Rondigo, LLC et al v. Richmond, Township of et al
Filing
151
OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S 146 REPORT AND RECOMMENDATION ON ALTERNATE GROUNDS. Granting 122 MOTION for Partial Summary Judgment filed by Four Township Citizens Coalition, Incorporated, Sara Giannone, Robert Grucz, Thomas Mackley, Nancy Giannone, Judith Rey. Signed by District Judge Gerald E. Rosen. (RGun)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONDIGO, LLC, et al.,
Plaintiffs,
No. 08-cv-10432
Hon. Gerald E. Rosen
v.
TOWNSHIP OF RICHMOND, MICHIGAN,
et al.,
Defendants.
____________________________________/
OPINION AND ORDER ADPOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION ON ALTERNATE GROUNDS
I. INTRODUCTION
This case involves a dispute pitting two farmers and their company (“Plaintiffs”)
against a group of neighbors and local government officials (“Defendants”) who oppose a
proposed composting business on Plaintiffs’ land. After encountering various forms of
resistance from local officials, neighbors, and a non-profit coalition of neighbors,
Plaintiffs filed this suit alleging a variety of claims. All government actors have been
dismissed from this suit; the only remaining Defendants are private citizens and an
organization formed by Plaintiffs’ neighbors. The remaining Defendants moved for
dismissal or summary judgment on October 16, 2009. The Court referred the motion to
Magistrate Judge Mark Randon on November 6, 2009. The Magistrate Judge issued his
report and recommendation on February 6, 2012, recommending dismissal of all
remaining claims. Plaintiffs timely objected. Having reviewed the report and
recommendation, Plaintiffs’ objections, and the record as a whole, the Court finds that the
legal arguments are sufficiently addressed and that oral argument would not assist in the
resolution of this matter. Accordingly, the Court will decide this matter “on the briefs.”
See L.R. 7.1(f)(2).
II. FACTUAL BACKGROUND
Plaintiffs Dolores Michaels, Renee Michaels, and Rondigo, LLC operate a seventy
acre farm in Richmond Township, Michigan. In addition to tending crops, Plaintiffs wish
to use their farm for composting activities: accepting organic waste for a fee and applying
the compost as fertilizer to their own fields. Defendants are a series of individuals and
entities, both private and governmental, who have at one point or another objected to
Plaintiffs’ farming activities or subjected Plaintiffs’ business to litigation, negative
publicity, or regulatory scrutiny. Defendants’ conduct includes inspections by regulatory
authorities, lobbying of public officials, and a lawsuit that was dismissed for lack of
standing. Four Township Citizens’ Coalition v. Rondigo, LLC, No. 275471, 2008 WL
2357667 (Mich. Ct. App. June 10, 2008).
This lawsuit is the culmination of the parties’ quarrel. Plaintiffs’ amended
complaint, filed on February 5, 2008, alleges the following claims arising out of
Defendants’ conduct: a claim under 42 U.S.C. § 1983, the unconstitutionality of a local
ordinance, federal conspiracy claims under 42 U.S.C. § 1985(3), knowing failure to
prevent violation of Plaintiffs’ rights under 42 U.S.C. § 1986, mail and wire fraud
2
conspiracies, and defamation. The governmental defendants in this case were previously
dismissed as a result of a motion to dismiss and an interlocutory appeal. See Rondigo,
LLC v. Township of Richmond, 641 F.3d 673 (6th Cir. 2011). The only remaining
Defendants are private homeowners and The Four Township Citizens’ Coalition, Inc.
(“FTCC”), a group established by homeowners to oppose Plaintiffs’ composting
activities.
The remaining Defendants moved for dismissal or summary judgment, and the
Court referred their motion to Magistrate Judge Randon. The Magistrate Judge
recommended that the Court dismiss all of Plaintiffs’ claims based on Noerr-Pennington
immunity, a doctrine that protects the exercise of First Amendment rights against certain
kinds of civil suit. Plaintiffs timely objected to the Magistrate Judge’s report and
recommendation. For the reasons explained below, the Court will accept the Magistrate
Judge’s report and recommendation on alternate grounds and will dismiss Plaintiffs’
remaining claims.
