Mitan v. Wells Fargo Bank, N.A.

Filing 22

OPINION AND ORDER granting 11 Motion to Dismiss. Signed by District Judge Patrick J. Duggan. (MOre)

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

KEITH J MITAN, as Personal
Representative of the Estate of Frank J.
Mitan,
Plaintiff,
Case No. 13-13598
v.
Hon. Patrick J. Duggan
WELLS FARGO BANK, N.A.,
Defendant.

OPINION AND ORDER GRANTING DEFENDANT’S MOTION AND
DISMISSING THE ACTION WITH PREJUDICE
Plaintiff Keith J. Mitan, a pro se litigant, initiated the present residential
mortgage foreclosure action against Defendant Wells Fargo Bank, N.A. in state
court seeking redress from a foreclosure that was purportedly unlawful under the
laws of the State of Michigan. Defendant removed the case to this Court, invoking
diversity of citizenship as the basis for federal jurisdiction.
Plaintiff’s pleading contains two counts: Count I – Quiet Title and Count II –
Injunctive Relief. Presently before the Court is Defendant’s “Motion to Dismiss
Amended Complaint,” filed pursuant to Federal Rule of Civil Procedure 12(c).
The motion has been fully briefed. Having determined that oral argument would
not significantly aid the decisional process, the Court dispensed with oral argument

pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons
stated herein, the Court will grant Defendant’s Motion and dismiss Plaintiff’s
Amended Complaint with prejudice.
I.
A.

BACKGROUND

Mortgage and Foreclosure
On February 22, 2009, Plaintiff refinanced his then existing mortgage loan

that encumbered a parcel of real property commonly known as 30943 Club House
Lane, Farmington, Michigan by accepting a $175,000 loan from DiTech Funding
Corporation. (Mortgage, Def.’s Mot. Ex. 1.) The mortgage was recorded with the
Oakland County Register of Deeds on March 2, 1999 in Liber 19622, page 879.
(Id.) On October 21, 2000, DiTech assigned the mortgage to Norwest Mortgage,
Inc., which was the predecessor by merger to Defendant.1 (Assignment, Def.’s
Mot. Ex. 2.)
Plaintiff eventually defaulted on his loan obligations by failing to remit
timely payments. Plaintiff’s pleading does not admit the default outright; however,
Plaintiff complains of a violation of Michigan’s loan modification statute, which
serves an implicit acknowledgment that Plaintiff was unable to keep up with his
obligations pursuant to the loan agreement.
1

Plaintiff alleges that Defendant “allegedly purchased Norwest’s interest in
[the] mortgage, but no assignment of that mortgage to Wells Fargo has ever been
recorded.” (Am. Compl. ¶ 7.) Defendant explains that Norwest merged with
Wells Fargo Home Mortgage, Inc. (Def.’s Br. 2.)
2

In early August of 2009, Defendant’s foreclosure counsel mailed a notice to
Plaintiff apprising him of his right to request a meeting to discuss a potential
modification of the existing mortgage, as required by Michigan Compiled Laws §§
600.3204 and 600.3205a-e. (Am. Compl. ¶ 8.) Plaintiff requested a meeting and
alleges that he submitted the materials requested by Defendant to facilitate a loan
modification. (Id. ¶¶ 9-10.) After supplying this information, Defendant advised
Plaintiff “that he had been pre-approved for a loan modification.” (Id. ¶ 10.)
However, on January 22, 2010, Defendant reversed course, sending Plaintiff a
letter informing him that the bank was “unable to adjust the terms of your
mortgage.”2 (Id. ¶ 11.)
As a consequence of Plaintiff’s default, as well as Plaintiff’s inability to
secure a loan modification, Defendant instituted foreclosure by advertisement
proceedings pursuant to Michigan’s statutory scheme on January 5, 2010. (Am.
Compl. ¶ 12.) A sheriff’s sale was held on February 2, 2010, and the Property was
sold to non-party Federal Home Loan Mortgage Corporation (“Freddie Mac”).
(Sheriff’s Deed, Def.’s Mot. Ex. 9.) The deed issued at the sheriff’s sale was
recorded with the Oakland County Register of Deeds on February 9, 2010 in Liber
41833, page 540. (Id.)
2

Defendant has submitted a copy of this letter, which provides: “This
decision was made because you did not provide us with all of the information
needed within the time frame required per your trial modification period workout
plan.” (1/22/10 Letter, Def.’s Mot. Ex. 8.)
3

The six-month period for Plaintiff to redeem the Property expired on August
2, 2010, with Plaintiff failing to redeem. On that date, all legal right and interest in
and to the Property vested in Freddie Mac. Mich. Comp. Laws § 600.3236.
B.

