp., Inc. v. Perry, 212 Mich. App. 396 (1995) ................................... 18 Lawrence-Webster v. City of Saginaw, 2006 U.S. Dist. LEXIS 92678 (E.D. Mich. 2006) .......... 8 Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) ................................................................ 16, 19 Maiden v. Rozwood, 461 Mich. 109 (1999) ..................................................................... 11, 13, 18 Marcilis v. Twp. of Redford, 693 F.3d 589 (6th Cir. 2012) ............................................................ 6 McNall v. Frus, 336 Ill. App. 3d 904 (2002) ............................................................................... 18 Meyer v. Hubbell, 177 Mich. App. 699 (1982) ............................................................................ 18 Millross v. Plum Hollow Golf Club, 429 Mich. 178 (1987) .................................................. 21, 23 Moning v. Alfono, 400 Mich. 425 (1977) ..................................................................................... 11 Nalepa v. Plymouth-Canton Comm. Sch. Dist., 207 Mich. App. 580 (1994) ................................ 9 Powers v. Vaughan, 312 Mich. 297 (1945) ................................................................................. 18 Rakowski v. Sarb, 269 Mich. App. 619 (2006) ...................................................................... 12, 13 Raymond v. Croll, 233 Mich. 268 (1925) .................................................................................... 17 Robinson v. Detroit, 462 Mich. 439 (2000) ................................................................................. 14 Samson v. Saginaw Prof’l Bldg., Inc., 393 Mich. 393 (1975) ..................................................... 12 Schreiber v. Cnty. of Crawford, 2002 U.S. Dist. LEXIS 15349 (E.D. Mich. 2002) .................... 15 Serino v. Dun & Bradstreet, Inc., 267 F. Supp. 396 (D.S.C. 1967) ............................................ 20 Smith v. Dept. of Public Health, 428 Mich. 540 (1987) .............................................................. 11 Stewart v. Troutt, 73 Mich. App. 378 (1977) ............................................................................... 17 Tarleda v. Crabtree, 263 Mich. App. 80 (2004) .......................................................................... 13 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ............................................... 5 Trebilcock v. Anderson, 117 Mich. 39 (1898) ............................................................................. 18 Ungaretti & Harris, LLP v. ServiceMaster Co., 2010 U.S. Dist. LEXIS 53322 (N.D. Ill. May 27, 2010) ............................................................. 18 STATUTES 42 U.S.C. § 300i et seq ................................................................................................................ 22 MCL 325.1001 et seq. .................................................................................................................. 22 MCL 325.1021 ............................................................................................................................. 25 MCL 325.1022 ............................................................................................................................. 23 Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.548 Page 7 of 33 vii MCL 691.1401(b) ........................................................................................................................ 11 MCL 691.1407(2) ........................................................................................................................ 10 MCL 691.1407(2)(c) .............................................................................................................. 14, 16 MCL 691.1407(5) ...................................................................................................... 7, 8, 9, 11, 12 MCL 691.1407(8)(a) .................................................................................................................... 18 MCL 691.1412 ............................................................................................................................. 11 COURT RULES Fed. R. Civ. P. 8 ......................................................................................................................... 3, 6 Fed. R. Civ. P. 8(a)(2) ............................................................................................................ 5, 6, 8 Fed. R. Civ. P. 12(b)(6) .............................................................................................................. 4, 6 OTHER U.S. Const. amend. XI ................................................................................................................... 6 Restatement (Second) of Torts § 591 (1979) ............................................................................... 18 Restatement (Second) of Torts § 594-598A (1979) ..................................................................... 20 Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.549 Page 8 of 33 1 I. INTRODUCTION Plaintiffs filed this class action lawsuit against 13 Defendants, including Bradley Wurfel, the former Communications Director of the Michigan Department of Environmental Quality (“MDEQ”). Plaintiffs have sued Mr. Wurfel in both his individual and official capacities, and lumped him together with all Defendants in a single Count for gross negligence and negligence. Plaintiffs’ Complaint represents a stark violation of the prohibition against group pleading, and is devoid of any factual allegations against Mr. Wurfel but for a poorly contrived assertion that Mr. Wurfel’s alleged verbal statement to a Michigan Radio reporter, and a written statement made in an internal MDEQ e-mail, were somehow improper. Besides the fact that Plaintiffs take Mr. Wurfel’s statements out of context, as evidenced by the actual Michigan Radio article and the full e-mail which are attached to this Brief, Mr. Wurfel must be dismissed from this case because: (1) Plaintiffs’ collective pleading fails to satisfy the threshold pleading requirements of Fed. R. Civ. P. 8; (2) any official capacity claims are barred by Eleventh Amendment sovereign immunity; (3) Mr. Wurfel is entitled to immunity under Michigan statute; (4) Plaintiffs’ Complaint fails to state viable claims for gross negligence or negligence against Mr. Wurfel; (5) Plaintiffs’ claims are barred by the absolute and/or qualified privileges; and (6) Plaintiffs’ state law claims are preempted by Michigan’s Safe Drinking Water Act (“MSDWA”). II. BACKGROUND In 2010, Governor Snyder appointed Mr. Wurfel to serve as the MDEQ’s Director of Communications. MDEQ’s Office of Communications is housed within the Executive Division of the MDEQ. As Communications Director, Mr. Wurfel was responsible for communicating MDEQ’s mission, program goals and overall work to the public. In the discharge of these duties, Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.550 Page 9 of 33 2 he managed and oversaw a public information officer, digital media coordinator, and web content manager. In executing his role, Mr. Wurfel relied on department staff at various levels to supply data, information and professional perspective. Although the position entailed a substantial amount of autonomy, it did not involve substantive regulatory activities such as permitting, enforcement, rule or policy promulgation, or contested case review. Plaintiffs do not allege that Mr. Wurfel had any involvement in MDEQ’s oversight of Flint’s decision to switch water sources or Flint’s compliance with applicable regulations. Indeed, the only arguably substantive allegations Plaintiffs assert against Mr. Wurfel are that: (1) during a July 10, 2015 phone conversation with a reporter from Michigan Radio, Mr. Wurfel allegedly stated that Flint water was not causing “any broad problem” with lead (Doc. # 1-3 ¶ 59); and (2) in a July 24, 2015 e-mail exchange with Governor Snyder’s Chief of Staff, Dennis Muchmore, Mr. Wurfel stated: “In terms of near-future issues, the bottom line is that residents of Flint do not need to worry about lead in their water supply, and DEQ’s recent sampling does not indicate an imminent health threat from lead or copper.” (Doc. # 1-3 ¶ 61.) Setting aside the fact that Plaintiffs took these purported statements out of context and failed to reference Mr. Wurfel’s other statements in the article and e-mail, Plaintiffs do not allege that: (i) Mr. Wurfel’s statements were false; (ii) Mr. Wurfel had any reason to believe the information provided him by the Office of Drinking Water and Municipal Assistance (“ODWMA”) staff was incorrect; (iii) Plaintiffs actually read the Michigan Radio article or the e-mail to Mr. Muchmore; or (iv) Plaintiffs actually relied on these limited portions of Mr. Wurfel’s statements and continued to drink Flint water to their detriment. Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.551 Page 10 of 33 3 Moreover, even a cursory review of the statements Michigan Radio did publish belie Plaintiffs’ allegation of wrongful conduct on Mr. Wurfel’s part. The Michigan Radio article, which is attached here as Exhibit A, states in relevant part: An internal memo from the Environmental Protection Agency is raising concerns about lead in Flint’s water. It documented extremely high levels at one woman’s home, high enough that her son got lead poisoning. The memo was leaked before federal regulators had a chance to “verify and assess the extent” of the problem, according to an EPA spokesperson. * * * “Let me start here - anyone who is concerned about lead in the drinking water in Flint can relax,” said Brad Wurfel, spokesman for Michigan’s Department of Environmental Quality. He says preliminary tests of at least 170 homes in the past year show the woman’s home was an outlier. Wurfel says those reports should be finalized in a few weeks. “It does not look like there is any broad problem with the water supply freeing up lead as it goes to homes,” Wurfel said. Wurfel says anyone with a home that’s more than 30 years old should contact their city and get their water tested, no matter where they live. Old homes sometimes have lead service connections with city water systems. Lead can get into drinking water that way, or through some old copper connections, which may have lead solder, Wurfel said. Similarly, Mr. Wurfel’s complete e-mail to Mr. Muchmore, which is attached here as Exhibit B, provides much needed context. In it, Mr. Wurfel relays his current understanding of the Flint situation based on information provided by ODWMA personnel and directs the recipients to an e-mail from Stephen Busch, the ODWMA Lansing District Coordinator, for further information. Mr. Wurfel’s e-mail states in relevant part: By the tenants of the federal statute, the city is in compliance for lead and copper. That aside, they have not optimized their water treatment . . . . Compliance with the standard started with testing. A June-December run of tests (all in homes with lead in their premise plumbing) concluded in December. Another January - June round of sampling concluded last month. Everything checks out in terms of compliance, but now the next step is optimizing the water supply. * * * Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.552 Page 11 of 33 4 In terms of near-future issues, the bottom line is that residents of Flint do not need to worry about lead in their water supply, and DEQ’s recent sampling does not indicate an eminent health threat from lead or copper. That said, anyone with lead pipes in their premise plumbing (this translates to tens of thousands of homes in our urban centers, btw) should at least be aware that they have them, and to some limited degree that’s going to impart minute parts per billion of lead in water no matter what. Its why nobody uses lead water pipes anymore. The long version of this note [i.e., Stephen Busch’s e-mail] is below. Aside from these allegations, Mr. Wurfel’s name is not mentioned again in the Complaint. Instead, Plaintiffs lump Mr. Wurfel together with the Governor, two Emergency Managers, and various State and City employees into an omnibus Count entitled “Gross Negligence and/or Negligence.” As will be demonstrated below, Plaintiffs’ improper group pleading fails to state a claim against Mr. Wurfel, and is barred by immunities and preemption granted by law. III. STANDARD OF REVIEW In order to survive a motion brought under Rule 12(b)(6), each cause of action against each defendant must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For each claim against each defendant, the pleading must include a “showing, rather than a blanket assertion, of entitlement to relief [because] [w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice of the nature of the claim, but also the grounds on which the claim rests.” Id. at 555, n. 3. Plausibility requires more than the sheer possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation omitted). “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.553 Page 12 of 33 5 Besides the well-pleaded complaint, a court may consider public records and governmental agency decisions in deciding a 12(b)(6) motion to dismiss. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999) (citations omitted). It may also consider documents central to the claims that are referenced in the complaint but not attached to the complaint. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999). Rule 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This standard, while not requiring “detailed factual allegations,” does require more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Conclusory allegations are not entitled to the assumption of truth. Iqbal, 556 U.S. at 679; see also Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). IV. ARGUMENT A. The Complaint’s Improper Collective Pleading Violates Fed. R. Civ. P. 8 and Fails to State a Proper Claim Against Mr. Wurfel. Fed. R. Civ. P. 8 is designed to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). Pleadings that collectively refer to all defendants generally fail to do that - “[b]y lumping all defendants together in each claim and providing no factual basis to distinguish their conduct, [plaintiff’s] complaint failed to satisfy the minimum standard” of Rule 8. Marcilis v. Twp. of Redford, 693 F.3d 589, 596 (6th Cir. 2012) (affirming dismissal based on violation of rule against collective pleading). In this case, Plaintiffs’ improper group pleading and formulaic recitations of their causes of action fail to meet this threshold. Plaintiffs’ Complaint impermissibly lumps Mr. Wurfel Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.554 Page 13 of 33 6 together with 12 other Defendants, and this grouping of Defendants is confusing, improper, and masks Plaintiffs’ inability to plead any specific wrongdoing by Mr. Wurfel. Id. As demonstrated below, Mr. Wurfel is entitled to both absolute and limited governmental immunity from Plaintiffs’ gross negligence and negligence claims. Under Michigan law, determining whether an exception to governmental immunity has been properly pled requires an examination of the specific acts alleged to have been committed by each defendant. See Am. Transmission v. Att’y Gen., 454 Mich. 135, 141 (1997) (requiring analysis of specific actions to determine if the actions were outside the scope of an official’s authority). The Complaint’s collective pleading makes such examination impossible. Moreover, Plaintiffs generally allege that Defendants as a whole collectively violated duties that implicate complex state and federal statutory schemes, including the MSDWA and federal Safe Drinking Water Act (“SDWA”). (Doc. #1-3 ¶ 75.) Understanding how Mr. Wurfel purportedly violated the specific provisions of these Acts is critical to properly responding to the Complaint’s vague and conclusory allegations. Plaintiffs’ Complaint fails to reasonably inform Mr. Wurfel about the nature of the claims against which he must defend. The Complaint fails to allege how any of Mr. Wurfel’s alleged conduct was the proximate or other cause of Plaintiffs’ alleged damages. Accordingly, the Complaint fails to state a claim against Mr. Wurfel upon which relief can be granted, and pursuant to Fed. R. Civ. P. 8(a)(2) and 12(b)(6), should be dismissed. B. Mr. Wurfel is Immune from Plaintiffs’ Claims. Plaintiffs assert a single Count against Mr. Wurfel for gross negligence and/or negligence, and allege that Mr. Wurfel is being sued in both his individual and official capacities. As MDEQ’s Communications Director, Mr. Wurfel is immune from such claims. Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.555 Page 14 of 33 7 1. Plaintiffs’ Official Capacity Claim Against Mr. Wurfel is Really Against The State and is Thus Barred by the Eleventh Amendment. The Plaintiffs’ “official capacity” claim against Mr. Wurfel is really one against the State of Michigan and is thus barred by Eleventh Amendment sovereign immunity. “Lawsuits against state officials in their official capacity are deemed to be lawsuits against the state itself.” Ammend v. BioPort, Inc., 322 F. Supp. 2d 848, 862 (W.D. Mich. 2004) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). Thus, such lawsuits are “barred by the Eleventh Amendment, absent a waiver.” Cady v. Arenac Cnty., 574 F.3d 334, 344 (6th Cir. 2009) (quotations omitted). The only exception to this rule is when “an official capacity suit seeks only prospective injunctive or declaratory relief.” Id. (citing Papasan v. Allain, 478 U.S. 265, 276 (1986)). Plaintiffs are seeking compensatory and exemplary damages, not prospective injunctive or declaratory relief. Thus, their claims against Mr. Wurfel in his official capacity are barred by Eleventh Amendment sovereign immunity. Moreover, even if the Complaint was seeking prospective injunctive or declaratory relief, an official capacity claim against Mr. Wurfel would be inappropriate as he is no longer MDEQ’s Communications Director, and no ruling against him could bind the MDEQ or the State of Michigan to any future course of action. Therefore, Plaintiffs’ official capacity claim fails and should be dismissed. 2. Plaintiffs’ Claims Against Mr. Wurfel are Barred by Michigan’s Absolute Statutory Immunity. Mr. Wurfel also enjoys absolute statutory immunity from all tort claims. MCL 691.1407(5) provides that “the highest appointive executive official of all levels of government [is] 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.” “When a government Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.556 Page 15 of 33 8 official covered by MCL 691.140[7](5) is acting within the scope of his authority, that official enjoys absolute tort immunity. The official’s motivation is irrelevant; the only question is whether the act was within the scope of his authority.” EBI-Detroit, Inc. v. Detroit, 279 Fed. Appx. 340, 351 (6th Cir. 2008) (citation omitted). Michigan courts have analyzed immunity claims using an expansive interpretation of the phrase “scope of his or her . . . authority.” See, e.g., Am. Transmissions, 454 Mich. at 144 (attorney general was acting within scope of executive authority when he allegedly defamed plaintiffs during television interview; reversing court of appeals decision that defendant exceeded scope of authority if his purpose was to disseminate false information).1 Absolute immunity applies even where a plaintiff’s claim alleges the commission of an intentional tort. Armstrong v. Ypsilanti Twp., 248 Mich. App. 573, 594 (2001). Furthermore, intentional torts are not “per se outside the employee’s authority and scope of employment.” Berlin v Superintendent of Pub. Instruction, 181 Mich. App. 154, 162 (1989). Here, the actions allegedly taken by Mr. Wurfel would have been taken within the scope of his authority as MDEQ’s Director of Communications. The relevant question then becomes whether: (1) Mr. 1 See also Lawrence-Webster v. City of Saginaw, 2006 U.S. Dist. LEXIS 92678, at *17 (E.D. Mich. 2006) (unpublished) (where the court found that “both defendants allegedly responded to inquiries from the local newspaper regarding emerging issues within city government, so any communications would fall within the scope of authority of a city manager to communicate on behalf of the city”); Harvey v. Jones, 2009 Mich. App. LEXIS 775, at *7 (2009) (unpublished) (where the court held that the scope of an official’s authority “extended to freely expressing her concerns about the conduct of other school board members at school board meetings and responding to media reports about her conduct in office”); Dinoto v. City of Warren, 1998 Mich. App. LEXIS 962, at *10 (1998) (unpublished) (finding that a director of labor relations “was clearly acting within the scope of his authority as a high-level appointed department head when he wrote [a] letter to plaintiff accusing him of tape recording a contract negotiations meeting without defendants' knowledge”). Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.557 Page 16 of 33 9 Wurfel was the highest official in MDEQ’s Communications Office; and (2) whether MDEQ’s Communications Office is a level of government. See MCL 691.1407(5). There can be no dispute that as Director of Communications, Mr. Wurfel was the highest official within the MDEQ’s Communications Office. While the Communications Office necessarily seeks out and relies upon information from other MDEQ staff with subject matter expertise, the Office unquestionably has broad autonomous authority in communicating with the media and public on the MDEQ’s behalf, including both digital and traditional modes of communication. Thus, the MDEQ Office of Communications is a level of government, and Mr. Wurfel is absolutely immune from state law claims as its highest appointed executive official. See, e.g., Davis v. City of Detroit, 269 Mich. App. 376, 381 (2006) (where the court found that that the Detroit fire department and water and sewerage department were “levels of government” in light of their autonomous authority). Moreover, even if MDEQ’s Communications Office is not considered its own separate “level of government” for the purposes of MCL 691.1407(5), absolute immunity is not applicable solely to state agency heads, and Michigan courts have instead been willing to expand this protection. For example, in Chivas v. Koehler, 182 Mich. App. 467, 471 (1990), the court held that a Deputy Director of the Michigan Department of Corrections (“MDOC”), who was responsible for approving inmate transfers and whose decisions were not subject to further review, enjoyed absolute immunity (along with the Director of the MDOC) as “one of the ‘highest executive officials’ in his department of state government.” See also Armstrong, 248 Mich. App. at 592-96 (holding that absolute immunity applied to multiple members of a township board); Nalepa v. Plymouth-Canton Comm. Sch. Dist., 207 Mich. App. 580, 587 (1994) (holding that absolute immunity applied to multiple members of a school board). Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.558 Page 17 of 33 10 In this case, Mr. Wurfel was an executive level official appointed as the Director of Communications for the MDEQ. In that role, he had primary responsibility for all MDEQ communications and had broad authority and autonomy in carrying out his duties. In the normal course of business, his press statements were not subject to preapproval and review by other MDEQ personnel. Moreover, he was unquestionably one of the highest executive officials in the MDEQ, and thus enjoys absolute immunity from Plaintiffs’ tort claims. 3. Plaintiffs’ Negligence Claim Against Mr. Wurfel is Barred by Michigan’s Limited Statutory Immunity. In addition to state absolute immunity from Plaintiffs’ claims, Mr. Wurfel also has limited statutory immunity from any negligence claims. MCL 691.1407(2) provides limited immunity to government employees. Pursuant to this section of the Governmental Tort Liability Act (“GTLA”), government employees are immune from tort liability for injuries to persons or property if the following conditions are met: (a) the officer is acting or reasonably believes he or she is acting within the scope of his or her authority; (b) the governmental agency is engaged in the exercise or discharge of a governmental function; and (c) the officer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. MCL 691.1407(2). Mr. Wurfel satisfies all three requirements. First, Plaintiffs have not pled any facts indicating Mr. Wurfel acted outside the scope of his authority. As MDEQ Director of Communications, Mr. Wurfel was responsible for communicating MDEQ’s mission, program goals and overall work to the public. There is no allegation in the Complaint that Mr. Wurfel committed any unauthorized act or otherwise exceeded his executive authority. Rather, the gist of the Complaint is that when acting within the scope of his authority (i.e. making statements to the press and other government officials), Mr. Wurfel purportedly acted in a negligent fashion. Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.559 Page 18 of 33 11 Such generalized allegations, however, are insufficient to establish that Mr. Wurfel exceeded his broad authority as MDEQ’s Communications Director. Second, Plaintiffs have not plead any fact demonstrating that MDEQ and its Communications Office were not performing a “governmental function” by disseminating information to reporters and government officials regarding ODWMA’s oversight of Flint’s public water system. A government function is broadly defined as any “activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.” MCL 691.1401(b). Michigan Courts have held that a government function is not defined by the specific conduct of individual employees, but rather by the general activity being performed by the government agency. Smith v. Dept. of Public Health, 428 Mich. 540, 607 (1987). In this case, the MDEQ’s dissemination of information to the public and other branches of government is unquestionably an integral governmental function. Third, as explained in more detail below, Plaintiffs have failed to plead any facts demonstrating that the misconstrued and cherry-picked statements of Mr. Wurfel amounted to “gross negligence” that was “the” proximate cause of Plaintiffs’ alleged injuries. Accordingly, Mr. Wurfel is immune from any claims for negligence. C. Plaintiffs Have Failed to State Claims Against Mr. Wurfel for Gross Negligence and/or Negligence. 