III. ANALYSIS
A.
Reviewing the Magistrate Judge’s Report and Recommendation
1.
Standard of Review
When a party properly objects to the report and recommendation of a Magistrate
Judge, the pertinent rule requires the Court to conduct a de novo review. 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(3). “A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate
3
judge. The judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions.” Id. Here, the Magistrate Judge recommended that
the Court dismiss Plaintiffs’ remaining claims under the Noerr-Pennington doctrine.
Plaintiffs timely objected.
2.
Noerr-Pennington Doctrine
The Noerr-Pennington doctrine -- named for the two Supreme Court cases from
which it originated1 -- originally protected parties from antitrust liability for organizing to
exercise their First Amendment right to “petition the Government for a redress of
grievances.” U.S. Const. amend. I; Knology, Inc. v. Insight Comms. Co., 393 F.3d 656,
658 (6th Cir. 2004). In Noerr, a group of railroad companies lobbied for legislation that
would impede the ability of trucking companies to compete for freight business. Eastern
R. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 129 (1961). The
trucking companies sued under the Sherman Act, but the Supreme Court held that “the
Sherman Act does not prohibit . . . persons from associating . . . in an attempt to persuade
the legislature or the executive to take particular action with respect to a law that would
produce a restraint or a monopoly.” Id. at 136-37.
Courts have since expanded Noerr-Pennington immunity to other contexts as well.
See, e.g., BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002) (applying Noerr-Pennington
within the context of labor law). “Noerr-Pennington immunity from antitrust laws
extends to petitioning the courts as well.” Baltimore Scrap Corp. v. David J. Joseph Co.,
1
Eastern R. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961);
United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).
4
237 F. 3d 394, 399 (4th Cir. 2001) (citing California Motor Trans. Co. v. Trucking
Unlimited, 404 U.S. 508, 510-11 (1972)). The doctrine has also grown to shield
individuals from liability under § 1983 “for actions taken when petitioning authorities to
take official action, even where the petitioning activity has the intent or effect of
depriving another of property interests, except under ‘very limited circumstances.’”
Knology, 393 F.3d at 658 (quoting Eaton v. Newport Bd. of Ed., 975 F.2d 292, 298 (6th
Cir. 1992)). Dismissal is appropriate when Noerr-Pennington immunity applies.
Noerr-Pennington immunity is not without limit, however. The doctrine is subject
to a limited exception referred to as the sham exception. It “encompasses situations in
which persons use the governmental process -- as opposed to the outcome of that process
-- as an anticompetitive weapon. . . . A ‘sham’ situation involves a defendant whose
activities are not genuinely aimed at procuring favorable government action at all,” as
opposed to “one who genuinely seeks to achieve his governmental result, but does so
through improper means.” City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S.
365, 380 (1991) (quotations omitted) (emphasis original). An example of sham conduct
is “filing . . . frivolous objections to the license application of a competitor, with no
expectation of achieving denial of the license but simply in order to impose expense and
delay.” Id. The sham exception thus turns on whether a Noerr-Pennington defendant
engaged in objectively baseless activity in order to vex and harass the opposing party.
The Supreme Court has articulated a two-part test for determining when the sham
exception applies:
5
First, the lawsuit must be objectively baseless in the sense
that no reasonable litigant could realistically expect success
on the merits. If an objective litigant could conclude that the
suit is reasonably calculated to elicit a favorable outcome, the
suit is immunized under Noerr, and an antitrust claim
premised on the sham exception must fail. Only if challenged
litigation is objectively meritless may a court examine the
litigant's subjective motivation. Under this second part of our
definition of sham, the court should focus on whether the
baseless lawsuit conceals an attempt to interfere directly with
the business relationships of a competitor, through the use of
the governmental process -- as opposed to the outcome of that
process -- as an anticompetitive weapon. This two-tiered
process requires the plaintiff to disprove the challenged
lawsuit's legal viability before the court will entertain
evidence of the suit's economic viability.
