Satchel et al v. Dayton Township et al
Filing
25
OPINION AND ORDER Granting in Part 20 MOTION for Sanctions filed by Richard Horsch; Granting 14 MOTION to Dismiss for Failure to State a Claim filed by Richard Horsch. (Statement due by 11/14/2016) Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
James Satchel, et al.,
Plaintiffs,
v.
Civil Action No. 16-11518
Dayton Township, et al.,
Sean F. Cox
United States District Court Judge
Defendants.
_______________________________/
OPINION & ORDER
GRANTING DEFENDANT HORSCH’S MOTION TO DISMISS
AND GRANTING, IN PART, HIS MOTION FOR RULE 11 SANCTIONS
Acting through Counsel, Plaintiffs filed this action asserting numerous counts against
nine different Defendants. The matter is currently before the Court on a Motion to Dismiss, and
a Rule 11 Motion for Sanctions, filed by Defendant Richard Horsch. This Court cancelled oral
argument on the motions after Plaintiffs failed to file any response to the motions – even after
this Court issued an Order to Show Cause directing them to do so. As explained below, the
Court shall GRANT the Motion to Dismiss because the Court agrees with Defendant Horsch that
Plaintiffs’ Complaint fails to state any claim against him. In addition, the Court shall grant
Defendant Horsch’s Motion for Rule 11 Sanctions, to the extent that the Court agrees that a
sanction against Plaintiffs’ Counsel, jointly and severally with his law firm, is warranted. In
order to determine the appropriate amount of the sanction, the Court shall order Defendant
Horsch to submit an itemized statement of the attorney fees he has incurred in this action, along
with a supporting affidavit from his Counsel.
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BACKGROUND
Acting through Counsel, attorney Brian Garner1, Plaintiffs James Satchel, Robert Adams,
and Rod Merten (collectively, “Plaintiffs”) filed this action on April 27, 2016. Plaintiffs’
Complaint asserts claims against the following nine Defendants: 1) Dayton Township; 2) Robert
Cook; 3) Robert Steele; 4) Michael Mocniak; 5) Stacy Phillips; 6) Eleanor Kilmer; 7) Amanda
Gusek; 8) Chris Gusek; and 9) Richard Horsch (“Horsch”).
Plaintiffs’ Complaint include twelve separate counts. Because the matter is before the
Court on a Motion to Dismiss and a Motion for Sanctions that were brought by Defendant
Horsch alone, the Court includes here the counts that are asserted against Horsch. Those counts
are:
“Count I: 42 U.S.C. § 1983 – Retaliation for Exercising First Amendment Right
of Free Speech in the Right to Vote and Hold Political Office as Applied Through
the Equal Protection Clause of the Fourteenth Amendment” (Compl. at 26-28)
“Count II: 42 U.S.C. § 1985 – Conspiracy to Retaliate Against Plaintiffs for
Exercising First Amendment Right of Free Speech in the Right to Vote and Hold
Political Office as Applied Through the Equal Protection Clause of the Fourteenth
Amendment” (Compl. at 28-29).
“Count IV: 42 U.S.C. § 1983 – Racial Discrimination Against Plaintiffs’ Right to
Vote and Hold Political Office as Applied Through the Equal Protection Clause
of the Fourteenth Amendment” (Compl. at 30-31).
“Count V: 42 U.S.C. § 1985 – Conspiracy to Commit Racial Discrimination
Against Plaintiffs’ Right to Vote and Hold Political Office as Applied Through
the Equal Protection Clause of the Fourteenth Amendment” (Compl. at 31)
“Count VII: MCL 750.147b – Ethnic Intimidation” (Compl. at 32-33)
“Count VIII: Intentional Infliction of Emotional Distress” (Compl. at 33-34)
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The docket reflects that Brian Garner is either a partner or employee of the law firm
Taylor, Butterfield, Howell, Churchill, Jarvis & Garner, P.C.
2
“Count IX: Exemplary Damages Claim” (Compl. at 34-37)
“Count X: 42 U.S.C. § 1983 – Violation of Plaintiff’s Rights Under the Michigan
Constitution” (Compl. at 37-38)
“Count XI: 42 U.S.C. § 1983 – Conspiracy to Violate Plaintiffs Rights Under the
Michigan Constitution” (Compl. at 39)
Plaintiffs’ Complaint is forty-one pages long and includes one hundred and eighty four
paragraphs.
