Opinion
Case No. 5:03-CV-165
May 14, 2004
ORDER
In accordance with the Opinion filed this day,
IT IS HEREBY ORDERED that Plaintiffs' Withdrawal of Counts V and VI (Dkt. No. 38) is GRANTED. IT IS FURTHER ORDERED that Counts V and VI of Plaintiffs' Complaint are hereby WITHDRAWN. IT IS FURTHER ORDERED that Plaintiffs' Motion for Summary Judgment (Dkt. No. 26) is DENIED.
OPINION
This matter is before the Court on Plaintiffs' Withdrawal of Counts V and VI of Complaint and Plaintiffs' Motion for Summary Judgment. Plaintiffs request the Court withdraw Counts V and VI of their Complaint but grant them Summary Judgment with respect to liability on the remainder of their claims. For the reasons which follow, Plaintiffs' Withdrawal will be granted, but their Motion for Summary Judgment will be denied.I. Facts and Procedural History
The following statement of facts is a representation of the factual record interpreted in a light most favorable to Defendants, who are the non-moving party in this matter. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiffs are owners of property at 16 Pickford Avenue, Emmett Township, Calhoun County, Michigan. On January 7, 2003, a Notice of Dangerous Building was issued with respect to this property by the Building Inspector for Defendant Charter Township of Emmett ("Emmett Township"). A hearing was held on this matter on February 4, 2003, at which the hearing officer ruled that Plaintiffs should be given thirty days to show ownership for the property, secure all the buildings, and have an engineer assess the buildings. The hearing officer then issued a Dangerous Building Order, which stated the following:
The building or structure is determined to be a dangerous building and is ordered to be demolished, otherwise made safe or properly maintained. Specifically, the following steps shall be taken: WITHIN 30 DAYS, SECURE BLDG., SHOW GAME PLAN TO STEVE DULLER FOR ENGINEER TO REVIEW BLDG.
(Defs.' Resp., Ex. B).
On February 26, 2003, Plaintiff Roger Eaton sent a letter to the hearing officer asking that he be relieved of the requirement that the property be assessed by an engineer and requesting additional time beyond the March 4, 2003 deadline to repair the buildings and clean up the property. The hearing officer granted him the additional time but refused to relieve him of the requirement of an engineer's assessment. Eaton then secured the building, but did not hire an engineer because he believed he could make the assessment himself.
Upon realizing that Plaintiffs were not complying with the requirements of the Dangerous Building Order, Emmett Township issued another Notice of Dangerous Building and served it upon Plaintiffs. This statement said in part:
This is to further notify you that a hearing shall be held on the question of whether or not the building or structure at the address listed above shall be demolished or otherwise made safe, or properly maintained. The hearing shall take place on Thursday, April 10, 2003 at 7:00 p.m. The meeting will be held at the former Wattles Park Jr. High Building, 201 Crosby Dr., Emmett Township. Battle Creek. MI. At the time of the hearing, you shall have the opportunity to show cause why the building should not be demolished or otherwise made safe. The Township Board of Trustees shall either approve, disapprove, or modify the order for demolition of making safe of the building or structure at this hearing.
(Defs.' Ex. D) (emphasis in original). As stated in the notice, Emmett Township met on April 10, 2003. Plaintiffs Roger and David Eaton and their attorney Kenneth Struble attended this meeting, where they informed Emmett Township that the new owners of the property were in the process of cleaning the buildings out and that it would take time to bring the buildings into compliance. Defendant James Demarest said he wanted to work with Plaintiffs but had a responsibility to protect other residents. Emmett Township then passed a motion seeking requests for proposals for demolition of the property located at 16 Pickford Street, to be ready for review at the June Board meeting.
Plaintiffs left the meeting with the impression that they would have time to clean and repair the property. They began removing trash from the premises, secured the buildings, and began to repair the buildings. On June 12, 2003, however, the Township Board approved a bid by Defendant Boles Excavating to demolish the buildings on Plaintiffs' property for $13,000. On July 7, Struble called Demarest and asked for additional time so that Plaintiffs could complete a pending sale of the property. Plaintiff Roger Eaton faxed a letter to Demarest threatening legal action against Emmett Township if they proceeded with the demolition.
On July 25, 2003, Boles Excavating began their demolition of the buildings on Plaintiffs' property. Roger Eaton contacted Mark Boles, President of Boles Excavating, and told him there had been some mistake. He told Boles he had called the police, and he asked Boles for additional time to remove his personal property from the buildings. Eaton then left, and Boles stopped work temporarily to contact officials at Emmett Township, who told him to complete the project. Eaton never returned to the property, and Boles was not given any authorization to stop working on the demolition. Boles Excavating continued its demolition, which ended on August 11, 2003. Plaintiffs filed this suit on October 23, 2003 against Boles, Emmett Township, and the individual members of the Emmett Township Board of Trustees ("Township Trustees") alleging violations of the United States Constitution under 42 U.S.C. § 1983 by Boles, Emmett Township, and the Township Trustees and trespass and conversion by Boles.