First Lawsuit
On July 19, 2010, Plaintiff filed a virtually identical lawsuit involving the

same parcel of real property in the Oakland County Circuit Court against Freddie
Mac. Freddie Mac removed the lawsuit to the United States District Court for the
Eastern District of Michigan and the case was assigned to the Honorable Bernard
A. Friedman and then-Magistrate Judge Mark A. Randon (who has since become a
United States Bankruptcy Judge). Mitan v. Fed. Home Loan Mortgage Corp., No.
10-13286 (E.D. Mich.). On October 12, 2010, Judge Friedman granted Freddie
Mac’s summary judgment motion. An appeal followed.
The United States Court of Appeals for the Sixth Circuit reversed Judge
Friedman’s grant of summary judgment, and remanded the matter to the district
court. Mitan v. Federal Home Loan Mortgage Corp., 703 F.3d 949, 953 (6th Cir.
2012) (“Mitan I”).

The the Sixth Circuit explained that Michigan’s loan

modification statute imposes various requirements with respect to the negotiation
of loan modifications and held that a lender’s failure to comply with the
requirements rendered the foreclosure by advertisement void ab initio. Nine days
later, the Michigan Supreme Court abrogated Mitan I, holding that a foreclosure
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procedure infected with fraud or irregularity results in “a foreclosure that is
voidable, not void ab initio.” Kim v. JPMorgan Chase Bank, N.A., 493 Mich. 98,
115, 825 N.W.2d 329, 337 (Mich. 2012); see also Mourad v. Homeward
Residential, Inc., 517 F. App’x 360, 367 (6th Cir. 2013) (recognizing that the
Michigan Supreme Court’s decision in Kim abrogated Mitan’s holding).
On remand, Judge Friedman once again entered summary judgment in favor
of Freddie Mac, and later denied Plaintiff’s motion for relief from judgment.
C.

The Instant Action
On January 31, 2013, Plaintiff filed a new complaint relating to the property

at issue in Judge Friedman’s case in the Oakland County Circuit Court, naming
Wells Fargo as a defendant instead of Freddie Mac.3 Defendant removed the
action to this Court, filing its notice of removal on August 20, 2013.

On

September 19, 2013, Plaintiff filed a Motion to Remand the proceedings back to
the state court, arguing that Defendant did not timely remove the action. (ECF No.
4.) In an Order dated November 25, 2013, the Court denied Plaintiff’s Motion to
Remand, finding that Defendant was not properly served with the summons and
3

Plaintiff explains that he filed this second action after the Sixth Circuit
remanded Mitan I because leave to amend to add Wells Fargo as a party was
previously denied in Judge Friedman’s case. What Plaintiff fails to mention is that
Magistrate Judge Randon’s report and recommendation (R&R), which Judge
Friedman adopted, deemed the proposed amendment futile. Further, Plaintiff does
not explain why he did not seek leave to amend once the case had been remanded,
as the basis for Magistrate Judge Randon’s futility finding was, at least for a nineday period, rendered questionable in light of the Sixth Circuit’s holding in Mitan I.
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complaint, and, therefore, that the thirty-day period in which to file a notice of
removal pursuant to 28 U.S.C. § 1446 did not commence on the date Plaintiff
insisted. (ECF No. 13.)
On October 23, 2013, before the Court issued its decision denying Plaintiff’s
remand motion, Plaintiff filed his First Amended Complaint.

(ECF No. 10.)

Defendant filed its Motion to Dismiss Amended Complaint on November 6, 2013.4
(ECF No. 11.) This motion has been fully briefed.
D.

Post-Removal Procedural Matters
On December 2, 2013, Plaintiff filed a Motion to Reassign Case. (ECF No.

