DeSandre et al v. Oscoda, County of et al

Filing 58

OPINION and ORDER Denying Motion for Reconsideration 36 . Signed by District Judge Laurie J. Michelson. (EPar)

Case 1:20-cv-12209-LJM-PTM ECF No. 58, PageID.789 Filed 05/10/22 Page 1 of 6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TINA DESANDRE and
ROBERT DESANDRE,
Plaintiffs,

Case No. 20-12209
Honorable Laurie J. Michelson

v.
COUNTY OF OSCODA,
GARY COLE,
KEVIN GRACE,
KRISTI MCGREGOR, and
CASANDRA L MORSE-BILLS,
Defendants.
OPINION AND ORDER
DENYING MOTION FOR RECONSIDERATION [36]
This case involves neighbors disputing their shared property line. Tina
and Robert DeSandre believed that Brenda Oats had her shed on their side of
the line. After repeat requests by the DeSandres, Oats finally removed her
belongings from the shed. But when the DeSandres went to tear the shed down,
Oats called the Oscoda County Sheriff’s Office. Sherriff Kevin Grace and
Deputy Gary Cole responded. According to the DeSandres, after they told
Grace and Cole that they could tear down the shed because it was on their
property, the two sheriffs allegedly said that they would take the matter to the
prosecuting attorney to bring criminal charges against them. The Oscoda

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County Prosecutor ultimately did charge the DeSandres, but a judge dismissed
those charges for lack of probable cause. The DeSandres then filed this lawsuit
against Grace and Cole, as well as Cassandra Morse-Bills and Kristi McGregor
(the former and current Oscoda County Prosecutor, respectively), and Oscoda
County.
This case is not new, and a while back, Defendants filed a Rule 12(c)
motion seeking judgment on some of the DeSandres’ claims. This Court
granted that motion in part, dismissing McGregor from the suit without
prejudice. In their complaint, the DeSandres had alleged that after officers
Grace and Cole threatened to take the matter to the prosecutor, “Morse-Bills
and McGregor engaged in investigating the matter and/or gave legal advice on
the fact that Grace and Cole had probable cause for arrest.” (ECF No. 3,
PageID.29.) The Court explained, “This is imprecise pleading; it appears that
at the time Grace and Cole talked with the Oscoda County Prosecutor, it was
Morse-Bills who held the position; it was months later, when Morse-Bills
became a judge, that McGregor took over as the Oscoda County Prosecutor.”
Desandre v. Cty. of Oscoda, No. 20-12209, 2021 WL 3828588, at *2 (E.D. Mich.
Aug.

27,

2021)

(quoting

Prosecuting

Attorney,

Oscoda

County,

https://perma.cc/X6RG-NW9Z).
Because McGregor was not the prosecutor when Grace and Cole
allegedly sought advice about the property-line dispute, the Court dismissed
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McGregor. It explained in part, “In their reply brief, Defendants point out that
McGregor did not become the Oscoda County Prosecutor until January 2019.
(This

is

corroborated

by

the

Oscoda

County’s

official

website.