Prof. Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60-61
(1993) (quotations and footnote omitted) (emphasis original). Evidence of
anticompetitive intent does not render otherwise legitimate activity a sham without more.
Id. at 59. “[N]either Noerr immunity nor its sham exception turns on subjective intent
alone.” Id. Rather, a party claiming that the sham exception applies must also
demonstrate that the petitioning conduct had no merit, i.e., that it was objectively
baseless. Id.; Huron Valley Hosp., Inc. v. City of Pontiac, 650 F. Supp. 1325, 1341 (E.D.
Mich. 1986)
3.
The Magistrate Judge’s Report and Recommendation
Relying entirely on the Noerr-Pennington doctrine, the Magistrate Judge
recommended the complete dismissal of Plaintiffs’ remaining claims. Specifically, the
Magistrate Judge determined that Plaintiffs’ complaint lacked both “a contention that the
[Defendants] had some sort of ulterior motive (i.e., merely to harass Plaintiffs)” and
6
“allegations sufficient to establish an inference that [Defendants’] lawsuit was objectively
baseless.” Having analyzed Plaintiffs’ claim, the Court holds that the Magistrate Judge’s
report and recommendation reaches the correct outcome regarding some of Plaintiffs’
claims. However, the Magistrate Judge’s report and recommendation does not
completely address all the issues presented by Defendants’ motion.
First, the report and recommendation only analyzes the Noerr-Pennington doctrine
with regard to the lawsuit Defendants filed in Macomb County Circuit Court. Plaintiffs’
claims rely on a host of other factual allegations as well, including but not limited to
Defendants’ public statements regarding the composting operation and their efforts
lobbying public officials to act. Since some of Plaintiffs’ remaining claims depend on
these contentions as well, determining the appropriate outcome requires a more
comprehensive analysis of Plaintiffs’ claims and allegations.
Second, the Court is not convinced that the case law relied upon in the report and
recommendation necessarily extends the Noerr-Pennington doctrine to all of Plaintiffs’
non-§ 1983 claims. The Court was unable to find precedent extending Noerr-Pennington
immunity to claims arising under 42 U.S.C. § 1985(3) and § 1986; Noerr-Pennington -- a
doctrine protecting the right to petition -- seems entirely inapplicable to Plaintiffs’ fraud
conspiracy claims; and the cases relied upon to make Noerr-Pennington applicable to
Plaintiffs’ defamation claims do not appear to support the point of law relied upon.2
2
The first case, DirecTV, Inc. v. Milliman, 02–74829, 2003 WL 23892683 (E.D. Mich.
Aug. 23, 2003), contains a section examining the party’s defamation claim and a separate
section dedicated to analyzing the Noerr-Pennington doctrine. See 2003 WL 23892683,
at *7-*8. Of critical importance, a footnote at the beginning of the Noerr-Pennington
7
Furthermore, not all of Plaintiffs’ defamation claims involve petitioning activity, which is
the right the Noerr-Pennington doctrine is designed to protect. As such, applying NoerrPennington to Plaintiffs’ entire complaint was not appropriate. For these reasons, the
Court will adopt the Magistrate Judge’s report and recommendation on alternate grounds.
B.
Defendants’ Motion for Dismissal or Summary Judgment
Plaintiffs having timely objected to the Magistrate Judge’s report and
recommendation, the applicable rule requires the Court to conduct a de novo review of
Defendants’ motion. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). As explained
below, the Court will dismiss all of Plaintiffs’ remaining claims.
1.
Applicable Standards
Rule 12(b)(6) authorizes this Court to dismiss a complaint if it “fail[s] to state a
claim upon which relief can be granted.” In deciding a motion brought under Rule
12(b)(6), the Court must construe the complaint in the light most favorable to Plaintiffs
and accept all well-pleaded factual allegations as true. League of United Latin Am.
Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). To withstand a motion to
dismiss, however, a complaint “requires more than labels and conclusions, and a
section clearly limits the court’s analysis of that doctrine to the party’s Michigan
Consumer Protection Act claim because “every other count in [the defendant’s] countercomplaint must be dismissed on other grounds[.]” Id. at *7 n.8. While the report and
recommendation cites Milliman as dismissing the defamation claim under the NoerrPennington doctrine, the defamation claim was in fact dismissed for failure to state a
claim. Id. at *7 (“A declaration in an action for libel which fails to show where the
alleged libels were published or their contents failed to state a cause of action for libel.
Accordingly, Count VII must be dismissed.”) (quotations and citations omitted). The
second case, Pennwalt Corp. v. Zenith Labs., Inc., 472 F. Supp. 413 (E.D. Mich. 1979),
did not involve a defamation claim at all. 472 F. Supp. at 415 (“This is an unfair
competition and trademark infringement case.”).
8
formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The factual allegations in the complaint, accepted
as true, “must be enough to raise a right to relief above the speculative level,” and must
“state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). The Noerr-Pennington doctrine and the sham
exception are described in detail at Part III.A.2, supra, and incorporated here.
2.
The Noerr-Pennington doctrine bars Plaintiffs’ § 1983 claims.
In asserting a claim for the violation of constitutional rights under 42 U.S.C.
§ 1983, Plaintiffs rely on a variety of conduct. Plaintiffs claim that their constitutional
rights were violated when Defendants filed suit against their farm, as well as when
Defendants petitioned government officials to take action against Plaintiffs’ farm. As
discussed below, Plaintiffs’ § 1983 claims are barred by the Noerr-Pennington doctrine
becauase neither Defendants’ failed lawsuit nor the petitioning of public officials falls
within the sham exception to the Noerr-Pennington doctrine.
Defendants’ lawsuit, filed in Macomb County Circuit Court and ultimately
dismissed for lack of standing, Four Township Citizens’ Coalition v. Rondigo, LLC, No.
275471, 2008 WL 2357667 (Mich. Ct. App. June 10, 2008), does not fall within the sham
exception to the Noerr-Pennington doctrine because Plaintiffs have failed to allege facts
or present argumentation suggesting the suit was objectively baseless, a prerequisite for
9
applying the sham exception. Prof. Real Estate Investors, Inc. v. Columbia Pictures
Industries, Inc., 508 U.S. 49, 60-61 (1993). Plaintiffs’ complaint and subsequent briefs
are rife with references to “knowing” conduct on the part of Defendants, but without
providing any evidence in support of these conclusory statements. (See, e.g., Pls.’ Supp.
Reply Brief 4.) Furthermore, it appears that Plaintiffs have misconstrued where the
burden of proof lies. In arguing that Defendants filed a baseless lawsuit, Plaintiffs assert
that “[t]here is no evidence in the record that the actions of the [Defendants] were
undertaken to accomplish the goal of improving and maintaining the quality of the
environment where they own homes.” (Id. at 4-5.) However, the burden of proof lies
with Plaintiffs: they bear the burden of showing that Defendants’ activities fall within the
sham exception. Huron Valley Hosp., Inc. v. City of Pontiac, 650 F. Supp. 1325, 1341
(E.D. Mich. 1986) (“The first amendment interests concerned and the case law discussed
earlier support placing the evidentiary burden on the . . . plaintiff to prove that the action
of the defendant comes within the sham exception to Noerr-Pennington in this kind of
case.”) (quoting Westmac, Inc. v. Smith, 797 F.2d 313, 318 (6th Cir.1986)). Having
failed to offer evidence suggesting Defendants’ suit was either objectively baseless or an
abuse of process, dismissal is appropriate.
Regarding Defendants’ other efforts at stopping Plaintiffs’ on-site composting
operation, the Court is aided by analysis from an analogous case, Eaton v. Newport Bd. of
Educ., 975 F.2d 292 (6th Cir. 1992). Eaton involved the firing of a school principal after
the principal made an offensive remark to a co-worker. 975 F.2d at 293. The principal’s
10
firing was at least partially the product of lobbying by the Kentucky Education
Association (“KEA”), a group that directed its attention toward the local school board
with the aim of unseating the principal. Id. at 294-295. The principal sued under § 1983
and won a jury verdict based on the KEA’s conduct, but that verdict was reversed by the
Sixth Circuit because the KEA’s lobbying was unequivocally “protected by the [F]irst
[A]mendment.” Id. at 296.