14.) This was the first time Plaintiff indicated that the case was a companion to
Judge Friedman’s case, in contravention of Eastern District of Michigan Local
Rule 83.11. Despite Plaintiff’s omission, the Court contacted Judge Friedman to
4

Defendant’s Motion, which is labeled as a motion to dismiss, contains
standards of review for both motions for judgment on the pleadings under Federal
Rule of Civil Procedure 12(c) and summary judgment under Rule 56. The reason
for this appears to be because Defendant filed an Answer to Plaintiff’s original
complaint. (ECF No. 6.) Perhaps recognizing that a post-answer motion to
dismiss is properly brought pursuant to Rule 12(c), Defendant cites this as one of
the pertinent legal standards. See 5B Wright & Miller, Federal Practice &
Procedure § 1357 (3d ed. 2004) (“[A] post-answer Rule 12(b)(6) motion is
untimely and . . . some other vehicle, such as a motion for judgment on the
pleadings . . . must be used.”). Defendant never answered to Plaintiff’s First
Amended Complaint, and, as such, a motion to dismiss pursuant to Ruler 12(b)(6)
would have been appropriate. Irrespective of which motion should have been
filed, federal courts review motions for judgment on the pleadings brought
pursuant to Rule 12(c) using the standards applicable to Rule 12(b)(6) motions.
Wee Care Child Ctr., Inc. v. Lumpkin, 680 F.3d 841, 846 (6th Cir. 2012). Thus,
any error in this regard is inconsequential.
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determine if he would accept reassignment, and he answered in the affirmative. As
such, the case was reassigned to Judge Friedman (and then-Magistrate Judge
Randon) on December 6, 2013. (ECF No. 16.) Three days later, Judge Friedman
issued an Order disqualifying himself from the action pursuant to 28 U.S.C. § 455,
and further ordering that “in accordance with [Local Rule] 83.11(d), this case be
reassigned by blind draw to another judge of this court.” (ECF No. 17.) The
Honorable Paul D. Borman drew the case and the matter was reassigned to him.
On September 9, 2014, Judge Borman issued an Order reassigning the case to the
undersigned, explaining that when Judge Friedman disqualified himself, “the case
should have been returned to the originally assigned judge[.]” (ECF No. 20.)
II.

GOVERNING LEGAL STANDARD

Federal courts review motions for judgment on the pleadings brought
pursuant to Federal Rule of Civil Procedure 12(c) using the standards applicable to
motions filed under Rule 12(b)(6). Wee Care Child Ctr., Inc. v. Lumpkin, 680 F.3d
841, 846 (6th Cir. 2012). Though litigants employ these procedural mechanisms at
different stages of the proceedings, the purpose of both motions is to test the legal
sufficiency of a plaintiff’s pleadings. Thus, as with Rule 12(b)(6) motions, a Rule
12(c) motion allows a court to make an assessment as to whether a plaintiff has
stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

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As articulated by the Supreme Court of the United States, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 555, 570, 127 S. Ct. 1955, 1974 (2007)). This facial plausibility standard
requires claimants to put forth “enough fact[s] to raise a reasonable expectation
that discovery will reveal evidence of” the requisite elements of their claims.
Twombly, 550 U.S. at 557, 127 S. Ct. at 1965. Even though a complaint need not
contain “detailed” factual allegations, its “factual allegations must be enough to
raise a right to relief above the speculative level.”

Ass’n of Cleveland Fire

Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (citing Twombly,
550 U.S. at 555, 127 S. Ct. at 1965) (internal citations omitted).
While courts are required to accept the factual allegations in a complaint as
true, Twombly, 550 U.S. at 556, 127 S. Ct. at 1965, the presumption of truth does
not apply to a claimant’s legal conclusions, Iqbal, 556 U.S. at 678, 129 S. Ct. at
1949. Therefore, to survive a motion to dismiss, a plaintiff’s pleading for relief
must provide “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Ass’n of Cleveland Fire Fighters, 502
F.3d at 548 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65) (internal
citations and quotations omitted).
8

Compared to formal pleadings drafted by lawyers, a generally less stringent
standard is applied when construing the allegations pleaded in a pro se
complaint. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596 (1972); see
also Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007)
(reaffirming rule of more liberal construction of pro se complaints less than two
weeks after issuing Twombly).
In addition to evaluating the sufficiency of the factual allegations within the
four corners of a complaint, courts may consider any exhibits attached to the
complaint, matters of public record, and exhibits attached to a defendant’s 12(b)(6)
motion, provided that the latter are referred to in the complaint and are central to
the claims therein. Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) (citing
Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)). In the present case, the
Court has considered documents attached to Defendant’s Motion, as they have
been referred to in Plaintiff’s First Amended Complaint and are central to the
claims asserted therein.
III.