https://perma.cc/X6RG-NW9Z.) Yet, according to the DeSandres, Cole and
Grace responded to Oats’ call in August 2018, a warrant issued in September
2018, and they were arrested in October 2018.” Id. at *3. Thus, the claims
against McGregor were dismissed. “But,” said the Court, “they will be
dismissed without prejudice. Because Defendants waited until their reply brief
to assert that McGregor did not become the Oscoda County Prosecutor until
January 2019, the DeSandres had no ability to contest that assertion when
responding to the motion to dismiss.” 2021 WL 3828588, at *3. “And while the
Court [was] doubtful that the assertion is contestable,” the Court thought that
“the DeSandres might be able to plead that McGregor somehow aided in their
arrest or the filing of criminal charges before she became the Oscoda County
Prosecutor in January 2019.” Id. So the Court allowed the DeSandres to file an
amended complaint to restate a claim against McGregor. Which they did on
September 7, 2021. (ECF No. 35.)
But then, three days later, the DeSandres also filed this motion asking
the Court to reconsider its dismissal of McGregor. (ECF No. 36.) Whether
evaluated under the version of the local rule in effect when the DeSandres filed
their motion for reconsideration (see ECF No. 36, PageID.292), or the revised
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version in effect now, see E.D. Mich. L.R. 7.1(h), the Court will deny the
DeSandres’ request.
Although “[a]rguments raised for the first time in a reply brief are
generally not properly before the court,” see Egyptian Eur. Pharm. Indus. v.
Day, No. 2:20-CV-13409, 2021 WL 4593956, at *11 (E.D. Mich. Oct. 6, 2021)
(internal quotation marks omitted), the DeSandres concede that this Court had
discretion to consider evidence presented for the first time in Defendants’ reply
brief (ECF No. 36, PageID.294). But, in their view, the Court abused that
discretion. (Id.) They stress that this Court itself stated that they had no
chance to respond to Defendants’ claim that McGregor was not the Oscoda
County Prosecutor until January 2019. And the DeSandres attempt to
analogize this case to Seay v. Tennessee Valley Authority, where the Sixth
Circuit found that the district court abused its discretion by granting summary
judgment based on evidence presented for the first time in the defendant’s
reply brief. See 339 F.3d 454, 482 (6th Cir. 2003).
This case is not like Seay and this Court did not abuse its discretion. In
Seay, after the plaintiff had filed its summary-judgment response brief, the
corporate defendant attached to its reply brief a new declaration that included
two never-before-produced exhibits. See 339 F.3d at 482. Not only that, the
district court granted the defendant summary judgment three days after the
reply brief was filed, which was “arguably too swiftly for Plaintiff to have
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requested a surreply.” Id. at n.9. The situation here is different in almost every
material way. To start, the new evidence in Defendants’ reply was not a
declaration with exhibits—instead it was a single fact that was publicly
available on Oscoda County’s official website. Presumably then, the DeSandres
could and should have learned of this fact before filing suit. Second, this Court
did not rule days after Defendants filed their reply. So the DeSandres had
plenty of opportunity to ask for a sur-reply. Third, the new evidence—that
McGregor took over as the Oscoda County Prosecutor in January 2019—is not
really contestable. Indeed, in their amended complaint, the DeSandres admit
that fact. (ECF No. 35, PageID.268.) Taking all this together, it was entirely
appropriate for this Court to consider when McGregor became the Oscoda
County Prosecutor in deciding Defendants’ Rule 12(c) motion.
In any event, there was no prejudice to the DeSandres from McGregor’s
dismissal. The Court dismissed McGregor without prejudice, permitting the
DeSandres to file an amended complaint to reallege a claim against her. The
DeSandres did so, and thus, McGregor is still a defendant.
The DeSandres argue that this Court’s dismissal of McGregor “forced”
them to file an amended complaint while discovery was ongoing. (ECF No. 36,
PageID.281.) In their view, the dismissal of McGregor should have been held
in abeyance until after discovery. (ECF No. 36, PageID.282, 296.)

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But this position misunderstands the purpose of a Rule 12(c) motion.
Rule 12(c) motions are decided under the same standards as Rule 12(b)(6)
motions: both motions test the adequacy of the allegations in the plaintiff’s
complaint. See Heinrich v. Waiting Angels Adoption Srvs., Inc., 668 F.3d 393,
403 (6th Cir. 2012). The doors to discovery are unlocked only if the allegations
are adequate. See Ashcroft v. Iqbal, 556 U.S. 662, 685–86 (2009). So it would
defeat the purpose of the motion to wait until after discovery closed before
deciding to dismiss McGregor.
* * *
In all, the Court will neither reverse its decision dismissing McGregor
from the original complaint nor hold McGregor’s dismissal in abeyance until
after discovery is closed. (In fact, it is now closed.) Whether McGregor remains
a defendant in this case instead depends on the resolution of Defendants’
recently filed motion for summary judgment (ECF No. 53), which the Court
will address in a future opinion.
SO ORDERED.
Dated: May 10, 2022
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

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