McGuire v. McCormick et al
OPINION and ORDER: (1) Overruling Plaintiff's 43 Objection to Report and Recommendation; (2) Adopting the 40 REPORT AND RECOMMENDATION of the Magistrate Judge ; (3) Granting Defendant Brader's 11 MOTION to Dismiss as to Count s I-V;, (4) Granting Defendants McCormick and Sitkauskas's 13 MOTION to Dismiss as to Count I-V; (5) Granting Defendants Nesbitt and Liberati's 17 MOTION to Dismiss as to Counts I-V ; (6) Dismissing Counts I_V as Pled Against John Doe Defendants 1-10 with Prejudice; (7) Dismissing Counts VI-XIV Without Prejudice; (8) Closing this Case. Signed by District Judge Paul D. Borman. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-13113
Paul D. Borman
United States District Judge
JOSEPH A. MCCORMICK, ROBERT
SITKAUSKAS, VALERIE BRADER,
ARIC NESBITT, FRANK LIBERATI,
and JOHN DOE DEFENDANTS 1-10,
Mona K. Majzoub
United States Magistrate Judge
OPINION AND ORDER:
(1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 43);
(2) ADOPTING THE REPORT AND RECOMMENDATION OF THE
MAGISTRATE JUDGE (ECF NO. 40);
(3) GRANTING DEFENDANT BRADER’S MOTION TO DISMISS AS
TO COUNTS I-V (ECF NO. 11);
(4) GRANTING DEFENDANTS MCCORMICK AND SITKAUSKAS’S
MOTION TO DISMISS AS TO COUNTS I-V (ECF NO. 13);
(5) GRANTING DEFENDANTS NESBITT AND LIBERATI’S MOTION
TO DISMISS AS TO COUNTS I-V (ECF NO. 17);
(6) DISMISSING COUNTS I-V AS PLED AGAINST JOHN DOE
DEFENDANTS 1-10 WITH PREJUDICE;
(7) DISMISSING COUNTS VI-XIV WITHOUT PREJUDICE; AND
(8) CLOSING THIS CASE
On August 29, 2016, Plaintiff Arlene McGuire filed suit against various
Defendants based on utility Detroit Edison Company’s (“DTE”) replacement of its
customers’ traditional electric and natural gas meters with a “smart grid” system
made up of more technologically advanced, radio-transmitting meters. These “smart
meters,” which collectively make up DTE’s Advanced Metering Infrastructure
system (“AMI”), “can record near-real-time power consumption data and report that
usage to the utility at frequent intervals.” In re Application of Detroit Edison
Company to Implement Opt Out Program, No. 316728, 2015 WL 728383, at *1
(Mich. Ct. App. Feb. 19, 2015).
The federal claims asserted in the Complaint (ECF No. 1) include violation of
the Energy Policy Act of 2005, 16 U.S.C. § 2601 et seq. (Count I); violation of the
federal wiretapping act, 18 U.S.C. § 2510 et seq. (Count II); violation of the Fourth
Amendment (Count III); violation of the Fifth Amendment (Count IV); and violation
of the Ninth and Tenth Amendments (Count V). Plaintiff also asserts a variety of
state-law claims in Counts VI-XIV of the Complaint.
The Defendants in this action are Joseph McCormick, director of DTE’s AMI
program; Robert Sitkauskus, a DTE employee also involved in the AMI program;
Valerie Brader, Executive Director of the Michigan Agency for Energy; Aric
Nesbitt, a legislator in the Michigan House of Representatives; Frank Liberati,
another legislator in the Michigan House of Representatives; and ten unknown
employees of DTE, named in the action as John Doe Defendants. In September 2016,
all of the named Defendants moved to dismiss this action via three separate Motions
to Dismiss. (ECF Nos. 11, 13, 17.)