ANALYSIS

Plaintiff’s First Amended Complaint contains two counts: Count I – Quiet
Title and Count II – Injunctive Relief. Defendant seeks dismissal of both counts
on the following grounds: (1) Plaintiff’s pleading fails to state a claim upon which
relief can be granted; (2) the “first to file” or “first-filed rule” requires the Court to
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give full effect to Judge Friedman’s judgment in the companion case; and (3)
Plaintiff, who is proceeding pro se, purports to be the personal representative of the
Estate of Frank J. Mitan but is not a beneficiary of the Estate, and, in any event,
may not represent anyone’s interest other than his own because he is not licensed
to practice law, see 28 U.S.C. § 1654. Because the Court concludes that the first
argument is dispositive, it declines to address Defendant’s remaining contentions.
A.

General Principles Governing Foreclosures by Advertisement
Foreclosures by advertisement, such as the foreclosure at issue in this case,

as well as the rights of both the mortgagor and mortgagee after a foreclosure sale
has occurred, are governed by Michigan statutory law. See, e.g., Senters v. Ottawa
Sav. Bank, F.S.B., 443 Mich. 45, 50, 503 N.W.2d 639, 641 (Mich. 1993); Conlin v.
Mortgage Elec. Registration Sys., Inc., 714 F.3d 355, 359 (6th Cir. 2013) (applying
Michigan law) (citation omitted).
Pursuant to Michigan law, a mortgagor has six months from the date of the
sheriff’s sale to redeem foreclosed property. Mich. Comp. Laws § 600.3240(8).
Significant consequences flow from a mortgagor’s failure to redeem prior to the
expiration of the statutory redemption period: the mortgagor’s “right, title, and
interest in and to the property” are extinguished, Piotrowski v. State Land Office
Board, 302 Mich. 179, 187, 4 N.W.2d 514, 517 (Mich. 1942), and the deed issued
at the sheriff’s sale “become[s] operative, and [] vest[s] in the grantee named
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therein . . . all the right, title, and interest [] the mortgagor had[,]” Michigan
Compiled Laws § 600.3236. This rule of law – holding that absolute title vests in
the purchaser at the foreclosure sale upon expiration of the redemption period – has
been applied consistently by state and federal courts alike to bar former owners
from making any claims with respect to a foreclosed property after the statutory
redemption period has lapsed.
There is one caveat to the general rule described above: after the redemption
period has run, a court may allow “an equitable extension of the period to redeem”
if a plaintiff-mortgagor makes “a clear showing of fraud, or irregularity[.]”
Schulthies v. Barron, 16 Mich. App. 246, 247-48, 167 N.W.2d 784, 785 (Mich. Ct.
App. 1969); Freeman v. Wozniak, 241 Mich. App. 633, 637, 617 N.W.2d 46, 49
(Mich. Ct. App. 2000) (“[I]n the absence of fraud, accident or mistake, the
possibility of injustice is not enough to tamper with the strict statutory
requirements.”) (citing Senters, 443 Mich. at 55, 503 N.W.2d at 643). In order to
satisfy this standard, a plaintiff-mortgagor’s pleading must allege misconduct
related to the foreclosure procedure itself.

Conlin, 714 F.3d at 360; Reid v.

Rylander, 270 Mich. 263, 267, 258 N.W. 630, 631 (Mich. 1935) (holding that only
the foreclosure procedure may be challenged after a sale); Freeman, 241 Mich.
App. at 636-38, 617 N.W.2d at 49 (reversal of sheriff’s sale improper without
fraud, accident, or mistake in foreclosure procedure).
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If fraud or irregularity is shown in connection to the foreclosure procedure,
the result is “a foreclosure that is voidable, not void ab initio.” Kim, 493 Mich. at
115, 825 N.W.2d at 337. In order “to set aside the foreclosure sale, [a] plaintiff[]
must show that they were prejudiced by defendant’s failure to comply” with
Michigan’s foreclosure by advertisement statute. Id.; Conlin, 714 F.3d at 361.
“To demonstrate such prejudice, [a plaintiff] must show that [he or she] would
have been in a better position to preserve [his or her] interest in the property absent
defendant’s noncompliance with the statute.” Kim, 493 Mich. at 115-16, 825
N.W.2d at 337 (footnote omitted).
B.

