New Jerusalem Deliverance Church v. Rabette et al
OPINION AND ORDER granting 33 Motion for Summary Judgment on grounds not raised by a party; denying 52 Motion for Discovery Pursuant to Federal Rule of Civil Procedure 56(d); denying 56 Motion for Extension of Time to File Response/Reply and dismissing Count 2 of the Amended Complaint without prejudice. (see order for details). Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
NEW JERUSALEM DELIVERANCE CHURCH,
Case No. 10-12566
THOMAS RABETTE, et al.,
OPINION AND ORDER (1) DENYING PLAINTIFF’S MOTION FOR EXTENSION OF
TIME, (2) DENYING PLAINTIFF’S MOTION FOR DISCOVERY, (3) GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON GROUNDS NOT RAISED
BY A PARTY, AND (4) DISMISSING COUNT TWO WITHOUT PREJUDICE
Before the court is Defendants’1 motion for summary judgment in which they
assert there is no genuine dispute about the only issue material to the amended
complaint: whether Defendant Rabette was lawfully appointed as a special deputy
sheriff. No hearing is necessary. E.D. Mich. LR 7.1(f)(2). The court will grant that
motion on other grounds, will deny Plaintiff’s pending motion for discovery and motion
for an extension of time to amend the complaint, and will dismiss the remaining statelaw claim without prejudice.
As used in this order, “Defendants” refers to all Defendants but Evangelical
Christian Credit Union (“ECCU”). Even though ECCU did not file a motion for summary
judgment, the court’s grant of Defendants’ motion and dismissal of the state-law claim
resolves all claims against ECCU. Therefore, the court is inclined to grant summary
judgment in favor of ECCU. Under Federal Rule of Civil Procedure 56(f)(1), the court
must provide Plaintiff with “notice and a reasonable time to respond” before granting
summary judgment for a nonmovant. Therefore, the court will enter judgment on Count
One in favor of all defendants no earlier than April 26, 2011. Before that date, Plaintiff
may file a response to this order if there is a nonfrivolous basis for arguing that the
court’s holding as set forth herein should not apply with equal force to Plaintiff’s claims
A. Factual Background
Plaintiff is a Michigan non-profit corporation that financed with a mortgage certain
real estate that it owns and uses as a church. (Am. Compl. ¶¶ 2-3, 30.) Plaintiff
defaulted on its mortgage obligation, and its creditor, ECCU, initiated foreclosure
proceedings in April 2009 under Michigan’s foreclosure by advertisement statute, Mich.
Comp. Laws § 600.3201-.3285. (2/8/11 ECCU Resp. Br. 5.) The sale, originally
scheduled for May 12, 2009, was postponed by automatic stay when Plaintiff filed for
bankruptcy under Chapter 11 on May 11, 2009. (Id.) Plaintiff never filed a bankruptcy
plan in that action, and the stay was eventually lifted on November 12, 2009. (Id. at 56.) On November 24, 2009, Plaintiff filed a notice of lis pendens with the Oakland
County Register of Deeds. (Id. at 6.) On December 22, 2009, Plaintiff filed a pro se
lawsuit in state court against ECCU, but did not serve the summons and complaint.
The foreclosure sale was eventually conducted on December 29, 2009, by
Defendant Thomas Rabette, a special deputy sheriff for Defendant Oakland County,
who was at that time also the registered agent for Defendant American Process
Service, Inc. (Id. at 5; Am. Compl. ¶¶ 4, 10.) ECCU purchased the property at the sale.
(Am. Compl. ¶ 11.)
On August 5, 2010, after the six-month redemption period had lapsed, ECCU
filed an eviction action. (2/8/11 ECCU Resp Br. 6.) Plaintiff at first defaulted, but
counsel for Plaintiff had the default set aside because this federal action was pending,
and the eviction action was dismissed on September 10, 2010. (Id.)
B. Procedural History
Plaintiff filed the complaint in this case pro se on June 29, 2010, virtually
moments before the redemption period following the December 29, 2009, sheriff’s sale
was to end. Observing that a corporation cannot proceed pro se and must be
represented by an attorney, the court ordered Plaintiff to show cause on August 2,
2010. Plaintiff obtained an attorney, and filed an amended complaint on August 27,
2010. The court held a scheduling conference on November 18, 2010, in which it
determined the factual issue presented by the case was narrow, and that only a short
period of limited and tightly focused discovery would be necessary to determine the
threshold issue, viz., whether Defendant Rabette was lawfully appointed. (11/19/10
Order 1.) The court ordered the parties to exchange certain documents and authorized
limited interrogatories. (Id. at 1-2.)
Utterly disregarding the agreement at the conference and the spirit of the
resulting order, Plaintiff served Defendants with more than two hundred interrogatories
to which Defendants responded with a motion for a protective order. After a hearing,
the court granted the order and quashed the interrogatories. At that hearing, the court
invited Defendants’ motion for summary judgment, and stated that any discovery
Plaintiff reasonably required in order to respond to that motion could be sought by
affidavit or declaration under Rule 56(d).
