Frickco Incorporated v. Nehmeh Enterprises, Inc. et al

Filing 57

ORDER granting in part and denying in part 28 Motion to Dismiss; granting 36 Motion for Partial Dismissal. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FRICKCO INCORPORATED,
a Michigan corporation, individually
and as the representative of a class
of similarly situated persons,
Plaintiff,
Case No. 11-CV-11168
HON. GEORGE CARAM STEEH

v.
NEHMEH ENTERPRISES, INC.
d/b/a LITTLE CAESAR’S,
ALI NEHMEH, CAPITAL
COMMUNICATIONS, INC.,
and LESTER MORALES,
Defendants.
_____________________________/

ORDER GRANTING IN PART AND DENYING IN PART MOTION
TO DISMISS (#28) AND GRANTING MOTION FOR PARTIAL DISMISSAL (#36)
On March 22, 2011, plaintiff filed a class action complaint alleging Nehmeh
Enterprises, Inc. d/b/a Little Caesar’s (“NEI”), Little Caesar Enterprises, Inc., Little Caesar
Detroit DMA Advertising Program, Inc., and Caesar Fund, Inc. violated the Telephone
Consumer Protection Act, 47 U.S.C. §227, by sending unsolicited advertising faxes to
plaintiff and others, and alleging conversion on the same basis. On May 18, 2011, plaintiff
filed a first amended class action complaint, adding defendants Ali Nehmeh, Capitol
Communications, Inc., and Lester Morales and dismissing the Little Caesar defendants.
The case was stayed from August 15, 2011 to January 23, 2012. The motions currently
before the court are defendants NEI and Nehmeh’s motion to dismiss (#28) and defendants
Capitol and Morales’s motion for partial dismissal (#36). In their motion to dismiss,

defendants NEI and Nehmeh argue (1) Michigan Court Rule 3.501(A)(5) prohibits class
actions for a minimum amount; (2) plaintiff has not stated a plausible claim to hold Nehmeh
personally liable under the TCPA; and (3) the conversion claim is barred by the de minimis
doctrine or, alternatively, the court should decline to exercise supplemental jurisdiction. In
their motion for partial dismissal, defendants Capitol and Morales argue the conversion
claim should be dismissed because it is legally impossible to convert employee time and
plaintiff’s conversion claim is de minimis. Alternatively, defendants Capitol and Morales ask
the court to decline to exercise supplemental jurisdiction over the conversion claim. The
motions are fully briefed and a hearing was held on the motions on March 8, 2012. At the
hearing, defendants NEI and Nehmeh indicated they were withdrawing their argument that
MCR 3.501(A)(5) prohibits the class action asserted in this case. For the reasons set forth
on the record, NEI and Nehmeh’s request to dismiss the TCPA claim against Nehmeh is
DENIED and request to decline to exercise supplemental jurisdiction over the conversion
claim is GRANTED. Capitol and Morales’s motion for partial dismissal is GRANTED in so
far as the court declines to exercise supplemental jurisdiction over the conversion claim and
therefore DISMISSES the conversion claim without prejudice.
IT IS SO ORDERED.
Dated: March 12, 2012

s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on
March 12, 2012, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

2