On May 22, 2017, Magistrate Judge Mona K. Majzoub issued a Report and
Recommendation, recommending that this Court grant the Defendants’ Motions to
Dismiss, and also dismiss the John Doe Defendants for the same reasons as the two
named DTE-affiliated Defendants should be dismissed. (ECF No. 40, Report and
Recommendation.) Now before the Court are Plaintiff’s Objections to the Report
and Recommendation. (ECF No. 43, Pl.’s Objs.) Defendants filed three Responses
to Plaintiff’s Objections. (ECF Nos. 44-46.) Having conducted a de novo review of
the parts of the Magistrate Judge’s Report and Recommendation to which objections
have been filed pursuant to 28 U.S.C. § 636(b)(1), the Court will overrule Plaintiff’s
Objections and adopt the Magistrate Judge’s Report and Recommendation.
The Magistrate Judge comprehensively set forth the factual background of
this matter in her Report and Recommendation. The Court adopts that account here.
(Report and Recommendation at 1-5, Pg ID 396-400.)
In the Report and Recommendation, the Magistrate Judge also thoroughly
articulated the reasons behind her recommendation that all claims in this action be
dismissed. (See id. at 6-15, Pg ID 401-410.) First, the Magistrate Judge
recommended that this Court dismiss Plaintiff’s claim under the Energy Policy Act
of 2005 (Count I) as to all Defendants, because (assuming that statute creates a
private right of action at all) Plaintiff has not shown that DTE’s implementation of
its smart-meter program violates that statute in any way. The Magistrate Judge then
recommended that this Court dismiss Plaintiff’s claim under the federal wiretapping
act (Count II) as to all Defendants, noting that the claim does not appear to be
directed at the non-DTE-affiliated Defendants; that smart-meter programs like
DTE’s are expressly authorized and funded by other federal statutory provisions;
that the wiretapping statute is not implicated by DTE’s smart-meter program because
the information transmitted goes to its intended recipient (the utility) rather than
being “intercepted”; and that the statute would not impose liability on any of the
Defendants for interceptions by hackers or other third parties if they occurred.
Counts III and IV warrant dismissal, the Magistrate Judge then explained,
because Plaintiff has not set forth any plausible theory of liability under the Fourth
and Fifth Amendments as to state-affiliated Defendants Brader, Nesbitt, and
Liberati, and because the remaining Defendants cannot incur such liability given that
they are not state actors. As to Count V, the Magistrate Judge recommended that the
Court dismiss the Ninth and Tenth Amendment claims as to all Defendants,
explaining that to the extent those claims are restatements of Plaintiff’s Fourth and
Fifth Amendment claims they should be dismissed for the reasons stated in the
Magistrate Judge’s discussion of Counts III and IV; that the Ninth Amendment
confers no substantive rights beyond those also conferred by other parts of the
Constitution; and that Plaintiff has not plausibly alleged a Tenth Amendment claim
because she did not allege any commandeering of state regulatory schemes by the
federal government. The Magistrate Judge recommended that the Court dismiss the
remaining state-law claims (Counts VI-XIV) pursuant to 28 U.S.C. § 1367(c)(1),
which authorizes district courts to decline to exercise supplemental jurisdiction over
state-law claims where the court “has dismissed all claims over which it has original
jurisdiction . . . .” Finally, the Magistrate Judge stated that all of Plaintiff’s claims
against the ten John Doe Defendants should be dismissed for the same reasons that
they should be dismissed as against the named DTE-affiliated Defendants.
STANDARDS OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1),
the Court conducts a de novo review of the portions of the Magistrate Judge’s Report
and Recommendation to which a party has filed “specific written objections” in a
timely manner. Lyons v. Comm’r Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich.
2004). A district court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” Id. Only those
objections that are specific are entitled to a de novo review under the statute. Mira
v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint
those portions of the magistrate's report that the district court must specially
consider.” Id. (internal quotation marks omitted). “A general objection, or one that
merely restates the arguments previously presented is not sufficient to alert the court
to alleged errors on the part of the magistrate judge.” Aldrich v. Bock, 327 F. Supp.
2d 743, 747 (E.D. Mich. 2004). Likewise, an objection that does nothing more than
disagree with a magistrate judge's determination “without explaining the source of
the error” is not a valid objection. Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991).
Plaintiff raises fifteen objections to the Report and Recommendation. Having
thoroughly reviewed Plaintiff’s objections, this Court concludes that they lack merit
for the reasons stated below. Accordingly, the Court will overrule Plaintiff’s
objections and adopt the Magistrate Judge’s Report and Recommendation in full.
