VanLokern v. City of Grosse Pointe Park, Michigan et al

Filing 20

OPINION AND ORDER granting 11 Motion to Dismiss; granting 15 Motion to Dismiss. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS W. VAN LOKEREN,
Plaintiff,
Case No. 13-14291
v.
Hon. Patrick J. Duggan
CITY OF GROSSE POINTE PARK, MICHIGAN,
CITY OF GROSSE POINTE PARK POLICE
OFFICER THOMAS CARD, JOHN DOE(S),
UNKNOWN POLICE OFFICERS OF THE CITY
OF GROSSE POINTE PARK, DALE KRAJNIAK,
CITY MANAGER OF GROSSE POINTE PARK,
GROSSE POINTE PARK CITY COUNCIL
MEMBER AND MAYOR PRO TEM GREGORY
THEOKAS, FORMER GROSSE POINT PARKE
CITY COUNCIL MEMBER ANDREW RICHNER,
and TIMOTHY KOLTUN, COUNSEL FOR
DEFENDANTS RICHNER AND THEOKAS,
Defendants.
_________________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO
DISMISS AND DENYING PLAINTIFF’S REQUEST TO AMEND
Pro se Plaintiff Thomas W. Van Lokeren initiated this action against
Defendants the City of Grosse Pointe Park, Thomas Card, John Doe(s) (unknown
Grosse Pointe Park police officers), Dale Krajniak, Gregory Theokas, Andrew
Richner, and Timothy Koltun alleging violations of his Fourth and Fourteenth
Amendment rights pursuant to 42 U.S.C. § 1983, as well as violations of Michigan
statutory and common law, in connection with Defendants’ conduct in removing

Plaintiff and his personal property from real property situated in Grosse Pointe
Park, Michigan. Two motions are presently before the Court: (1) Defendants
Grosse Pointe Park, Card, Doe, Krajniak, and Theokas’s (collectively, the “Grosse
Pointe Park Defendants”) Motion to Dismiss, filed pursuant to Federal Rule of
Civil Procedure 12(b)(6), and (2) Defendants Richner and Koltun’s Motion to
Dismiss, filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
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 grants both
motions to dismiss.
I.
A.

BACKGROUND

Facts
Prior to the events giving rise to this case, all of which transpired on October

8, 2010, Done Been B Triad, LLC (“Done LLC”), a Michigan limited liability
company, executed a lease in a commercial building located at 153241 East

1

The Complaint appears to contain a typographical error as the Rental
Property address provided in the Complaint is 15322 East Jefferson Avenue. A
copy of the lease has not been produced but the Court believes that the Rental
Property is located at 15324 East Jefferson Avenue based on two documents
submitted by the Grosse Pointe Park Defendants. First, a Notice of Judgment of
Foreclosure refers to property located at 15324 Jefferson. (Grosse Pointe Park
Defs.’ Mot. Ex. B.) Second, a document from the Michigan Department of
Licensing and Regulatory Affairs shows that Done Been B Triad, LLC’s registered
2

Jefferson Avenue in Grosse Pointe Park, Michigan (hereinafter, the “Rental
Property”). (Compl. ¶¶ 11-12.) Plaintiff is a member of the aforementioned LLC.
(Id. at ¶ 12.)
The present conflict originated when at some point after Done LLC executed
the lease, the building’s ownership ceased paying property taxes. In accordance
with the tax-foreclosure procedures set forth in Michigan Compiled Laws § 211.57
et seq., the Wayne County Treasurer obtained title to the building housing the
Rental Property. This is evidenced by a Notice of Judgment of Foreclosure the
Grosse Pointe Park Defendants produced to this Court. 2 (Grosse Pointe Park
Defs.’ Mot. Ex. B.) This Notice indicates that property located at 15324 Jefferson
was forfeited to the Wayne County Treasurer on March 1, 2009, and that on April
5, 2010, the Circuit Court for the Third Judicial Circuit, entered a Judgment of
Foreclosure against the real property described therein. The document explicitly
provides that absolute title to the property would pass to the Wayne County
Treasurer if the owner did not redeem within twenty-one days after entry of
Judgment. In other words, if not redeemed, the Judgment of Foreclosure would

office as well as its mailing address are located at 15324 East Jefferson Avenue.
(Id. Ex. D.)
2