Plaintiffs’ Complaint identifies Horsch as a “resident of Dayton Township, Tuscola
County, Michigan.” (Compl. at ¶ 18). The only factual allegations as to Horsch are as follows:
93.
....
B.
The Board allowed Richard Horsch, a resident, to give a five (5)
minute presentation, which is more than the normal amount
allotted for public comment, where Horsch claimed Mr. Satchel
didn’t treat another resident, Joe Peet, fairly.
C.
Horsch also claims he had contacted the Tuscola County Building
Code Department regarding the legality of how the Peet property
issue had been handled and that he was assured everything was
done properly, contrary to Mr. Satchel’s previous assertions.
95.
Also on February 9, 2015, which Plaintiffs’ believed to be at the urging of
Cook, Horsch filed a proposed recall petition with the Tuscola County
Clerk against Mr. Satchel based upon the Board’s Censure alleging he
“repeatedly abused his board position by assuming zoning enforcement
authority . . . by attempting to bully and intimidate residents . . .”
97.
. . . .[O]n February 27, 2015, Horsch, filed a second proposed recall
petition with the Tuscola County Clerk against Mr. Satchel, based upon
“the Dayton Township Board unanimously voted to Censure Trustee
Satchel.”
(Compl. at 18-19) (emphasis in original).
Plaintiff’s Complaint was filed on April 27, 2016. This case was originally assigned to
the Honorable Thomas Luddington.
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Horsch’s Counsel entered an appearance on May 25, 2016. On June 2, 2016, Horsch
filed a Motion to Dismiss, asking this Court to dismiss all claims asserted against him with
prejudice. (Docket Entry No. 14).
On June 28, 2016, Horsch filed a “Rule 11 Motion for Sanctions” (Docket Entry No. 20)
wherein he requested that the Court impose Rule 11 sanctions against both Plaintiff Satchel and
his Counsel. On June 3, 2016 – more than 21 days prior to filing the motion – Horsch’s Counsel
served that motion on Plaintiffs’ Counsel.
This case was reassigned to this Court on July 8, 2016. On July 14, 2016, this Court
noticed Horsch’s Motion to Dismiss and his Motion for Sanctions to be heard by the Court on
November 3, 2016. (Docket Entry No. 22).
As of August 11, 2016, however, Plaintiffs had not filed any response to either of
Horsch’s motions.
On August 11, 2016, this Court issued an Order To Show Cause, wherein this Court
ordered Plaintiffs to show cause, “in writing, no later than August 18, 2016, why the unopposed
Motion to Dismiss and Motion for Sanctions filed by Defendant Richard Horsch should not be
granted.” (Docket Entry No. 23) (emphasis in original).
Plaintiffs did not file any response to the Court’s Show Cause Order.
On September 1, 2016, this Court advised the parties that the Court was cancelling oral
argument on the motions and would issue a written decision on the Motion to Dismiss and the
unopposed Motion for Rule 11 Sanctions. But even that did not prompt a response from
Plaintiffs.
ANALYSIS
I.
The Court Grants Defendant Horsch’s Motion To Dismiss
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In his unopposed Motion to Dismiss, Defendant asserts that Plaintiffs’ Complaint fails to
state a claim against him and asks this Court to dismiss all claims asserted against him with
prejudice.
A.
Plaintiffs Fail To State A § 1983 Claim Against Defendant Horsch.
To establish a prima facie case under 42 U.S.C. § 1983, a civil rights plaintiff must
establish that: 1) the defendant acted under color of state law; and 2) the offending conduct
deprived the plaintiff of rights secured by federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th
Cir. 1998); Ellison v. Garbino, 48 F.3d 192, 194 (6th Cir. 1995). If a plaintiff fails to make a
showing on either essential element of a § 1983 claim, it must fail. Redding v. St. Eward, 241
F.3d 530, 532 (6th Cir. 2001).
While Plaintiffs’ Complaint alleges that some of the Defendants are township officials, it
makes no such allegation as to Horsch. Rather, it simply identifies Horsch as a township
resident. It is well-established that “the under-color-of-state-law element of § 1983 excludes
from its reach ‘merely private conduct, no matter how discriminatory or wrongful.’” American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal citation omitted).