1. Plaintiffs Have Failed to Plead a Duty Owed Them by Mr. Wurfel. In addition to Mr. Wurfel’s immunity from Plaintiffs’ claims, Mr. Wurfel owed no duty to Plaintiffs, further negating Plaintiffs’ gross negligence and negligence claims. The immunity granted by the GTLA is in addition to “all of the defenses available to claims sounding in tort brought against private persons.” MCL 691.1412. In order to plead a valid negligence or gross negligence claim, Plaintiffs must allege facts sufficient to establish that Mr. Wurfel owed Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.560 Page 19 of 33 12 Plaintiffs a duty. See, e.g., Moning v. Alfono, 400 Mich. 425, 437 (1977); Maiden v. Rozwood, 461 Mich. 109, 135 (1999). Duty is a question “solely for the court to decide.” See Moning, 400 Mich. at 437. No such duty exists here. A duty of care may be based upon or arise from a statute, a contractual relationship, or pursuant to the common law which imposes an obligation to use reasonable care. See Cummins v. Robinson Twp., 283 Mich. App. 677, 692 (2009) (citing cases). The Michigan Court of Appeals has recognized that, “a duty concerns whether a defendant is under any legal obligation to act for the benefit of the plaintiff.” Rakowski v. Sarb, 269 Mich. App. 619, 629 (2006) (citation omitted). Plaintiffs’ Complaint fails to allege that Mr. Wurfel owed them a duty of care based upon a statute or contractual relationship. Instead, the Plaintiffs have alleged that “Defendants” owed the Plaintiffs a number of different duties concerning their water supply. (Doc. # 1-3 ¶ 75.) The Rakowski court outlined numerous factors courts consider when determining whether a defendant owes a common-law duty of reasonable care: (1) the parties’ relationship; (2) the foreseeability of the harm; (3) the degree of certainty of injury; (4) the closeness of the connection between the defendant’s conduct and the claimed injury; (5) the moral blame attached to the conduct; (6) the policy of preventing future harm; and (7) the burdens and consequences of imposing a duty and the resulting liability for the breach thereof. 269 Mich. App. at 269. The Complaint is woefully deficient in regard to allegations about any of these seven factors. It fails to allege that there was any relationship between the Plaintiffs (including the putative class members) and the MDEQ, let alone Mr. Wurfel. It fails to allege any facts showing a connection between Mr. Wurfel’s conduct and Plaintiffs’ alleged injuries, or that Mr. Wurfel Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.561 Page 20 of 33 13 took any action worthy of moral blame. It fails to allege facts sufficient to conclude that Mr. Wurfel had any involvement in the oversight of Flint’s water system, let alone enough to be able to foresee the alleged consequences of Flint’s corrosion control methods. See Samson v. Saginaw Prof’l Bldg., Inc., 393 Mich. 393, 406 (1975) (holding that “[t]he mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action. . . . [T]o require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong”). The Complaint also fails to allege that Mr. Wurfel acted for or on behalf of Plaintiffs or members of the putative class. Instead, Mr. Wurfel performed his governmental function as MDEQ’s Director of Communications for the MDEQ. In Cummins, the court found that township building officials did not owe the plaintiffs a duty to properly interpret and apply the township’s building code. 283 Mich. App. at 693. Likewise, in Rakowski, the court found that a building inspector did not owe a duty of care to a third party injured by faulty construction the inspector had approved. 269 Mich. App. at 630-635. In Maiden, supra, the court reviewed statutes applicable to a county medical examiner and found that there was nothing in the statutory scheme which created a duty to a criminal defendant. 461 Mich. at 132. Accordingly, as in Cummins, Rakowski, and Maiden, Mr. Wurfel, as MDEQ’s Director of Communications, did not owe a duty of reasonable care to the Plaintiffs and members of the putative class. Rather, Mr. Wurfel owed a duty to his employer. Therefore, the Court should dismiss the Plaintiffs’ gross negligence and negligence claims against Mr. Wurfel. 2. Plaintiffs Have Failed to Plead any Facts Showing that Mr. Wurfel Breached Any Duties. While Plaintiffs have failed to plead or properly allege that Mr. Wurfel owed them a duty, they have also failed to assert any breach of an alleged duty on Mr. Wurfel’s part. In the Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.562 Page 21 of 33 14 gross negligence context, Plaintiffs would have to establish “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). Gross negligence is “almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks. It is though, if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge.” Tarleda v. Crabtree, 263 Mich. App. 80, 90 (2004). Not only have Plaintiffs failed to specifically allege how Mr. Wurfel, who was not directly involved in the day-to-day operation, management or oversight of the Flint drinking water system, individually breached a standard of care, they have completely failed to establish how Mr. Wurfel’s conduct amounted to a willful disregard for the Plaintiffs’ safety and welfare. Mr. Wurfel’s inconsequential conduct complained of in Paragraphs 59 and 61, does not amount to a breach sufficient to establish negligence, let alone, gross negligence. As expressly stated in the Michigan Radio article, Mr. Wurfel suggested that “anyone with a home that’s more than 30 years old should contact their city and get their water tested,” and that “[o]ld homes sometimes have lead service connections with city water systems. Lead can get into drinking water that way, or through some old copper connections, which may have lead solder.” (Ex. A.) Similarly, in his e-mail to Mr. Muchmore, Mr. Wurfel explained that Flint had not optimized its water treatment and stated that “anyone with lead pipes in their premise plumbing . . . should at least be aware that they have them, and to some limited that’s going to impart minute parts per billion of lead in water no matter what.” (Ex. B.) Thus, Plaintiffs have failed to demonstrate that Mr. Wurfel’s actions were so reckless as to demonstrate a substantial lack of concern for whether an injury would result, and their claim for gross negligence should be dismissed. Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.563 Page 22 of 33 15 3. Plaintiffs Have Failed to Plead that Mr. Wurfel is the Proximate Cause of Their Purported Injuries. In order to state a claim that avoids the governmental immunity provided by MCL 691.1407(2)(C), Plaintiffs must allege facts sufficient to demonstrate that Mr. Wurfel’s “gross negligence” was “the proximate cause of the injury or damage.” MCL 691.1407(2)(c). As explained by the Michigan Supreme Court, the phrase “the proximate cause” is interpreted to mean “the one most immediate, efficient and direct cause preceding an injury, not a proximate cause.” Robinson v. Detroit, 462 Mich. 439, 462 (2000). Plaintiffs’ Complaint contains allegations regarding numerous actions allegedly taken by 13 different individual Defendants, and yet Plaintiffs vaguely allege that “Defendants[’] conduct and/or failures were the direct and proximate cause” of their injuries. (Doc. # 1-3 ¶ 78.) Such vague and improper collective pleading fails to satisfy Plaintiffs’ burden of demonstrating that Mr. Wurfel was somehow “the” proximate cause of Plaintiffs’ injuries. See, e.g., Jasinski v. Tyler, 729 F.3d 531 (6th Cir. 2013) (“Robinson clearly explains that the proximate-cause inquiry under the GTLA is different from proximate-cause analysis in other contexts because of the use of the definite article ‘the’ in the GTLA”); Jones v. Pramstaller, 678 F. Supp.2d 609, 627 (W.D. Mich. 2009) (“In other words, the statute’s phrase ‘the proximate cause’ contemplates one cause”) (emphasis in original); Schreiber v. Cnty. of Crawford, 2002 U.S. Dist. LEXIS 15349, at *45 (E.D. Mich. 2002) (unpublished) (“[I]f there is more than one proximate cause of an event, and each can be said to contribute equally to bringing it about, then the plaintiff will not have carried her burden. Likewise, if another cause supersedes the gross negligence of a government actor, the plaintiff’s case must fail”). For example, Plaintiffs do not allege that they read or relied on Mr. Wurfel’s alleged statements which were publicized in the Michigan Radio article. And, even if they had, Mr. Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.564 Page 23 of 33 16 Wurfel clearly advocated for residents to get their water tested. Moreover, they do not and cannot allege that those statements were somehow the single most immediate and direct cause of their injuries. Similarly, Plaintiffs do not allege that they read or relied on Mr. Wurfel’s e-mail to Mr. Muchmore, or that this was somehow the single most immediate and direct cause of their injuries. Even if they had read Mr. Wurfel’s e-mail, he clearly indicated that Flint had not optimized its corrosion control and that there were risks associated with homes utilizing lead pipes. Therefore, Plaintiffs have failed to state a claim for gross negligence (or negligence) pursuant to MCL 691.1407(2)(c), and these claims must be dismissed. Moreover, Mr. Wurfel, as Communications Director, is responsible for relaying important information regarding MDEQ’s management of sensitive environmental and health matters to the public. A fear of personal liability should not be allowed to inhibit or control policy decisions of government agency officials, particularly those involved in communicating with the public on important issues. Federal courts have recognized the significant public policy risks associated with such a scenario. Indeed, the Second Circuit has explained: If anything, the importance of the EPA’s mission counsels against broad constitutional liability in this situation: the risk of such liability will tend to inhibit EPA officials in making difficult decisions about how to disseminate information to the public in an environmental emergency. Knowing that lawsuits alleging intentional misconduct could result from the disclosure of incomplete, confusingly comprehensive, or mistakenly inaccurate information, officials might default to silence in the face of the public’s urgent need for information. Lombardi v. Whitman, 485 F.3d 73, 84 (2d Cir. 2007) (where the court held that such fears “should not be allowed to inhibit or control policy decisions of government agencies, even if some decisions could be made to seem gravely erroneous in retrospect”). See also Benzman v. Whitman, 523 F.3d 119, 125 (2d Cir. 2008) (noting that “no court has ever held a government Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.565 Page 24 of 33 17 official liable for denying substantive due process by issuing press releases or making public statements”). While Lombardi and Benzman involved federal claims, the same overarching public policy considerations apply in this case, and this Court should be hesitant to allow Plaintiffs to move forward with their attempt to hold Mr. Wurfel liable for statements he may have made, particularly when Plaintiffs have failed to demonstrate that any of these statements were the single most immediate and direct cause of their injuries. Thus, Plaintiffs’ claim for gross negligence should be dismissed. D. Plaintiffs’ Claims Alleging That Mr. Wurfel Made Inaccurate Public Statements are Barred by the Absolute and Qualified Privileges. 1. Mr. Wurfel’s Communications are Protected by Absolute Privilege. The communications attributed to Mr. Wurfel related to matters of public concern, were made in the course of performing an official duty, and therefore may be protected by absolute privilege. Communications deemed absolutely privileged are not actionable, even when spoken with malice. Couch v. Schultz, 193 Mich. App. 292, 294 (1992). “The doctrine of absolute privilege is narrow and applies only to communications regarding matters of public concern.” Kefgen v. Davidson, 241 Mich. App. 611, 619 (2000) (citation omitted). The purpose of the privilege is “to allow public officials to speak freely in the course of their official duties without fear of legal repercussions.” Id. at 621. The challenged statements must be “made in the course of carrying out an official duty.” Stewart v. Troutt, 73 Mich. App. 378, 384 (1977). “Generally speaking, absolute privilege is confined to cases in which the public service or the administration of justice requires complete immunity from being called to account for language used. It applies more directly to matters of public concern, such as language used in legislative, judicial and executive proceedings . . . .” Raymond v. Croll, 233 Mich. 268, 273 Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.566 Page 25 of 33 18 (1925) (citation omitted). Although the absolute privilege has generally been applied to communications made during legislative and judicial proceedings and to communications by military and naval officers, the doctrine has been extended to communications made by a public official in furtherance of an official duty during proceedings of quasi-legislative and quasi- judicial bodies.2 Numerous courts outside Michigan have extended the privilege to high-ranking state and federal officials. See, e.g., Barr v. Matteo, 360 U.S. 564, 572-75 (1959) (statements made to the press by director of federal agency were absolutely privileged); Restatement (Second) of Torts § 591, Illus. C (1979) (“All of the state courts that have considered the question have agreed that the absolute privilege . . . protects the superior officers of the state governments, including at least the governor, the attorney-general or the heads of state departments whose rank is the equivalent of cabinet rank in the Federal Government”). Although absolute privilege is most frequently applied as a defense to claims for defamation, courts within and without Michigan have recognized the doctrine as a defense to other tort claims. See, e.g., Lakeshore Community Hosp., Inc. v. Perry, 212 Mich. App. 396, 401 (1995) (tortious interference with business relations); Meyer v. Hubbell, 117 Mich. App. 699, 710-11 (1982) (interference with prospective economic advantage); Maiden, 461 Mich. at 135 (1999) (gross negligence); McNall v. Frus, 336 Ill. App. 3d 904, 906-07 (2002) (negligence); Ungaretti & Harris, LLP v. ServiceMaster Co., 2010 U.S. Dist. LEXIS 53322 (N.D. Ill. May 27, 2010) (unpublished) (breach of fiduciary duty). 2 See, e.g., Powers v. Vaughan, 312 Mich. 297 (1945) (report issued by the Detroit Department of Health was absolutely privileged); Bolton v. Walker, 197 Mich. 699 (1917) (words spoken by an ex officio member of the Board of Estimates of the City of Detroit during a discussion of a matter of public concern at a regular meeting of the board were absolutely privileged); Trebilcock v. Anderson, 117 Mich. 39, 40 (1898) (holding that statements of Mayor supporting veto and published in the newspaper were absolutely privileged). Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.567 Page 26 of 33 19 Here, the communications attributable to Mr. Wurfel, a public official, concern his understanding of MDEQ’s quasi-adjudicatory, prosecutorial, and legislative functions in regard to the oversight of Flint’s pubic water system. Such matters are undoubtedly matters of public concern, and Mr. Wurfel’s alleged statements were made while carrying out his duties as MDEQ’s Director of Communications. Absolute privilege thus shields Mr. Wurfel’s statements from Plaintiffs’ negligence and gross negligence claims. Moreover, the public policy underlying the privilege is readily apparent in this case because, without the privilege, officials like Mr. Wurfel cannot “speak freely in the course of their official duties without fear of legal repercussion.” Kefgen, 241 Mich. App. At 621; see also Lombardi, 485 F.3d at 84 (noting that “officials might default to silence in the face of the public’s urgent need for information” if they knew lawsuits could result from their statements). 2. Mr. Wurfel’s Communications are Protected by Qualified Privilege. Even if the doctrine of absolute privilege does not apply in this case, Mr. Wurfel’s communications are nonetheless protected by qualified privilege. Bacon v. Mich. Cent RR Co., 66 Mich. 166, 170 (1887) (explaining that the qualified privilege exists in a much larger number of cases than absolute privilege). A qualified privilege exists when a defendant can show the following elements: (1) good faith; (2) an interest to be upheld; (3) a statement limited in its scope to this purpose; (4) a proper occasion; and (5) publication in a proper manner and to proper parties only. Gonyea v. Motor Parts Fed. Credit Union, 192 Mich. App. 74, 79 (1991). To overcome a qualified privilege, a plaintiff must show that the statement was made with actual malice. Id. at 79-80. Like the doctrine of absolute privilege, the doctrine of qualified privilege has frequently been used as a defense to claims for defamation, but courts have applied it as a defense to Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.568 Page 27 of 33 20 negligence and other claims. See, e.g., Brown v. Indianapolis Housing Agency, 971 N.E.2d 181, 186 (Ind. Ct. App. 2012); Bah v. Mac's Convenience Stores, LLC, 37 N.E.3d 539, 548 (Ind. Ct. App. 2015) (noting that qualified privilege has been used as a defense to claims for negligence, intentional infliction of emotional distress, and false imprisonment); Serino v. Dun & Bradstreet, Inc., 267 F. Supp. 396, 399 (D.S.C. 1967) (noting that “all of the policy reasons giving rise to the defense of qualified privilege in a defamation action are equally applicable in a negligence action”); Restatement (Second) of Torts §§ 594-598A (1979) (setting forth different applications of the privilege). Here, the statements made by Mr. Wurfel were made under conditions that satisfy all five (5) of these elements. Plaintiffs do not allege or demonstrate any facts that show malice on Mr. Wurfel’s part, and his statements were made in good faith. They concerned his understanding of issues related to the Flint water supply, an interest appropriately shared by the parties involved. Mr. Wurfel’s statements were appropriately limited in their scope and purpose. They did not concern any other topic and were meant to convey his understanding of this important issue. Mr. Wurfel’s statements were made at a proper occasion, in a proper manner, and to proper parties. The media and other government personnel had questions concerning Flint’s water supply, and it was proper for Mr. Wurfel, as MDEQ’s Communications Director, to communicate on these issues. The parties involved, Michigan Radio personnel and Mr. Muchmore and other recipients of Mr. Wurfel’s e-mail, were proper parties with whom Mr. Wurfel could discuss these issues, and there was nothing improper about the manner in which Mr. Wurfel made these communications. The qualified privilege therefore applies to protect these statements, and the Plaintiffs’ claims against Mr. Wurfel should be dismissed. Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.569 Page 28 of 33 21 E. Plaintiffs’ Common Law Cause of Action is Preempted by the MSDWA. 1. Michigan Statutes Can Preclude Common Law Claims. While statutory preemption usually occurs through federal preemption of state statutes, or state preemption of municipal ordinances, Michigan state statutes can also preempt the common law. The Michigan Supreme Court has held that the Dramshop Act, the UCC, and the Michigan Gaming Control and Revenue Act preclude common law claims. See, e.g., Hoerstman Gen. Contr., Inc. v. Hahn, 474 Mich. 66, 76 (2006); Millross v. Plum Hollow Golf Club, 429 Mich. 178, 183 (1987); Kraft v. Detroit Entm’t, LLC, 261 Mich. App. 534 (2004). The Court of Appeals has similarly held that the Whistleblower Protection Act precludes common law claims for retaliatory discharge. Anzaldua v. Neogen Corp., 292 Mich. App. 626, 631 (2011) (citing Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68, 70, 78-79 (1993)). However, Michigan courts have also determined that common law claims which were expressly permitted or that fell outside the areas addressed by a statute were not preempted. See, e.g., Dep’t of Agric. v. Appletree Mktg., LLC, 485 Mich. 1, 8 (2010); Dawe v. Dr. Reuven Bar-Levav & Assoc., PC, 485 Mich. 20, 33 (2010). Determining whether state statutes have preempted common law claims is a question of legislative intent. See Millross, 429 Mich. at 183. As a general rule, “where comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have intended that the statute supersede and replace the common law dealing with the subject matter.” Id. (citing 2A Sands, Sutherland Statutory Construction (4th ed.), §50.05, pp 440-41). If the legislative intent for exclusivity exists, the courts have then examined the scope of that exclusivity. The question of whether common-law claims are precluded by state statute will thus Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.570 Page 29 of 33 22 necessarily be determined by whether: (1) the Legislature intended for the statute to be the exclusive remedy, and (2) whether the common-law claims are outside the scope of that exclusion. 2. The MSDWA is a Comprehensive Statute which Expressly Provides that Only the Michigan Attorney General May Bring a Civil Action. When the statutory language is clear, it will be enforced as written. Kraft, 261 Mich. at 547. However, when the statutory language is ambiguous, Michigan courts will apply various principles to resolve the ambiguity. See Bradley v. Saranac Bd. Of Educ., 455 Mich. 285, 298 (1997). These include the principle of expressio unius exclusius alterius, or the concept that the express mention of one thing implies the exclusion of other similar things. Id. The Michigan Supreme Court used this principle when it determined that the UCC abrogated the common law because the UCC contained specific exceptions that “eliminated the possibility of their being other exceptions.” Hoerstman, 474 Mich. at 74 (applying expressio unius exclusius alterius to determine that the UCC impliedly precluded the common law on accord and satisfaction). The MSDWA, MCL 325.1001 et seq., is the enabling state legislation which allows the State of Michigan, through the MDEQ, to act as the primary regulatory agency under the federal SDWA. See 42 U.S.C. § 300i et seq. Among the purposes of the MSDWA are “to provide for supervision and control over public water supplies . . . to provide for continuous, adequate operation of privately owned, public water supplies; to authorize the promulgation of rules to carry out the intent of the act, and to provide penalties.” 1976 P.A. 399. The statutory language is thus clear that one of the purposes of the MSDWA is to create penalties for violations of the MSDWA or the regulations promulgated pursuant to that act. Numerous detailed and specific regulations have been promulgated under the MSDWA. See Mich. Admin. Code R. 325.10101 et seq. Section 21 of the MSDWA makes a violation of Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.571 Page 30 of 33 23 the Act, or the rules and orders promulgated under the MSDWA, a misdemeanor. MCL 325.1021. Section 22 of the MSDWA also specifies that at the request of the MDEQ, the Michigan Attorney General can bring an injunctive civil action to enforce the provisions of the MSDWA. MCL 325.1022. The MSDWA thus constitutes “comprehensive legislation” that “prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions.” See Millross, 429 Mich. at 183. While the MSDWA is silent as to parallel common law claims, the principle of expressio unius exclusius alterius directs that the Legislature’s inclusion of a specific civil cause of action by the Michigan Attorney General, implies the exclusion of a civil cause of action by any other party. Common law claims that fall within the scope of the MSDWA would therefore be precluded. 3. Plaintiffs’ Alleged Duties Fall Within the Scope of the MSDWA. Plaintiffs’ Complaint alleges claims for negligence and/or gross negligence based on a number of alleged duties concerning the Flint water supply. (Doc. # 1-3 Ex. B ¶ 75.) However, these alleged duties all stem from requirements imposed by the MSDWA and covered in exhaustive detail by the regulations promulgated under the MSDWA.3 A violation of the duties alleged by Plaintiffs are in actuality alleged violations of one or more MSDWA regulations. Plaintiffs’ alleged common law tort claims are thus clearly within the scope of the MSDWA. Civil actions to enforce the MSDWA may only be brought by the Michigan Attorney General. MCL 325.1022. Expressio unius exclusius alterius directs that the specific inclusion of a civil cause of action in the MSDWA implies the exclusion of private causes of action by other individuals, including common-law causes of action, unless the common law claims are either permitted by the MSDWA, or fall outside the MSDWA’s ambit. Neither of those two conditions 3 For more information, see the table provided in Brief in Support of Motion to Dismiss by Defendants Darnell Earley and Gerald Ambrose. (Doc. #10 Table 1, pp. 8-10.) Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.572 Page 31 of 33 24 are satisfied here, and Plaintiffs’ common law claims of negligence and gross negligence are thus preempted by the MSDWA. V. CONCLUSION For the foregoing reasons, Mr. Wurfel respectfully requests that this Court dismiss Plaintiffs’ claims against him with prejudice and award him any other relief this Court deems just and appropriate. Respectfully submitted, CLARK HILL PLC By: s/Jay M. Berger Dated: July 15, 2016 Jay M. Berger (P57663) Michael J. Pattwell (P72419) Christopher B. Clare (39582) 500 Woodward Avenue, Suite 3500 Detroit, Michigan 48226-3435 (313) 965-8300 jberger@clarkhill.com mpattwell@clarkhill.com cclare@clarkhill.com Counsel for Bradley Wurfel Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.573 Page 32 of 33 25 CERTIFICATE OF SERVICE I hereby certify that on July 15, 2016, I electronically filed the above with the Clerk of Court using the CM/ECF System, which will provide electronic copies to counsel of record. s/Jay M. Berger Case 1:16-cv-00636-GJQ-PJG ECF No. 17 filed 07/15/16 PageID.574 Page 33 of 33 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TAMARA NAPPIER, et al., Plaintiffs, Case No. 1:16-cv-00636-GJQ-PJG v. Hon. Gordon J. Quist RICHARD SNYDER, et al. Defendants. _____________________________________________________________________________/ INDEX OF EXHIBITS FOR BRIEF IN SUPPORT OF BRADLEY WURFEL’S MOTION TO DISMISS Exhibit A: Lindsey Smith, Leaked Internal Memo Shows Federal Regulator’s Concerns about Lead in Flint’s Water, Michigan Radio, July 13, 2015 Exhibit B: E-mail from Bradley Wurfel, MDEQ, to Dennis Muchmore, et al., dated July 24, 2015 Exhibit C: Unpublished Cases Cited in Brief Case 1:16-cv-00636-GJQ-PJG ECF No. 17-1 filed 07/15/16 PageID.575 Page 1 of 1 EXHIBIT A Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.576 Page 1 of 10 LOADING... Leaked internal memo shows federal regulator’s concerns about lead in Flint’s water By LINDSEY SMITH (/PEOPLE/LINDSEY-SMITH) • JUL 13, 2015 Twitter (http://twitter.com/intent/tweet?url=http%3A%2F%2Fwww.tinyurl.com%2Fp434q9q&text=Leaked%20internal%20memo%20shows%20federal%20regulator%E2%80%99s%20concerns%20about%20lead%20in%20Flint%E2%80%99s%20water) Support for Michigan Radio comes from Corrosive Impact: Leaded Water & One Flint Family's Toxic Nightmare Give Now (https://www.callswithoutwalls.com/pledgecart/?projectId=137&clear) (/) All Things Considered Listen Live · Click to Launch Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.577 Page 2 of 10 Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.578 Page 3 of 10 Michigan Radio streaming service is supported by An internal memo (http://www.aclumich.org/sites/default/ les/ le/EPAWaterReport062415.pdf)from the Environmental Protection Agency (http://mediad.publicbroadcasting.net/p/michigan/ les/201602/Miguels-Memo.pdf)is raising concerns about lead in Flint’s water. It documented extremely high levels at one woman’s home, high enough that her son got lead poisoning. The memo was leaked before federal regulators had a chance to “verify and assess the extent” of the problem, according to an EPA spokesperson. Representatives with the EPA declined an interview request Friday, but issued a written statement. EPA continues to work closely with the Michigan Department of Environmental Quality and the City of Flint to ensure that Flint residents are provided with safe drinking water. EPA conducted limited drinking water sampling for lead in Flint in response to a citizen complaint. The initial results and staff recommendations to management were documented in an internal memorandum, which was cited in the ACLU article. EPA will work with Michigan DEQ and the City of Flint to verify and assess the extent of lead contamination issues and to ensure that Flint’s drinking water meets federal standards. Flint residents who are concerned about lead in their drinking should contact the utility and may request that their water be sampled. Additional information about lead in drinking water is available at http://water.epa.gov/drink/contaminants/basicinformation/lead.cfm (http://water.epa.gov/drink/contaminants/basicinformation/lead.cfm). Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.579 Page 4 of 10 TAGS: FLINT WATER CRISIS (/TERM/FLINT-WATER-CRISIS) LEAD (/TERM/LEAD) LEAD POISONING (/TERM/LEAD-POISONING) Flint city of cials declined to comment on the memo because they had not received a copy at the time. “Let me start here - anyone who is concerned about lead in the drinking water in Flint can relax,” said Brad Wurfel, spokesman for Michigan’s Department of Environmental Quality. He says preliminary tests of at least 170 homes in the past year show the woman’s home was an outlier. Wurfel says those reports should be nalized in a few weeks. “It does not look like there is any broad problem with the water supply freeing up lead as it goes to homes,” Wurfel said. Wurfel says anyone with a home that’s more than 30 years old should contact their city and get their water tested, no matter where they live. Old homes sometimes have lead service connections with city water systems. Lead can get into drinking water that way, or through some old copper connections, which may have lead solder, Wurfel said. The memo details an EPA staffer’s concern about how the city tests for lead and results from a lab at Virginia Tech that show elevated levels of lead at one resident’s home. That test shows levels that are high enough to be considered hazardous waste. The memo was leaked by the American Civil Liberties Union, who spoke to the author. (http://www.aclumich.org/democracywatch/index.php/entry/corrosive-impact-leaded-water-and-one- int-family-s-toxic-nightmare) The memo also cites concerns over whether tests at other Flint homes with elevated lead levels are being included in the broader water tests that Wurfel referenced. Related Content (/post/activists-calling-michigan-water-reform-wrap-70-mile-trek) Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.580 Page 5 of 10 (/post/ int-begins-installation-new-water- lter-system) (/post/activists-calling-michigan-water-reform-wrap-70-mile-trek) Activists calling for Michigan water reform wrap up 70 mile trek (/post/activists-calling-michigan-water-reform-wrap-70-mile-trek) (/post/activists-calling-michigan-water-reform-wrap-70-mile-trek) (/post/activists-calling-michigan-water- reform-wrap-70-mile-trek) 12 months ago (/post/ int-begins-installation-new-water- lter-system) (/post/ int-begins-installation-new-water- lter-system) 12 months ago Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.581 Page 6 of 10 (/post/ int-residents-get-another-advisory-about-their-tap-water) Flint begins installation of new water lter system (/post/ int-begins-installation-new-water- lter-system) (/post/ int-begins-installation-new- water- lter-system) (/post/ int-residents-get-another-advisory-about-their-tap-water) (/post/ int-residents-get-another-advisory-about-their-tap-water) 1 year ago Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.582 Page 7 of 10 Flint residents to get another advisory about their tap water (/post/ int-residents-get-another-advisory-about-their-tap-water) (/post/ int-residents-get-another- advisory-about-their-tap-water) Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.583 Page 8 of 10 0 Comments Michigan Radio Login1 Share⤤ Sort by Best Start the discussion… Be the first to comment. Subscribe✉ Add Disqus to your site Add Disqus Addd Privacyὑ� Recommend (https://www.facebook.com/michiganradio) (https://twitter.com/michiganradio) (https://instagram.com/michiganradio) (https://www.youtube.com/user/michiganradio) (http://michiganradio.org/rss) Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.584 Page 9 of 10 About Us (http://michiganradio.org/about-us) Contact Us (http://michiganradio.org/contact-michigan-radio) Jobs (http://michiganradio.org/topic/jobs-michigan-radio) Help with Streaming (http://michiganradio.org/michigan-radio-streaming-help) Contest Rules (http://michiganradio.org/michigan-radio-contest-entry-rules) Events (http://michiganradio.org/community-calendar) © 2016 Michigan Radio Case 1:16-cv-00636-GJQ-PJG ECF No. 17-2 filed 07/15/16 PageID.585 Page 10 of 10 EXHIBIT B Case 1:16-cv-00636-GJQ-PJG ECF No. 17-3 filed 07/15/16 PageID.586 Page 1 of 4 From: Sent: To: Subje(t: Attachments: Follow tlp Flag: Flag Status: Wurfel, Brad (DEQ) Friday, )uly 24,2015 4:18 PM Saxton, Thomas Oreasury); Muchmore, Dennis (GOV); \ /yant, Dan (OEQ) FW: Need upate on lead / copper tests for Flint DWSD CorrosionControlstudy.pdt Flint lead history.pdt DWSD-Flint-1993-Lead- Letter.pdf Follow up Completed Guys. here's an update and $ome clarification on the lead situation in Flint. Please limit this infi:rmalion L0 intern€l for now. By the tenant$ oi the federal statute. the city is i!'l compliance for lead and copper. That aside, they have noi optir ized their water treatment (for the most part, this means adding phosphates to minimize the d*gree that the water Ph mobilires lead arrd copper in people's home plumbing). Compliance with the standard staded with testing A June-Decembrer run of te$ts {all in homes with lead in their premise plumbing) concluded in December. Another January * June round of sampling concllded last month. Everything checks qut in term$ of cornpliance, hut now the next step i$ $Frtimizing the water supply, So. ln about two week$, DEQ lvill h'e $endiflg a formal cornrnunication about the optimizing issue. The federal program has long tiffelines for action. A community waier supplier gets 1B months to study the optiofls, and two years thsreafter to implement w&ter $'r'stern optimization nreasures. My point: Conceivahly. trv the tim€ we're halfway through the fir$t tirneline, the city will begin using a new ulater source $iiih KWA . , e nd conceivably, the ql'io.le fllgqps$.stArtg_ g,ll g_yE.r_ ggAin ln te[ms of r'iear-future issues, the brottom line is that residents of Flint do not need to worry abol]t leacl in their wEter supply and DEQ's recent sampling do6s not indicaiG an emifient health threat from lead or copper, That said, anyone with laad prpes in their piemi$e plumbing (this translates to tens of thousands of h0me$ in our older urban centers, irtw) should at leasl be aware thet they havo them, and tc some Iimited degree thai's going to irnpart rniflute parts per fiillion of lead in water no matter what. lts wlry nol-rody uses lead water pipes anylrore. The long verslorr of this note is helow. Let's connect next weeh. l'd iike some thr:ughts ahout whal nrore the state couid be doing - mo$t immediately, to convey the results of our testing and tell the story to the residents $l l-lint in an effort to quell some fears. 'i hanhsl b Case 1:16-cv-00636-GJQ-PJG ECF No. 17-3 filed 07/15/16 PageID.587 Page 2 of 4 From: Busch, Stephen (DEQ) Sent: Friday, luly 24, 2015 3:46 PM To: Wufel, Brad (DEQ) Cc: Shekter Smith, Liane (DEQ); Wyant, Dan (DEQ); Pallone, Maggie (DEQ); Prysby, Mike (DEQ); Benzie, Richard (DEQ) Subject: RE: Need upate on lead / copper tesE for Flint Brad, Ar we discussed, the City has ccrnpleted the iast roufid r.:f monitoring (Jan 1- June 30,2015)- The last $arflples came i about a rveek ago. We have made the c.rmfiliance deterrrination that the 90'r'percentile level is 11 parts per Lrillion, which is below the Action Lev€l Standard of 15 parts per billion (there is no Le6d maximum contaflinant level standard). The federai rule requires maasurin6 lead levels irt water fiorn hr:usehqld piurrbing materials to determine the corro$ivity of the City's water in Lrrder tL\ liffrit exprJsur{. I li;rve prrrvided a surrmary cf Flint's lead ccrrrpliance rtDnit$riftg frorn the la5t 20+ years sin.e this regulation started in 1991. -fhe City of Flint its,',:lt h;.,5 never hztd zt gTth percentile level exceed the tS part per billion action leve!. Sarnpling requirements looh at the wl\rst ca$e plun'hing materials. Samples mustbe collected irr accordance with the regulatory requirements and criteria in ordcr td be used for c*rnpiian(e detetminations. tlecause the city of Flin I setles a poitulLltion of ovr:rr 50,000 lhey ar8 rEquired to have Fully Optimized Corrosion Control. While it is possibie to rrdr:rt ttre fully optirnized r,iquir*ntent without additional treatrnent, based on their two ror:nds of sirmplinE sin{:e swit.hing to the Flint lliver, wqi h;ive d*termined they did not meet the eligibillty for this per the reaulation. Ihey nDvl h;rve tLr rornplete a st.udy {within 18 rnonths} and are then allowed a period of additional time (2 arlditional years) to in5tail lhe sriie(ted LfeatnrenL Ior Fully Optimized Corrosion Control in accotdance with th,J reglliatory r€quirerrrents. Ihis is wh;rt IIWSD was required to do back in 1993 - 1997 {see attached letter and study). We arc planning to suggest ihe City direclly subnlit ts treatment pro[ess to shorten the tinreline to achieve full optirnizatidn, ihis liltLer is clrrr*ntly bsing drufted but uron't be ready to mail out fo| arrother wsek. Liane afld I had a conference call with EP,A regiofl V in Chicago on Tuesday tD 6'] over all of this and they arc ilr support of these next steps with the Cjty. Ihe matter wiil be potentiaily further complicatr:d when the City switches over to r.rater frorn the l(aregnondi Water Autholaty ilext y,3ar to rE-evaluate the continuing requirenter)t to lu!ly optimize corrosion control. 'Ihe DEQ recognizes that there is has been rlo level of Ioad exposure deternlined to be safe, bul again the regulation r"Jas devilloped to optitYtizE water corrosjvity to lirnit oxpo5ure and the Clity is fotlor'.iing the reg latory requirefilents. Lead is not coming fi'om the f'lint River or the Cit'r/s Water Treatment Plant or the public distribution system. lt is from lsad service lin*s into homes and {rom pl mbing m*lterials and fixtures within the private property.tfthe household. A$ [,atermains ars repla.ed within the City lead services associate$ with that section of waterr.lain would be replacsd in order to reconne[t to City water. This would also place burden on lhe homeowner to pay for havinEithe service line re. piurnhed. However, since 2000 oniy 16 rriles ofthe city's 500 rniles of watermair) have been replaced as they dirl not have the financial me.tns to d0 so. l-et us know if there i}re questions cr you need any additional inforntati*n. Stelrhen Busch, P,E. lr'iDEQ tansing Dirtrjct Coardinator Offire of Drinking V,/ater and Municipal Assistance LansinE and Jacl,son District Supervisor 5L7 "643-23L4 buichs@michiHan.gc,v 2 Case 1:16-cv-00636-GJQ-PJG ECF No. 17-3 filed 07/15/16 PageID.588 Page 3 of 4 From: Wufel. Brad (DEQ) Sent: Friday. July 24, 2015 12:09 PM To: Busch. Stephen (DEQ); Prysby, Mike (DEQ) Cc: Shekter Smith. Liane (DEQ); wyant, Dan (DEQ); Pallone, Maggie (DEQ) Subiect: Need upate on lead / copper tests for Flint Guys, the Flint Ministers met with the Govemor's office again last week. They also brought along some folks from the community - a college prof and a GM engineer- who imparted that 80 water tests in Flint have shown high lead levels, Could use an upate on the January / june testing results, as well as recap of the December testing numbers, and any overview you can offer to edify this conversation. Call me or emarl today if possible. Thanksl b Brad Wurfel Communications Director Michigan oepartment of Environmental Quality 517 -284-67 73 fcell Case 1:16-cv-00636-GJQ-PJG ECF No. 17-3 filed 07/15/16 PageID.589 Page 4 of 4 EXHIBIT C Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.590 Page 1 of 42 Page 1 of 20 Schreiber v. County of Crawford Christopher Bradley Clare Caution As of: July 15, 2016 10:03 AM EDT Schreiber v. County of Crawford United States District Court for the Eastern District of Michigan, Northern Division August 20, 2002, Decided Case Number 01-10083-BC Reporter 2002 U.S. Dist. LEXIS 15349; 2002 WL 1907974 DAVID SCHREIBER, Personal Representative of the Estate of John Schreiber, Plaintiff, v. COUNTY OF CRAWFORD, CRAWFORD COUNTY SHERIFF'S DEPARTMENT, DAVID LOVELY, FRANK FOGUTH, and MICHAEL KELLY, Defendants. Disposition: [*1] Defendants' motions for summary judgment granted. Defendant Foguth's motion to dismiss granted in part and denied in part. Core Terms suicide, gross negligence, jail, training, public building, inmate, holding cell, cell, municipal, summary judgment motion, supervision, no evidence, deliberate, custodial, screening, arrived, belt, deliberate indifference, sheriff's department, mental health, allegations, prison, talked, tether, door, amended complaint, summary judgment, appointment, personnel, shoelaces Case Summary Procedural Posture Defendants, county, sheriff's department, and supervising probation agent, sought summary judgment on claims by plaintiff, the estate of a deceased detainee, stating claims under 42 U.S.C.S. § 1983 alleging that the defendants violated the detainee's rights under U.S. Const. amends. IV, VIII, and XIV, and committed acts of gross negligence that resulted in his death. Overview The decedent was under a custodial sentence and was called in by his supervising probation agent for questioning to determine if he violated the terms of his supervised release. The decedent was lodged in the county's jail pending the investigation and while there he hung himself with his own belt. The district court found that the decedent's estate failed to come forth with evidence to create fact questions on all its claims save the gross negligence claim against the supervising probation agent. On that claim, the court reasoned that a jury could reasonably conclude that if the agent's duty was to take reasonable measures to prevent the decedent's suicide, and that his act of confining the deceased out of view of jail personnel, with the means to kill himself, was the proximate cause of the suicide amounting to gross negligence which would defeated the agent's claim of governmental immunity under Mich. Comp Laws § 691.1407(2)(c). However, the plaintiff's public building defect claim, Mich. Comp. Laws § 691.1406, failed where the deceased's holding cell was not defective for purposes of the public building exception to governmental immunity. Outcome The motion for summary judgment by defendants, county and the county's sheriff's department, was granted as was the defendant, supervising probation agent's motion for summary judgment on the plaintiff's U.S. Const. amend. VIII claim. However, the defendant, agent was denied summary judgment as to the plaintiff's gross negligence claims. Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.591 Page 2 of 42 Page 2 of 20 Schreiber v. County of Crawford Christopher Bradley Clare LexisNexis® Headnotes Civil Procedure > ... > Summary Judgment > Motions for Summary Judgment > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts HN1 A motion for summary judgment under Fed. R. Civ. P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Civil Procedure > ... > Summary Judgment > Motions for Summary Judgment > General Overview Civil Procedure > ... > Summary Judgment > Opposing Materials > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts HN2 Pursuant to a motion for summary judgment, Fed. R. Civ. P. 56(c),a fact is "material" if its resolution affects the outcome of the lawsuit. "Materiality" is determined by the substantive law claim. An issue is "genuine" if a reasonable jury could return a verdict for the nonmoving party. Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. When the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue of material fact. Thus a factual dispute which is merely colorable or is not significantly probative will not defeat a motion for summary judgment which is properly supported. Civil Procedure > Judgments > Summary Judgment > General Overview Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Civil Procedure > ... > Summary Judgment > Burdens of Proof > Movant Persuasion & Proof Civil Procedure > ... > Summary Judgment > Motions for Summary Judgment > General Overview Civil Procedure > ... > Summary Judgment > Opposing Materials > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Appropriateness Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes HN3 The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. The party opposing the motion then may not rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact but must make an affirmative showing with proper evidence in order to defeat the motion. A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing evidence on which the jury could reasonably find for the plaintiff. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.592 Page 3 of 42 Page 3 of 20 Schreiber v. County of Crawford Christopher Bradley Clare HN4 Pursuant to a motion for summary judgment, Fed. R. Civ. P. 56(c), the party who bears the burden of proof must present a jury question as to each element of the claim. Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Civil Rights Law > ... > Elements > Color of State Law > General Overview Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope HN5 In claims based on 42 U.S.C.S. § 1983 plaintiffs must establish that a person acting under color of state law deprived the plaintiffs of a right secured by the Constitution or laws of the United States. Civil Rights Law > ... > Immunity From Liability > Local Officials > General Overview Civil Rights Law > ... > Section 1983 Actions > Scope > Government Actions HN6 Local governmental institutions are considered "persons" for the purpose of 42 U.S.C.S. § 1983, but municipalities cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. The plaintiff must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy. Proof of a single incident of unconstitutional activity may be sufficient to impose liability, but not unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy. Civil Rights Law > Protection of Rights > Prisoner Rights > General Overview Civil Rights Law > Protection of Rights > Prisoner Rights > Medical Treatment Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment Criminal Law & Procedure > Postconviction Proceedings > Imprisonment HN7 Under U.S. Const. amend. VIII, prisoners have a constitutional right to medical care. That right is violated when corrections officials are deliberately indifferent to the prisoner's serious medical needs. A detainee's psychological needs may constitute serious medical needs, especially when they result in suicidal tendencies. It should be noted, however, that prisoners have no general right to be correctly screened for suicidal tendencies. It is one thing to ignore someone who has a serious injury and is asking for medical help; it is another to be required to screen prisoners correctly to find out if they need help. Civil Rights Law > Protection of Rights > Prisoner Rights > Medical Treatment Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment HN8 U.S. Const. amend. VIII claims have both an objective and a subjective component. To satisfy the objective component, the plaintiff must allege that the medical need asserted is "sufficiently serious." To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk. An official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment. Nonetheless, a custodial official may not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist. Officials also may be shown to be deliberately indifferent to serious medical needs without evidence of conscious intent to inflict pain. Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment HN9 Pursuant to claims under U.S. Const. amend. VIII, the conduct for which liability attaches must Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.593 Page 4 of 42 Page 4 of 20 Schreiber v. County of Crawford Christopher Bradley Clare be more culpable than mere negligence; it must demonstrate deliberateness tantamount to intent to punish. Knowledge of the asserted serious needs or of circumstances clearly indicating the existence of such needs, is essential to a finding of deliberate indifference by corrections officials. Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment Criminal Law & Procedure > Postconviction Proceedings > Imprisonment HN10 Jails are under no constitutional obligation to probe the files for the health histories of their inmates at other facilities. Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment HN11 To establish a constitutional violation under U.S. Const. amend. VIII, it is not sufficient to offer evidence of a significant risk of harm or injury to the prisoner/claimant that the custodian should have perceived but did not. Actual knowledge of the asserted serious needs or of circumstances clearly indicating the existence of such needs, is essential to a finding of deliberate indifference. Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope Torts > Vicarious Liability > Employers HN12 In limited circumstances the United States Court of Appeals for the Sixth Circuit permits supervisors to be personally liable for rights violations perpetrated by their employees. However, liability is imposed only when the supervisor either participated directly in the violating act or at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate. 42 U.S.C.S. § 1983 liability cannot be grounded solely on respondeat superior. Nor can a supervisor be held liable solely for a failure to act or for being aware of the misconduct. Active unconstitutional behavior is required. Civil Rights Law > ... > Immunity From Liability > Local Officials > General Overview Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope Governments > Local Governments > Claims By & Against HN13 In order to prevail on a 42 U.S.C.S. § 1983 failure-to-train claim, the plaintiff must show that the training program is inadequate to the tasks that officers must perform; that the inadequacy is the result of the city's deliberate indifference; and that the inadequacy actually caused the plaintiff's injury. Civil Rights Law > ... > Immunity From Liability > Local Officials > General Overview Civil Rights Law > Protection of Rights > Section 1983 Actions > General Overview Civil Rights Law > ... > Scope > Law Enforcement Officials > General Overview Criminal Law & Procedure > Postconviction Proceedings > Imprisonment Governments > Local Governments > Claims By & Against Governments > Local Governments > Police Power Healthcare Law > Healthcare Litigation > Actions Against Healthcare Workers > Prison Officials & Physicians HN14 A municipality can be held liable for inadequate police training under 42 U.S.C.S. § 1983 only where the failure to train amounts to deliberate indifference to rights of persons with whom police come into contact. The mere fact that a few officers may be inadequately trained is not sufficient to demonstrate municipal liability, as the shortcomings could be caused by officer inattention or poor administration. Allegations that the officers in question could have been better trained are also insufficient. Rather, the failure to train must reflect a deliberate or conscious choice by a municipality. There are two fact patterns in which a citizen can state a claim for failure to train. First, the nature of the officers' duties could be such that the need for more or different training is so obvious, and the Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.594 Page 5 of 42 Page 5 of 20 Schreiber v. County of Crawford Christopher Bradley Clare inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need in not providing training. Second, the police may have so often violated constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are "deliberately indifferent" to the need. Such behavior constitutes "tacit authorization" of the officers' conduct. Civil Rights Law > ... > Immunity From Liability > Local Officials > General Overview Civil Rights Law > Protection of Rights > Prisoner Rights > General Overview Criminal Law & Procedure > Postconviction Proceedings > Imprisonment HN15 Pursuant to claims under 42 U.S.C.S. § 1983, inadequate training alone does not violate an inmate's constitutional rights. Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Torts > Premises & Property Liability > General Premises Liability > General Overview Torts > Public Entity Liability > Immunities > Sovereign Immunity HN16 See Mich. Comp. Laws § 691.1406. Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Public Contracts Law > Governmental Immunities > Sovereign Immunity HN17 Under Michigan law, the duty imposed by the public building exception, Mich. Comp. Laws § 691.1406, to the doctrine of governmental immunity relates to dangers actually presented by the building itself. Thus, the purpose of the public building exception is to promote the maintenance of safe public buildings, not necessarily safety in public buildings. As a result, where proper supervision would have offset any shortcomings in the configuration of the room, the public building exception does not apply. Business & Corporate Law > ... > Authority to Act > Actual Authority > General Overview Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Public Contracts Law > Governmental Immunities > Sovereign Immunity HN18 Under Michigan law, in order to state a claim under the public building exception, Mich. Comp. Laws § 691.1406, to the doctrine of governmental immunity, the plaintiff must show: (1) a governmental agency is involved, (2) the public building in question was open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period or failed to take action reasonably necessary to protect the public against the condition after a reasonable period, and (6) the party seeking relief must be a member of the public. Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Public Contracts Law > Governmental Immunities > Sovereign Immunity Business & Corporate Compliance > ... > Public Health & Welfare Law > Housing & Public Buildings > Accessibility, Construction & Design Torts > Public Entity Liability > Immunities > Sovereign Immunity HN19 The public building exception, Mich. Comp. Laws § 691.1406, to the doctrine of governmental immunity, does not require government offices to have the most modern offices or latest technology. Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Public Contracts Law > Governmental Immunities > Sovereign Immunity Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.595 Page 6 of 42 Page 6 of 20 Schreiber v. County of Crawford Christopher Bradley Clare HN20 Jail inmates are not members of the public for purposes of the public building exception, Mich. Comp. Laws § 691.1406, to the doctrine of governmental immunity. Unlike a person who enters a jail, e.g., to meet with an inmate, make a delivery, or apply for a job, an inmate does not visit a jail as a potential invitee. Instead, inmates are legally compelled to be there. Inmates thus are not within the class of persons the Legislature intended to protect from defects in public buildings. Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Torts > ... > Elements > Causation > General Overview Torts > Negligence > Gross Negligence Torts > Public Entity Liability > Immunities > General Overview Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > Public Entity Liability > Liability > General Overview HN21 According to Mich. Comp. Laws § 691.1407(2), governmental employees 1) acting during the course of their employment and within the scope of their authority; and 2) acting in good faith are entitled to immunity from liability for injuries they cause. However, immunity will not apply unless the employee's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. Mich. Comp Laws § 691.1407(2)(c). Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Torts > Negligence > Gross Negligence Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > Public Entity Liability > Liability > General Overview HN22 Michigan's governmental immunity statute defines "gross negligence" as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." Mich. Comp Laws § 691.1407(2)(c). Although the Michigan Court of Appeals has refused to rule out the possibility that a failure to act could itself rise to the level of gross negligence, the majority of cases in which liability has been found involve actions where the risk of harm to a particular individual was clear, and where the defendant obviously made a conscious choice to disregard that harm. Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Torts > ... > Affirmative Duty to Act > Types of Special Relationships > General Overview Torts > ... > Affirmative Duty to Act > Types of Special Relationships > Government Officials Torts > ... > Affirmative Duty to Act > Types of Special Relationships > Healthcare Providers HN23 Under Michigan Law, the custodial relationship between a jailer and a detainee is such a special relationship that gives rise to the duty to give aid and protect from harm. Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Torts > ... > Elements > Causation > General Overview Torts > ... > Causation > Proximate Cause > General Overview Torts > Negligence > Gross Negligence Torts > Public Entity Liability > Immunities > Sovereign Immunity HN24 The phrase "the proximate cause," as it is used in Mich. Comp. Laws § 691.1407(b)(2), should be interpreted to mean the one most immediate, efficient and direct cause preceding an injury, not a proximate cause. The defendant's gross negligence need not be the sole cause, but rather it must be the one most directly related to the event. Thus, for purposes of establishing gross negligence as a means of avoiding governmental immunity under Michigan law, if there is more than one Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.596 Page 7 of 42 Page 7 of 20 Schreiber v. County of Crawford Christopher Bradley Clare proximate cause of an event, and each can be said to contribute equally to bringing it about, then the plaintiff will not have carried her burden. Likewise, if another cause supercedes the gross negligence of a government actor, the plaintiff's case must fail. Civil Rights Law > ... > Immunity From Liability > Local Officials > Customs & Policies Torts > Public Entity Liability > Immunities > Sovereign Immunity HN25 In jail suicide cases, however, the Michigan Supreme Court has held that the question of causation cannot be divorced from the question of foreseeability. Counsel: For David Schreiber, PLAINTIFF: Arnold J Matusz, Siemion, Huckabay, Southfield, MI USA. For David Schreiber, PLAINTIFF: Geoffrey N Fieger, Fieger, Fieger, Southfield, MI USA. Judges: DAVID M. LAWSON, United States District Judge. Opinion by: DAVID M. LAWSON Opinion OPINION AND ORDER GRANTING THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART DEFENDANT FOGUTH'S MOTION TO DISMISS The plaintiff's decedent, John Schreiber, who was under a custodial sentence as a result of a felony conviction, was called in by his supervising probation agent for questioning to determine if he violated the terms of a Community Residential Placement Program (CRP) which allowed his release from confinement on a "tether." Schreiber was lodged in the Crawford County jail pending the investigation. There, he hung himself. The decedent's personal representative has filed an amended complaint alleging that the defendants violated Schreiber's rights under the Fourth, Eighth, and Fourteenth Amendments and committed acts of gross negligence that resulted [*2] in his death. The plaintiff also alleged a state law claim based on a building defect in the jail. The defendants have filed motions to dismiss and for summary judgment. The parties presented their arguments to the Court through their respective counsel at a hearing on June 20, 2002, and the matter is now ready for decision. The Court finds that the plaintiff has failed to state a constitutional claim against any defendant, and that the evidence does not support a jury-submissable claim for ordinary or gross negligence against any defendant except defendant Foguth. Accordingly, the Court will grant the motions for summary judgment, grant the motion to dismiss in part, dismiss the federal claims against all defendants, dismiss the building defect claim, and dismiss the gross negligence claims against Crawford County, the Crawford County Sheriff's Department, David Lovely and Michael Kelly. I. Schreiber was serving a sentence of nine to fourteen years with the Michigan Department of Corrections ("MDOC") for a conviction for uttering and publishing a forged instrument. The plaintiff was subsequently released from prison and placed in the CRP in October 1998. As a CRP participant, Schreiber [*3] was still considered a "prisoner" who was living in the community, although his movements were restricted and he was electronically monitored via a device known as a "tether." Schreiber was assigned to defendant Frank Foguth in October 1998, who acted as Schreiber's CRP agent. Before participating in the program, Schreiber was screened per MDOC requirements. The screening revealed no suicidal ideations or tendencies. Schreiber found employment in the Gaylord, Michigan area, and over the next seventeen months held various jobs. On March 8, 2000, Foguth received a telephone call from one of Schreiber's previous employers who said that Schreiber made some unauthorized charges on their business account. The employer stated that Schreiber had been fired two weeks earlier and that he had not been returning their calls. Foguth considered the report significant because it indicated two potential Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.597 Page 8 of 42 Page 8 of 20 Schreiber v. County of Crawford Christopher Bradley Clare violations of the tether conditions: criminal activity and departing his residence without employment, which is treated as escape. After receiving telefaxed documentation from the employer, Foguth called Schreiber into his office for a meeting. Foguth testified that it was his intention to detain [*4] Schreiber in the Crawford County Jail pending an investigation into the possible tether violation, pursuant to MDOC policy. Schreiber had previously been detained in this manner for an alleged violation in April 1999. Foguth met with Schreiber at his office in the Crawford County Courthouse in Grayling, Michigan and informed him of the allegations. Schreiber responded by denying the charges and requesting time to return to his home and retrieve a pay stub that he said would verify his whereabouts. Foguth denied the request, telling Schreiber that if the investigation verified Schreiber's story and he was cleared regarding the unauthorized charges, Schreiber would be released. At no time did Foguth consider Schreiber to be a suicide risk, and Schreiber never suggested that his detention would move him to consider suicide. Schreiber's brother has since testified that Schreiber told his family that he would kill himself before he went back to prison. However, it is uncontested that no one from the family shared this information with Foguth or any of the other defendants in this case. Furthermore, no one in Schreiber's family took him seriously or thought he would actually take his own [*5] life. The Crawford County Jail is located in the Crawford County Sheriff's Department, and is connected to the courthouse where Foguth's office is located. Foguth had access to the secured area of the jail via a door which is visually monitored by video cameras by a deputy located in the control booth; the deputy can release the latch by remote control to admit authorized persons. Through this door one enters a corridor which leads to a cell in an older portion of the jail, now referred to as the "court holding cell." The corridor was also monitored by video cameras with display screens in the control booth. However, there was no camera which monitored the inside of the court holding cell. According to Foguth, he called over to the jail at approximately 11:30 a.m. and spoke to Sergeant Jim Golnick to advise that he would detain Schreiber. Golnick instructed Foguth to "bring him around to the front," that is, to the processing area where inmates are formally logged in. Golnick told Foguth that they were "short-staffed" at the jail and that no one could come around to get Schreiber. The customary procedure was that prisoners should be brought to the front of the jail for booking. Foguth [*6] could not bring Schreiber directly to the booking area of the jail via the corridor because there is an additional door at the end of the corridor which can only be opened by a key that Foguth did not possess. Foguth also testified that he did not want to take Schreiber through the parking lot to the booking area of the jail where prisoners are usually admitted because he felt that Schreiber was a flight risk, even though he voluntarily appeared that morning. At 12:22 p.m. Foguth "buzzed" the deputy in the control booth, defendant Michael Kelly, seeking entrance through the door near the court holding cell. Kelly's and Foguth's memories of the ensuing conversation conflict. Foguth claims that Kelly said "he was the only one" in the control booth, and that "we'll get to him as soon as we can." Foguth Dep. at 48. Kelly testified that he observed Foguth, Schreiber and two other probation officers at the door, recognized Foguth, and buzzed him in. Kelly then asked, "What's going on," and Foguth responded that he had Schreiber in custody. As Foguth was placing Schreiber in the court holding cell, Kelly testified that he said "I'm trapped and I can't come and get John." Michael Kelly Dep. [*7] at 18-19. Kelly stated that Foguth responded that Schreiber would be fine; Schreiber never said anything. Id. at 22. Foguth placed Schreiber in the court holding cell and locked the outer door to the cell. He testified that he a did a cursory search for weapons, but did not remove Schreiber's belt or shoelaces. Kelly states that he did not witness any search conducted. Golnick testified that proper procedure would have required removing Schreiber's belt and shoelaces, and that he could not recall any other instance where someone was put in the holding cell with his belt and shoelaces not removed. The cell had a telephone that may have been operating. Foguth Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.598 Page 9 of 42 Page 9 of 20 Schreiber v. County of Crawford Christopher Bradley Clare then went to lunch. Over the next 30 minutes the jail was busy. Sergeant Golnick served lunch to inmates and supervised collection of the trays. The recycling company arrived to pick up an inmate who worked for them. Inmates were taken to the library, a pastor arrived at the jail, and other inmates were called for schooling. At approximately 12:50 p.m., Kelly told Sergeant Golnick that Schreiber was in the court holding cell. He and Golnick were the only ones on duty. Golnick became upset upon learning of Schreiber's presence, [*8] exclaiming that he had told Foguth to bring Schreiber around to the front. At approximately 1:07 p.m., Lieutenant Scott Feldhauser was returning from court. As he passed the court holding cell, he observed Schreiber hanging from the overhead bars of the inner cell door by his belt. Feldhauser was unable to lift Schreiber down and ran to the intercom to request assistance. Captain Art Clough arrived first, with Golnick arriving shortly after. They began CPR as soon as they got Schreiber down, but Schreiber had no pulse and felt cold. Foguth arrived within minutes to assist with CPR. The emergency medical team arrived at 1:20 p.m. and was unable to revive Schreiber. Schreiber was transferred to the hospital and pronounced dead on arrival. There is no evidence that Schreiber had any contact with any members of the Sheriff's Department from the time he was placed in the court holding cell until he was found by Feldhauser. There also appears to be no evidence that any of the defendants had reason to suspect that Schreiber was suicidal that day. Crawford County personnel did have previous contacts with Schreiber when he received an inmate screening on August 19, 1991 at the Crawford County [*9] Jail, in which it is recorded that his behavior did not suggest the risk of suicide. According to that report, he denied ever seeing a psychiatrist and also denied previously planning or attempting suicide. In another health intake screening on March 21, 1992, the booking officer, who happened to be defendant Kelly, noted that Schreiber's behavior did not suggest the risk of suicide. Schreiber again denied any psychiatric treatment or inclinations toward suicide. On February 3, 1993, Schreiber was again examined when incarcerated for a probation violation. Here, too, the deputy answered "No" to the question of whether Schreiber's behavior suggested the need for immediate psychological referral. On November 17, 1994, when Schreiber was transferred back from Florida, his transfer summary indicated no psychiatric problems. At his intake upon arrival, Schreiber was asked if he had ever contemplated suicide, to which he had answered "yes." When asked in follow-up whether he was contemplating suicide, Schreiber stated that he was not. On December 6, 1994, while incarcerated in the jail, Schreiber asked to see a mental health counselor. The only other records of that incident show that the [*10] community health agency was called at 3:20 p.m. and arrived at 3:58 p.m. to see Schreiber. Finally, during his jail incarceration on prison detainer on April 2, 1999, the booking officer indicated that Schreiber's behavior did not suggest the risk of suicide. At that interview, Schreiber denied any recent psychiatric problems and denied ever having planned or attempted suicide. The record also contains reports of two examinations conducted by MDOC personnel. In September and October of 1992, Schreiber was seen by psychologist David W. Halstead. Following these sessions, Halstead completed a psychological evaluation report in which he indicated that Schreiber scored low in his ego strength tests and Halstead opined that persons who score in this fashion "may have periods during which they become obsessed with suicide ideation." Schreiber was also evaluated by Z. Yang, a psychologist, at the behest of the MDOC on January 6, 1995. Dr. Yang evaluated his mental status and observed no evidence of suicidal ideation or depression. No therapy was recommended. The plaintiff was also evaluated prior to being recommended for the tether program. The prison institutional file indicated no suicide [*11] ideation or tendencies. On March 5, 2000, three days before the suicide, Foguth was contacted by Schreiber, who wanted to speak to him. The plaintiff did not explore this contact in Foguth's deposition, but it was described by Foguth in a statement to the Crawford County Sheriff's Department as follows: MR. FOGUTH further stated that on Sunday March 5th, Mr. Schreiber contacted him at home and wanted to talk to him. MR. Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.599 Page 10 of 42 Page 10 of 20 Schreiber v. County of Crawford Christopher Bradley Clare FOGUTH then advised him to come in and see him on Monday. On Monday, March 6, at approximately 4:30 PM MR. SCHREIBER came into MR. FOGUTH's office to talk to him. MR. FOGUTH then talked to MR. SCHREIBER about work and going back to school. MR. FOGUTH then believed that Mr. Schreiber was somewhat depressed and called mental health for him. MR. FOGUTH was then given a hotline number. MR. FOGUTH then gave MR. SCHREIBER the number and had him call it while he was sitting there. MR. SCHREIBER was greeted by a recording and gave his number so that they could get back with him. MR. FOGUTH stated that he felt MR. SCHREIBER was depressed but never gave any indication that he was contemplating suicide. Pl.'s Resp. to Def. Foguth's M. Summ. J, Ex. L. Melissa [*12] Sluiter was the crisis counselor who responded to Schreiber's contact with the mental health agency. She talked to John Schreiber on March 7, 2000, the day before Schreiber was detained and committed suicide. Sluiter signed an affidavit which reads in relevant part as follows: I began working for North Central Community Mental Health (NCCMH) in December, 1998. . . . The Alpha Center is the point of entry for clients who use NCCMH services. The Alpha phone line is the daytime crisis line and the referral line where clients are referred or refer themselves for our services. Information about NCCMH services, referrals to other resources in the community, and information about mental illness may also be given over this line. A client who calls the Alpha line will have information gathered from them by the therapist, the client[']s needs are triaged (a preliminary assessment is done), and appointments are scheduled based on the needs of the client. There are three categories of needs, which are routine, urgent, and emergent. An urgent need is one that requires a client to be seen within 48 hours. An emergent need is one that requires the client to be seen within two hours. As [*13] an Alpha Center therapist I also completed the initial mental health assessments of clients, assigned cases to CMH workers based on the clients['] needs, made treatment recommendations, and completed daytime and after hours crisis appointments. I received a telephone call on the NCCMH Alpha line from John Schreiber on March 7, 2000, at 4:40 PM. I talked to John Schreiber on the Telephone until 5:23 PM. During the telephone call I followed our standard practice of triaging his needs, assessing his safety, making notes of our conversation on the NCCMH computerized screening form, and scheduling an appointment. After talking to John Schreiber I printed the screening form and signed it, so that a copy could be placed in his NCCMH client file. . . . During my 43 minutes of telephone conversation with John Schreiber on March 7, 2000, I determined that he was not at risk of self-harm and that his needs were routine. As a result, I scheduled him for an intake appointment at 3:00 p.m. on March 20, 2000. I confirmed with him that he had the NCCMH crisis phone numbers for after hours and daytime calls and encouraged him to call either if he needed between March 7 and his appointment [*14] on March 20, 2000. Affidavit of Melissa Sluiter PP 2-5. Sluiter also stated that at Schreiber's request, she telephoned Foguth's office on the morning of March 8, 2000 to inform him of the appointment on the 20th, but that she never talked to Foguth himself. The plaintiff filed a three-count first amended complaint against Crawford County, its Sheriff's Department, Sheriff David Lovely, Deputy Sheriff Michael Kelly, and Corrections Officer Frank Foguth. Count one of the amended complaint alleges a common law claim for gross negligence against the defendants, and also states that a claim "arises under . . . the Michigan Constitution." Count two alleges a violation of civil rights under 42 U.S.C. § 1983 based on the Fourth, Eighth and Fourteenth Amendments. Count three is directed at Crawford County and alleges that the holding cell was not properly equipped as such and failed to meet MDOC design guidelines, rendering the Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.600 Page 11 of 42 Page 11 of 20 Schreiber v. County of Crawford Christopher Bradley Clare public building "defective." Defendant Foguth has filed a motion to dismiss the Fourth and Fourteenth Amendment claims, the gross negligence claim, the Michigan constitutional claim, and the Eighth Amendment claim insofar as it [*15] is directed at Foguth in his official capacity. Foguth has also filed a motion for summary judgment seeking dismissal of the Eighth Amendment claim against him in his individual capacity. The other defendants have filed a motion for summary judgment as to all counts. The plaintiff agrees that he cannot prevail on any state constitutional claims, see Jones v. Powell, 462 Mich. 329, 335-37, 612 N.W.2d 423, 426-27 (2000), and that the Eleventh Amendment bars his damage claim against Foguth in his official capacity. The parties also agree that although the exact custodial status of John Schreiber at the time of the suicide is unclear (he was technically in MDOC custody, but he was temporarily detained pending an investigation while on tether status), thus potentially casting doubt on whether the Fourth or Eighth Amendment provides the governing law, the answer is immaterial since in cases of custodial suicides, pretrial detainees and prisoners are governed by the same standard of deliberate indifference to serious medical needs, essentially an Eighth Amendment standard. Heflin v. Stewart County, Tenn., 958 F.2d 709, 714 (6th Cir. 1992). Finally, the Court [*16] observes that Foguth's motion to dismiss the gross negligence claim under Fed. R. Civ. P. 12(b) is addressed to the question of causation, which requires an analysis of the facts. Accordingly, the Court will address it under the summary judgment standards of Rule 56. See Fed. R. Civ. P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ."). II. HN1 A motion for summary judgment under Fed. R. Civ. P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The "summary judgment procedure is properly regarded [*17] not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (internal quotes omitted). HN2 A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics & Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. [*18] Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999). HN3 The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.601 Page 12 of 42 Page 12 of 20 Schreiber v. County of Crawford Christopher Bradley Clare Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate [*19] specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322- 23. HN4 The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991). A. The plaintiffs' federal cause of action is HN5 based on 42 U.S.C. § 1983, under which the plaintiffs must establish that a person acting under color of state law deprived the plaintiffs of a right secured by the Constitution or laws of the United States. Berger v. City of Mayfield Heights, 265 F.3d 399, 405 (6th Cir. 2001). HN6 Local governmental institutions are considered [*20] "persons" for the purpose of Section 1983, but municipalities cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. The plaintiff "must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy." Garner v. Memphis Police Dep't, 8 F.3d 358, 363- 64 (6th Cir. 1993). Proof of a single incident of unconstitutional activity may be sufficient to impose liability, but not unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985). HN7 Under the Eighth Amendment, prisoners have a constitutional right to medical care. Estelle v. Gamble, 429 U.S. 97, 103, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). That right is violated when corrections officials are deliberately indifferent to the prisoner's serious medical needs. Id. at 104. A detainee's psychological needs may constitute [*21] serious medical needs, especially when they result in suicidal tendencies. Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994). It should be noted, however, that prisoners have no general right to be correctly screened for suicidal tendencies. Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001); Danese v. Asman, 875 F.2d 1239, 1244 (6th Cir. 1989) ("It is one thing to ignore someone who has a serious injury and is asking for medical help; it is another to be required to screen prisoners correctly to find out if they need help."). HN8 Eighth Amendment claims have both an objective and a subjective component. To satisfy the objective component, the plaintiff must allege that the medical need asserted is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). "To satisfy the subjective component, the plaintiff must allege facts which, if true, would show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk." Comstock, 273 F.3d at 703 [*22] (citing Farmer, 511 U.S. at 837). The Comstock Court reiterated the Supreme Court's caution that "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Id. (citing Farmer, 511 U.S. at 838). Nonetheless, a custodial official may "not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist." Farmer, 511 U.S. at 843 n.8. Officials also may be shown to be deliberately indifferent to serious medical needs without Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.602 Page 13 of 42 Page 13 of 20 Schreiber v. County of Crawford Christopher Bradley Clare evidence of conscious intent to inflict pain. Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988). HN9 However, the conduct for which liability attaches must be more culpable than mere negligence; it must demonstrate deliberateness tantamount to intent to punish. Knowledge of the asserted serious needs or of circumstances clearly indicating the existence of such needs, is essential to a [*23] finding of deliberate indifference. Horn, 22 F.3d at 660. Guided by these standards, the Court finds that the plaintiff has not established a constitutional claim against either defendant Kelly or Foguth. Deputy Kelly testified, without rebuttal, that he had no notion that Schreiber was contemplating suicide or that he was any sort of suicide risk. Kelly never talked to Schreiber, and claims, again without rebuttal, that he "buzzed" Foguth in without realizing that he had a prisoner with him. Kelly informed his sergeant that Schreiber had been placed in the cell, but did nothing more because he was not permitted to leave his station. Furthermore, despite the plaintiff's many theories about how Schreiber could have been supervised, the plaintiff does not explain how Kelly, a deputy, was capable of rearranging county-wide police assignments to supervise an inmate not known to need special supervision. See Jacobs v. West Feliciana Sheriff's Dep't, 228 F.3d 388, 398 (5th Cir. 2000). The plaintiff's suggestion that Crawford County personnel should have been aware of psychological evaluations performed by the MDOC carries no weight, since such [*24] a contention describes at most a negligence standard. HN10 Jails are under no constitutional obligation to probe the files for the health histories of their inmates at other facilities. See Hott v. Hennepin County, Minn., 260 F.3d 901, 906 (8th Cir. 2001). Furthermore, even if Kelly should have known about Schreiber's history, there is no evidence from which a reasonable trier of fact could conclude that he did. Without specific knowledge of Schreiber's suicidal tendencies, no deliberate indifference can be proven. See Horn, 22 F.3d at 660-61. Although Foguth's case is closer, the plaintiff has not demonstrated that Foguth actually drew the inference that Schrieber was suicidal. Unlike the Crawford County defendants, Foguth apparently would have had access to the 1992 and 1995 mental examinations performed by Drs. Halstead and Yang. However, the plaintiff makes more of this evidence than it deserves. The Halstead report discusses how people with low ego strength can become obsessed with suicide. That report, however, was in 1992. In 1995, Schreiber was examined again, this time by Dr. Yang, who observed no evidence of suicidal ideation or depression. [*25] Even if these reports would have put a prudent person on inquiry notice that the plaintiff himself was suicidal, the years between those reports and the incident in this case (8 and 5 years, respectively) render the inference that Schreiber was still suicidal in 2000 tenuous. See Lambert v. City of Dumas, 187 F.3d 931, 937-38 (8th Cir. 1999) (doubting that reasonable finder of fact could conclude that detainee's swallowing of a crack pipe three years prior indicated that the detainee had ongoing suicidal intentions). It is true that Foguth recommended some counseling to Schreiber two days before this incident, but he has testified that he believed Schreiber's need was for general personal concerns. The social worker to whom Foguth referred Schreiber, who works regularly with mental health emergencies, in fact met with him the next day and found no evidence of any suicidal tendencies and made another appointment with Schreiber two weeks in the future. The plaintiff points to the fact that Schreiber was clearly "upset" about going to jail, but fails to explain why this reaction should have put Foguth on notice of suicidal tendencies. Furthermore, Foguth had already [*26] been through this same procedure before with Schreiber. In 1999, Schreiber was briefly detained after being suspected of violating his tether conditions. Schreiber received a hearing, as was his right, was exonerated of wrongdoing, and was promptly returned to his tether. Although Foguth obviously suspected Schreiber of wrongdoing, this scenario was one he and Schreiber had been through before without incident. Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.603 Page 14 of 42 Page 14 of 20 Schreiber v. County of Crawford Christopher Bradley Clare HN11 To establish a constitutional violation, it is not sufficient to offer evidence of "a significant risk that [the custodian] should have perceived but did not." Comstock, 273 F.3d at 703. Actual knowledge "of the asserted serious needs or of circumstances clearly indicating the existence of such needs, is essential to a finding of deliberate indifference." Molton, 839 F.2d at 243. The record does not present a material fact question on this essential element as to defendants Kelly and Foguth. The claim for municipal liability against the county and the sheriff in his official capacity has been framed by the motion papers somewhat differently than by the pleadings, in that the plaintiff now focuses on the failure-to-train allegations and abandons [*27] the failure-to-supervise theory. The record does not support the latter claim in any event. Although HN12 in limited circumstances the Sixth Circuit permits supervisors to be personally liable for rights violations perpetrated by their employees, liability is imposed only when the supervisor either participated directly in the violating act or "at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate." Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Section 1983 liability cannot be grounded solely on respondeat superior. Taylor v. Michigan Dep't. of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995). Nor can a supervisor be held liable solely for a failure to act or for being aware of the misconduct. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Active unconstitutional behavior is required. Id. There is no evidence in this record of any such conduct on the part of Sheriff Lovely or any other supervisor. HN13 In order to prevail on a Section 1983 failure- to-train claim, the plaintiff must show that the "training program is inadequate to the tasks that officers must [*28] perform; that the inadequacy is the result of the city's deliberate indifference; and that the inadequacy . . . actually caused the plaintiff's injury." Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989). The Supreme Court recognized municipal liability under 42 U.S.C. § 1983 for failure to train employees in City of Canton, Ohio v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). In that case, a detainee brought suit against the City of Canton alleging, among other claims, that jail officials were inadequately trained to deal with her medical needs. Id. at 381. On review, the Supreme Court recognized that HN14 a municipality can be held liable for inadequate police training under Section 1983 "only where [the] failure to train amounts to deliberate indifference to rights of persons with whom police come into contact." Id. at 388. The mere fact that a few officers may be inadequately trained is not sufficient to demonstrate municipal liability, as the shortcomings could be caused by officer inattention or poor administration. Id. at 391. Allegations that the officers [*29] in question could have been better trained are also insufficient. Id. Rather, the "failure to train [must] reflect[] a deliberate or conscious choice by a municipality." Id. at 389. The Court recognized two fact patterns in which a citizen could state a claim for failure to train. First, the nature of the officers' duties could be such that "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need" in not providing training. Id. at 390. The Court isolated the need to apprehend fleeing felons and the possession of firearms by officers as indicating to a "moral certainty" that proper training would be required. Id. n.10. Second, the police may have so often violated constitutional rights that the need for further training must have been "plainly obvious to the city policymakers, who, nevertheless, are 'deliberately indifferent' to the need." Id; see also id. at 397 (O'Connor, J., concurring) (finding that such behavior constitutes "tacit authorization" [*30] of the officers' conduct). The Sixth Circuit has applied this standard on several occasions. In Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990), the court affirmed the dismissal of a wrongful death claim where guards failed to open a prison door to assist an inmate who was being stabbed by another inmate, concluding that the complaint alleged only that the guards could have been better trained. In Beddingfield v. City of Pulaski, Tenn., 861 F.2d 968 (6th Cir. 1988), the court set aside a plaintiff's jury verdict in a jail suicide case where the plaintiff had demonstrated that the jail's officers had not been Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.604 Page 15 of 42 Page 15 of 20 Schreiber v. County of Crawford Christopher Bradley Clare sent to state suicide-training programs and that much better procedures were available to prevent suicides. Such a showing, the court found, demonstrated at best only insufficient training and possible negligence, not a deliberate choice by the municipality to disregard an obvious risk. In Molton, the court rejected the plaintiff's failure- to-train theory against the City of Cleveland, holding that HN15 inadequate training alone does not violate an inmate's constitutional rights: There are essentially two problems with plaintiff's argument. [*31] First, plaintiff never adduced evidence of a definitive City policy, custom, or usage which was an affirmative link, the moving force that animated the behavior--the acts of commission or omission-- of the police officers that resulted in the constitutional violations alleged. The Supreme Court authorities, specifically Tuttle and Pembaur, require proof of a deliberate and discernible city policy to maintain an inadequately trained police department, or nonsuicide-proof, inadequately designed and equipped jails; not mere speculation that such matters are "inherently matters of city policy." A second problem with plaintiff's theory is that the policies she identifies describe mere negligence. The City's failure to build a suicide-proof jail cell, and its inadequate training of its police force, may well be acts of negligent omission, but they have not been shown to be the result of municipal policy: "a deliberate choice to follow a course of action … made from among various alternatives by the official or officials responsible for establishing formal policy with respect to the subject matter in question." Pembaurv. Cincinnati , 475 U.S. 469, 483, 89 L. Ed. 2d 452, 106 S. Ct. 1292 [*32] [(1986)]. Molton, 839 F.2d at 246. The plaintiff in this case can fare no better than Molton. There is no evidence of inadequate training on the part of the municipality. In fact, the plaintiff acknowledges that a policy was in place to remove belts and shoelaces from detainees, and contends that this policy was violated by individual officers. The evidence establishes that the policy existed and generally followed, which contradicts an inference of deliberate indifference toward potentially suicidal inmates. The plaintiff does make some specific allegations of inadequate training, and they appear in the last sentence of the response brief: "There was a lack of CPR training and certification, and a lack,of training to meet the American Corrections Association standards." The plaintiff does not confine these allegations to particular individuals, nor does he explain the significance of these standards or how such training would have saved John Schreiber's life. The Court concludes that the plaintiff has not established a constitutional violation against any of the defendants, and therefore court two of the amended complaint will be dismissed. B. The plaintiff's [*33] state law negligence claim against Crawford County for premises liability is barred by the doctrine of governmental immunity found generally in Mich. Comp. Laws § 691.1407, unless an exception to that statute applies. The plaintiff contends that the applicable exception in this case is contained in HN16 Mich. Comp. Laws § 691.1406, which states: Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Mich. Comp. Laws § 691.1406. The Michigan Supreme Court has cautioned that "HN17 the duty imposed by the public building exception relates to dangers actually presented by the building itself." Hickey v. Zezulka, 439 Mich. Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.605 Page 16 of 42 Page 16 of 20 Schreiber v. County of Crawford Christopher Bradley Clare 408, 422, 487 N.W.2d 106, 112 (1992) (citing Reardon v. Dep't of Mental Health, 430 Mich. 398, 415, 424 N.W.2d 248 (1988)). [*34] Thus, "the purpose of the public building exception was to promote the maintenance of safe public buildings, not necessarily safety in public buildings." Id. (citation omitted). As a result, "where proper supervision would have offset any shortcomings in the configuration of the room, the public building exception does not apply." Id. (citation omitted). HN18 In order to state a claim under the public building exception, the plaintiff must show: (1) a governmental agency is involved, (2) the public building in question was open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period or failed to take action reasonably necessary to protect the public against the condition after a reasonable period. Brown v. Genesee County Bd. Of Comm'rs, 464 Mich. 430, 435, 628 N.W.2d 471, 474 (2001). Brown added a sixth requirement: the party seeking relief must be a member of the public. Id. In Hickey [*35] , the plaintiff brought suit against Michigan State University, alleging, among other things, that the cell in which its decedent had been temporarily confined, and in which he hung himself to death, was defective. The plaintiff proffered three theories of defect, all of which were rejected by the court. First, the plaintiff alleged that the building's poor design preventing proper supervision from taking place. The court found that this avenue was little more than an attempt to repackage the claim that better supervision would have prevented the decedent's injuries, and therefore was not cognizable under the statute. 439 Mich. at 423-24, 487 N.W.2d at 112-13. Second, the plaintiff alleged that the building was not sufficiently updated with security cameras and special detoxification cells. This, too, was rejected, as HN19 the public building exception does not require government offices to have the most modern offices or latest technology. Id. at 424, 487 N.W.2d at 113. Finally, the plaintiff alleged that the cell's heating unit and metal brackets were dangerous or defective because they were improperly placed and apparently conducive to aiding suicide. Although [*36] the plaintiff had potentially demonstrated a negligent design, it still had not proven the tell to be defective in light of its intended purpose. The court noted that the holding cell was never used for more than a few hours at a time. Also, it noted the consensus of the experts at trial that it is impossible to make any jail cell "suicide-proof." Id. at 426, 487 N.W.2d at 114. Hence, the holding cell, and the building in which it was housed, was not defective. Brown limited the ability of incarcerated persons to seek relief under the public building exception. By specifically providing protection for "members of the public," the Michigan legislature implicitly denied such protection to those who are not members of the public. 464 Mich. at 438, 628 N.W.2d at 475-76. Because the plaintiff in Brown was a prison inmate who had slipped and fallen in a prison shower, he could not take advantage of the public building exception: HN20 Jail inmates are not members of the public for purposes of the public building exception. Unlike a person who enters a jail, e.g., to meet with an inmate, make a delivery, or apply for a job, an inmate does not visit [*37] a jail as a potential invitee. Instead, inmates are legally compelled to be there. Inmates thus are not within the class of persons the Legislature intended to protect from defects in public buildings. Id. at 439, 628 N.W.2d at 476. As a result of the governing Michigan law, the plaintiff's public building defect claim in this claim is twice cursed. On the question of defect, the case is virtually indistinguishable from Hickey, where the court found no defect as a matter of law. Although some portions of the Sheriff's Department offices are considered "public buildings," a jail cell is not one of them. Schreiber was, no doubt, "legally compelled" to be there, and thus Brown Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.606 Page 17 of 42 Page 17 of 20 Schreiber v. County of Crawford Christopher Bradley Clare provides an additional basis compelling rejection of this claim. Count three will therefore be dismissed. C. The plaintiff's remaining claims directed against defendants Kelly and Foguth allege gross negligence as a means of avoiding governmental immunity. HN21 According to Mich. Comp. Laws § 691.1407(2), governmental employees "1) acting during the course of [their] employment and . . . within the scope of [their] authority; [and] 2) acting in good faith" are entitled [*38] to immunity from liability for injuries they cause. Ross v. Consumers Power Co. (on rehearing), 420 Mich. 567, 633-34, 363 N.W.2d 641, 667-68 (1984). However, immunity will not apply unless "the employee's . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage." Mich. Comp Laws § 691.1407(2)(c). The thrust of defendant Kelly's summary judgment motion is that the record does not contain evidence of gross negligence on his part, and that his conduct was not the proximate cause of the suicide. Defendant Foguth, on the other hand, focuses solely on the causation issue, claiming that in a case where the decedent takes his own life, a custodian's conduct cannot be "the" proximate cause as a matter of law. HN22 Michigan's governmental immunity statute defines "gross negligence" as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." Id. Although the Michigan Court of Appeals has refused to rule out the possibility that a failure to act could itself rise to the level of gross negligence, see Tallman v. Markstrom, 180 Mich. App. 141, 144, 446 N.W.2d 618, 620 (1989), [*39] the majority of cases in which liability has been found involve actions where the risk of harm to a particular individual was clear, and where the defendant obviously made a conscious choice to disregard that harm. See, e.g., Kostrzewa v. City of Troy, 247 F.3d 633, 642-43 (6th Cir. 2001) (holding that claim for gross negligence was stated where officer decided to apply handcuffs that would be too tight and then drove recklessly with the plaintiff in the back set of the police car, further injuring him); Soper v. Hoben, 195 F.3d 845, 851-52 (6th Cir. 1999) (holding that no claim for gross negligence could be stated for failure to have a policy protecting at-risk children and for failing to supervise them properly); Adams v. Metiva, 31 F.3d 375, 388 (6th Cir. 1994) (holding that claim for gross negligence was stated where officer sprayed mace in arrestee's face long after he had been blinded and incapacitated); Johnson v. Wayne County, 213 Mich. App. 143, 159, 540 N.W.2d 66, 73 (1995) (claim for gross negligence stated where deputies incarcerated juror in contempt of court in a cell with the alleged murderer on trial, [*40] and then shackled them together). The Michigan Supreme Court has made clear, however, that gross negligence does not require deliberate indifference to a known risk. See Jennings v. Southwood, 446 Mich. 125, 521 N.W.2d 230 (1994). In that case, the court was asked to determine the meaning of the terms "gross negligence" and "wilful misconduct" as they were used in the Emergency Medical Services Act (EMSA), Mich. Comp. Laws § 333.20701 et seq. The court first explained that the legislature did not intend to use the term "gross negligence" in the common-law sense, which required only ordinary negligence by a defendant, but only after the plaintiff had first been negligent herself. Id at 129- 131, 521 N.W.2d at 232-33. That definition of gross negligence, which was little more than a synonym for the "last clear chance" doctrine, was a common law device designed to ameliorate the harsh effects of contributory negligence; once Michigan abolished contributory negligence in favor of comparative fault in 1979, however, the traditional definition of gross negligence no longer served any purpose. Id. at 130-32, 521 N.W.2d at 233- 34. [*41] Furthermore, because the entire point of EMSA was to protect emergency workers by immunizing them from ordinary negligence, to apply the traditional "gross negligence" definition would render the entire scheme a nullity. Id. at 132- 33, 521 N.W.2d at 233-34. Left without the common law definition, the Michigan Supreme Court engrafted the statutory definition of the term from the governmental immunity act, Mich. Comp. Laws § 691.1407(b)(2), and in the ensuing gloss Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.607 Page 18 of 42 Page 18 of 20 Schreiber v. County of Crawford Christopher Bradley Clare found the term to be quite different from willful misconduct, which it defined as acting with the intention to harm another, and from wanton misconduct, which describes the conduct of one who knows that his actions are almost certain to harm another, but is indifferent to whether harm results or not. Id. at 140-42, 521 N.W.2d at 237-38. The lesson of Jennings is that although gross negligence is more aggravated than ordinary negligence, it still falls short of willful misconduct (in which there is an intent to cause harm) and wanton misconduct (where the actor proceeds with an action the actor knows is likely to harm another). The cases previously discussed in which gross negligence [*42] was found deal more with conduct more accurately characterized as willful or wanton under Jennings, not merely grossly negligent. Of course, because gross negligence involves less culpable conduct than either of these two mental states, being willful or wanton almost necessarily includes a grossly negligent act under the governmental immunity act's statutory definition. Thus one need not have the level of culpability outlined in Kostrzewa, Adams, or Johnson to be grossly negligent. Instead, to be grossly negligent -- as the phrase itself suggests -- is to flaunt or otherwise disregard one's duty of care in a particularly callous manner. See also St. Onge v. Detroit & Mackinac Ry. Co., 116 Mich. App. 128, 131, 321 N.W.2d 865, 866 (1982) (finding gross negligence to exist when a defendant fails "to exercise [the] degree of care that even a careless individual would employ under the circumstances"). The determination of gross negligence, then, will depend on the facts of each case, requiring the fact finder to consider the circumstances in which the incident took place, the relationship between the tortfeasor and the victim, any information the tortfeasor [*43] had that should have put him on heightened alert, and any other factor that a reasonable finder of fact could take into account in finding that the disregard of one's duty was particularly aggravated, callous, or disturbing. The Michigan Supreme Court observed in Hickey that absent a special relationship, there is no legal duty to aid or protect another person from injury. However, "HN23 the custodial relationship between [a jailer] and [a detainee] is such a special relationship that gives rise to the duty to give aid and protect from harm." 439 Mich. at 438, 487 N.W.2d at 119. Defendant Kelly had no information that Schreiber was a suicide risk, that he had requested mental health counseling three days earlier, or that he was lodged in violation of departmental policy with his belt and shoelaces in his possession. Further, the plaintiff does not refute Kelly's showing that there was no evidence then available to any Crawford County jail personnel suggesting that the plaintiff had suicidal tendencies. Schreiber was examined no less than five times over an eight-year period by Crawford County jail personnel, and each time was evaluated for suicide risks. As such, Schreiber's [*44] suicide was unforeseeable to defendant Kelly, and he is entitled to summary judgment on this claim. The evidence as to defendant Foguth is different. Foguth himself described Schreiber as "somewhat depressed" when he saw him three days before he was taken into custody, and he put Schreiber in touch with a mental health counselor. He also had information, remote as it was, that Schreiber had expressed thoughts consistent with suicidal ideation in the distant past. Of course, these factors by themselves would not constitute gross negligence. However, coupled with additional evidence, viewed in the light most favorable to the plaintiff, that Foguth disregarded the instruction to "bring [Schreiber] around to the front" so he could be properly booked and admitted by sheriff's department personnel, his knowledge that Kelly was the only officer on duty and would not "get to him" without delay, and his awareness of the apparently immutable custom that for safety reasons prisoners are not to be lodged with their with their belts and shoelaces, Foguth's act of placing Schreiber in a cell that was not covered with video equipment and leaving him there in the possession of his belt and shoelaces [*45] so Foguth could attend his lunch period undisturbed, could be considered aggravated, callous, and disturbing. But Foguth argues that even his gross negligence cannot be "the" proximate cause of the suicide because Schreiber took his own life. Indeed, in Robinson v. City of Detroit, 462 Mich. 439, 613 Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.608 Page 19 of 42 Page 19 of 20 Schreiber v. County of Crawford Christopher Bradley Clare N.W.2d 307 (2000), the Michigan Supreme Court overruled prior decisional law to the contrary and held that HN24 the phrase "the proximate cause," as it is used in Mich. Comp. Laws § 691.1407(b)(2), should be interpreted to mean "the one most immediate, efficient and direct cause preceding an injury, not a proximate cause." 