Plaintiff cryptically refers to “the new owners of the building” but does not
explain the events relevant to the transfer of ownership. (Compl. ¶ 15.) The Court
believes that the publically-available documentation regarding the property transfer
is properly considered on a Rule 12 motion.
3

become final and unappealable on April 26, 2010, and any recorded or unrecorded
interests and all liens would be extinguished subject to certain exceptions not
relevant here. The building’s prior ownership failed to redeem and title passed to
the Wayne County Treasurer. On October 7, 2010, Grosse Pointe Park Partners,
LLC purchased the building and received a quitclaim deed. (Id. Ex. C.)
Plaintiff alleges that on October 8, 2010, he hired two environmental
consultants to test air samples at the Rental Property to determine whether a
partially-remediated spill of toxic dry cleaning solvent years earlier posed any
health risks. (Compl. ¶ 12.) Upon the consultants’ arrival, Plaintiff went “out and
about taking care of his business agenda.” (Id. at ¶ 13.) While out, Plaintiff
received a call from one of the consultants who indicated that there were two
individuals at the Rental Property threatening the consultants with arrest. (Id.)
Upon returning to the Rental Property, Plaintiff spoke with the two
individuals – Defendants Theokas and Richner – as well as two police officers –
Defendants Card and Doe – who had been dispatched to the scene. (Id. at ¶ 14.)
Plaintiff tried to explain that he had a valid lease for portions of the premises and
attempted to show them the lease. (Id.) None of the four Defendants present
acknowledged the documentation and the consultants, who had not taken enough
samples to produce an accurate air quality report, “hustled out of there[.]” (Id.) At
that time, the police officers informed Plaintiff “that he would be arrested if he did
4

not immediately vacate the [Rental Property] and that he was prohibited from reentering any part of the overall building.” (Id. at ¶ 15.)
As the events above were unfolding, Plaintiff learned that Defendant
Richner was one of the new building owners. (Id.) At some point, Defendant
Koltun, Defendant Richner’s attorney, arrived at the scene. (Id. at ¶ 16.) After
putting Defendant Koltun on the phone with his own attorney, Plaintiff’s phone
battery died. (Id.) Plaintiff then “entered the side door of the building which went
to the second floor and entered the architect Robert Wakely’s suite and got his
permission to use an outlet to recharge [his] phone.” (Id.) Defendants Card and
Doe followed Plaintiff into the building and “were in [his] face.” (Id. at ¶ 17.)
One of the officers was apparently on the phone with Grosse Pointe Park City
Manager, Defendant Dale Krajniak, receiving instruction on how to proceed. (Id.)
Defendant Card then threatened to arrest Plaintiff if he did not vacate the premises
even though the officers “had no warrant to justify their order and there was no
court action sanctioning an eviction[.]” (Id. at ¶ 18.)
Despite what Plaintiff believes was an assertion of unlawful authority by the
officers, Plaintiff “yielded to the officers’ pressure and left the building[.]” (Id. at
¶ 19.) While the timing is not abundantly clear from the Complaint, Plaintiff
alleges that upon leaving, Defendants Richner and Theokas, as well as “one of

5

their employees[,] picked up [Plaintiff’s] personal property and papers from the
suite and placed them on the sidewalk outside the building.”3 (Id.)
B.

Legal Proceedings
Although Plaintiff’s Complaint does not list individual counts, the Court

interprets the Complaint to allege that Defendants violated Plaintiff’s Fourth and
Fourteenth Amendment rights. (Compl. ¶¶ 10, 20.) The Fourth Amendment
claim involves the alleged seizure of Plaintiff’s personal property and the
Fourteenth Amendment claim, which sounds in due process, rests on Defendants’
conduct in wrongfully removing Plaintiff from the Rental Property, purportedly in
violation of Michigan’s antilockout statute codified at Michigan Compiled Laws §
600.2918.4 The Complaint also appears to allege that Defendants engaged in the
tort of slander of title. (Compl. ¶ 21.) As relief for these various legal
transgressions, Plaintiff seeks monetary damages in the amount of $400,000,
special and/or exemplary damages, interest, costs and attorney’s fees,5 and a
permanent injunction. (Id. at 9.)

3

The Court is unable to discern whether the personal property was removed
from Mr. Wakely’s suite or from the portions of the premises rented by Done LLC.
4

In his Complaint, Plaintiff indicated that he was using the statutory vehicles
of 42 U.S.C. §§ 1983, 1985, and 1986 to vindicate his constitutional rights.
However, Plaintiff subsequently conceded that the claims asserted pursuant to §
1985 and § 1986 “were erroneous and should” be dismissed. (Pls.’ Resp. 6.)
5

The request for attorney’s fees is curious given Plaintiff’s pro se status.
6

The Grosse Pointe Park Defendants filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) on November 27, 2013. (ECF No. 11.)
Defendants Koltun and Richner filed their Motion to Dismiss, brought pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), on December 24, 2013.
(ECF No. 15.) Pursuant to a joint stipulation extending Plaintiff’s time to do so,
Plaintiff filed his response on February 3, 2014. (ECF No. 16.) In addition to
responding to the arguments raised by Defendants, Plaintiff requested an
opportunity to file an amended complaint should the Court be inclined to grant the
present motions to dismiss. Both sets of Defendants filed a timely reply on
February 18, 2014. (ECF Nos. 17, 18.)
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) permits courts to dismiss a
complaint on the basis that the court lacks subject matter jurisdiction. Defendants
Koltun are Richner are making a facial attack, which “is a challenge to the
sufficiency of the pleading itself.” United States v. Ritchie, 15 F.3d 592, 598 (6th
Cir. 1994). “On such a motion, the court must take the material allegations of the
petition as true and construed in the light most favorable to the nonmoving party.”
Id. A plaintiff bears the burden of demonstrating that a court has jurisdiction over
the subject matter. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F3.d 1125,
1134 (6th Cir. 1986) (citation omitted).
7

