Macomb Interceptor Drain Drainage District v. Kilpatrick et al

Filing 302

ORDER granting 294 Defendant Inland Waters Pollution Control's Motion to dismiss and directing the plaintiff to submit the amended complaint (alleging the one contract claim) no later that 7/15/2013.. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MACOMB INTERCEPTOR DRAIN
DRAINAGE DISTRICT,
Plaintiff,
and
CITY OF DETROIT,
Plaintiff-Intervenor,
Case No. 11-13101

v.
KWAME KILPATRICK, et al.,
Defendants.
/

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
In July 2011, Macomb Interceptor Drain Drainage District (“Macomb”) sued
dozens of individuals, including Kwame Kilpatrick, a former mayor of Detroit, and
corporations, including Inland Waters Pollution Control (“Inland”), a sewer-pipe repair
company, for operating a municipal sewage repair project as a racket. From September
2012 to March 2013, Kilpatrick stood trial for corruption; a jury found him guilty of most
charges. Macomb’s action, meanwhile, was narrowed to one count, for breach of
contract, against one defendant, Inland, which now moves to dismiss.
According to two newspaper articles cited by Inland, the sewage repair project
was finished by June 2005. Macomb sued six years and a month later; Inland says
Michigan’s six-year limitation for a breach of contract action therefore bars Macomb’s

claim. See Mich. Comp. Laws § 600.5807(8). As Inland acknowledges, however, the
complaint does not allege when the project ended or when the alleged breach of
contract occurred. Unless the plaintiff pleads itself out of court by alleging in the
complaint facts proving that its claim is late, the defendant may not raise the period of
limitation, an affirmative defense, in a motion to dismiss. In re McKenzie, ___ F.3d ___,
2013 WL 2274006 (6th Cir. 2013) (citing Hensley Mfg. v. ProPride, Inc., 579 F.3d 603,
613 (6th Cir. 2009)).
Inland argues that the complaint provides no factual basis for Macomb’s claim.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Macomb concedes the point,
in effect, by basing its response almost entirely on testimony from Kilpatrick’s recent
trial. Indeed, “Inland’s motion to dismiss must be denied,” says Macomb, “because the
Kilpatrick criminal trial provided abundant factual support” for the complaint. (Dkt.
# 297, Pg ID 5600.) Macomb has things twisted. It must show not that a trial supports
the complaint, but that the complaint supports the complaint.
Inland contends that because, earlier in the action, Macomb had a motion to
amend the complaint denied, Macomb may not amend now. The difference between
then and now is plain. Then, claims had been resolved by summary judgment; now, a
claim is dismissed, for want of facts alleged, on the pleading. If “a more carefully
drafted complaint might state a claim, a plaintiff must be given at least one chance to
amend[.]” Winget v. J.P. Morgan Chase Bank, N.A., 537 F.3d 565, 573 (6th Cir. 2008).
Accordingly,

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IT IS ORDERED that the motion to dismiss [Dkt. # 294] is GRANTED. Macomb
may submit an amended complaint (alleging the one contract claim) by July 15, 2013.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 3, 2013

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 3, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\11-13101.MACOMB.MotDismiss.ckb.wpd

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