Plaintiff objects to the Magistrate Judge’s citation of In re Application of
Detroit Edison Company to Implement Opt Out Program, No. 316728, 2015 WL
728383 (Mich. Ct. App. Feb. 19, 2015), for the proposition that DTE’s smart grid
system was “intended to ‘increase the reliability of the electric grid, reduce outage
time, and otherwise improve service.’” (Report and Recommendation at 2-3, Pg ID
397-98 (quoting In re Application of DTE, 2015 WL 728383, at *1).) Specifically,
Plaintiff takes issue with the lack of proof of this statement, and argues that the
Magistrate Judge’s adoption of the statement despite the Defendants’ failure to
support it with “any electrical engineering standards” constitutes legal error. (Pl.’s
Objs. at 2, Pg ID 421.) Plaintiff also appears to cite the dissenting opinion in In re
Application of Consumer Energy to Increase Elec. Rates, 316 Mich. App. 231
(2016), though the quote that she attributes to that opinion does not actually appear
in it. (See Pl.’s Objs. at 2-3, Pg ID 421-22.)
In re Application of Consumer Energy is irrelevant here, in any event, as it
involved the question of whether the Michigan Public Service Commission’s
approval of a utility’s smart grid program was supported by sufficient evidence. See
id. at 233-40. This is a completely different legal context, both because this case
concerns an individual plaintiff seeking redress for damages rather than judicial
review of an agency decision, and because the Court’s responsibility at this stage of
the case is to assume Plaintiff’s factual allegations to be true, and then determine
whether they would entitle her to any remedy under the law. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“To 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.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For
this reason, questions as to whether a particular factual assertion is supported by
evidence are largely irrelevant at this time.
The Court also notes that whether it is true or not that DTE’s smart grid system
was “intended to increase the reliability of the electric grid, reduce outage time, and
otherwise improve service” (Report and Recommendation at 2-3, Pg ID 397-98)
does not affect any of the reasons to dismiss Plaintiff’s claims that the Magistrate
Judge provided in the Report and Recommendation.
For all of these reasons, Plaintiff’s first objection is overruled.
Plaintiff also objects to the Magistrate Judge’s quoting In re Application of
DTE for a different factual proposition: “Michigan Public Service Commission
(‘MPSC’) staff have reported that ‘[o]ffering customers an electromechanical meter
as an alternative to a smart meter is not a long-term solution,’ because ‘[t]he
traditional electromagnetic meter is obsolete and currently not in production.’”
(Report and Recommendation at 3, Pg ID 398 (quoting In re Application of DTE,
2015 WL 728383, at *2).) Plaintiff argues that “[t]his statement by the Magistrate
[Judge] is simply false, and for her to use this as evidence to support her [Report and
Recommendation] against this Plaintiff is not just wrong, but shows her bias and
prejudice.” (Pl.’s Objs. at 3, Pg ID 422.)
This objection has the same flaws as Plaintiff’s first objection. Whether a fact
quoted by the Magistrate Judge from a state-court opinion is supported by evidence
is not relevant to the analysis conducted when Plaintiff’s case is challenged with a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Further, the
factual proposition Plaintiff challenges here is unrelated to any of the reasons that
the Magistrate Judge recommended dismissal of the case. Finally, Plaintiff has not
explained (and this Court fails to see) how the Magistrate Judge’s quotation of In re
Application of DTE by way of factual background represents bias or prejudice on
the Magistrate Judge’s part. Plaintiff’s second objection is overruled.
Plaintiff makes several objections regarding the Magistrate Judge’s adherence
to the standards governing motions to dismiss under Rule 12 of the Federal Rules of
Civil Procedure. The Court considers them in turn.