Eaton is important to the Court’s analysis here because both Eaton and this case
involve a group of individuals lobbying public officials to act in a specific way. As in
Eaton, the conduct alleged by Plaintiffs constitutes legitimate and protected First
Amendment petitioning. A review of letters sent by Defendants to public officials does
not reveal baselessness or improriety. The letters instead show concerned individuals
lobbying public officials to act, and doing so in good faith. Further, Defendants’
subjective motivations are not relevant. See id. at 298 (“Under the Noerr-Pennington
doctrine, liability may not be assessed under § 1983 or the antitrust laws except in very
limited circumstances, for actions taken when petitioning authorities to take official
action, regardless of the motives of the petitioners, even where the petitioning activity has
the intent or effect of depriving another of property interests.”) (citation omitted)
(emphasis added). No evidence adduced by Plaintiffs suggests that Defendants lobbied
against Plaintiffs’ farm merely as a form of harassment. It thus appears that Defendants
engaged in protected First Amendment conduct when they drew officials’ attention to
11
Plaintiffs’ farm. Having failed to demonstrate that the sham exception to the NoerrPennington doctrine applies, Plaintiffs’ claims fail.
3.
Dismissal of Plaintiffs’ § 1985(3) and § 1986 claims is appropriate.
Plaintiffs also present claims under 42 U.S.C. § 1985(3), which prohibits
conspiracies to violate constitutional rights, and 42 U.S.C. § 1986, which provides a
cause of action against individuals who knew about and had the power to stop a § 1985
conspiracy, but failed to do so. 42 U.S.C. §§ 1985(3), 1986. Alleging a claim under
§ 1985(3) requires that Plaintiffs plead four elements: “(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right or privilege of a citizen of the United States.”
Carpenters v. Scott, 463 U.S. 825, 828-29 (1983). As part of the second prong, the
Supreme Court has held that a conspiracy to violate civil rights requires class-based
animus. Id. at 834-35. Further, given that § 1986 provides a cause of action for the
failure to stop a § 1985 conspiracy, Plaintiffs’ § 1986 claim fails if the § 1985 claim is
dismissed because a necessary predicate condition -- the civil rights conspiracy -- would
be lacking. See Royal Oak Ent., LLC v. City of Royal Oak, Michigan, 205 Fed. App’x
389, 399 (6th Cir. 2006) (“Section 1986 liability is derivative of § 1985 liability.”).
Here, Plaintiffs’ § 1985(3) claim fails because Plaintiffs did not plead a necessary
aspect of the second prong: class-based animus. Carpenters v. Scott, 463 US 825, 834-35
12
(1983). Consequently, their § 1986 claim fails as well. In Carpenters, the Supreme
Court had the opportunity to analyze the language, structure, and history of § 1985(3).
463 U.S. at 830-35. In so doing, the Court reiterated its earlier holding that a § 1985(3)
claim requires that racial or class-based animus underlie the conspirators’ actions. Id. at
835 (“The language requiring intent to deprive of equal protection, or equal privileges
and immunities, means that there must be some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.”) (quoting Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971)) (emphasis omitted). Plaintiffs’ complaint
cursorily mentions that Plaintiffs are women, but no portion of the complaint suggests
that the alleged conspiracy was motivated by sex-based animosity. Rather, the entire
complaint is focused on Defendants’ opposition to Plaintiffs’ composting as a matter of
environmental and economic concern. More is required to plead a claim under § 1985(3).
Id. Plaintiffs have thus failed to even plead the elements of a § 1985(3) claim, let alone
allege facts in support of such a claim. Accordingly, dismissal of Plaintiffs’ § 1985(3)
claim is warranted. Fed. R. Civ. P. 12(b)(6). Likewise, having dismissed Plaintiffs’
conspiracy claim, dismissal of Plaintiffs’ § 1986 claim is also required. Royal Oak Ent.,
LLC v. City of Royal Oak, Michigan, 205 Fed. App’x 389, 399 (6th Cir. 2006).
