McCarty et al v. Southfield, City of et al

Filing 60

ORDER GRANTING DEFENDANT CITY OF SOUTHFIELD'S MOTION FOR SUMMARY JUDGMENT 55 . Signed by District Judge Arthur J. Tarnow. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHERYL MCCARTY, ET AL.,
Case No. 12-13605
Plaintiffs,
SENIOR UNITED STATES DISTRICT
JUDGE ARTHUR J. TARNOW

v.
CITY OF SOUTHFIELD, ET AL.,
Defendants.
/

ORDER GRANTING DEFENDANT CITY OF SOUTHFIELD’S MOTION FOR SUMMARY
JUDGMENT [55]

On August 24, 2012, Plaintiffs filed a Complaint [Dkt. #1] against
Defendant City of Southfield (the City), Defendant Birberick, and several other
defendants. Plaintiffs raised only one claim against the City, arising under 42
U.S.C. § 1983. On June 28, 2013, the defendants jointly filed a Motion for
Summary Judgment [31]. The Court held a hearing on the motion on December
11, 2013. During the hearing, Plaintiffs conceded that they had no valid claim
against the City or any defendant but Defendant Birberick. The Court questioned
whether they had adequately alleged a federal claim against Defendant Birberick
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sufficient to support the Court’s subject-matter jurisdiction. The Court held a
conference with the parties immediately after the hearing, during which the Court
granted Plaintiffs permission to file an amended complaint. On December 13,
2013, the Court entered an Order [37] dismissing the City (and all other defendants
but Defendant Birberick) from the case.
Plaintiffs filed an Amended Complaint [38] on February 18, 2014. The
Amended Complaint contains a state statutory claim against the City for negligent
operation of a government-owned vehicle. Plaintiffs had not previously expressed
an intent to raise this claim or asked the Court’s leave to add the City as a party
after its dismissal. Defendants filed a Renewed Motion for Summary Judgment
[41] on March 28, 2014. Plaintiffs did not file a response. On August 7, 2014, the
Court issued an Order for Plaintiffs to Show Cause Why Defendants’ Renewed
Motion for Summary Judgment Should Not Be Granted [42]. Plaintiffs filed a
Response to the Order to Show Cause [43] on August 22, 2014.
On March 25, 2015, the Court held a hearing on the renewed motion.
During the hearing, Plaintiffs conceded that they had not served the City with the
Amended Complaint, though they had provided it to Defendants’ counsel, who had
represented the City before its dismissal. Defendants’ counsel pointed out that
Plaintiffs had never asked the Court’s leave to add the City as a party. The Court

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asked Plaintiffs if they wished to ask for leave. Plaintiffs did so, and the Court
granted leave.
On December 10, 2015, the City filed the instant Motion for Summary
Judgment [55] on the new claim against it. Plaintiffs did not file a response within
the deadline set by the Local Rules for this district. On February 25, 2016, the
Sixth Circuit affirmed the Court’s denial of qualified immunity to Defendant
Birberick. McCarty v. City of Southfield, — F. App’x —, 2016 WL 761916 (6th
Cir. Feb. 25, 2016). The Court held a telephonic status conference with the parties
on March 22, 2016. After the conference, the Court set an April 8, 2016, deadline
for Plaintiffs’ response to the City’s motion. Plaintiffs have not filed a response.
The Court now finds the motion suitable for determination without a hearing in
accord with Local Rule 7.1(f)(2).
Plaintiffs’ sole claim against the City arises under Michigan Compiled Laws
§ 691.1405, which provides as follows: “Governmental agencies shall be liable for
bodily injury and property damage resulting from the negligent operation by any
officer, agent, or employee of the governmental agency, of a motor vehicle of
which the governmental agency is owner.” The claim is subject to a three-year
statute of limitations. Mich. Comp. L. § 691.1411(1) (“Every claim against any
governmental agency shall be subject to the general law respecting limitations of
actions except as otherwise provided in this section.”); id. § 600.5805(10) (“Except
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as otherwise provided in this section, the period of limitations is 3 years after the
time of the death or injury for all actions to recover damages for the death of a
person, or for injury to a person or property.”). Because Plaintiffs sustained their
injuries underlying the claim on October 24, 2011, the statute of limitations
expired on October 24, 2014.
Plaintiffs filed their original complaint against the City well before October
24, 2014. However, the filing of Plaintiffs’ original complaint against the City did
not toll the statute of limitations because the City was dismissed without prejudice.
Rice v. Jefferson Pilot Financial Ins. Co., 578 F.3d 450, 457 (6th Cir. 2009) (“It is
generally accepted that a dismissal without prejudice leaves the situation the same
as if the suit had never been brought, and that in the absence of a statute to the
contrary a party cannot deduct from the period of the statute of limitations the time
during which the action so dismissed was pending.”) (quoting Wilson v. Grumman
Ohio Corp., 815 F.2d 26, 27 (6th Cir. 1987)).
Plaintiffs also filed their Amended Complaint before the statute of
limitations expired on October 24, 2014. However, Plaintiffs had neither asked for
leave to add the City as a party nor served the Amended Complaint on the City by
the time the statute of limitations had expired. The City was not made a party to
this suit until the Court granted Plaintiffs’ oral motion for leave to add the City as a
party on March 25, 2015. See Nelson v. Adams USA, Inc., 529 U.S. 460, 467
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(2000) (stating that even though a motion to amend a pleading to add a party gave
that potential party notice of potential liability, the potential party “was not a party
prior to the District Court’s ruling on [the] motion to amend”). Because Plaintiffs
did not effectively raise their claim against the City until after the statute of
limitations expired on October 24, 2014, the claim is time-barred. Accordingly,
IT IS ORDERED that the City’s Motion for Summary Judgment [55] is
GRANTED. The City is DISMISSED from the case. The Court will schedule a
final pretrial conference on Plaintiffs’ remaining claims against Defendant
Birberick.
SO ORDERED.

Dated: April 22, 2016

/s/Arthur J Tarnow
Arthur J. Tarnow
Senior United States District Judge

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