Plaintiff argues that DLX, Inc. v. Kentucky, 381 F.3d 511, 514 (6th Cir. 2004),
cited by the Magistrate Judge for the general standards applicable to Rule 12(b)(1)
motions, is distinguishable because the case involved a Rule 12(b)(1) motion that
was granted on the basis of the ripeness and Rooker-Feldman doctrines,1 neither of
which is relevant to this case. This objection lacks merit for two reasons. First, the
Magistrate Judge cited DLX for the standard applicable to Rule 12(b)(1) motions
generally, which seek dismissal of a case based on the court’s asserted lack of
subject-matter jurisdiction; those standards do not differ based on the substantive
reason for the challenge to the court’s jurisdiction. Second, the Magistrate Judge did
not ultimately recommend dismissal of any of Plaintiff’s claims on Rule 12(b)(1)
“The Rooker–Feldman doctrine, named for Rooker v. Fidelity Trust Co., 263 U.S.
413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), stands for the
proposition that a party aggrieved by a state-court decision cannot appeal that
decision to a district court, but must instead petition for a writ of certiorari from the
United States Supreme Court.” DLX, 381 F.3d at 516.
grounds, and presumably only cited the Rule 12(b)(1) standard in the spirit of
thoroughness, as some of the Defendants’ Motions to Dismiss were made on Rule
Next, Plaintiff argues that the Magistrate Judge did not accept as true the
factual allegations in her Complaint, or otherwise construe the Complaint in the light
most favorable to Plaintiff.2 This Court disagrees. The reasons that the Magistrate
Judge set forth in the Report and Recommendation for dismissing Plaintiff’s claims
are legal, not factual, and the law requires the Court to dismiss Plaintiff’s claims for
all of those reasons even if all of Plaintiff’s factual allegations are true—which the
Magistrate Judge and this Court have assumed that they are.
Finally, Plaintiff reminds the Court of her status as a pro se litigant, which
requires that her Complaint be reviewed under “less stringent standards than formal
pleadings drafted by lawyers[,]” and requests the opportunity to amend the
Complaint if it is still considered deficient under Rule 12(b)(6). (Pl.’s Objs. at 6, Pg
ID 425 (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).)
The reasons that the Complaint must be dismissed have nothing to do with
how well or poorly the Complaint was written, and Plaintiff is clear in the Complaint
Plaintiff also accuses Defendants’ counsel of lying and perjury, but has not
substantiated these accusations in any specific way. For this reason, the Court will
about the facts she is alleging and the laws she believes were violated. As the
Magistrate Judge properly concluded, Plaintiff’s allegations, assumed to be true,
simply do not entitle Plaintiff to the relief she seeks under any of the laws she
invokes. Nor has Plaintiff shown that she could amend her Complaint in a way that
would specifically address the deficiencies identified by the Magistrate Judge, which
concern legal hurdles to Plaintiff’s claims rather than any evidentiary or factual
issues. Accordingly, the Court overrules Plaintiff’s third objection.
Objections 4 and 5
In her fourth and fifth objections, Plaintiff elaborates on an argument that she
made in her third objection: that the Magistrate Judge failed to accept her factual
allegations as true or otherwise read the Complaint in the light most favorable to
Plaintiff, as evidenced by the Magistrate Judge’s recommendation that the case be
dismissed even though Defendants have failed to rebut Plaintiff’s factual allegations.
As stated above, however, a court’s evaluation of a complaint’s legal
sufficiency under Rule 12(b)(6) is not concerned with whether the plaintiff’s factual
allegations are supported by evidence, or with whether they have been rebutted by
the defense; it concerns whether the allegations, if plausible and assumed to be true,
entitle the plaintiff to relief. This is the analysis that the Magistrate Judge undertook
in the Report and Recommendation, and this Court sees no error in her analysis. The
Court overrules Plaintiff’s fourth and fifth objections.
Plaintiff raises several related objections to the Magistrate Judge’s
recommendation that this Court dismiss Count I of Plaintiff’s Complaint, which
asserts a claim under the Energy Policy Act of 2005, 16 U.S.C. § 2601 et seq.
The first of these objections is directed at the Magistrate Judge’s conclusion
that DTE’s implementation of its smart-meter program did not violate the statute.
Plaintiff concedes that the Magistrate Judge was “partially correct” in determining
that “it is clear from the plain language of the statute that DTE is not prohibited from
implementing its smart meter program.” (Pl.’s Objs. at 11, Pg ID 430 (quoting
Report and Recommendation at 7, Pg ID 402).) Even so, Plaintiff argues, the statute
does not affirmatively authorize DTE’s implementation of the program without the
consent of its customers, but instead uses terms like “shall offer” and “upon
customer’s request” which imply that the implementation may be voluntary only.