4.
Wire and Mail Fraud Conspiracies
Plaintiffs also allege civil conspiracies to commit “wire fraud and mail fraud.”
(Pls.’ First. Am. Compl. ¶ 240.) Wire fraud requires establishing “(1) a scheme to
defraud, (2) the use of the U.S. Mail for the purpose of executing the scheme, and (3)
13
specific intent to deceive or defraud.” Braxton v. Scottish Guar. Ins. Co., No. 184751,
1997 WL 33354534, at *3 (Mich. Ct. App. 1997) (citing Central Distributors of Beer, Inc
v Conn, 5 F.3d 181, 184 (6th Cir. 1993)). “The elements of wire fraud are (1) a scheme
to defraud, (2) the use of an interstate electronic communication in furtherance of the
scheme, and (3) specific intent to deceive or defraud.” Id. Nothing in Plaintiffs’
complaint even remotely pertains to mail or wire fraud conspiracies. Indeed, every
mention of ‘conspire’ or ‘conspiracy’ in the complaint involves conspiracies to commit
constitutional violations, which are dealt with under 42 U.S.C. § 1985(3). See Part
III.B.3. Having failed to proffer any pertinent allegations, dismissal is appropriate. Fed.
R. Civ. P. 12(b)(6).
5.
Dismissal Plaintiffs’ defamation claims is appropriate.
Plaintiffs also allege a series of defamation claims arising out of statements made
by Defendants in the course of opposing Plaintiffs’ farm. “A communication is
defamatory if, considering all the circumstances, it tends so to harm the reputation of
another as to lower him in the estimation of the community or to deter third persons from
associating or dealing with him.” Ireland v. Edwards, 584 N.W.2d 632, 638-39 (Mich.
Ct. App. 1998). This determination is made using an objective, reasonable-person
standard. Siddiqui v. Gen. Motors Co., No. 302446, 2012 WL 335680, at *4 (Mich. Ct.
App. Feb. 2, 2012). A for-profit business may assert a defamation claim if the
aforementioned elements are met in addition to showing that the defamatory statement
prejudices the business or deters customers from associating with it. Siddiqui v. Gen.
14
Motors Co., No. 302446, 2012 WL 335680, at *6 (Mich. Ct. App. Feb. 2, 2012) (citation
omitted).
“Not all defamatory statements are actionable. If a statement cannot be reasonably
interpreted as stating actual facts about the plaintiff, it is protected by the First
Amendment.” Ireland, 584 N.W.2d at 636 (citing Milkovich v. Lorain Journal Co., 497
U.S. 1, 20 (1990); Garvelink v. Detroit News, 522 N.W.2d 883, 886 (1994)). The Court
thus must evaluate Defendant’s speech in context to determine whether a particular
communication states actual facts about Plaintiff, as opposed to mere opinion or
hyperbole. See Greenbelt Coop. Publ’g Ass’n, Inc. v. Bresler, 398 U.S. 6, 13-14 (1970);
Ireland, 584 N.W.2d at 638. Finally, “[a] party alleging defamation must specify which
statements are false and defamatory in order to place the defendant on notice to defend
the action.” WHIC-USA, Inc. v. Carlisle, No. 262071, 2005 WL 1959503, at *2 (Mich.
Ct. App. Aug. 16, 2005).
While the Sixth Circuit has not considered the issue, courts in Michigan and
elsewhere have held that Noerr-Pennington immunity applies to defamation claims
involving protected speech: “defamation -- injury to a person’s good name -- is
actionable as the result of petitioning the government only where the petitioning was
actually a ‘sham.’” J & J Constr. Co. v. Bricklayers and Allied Craftsmen, 631 N.W.2d
42, 47 (Mich. Ct. App. 2001). See also In re Am. Continental Corp./Lincoln Savings &
Loan Sec. Lit., 102 F.3d 1524, 1538 n.15 (9th Cir. 1996) (collecting cases), rev’d on
other grounds, 523 U.S. 26 (1996); In re IBP Confidential Business Docs. Lit., 755 F.2d
15
1300, 1312-1313 (8th Cir. 1985) (discussing contours of Noerr-Pennington doctrine as
applied to defamation and other state law claims); Experience Hendrix, L.L.C. v.