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
allows a court to make an assessment as to whether a plaintiff’s pleadings have
stated a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). 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.’” Iqbal, 556 U.S. at 678, 129 S.
Ct. at 1949 (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). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1950 (quoting Twombly,
550 U.S. at 556, 127 S. Ct. at 1965). In this regard, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw

8

the reasonable inference that the defendant” is responsible for the conduct alleged
in the complaint. Id. (citation 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); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that
states a claim for relief must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief[.]”) (emphasis added). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of [a legal transgression], the
complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
relief.’” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2))
(internal citations omitted).

9

In conducting this analysis, courts may consider the complaint and any
exhibits attached thereto, public records, items appearing in the record of the case,
and exhibits attached to defendant’s motion to dismiss so long as they are referred
to in the complaint and are central to the claims contained 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)).
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 with pro se complaints less than two weeks after
issuing Twombly). The leniency with which courts construe pro se plaintiffs’
complaints, however, does not abrogate basic pleading requirements and pro se
plaintiffs must provide more than bare assertions of legal conclusions to survive a
motion to dismiss. Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citing
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)).
III.

ANALYSIS

Both sets of Defendants seek dismissal of Plaintiff’s Complaint on the
grounds (1) that Plaintiff lacks standing and (2) that Plaintiff’s Complaint is barred
by the relevant statute of limitations. In addition, Defendants Koltun and Richner
10

argue that Plaintiff has failed to allege sufficient facts in support of a finding that
either is a state actor subject to liability under § 1983. Neither set of Defendants
directly addresses Plaintiff’s allegations involving state law.
A.

Standing
Federal courts are courts of limited jurisdiction and may only exercise those

powers authorized by the United States Constitution and federal statutes enacted by
Congress. Accordingly, the first and most fundamental question presented in every
civil action brought in federal court is whether subject matter jurisdiction exists.
Metro Hydroelectric Co. v. Metro Parks, 541 F.3d 605, 610 (6th Cir. 2008);
Valinski v. Detroit Edison, 197 F. App’x 403, 405 (indicating that federal courts
have an independent obligation to strictly police the boundaries of its subject
matter jurisdiction). Article III of the Constitution defines the contours of the
federal judicial power and limits the exercise of that power to cases and
controversies. U.S. Const. art. III, § 2; see also Raines v. Byrd, 521 U.S. 811, 818,
117 S. Ct. 2312, 2317 (1997) (“No principle is more fundamental to the judiciary’s
proper role in our system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or controversies.”) (quotation omitted).
Standing, which relates to the nature and sufficiency of a litigant’s concern with
the subject matter of the litigation, is a fundamental element of “federal jurisdiction
over a ‘case’ or ‘controversy’ . . . .” Morrison v. Bd. of Educ. of Boyd Cnty., 521
11

F.3d 602, 608 (6th Cir. 2008). “By now, it is axiomatic that a litigant demonstrates
Article III standing by tracing a concrete and particularized injury to the
defendant[’s conduct]—whether actual or imminent—and establishing that a
favorable judgment would provide redress.” Id. (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992)).
Defendants argue that Plaintiff lacks standing to assert a due process claim
pursuant to the Fourteenth Amendment because Plaintiff lacks a cognizable
property interest in the Rental Property. Specifically, Defendants argue that
because Done LLC, not Plaintiff, was the lessee of the Rental Property, only the
former even arguably had a recognized property interest.6 Interestingly, neither set
of Defendants address standing for purposes of the Fourth Amendment claim.

6

Although Defendants argue that the tax foreclosure extinguished any
property interest Done LLC may have had, Defendants fail to address whether the
LLC became a tenant at sufferance by virtue of passive acquiescence. See, e.g.,
United States v. Hunyady, 409 F.3d 297, 301 (6th Cir. 2005) (“[A]t common law,
the defining element of a tenancy by sufferance is the passive acquiescence by the
property owner. In a tenancy by sufferance, in other words, the landlord ‘suffers’
the tenant’s presence. Michigan caselaw on this point, though limited, is clear.”).
Such passive acquiescence may be inferred when the owner has delayed in
objecting to a tenant’s presence. See, e.g., Sch. Dist. No. 11 v. Batsche, 106 Mich.
330, 334, 64 N.W. 196, 197 (1895) (“We think the rule is that a person in
possession of land lawfully, who holds over without right, becomes a tenant at
sufferance, if the owner suffers him to remain in possession a sufficient length of
time to imply an intentional acquiescence in the occupancy[.]”). Although title to
the building housing the Rental Property vested in the new building owner – an
LLC of which Defendants Richner and Theokas are members – the day before the
incident described in the Complaint, over five months passed between the time that
12

1.