(Pl.’s Obj.’s at 10, Pg ID 429 (quoting 16 U.S.C. § 2601 et seq.).)
There are two problems with this argument. First, as the Magistrate Judge
noted, it is far from clear that this statute provides for a private right of action at all.
In fact, at least one district court has held that it does not. See Naperville Smart Meter
Awareness v. City of Naperville, No. 11 C 9299, 2013 WL 1196580, at *8 (N.D. Ill.
Mar. 22, 2013) (“Given that Congress explicitly granted discretion to the state
regulatory authority to implement § 2621(d)(14)(A) and (C), these statutory
provisions . . . [do] not create a private right of action for the Plaintiffs in this case.”).
This consideration is likely enough by itself to require dismissal of Count I, since
the Supreme Court has made clear that “[i]f the statute itself does not ‘displa[y] an
intent’ to create ‘a private remedy,’ then ‘a cause of action does not exist and courts
may not create one, no matter how desirable that might be as a policy matter, or how
compatible with the statute.’” Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017)
(quoting Alexander v. Sandoval, 532 U.S. 275, 280 (2001)).
Even if that is not sufficient grounds for dismissal of Count I, the fact that no
Defendant violated the express terms of the statute is. This Court declines to read
the statute’s lack of an express authorization of the conduct Plaintiff charges the
Defendants with as an actionable prohibition of that conduct.
Plaintiff also takes issue with the Magistrate Judge’s citations of 26 U.S.C. §
2611 and 16 U.S.C. § 2612, maintaining that neither statutory provision is relevant
to this case. Plaintiff is correct when it comes to 26 U.S.C. § 2611, which is a section
of the Internal Revenue Code, but that citation is clearly a typographical error, as it
is surrounded by other citations to Title 16 (rather than Title 26) of the United States
Code, and the language quoted in the citation at issue does in fact appear in 16 U.S.C.
§ 2611. As to 16 U.S.C. § 2612 (“Coverage”), that provision merely establishes what
utilities fall within the scope of the statute, and has nothing to do with the reasoning
behind the Magistrate Judge’s recommendation as to the dismissal of Count I. In any
case, Plaintiff has not argued that DTE is excluded from the statute’s coverage.
For the reasons stated above, Plaintiff’s sixth objection is overruled.
Plaintiff’s seventh objection, nominally still concerned with the Magistrate
Judge’s findings regarding Count I, is actually a political and quasi-constitutional
argument that governments cannot authorize corporations to act over the objections
of the citizens of the United States, who possess ultimate sovereignty. Plaintiff cites
several Supreme Court cases discussing the principle of individual sovereignty, all
decided around the turn of the 20th century and from a variety of civil and criminal
contexts. Plaintiff has not, however, explained how these cases are relevant to the
specific legal reasons articulated by the Magistrate Judge that this action should be
dismissed for failure to state a cognizable legal claim. This Court concludes that they
are not. Plaintiff’s seventh objection is overruled.
In her discussion of whether DTE’s implementation of its smart-meter
program violated the Energy Policy Act of 2005, the Magistrate Judge quoted In re
Application of DTE for the proposition—incidental, at best, to the analysis—that
fully analog meters are “obsolete and no longer in production . . . .” (Report and
Recommendation at 8, Pg ID 403 (quoting In re Application of DTE, 2015 WL
728383, at *1).) Plaintiff characterizes this statement as “a specious argument, an all
out fabrication of the truth and a perjurious statement.” (Pl.’s Objs. at 13, Pg ID 432.)
As noted above in the Court’s discussion of Plaintiff’s first and second
objections, the question of whether factual findings by the Michigan Court of
Appeals in In re Application of DTE are supported by evidence is irrelevant to the
reasons that this lawsuit must be dismissed. The Magistrate Judge recommended
dismissal of Count I as to all Defendants because Plaintiff has not alleged any actions
by any of them that violate the Energy Policy Act of 2005. This Court finds no error
in that assessment. Plaintiff’s eighth objection is overruled.