Nevertheless, as Horsch notes in his motion, under limited circumstances a private party
may be considered a state actor for purposes of a § 1983 claim. The Sixth Circuit has recognized
“three tests for determining whether private conduct is fairly attributable to the state: the public
function test, the state compulsion test, and the nexus test.” Ellison, 48 F.3d at 195. But
Plaintiffs have failed to plead any facts that could support the imposition of state actor status
upon Defendant Horsch under any of those tests.
Accordingly, Plaintiffs have failed to state a § 1983 claim against Defendant Horsch.
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B.
Plaintiffs Fail To State A § 1985 Conspiracy Claim Against Defendant
Horsch.
In Counts II and IV, Plaintiffs assert conspiracy claims against Horsch, pursuant to 42
U.S.C. § 1985(2). (See Compl. at ¶¶ 137 & 154).
“Section 1985(2) relates to conspiracies to interfere with the administration of justice in
federal courts,” and is clearly inapplicable to the facts alleged in Plaintiffs’ Complaint. Hahn v.
Star Bank, 190 F.3d 708, 715 (6th Cir. 1999).
Moreover, to the extent that Plaintiffs may have meant to assert their conspiracy claims
against Horsch under § 1985(3), such claims would not fare any better. “It is well-settled that
conspiracy claims must be pled with some degree of specificity and that vague and conclusory
allegations unsupported by material facts will not be sufficient to state such a claim.” Gutierrez
v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987); Jaco v. Blooechle, 739 F.2d 239, 245 (6th Cir.
1984). Here, Plaintiffs’ Complaint is entirely void of factual allegations that could support a
conspiracy claim against Horsch.
C.
Plaintiffs Fail To State An Intentional Infliction Of Emotional Distress Claim
Against Defendant Horsch.
In Count VIII, Plaintiffs assert a claim against Horsch for intentional infliction of
emotional distress under Michigan law.
“To establish the tort of intentional infliction of emotional distress in Michigan, ‘a
plaintiff must prove the following elements: (1) extreme and outrageous conduct, (2) intent or
recklessness, (3) causation, and (4) severe emotional distress.’ Hilden v. Hurley Med. Ctr., 831
F.Supp.2d 1024, 1046 (E.D. Mich. 2011) (internal quotation and citation omitted). ‘Liability for
intentional infliction of emotional distress [is] found only where the conduct complained of
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[was] so outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.’ Id.
(internal quotations and citation omitted).” Regets v. City of Plymouth, 568 F. App’x 380, 39394 (6th Cir. 2014).
In reviewing such a claim, it is initially for the Court to determine whether the
defendant’s conduct reasonably may be regarded as so extreme and outrageous as to permit
recovery. Doe v. Mills, 212 Mich.App. 73, 92 (1995); Webster v. United Auto Workers, Local
51, 394 F.3d 436, 442 (6th Cir. 2005).
In seeking dismissal of this claim, Horsch notes that the only factual allegations as to him
are that he spoke out against Satchel, an elected official, at a public meeting and tried
unsuccessfully to file a petition to recall him. Horsch asserts that such “acts are hardly ‘utterly
intolerable in a civilized community’ and are rather typical occurrences when one runs for public
office.” (Def.’s Br. at 13). The Court agrees that the actions allegedly taken by Horsch are
clearly insufficient to support an intentional infliction of emotional distress claim under
Michigan law.
D.
Plaintiffs Fail To State An Ethnic Intimidation Claim Against Defendant
Horsch.
Michigan’s ethnic intimidation statute, Mich. Comp. Laws § 750.147b, provides that a
“person is guilty of ethnic intimidation if that person maliciously, and with specific intent to
intimidate or harass another person because of that person’s race, color, religion, gender, or
national origin, does any of the following:” a) causes physical contact with another person;
b) damages, destroys, or defaces any real or personal property of another person; c) threatens, by
word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to
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believe that an act described in subdivision (a) or (b) will occur.
Ethnic intimidation is a felony punishable by imprisonment for not more than 2 years, or
by a fine of not more than $5,000.00, or both. Mich. Comp. Laws § 750.147b(2).