Fourteenth Amendment Due Process Claim
The Due Process Clause of the Fourteenth Amendment provides, “No State

shall deprive . . . any person of life, liberty, or property, without due process of
law.” U.S. Const. amend XIV, § 1. In this case, it appears that Plaintiff is arguing
that Defendants deprived him of his procedural due process rights. (See, e.g.,
Compl. ¶ 20 (referring to the illegality of “‘self-help evictions’ (without a court
order to evict)”).) “Procedural due process claims are examined under a two-part
analysis. First, [] court[s] must determine whether the interest at stake is a
protected liberty or property right under the Fourteenth Amendment. Only after
identifying such a right do [courts] continue to consider whether the deprivation of
that interest contravened notions of due process.” Thomas v. Cohen, 304 F.3d 563,
576 (6th Cir. 2002) (citing, inter alia, Bd. of Regents v. Roth, 408 U.S. 564, 57071, 92 S. Ct. 2701, 2705-06 (1972); KY Dep’t of Corrs. v. Thompson, 490 U.S.
454, 460, 109 S. Ct. 1904, 1908 (1989); and Mathews v. Eldridge, 424 U.S. 319,
332, 96 S. Ct. 893, 901 (1976)). Although the Fourteenth Amendment’s Due
Process Clause provides procedural safeguards where a protected property interest
exists, “[p]roperty interests are not created by the Constitution.” Id. (citing
Cleveland v. Bd. of Educ. of Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 1491
(1985)). Rather, property interests are “created and their dimensions are defined
the Wayne County Treasurer had come into ownership and the time that the new
owners received a quitclaim deed vesting them with title.
13

by existing rules or understandings that stem from an independent source such as
state law . . . .” Id. (quoting Roth, 408 U.S. at 577, 92 S. Ct. at 2709). Thus, to
succeed on his Fourteenth Amendment claim, Plaintiff must have a property
interest created by Michigan law separate and apart from Done LLC. This is
where Plaintiff’s allegations regarding Michigan Compiled Laws § 600.2918,
commonly referred to as the “antilockout statute,” become relevant.
Michigan’s antilockout statute provides, in pertinent part:
(2) Any tenant in possession of premises whose possessory interest
has been unlawfully interfered with by the owner is entitled to
recover the amount of his or her actual damages or $ 200.00,
whichever is greater, for each occurrence and, if possession has
been lost, to recover possession . . . . [U]nlawful interference with
a possessory interest includes . . . :
(b) Removal, retention, or destruction of personal property of the
possessor.
Mich. Comp. Laws § 600.2918(2) (emphasis added). Plaintiff seems to argue that
he was a tenant of the Rental Property and that the removal of his personal
property by select Defendants therefore contravened the statutory language quoted
above. This argument fails as Plaintiff was not a tenant.
It is axiomatic that a lease gives the tenant the possession of the property
leased and the exclusive use or occupation of it for all purposes not prohibited by
the terms of the lease. Macke Laundry Serv. Co. v. Overgaard, 173 Mich. App.
250, 253, 433 N.W.2d 813, 815(Mich. Ct. App. 1988) (citation omitted). Although
14

the Michigan Legislature did not define the word “tenant” in the antilockout
statute, the Michigan Court of Appeals, exercising traditional canons of statutory
interpretation, determined that the word “tenant,” refers to “the individual or
individuals who pay consideration to a landlord for the right to occupy rental
property, rather than the members of the larger family unit dwelling in the rental
property.” Nelson v. Grays, 209 Mich. App. 661, 664-66, 531 N.W.2d 826, 828-29
(Mich. Ct. App. 1995) (per curiam). Thus, in Nelson, the appeals court affirmed a
determination by the lower courts that the tenant (the individual paying rent) was
entitled to damages pursuant to the antilockout statute but that the tenant’s
children, who were lawful occupants of the leased property but lacked “a separate
contractual right to occupy the premises[,]” were not. Id. at 663, 666, 531 N.W.2d
at 528-29. In other words, the fact that the children were lawful occupants did not
render them tenants and they were therefore outside of the ambit of the statutory
provision which specifically applies to “tenants in possession[.]” Mich. Comp.
Laws § 600.2918(2).
Although Nelson addressed the issue of lawful occupants within the familial
relationship context, the rationale is equally applicable in this case. Here, Done
LLC leased the Property. Done LLC, therefore, had a contractual relationship with
the previous landlord and as possessor of the Rental Property, had an obligation to
remit consideration in exchange for the use of the premises. Plaintiff’s position as
15