Plaintiff objects to the Magistrate Judge’s use of the phrase “governmental
immunity” in the final paragraph of the section of the Report and Recommendation
concerning Count I, arguing that there can be no governmental immunity unless
“public functionaries” like DTE act “de jure.” (Pl.’s Objs. at 13-14, Pg ID 432-33
(citing Norton v. Shelby County, 118 U.S. 425, 443 (1886)).) The Magistrate Judge
did not actually recommend dismissal of any of Plaintiff’s claims based on any form
of governmental immunity, however, and in fact used the term only in describing
some of the arguments made by Defendants before stating that those arguments
would not be addressed in her analysis. (See Report and Recommendation at 8-9, Pg
ID 403-04.) The concept of “governmental immunity” has nothing to do with the
reasons that the Magistrate Judge recommended dismissal of this case. Plaintiff’s
ninth objection is overruled.
Plaintiff’s tenth objection concerns the Magistrate Judge’s findings as to
Plaintiff’s claim under the federal wiretapping act, 18 U.S.C. § 2510 et seq., asserted
in Count II of the Complaint. The Magistrate Judge determined that the claim was
not asserted against the non-DTE-affiliated Defendants; that programs like DTE’s
are authorized by and funded pursuant to other provisions of federal law; that a smart
meter does not “intercept” information as contemplated by the statute but simply
transmits it to the intended recipient; and that whatever the risk of unauthorized third
parties accessing information, the federal statute would not hold any of the
Defendants liable for such an eventuality if it occurred.
Plaintiff contends that the state Defendants are indeed liable because they are
“public functionaries” tasked with protecting the freedoms of citizens. Plaintiff then
argues that her factual allegations of Defendants’ failure at this task are unrebutted;
rejects the Magistrate Judge’s finding that federal statutory approval and funding of
smart-meter programs weighs against a conclusion that the federal wiretapping
statute prohibits them; and reiterates her concerns about the possibility of
unauthorized third-party access of smart meters.
This objection lacks merit. Even assuming Count II is directed at all
Defendants, and putting aside the authorization for smart-meter programs that exists
elsewhere in federal statutory law, Plaintiff has failed to demonstrate how DTE’s
smart-meter program violates 18 U.S.C. §§ 2510 and 2511, given that those statutory
provisions only cover “interceptions” of communications and would not impose
liability on any of the Defendants for the actions of third parties. Plaintiff’s tenth
objection is overruled.
Plaintiff’s eleventh objection is directed towards the Magistrate Judge’s
recommendations regarding Plaintiff’s Fourth and Fifth Amendment claims, as
asserted in Counts III and IV of the Complaint. The Magistrate Judge recommended
that these claims be dismissed as to state Defendants Brader, Nesbitt, and Liberati
based on the finding of the Michigan Court of Appeals that “the design and
implementation of [the smart-meter program] was a management decision reserved
to DTE, a private company.” (Report and Recommendation at 11, Pg ID 406 (citing
In re Application of DTE, 2015 WL 728383, at *4).) The Magistrate Judge then
concluded that DTE-affiliated Defendants McCormick and Sitkauskas could not be
held liable as state actors under the Fourth and Fifth Amendments in light of the
well-established principle that “the supplying of utility service is not traditionally
the exclusive prerogative of the State . . . .” (Report and Recommendation at 12-13,
Pg ID 407-08 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 358 (1974)).)
Plaintiff objects to both conclusions. The only argument that Plaintiff makes
regarding the state-actor Defendants is that “[t]he decision reserved to DTE cannot
be an arbitrary or capricious one, without considering the public interest which they
serve.” (Pl.’s Objs. at 15, Pg ID 434.) But Plaintiff does not support this argument
with any citation to relevant case law, state why these three specific state actors
should incur liability under the Fourth and Fifth Amendments, or provide this Court
with any other reason for interfering with the Michigan Court of Appeals’
determination that the state’s delegation of decisions regarding smart-meter
equipment was “not unlawful.” In re Application of DTE, 2015 WL 728383, at *4.