On March 29, 2004, Mark Boles was terminated as a Defendant and Boles Excavating and Topsoil Corp. was added as a Defendant.
On March 31, 2004, Plaintiffs filed a Notice of Withdrawal of Counts V and VI of the Complaint, which alleged violations of the Michigan State Constitution by Emmett Township and trespass by the Township Trustees. Because Defendants responded they have no objection to this withdrawal, these claims will be dismissed. The Court now turns to Plaintiffs' Motion for Sumary Judgment.
II. Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact. The party moving for summary judgment bears the initial burden of specifying the basis on which summary judgment should be granted and of identifying portions of the record which demonstrate the absence of a genuine issue of material fact. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Once this initial burden is met, the non-moving party has the burden of presenting specific facts, supported by the record, showing a genuine issue of material fact. Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 205 (6th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Courts rarely grant summary judgment in favor of plaintiffs because plaintiffs bear the burden of persuasion at trial. 11 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 56.03 (2004). In order to prevail on a motion for summary judgment, the plaintiff must show "that no reasonable factfinder at trial could fail to regard the claimant as having discharged its preponderance of the evidence burden." Id. As a result, cases in which courts have granted summary judgment to plaintiffs are rare. Id.
III. Analysis
Plaintiffs argue they can demonstrate Defendants' liability with respect to all six counts of their complaint. The Court will examine whether they have met their burden with respect to each of these counts in turn.
A. Title 42 U.S.C. § 1983: Counts I. II. and IV
Plaintiffs allege Defendants Emmett Township, the Township Trustees, and Boles Excavating violated their Constitutional rights under 42 U.S.C. § 1983, which prohibits any person acting "under color of any statute, ordinance, regulation, custom, or usage, of any State" from depriving any United States citizen "of any rights, privileges, or immunities secured by the Constitution and laws." In order to prevail on a claim brought under this statute, a plaintiff must show both that he has been deprived of a right secured by the Constitution and that this deprivation was caused by defendants acting under color of state law. Moore v. City of Paducah, 890 F.2d 831, 833-34 (6th Cir. 1989).
Plaintiffs allege Defendants violated their Fifth Amendment rights under § 1983 by depriving them of property without due process of law. In order to prevail on this claim, Plaintiffs must show they were not notified of the impending demolition of their property. This fact remains in dispute because Defendants have presented at least some evidence that Plaintiffs were given notice that the property would be demolished. Therefore, Plaintiffs are not entitled to summary judgment on their claims brought under 42 U.S.C. § 1983.
B. Count III: Trespass and Conversion
Plaintiffs allege Defendant Boles Excavating committed trespass and conversion by "coming on Plaintiff's property at 16 Pickford Street unlawfully against the rights of plaintiffs, changing the locks on the six buildings to exclude plaintiffs from their own property, taking all of [plaintiffs'] machinery, business equipment and business inventory and then demolishing the six buildings." (Compl., p. 9).
Trespass is defined as an "unauthorized intrusion upon the private premises of another." Giddings v. Rogalewski, 158 N.W. 951, 953 (Mich. 1916). Conversion is a "distinct act of dominion wrongfully exerted over another's personal property." Trail Clinic, P.C. v. Block, 319 N.W.2d 638, 640 (Mich.Ct.App. 1982). Defendant claims it is not liable for either trespass or conversion because it was authorized by Emmett Township to enter Plaintiffs' property, and because it did not remove any of Plaintiffs' property. Plaintiffs have not contradicted these claims beyond material dispute because they have not proven that Defendant's actions were unauthorized and have not identified any personal property that was taken. Therefore, Plaintiffs are not entitled to summary judgment on their claims of trespass and conversion.
In their Responses to Plaintiffs' Motion for Summary Judgment, Defendant Boles and the Township Defendants each ask the court to enter summary judgment in their favor. However, these responses were not titled as Motions for Summary Judgment. Because neither the Court nor Plaintiffs were notified that Defendants would move for summary judgment in their responses, the Court will not treat Defendants' request as a motion and will not rule on the issue of whether Defendants are entitled to summary judgment.
IV. Conclusion
The Court will dismiss Counts V and VI of the Complaint pursuant to Plaintiffs' Withdrawal, which is unopposed by Defendants. Plaintiffs have not demonstrated that there is no genuine issue of material fact with respect to Defendants' liability in this case. Therefore, the Court will deny their Motion for Summary Judgment. An Order shall be issued consistent with this Opinion.