a member of that LLC implies that he had the tenant’s (the LLC’s) permission to
use the premises but this permission renders Plaintiff’s status analogous to the
tenant’s children in Nelson. Being a lawful occupant does not confer onto Plaintiff
a property interest created or recognized by Michigan law. Because Plaintiff lacks
a cognizable property right in the building at issue, he has not demonstrated an
injury-in-fact and he therefore lacks standing.7 See Valley Forge Christian Coll. v.
Ams. United for Separation of Church & State, 454 U.S. 464, 472, 102 S. Ct. 752,
758 (1982) (requiring “the party who invokes the court’s authority to ‘show that he
personally has suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant[]” (quotation omitted) (emphasis
added)).
Further, to the extent that Plaintiff attempts to seek relief for any conduct
executed in derogation of Done LLC’s protected property interest, this he may not
do. “Closely related to the constitutional requirement that a plaintiff must suffer a

7

Because Plaintiff’s Complaint makes reference to the fact that Defendants
lacked a court order of eviction, (Complaint ¶ 20), the Court finds it necessary to
comment on the scope of process Plaintiff was due. The Court’s finding that
Plaintiff has no property interest in the Rental Property under state law means that
the Due Process Clause demands no pre-eviction hearing. That Michigan law
allows property owners to use summary proceedings to evict trespassers does not
change this result. Mich. Comp. Laws § 600.5714(1)(e). This statutory provision
does not create a substantive interest in Plaintiff’s favor; rather, the provision is a
state procedural safeguard. “[T]he Due Process Clause does not protect against the
deprivation of state procedural rights.” West Farms Assocs. V. State Traffic
Comm’n, 951 F.2d 469, 472 (2d Cir. 1991).
16

‘personal’ injury to establish standing is the prudential requirement that a ‘plaintiff
generally must assert his own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties.” Al-Aulaqi v. Obama, 727 F.
Supp. 2d 1, 15 (D.D.C. 2010) (citations omitted). Plaintiff has not provided a
single reason explaining why this Court should permit him to invoke the doctrine
of third-party standing.
Defendants suggest that Plaintiff lacks standing for another reason, although
the Court notes that this final reason is analytically distinct from the question of
standing. As Defendants point out, the Supreme Court of the United States
recognizes that federal law, specifically 28 U.S.C. § 1654,8 “does not allow
corporations, partnerships, or associations to appear in federal court otherwise than
through a licensed attorney.” Rowland v. Cal. Men’s Colony, 506 U.S. 194, 202,

8

Title 28 U.S.C. § 1654 provides:

In all courts of the United States the parties may plead and conduct
their own cases personally or by counsel as, by the rules of such
courts, respectively, are permitted to manage and conduct causes
therein.
Courts interpreting this statute, which confers the right of a party to appear pro se
in civil actions, “have consistently construed this section to grant a right of pro se
representation only to individuals.” Sermor, Inc. v. United States, 13 Cl. Ct. 1, 5
(1987) (citations omitted). “Unlike individuals, corporations are artificial entities
created by the law, which cannot appear personally in an action, but must make
appearances through agents.” Id. As such, “[t]he rule is well settled that corporate
agents who appear on the behalf of corporations in federal courts must be attorneys
and not directors, officers or shareholders of the corporation.” Id.
17

113 S. Ct. 716, 721 (1993). The United States Court of Appeals for the Second
Circuit has subsequently explained that the rationale undergirding this rule “applies
equally to all artificial entities[,]” including limited liability companies. Lattanzio
v. COMTA, 481 F.3d 137, 139-40 (2d Cir. 2007) (quotation omitted). The Second
Circuit reasoned: “Because both a partnership and a corporation must appear
through licensed counsel, and because a limited liability company is a hybrid of the
partnership and corporate forms,” “a limited liability company also may appear in
federal court only through a licensed attorney.” Id. at 140. This rule applies alike
to “limited liability companies and sole member or solely-owned limited liability
companies[]” because unlike a sole proprietorship, “ a sole member limited
liability company is a distinct legal entity that is separate from its owner.” Id. The
Court is persuaded by this reasoning and finds that Plaintiff lacks statutory
authority to initiate this action in effort to vindicate the rights of Done LLC. Thus,
even if Done LLC’s property rights were unlawfully deprived by some or all of the
defendants, Plaintiff is not authorized to file a pro se action on its behalf.
In sum, Plaintiff lacks standing to assert a Fourteenth Amendment claim and
this Court is therefore without jurisdiction.
2.