Setting Aside the Foreclosure Sale
Because the redemption period in the present case expired years ago, and

because Plaintiff seeks an order from this Court rescinding the deed issued at the
sheriff’s sale, the Court must analyze Plaintiff’s claims within the fraud or
irregularity framework outlined above. Thus, the Court must decide whether,
under Michigan law, the foreclosure sale can be set aside, or is voidable, on the
facts alleged. The answer to this inquiry is no. Upon review, neither count within
Plaintiff’s First Amended Complaint even arguably constitutes fraud or irregularity
in connection with the foreclosure procedure, rendering the action both factually
and legally frivolous. As the discussion that follows will illustrate, there are
several bases for this conclusion.
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Plaintiff complains of a violation of the loan modification statute and seeks
full title to the Property as a result of the alleged violation. However, failure to
comply with the loan modification statute does not constitute a showing of fraud or
irregularity in the foreclosure procedure. See, e.g., Williams v. Pledged Property
II, L.L.C., 508 F. App’x 465, 468 (6th Cir. 2012) (“Despite the fact that [loan]
negotiations may have taken place during the foreclosure process, these
negotiations remained separate from the foreclosure process itself.”). Further, to
the extent Plaintiff seeks relief for Defendant’s purported noncompliance with
Michigan’s loan modification procedures on the basis that such noncompliance
constitutes a structural defect rendering the foreclosure void ab initio, the Court
notes that such a theory was explicitly rejected by the Michigan Supreme Court in
Kim. 493 Mich. at 115, 825 N.W.2d at 337.
Further still, the loan modification statute “does not permit the Court to set
aside a completed foreclosure sale.” Benford v. CitiMortgage, Inc., No. 11-12200,
2011 U.S. Dist. LEXIS 130935, at *5 (E.D. Mich. Nov. 14, 2011) (Duggan, J.)
Rather, the statute provides for a specific remedy in cases where a foreclosure by
advertisement is commenced in violation of the loan modification statute: “the
borrower may file an action in the circuit court for the county where the mortgaged
property is situated to convert the foreclosure proceeding to a judicial foreclosure.”
Mich. Comp. Laws § 600.3205c(8); Block v. BAC Home Loans Serv., L.P., 520 F.
13