However, on January 26, 2011, before Defendants could file their motion, Plaintiff
filed its own motion to dismiss the case without prejudice. The matter was given a
higher priority and briefed, but at the hearing Plaintiff withdrew the motion when faced
with the prospect of paying attorney fees. See Fed. R. Civ. P. 41(a)(2). Meanwhile,
Defendants filed their motion for summary judgment on February 1, 2011. When
briefing resumed after the delay occasioned by consideration of Plaintiff’s motion for
voluntary dismissal, Plaintiff filed the anticipated motion for discovery pursuant to
Federal Rule of Civil Procedure 56(d) on March 18, 2011.
After reviewing and researching the motions, on March 28, 2011, the court
ordered Plaintiff to show cause why Defendants’ motion should not be granted on
grounds not raised by Defendants; specifically, the court noted that it appeared that the
Sixth Circuit’s holding in Northrip v. Federal National Mortgage Association, 527 F.2d 23
(6th Cir. 1975)—the sheriff’s participation in Michigan’s foreclosure by advertisement
statute is not “state action”—forecloses Plaintiff’s claims under 42 U.S.C. § 1983.
(3/28/11 Order 2.) See 527 F.2d at 28-29; Ray v. Oakland Cnty. Drain Comm’n, 115 F.
App’x 775, 777 (6th Cir. 2004); Williams v. Wayne County, No. 09-14328, 2011 WL
479959, at *3-5 (E.D. Mich. Feb. 4, 2011). Rule 56(f)(2) requires the court to provide
Plaintiff with notice and a reasonable time to respond, and the court gave Plaintiff two
weeks to explain why Northrip does not control this action.
Plaintiff timely responded on April 11, 2011, with a filing entitled “Plaintiff’s
Response to Order to Show Cause, Motion for Extension of Time to Amend the
The court implores Plaintiff’s counsel to review once more the guidelines for
practicing before this bench. Throughout the course of this litigation, Plaintiff’s counsel
has inexplicably and repeatedly failed to follow the rules with which nearly every
attorney who practices in this court complies. Most recently, both of Plaintiff’s motions
resolved by this order appear on the court’s docket as “Motion for Extension of Time to
File Response/Reply.” (See Dkt. ## 52, 56.) Neither of these pleadings is, in fact, a
“motion for an extension of time to file a response or a reply.” In addition, when a filing
is docketed, any exhibits to it are a continuation of that filing, not a separate docket
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. The court should state on the record the reasons for granting or denying
the motion.” Fed. R. Civ. P. 56(a). “After giving notice and a reasonable time to
respond, the court may . . . grant the motion on grounds not raised by a party . . . .”
Fed. R. Civ. P. 56(f)(2).
A. Motion for Summary Judgment and Motion for Discovery
Plaintiff attempts to distinguish Northrip by suggesting that this court
misconstrued its holding in the order to show cause. Plaintiff characterizes Northrip
thus: “[T]he Northrip case challenged Michigan’s nonjudicial foreclosure statutes by
entry, E.D. Mich. LR App. ECF R18(b) (“Each exhibit must then be filed and identified
as a separate attachment to the paper . . . .” (emphasis added)), a standard which
Plaintiff’s counsel has ignored in several filings, (see Dkt. ## 27-30, 41-42, 45-46, 5254, 56-57), in spite of an earlier demonstration of his ability to comply with the Rules,
(see Dkt. ## 3, 21).
Finally, Plaintiff’s most recent “motion,” (Dkt. # 56), is styled as a response to the
court’s order to show cause combined with a motion for extension of time to amend the
complaint. Unless explicitly permitted by the court, attorneys are forbidden from
combining motions with responses. See E.D. Mich. LR App. ECF R5(e); see also
Motion Practice (Civil), Practice Guidelines for Judge Robert H. Cleland,
Lest this warning be perceived as all bark and no bite, the court reminds
Plaintiff’s counsel that a knowing violation of these rules is sanctionable, E.D. Mich. LR
App. ECF R4 (citing E.D. Mich. LR 11.1), and Plaintiff’s counsel should not be surprised
if any additional failures to comply with the local rules are met with stricken filings and
For the sake of efficiency, the court will simply construe Plaintiff’s response as a
motion for an extension of time to file an amended complaint that happens to be
responsive to the order to show cause, since that motion will be denied on its merits
regardless of whether it is undertaken now as it lies, or later if it were re-filed correctly.
asserting that nonjudicial foreclosure deprives property owners of their rights without the
due process of a hearing.” (4/11/11 Mot. ¶ 6.) Plaintiff also attempts to distinguish
Williams, which applied Northrip, by pointing to the “glaring difference” that Williams
involved allegations that the sheriff failed to sign the special deputy sheriff appointment
form, while this case involves allegations of “conflict of interest and public corruption.”