Fourth Amendment

18

Plaintiff seeks to state a § 1983 claim for violation of his Fourth
Amendment9 rights due to the removal of his personal property and papers from
building by Defendants Richner and Theokas and by one of “their” unidentified
employees. (Compl. ¶ 19.) Plaintiff does not appear to seek to raise the
Amendment’s privacy shield; rather, Plaintiff, pointing to Soldal v. Cook County,
506 U.S. 56, 113 S. Ct. 538 (1992), appears to assert that this alleged conduct
constituted an unreasonable seizure. As mentioned before, Defendants do not
directly address standing in connection with Plaintiff’s Fourth Amendment claim.
Although Defendants’ standing argument disposed of Plaintiff’s due process claim,
the same is not true here. See, e.g., Bonds v. Cox, 20 F.3d 697, 702 (6th Cir. 1994)
(“The Fourth Amendment protects against a seizure of property even if it occurs in
a context in which privacy or liberty interests are not implicated. Thus, our finding
that [the plaintiff] had no reasonable expectation of privacy in the house . . . does
not affect our conclusion that [the plaintiff] has standing to challenge the seizure of
her property.” (citation omitted)). Each set of Defendants does, however, provide
other arguments that may dispose of the Fourth Amendment claim. These are
discussed immediately below.

9

The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated . . . .” U.S. Const. amend. IV.
19

B.

State Action
To the extent Plaintiff is seeking to state a cause of action against

Defendants Richner and Theokas pursuant to 42 U.S.C. § 1983, his Complaint
must contain sufficient factual allegations showing that these Defendants are state
actors. This Plaintiff has not done.
In order to prevail on a claim brought pursuant to § 1983,10 a plaintiff must
establish: “‘(1) the deprivation of a right secured by the Constitution or laws of the
United States (2) caused by a person acting under the color of state law.’” Miller
v. Sanilac Cnty., 606 F.3d 240, 247 (6th Cir. 2010) (quoting Sigley v. City of
Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)).11 Federal courts consider
actions “under color of law” as the equivalent of “state action” under the
Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct.
2764, 2769 (1982). “Some rights established either by the Constitution or by

10

Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress[.]
11

Section 1983 “creates no substantive rights; it merely provides remedies
for deprivations of rights established elsewhere.” Gardenhire v. Schubert, 205
F.3d 303, 310 (6th Cir. 2000).
20

federal law are protected from both governmental and private deprivation.” Flagg
Bros. v. Brooks, 436 U.S. 149, 156, 98 S. Ct. 1729, 1733 (1978). The Fourth
Amendment is not one of those rights; rather, the Fourth Amendment’s
prohibitions apply only to government action. Even if the Fourth Amendment
applied to purely private conduct, a private actor may be subjected to liability
under § 1983 only if he caused the deprivation of a federal right under color of
state law. Id.
In this case, Plaintiff alleges that Defendant Richner, an attorney, former
Grosse Pointe Park City Council Member, and “one of the new owners of the
building[,]” violated his Fourth Amendment rights. (Compl. ¶¶ 14-15.) These
allegations do not support a finding that Defendant Richner is capable of violating
Plaintiff’s Fourth Amendment rights as a former elected official is not forever
deemed a government actor. Furthermore, even if Defendant Richner could be
held to account for the alleged deprivation of Plaintiff’s Fourth Amendment rights,
the operative complaint lacks any allegations that this private party’s conduct was
done under color of law, as required to impose liability under § 1983.12

12

The primary issue in deciding whether a private party’s actions constitute
“state action” is whether the party’s actions may be “fairly attributable to the
State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 2753
(1982). The Supreme Court has articulated three tests to determine whether
challenged conduct may be deemed fairly attributable to the state such that a
private actor may be liable under § 1983. “These tests are: (1) the public function
test, West, 487 U.S. at 49-50, 108 S. Ct. at 2255-56 (1988); Flagg Bros. v. Brooks,
21

Plaintiff also alleges that Defendant Theokas, a City Council Member,
Mayor Pro Tem, and another member of the LLC that acquired the building
housing the Rental Property, violated his Fourth Amendment rights. (Compl. at ¶
14; Resp. 1.) The Grosse Pointe Park Defendants briefly address Plaintiff’s Fourth
Amendment claim in a footnote stating that “it is clear from [P]laintiff’s
[C]omplaint that [D]efendant Theokas was not acting under color of state law.
Consequently, he is not a proper party to a claim under 42 U.S.C. § 1983.”
(Grosse Pointe Park Defs.’ Br. 3 n.3 (citing Foreman v. Gen. Motors Corp., 473 F.
Supp. 166, 178 (E.D. Mich. 1979).) Although the footnote notes that this
deficiency is “not raised as an issue with this motion,” (id.), presumably because
the Grosse Pointe Park Defendants believe the other arguments in support of
dismal are sufficient, the Court is left to guess at what makes it this conclusory
assertion so clear. Having reviewed the briefs filed in conjunction with this matter,
the Court believes that the statement regarding Defendant Theokas has its roots in
the fact that he was a member of the LLC that acquired title to the building.
The Court believes that the factual circumstances regarding the building
ownership renders Plaintiff’s allegations regarding the Fourth Amendment less
436 U.S. 149, 157, 98 S. Ct. 1729, 1734 (1978); (2) the state compulsion test,
Adickes v. S. H. Kress & Co., 398 U.S. 144, 170, 90 S. Ct. 1598, 1615 (1970); and
(3) the symbiotic relationship or nexus test, Burton v. Wilmington Parking Auth.,
365 U.S. 715, 721-26, 81 S. Ct. 856, 859-62 (1961).” Wolotsky v. Huhn, 960 F.2d
1331, 1335 (6th Cir. 1992). Plaintiff’s allegations do not satisfy any of the three
tests.
22