The statute also authorizes civil damages and provides, in pertinent part, that
“[r]egardless of the existence or outcome of any criminal prosecution, a person who suffers
injury to his or her person or damage to his or her property as a result of ethnic intimidation may
bring a civil cause of action against the person who commits the offense to secure an injunction,
actual damages, including damages for emotional distress, or other appropriate relief.” Mich.
Comp. Laws § 750.147b(3).
In Count VII, Plaintiffs seek civil damages against Horsch under the statute. But
Plaintiffs’ Complaint does not allege that Horsch a) caused any physical harm to Plaintiffs; b)
damaged, destroyed, or defaced any real or personal property of Plaintiffs; or c) threatened to do
so. Plaintiffs therefore clearly fail to state an ethnic intimidation claim against Horsch.2
II.
The Court Grants Defendant Horsch’s Rule 11 Motion For Sanctions, To The
Extent That It Will Impose Sanctions Against Plaintiffs’ Counsel, Jointly And
Severally With His Law Firm.
“Rule 11 imposes on attorneys a duty to reasonably investigate factual allegations and
2
The Court notes that Plaintiffs’ Complaint also includes a separate count titled
“Exemplary Damages,” which is also asserted against Horsch. But exemplary damages are a
remedy, not a cause of action. This Count will also be dismissed as to Defendant Horsch.
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legal contentions before presenting them to the court.” Penn, LLC v. Prosper Bus. Dev. Corp.,
773 F.3d 764, 766 (6th Cir. 2014). Specifically, Rule 11(b) provides that “[b]y presenting to the
court a pleading . . . or other paper – whether by signing, filing, submitting, or later advocating it
– an attorney or unrepresented party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:”
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b).
“If, after notice and a reasonable opportunity to respond, the court determines that Rule
11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm,
or party that violated the rule or is responsible for the violation. Absent exceptional
circumstances, a law firm must be held jointly responsible for a violation committed by its
partner, associate, or employee.” Fed. R. Civ. P. 11(c)(1).
Horsch’s Counsel complied with Rule 11’s “safe-harbor” provision by serving a copy of
his Rule 11 Motion for Sanctions on Plaintiff’s Counsel on June 3, 2016, which was more than
21 days prior to filing it with the Court. That safe-harbor provision allows “the nonmovant a
reasonable period to reconsider the legal and factual basis for his contentions” and, if necessary,
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dismiss any legally insufficient claims. Penn, LLC, 773 F.3d at 767.
Here, however, Plaintiffs did not dismiss any of the claims asserted against Horsch after
being served with the Rule 11 Motion for Sanctions, and the Motion to Dismiss.
“In this Circuit, the test for whether Rule 11 sanctions are warranted is whether the
conduct for which sanctions are sought was ‘reasonable under the circumstances.’” Salkil v.
Mount Sterling Tp. Police Dept., 458 F.3d 520, 528 (6th Cir. 2006) (quoting Ridder v. City of
Springfield, 109 F.3d 288, 293 (6th Cir. 1997)). “The court is ‘expected to avoid using the
wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable to
believe at the time the pleading, motion, or other paper was submitted.’” Merritt v. Int’l Ass’n of
Machinists and Aerospace Workers, 613 F.3d 609, 626 (6th Cir. 2010).
The Court agrees with Horsch that the filing of Plaintiffs’ Complaint violated Rule
11(b)(2) because the claims asserted against Horsch were clearly without factual or legal support
at the time the complaint was filed. Indeed, the only factual allegations concerning Horsch in
Plaintiffs’ 184-paragraph Complaint are that: 1) he spoke out against Satchel, an elected official,
at one public meeting; and 2) he filed two proposed recall petitions concerning Satchel.
Horsch asks the Court to impose Rule sanctions against both Plaintiff Satchel and
Plaintiffs’ Counsel.
Rule 11, however, expressly prohibits this Court from imposing monetary sanctions
against a represented party for violating Rule 11(b)(2).3 Fed. R. Civ. P. 11(c)(5); see also
Dearborn Street Bldg. Assocs., LLC v. Huntington Nat. Bank, 411 F. A’ppx 847, 852 (6th Cir.
