Tuscola Wind III, LLC v. Almer Charter Township et al

Filing 74

ORDER Granting Defendant's 72 Motion for Leave to File a Second Motion for Summary Judgment and Adjourning Scheduling Order Dates. ( Defendant's Second Motion for Summary Judgment due by 7/6/2018. (Plaintiff& #039;s Response to Second Motion for Summary Judgment due 7/20/2018; Defendant's Reply due 7/27/2018. Hearing on Second Motion for Summary Judgment is 8/13/2018 at 2:00 pm.) Final Pretrial Conference RE-set for 9/10/2018 at 3 :00 PM before District Judge Thomas L. Ludington, Jury Trial RE-set for 9/25/2018 at 8:30 AM before District Judge Thomas L. Ludington.) (Refer to Image for Additional Dates.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
TUSCOLA WIND III, LLC,
Plaintiff,
v

Case No. 17-cv-10497
Honorable Thomas L. Ludington

ALMER CHARTER TOWNSHIP, et al,
Defendants.
__________________________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO FILE
A SECOND MOTION FOR SUMMARY JUDGMENT AND
ADJOURNING SCHEDULING ORDER DATES
On February 15, 2017, Plaintiff Tuscola Wind III, LLC, (“Tuscola”) filed a complaint
naming the Almer Charter Township and that Township’s Board of Trustees as Defendants. ECF
No. 1. Tuscola Wind’s claims arise out of Defendants’ denial of a Special Land Use Permit
(“SLUP”) that would have permitted Tuscola Wind to construct the “Tuscola III Wind Energy
Center” in Tuscola County, Michigan. Compl. at 6. On February 26, 2018, Defendants filed a
motion for summary judgment. ECF No. 55. On June 12, 2018, the Court granted the motion in
part. ECF No. 70. Presently, the only surviving claim involves an alleged violation of the Michigan
Open Meetings Act. Trial is presently scheduled to begin on July 10, 2018, at 8:30 a.m.
On June 25, 2018, the Township filed a motion for leave to file a second motion for
summary judgment. ECF No. 72. Tuscola opposes the motion. ECF No. 73. On June 27, 2018, the
Court held a final pretrial conference. As discussed at that conference and for the reasons stated
below, the Township’s motion will be granted and the scheduling order will be adjourned.

I.
In the June 12, 2018, opinion and order, the Court summarized the genuine issues of
material fact surrounding the Open Meetings Claim as follows:
. . . The attached emails clearly support a finding that members of the Board
repeatedly emailed all members via blind carbon copy. Merely emailing all
members does not violate the OMA unless there was some level of discourse on an
issue of public policy. And neither of the exhibits cited by Tuscola contain
discourse between multiple members. But the emails strongly suggest that the
procedure was adopted in order to facilitate communication between the Board.
And, as the Markel Court recognized, the fact that Board members may have later
acted consistently with emails they did not reply to suggests that some level of
participation in deliberation occurred. [Markel v. Mackley, 2016 Mich App. LEXIS
2004, at *12] (“This is especially true where there was evidence that defendants
intended to subvert the OMA, as noted by the trial court, and at least one
commissioner was advised against sending emails that included a quorum of the
PRC actively deliberating. “).
In short, the emails identified by Tuscola do not clearly constitute violations
of the OMA. None of the identified email chains involve replies by other
commissioners, and no evidence has been presented to suggest that Board members
later made decisions at public meetings in reliance on information received by
email. But the identified emails do identify a procedure which expressly
contemplated communications which could violate the OMA. And, importantly,
Tuscola does not bear the burden of proving that an OMA violation occurred at this
stage. Rather, in order to justify summary judgment, the Township must show that
no violation occurred as a matter of law. Given the Township’s threadbare briefing
on this issue and the outstanding factual questions, the Township has not met that
burden. Tuscola’s OMA claim will be dismissed in part.
June 12, 2018, Op. & Order at 40–41, ECF No. 70.
II.
“District courts may in their discretion permit renewed or successive motions for summary
judgment, particularly when the moving party has expanded the factual record on which summary
judgment is sought.” Kovacevich v. Kent State Univ., 224 F.3d 806, 835 (6th Cir. 2000). Here,
Open Meetings Act issue was given very limited attention during the briefing for the first summary
judgment motion. The Township did not even address the question of whether the practice of blind

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carbon copy emailing other board members violated the OMA in the motion for summary
judgment. Tuscola devoted two paragraphs to the issue in its response brief. In its reply brief, the
Township provides three sentences on the topic. Given this threadbare briefing (and similarly
limited factual support), a second summary judgment motion which expands the factual record on
this claim is warranted. The Township’s motion for leave to file a second motion for summary
judgment will be granted. In order to allow time for that motion to be briefed and decided, an
adjournment of the trial date is necessary.
III.
Accordingly, it is ORDERED that Defendants’ motion for leave to file a second motion
for summary judgment, ECF No. 72, is GRANTED.
It is further ORDERED that Defendants are DIRECTED to file the second motion for
summary judgment on or before July 6, 2018.
It is further ORDERED that Plaintiff is DIRECTED to file its response brief on or before
July 20, 2018. Defendants shall file their reply brief, if necessary, on or before July 27, 2018.
It is further ORDERED that a hearing on the anticipated second motion for summary
judgment is SCHEULED for August 13, 2018, at 2:00 p.m.
It is further ORDERED that the Scheduling Order is AMENDED as follows:
Updated Pretrial Disclosures:

September 4, 2018

Final Pretrial Conference:

September 10, 2018, at 3:00 p.m.

Jury Trial:

September 25, 2018, at 8:30 a.m.

Dated: June 29, 2018

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on June 29, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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