(Id. ¶ 7.) Perhaps aware, like Belshazzar, of the writing on the wall, Plaintiff concludes,
“[e]ven if Plaintiff concedes that Count One, regarding the federal claim . . . may be
dismissed based upon Northrip,” Plaintiff desires more time to add to its complaint a
claim under the civil Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. § 1964, and says 60 days are needed “to secure co-counsel to assist Plaintiff.”
(Id. ¶ 8.)
This case falls squarely within Northrip, Ray, and Williams. Those cases were
centered on Michigan’s foreclosure by advertisement statute, as is this one. Those
cases brought constitutional claims that the Fourteenth Amendment’s Due Process
Clause or Equal Protection Clause had been violated because of a state official’s
participation in the foreclosure process. And those cases rejected those claims
because foreclosure by advertisement in Michigan does not involve state action.
Plaintiff’s argument that the facts before this court are distinguishable because of
alleged public corruption or conflicts of interest are of no moment. Even assuming,
arguendo, that “public corruption” or a “conflict of interest” arose when Plaintiff’s church
was sold, if there is no state action, there can be no due process or equal protection
claim. See U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” (emphasis added)). Moreover, Plaintiff
cites no authority recognizing a public corruption exception to the rule set forth in
Northrip, and none is apparent to the court. Two weeks’ notice is more than sufficient
for Plaintiff to conduct legal research and craft an argument for why Northrip does not
control. Defendants’ summary judgment motion is ripe for decision. Because additional
facts are irrelevant to this determination of law, no discovery is necessary. This case is
indistinguishable from the binding precedent of Northrip, and summary judgment must
be granted—on legal grounds not raised by Defendants’ fact-centric motion—on
Plaintiff’s § 1983 claim.
B. Motion for Extension of Time to File an Amended Complaint
The resolution of Plaintiff’s motion for an extension of time to file an amended
complaint depends on whether the court would be inclined to grant the motion based on
Plaintiff’s present averments as to the contents of the amended complaint. A motion to
amend at this late stage, in the absence of the opposing parties’ consent, requires the
court’s leave, which is “freely give[n] . . . when justice so requires.” Fed. R. Civ. P.
If justice requires anything in this case, it requires the motion to be denied. This
action is not a civil RICO action, nor has it ever been. The first mention of RICO claims
was in Plaintiff’s motion for discovery under Rule 56(d), filed nearly nine months after
the case was initiated. (3/18/11 Mot. Br. 9.) Importantly, Plaintiff did not diligently move
to amend its complaint after its first notice of a possible claim. United States District
Court is a public forum for aggrieved parties to bring their reasonably-focused disputes
to be adjudicated. It is not a laboratory for creative attorneys and parties to tinker with
experimental legal theory by trial and error: if one claim fails in the face of precedent
more than thirty-five years old (42 U.S.C. § 1983), just amend and try another (18
U.S.C. § 1964). Were the RICO claims to fail, to what might Plaintiff next turn? The
Free Exercise Clause? Intentional infliction of emotional distress? The court will not
further prolong this case in order to entertain additional whimsical theories or dilatory
tactics. See Foman v. Davis, 371 U.S. 178, 182 (1962) (stating “undue delay, bad faith
or dilatory motive on the part of the movant” are grounds for denying a motion to amend
a complaint); Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 520 (6th
C. Supplemental Jurisdiction
With summary judgment granted against Plaintiff on its only federal count, the
court turns to what becomes of Plaintiff’s quiet title claim. In its motion, Plaintiff argues
that the court should exercise supplemental jurisdiction over its quiet title claim
irrespective of the merits of its federal claim, and consequently should open the gates of
discovery. If the court declines to exercise jurisdiction, Plaintiff, foreshadowing its plans
for yet further litigation in state court, says that the quiet title claim should be dismissed
Once the court has exercised supplemental jurisdiction, it need not dismiss the
state law claim merely because the federal claim failed. See Gamel v. City of
Cincinnati, 625 F.3d 949, 952-53 (6th Cir. 2010). However, “[w]hen all federal claims
are dismissed before trial, the balance of considerations usually will point to dismissing
the state law claims, or remanding them to state court if the action was removed.”
Gamel, 625 F.3d at 952 (quoting Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d
1244, 1254-55 (6th Cir. 1996)) (internal quotation marks omitted); see 28 U.S.C.
§ 1367(c)(3). The court must weigh the factors set forth in Carnegie-Mellon University
v. Cohill, 484 U.S. 343 (1988), to determine whether to retain jurisdiction. Gamel, 625
F.3d at 951-52. Those factors are judicial economy, convenience, fairness, and comity.
