David Raub, et al v. Moon Lake Property Owners', et al

Filing

OPINION filed : AFFIRMED. Decision not for publication. Richard F. Suhrheinrich, Richard A Griffin, and Amul R. Thapar (AUTHORING), Circuit Judges. [17-1564, 17-2498, 18-1085]

Case: 17-1564

Document: 43-2

Filed: 04/13/2018

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0195n.06
Case Nos. 17-1564/17-2498/18-1085
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
DAVID RAUB; WILLIAM RAUB,
Plaintiffs-Appellants,
v.
MOON LAKE PROPERTY OWNERS’
ASSOCIATION; GREENWOOD
TOWNSHIP; THOMAS MCCAULEY;
LINDA ARGUE; JAMES HAVRILLA;
FRED LINDSEY; LARRY MATHIAS,
Defendants-Appellees.

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Apr 13, 2018
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

BEFORE: SUHRHEINRICH, GRIFFIN, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. David and William Raub own two plots of land in Moon Lake
Resort, a private subdivision in northern Michigan. Over ten years ago, they accused the
property owners’ association of building a pool that does not comply with the Americans with
Disabilities Act. Now they claim that the property owners’ association, the town, and the county
are engaged in a conspiracy to retaliate against them. The problem for the Raubs, however, is
that they already litigated their claims in state court or could have raised them at that time. The
district court thus summarily dismissed their case and ordered them to pay attorneys’ fees. We
now affirm.

Case: 17-1564

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Case Nos. 17-1564/17-2498/18-1085
David Raub, et al. v. Moon Lake Prop. Owners’ Ass’n, et al.
Res Judicata. The Raubs did not contest the merits of the defendants’ res judicata
argument in the district court and have thus forfeited their right to do so on appeal. Scottsdale
Ins. Co. v. Flowers, 513 F.3d 546, 552–53 (6th Cir. 2008). So instead, they argue that the
defendants should have raised res judicata through Rule 12(b)(6) or Rule 12(c) when the Raubs
filed suit rather than waiting until summary judgment.
We disagree.

Defendants are allowed to raise res judicata at summary judgment,

especially when the defense would not have been effective at the time the plaintiff filed suit. See
Westwood Chem. Co. v. Kulick, 656 F.2d 1224, 1227–28 (6th Cir. 1981). Such was the case
here, since two of the cases that precluded the Raubs’ claims did not reach a final decision until
months after the Raubs filed their complaint. See Richards v. Tibaldi, 726 N.W.2d 770, 776
(Mich. Ct. App. 2006) (res judicata defense is not effective until preclusive lawsuit becomes
final); see also Heyliger v. State Univ. & Cmty. Coll. Sys. of Tenn., 126 F.3d 849, 851–52 (6th
Cir. 1997) (holding that federal court should apply state law to determine preclusive effect of
prior state-court judgment). It was thus entirely permissible for the defendants to raise res
judicata when they moved for summary judgment. Westwood, 656 F.2d at 1227–28. And the
defendants’ motions for summary judgment should not have come as a surprise to the Raubs,
since each defendant listed res judicata as an affirmative defense and referenced the pending
state cases in their answers. Accordingly, the district court did not err in dismissing the Raubs’
suit.
Discovery. The Raubs also argue that the district court improperly limited discovery
when it granted the defendants’ motions for protective orders. The Raubs point out that the
defendants filed these motions late, and that the protective orders prevented the Raubs from
accessing almost all of the electronically stored information they requested. Courts of appeals do

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Case Nos. 17-1564/17-2498/18-1085
David Raub, et al. v. Moon Lake Prop. Owners’ Ass’n, et al.
not second guess discovery decisions like these lightly. So to succeed on this argument, the
Raubs have to show that the district court abused its discretion and that they suffered substantial
prejudice as a result. Scales v. J.C. Bradford & Co., 925 F.2d 901, 906 (6th Cir. 1991). The
Raubs make no attempt to explain how the district court’s decisions prejudiced their ability to
ward off a motion for summary judgment based on res judicata. Indeed, every discovery request
the Raubs point to on appeal was aimed at uncovering evidence of the defendants’ alleged
wrongdoing—which, of course, is irrelevant to the question of whether the parties had already
adjudicated the Raubs’ claims in state court. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar
Ass’n, 142 F.3d 26, 44–45 (1st Cir. 1998). We therefore decline to reverse the district court on
this ground.
In addition, the Raubs claim that the district court’s decision to limit discovery violated
their constitutional right to due process. But they do not point to a single case supporting the
proposition that denying a litigant’s discovery request in this context violates the Fifth
Amendment. Since it is not enough to mention an argument in passing and leave the court to
“put flesh on its bones,” the Raubs have forfeited this claim. Brenay v. Schartow, 709 F. App’x
331, 336–37 (6th Cir. 2017) (citation omitted).
Attorneys’ Fees.

The Raubs also appeal the district court’s decision to award the

defendants attorneys’ fees. First, they argue that the defendants filed their fee requests after the
fourteen-day deadline set out in the Federal Rules of Civil Procedure and thereby waived their
right to collect. See Fed. R. Civ. P. 54(d)(2)(B). The Eastern District of Michigan, however,
allows litigants double that amount of time. E.D. Mich. R. 54.1.2. And all of the defendants
filed their requests within twenty-eight days of the district court’s final judgment.

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Case Nos. 17-1564/17-2498/18-1085
David Raub, et al. v. Moon Lake Prop. Owners’ Ass’n, et al.
The Raubs urge us to set the local rule aside because it “impermissibly” conflicts with the
federal one. But district courts are allowed to establish their own timeliness standards for fee
requests regardless of the federal rule’s fourteen-day deadline. Stallworth v. Greater Cleveland
Reg’l Transit Auth., 105 F.3d 252, 257 (6th Cir. 1997); see also Planned Parenthood of Cent.
N.J. v. Att’y Gen. of N.J., 297 F.3d 253, 260–61 (3d Cir. 2002) (holding that district courts can
extend the deadline by local rule, and noting that the Fifth, Seventh, Ninth, and Eleventh Circuits
have held the same). So the local rule is valid and the defendants’ requests were timely.
Next, the Raubs claim that the defendants are not entitled to fees because they multiplied
the litigation for strategic purposes and are not prevailing parties under the relevant fee-shifting
statutes. See 42 U.S.C. §§ 1988(b), 12205. The Raubs did not raise either of these arguments in
their objections to the magistrate judge’s report and recommendation. As such, they have
forfeited their right to do so on appeal. United States v. Sullivan, 431 F.3d 976, 984 (6th Cir.
2005).
Finally, the Raubs argue that the district court abused its discretion when it denied their
Rule 59 motion to amend the attorneys’ fee order. Curiously, the Raubs dedicate their briefing
on this point to challenging the district court’s decision to grant summary judgment. Since none
of the Raubs’ summary-judgment arguments are relevant to the question of attorneys’ fees, the
Raubs’ Rule 59 challenge fails.
For these reasons, we AFFIRM the district court’s orders.

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