HendrixLicensing.com, LTD, 766 F. Supp. 2d 1122, 1143-46 (W.D. Wash. 2011)
(applying Noerr-Pennington doctrine to state law claims, including defamation); Caixa
Geral de Depositos, S.A. v. Jacinto Rodrigues, No. 03-746, 2005 WL 1541055, at *10*11 (D.N.J. June 30, 2005) (applying Noerr-Pennington to defamation claim). NoerrPennington does not provide absolute immunity to First Amendment petitioning activity,
but it does protect activity falling outside of the sham exception. J & J Constr. Co. v.
Bricklayers and Allied Craftsmen, 631 N.W.2d 42, 47 (Mich. Ct. App. 2001); Azzar v.
Primebank, 499 N.W.2d 793, 797 (Mich. Ct. App. 1993). By extension, conduct that
does not constitute petitioning under the First Amendment does not qualify for NoerrPennington protection.
The conduct alleged in paragraphs eighty-three, ninety-two, ninety-five, ninetysix, and ninety-seven sounds in defamation;3 however, these paragraphs either claim
defamation against governmental actors or claim defamation where private parties were
petitioning government officials. Since all governmental parties were previously
dismissed, Rondigo, LLC v. Township of Richmond, 641 F.3d 673 (6th Cir. 2011), the
Court need only determine whether the remaining allegations fall within the sham
exception to the Noerr-Pennington doctrine. Here, as with the Court’s prior analysis,
nothing adduced thus far suggests that Defendants’ petitioning was objectively baseless
3
These paragraphs contain allegations involving the failed state court suit filed against
Plaintiffs (paragraphs eighty-three and ninety-two) and letters written to public officials
(paragraphs ninety-five through ninety-seven).
16
or motivated by a desire to harass Plaintiffs and impede their business. Defendants
engaged in a concerted effort to stop Plaintiffs from operating a composting business, but
they did so in good faith and with a reasonable expectation of success. Plaintiffs have not
identified any evidence suggesting otherwise. As such, Defendants’ petitioning falls
within the Noerr-Pennington doctrine and dismissal is appropriate.4
Paragraphs 84 and 178 are the only instances where Plaintiffs pled defamation
against non-governmental parties in a non-petitioning context. In paragraph eighty-four,
Defendant George Haddad is alleged to have made two statements amounting to
defamation in a newspaper article about the controversy over Plaintiffs’ farm. Since
these statements were made to a newspaper reporting on the issue, they are not properly
characterized as petitioning within the First Amendment. Paragraph 178 involves
statements purportedly contained in a press release. The issuance of a press release does
not involve lobbying public officials to take a particular action either, so it also does not
4
In the alternative, paragraphs ninety-two, ninety-five, and ninety-six each attempt to
allege defamation claims, but without identifying which statements Plaintiffs claim were
defamatory. Merely attaching correspondence and claiming defamation is insufficient.
“A party alleging defamation must specify which statements are false and defamatory in
order to place the defendant on notice to defend the action.” WHIC-USA, Inc. v. Carlisle,
No. 262071, 2005 WL 1959503, at *2 (Mich. Ct. App. Aug. 16, 2005). In Royal Palace
Homes, Inc. v. Channel 7 of Detroit, Inc., 495 N.W.2d 392 (Mich. Ct. App. 1992), the
court considered the question of which party bears the burden of pleading specific
defamatory statements. In that case, the plaintiffs alleged defamation and merely
attached transcripts purportedly containing defamatory statements. Royal Palace Homes,
495 N.W.2d at 396. The court’s holding applies here as well: “Defendants do not bear
the burden of discerning their potential liability from these [documents]. Plaintiffs must
plead precisely the statements about which they complain.” Id. Having failed to so
plead, dismissal is appropriate. Fed. R. Civ. P. 12(b)(6).
