Smith v. Holly Hills Development et al

Filing 19

Order Dismissing Counts IV, V and VI Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELISSA FAY SMITH,
Plaintiff,
vs.

Case No. 13-12503

HOLLY HILLS DEVELOPMENT, LLC,
a Michigan limited liability company,
SHECTER LANDSCAPING, INC., a
Michigan corporation, KENNETH J. SHECTER,
and CITY OF KEEGO HARBOR, a
Municipal Corporation, jointly and
severally,

HON. AVERN COHN

Defendants.
__________________________________/
ORDER DISMISSING COUNTS IV, V and VI
I.
This is a deprivation of rights case. Plaintiff owns residential property in the City
of Keego Harbor. Her property adjoins a landscaping development business owned by
Holly Hills Development, Shecter Landscaping, Inc. and Kenneth Shecter (the Shecter
defendants). Plaintiff alleges that the Shecter defendants have operated the business
in violation of Keego Harbor zoning ordinances and have created a nuisance. Plaintiff
also alleges that the City of Keego Harbor maliciously prosecuted her after she
complained about the Shecter defendants. Finally, plaintiff alleges defendants violated
and/or conspired to violate her rights to due process and equal protection. The
complaint makes the following claims:

Count I

Violation of 42 U.S.C. § 1983 by the City of Keego Harbor

Count II

Violation of 42 U.S.C. § 1985(3) by all defendants

Count III

Violation of 42 U.S.C. § 1986 by all defendants

Count IV

Malicious Prosecution by the City of Keego Harbor

Count V

Improper Regulatory Taking/Inverse Condemnation by the
City of Keego Harbor

Count VI

Nuisance by the Shecter defendants
II.

Federal district courts have original subject-matter jurisdiction over cases arising
under federal law. 28 U.S.C. § 1331. As such, the Court has subject-matter jurisdiction
over Counts I-III. Count IV, V, and VI are based on state law. Although the Court has
supplemental jurisdiction over these state-laws claim under to 28 U.S.C. § 1367(a),1 it
may decline to exercise supplemental jurisdiction if the state-law claim “substantially
predominates over the claim or claims over which the district court has original
jurisdiction,” or if “there are other compelling reasons for declining jurisdiction.” Id. §
1367(c)(2), (c)(4).
Here, plaintiff’s state law claims substantially predominate over the federal
claims, raise novel and complex issues of state law that would be more appropriately
adjudicated by the state court, and will result in the undue confusion of the jury if they
remain in the case. See § 1367(c)(1), (2) and (4); Padilla v. City of Saginaw, 867 F.

1

28 U.S.C. § 1367 provides in relevant part that “the district court shall have
supplemental jurisdiction over all other claims that are so related to the claims in the
action within such original jurisdiction that they form a part of the same case or
controversy . . . .” 28 U.S.C. § 1367(a).
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Supp. 1309, 1315 (E.D. Mich.1994). Therefore, the Court declines to exercise
supplemental jurisdiction over Count IV, V, and VI. These counts are DISMISSED
WITHOUT PREJUDICE.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: August 2, 2013

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, August 2, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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