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Horsch has not established that any other subsections of Rule 11(b) have been violated.
For example, Defendant Horsch has not argued that the sparse factual allegations concerning him
in the Complaint lack evidentiary support, as would support a violation under Rule 11(b)(3).
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2011) (explaining that under the rule, “only attorneys may be held liable where the basis of a
sanctions award is the frivolousness of a party’s legal position.”) (emphasis in original). The
Court will therefore deny the motion to the extent that it seeks Rule 11 sanctions against Plaintiff
Satchel.
The Court concludes that Rule 11 sanctions against Plaintiffs’ Counsel (Brian Garner) are
warranted. Moreover, the Court concludes that the sanctions against Mr. Garner should be
awarded jointly and severally with his law firm (Taylor, Butterfield, Howell, Churchill, Jarvis &
Garner, P.C.), as there are no exceptional circumstances to indicate otherwise. See Fed. R. Civ.
P. 11(c)(1).
This Court must therefore determine the nature and amount of the sanctions that should
be imposed. Rule 11 provides as follows concerning the nature of the sanctions that may be
imposed by the Court:
(4) Nature of a Sanction. A sanction imposed under this rule must be limited to
what suffices to deter repetition of the conduct or comparable conduct by others
similarly situated. The sanction may include nonmonetary directives; an order to
pay a penalty into court; or, if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of part or all of the
reasonable attorney’s fees and other expenses directly resulting from the
violation.
Fed. R. Civ. P. 11(c)(4).
This Court is mindful that sanctions are discretionary and that the current version of Rule
11 “de-emphasizes” monetary sanctions and “direct payouts to the opposing party.” See e.g.,
Ridder, 109 F.3d at 294. Rule 11 still recognizes, however, that under some circumstances,
deterrence may be ineffective unless the sanction not only requires the person violating the rule
to make a monetary payment, but also directs that some or all of this payment be made to those
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injured by the violation. Rentz v. Dynasty Apparel Indus., Inc., 556 F.3d 389, 395 (6th Cir.
2009); Fed. R.. Civ. P. 11(c)(4).
The Court concludes that this is one of those relatively rare instances where a monetary
sanction, made payable to the movant, is necessary for effective deterrence. Plaintiffs’ Counsel
filed a litany of claims against Defendant Horsch – a private citizen – after he spoke out at a
public meeting about an elected official, and filed two proposed recall petitions. The claims
asserted against him were clearly without factual or legal support from the onset. And Counsel
continued to violate Rule 11(b)(2) by failing to dismiss the frivolous claims asserted against
Horsch, even when faced with a properly-supported Motion to Dismiss, and service of a Rule 11
Motion for Sanctions. Mr. Garner failed to file any response to the Motion to Dismiss, and
completely ignored the Motion for Rule 11 Sanctions. Incredibly, no response to the unopposed
Rule 11 Motion for Sanctions was filed even after this Court issued its Show Cause Order.
In order to determine the appropriate amount of monetary sanctions that should be
imposed, the Court shall Order Defendant Horsch to file an itemized statement of the attorney
fees he has incurred in this action, along with an affidavit from Counsel. If Plaintiffs’ Counsel
and his law firm wish to do so, they may file a response to that submission. The Court will then
determine the appropriate sanction to be awarded.
CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that Defendant Horsch’s Motion to
Dismiss is GRANTED and that all claims asserted against Defendant Horsch are DISMISSED
WITH PREJUDICE.
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IT IS FURTHER ORDERED that Defendant Horsch’s Motion for Rule 11 Sanctions is
GRANTED IN PART. The motion is granted to the extent that the Court finds that a monetary
sanction against Plaintiffs’ Counsel (Brian Garner) and his law firm (Taylor, Butterfield, Howell,
Churchill, Jarvis & Garner, P.C.) is warranted. In order to determine the appropriate amount of
the monetary sanction to be awarded, the Court hereby ORDERS that:
1)
No later than November 14, 2016, Defendant Horsch shall file an itemized statement of
the attorney fees he has incurred in this action, along with a supporting affidavit from
Counsel;
2)
If they wish to do so, no later than November 28, 2016, Plaintiffs’ Counsel and his law
firm may file a response to Defendant Horsch’s submission.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: October 24, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
October 24, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager
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