462 Mich. at 462, 613 N.W.2d at 319 (emphasis added). It is important to note that the supreme court did not state that the defendant's gross negligence must be the sole cause, but rather it must be the one most directly related to the event. Thus, if there is more than one proximate cause of an event, and each can be said to contribute equally to bringing it about, then the plaintiff will not have carried her burden. Likewise, if another cause supercedes the gross negligence of a government actor, the plaintiff's case must fail. HN25 In jail suicide [*46] cases, however, the Michigan Supreme Court has held that the question of causation cannot be divorced from the question of foreseeability. In Hickey, the court held that the custodial officer, Zezulka, could be accountable for Hickey's death by suicide based on ordinary negligence under the pre-1986 version of the state's governmental immunity act. On the issue of causation, the court noted: On the facts of this case, a finding by the jury that Zezulka's failure to remove Hickey's belt, and her failure to properly supervise him in the DPS holding cell, constituted negligence would be nonsensical if Hickey's subsequent intentional act of harming himself was not reasonably foreseeable by Zezulka. When a defendant owes a duty of ordinary care to give aid to and to protect an individual from harm because of the special relationship between the parties, and the plaintiff's claim is that the defendant was negligent in failing to prevent or in creating a stimulus for the plaintiff's own act that intervened to cause harm, it cannot be said that the intervening act is a superseding cause of his injury. Thus, by negligently enhancing the likelihood of Hickey's intervening act of [*47] suicide, and by failing to protect Hickey from the very risk she created, Zezulka cannot be relieved from liability because the risk she created actually came to fruition. 439 Mich. at 439-440, 487 N.W.2d at 119-120. Foguth does not argue here that Schreiber's intentional act of hanging himself is a superseding cause, but the Court believes that similar considerations come into play. As noted above, Foguth was aware that Schreiber was at least troubled and needed professional psychological care. If Foguth's duty was to take reasonable measures to prevent the very act that occurred, and the act of suicide was foreseeable under the circumstances, then a jury could conclude that Foguth's act of confining Schreiber in a private place, out of view of jail personnel, with the means to bring about the result which the unobserved security measures were intended to prevent, was "the one most immediate, efficient and direct cause" of the suicide. Foguth, therefore, is not entitled to judgement in his favor on the common law gross negligence claim against him as a matter of law. III. The plaintiff has failed to come forth with evidence to create fact questions on all the [*48] claims contained in his amended complaint save the gross negligence claim against defendant Frank Foguth. Accordingly, it is ORDERED that the motion for summary judgment by defendants, Crawford County, the Crawford County Sheriff's Department, David Lovely and Michael Kelly, [dkt # 53] is GRANTED. It is further ORDERED that the motion for summary judgment on the plaintiff's Eighth Amendment claim by defendant, Frank Foguth, [dkt # 56] is GRANTED. It is further ORDERED that the motion to dismiss by defendant, Frank Foguth, [dkt # 52] GRANTED IN PART AND DENIED IN PART. It is further ORDERED that counts two and three of the first amended complaint are DISMISSED WITH PREJUDICE in their entirety against all defendants, and count one of the first amended complaint is DISMISSED WITH PREJUDICE as to all defendants except Frank Foguth. /s/ Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.609 Page 20 of 42 Page 20 of 20 Schreiber v. County of Crawford Christopher Bradley Clare DAVID M. LAWSON United States District Judge Dated: August 20, 2002 End of Document Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.610 Page 21 of 42 Page 1 of 6 Lawrence-Webster v. City of Saginaw Christopher Bradley Clare Caution As of: July 15, 2016 10:06 AM EDT Lawrence-Webster v. City of Saginaw United States District Court for the Eastern District of Michigan, Northern Division December 22, 2006, Decided Case Number 05-10047-BC Reporter 2006 U.S. Dist. LEXIS 92678; 2006 WL 3804895 KAREN LAWRENCE-WEBSTER, Plaintiff, v. CITY OF SAGINAW, CECIL COLLINS, DEBORAH KIMBLE, Defendants. Subsequent History: Reconsideration granted by, in part, Reconsideration denied by, in part, Motion to strike denied by, Appeal denied by Lawrence- Webster v. City of Saginaw, 2007 U.S. Dist. LEXIS 32154 ( E.D. Mich., May 2, 2007) Core Terms termination, city manager, employees, summary judgment motion, city council, city charter, appointed, rights, gender discrimination, qualified immunity, finance director, responsibilities, communications, deposition, citations, handbook, charter, counts Counsel: [*1] For Karen Lawrence-Webster, Plaintiff: Victor J. Mastromarco, Jr., LEAD ATTORNEY, Manda L. Anagnost, Russel C. Babcock, Mastromarco & Jahn (Saginaw), Saginaw, MI. For Saginaw, City of, Deborah Kimble, Defendants: John A. Decker, LEAD ATTORNEY, Jamie H. Nisidis, Braun, Kendrick, (Saginaw), Saginaw, MI. For Cecil Collins, Defendant: Gregory W. Mair, O'Neill, Wallace, (Saginaw), Saginaw, MI. Judges: Honorable Thomas L. Ludington, United States District Judge. Opinion by: THOMAS L. LUDINGTON Opinion ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT CITY OF SAGINAW AND DEFENDANT KIMBLE'S AND DEFENDANT COLLINS' MOTIONS FOR SUMMARY JUDGMENT AND DISMISSING COUNTS I AND II AS TO DEFENDANT COLLINS ONLY AND COUNTS III-V OF PLAINTIFF'S AMENDED COMPLAINT WITH PREJUDICE On December 12, 2005, Plaintiff Karen Lawrence- Webster filed an amended complaint alleging a variety of claims against her former employer and supervisors: Defendant City of Saginaw ("City"); Defendant Deborah Kimble, the city manager until on or about August 7, 2004; and Defendant Cecil Collins, [*2] the deputy city manager who became the interim city manager in mid-August 2004, after the termination of Defendant Kimble. Plaintiff, the treasurer and financial director for Defendant City, alleges (1) that Defendant City and Defendant Collins violated her rights under the Fourteenth Amendment, including the due process and equal protection clauses, under 42 U.S.C. §§ 1983 & 1985(3), when her employment was terminated without the pre- and post-termination process proscribed by the city charter and its employee handbook; (2) that Defendant City and Defendant Collins retaliated against her for her exercise of her First Amendment rights when her Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.611 Page 22 of 42 Page 2 of 6 Lawrence-Webster v. City of Saginaw Christopher Bradley Clare employment was terminated as a result of comments she made before the city council regarding the state of Defendant City's finances; (3) that Defendant City and Defendant Collins discriminated based on gender under the Michigan Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2101 et seq., when Defendant Collins dealt directly with other employees but indirectly with Plaintiff; and (4) that Defendant Collins and Defendant Kimble committed the tort of false [*3] light invasion of privacy by making negative statements about Plaintiff's performance of her job responsibilities to the local newspaper. On December 20, 2006, the Court held a hearing on three motions for summary judgment under Federal Rule of Civil Procedure 56(c), filed by Plaintiff, by Defendant City and Defendant Kimble, and by Defendant Collins. In addition, Defendant Collins requested dismissal under Federal Rule of Civil Procedure 12(b)(6) based on qualified immunity. Regarding Plaintiff's equal protection claim under the Fourteenth Amendment in count I, Plaintiff does not identify herself within a protected class but asserts her membership in a class of one, a class singled out for irrational and arbitrary government behavior. The Supreme Court has recognized the possibility of an "equal protection claim[] brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2005) [*4] (citations omitted). The Fourteenth Amendment equal protection clause aims to protect against "intentional and arbitrary discrimination," particularly by government agents acting improperly. See id. (citation omitted). "A 'class of one' plaintiff may demonstrate that a government action lacks a rational basis in one of two ways: either by negativing every conceivable basis which might support the government action or by demonstrating that the challenged government action was motivated by animus or ill-will." Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir. 2005) (citations omitted); see also Ross v. Duggan, 402 F.3d 575, 587 (6th Cir. 2004) (noting that a plaintiff bears the burden of showing that government action "did not rationally further any conceivable public purpose"). Here, Plaintiff has not attempted to negate all possible explanations for her termination or the so- called harassment (e.g., allegedly sending e-mail directly to other employees while only sending e- mail to her with other recipients). Nor has she attempted to show that her termination was intentionally different from the treatment of others similarly situated. Nothing [*5] in her pleadings or responsive filings clarifies who would be similarly situated or how her treatment differed. Plaintiff, as the party opposing two motions for summary judgment, has failed to designate specific facts in affidavits, depositions, or other factual material to show evidence on which a jury could reasonably find for her. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Accordingly, Plaintiff has not demonstrated a minimal showing of a violation of her equal protection rights. Plaintiff also claims that her employment was eliminated without due process in violation of the Fourteenth Amendment. The Fourteenth Amendment prohibits the government from "depriving any person of life, liberty, or property, without due process of law[.]" Federal courts have recognized that state civil servants may have a property interest in continued employment under certain circumstances and must be afforded due process before being discharged. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1986); Relford v. Lexington- Fayette Urban County Government, 390 F.3d 452, 460 (6th Cir. 2004) (stating [*6] that "under state law, government and civil service employees may have a property right in their continued employment"). The due process analysis in continued employment cases is twofold. First, a court must initially determine whether a protected property interest exists; absent an interest, no right to process is present. Singfield v. Akron Metropolitan Housing Authority, 389 F.3d 555, 565 (6th Cir. 2004). Second, assuming that the first step is answered in the affirmative, the court must consider what process is due. Id; see also Johnston- Taylor v. Gannon, 907 F.2d 1577, 1581 (6th Cir. 1990). Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.612 Page 23 of 42 Page 3 of 6 Lawrence-Webster v. City of Saginaw Christopher Bradley Clare Defendant City has expressly provided, in its charter, for a review board to consider complaints regarding adverse employment actions. See SCC, § 40. The board is comprised of three members, one appointed by the city manager, one appointed by the mayor, and one appointed by the two other members. SCC, § 38. The board has the responsibility to investigate complaints and make recommendations to the city manager. SCC, § 40. In addition, section V.A.1 of Defendant City's employee handbook provides for a written recommendation prior to discharge that [*7] is forwarded to the city attorney and the employee services office. Also, section VI.B of the employee handbook provides for a post-termination process of review before the personnel advisory board, including a public hearing. Plaintiff has offered evidence that those procedures went unmet. Although the review board is "advisory" and the city manager retains the final authority to terminate employees, 1 regardless of the recommendation of the board, nothing in the charter or the handbook suggests that it is dispensible at the unilateral election of the city manager. The city charter and handbook expressly provide for the review board, and Plaintiff has presented evidence that the process described in the charter was not afforded to her. Thus, Plaintiff withstands the motions for summary judgment as to any claim of a violation of due process. The central element that Plaintiff must demonstrate to support her [*8] claim, for retaliation for her exercise of her rights under the First Amendment in count II, is that she "engaged in constitutionally protected speech or conduct," because she has offered evidence that her termination would deter a person of ordinary firmness from continuing to provide information regarding the city budget to the city council and that her termination was motivated at least in part by her protected conduct. See Scarborough v. Morgan County Bd. of Educ., 470 F.3d 250, 2006 U.S. App. LEXIS 28941, *7 (6th Cir. 2006) (citation omitted). State employees do not enjoy unfettered speech rights, see Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003); however, 1 See also SCC, § 29 (giving the city manager the authority to appoint and terminate employees). public employee speech may be protected if the speech pertains to a matter of public concern and if the balancing test of Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), shows that an employee's free speech rights outweigh the interests of the government as an employer. See Rose v. Stephens, 291 F.3d 917, 920 (6th Cir. 2002) (citation and internal quotations omitted). Additionally, the Supreme Court has recognized the importance of loyalty within [*9] a democratically elected government and, thus, permitted an exception to the general bar on terminating employees for publicizing their concerns - if the employee is in a policymaking position. See Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980); see also Rose, 291 F.3d at 921 (stating that "where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law"); Latham v. Office of the AG, 395 F.3d 261, 266 (6th Cir. 2005) (describing as "insubordination" an employee's contradiction of an employer's position on job-related issues, where the employee's position required loyalty). Notwithstanding that exception, public employee speech made pursuant to official duties, rather than as private citizens, does not receive First Amendment protection. See Garcetti v. Ceballos, U.S. ; 126 S. Ct. 1951, 1960, 164 L. Ed. 2d 689 (2006). Here, Plaintiff alleges that, on August 16, 2004, Defendant [*10] Collins presented tax and budget information to the city council. Plaintiff alleges that she attended the public meeting, but not as an officially invited presenter. She did contradict information furnished by Defendant Collins. According to her, she attended the meeting after a third party noted that Defendant Collins would be presenting finance information. The city council allegedly then directed Plaintiff and Defendant Collins to work together to provide an update on the city's financial status for the next meeting on the following Monday, August 23, 2004, because of the discrepancy in the information. Plaintiff explained that on August 18, 2004, Defendant Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.613 Page 24 of 42 Page 4 of 6 Lawrence-Webster v. City of Saginaw Christopher Bradley Clare Collins e-mailed her to direct the compilation of certain financial information by August 20, 2004. Plaintiff maintains that, at about 4:30 p.m. on August 20, 2004, Defendant Collins requested a meeting at 5 p.m. to discuss those results, which she states that she had not yet been able to prepare. Plaintiff asserts that she did not attend that meeting and that the next day, a Saturday, she could not gain access to the computer system because Defendant Collins allegedly had directed that she be denied access. On August 23, 2004, Plaintiff [*11] believed that Defendant Collins terminated her employment. As a result, she then did not attend the city council meeting that evening. In a letter of August 25, 2004, Defendant Collins acknowledges that he terminated Plaintiff as treasurer and finance director. The city charter assigns the finance director unique responsibilities. The finance director answers to the city manager, who has the discretion to appoint and retain her without the interference of the city council. See Saginaw City Charter, §§ 29-31 (Jan. 6, 1936, with later amendments) ("SCC"). Yet the charter also expressly requires her to prepare the city budget and, after review by the city manager, present it to the city council, presumably to maintain an independent perspective for the council on budgetary and fiscal matters. See SCC, § 43. Accordingly, the city charter imposes on the finance director responsibilities to both the city manager and to the city council. Because the importance of employer "loyalty" provides the basis for the "policymaker" exception to the bar to adverse actions against employees who exercise their free speech rights, the exception cannot apply to Plaintiff's speech regarding the [*12] city budget, where she had a distinct responsibility as the finance director to the city council. Defendant City has not shown that it is entitled to judgment as a matter of law. Because Defendant Collins has asserted qualified immunity to Plaintiff's federal constitutional claims, Plaintiff bears the burden of showing that a defendant is not entitled to qualified immunity. See Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2001) (citation omitted). "Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)). A court must determine whether a constitutional violation has occurred and, if need be, whether that constitutional right was "clearly established" at the time of the violation. Id. at 200-201. Ultimately, "the relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted." Id. at 203. Although the Court [*13] has concluded that Plaintiff may proceed against Defendant City as to counts I and II, Plaintiff has failed to demonstrate that any constitutional violation was "clearly established." Only upon a close reading of the rights and responsibilities allocated by the city charter are constitutional issues apparent. Neither Plaintiff's filings nor statements at the hearing readily demonstrated how the relevant provisions of the city charter would have made "clear to a reasonable [official] that his conduct was unlawful." Accordingly, the Court cannot conclude that the constitutional violations at issue were clearly established, sufficient for Defendant Collins as an executive official to avoid a constitutional violation. Thus, Defendant Collins is entitled to qualified immunity as to the federal constitutional claims. Regarding Plaintiff's claim of gender discrimination under ELCRA in count III, Plaintiff acknowledges that she does not have direct evidence of gender discrimination, because she stated in her deposition that she had no experience of Defendant Collins making any negative comment about her as a women or about women in general. Consequently, the burden-shifting framework of [*14] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), applies to this indirect evidence case. Sniecinski v. Blue Cross & Blue Shield, 469 Mich. 124, 666 N.W.2d 186, 193 (Mich. 2003). An indirect evidence case requires that a plaintiff must first establish a prima facie case of discrimination: "that (1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) her failure to obtain the position occurred under circumstances giving rise to an Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.614 Page 25 of 42 Page 5 of 6 Lawrence-Webster v. City of Saginaw Christopher Bradley Clare inference of unlawful discrimination." Id. at 193 (citations omitted). Then the burden shifts to the defendant to state a legitimate, non-discriminatory reason for its employment action. Id. (citations omitted). Finally, the burden returns to the plaintiff to show that the proffered reason is mere pretext for discrimination. Id. (citations omitted). Here, Plaintiff has offered no evidence that "her failure to obtain the position occurred under circumstances giving rise to an inference of unlawful discrimination." Plaintiff advances no meaningful connection between her gender and the adverse employment action of her termination. [*15] In her deposition, Plaintiff maintains that Defendant Collins' allegedly derisive and dismissive approach in dealing with employees and tendency to circumvent her by speaking directly with those she supervised disrupted her management approach. Plaintiff maintains that she requested Defendant Kimble to take corrective action and that Defendant Collins had e-mailed an evaluation of Plaintiff's work performance to other employees. She also claims that she experienced harassment when Defendant Collins dealt directly with other employees but less directly with her. Although Plaintiff was terminated under unusual and politically charged circumstances, she has not demonstrated any connection to her gender. Thus, Plaintiff has not made out a prima facie case of gender discrimination. Additionally, she has not offered a basis on which the Court might conclude that Defendant Collins' apparently legitimate and non-discriminatory reasons for her termination, such as a failure to collect property taxes or to complete bank transfers so as to avoid overdrafts, were a pretext for gender discrimination. Thus, summary judgment is granted for Defendant City and Defendant Collins as to count III of [*16] gender discrimination under ELCRA. Regarding count IV against Defendant Collins and count V against Defendant Kimble for false light invasion of privacy, both defendants have immunity under Mich. Comp. Laws § 691.1407(5). The statute provides absolute immunity to the "highest appointive executive official" for actions within the scope of his or her authority. The position of city manager is appointed under the city charter, and under that charter, it is the highest appointed position. See SCC, §§ 29 & 30. Here, both defendants allegedly responded to inquiries from the local newspaper regarding emerging issues within city government, so any communications would fall within the scope of authority of a city manager to communicate on behalf of the city. Although Plaintiff asserted during the hearing that Defendant Kimble made any communications to the newspaper after city council terminated her, thus eliminating any immunity, Plaintiff has not offered any record support to indicate of the timing of Defendant Kimble's alleged disclosures. Indeed, the limited record support offered by Plaintiff comes in the form of a reference in Plaintiff's response brief [*17] to Defendant Kimble's brief in support of her motion for summary judgment; that second brief then relies upon Defendant Kimble's statement in her deposition that she communicated with the newspaper prior to her termination. Yet a party opposing summary judgment may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). Moreover, a party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. Without any such showing as to the timing of Defendant Kimble's purported communications relative to her termination, Defendant Kimble and Defendant Collins receive the absolute immunity of Mich. Comp. Laws § 691.1407(5). Accordingly, count IV as to Defendant Collins and count V as to Defendant Kimble are DISMISSED WITH PREJUDICE. Accordingly, it is ORDERED [*18] that Plaintiff's motion for summary judgment [dkt # 54] is DENIED. It is further ORDERED that Defendant City and Defendant Kimble's motion for summary judgment [dkt # 57] is GRANTED IN PART and DENIED IN PART. Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.615 Page 26 of 42 Page 6 of 6 Lawrence-Webster v. City of Saginaw Christopher Bradley Clare It is further ORDERED that Defendant Collins' motion for summary judgment [dkt # 56] is GRANTED IN PART and DENIED IN PART. It is further ORDERED that counts I and II as to Defendant Collins only and counts III, IV, and V are DISMISSED WITH PREJUDICE. s/ Thomas L. Ludington United States District Judge Dated: December 22, 2006 End of Document Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.616 Page 27 of 42 Page 1 of 3 Harvey v. Jones Christopher Bradley Clare No Shepard’s Signal™ As of: July 15, 2016 10:09 AM EDT Harvey v. Jones Court of Appeals of Michigan March 31, 2009, Decided No. 280777 Reporter 2009 Mich. App. LEXIS 775; 2009 WL 839534 JULIA HARVEY, Plaintiff-Appellee, v ALICIA R. JONES, Defendant-Appellant. Notice: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS. Prior History: [*1] Oakland Circuit Court. LC No. 2007-080709-NO. Core Terms recall petition, school board member, summary disposition, immunity, school board meeting, elected, school board, log, web, executive authority Judges: Before: Wilder, P.J., and Meter and Servitto, JJ. Opinion PER CURIAM. Defendant appeals as of right from the trial court's order granting in part and denying in part her motion for summary disposition pursuant to MCR 2.116(C)(7) and (C)(8). We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E). Plaintiff and defendant were both elected members of the Oak Park School Board. Plaintiff filed this action for defamation, alleging that defendant falsely accused her of being "unprofessional and unfit" to be a school board member, using her school board position to secure special hiring privileges for her husband, using her school board position to obtain special education privileges for her daughter, and engaging in other illegal or unethical conduct. According to plaintiff's amended complaint, the defamatory statements were made at a televised school board meeting, in a Detroit Free Press web log, and in a recall petition that defendant filed against plaintiff in January 2007. Defendant moved for summary disposition under MCR 2.116(C)(7) and (8), arguing that plaintiff's claims related to the statements made at the school [*2] board meeting and in the Free Press web log were barred by governmental immunity under MCL 691.1407(5), because defendant was an elected official acting within the scope of her executive authority when she made the statements. Defendant also argued that she was entitled to summary disposition with respect to the statements made in the recall petition, because those statements were privileged statements concerning a public official that involved a matter of public concern. The trial court granted defendant's motion with respect to the statements made at the school board meeting and in the Free Press web log, but denied the motion with respect to the statements made in the recall petition. Regarding the latter statements, the court concluded that plaintiff sufficiently plead that the statements were false and made with malice and an intent to harass plaintiff to preclude summary disposition under MCR 2.116(C)(8). This Court reviews de novo a trial court's decision to grant or deny a motion for summary disposition. Cairns v City of East Lansing, 275 Mich App 102, 107; 738 NW2d 246 (2007). The applicability of governmental immunity is a question of law that Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.617 Page 28 of 42 Page 2 of 3 Harvey v. Jones Christopher Bradley Clare this Court also reviews de novo. [*3] Linton v Arenac Co Rd Comm, 273 Mich App 107, 112; 729 NW2d 883 (2006). Under the Governmental Tort Liability Act, MCL 691.1401 et seq., "[a] judge, a legislator, and the elective or highest appointive executive official of all levels of government are 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." MCL 691.1407(5). There is no intentional tort exception to the statute's grant of absolute immunity. American Transmissions, Inc v Attorney Gen, 454 Mich 135, 143; 560 NW2d 50 (1997). School board members are elected executive officials and, when acting within the scope of their authority, are entitled to the protection of absolute government immunity. Nalepa v Plymouth-Canton Community School Dist, 207 Mich App 580, 587-588; 525 NW2d 897 (1994), aff'd 450 Mich 934 (1995). However, local government officials "are not immune from tort liability for acts not within their executive authority." Marrocco v Randlett, 431 Mich 700, 710-711; 433 NW2d 68 (1988). The determination whether particular acts are within their authority depends on a number of factors, including [*4] the nature of the specific acts alleged, the position held by the official alleged to have performed the acts, the charter, ordinances, or other local law defining the official's authority, and the structure and allocation of powers in the particular level of government. [Id. at 711.] The present appeal concerns only defendant's statements in the recall petition. The trial court dismissed plaintiff's claims relating to defendant's statements at the school board meeting and in the Free Press web log, and plaintiff has not appealed the dismissal of those claims. Regarding the statements in the recall petition, defendant does not challenge the trial court's determination that summary disposition was not warranted on the basis that the statements were protected by privilege. Instead, defendant argues that plaintiff's claims arising from the statements in the recall petition are also barred by governmental immunity because she was acting within her executive authority as a school board member when she filed the recall petition. We conclude, however, that defendant expressly waived any claim that the statements in the recall petition were made in the scope of her authority as a school board [*5] member. At the May 16, 2007, hearing on defendant's motion, defendant's attorney stated: The third, the recall petition, we are not alleging that that was in the scope of her employment--I mean in the scope of her authority as a Board member. Rather, your Honor, and again I cited a case. The recall petition was, if it is a matter of public concern . . . . [I]n this determination of whether or not there is a privilege, there is a question for this Court to decide . . . . [Emphasis added.] At a second hearing on July 18, 2007, the following exchange occurred: THE COURT: Let me ask you, on the statements allegedly made in the recall petition, you're asserting qualified privilege because of the public nature of the issue. Defendant's counsel: That's correct. Defendant did not simply fail to argue that governmental immunity barred plaintiff's claims arising from the statements in the recall petition. Rather, defendant's attorney specifically stated that defendant was not taking the position that she was acting within the scope of her authority as a school board member when she filed the recall petition. Waiver, "the intentional relinquishment or abandonment of a known right," extinguishes any [*6] claim of error. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). "A party may not take a position in the trial court and then subsequently argue that the resultant action was error." Czymbor's Timber, Inc v City of Saginaw, 269 Mich App 551, 556; 711 NW2d 442 (2006), aff'd 478 Mich 348 (2007). Thus, defendant waived her present argument that she was acting within the scope of her authority as a school board member when she filed the recall petition. Even if defendant had not waived her argument, however, we would affirm the trial court's decision. Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.618 Page 29 of 42 Page 3 of 3 Harvey v. Jones Christopher Bradley Clare Defendant focuses on the content of the statements made in the recall petition, which she characterizes as "virtually the same" as those made at the school board meeting and in the Free Press web log, to argue that summary disposition should have similarly been granted with respect to the statements in the recall petition. However, defendant improperly ignores the different manners in which the communications were made. The critical inquiry is whether defendant was acting within the scope of her official authority as a school board member when making the statements. In determining whether an act is within an official's authority, "the [*7] nature of the specific acts alleged" must be considered. Marrocco, supra at 711. All of the challenged statements concerned alleged wrongdoing by plaintiff and plaintiff's alleged abuse of her position as a school board member. Defendant's statements at the school board meeting were made in the context of a motion to censure plaintiff. Those statements were made in defendant's capacity as a school board member at a duly convened meeting that defendant had a duty to attend and at which she was authorized to act. Defendant's statements in the Free Press web log were made in response to media inquiries concerning defendant's conduct on the school board. As such, they were protected under American Transmissions, supra at 144, which holds that an official is acting within his or her executive authority when responding to media questions or reports concerning the official's conduct in office. The scope of defendant's authority extended to freely expressing her concern about the conduct of other school board members at school board meetings and to responding to media reports about her conduct in office. However, defendant has not identified any statutory or bylaw provision, or other relevant [*8] authority, authorizing a school board member to file a recall petition against another school board member. The right to recall elected officials is granted by state constitution and statute to the voters of the state of Michigan. Const 1963, art 2, § 8; MCL 168.951; In re Wayne Co Election Comm, 150 Mich App 427, 437; 388 NW2d 707 (1986). Defendant acknowledged in her deposition that she was acting in part as a concerned citizen when she made the allegations in the recall petition, that she filed the petition against plaintiff as a matter of public concern, and that she was not authorized by the school board to file a recall petition against plaintiff. Further, bylaw 144.2 of the school board's bylaws provides that board members will "take no private action that will compromise the Board or administration." Because the right to recall elected officials is granted to all voters, defendant acknowledged that she was at least partially motivated to file the recall petition as a concerned citizen, the action publicly compromised another board member, and defendant was not specifically authorized by the school board to file the recall petition, the trial court did not err in denying defendant's [*9] motion for summary disposition with respect to the statements made in the recall petition. Affirmed. /s/ Kurtis T. Wilder /s/ Patrick M. Meter /s/ Deborah A. Servitto End of Document Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.619 Page 30 of 42 Page 1 of 6 DINOTO v. CITY OF WARREN Christopher Bradley Clare No Shepard’s Signal™ As of: July 15, 2016 10:10 AM EDT DINOTO v. CITY OF WARREN Court of Appeals of Michigan December 15, 1998, Decided No. 203417 Reporter 1998 Mich. App. LEXIS 962; 1998 WL 1988600 ANTHONY DINOTO, Plaintiff-Appellant, v CITY OF WARREN, RONALD L. BONKOWSKI, A. PHILLIP EASTER and WILLIAM J. KARPINSKI, Defendants-Appellees. Notice: [*1] IN ACCORDANCE WITH THE MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS. Prior History: Macomb Circuit Court. LC No. 96- 000111 CZ. Disposition: Affirmed. Core Terms summary disposition, defamation, negotiations, allegations, tortious interference, business relationship, defamatory, employees, immunity, malice, tape Case Summary Procedural Posture Plaintiff employee sought review of a decision of the Macomb Circuit Court (Michigan), which granted the motion for summary disposition of defendants, the employer and related others, regarding the employee's claims of defamation, defamation per se, and tortious interference with a business relationship. Overview The employee commenced an action against defendants. The employee's complaint alleged claims of defamation, defamation per se, and tortious interference with a business relationship. Defendants responded by filing a motion for summary disposition. The trial court granted the motion. The court affirmed the trial court's judgment. The court held (1) that the allegedly defamatory letter was not written with actual malice, as one of the related others represented the city and was therefore permitted to defame the employee by making statements to other employees whose duties interested them in the subject matter; (2) that the employee failed to demonstrate a genuine issue of material fact regarding whether the letter was protected by a qualified privilege, as the letter was circulated in good faith and only to other employees and union officials who had an interest in the communication; and (3) that the trial court properly granted summary disposition as to the employee's claim of tortious interference with a business relationship because the employee failed to raise a genuine issue of fact that overcame the qualified privilege. Outcome The court affirmed the trial court's grant of defendants' motion for summary disposition. LexisNexis® Headnotes Civil Procedure > Judgments > Summary Judgment > General Overview Civil Procedure > Appeals > Summary Judgment Review > General Overview Civil Procedure > Appeals > Summary Judgment Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.620 Page 31 of 42 Page 2 of 6 DINOTO v. CITY OF WARREN Christopher Bradley Clare Review > Standards of Review Civil Procedure > ... > Summary Judgment > Motions for Summary Judgment > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Torts > Intentional Torts > Defamation > Procedural Matters HN1 A motion for summary disposition under Mich. Ct. R. 2.116(C)(10) tests the factual support for a claim. The trial court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. The court reviews summary disposition decisions de novo to determine whether the prevailing party was entitled to judgment as a matter of law. In the court's review, the court must draw all reasonable inferences in the nonmoving party's favor. Torts > Intentional Torts > Defamation > General Overview Torts > ... > Defamation > Elements > General Overview HN2 The elements of a defamation claim are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication. A communication is defamatory if it tends to harm the reputation of another so as to lower that person in the estimation of the community or deter third persons from associating or dealing with that person. To show actual malice, the plaintiff must prove that the defendant made the statement with knowledge that it was false or with reckless disregard of the truth. A general allegation of malice is insufficient to establish a genuine issue of material fact. Banking Law > ... > Business & Corporate Compliance > Banking & Finance > Federal Credit Unions Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations Torts > ... > Defenses > Privileges > General Overview Torts > ... > Defenses > Privileges > Qualified Privileges HN3 An employer has the qualified privilege to defame an employee by making statements to other employees whose duties interest them in the subject matter. The elements of a qualified privilege are (1) good faith, (2) an interest to be upheld, (3) a statement limited in scope to this purpose, (4) a proper occasion, and (5) publication in a proper manner and to proper parties only. A plaintiff may overcome this privilege only by showing that the statement was made with actual malice, that is, knowledge of its falsity or reckless disregard of the truth. Qualifiedly privileged communications made in good faith do not lose their status if the content of the communication is indeed proved false. Torts > Business Torts > General Overview Torts > ... > Commercial Interference > Business Relationships > General Overview Torts > ... > Business Relationships > Intentional Interference > Defenses Torts > ... > Business Relationships > Intentional Interference > Elements Torts > ... > Commercial Interference > Prospective Advantage > General Overview HN4 The basic elements of tortious interference with a business relationship are the existence of a valid business relation or expectancy, knowledge of the relationship or expectancy on the part of the interferer, an intentional interference inducing or causing a breach or termination of the relationship or expectancy, and resultant damage to the party whose relationship has been disrupted. Tortious interference with business relationships may be Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.621 Page 32 of 42 Page 3 of 6 DINOTO v. CITY OF WARREN Christopher Bradley Clare caused by defamatory statements. However, as with defamation actions, where the conduct allegedly causing business interference is a defendant's utterance of negative statements concerning a plaintiff, privileged speech is a defense. Civil Procedure > ... > Summary Judgment > Opposing Materials > General Overview Torts > ... > Types of Damages > Property Damages > General Overview Torts > ... > Defenses > Privileges > Absolute Privileges Torts > Public Entity Liability > Immunities > General Overview Torts > Public Entity Liability > Immunities > Judicial Immunity Torts > Public Entity Liability > Immunities > Sovereign Immunity Torts > Public Entity Liability > Liability > General Overview HN5 Mich. Comp. Laws § 691.1407(5) (Mich. Stat. Ann. § 3.996(107)(5)) provides governmental immunity as follows: judges, legislators, and the elective or highest appointive executive officials of all levels of government are immune from tort liability for injuries to persons or damages to property whenever they are acting within the scope of their judicial, legislative, or executive authority. Lower level officials, employees, and agents are immune from tort liability only when they are (1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority, (2) acting in good faith, and (3) performing discretionary, as opposed to ministerial acts. Under the test, no individual immunity exists for ultra vires activities. By definition, ultra vires activities are those which are unauthorized and outside the scope of employment. Judges: Before: Murphy, P.J., and Fitzgerald and Gage, JJ. Opinion PER CURIAM. Plaintiff appeals as of right from the trial court's order granting defendants summary disposition regarding plaintiff's claims of defamation, defamation per se and tortious interference with a business relationship. We affirm. Plaintiff first contends that the trial court erred in granting defendant summary disposition when an issue of fact existed regarding whether defendant Easter's defamatory letter was written with actual malice. HN1 A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Marx v Dep't of Commerce, 220 Mich App 66, 70; 558 NW2d 460 (1996). The court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. This Court reviews [*2] summary disposition decisions de novo to determine whether the prevailing party was entitled to judgment as a matter of law. Id. In our review, we must draw all reasonable inferences in the nonmoving party's favor. Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995). HN2 The elements of a defamation claim are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication. DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 443-444; 566 NW2d 661 (1997). A communication is defamatory if it tends to harm the reputation of another so as to lower that person in the estimation of the community or deter third persons from associating or dealing with that person. Glazer v Lamkin, 201 Mich App 432, 438; 506 NW2d 570 (1993). To show actual malice, the plaintiff must prove that the defendant made the statement with knowledge that it was [*3] false or with reckless disregard of the truth. Id. A general allegation of malice is insufficient to establish a Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.622 Page 33 of 42 Page 4 of 6 DINOTO v. CITY OF WARREN Christopher Bradley Clare genuine issue of material fact. Id. At the time defendant Easter wrote the allegedly defamatory letter, plaintiff was employed by defendant City of Warren's fire department. HN3 An employer has the qualified privilege to defame an employee by making statements to other employees whose duties interest them in the subject matter. Gonyea v Motor Parts Federal Credit Union, 192 Mich App 74, 78-79; 480 NW2d 297 (1991). The elements of a qualified privilege are (1) good faith, (2) an interest to be upheld, (3) a statement limited in scope to this purpose, (4) a proper occasion, and (5) publication in a proper manner and to proper parties only. Id. at 79 (citing Bufalino v Maxon Bros, Inc, 368 Mich 140, 153; 117 NW2d 150 (1962).) Plaintiff may overcome this privilege only by showing that the statement was made with actual malice, that is, knowledge of its falsity or reckless disregard of the truth. Id. Qualifiedly privileged communications made in good faith do not lose their status if the content of the communication [*4] is indeed proved false. Merritt v Detroit Memorial Hosp, 81 Mich App 279, 287; 265 NW2d 124 (1978). Viewing the evidence in the light most favorable to plaintiff, we may assume that Easter's allegations that plaintiff tape recorded the January 5, 1995 meeting and that he was deceitful and not trustworthy for having done so, which allegations plaintiff denies, are untrue and defamatory, contrary to the trial court's determination. However, Easter represented the City of Warren, plaintiff's employer. Therefore, he was permitted to defame plaintiff, an employee, by making statements to other employees whose duties interested them in the subject matter. Plaintiff has failed to demonstrate a genuine issue of material fact regarding whether Easter's letter was protected by a qualified privilege. Easter sent the letter in his capacity as the director of the City of Warren's department of labor relations. Easter represented the city in collective bargaining negotiations with the unions of city employees. The January 9, 1995 letter addressed Easter's concerns regarding plaintiff's negotiation tactics and how they might affect the parties' attempts to work out [*5] a new contract between the city and Warren Professional Fire Fighters Union Local 1383. Easter limited his mailing of the letter to local 1383 union members and city officials and fire department employees who either attended the January 5, 1995 meeting or who had some responsibility or interest in these negotiations. Furthermore, there is no evidence that Easter acted in bad faith or knowingly made a false statement when he accused plaintiff of taping the contract negotiations meeting. Easter did not incorporate into his letter baseless accusations regarding plaintiff's conduct. An unnamed union official in attendance at the meeting informed Easter that plaintiff had taped the meeting, and the record indicates that there was a tape recorder at the meeting in the possession of union officials. Even though Easter was mistaken in his accusation, there is no evidence that he knowingly made a false statement about plaintiff. The mere fact that Easter chose to believe the person who informed him that plaintiff taped the meeting instead of accepting plaintiff's denial does not establish that Easter acted with malice. Merritt, supra. We also note that plaintiff's suggestion [*6] that we may infer malice on Easter's part in light of the city's "intentional campaign of harassment toward plaintiff" is without merit. These letters, sent to plaintiff by defendant city fire commissioner Karpinski and which catalogue various alleged employment problems of plaintiff during 1993 and 1994, are irrelevant to plaintiff's instant claim based on Easter's January 9, 1995 letter. Finally, although plaintiff argues that no privilege exists because the letters were improperly distributed without envelopes, plaintiff acknowledges that the letters were placed in individual mailboxes at city offices. In the absence of any allegation by plaintiff that anyone other than the intended recipients viewed the contents of Easter's letter from inside the individual mailboxes, we find that this method of distribution effectively limited dissemination of the letter to only proper parties. To the extent that plaintiff alleges that Easter distributed the letter to other individuals whose names do not appear on the letter, he has completely failed to provide any names or titles of such individuals in support of this allegation. Thus, because Easter circulated the letter in good faith and only [*7] to other city employees and union officials having an interest in the communication, the trial court properly granted Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.623 Page 34 of 42 Page 5 of 6 DINOTO v. CITY OF WARREN Christopher Bradley Clare defendants summary disposition pursuant to MCR 2.116(C)(10) regarding plaintiff's defamation claim. Plaintiff also argues that the court erred in granting summary disposition in favor of defendants on his claim of tortious interference with a business relationship. HN4 The basic elements of tortious interference with a business relationship are the existence of a valid business relation or expectancy, knowledge of the relationship or expectancy on the part of the interferer, an intentional interference inducing or causing a breach or termination of the relationship or expectancy, and resultant damage to the party whose relationship has been disrupted. Lakeshore Comm Hosp, Inc v Perry, 212 Mich App 396, 401; 538 NW2d 24 (1995). Tortious interference with business relationships may be caused by defamatory statements. Id. However, as with defamation actions, where the conduct allegedly causing business interference is a defendant's utterance of negative statements concerning a plaintiff, privileged speech is a defense. Id. Viewing the [*8] facts in plaintiff's favor, plaintiff apparently had business relationships or expectancies and defendants, including Easter, were aware of them. However, in light of our conclusion that Easter's allegations were privileged and that plaintiff failed to raise a genuine issue of fact overcoming this qualified privilege, the privilege defeats plaintiff's tortious interference action based on the January 9, 1995 letter. Id. Furthermore, plaintiff has failed to demonstrate with any evidence other than his mere allegations that the January 9, 1995 letter somehow resulted in his failure to be appointed as fire commissioner or reelected as union local president. City of Warren Mayor Mark Steenbergh stated in his affidavit that the allegations were not a factor when he appointed someone else for the position of fire commissioner. Plaintiff has not provided any evidence to the contrary. We also note that the reason plaintiff was not reelected president of his union was because he chose not to run for reelection. Plaintiff has provided no affidavits or other evidence from union members, or even the names of other members who stated that they would not vote for him because of Easter's allegations. [*9] Accordingly, the trial court properly granted defendants summary disposition regarding plaintiff's tortious interference claim. Finally, we believe that plaintiff's defamation and tortious interference claims are also barred by governmental immunity. Defendants raised this defense in their motion for summary disposition. Although the trial court recognized but failed to analyze this issue, we will briefly address it now. HN5 MCL 691.1407(5); MSA 3.996(107)(5) provides governmental immunity as follows: Judges, legislators, and the elective or highest appointive executive officials of all levels of government are immune from tort liability for injuries to persons or damages to property whenever they are acting within the scope of their judicial, legislative, or executive authority. Lower level officials, employees, and agents are immune from tort liability only when they are (1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority, (2) acting in good faith, and (3) performing discretionary, as opposed to ministerial acts. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633-634; [*10] 363 NW2d 641 (1984). Under this test, no individual immunity exists for ultra vires activities. Id. at 634. By definition, ultra vires activities are those which are unauthorized and outside the scope of employment. Id. at 631. Easter, as director of labor relations for the City of Warren, was clearly acting within the scope of his authority as a high-level appointed department head when he wrote the January 9, 1995 letter to plaintiff accusing him of tape recording a contract negotiations meeting without defendants' knowledge. In his reply to defendants' motion for summary disposition, plaintiff conceded that Easter wrote the letter within his authority as the city's labor relations director. It was Easter's job to negotiate labor issues for the City of Warren, and the letter to plaintiff, who was negotiating on behalf of his firefighters' union, involved those Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.624 Page 35 of 42 Page 6 of 6 DINOTO v. CITY OF WARREN Christopher Bradley Clare negotiations. Even if defendants had intended, as plaintiff alleges, to defame plaintiff or interfere with his business relationships by distributing the letter, that is not a factor in the determination. American Transmissions, Inc v Attorney General, 454 Mich 135, 143-144; 560 NW2d 50 (1997). [*11] Therefore, because our review of the pleadings and documentary evidence reveals no facts justifying an exception to governmental immunity, we conclude that summary disposition would also have been properly granted pursuant to MCR 2.116(C)(7). Wallace v Recorder's Court of Detroit, 207 Mich App 443, 447; 525 NW2d 481 (1994). Affirmed. /s/ William B. Murphy /s/ E. Thomas Fitzgerald /s/ Hilda R. Gage End of Document Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.625 Page 36 of 42 Page 1 of 6 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare Cited As of: July 15, 2016 3:09 PM EDT Ungaretti & Harris, LLP v. ServiceMaster Co. United States District Court for the Northern District of Illinois, Eastern Division May 27, 2010, Decided; May 27, 2010, Filed No. 09 C 4994 Reporter 2010 U.S. Dist. LEXIS 53322; 2010 WL 2167532 , Plaintiff, v. THE SERVICEMASTER COMPANY, Defendant. Core Terms rebate, alleges, motion to dismiss, satisfaction, bills, legal fees, counterclaim, outstanding, misrepresentation, promises, matters, parties, absolute privilege, scheme to defraud, express contract, promissory fraud, services Counsel: [*1] For Ungaretti & Harris, LLP, Plaintiff: Kamau A Coar, Michael James Philippi, Ungaretti & Harris LLP, Chicago, IL. For The ServiceMaster Company, Defendant, Counter Claimant: David A. Rammelt, LEAD ATTORNEY, Dawn Michele Beery, K&L Gates LLP, Chicago, IL; Beata Guzik, Bell, Boyd & Lloyd, PLLC, Washington, DC. Judges: John F. Grady, United States District Judge. Opinion by: John F. Grady Opinion MEMORANDUM OPINION Before the court are two motions: (1) defendant's motion to dismiss Counts II, III, and IV of the complaint; and (2) plaintiff's motion to dismiss defendant's counterclaim. For the following reasons, defendant's motion is granted, and plaintiff's motion is granted in part and denied in part. BACKGROUND Ungaretti & Harris, LLP ("Ungaretti"), a law firm, brings this action for outstanding legal fees and "fraudulently obtained rebated legal fees" against a former client, The ServiceMaster Company ("Servicemaster"). From 2005 to 2009, Ungaretti represented Servicemaster and its related companies in more than one hundred lawsuits that primarily involved employment-law issues. According to Ungaretti, "not a single" case it handled "resulted in a verdict adverse to Servicemaster or its subsidiaries and virtually every [*2] case was resolved on terms favorable to Servicemaster." (Compl. P 2.) The parties had a good business relationship for about a year and a half. In the fall of 2007, however, Servicemaster experienced a management change and budget-cutting directives, and its payments to Ungaretti "began to falter." (Id. PP 16- 17.) Servicemaster stopped paying Ungaretti's bills in full and began to negotiate reduced bills and credits, claiming that certain charges were excessive "without any review of the actual task or the complexities of the work." (Id. P 20.) Ungaretti alleges that it nonetheless continued to "faithfully and fully" provide legal services to Servicemaster. (Id. P 19.) In 2007 Servicemaster also instituted a "preferred counsel" program, also known as a "primary firm network," pursuant to which a limited number of law firms would be eligible to be engaged to provide legal services. Plaintiff explains that these programs "are used by many large companies like Servicemaster to be more efficient with outside Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.626 Page 37 of 42 Page 2 of 6 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare counsel dollars by limiting the number of firms eligible for their work and demanding steep discounts or credits from those firms in consideration for being chosen to be in the network." [*3] (Id. P 3.) Servicemaster chose Ungaretti as one of its preferred law firms. In response to "explicit guarantees" from individuals in Servicemaster's legal department that Servicemaster would continue to refer legal matters to Ungaretti (which Ungaretti alleges were false promises) and in response to Servicemaster's repeated requests for rebates, Ungaretti provided rebates and credits to Servicemaster totaling $ 128,015.38. (Id. P 4.) Despite its acceptance of the rebates, Servicemaster thereafter terminated its relationship with Ungaretti and failed to engage Ungaretti in any additional matters. Servicemaster also refused to pay $ 284,259.47 in outstanding legal fees that were incurred, for the most part, in the defense of two matters described in the complaint. Ungaretti has filed a four-count complaint for breach of contract and of the covenant of good faith and fair dealing (Count I); quantum meruit (Count II); common-law fraud (Count III); and unjust enrichment (Count IV). It seeks to recover $ 284,259.47 in outstanding fees and $ 128,015.38 in rebates that were allegedly fraudulently obtained, plus interest, punitive damages, costs, and reasonable attorney's fees. Servicemaster has [*4] filed a two-count counterclaim. In Count I, Servicemaster alleges that Ungaretti breached its contract with Servicemaster, specifically Ungaretti's guarantee of client satisfaction, by refusing to reduce its bills. Count II is a claim that Ungaretti breached its fiduciary duty to Servicemaster by disclosing, in the complaint in this lawsuit, confidential information relating to its representation of Servicemaster that is not necessary to recovering its fees. Servicemaster moves to dismiss Counts II, III, and IV of the complaint. Ungaretti moves to dismiss the counterclaim. DISCUSSION The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed. 2004). Under federal notice- pleading standards, a complaint need not contain "detailed factual allegations," but it must have more than mere "labels and conclusions." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A plaintiff is obligated to provide the factual grounds of his entitlement to relief, and a "formulaic recitation" of the elements of a claim will not do. Id. The complaint [*5] must contain sufficient facts to raise a plaintiff's right to relief above a "speculative" level, id. at 555, and the claim must be "plausible on its face," id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, U.S. , , 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). When evaluating a motion to dismiss a complaint, we must accept as true all factual allegations in the complaint, but not its legal conclusions. Id. at 1949-50. A. Servicemaster's Motion to Dismiss Counts II, III, and IV 1. Quantum Meruit and Unjust Enrichment (Counts II and IV) Servicemaster contends that Ungaretti's quasi- contractual claims should be dismissed because the relationship between the parties was governed by an express contract, citing, inter alia, our opinion in Song v. PIL, L.L.C., 640 F. Supp. 2d 1011 (N.D. Ill. 2009). Ungaretti responds that the claims are proper alternative theories of recovery. "An express contract is a contract in which the terms of the contract or agreement are openly and fully uttered and avowed at the time of [*6] the making." Impo Glazetile, Inc. v. Florida Tile Indus., Inc., No. 92 C 6930, 1994 U.S. Dist. LEXIS 15975, 1994 WL 630550, at *4 (N.D. Ill. Nov. 8, 1994) (internal quotation marks omitted). Our decision in Song was based on the principle that a plaintiff may not bring quasi-contract claims where there is an express contract governing the parties' relationship. Song had alleged, and the defendants Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.627 Page 38 of 42 Page 3 of 6 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare did not dispute, the existence of an express contract. The instant case is distinguishable from Song because Ungaretti has not alleged that the agreement between the parties was an express contract, and indeed, it appears that the parties do not agree on the terms of their agreement. Therefore, plaintiff will be permitted to proceed on its quasi-contractual claims. However, it has not properly alleged those claims in the alternative because Counts II and IV incorporate by reference its contradictory prior allegation of an agreement between the parties. Therefore, Counts II and IV will be dismissed without prejudice, and Ungaretti will be given leave to file an amended complaint that does not incorporate the contradictory allegation in those claims. 2. Common-Law Fraud (Count III) In Count III, Ungaretti alleges that Servicemaster [*7] "made several misleading material omissions and/or false statements of material fact regarding the $ 100,000 Rebate given by [Ungaretti] on its outstanding bills for legal fees." (Compl. P 76.) It is further alleged: 77. For months in late 2007 and early 2008, Servicemaster requested a rebate in the amount of $ 100,000 for amounts owed to [Ungaretti] for legal services previously performed. 78. On multiple occasions, [Ungaretti] expressly conditioned any rebate . . . . on Servicemaster sending future legal work to [Ungaretti]. 79. On several occasions in late 2007 and early 2008, Servicemaster acknowledged its understanding and acceptance of [Ungaretti's] condition for giving the Rebate, including but not limited to an in-person meeting in Syracuse, New York with representatives of [Ungaretti] in April 2008. 80. At the time that Servicemaster made these statements that it would send future legal work to [Ungaretti], it knew or should have known that the statements were false. 81. At the time that Servicemaster made these statements, its intent was to induce [Ungaretti] to rebate its outstanding bills by $ 100,000. 82. [Ungaretti] relied upon the purported truth of Servicemaster's statements [*8] regarding the Rebate and, as a result of this reliance, reduced the amount of its outstanding bills owed by Servicemaster by $ 100,000. 83. [Ungaretti] relied upon the purported truth of Servicemaster's statements regarding the Rebate and, as a result of this reliance, reduced the amount of another outstanding bill owed by Servicemaster by $ 28,015.38 . . . . 84. As a result of [its] reliance upon Servicemaster's false statements of material fact regarding the Rebate, [Ungaretti] has suffered damages in excess of $ 128,015.38. (Id. PP 77-84.) Servicemaster seeks dismissal of Count III on three grounds. The first is that the claim is not pled with sufficient particularity. Because plaintiff alleges fraud, the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) apply. Rule 9(b) requires a plaintiff to plead with particularity the factual bases for averments of fraud, including "the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir. 2006); see also DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990) [*9] (stating that the plaintiff must plead the who, what, when, where, and how of the alleged fraud). Servicemaster's second argument for dismissal of the fraud claim is that Ungaretti's claim amounts to promissory fraud, which is not actionable unless the alleged misrepresentations were part of a scheme to defraud, and a scheme is not alleged. Ungaretti responds that it has adequately alleged such a scheme in that the "primary firm network was the scheme" and the "false promises of future work were the scheme" by which it was defrauded by Servicemaster. (Pl.'s Opp'n at 9.) Defendant correctly states that promissory fraud, which involves false statements of intent regarding future conduct, is not actionable under Illinois law unless the plaintiff alleges that the statements were part of a scheme to defraud. Association Benefit Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.628 Page 39 of 42 Page 4 of 6 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare Servs., Inc. v. Caremark Rx, Inc., 493 F.3d 841, 853 (7th Cir. 2007). "The scheme exception applies where a party makes a promise of performance, not intending to keep the promise but intending for another party to rely on it, and where the other party relies on it to his detriment." Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir. 1992) (internal quotation marks omitted). [*10] On the distinction between a mere promissory fraud and a scheme of promissory fraud, the Seventh Circuit has observed: The distinction certainly is unsatisfactory, but it reflects an understandable ambivalence, albeit one shared by few other states, about allowing suits to be based on nothing more than an allegation of a fraudulent promise. There is a risk of turning every breach of contract suit into a fraud suit, of circumventing the limitation that the doctrine of consideration is supposed however ineptly to place on making all promises legally enforceable, and of thwarting the rule that denies the award of punitive damages for breach of contract. A great many promises belong to the realm of puffery, bragging, "mere words," and casual bonhomie, rather than to that of serious commitment. They are not intended to and ordinarily do not induce reliance; a healthy skepticism is a better protection against being fooled by them than the costly remedies of the law. In any event it is not our proper role as a federal court in a diversity suit to read "scheme" out of Illinois law; we must give it some meaning. Our best interpretation is that promissory fraud is actionable only if it either [*11] is particularly egregious or, what may amount to the same thing, it is embedded in a larger pattern of deceptions or enticements that reasonably induces reliance and against which the law ought to provide a remedy. Desnick v. American Broad. Cos., 44 F.3d 1345, 1354 (7th Cir. 1995). Although Count III alleges that Servicemaster made "several misleading material omissions and/or false statements of material fact," P 76, none are alleged with sufficient particularity. The closest plaintiff comes is paragraph 51, which states: "During an in- person conversation in Syracuse, New York in April 2008, [Timothy] Harrison 1 confirmed his understanding on behalf of Servicemaster that it would send future legal work assignments to [Ungaretti] in return for the $ 100,000 rebate Servicemaster requested." We do not agree with Servicemaster's contention that plaintiff must specify "the type of work at issue" or when the work would be assigned; the content of the alleged promise is adequately presented. But we do agree that plaintiff must specify the identity of the person to whom the misrepresentation was communicated. See, e.g., Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990). Clearly, this information [*12] is available to the plaintiff. Plaintiff argues that with regard to the $ 28,015.38 rebate, it has sufficiently alleged fraud with particularity by virtue of the allegation that Harrison "threatened to remove" Ungaretti from a particular matter unless Ungaretti "consented to the requested rebate." (Pl.'s Opp'n at 9-10 (citing Compl. P 59).) But plaintiff fails to explain how this threat constituted any sort of misrepresentation. Moreover, Ungaretti has not alleged that Servicemaster engaged in a scheme to defraud. To satisfy the "scheme" requirement, plaintiff must plead a pattern of deceptions. Desnick, 44 F.3d at 1354. Ungaretti has failed to plead even one fraudulent act with specificity, much less a larger pattern of deceptions. Contrary to the argument in its brief, Ungaretti does not allege in the complaint that Servicemaster's "preferred counsel" program was a scheme to defraud (or explain how the program constituted a pattern of deceptions), nor is a pattern of false promises of future work alleged. Servicemaster's third argument for dismissing Count III is that any reliance by Ungaretti [*13] on a letter of January 24, 2008 from Servicemaster, quoted in part in paragraph 49 of the complaint, was unreasonable. Paragraph 49 states: Harrison made affirmative representations that he and Servicemaster understood and accepted [Ungaretti's condition that Servicemaster agree that Ungaretti would receive future work 1 According to paragraph 46 of the complaint, Harrison is "Senior Counsel" for Servicemaster. Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.629 Page 40 of 42 Page 5 of 6 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare assignments] in return for the rebate Servicemaster was seeking. In a letter sent on January 24, 2008, representatives from Servicemaster wrote: The Servicemaster legal department is also in the process of implementing a Preferred Counsel Program. Some of the selection criteria for the Preferred Counsel Program include agreeing to abide by the Guidelines and offering Servicemaster a reasonable discount on your base billing rates. . . . If you are interested in participating in the program, please respond by February 6, 2008 . . . with the type[] of matters that you would propose handling for Servicemaster, your current billing rates, any existing discount you[] provide us, whether any further discount will be available to us (including based on any volume threshold), the name of any e-billing vendors you currently use, and any other information you want to submit for consideration. (Compl. [*14] P 49.) A copy of the letter is attached as Exhibit 2 to the complaint. Ungaretti asserts that the letter is "evidence of Servicemaster's scheme to defraud" it. (Pl.'s Opp'n at 12.) We disagree. The letter cannot reasonably be construed to be any sort of representation that Ungaretti would receive future work from Servicemaster, or even a representation that Ungaretti would be chosen to participate in the preferred counsel program. The letter is simply an invitation to submit an application, so to speak, for Servicemaster's consideration. Because plaintiff has failed to adequately plead its fraud claim, Count III will be dismissed. Conceivably, plaintiff will be able to state a fraud claim, so the dismissal will be without prejudice. B. Ungaretti's Motion to Dismiss the Counterclaim 1. Breach of Contract (Count I) In Count I of its counterclaim, Servicemaster alleges that Ungaretti breached the "written guarantee of client satisfaction" that appears on Ungaretti's web site. The guarantee states: WE GUARANTEE THAT AS A CLIENT OF UNGARETTI & HARRIS YOU WILL RECEIVE COST-EFFECTIVE LEGAL SERVICES DELIVERED IN A TIMELY MANNER. WE PROMISE TO INVOLVE YOU IN STRATEGIC DECISIONS AND TO COMMUNICATE [*15] WITH YOU REGULARLY. WE CANNOT GUARANTEE OUTCOMES, BUT WE DO GUARANTEE YOUR SATISFACTION WITH OUR SERVICE. IF AT ANY TIME UNGARETTI & HARRIS DOES NOT PERFORM TO YOUR SATISFACTION, WE ASK THAT YOU INFORM US PROMPTLY. WE WILL THEN RESOLVE THE ISSUE TO YOUR SATISFACTION, EVEN IF IT MEANS REDUCING OUR LEGAL FEES. (Countercl., Ex. A.) Servicemaster alleges that it was not satisfied with Ungaretti's services in connection with the two matters discussed in Ungaretti's complaint, that it advised Ungaretti of its dissatisfaction in that the legal fees charged in connection with those matters were two to three times the budgeted amounts, and that Ungaretti refused to reduce its bills. (Countercl. PP 34-35.) According to Servicemaster, Ungaretti's refusal to reduce its legal bills in the amount requested by Servicemaster was a breach of Ungaretti's guarantee of client satisfaction and therefore a breach of contract. Ungaretti argues that Count I should be dismissed because the guarantee was a "marketing tool" and too vague to constitute an enforceable contract. We cannot accept Ungaretti's argument that the guarantee was a mere "marketing tool." It is true that there are many terms in the guarantee [*16] that are too vague to be enforceable, such "cost-effective," "timely," and "strategic decisions." But the guarantee clearly promises that if Ungaretti does not perform to a client's satisfaction, Ungaretti will resolve the issue to the client's satisfaction, even if it means reducing legal fees. This is an enforceable promise. Of course, the law would interpret this provision of the guarantee to contemplate reasonable and actual dissatisfaction; the law always implies reasonableness when interpreting contracts. With that limitation, we see nothing vague about the guarantee of satisfaction. Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.630 Page 41 of 42 Page 6 of 6 Ungaretti & Harris, LLP v. ServiceMaster Co. Christopher Bradley Clare Accordingly, Ungaretti's motion to dismiss Count I will be denied. 2. Breach of Fiduciary Duty (Count II) Servicemaster alleges in Count II that Ungaretti has an ongoing fiduciary duty to maintain the confidences of Servicemaster, its former client, and that Ungaretti breached this duty by disclosing, in the instant complaint, confidential information regarding Servicemaster's litigation policies and strategies. Ungaretti contends that Servicemaster fails to state a claim because it has not adequately alleged that it was harmed by the breach. The counterclaim states: "Servicemaster has been damaged [*17] by [Ungaretti's] breach of fiduciary duty. Among other things, Servicemaster believes that it has been prejudiced as a consequence of [Ungaretti's] disclosure of Servicemaster's litigation policies, strategies and internal communications." (Countercl. P 45.) Servicemaster responds that it need not allege more. Pursuant to Iqbal, Servicemaster must allege facts from which we can draw the reasonable inference that it was harmed. 129 S. Ct. at 1949 (stating that federal pleading standards demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). The vague allegation that Servicemaster "believes that it has been prejudiced" is insufficient, and there are no facts alleged from which we could infer that it suffered damage as a result of the alleged breach. There is another reason (not raised by Ungaretti) why Count II fails to state a claim: absolute privilege. The doctrine of absolute privilege provides complete immunity from civil liability for statements made in judicial proceedings, even if the statements are made with malice, because public policy favors the free flow of information in conjunction with those proceedings. Jurgensen v. Haslinger, 295 Ill. App. 3d 139, 692 N.E.2d 347, 349-50, 229 Ill. Dec. 574 (Ill. App. Ct. 1998). [*18] The privilege covers formal pleadings. Barakat v. Matz, 271 Ill. App. 3d 662, 648 N.E.2d 1033, 1039, 208 Ill. Dec. 111 (Ill. App. Ct. 1995). Usually the doctrine arises in the context of defamation actions, but it has broader application. See, e.g., Jurgensen, 692 N.E.2d at 349-50 (holding that absolute privilege applied to a claim for tortious interference with an expectancy under a will); McNall v. Frus, 336 Ill. App. 3d 904, 784 N.E.2d 238, 240, 271 Ill. Dec. 20 (Ill. App. Ct. 2002) (holding that absolute privilege applied to a negligence claim). Because Count II is based on the statements made by Ungaretti in its pleading, the doctrine of absolute privilege is applicable. CONCLUSION For the foregoing reasons, defendant's motion to dismiss Counts II, III, and IV of the complaint [17] is granted. Counts II, III, and IV of the complaint are dismissed without prejudice, and plaintiff is given leave to file an amended complaint by June 11, 2010. Plaintiff's motion to dismiss defendant's counterclaim [21] is granted as to Count II, which is dismissed with prejudice, and denied as to Count I. The stay of discovery currently in place is hereby lifted. Discovery is to proceed forthwith. DATE: May 27, 2010 ENTER: /s/ John F. Grady John F. Grady, United States District Judge End of Document Case 1:16-cv-00636-GJQ-PJG ECF No. 17-4 filed 07/15/16 PageID.631 Page 42 of 42