than plausible. “[T]he well-pleaded facts do not permit the court to infer more than
the mere possibility of [a legal transgression],” thus, “the complaint has alleged –
but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)) (internal citations
omitted).
While true that Defendant Theokas held public office, the Complaint’s
factual allegations do not plausibly suggest that he participated in the incident in
his capacity as a public official as opposed to a private person.13 In other words,
Plaintiff has failed to “nudge[] the[] claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974.
C.

Statute of Limitations
Lastly, both sets of Defendants argue that even if Plaintiff establishes

standing, his § 1983 claims are time-barred. While § 1983 does provide for a
cause of action for violation of one’s federally-protected rights, the statute does not
provide a limitations period. Wilson v. Garcia, 471 U.S. 261, 266, 105 S. Ct. 1938,
1942 (1985) (“The Reconstruction Civil Rights Acts do not contain a specific
statute of limitations governing § 1983 actions -- ‘a void which is commonplace in
federal statutory law.’” (quotation omitted)). Supreme Court precedent holds that
13

Also referenced in the portion of the Complaint dealing with the Fourth
Amendment claim is an unidentified employee, referred to as “one of [Richner and
Theokas’s] employees.” (Compl. ¶ 19.) It is unclear who this individual is and if
this individual is a defendant in the present action.
23

the appropriate statute of limitations to be applied in all § 1983 actions is the state
statute of limitations governing actions for personal injury. Id. at 276, 105 S. Ct. at
1947. Sixth Circuit caselaw provides that when the cause of action arises in
Michigan, as it did in this case, Michigan’s three-year statute of limitations for
personal injury claims, codified at Michigan Compiled Laws § 600.5805(10),
provides the limitations period. Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir.
1986) (per curiam).
The events giving rise to this action occurred on October 8, 2010. (Compl. ¶
12.) Applying the pertinent statutory period, Plaintiff had until October 8, 2013 to
file his Complaint. The Court’s electronic case management system shows the
Complaint as being filed on October 9, 2013, one day after the limitations period
expired. This forms the basis for Defendants’ contention that Plaintiff’s § 1983
claims are time-barred.
In responding to Defendants’ Motion to Dismiss, Plaintiff presented this
Court with evidence showing that he mailed his Complaint to the Court on October
7, 2013, via overnight mail. (Resp. 11.) Plaintiff also submitted a printout of the
Federal Express tracking report indicating that the Complaint had an “[a]ctual
delivery” time of 9:18 am on Tuesday, October 8, 2013. (Id. at 12.) Despite this
credible evidence, both sets of Defendants continue to argue in their respective
reply briefs that the claim is time-barred. (Grosse Pointe Park Defs.’ Reply 2
24

(“Here, although plaintiff may have sent his complaint by Federal Express so that
it arrived at this Court on October 8, 2013, it was not actually filed until October 9,
2013. Plaintiff, who had three years to file his complaint, should have filed [it]
electronically or even sent it a day earlier to ensure that it was timely filed.”);
Koltun & Richer’s Reply 5 (“Unless the Court’s records are revised to reflect
Plaintiff’s argument, the filing date of record is one day too late. Accordingly,
Plaintiff’s claims are time-barred and should be dismissed.”).) While faulting
Plaintiff, who is proceeding pro se, for not citing to any caselaw to support his
argument that he should not be held accountable for the late filing, both sets of
Defendants conveniently ignore the doctrine of equitable tolling and the caselaw
that negates the suggestion that Plaintiff’s claims are time-barred.
“Equitable tolling allows courts to entertain otherwise time-barred
proceedings when ‘a litigant’s failure to meet a legally mandated deadline
unavoidably arose from circumstances beyond that litigant’s control.’” Ross v.
McKee, 465 F. App’x 469, 473 (6th Cir. 2012) (quoting Graham-Humphreys v.
Memphis Brooks Museum of Art, 209 F.3d 552, 560-61 (6th Cir. 2000)). While
federal courts “sparingly” use equitable tolling, “[f]ederal courts sitting in equity
do not condone” holding a litigant responsible for something beyond his control.
Id. at 473, 475 (citations omitted).