App’x 339, 340-41 (6th Cir. 2013) (“[T]he remedy for a breach of the loanmodification statute is to ‘convert the foreclosure proceeding to a judicial
foreclosure.’”) (citation omitted); Smith v. Bank of Am. Corp., 485 F. App’x 749,
756 (6th Cir. 2012) (rejecting the plaintiffs’ loan modification claim and further
explaining that the plaintiffs “appear to have missed the boat regarding the
applicability of this statute, which, when triggered, allows plaintiffs to enjoin a
foreclosure by advertisement and convert it to a judicial foreclosure: they brought
this action after the foreclosure sale occurred, and so there is no foreclosure to
enjoin or convert”).
In the present case, the foreclosure is complete and the redemption period
expired on August 2, 2010. Plaintiff did not avail himself of his right to redeem
and upon expiration of that right, all of his rights in and to the Property were
extinguished and the deed issued at the sheriff’s sale became operative, vesting in
the grantee, Freddie Mac, all of the rights in and to the Property that Plaintiff
previously had. Piotrowski, 302 Mich. at 187, 4 N.W.2d at 517; Mich. Comp.
Laws § 600.3236. Simply stated, there is simply no basis in law or equity to
unwind the foreclosure.
Plaintiff’s individual counts fare no better, as neither quiet title nor
injunctive relief are independent causes of action; rather, they are remedies. In
Count I, Plaintiff asks this Court to quiet title to the Property in his favor. Quiet
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title actions are remedies, not independent causes of action. Goryoka v. Quicken
Loan, Inc., 519 F. App’x 926, 928-29 (6th Cir. 2013) (per curiam) (affirming
district court’s dismissal of the plaintiff’s quiet title count on this basis). Michigan
law does, however, provide a statutory mechanism for quieting title, which the
Court addresses in the interest of completeness.
Michigan Compiled Laws § 600.2932(1) provides, in pertinent part: “Any
person . . . who claims any right in, title to, equitable title to, interest in, or right to
possession of land, may bring an action . . . against any other person who claims . .
. [an inconsistent interest].” This statutory language requires a plaintiff seeking to
quiet title to establish a substantive right in the property superior to others claiming
an inconsistent interest. Beach v. Twp. of Lima, 489 Mich. 99, 110, 802 N.W.2d 1,
8 (Mich. 2011). Plaintiff bears the initial burden of proof and must establish a
prima facie case of title. Stinebaugh v. Bristol, 132 Mich. App. 311, 316, 347
N.W.2d 219, 221 (Mich. Ct. App. 1984) (citation omitted). “Establishing a prima
facie case of title requires a description of the chain of title through which
ownership is claimed.” Sembly v. U.S. Bank, N.A., No. 11-12322, 2012 U.S. Dist.
LEXIS 1440, at *9 (E.D. Mich. Jan. 6, 2012) (Rosen, C.J.).
Plaintiff has not alleged facts establishing a prima facie case of title.
Nowhere in his First Amended Complaint does Plaintiff mention anything even
closely resembling the chain of title through which ownership is claimed. Of
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greater import, “Plaintiff does not contest that he failed to pay and defaulted on the
loan. He provides no allegations to indicate that he has a plausible claim of
ownership superior to the Bank’s.” Rydzewski v. Bank of N.Y. Mellon, No. 1212047, 2012 U.S. Dist. LEXIS 129955, at *10 (E.D. Mich. Sept. 12, 2012) (Cohn,
J.). Ironically, Plaintiff’s First Amended Complaint supports a finding that Freddie
Mac (the purchaser of the Property at the sheriff’s sale) has superior title to the
Property based on the sheriff’s sale and expiration of the redemption period.
In Count II, Plaintiff asks for injuctive relief, specifically requesting “that
this Court enjoin [Defendant] . . . , from taking any action based upon [the]
Sheriff’s Deed.” Plaintiff has alleged neither facts nor a legal basis supporting
application of this remedy. Because Plaintiff has not stated a single viable claim,
he has not shown an entitlement to any form of relief.
The final basis for this Court’s conclusion that Plaintiff’s lawsuit must be
dismissed is that Plaintiff makes no effort to explain why an action to quiet title has
been brought against Defendant, as Defendant does not have title to, or claim any
ownership interest in, the Property. Rather, as the purchaser of the Property at the
sheriff’s sale and the entity named in the sheriff’s deed, Freddie Mac would be the
proper party to name in a quiet title action. Plaintiff availed himself of this
opportunity in his case before Judge Friedman, which has proceeded to judgment,

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and did not emerge victorious. This Court has neither the authority nor the desire
to dispute Judge Friedman’s ruling.
IV.

CONCLUSION AND ORDER

For the reasons set forth herein, the Court concludes that Plaintiff’s First
Amended Complaint fails to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A Plaintiff
seeking to prevent dismissal pursuant to Rule 12 must plead facts sufficient to
show that a redressable legal wrong has been committed and that the named
defendant committed it. Flanory v. Bonn, 604 F.3d 249, 252 (6th Cir. 2010) (“A
motion to dismiss for failure to state a claim is a test of the plaintiff’s cause of
action as stated in the complaint, not a challenge to the plaintiff’s factual
allegations.”). This Plaintiff has failed to do. The law is settled and establishes
that Plaintiff is not entitled to any form of relief sought in his First Amended
Complaint.
Accordingly,
IT IS ORDERED that Defendant’s Motion (ECF No. 11) is GRANTED
and Plaintiff’s First Amended Complaint (ECF No. 10) is DISMISSED WITH
PREJUDICE.
Dated: December 22, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
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Copies to:
Keith J Mitan
P.O. Box 251597
West Bloomfield, MI 48325
Matthew J. Boettcher, Esq.
Patrick C. Lannen, Esq.

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