Carnegie-Mellon, 484 U.S. at 350; Gamel, 625 F.3d at 951-52.
True, § 1367(c)(3) and Gamel address what becomes of state law claims where
all federal claims have been dismissed, while here the court has resolved to grant
summary judgment on the lone federal claim. However, where, as here, the court has
granted summary judgment on a pure question of law that should have been raised by
Defendants in a motion to dismiss, and where the parties have not invested significant
resources in discovery, the grant of summary judgment is indistinguishable from
dismissal on the legal merits of the claim for the purposes of the supplemental
jurisdiction analysis, with the exception that the extra effort expended on the matter by
the time summary judgment is reached may tip the scales in favor of retaining
jurisdiction in some cases. See Carnegie-Mellon, 484 U.S. at 350 (“[A] federal court
should consider and weigh in each case, and at every stage of the litigation, the values
of judicial economy, convenience, fairness, and comity in order to decide whether to
exercise jurisdiction . . . .” (emphasis added)).
But the scales are not so tipped here. Because the factual issue presented by
Plaintiff was narrow, the court provided only narrow discovery, and has minimized
judicial expenditures in pursuit of an answer to that question. All three of the other
factors—convenience, fairness, and comity—also weigh in favor of dismissal. Quiet title
claims invoke quintessentially state-law questions and very rarely breathe the
jurisdictionally-constricted air of the federal courthouse. It therefore would be more fair
to the parties to have a state court resolve any quiet title claim, and comity obviously
demands the same. There may be some inconvenience occasioned on the parties by
having to pursue any claim or respond to any defense in yet another action, but that
inconvenience is outweighed by the convenience afforded by litigating a property action
in a state court most familiar with Michigan title law. This second claim—the remainder
of the case—must be dismissed.
D. Rule 11 Caution
The court is well aware of the pain, disappointment, and frustration attendant to a
property foreclosure; numerous owners of foreclosed properties have in recent years
presented themselves in court trying to stop or otherwise manage the process. The
court can only imagine that, where the foreclosed property houses a church, those
feelings must be magnified several fold. Bad things sometimes happen to good people.
But not every bad thing that happens in the world is a constitutional tort. A foreclosure
process that started some two years ago has been hindered and obstructed through
nearly every conceivable means by Plaintiff, and as a result, Plaintiff appears to have
maintained control of the property for an unusually extended time.
Financial institutions are owned, ultimately, by ordinary people; these are often
stock investors, but in the case of credit unions they are simply the customers.
Financial institutions and their owners have legal rights, too. Tellingly, Plaintiff has not
argued that it did not mortgage its property or that it did not default on its payments.
ECCU loaned Plaintiff money and secured the loan with the property, and has now been
bogged down in what appears to be frivolous litigation for years.
All litigation must eventually come to an end. While this court does not have the
authority to bar all legal causes of action that may be available to Plaintiff as it seeks to
retain its building, the court will give Plaintiff this notice: abuses of the legal system will
be tolerated only up to a point. Although the court entertains no plan to impose
sanctions in this case, the court is more than satisfied that the complaint and amended
complaint in this matter were filed without “an inquiry reasonable under the
circumstances.” Fed. R. Civ. P. 11(b). More to the point, it seems quite apparent that
this action was presented to generate a delay, and, as noted above, the claims were not
warranted by existing law or a nonfrivolous argument for modifying it. See Fed. R. Civ.
P. 11(b)(1)-(2). Thus, before Plaintiff runs to the state courthouse to file a suit to quiet
title (or whatever other glittering claim may momentarily capture its attention), or before
Plaintiff files a new federal complaint with civil RICO claims, the court strongly
recommends that Plaintiff and its counsel carefully analyze the legal and factual bases
for its allegations; Michigan courts have the power to sanction, too. See Mich. Ct. R.
Accordingly, IT IS ORDERED that Plaintiff’s motion for extension of time [Dkt. #
56] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s “Motion for Discovery Pursuant to
[Federal Rule of Civil Procedure] 56(d)” [Dkt. # 52] is DENIED.
IT IS FURTHER ORDERED that Defendants’ “Motion for Summary Judgment”
[Dkt. # 33] is GRANTED on grounds not raised by a party. See Fed. R. Civ. P. 56(f)(2).
Finally, IT IS ORDERED that Count Two of the Amended Complaint is
DISMISSED WITHOUT PREJUDICE.
Judgment will follow separately. As noted in footnote 1, supra, the court will
withhold judgment at least until April 26, 2011, to provide Plaintiff with a reasonable time
to respond to the court’s inclination to enter judgment in nonmovant ECCU’s favor. See
Fed. R. Civ. P. 56(f)(1).
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 20, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 20, 2011, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
S:\Cleland\JUDGE'S DESK\C2 ORDERS\10-12566.NEWJERUSALEM.GrantSummaryJudgment.jmp.wpd
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