25

In the Sixth Circuit, documents are filed when the mail carrier “‘[makes]
delivery at the place directed by the addressee.’” Id. at 474 (quoting Central Paper
Co. v. Comm’r of Internal Revenue, 199 F.2d 902, 904 (6th Cir. 1952)). In Central
Paper, a tax case, the Sixth Circuit held that a taxpayer’s documents, which were
delivered to a ledge beside a lock-box the tax court designated for filings, were
timely as the placement by the lock-box “constituted delivery to The Tax Court.”
199 F.2d at 904. The panel provided the following explanation for deeming the
papers timely filed:
[T]he processing and handling of the petition by Tax Court employees
[after the filing arrived] was of no concern of the taxpayer. Failure or
unreasonable delay on the part of the Tax Court employees to transfer
it from the lock box to the Clerk’s Office, or to stamp it as filed after
receipt in the Clerk’s Office, is not chargeable to the taxpayer.
Id. at 905. In reiterating this rule, the Ross Court noted that “[o]ur sister circuits,
and district courts nationwide, have adopted similar logic, holding that delay
between a document’s arriving at a post office box or drop-box, designated for
court documents, and the clerk’s docketing the document is not attributable to the
filing party.” 465 F. App’x at 474-75 (citing cases).
In this case, the documentary evidence shows that Plaintiff’s Complaint
arrived at the courthouse in a timely manner. The Complaint was delivered just
after 9:00 am and was signed for by a court employee. (Resp. 12.) That the
Clerk’s Office did not officially docket the Complaint until the following day does
26

not mean that Plaintiff failed to timely file his Complaint. Indeed, had the Clerk’s
Office docketed the Complaint on the day of receipt, Defendants would be
deprived of any statute of limitations defense. The Court does not believe that the
delayed docketing, clearly outside of Plaintiff’s control, should be imputed to him.
That Plaintiff could have sent the complaint a day earlier is entirely irrelevant.
D.

Slander of Title
Paragraph twenty-one of Plaintiff’s Complaint, which serves as the Court’s

basis for inferring that Plaintiff is endeavoring to state a claim for slander of title,
provides: “The defendants has also, by making false statements about his property
rights, attacked Plaintiff’s integrity and caused special damage to Mr.
VanLokeren’s professional reputation and standing.” (Compl. ¶ 21.) Defendants
do not address this cause of action but, despite this omission, the Court deems
dismissal with prejudice proper pursuant to Rule 12(b)(6).
“In Michigan, slander of title claims have both a common-law and statutory
basis.” B & B Inv. Group v. Gitler, 229 Mich. App. 1, 8, 581 N.W.2d 17, 20
(Mich. Ct. App. 1998); Mich. Comp. Laws § 565.108. A plaintiff seeking to
establish slander of title at common law is required to show “falsity, malice, and
special damages, i.e., that the defendant maliciously published false statements that
disparaged a plaintiff’s right in property, causing special damages.” B & B Inv.,
229 Mich. App. at 8, 581 N.W.2d at 20 (citations omitted). “The same three
27

elements are required in slander of title actions brought” pursuant to Michigan
Compiled Laws § 565.108. Id. (citations omitted).
Plaintiff has not stated a viable claim for slander of title for two reasons.
First, Plaintiff’s allegations are wholly deficient under federal pleading standards.
Plaintiff has merely parroted the elements of the cause of action without providing
the further factual enhancement required by Twombly and its progeny. Second,
and of greater consequence than the first, Michigan law provides a one year statute
of limitations for actions charging libel or slander. Mich. Comp. Laws §
600.5805(9). This one year limitations period applies to slander of title. Bonner v.
Chi. Title Ins. Co., 194 Mich. App. 462, 471, 487 N.W.2d 807, 812 (Mich. Ct.
App. 1992) (holding that “the one-year period of limitation for an action charging
libel or slander applies to an action for slander of title”). Accordingly, Plaintiff’s
slander of title cause of action fails as a matter of law and is dismissed.
IV.

CONCLUSION AND ORDER

For the reasons set forth above, the Court GRANTS Defendants’ Motions,
(ECF Nos. 11, 15), and DISMISSES Plaintiff’s Complaint. Because the
deficiencies in Plaintiff’s Complaint cannot be remedied, this dismissal is WITH
PREJUDICE. It necessarily follows that the Court DENIES Plaintiff’s request to
amend.
IT IS SO ORDERED.
28

Date: March 13, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Thomas W. Van Lokeren
143 Varennes Street
San Francisco, CA 94133
Dennis J. Levasseur, Esq.
Debashree Nandy, Esq.
Edward J. Hood, Esq.

29