Kanuszewski et al

Filing 116

ORDER Granting Plaintiffs' 114 Motion to Dismiss, Denying 106 , 108 , 109 Motions As Moot and Dismissing 107 Claims With Prejudice. Signed by District Judge Thomas L. Ludington. (KWin)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ADAM KANUSZEWSKI,
et al.,
Plaintiffs,
v.

Case No. 18-10472
Honorable Thomas L. Ludington

MICHIGAN DEPARTMENT
OF HEALTH AND HUMAN
SERVICES, et al.,
Defendants.
________________________________/
SHANNON LAPORTE, et al.,
Plaintiffs,
v.
ROBERT GORDON, DR. SANDIP
SHAH, DR. SARAH LYON-CALLO,
MARY KLEYN, and MARY SEETERLIN,
in their official capacities,
Defendants.
______________________________/
ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS, DENYING REMAINING
MOTIONS AS MOOT, AND DISMISSING CLAIMS WITH PREJUDICE
On January 14, 2020, Plaintiff, Shannon LaPorte on behalf of herself and as parentguardian of her unborn child, B.O., filed a complaint against officials from the Michigan
Department of Health and Human Services (“MDHHS”) in their official capacities. ECF No. 1.
The complaint includes four counts – Count I alleges that MCL § 333.5431(2) violates the Fourth
Amendment, Count III alleges MCL § 333.5431(2) violates the Fourteenth Amendment, Count II
alleges the extraction and testing of blood spots of newborns through an MDHHS program violates

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the Fourth Amendment, and Count IV alleges that medical testing of the blood spots without
informed consent violates the Fourteenth Amendment.1 Id. An amended complaint added a Count
V alleging a Fourth Amendment violation based on warrantless post-extraction testing. ECF No.
32 at PageID.485. Plaintiffs seek injunctive and declaratory relief, as well as attorney fees. ECF
No. 1 at PageID.19.
The case was originally assigned to District Judge Victoria A. Roberts. ECF No. 4 in 2010089. Plaintiff LaPorte identified the case as a potential companion case to Kanuszewski v.
Michigan Department of Health and Human Services when she filed the case. ECF No. 1. Local
Rule 83.11(b)(7) explains companion cases are cases where “substantially similar evidence will
be offered at trial,” “the same or related parties are present and the cases arise out of the same
transaction or occurrence,” or “they are Social Security cases filed by the same claimant.” The first
two factors are met regarding LaPorte and Kanuszewski. Therefore, LaPorte was determined to be
a companion case and reassigned to this Court. ECF No. 4.
On the same day the complaint was filed, Plaintiffs also filed a motion for preliminary
injunction. ECF No. 3. On March 24, 2020, Plaintiffs’ motion was denied. ECF No. 29. Plaintiffs
filed a notice of interlocutory appeal. ECF No. 30. On April 7, 2020, Plaintiffs’ motion for
preliminary injunction pending appeal was denied because the Sixth Circuit found Plaintiffs were
unlikely to prevail on the merits of their complaint. ECF No. 11 in 20-1269. On April 29, 2020,
Plaintiffs filed a motion to voluntarily dismiss the appeal as moot contending that Plaintiff LaPorte
gave birth to Baby B.O. ECF No. 14 in 20-1269. Their motion was granted and the appeal was
dismissed. ECF No. 15 in 20-1269.

Plaintiffs do not clearly differentiate between the alleged violations of the parent’s and child’s
rights.

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On May 11, 2020, Plaintiffs filed a motion to dismiss the LaPorte complaint. ECF No. 114
in 18-10472. Plaintiffs argue that “Plaintiff LaPorte also sought a preliminary injunction against
the extraction and testing of Baby B.O.’s blood without her consent so that the issues would not
become moot following the birth of Baby B.O.” Id. at PageID.1698. Plaintiffs argue that
“[b]ecause there are no longer any available remedies for the claims pled in former Case No. 20cv-10089 due to the birth of Baby B.O., this Court must dismiss (and Plaintiff therefore voluntarily
dismisses) the claims made in former Case No. 20-cv-10089 for lack of jurisdiction due to
mootness.” Id. at PageID.1699. Plaintiffs provide that Defendants have no objection to the
dismissal of the claims.
When Plaintiffs filed the LaPorte complaint, they explained “the United States Court of
Appeals for the Sixth Circuit concluded that future plaintiffs [who desire to challenge the
extraction of blood from their newly born infants] would consist of individuals who are pregnant
because they will likely have standing to pursue prospective relief relating to the risk that their
future child’s blood will be drawn at birth.” ECF No. 107 at PageID.1540. Plaintiffs contended
“[t]his is that case” because Plaintiff LaPorte was pregnant with her child B.O. at the time the
complaint was filed. Id. Now that LaPorte’s child, B.O., has arrived, it is unclear if the case is moot
or if an exception to the mootness doctrine might apply. However, Plaintiffs are masters of their
complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Accordingly, this Court
will dismiss the LaPorte complaint and reserve judgment regarding Plaintiffs’ claims regarding
mootness.
Due to the previous consolidation of LaPorte v. Gordon, 20-10089, with Kanuszewski v.
MDHHS, 18-10472, it is necessary to clarify that the remaining claims in Kanuszewski v.

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MDHHS’ Complaint, ECF No. 26, remain. The parties should consult the current scheduling order,
ECF No. 92, for deadlines.
Accordingly, it is ORDERED that Plaintiffs’ Motion to Dismiss, ECF No. 114, is
GRANTED.
It is further ORDERED that Defendants’ Motion to Dismiss the first amended complaint,
ECF No. 108, is DENIED AS MOOT.
It is further ORDERED that Plaintiffs’ Motion to Exclude Exhibits, ECF No. 109, is
DENIED AS MOOT.
It is further ORDERED that Defendants’ Motion to Strike Jury Demand, ECF No. 106, is
DENIED AS MOOT.
It is further ORDERED that Plaintiffs’ Complaint (originally filed in 20-10089), ECF No.
107, is DISMISSED WITH PREJUDICE.

Dated: May 14, 2020

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

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