17
qualify as petitioning. Accordingly, the Noerr-Pennington doctrine does not apply to
these allegations.
Nevertheless, the conduct alleged in paragraph eighty-four does not constitute
actionable defamation because Haddad did not state specific facts about Plaintiffs.
Ireland, 584 N.W.2d at 636 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20
(1990); Garvelink v. Detroit News, 522 N.W.2d 883, 886 (1994)). Haddad purportedly
stated that Plaintiffs’ composting operation would “adversely affect his property and that
of his neighbors” and also claimed that Plaintiffs are “playing the game” and not playing
by “the rules.” Neither statement is actionable because neither statement refers to
particular facts about Plaintiffs; Haddad has instead merely expressed his opinion by
speculating on subjective matters. Ireland, 584 N.W.2d at 637. The composting
operation was merely proposed, so any effect it might have had is purely conjectural.
Further, “playing the game” and disobeying “the rules” are subjective statements of
opinion. References to “the game” and “the rules” are necessarily vague and doubtless
mean different things to different people. Hantz Group, Inc. v. Haney, No. 292954, 2010
WL 4864812, at *6 (Mich. Ct. App. Nov. 30, 2010) (citing Ireland, 584 N.W.2d at 637).
Therefore, dismissal is appropriate. Fed. R. Civ. P. 12(b)(6).
Paragraph 178 alleges multiple defamation claims against the FTCC and Jared
Slanec based on a press release purportedly distributed to third parties. Defendants
allegedly referred to Plaintiffs’ operation as a “commercial composting dump” containing
“animal carcasses and garbage,” and said that Plaintiffs would “improperly conduct
18
composting,” “adversely affect the environment,” and “destroy healthy neighborhoods”.
Despite indicating that the press release was included among Plaintiffs’ exhibits, the
Court could not locate it. Nevertheless, it is clear that these statements are not
defamatory and dismissal is appropriate.
Referring to Plaintiffs’ operation as a “commercial composting dump” is not
defamatory because it is entirely accurate: a site that receives the waste of others is
literally a dump.5 While the term is capable of a pejorative meaning, it does not appear
from the pleadings that Plaintiffs’ operation was referred to as a dump for any reason
other than the fact that clients in fact would dump their waste on Plaintiffs’ property for a
fee; such was the nature of Plaintiffs’ intended composting business. The same is true
regarding Defendants’ alleged reference to “animal carcasses and garbage”. Composting
sites -- as well as trash dumps generally -- accept garbage, which includes any number of
organic substances. Nothing in the pleadings suggests otherwise. Accordingly, it does
not appear that either statement is capable of defamatory meaning because neither
statement tends to harm Plaintiffs’ reputation. Ireland v. Edwards, 584 N.W.2d 632,
638-39 (Mich. Ct. App. 1998).
The remaining three statements do not qualify as defamation because they are
subjective expressions of opinion. A statement that describes a composting operation as
“improperly” conducted is not amenable to a single specific meaning. Id., 584 N.W.2d at
637. Further, speculating as to the effect of Plaintiffs’ composting -- on the environment
5
A dump is “an accumulation of refuse or other discarded materials; a place where such
materials are dumped.” Webster’s Third New International Dictionary (Unabridged
1988), 701.
19
generally and Defendants’ neighborhood specifically -- is a matter of subjective opinion.
Id. (contrasting statements referring to “an objectively verifiable event” with “a
subjective assertion”). As such, these statements are not actionable as defamation.
Therefore, it appears that dismissal is appropriate, since Plaintiffs have failed to plead a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
IV. CONCLUSION
For the reasons set forth in this opinion, the Court holds that dismissal is
appropriate as to all of Plaintiffs’ claims. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s report and
recommendation [Dkt. #146] is ADOPTED, in accord with the above opinion.
IT IS FURTHER ORDERED that Defendants’ motion for partial summary
judgment [Dkt. #122] is GRANTED, in accord with the reasoning above.
s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: March 27, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 27, 2012, by electronic and/or ordinary mail.
s/Ruth A.Gunther
Case Manager
(313) 234-5137
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