As regards the DTE-affiliated Defendants, Plaintiff attacks the Magistrate
Judge’s reliance on the Supreme Court’s decision in Jackson, arguing that that case
is factually distinguishable from the instant case because the termination of
electricity service without notice or a hearing that was at issue in that case is “hardly
equal to the forced deployment” of DTE’s smart meters alleged in this one. (Pl.’s
Objs. at 15-16, Pg ID 434-35.) The Court rejects this argument. In Jackson, the
Supreme Court declined to characterize as a state actor “a heavily regulated,
privately owned utility, enjoying at least a partial monopoly in the providing of
electrical service within its territory, [which] elected to terminate service to
petitioner in a manner which the Pennsylvania Public Utility Commission found
permissible under state law.” Jackson, 419 U.S. at 358. Given the Jackson Court’s
primary focus on the relationship between the utility and the state rather than the
details of the utility’s challenged conduct, this Court does not see (nor has Plaintiff
supplied) any basis to conclude that the reasoning in Jackson does not apply with
equal force to the implementation of smart meters at issue in this case.
Plaintiff also draws a distinction between the “partial monopoly” of the utility
in Jackson and the “100% complete monopoly which DTE enjoys in its territory in
the State of Michigan.” (Pl.’s Objs. at 16, Pg ID 435.) Assuming that Plaintiff’s
characterization of DTE’s monopoly is accurate, Plaintiff has not demonstrated why
this would make Jackson inapplicable here. In fact, the Jackson opinion itself and
subsequent Sixth Circuit case law both weigh in the other direction. See Jackson,
419 U.S. at 351-52 (explaining that the utility’s possession of a monopoly was “not
determinative in considering whether [its] termination of service to petitioner was
‘state action’ for purposes of the Fourteenth Amendment”); Mays v. Buckeye Rural
Elec. Co-op., Inc., 277 F.3d 873, 880–81 (6th Cir. 2002) (“A private utility company
. . . does not amount to a state actor, even if the utility possesses a monopoly over
the provision of a service, for Fourteenth Amendment purposes.”).3 This Court
The Court notes that both the Supreme Court in Jackson and the Sixth Circuit in
Mays confronted due process claims asserted under the Fourteenth Amendment,
while Plaintiff’s claims in Counts III and IV are made under the Fourth and Fifth
Amendments respectively. It does not appear to be conclusively settled that the same
“state action” test governs claims under all three Amendments, but various United
States Courts of Appeals have cited Jackson in the Fourth and Fifth Amendment
contexts. See, e.g., Wade v. Byles, 83 F.3d 902, 905 n.4 (7th Cir. 1996) (Fourth
Amendment); United States v. Edwards, 602 F.2d 458, 463 (1st Cir. 1979) (Fourth
Amendment); see also Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 137–38 (2d Cir.
concludes that the Magistrate Judge’s reliance on Jackson was not erroneous.
For all of the reasons stated above, Plaintiff’s eleventh objection is overruled.
The Magistrate Judge recommended that Count V be dismissed as to all
Defendants to the extent that it asserts claims under the Ninth Amendment because
“[t]he Sixth Circuit has held that the ‘Ninth Amendment confers no substantive
rights in addition to those conferred by other portions of the Constitution.’” (Report
and Recommendation at 13, Pg ID 408 (quoting Green v. Hill, 73 F.3d 361 (table)
1995 WL 764119, at *2 (6th Cir. 1995)).)
Plaintiff objects to the Magistrate Judge’s reliance on Green. Specifically,
Plaintiff notes that in Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991), which was
cited in Green, the Sixth Circuit stated that “[t]he ninth amendment ‘was added to
the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius
would not be used at a later time to deny fundamental rights merely because they
were not specifically enumerated in the Constitution.’” Gibson, 926 F.2d at 537
(quoting Charles v. Brown, 495 F.Supp. 862, 863–64 (N.D. Ala. 1980)).
The passage quoted from Gibson is in no way inconsistent with the
2002) (Fifth Amendment); Behagen v. Amateur Basketball Ass'n of U.S., 884 F.2d
524, 530 (10th Cir. 1989) (Fifth Amendment). Plaintiff has not challenged the
Magistrate Judge’s reliance on Jackson, at any rate, and this Court cannot discern
any reasons specific to this case that Jackson’s reasoning should not apply here.
proposition that the Ninth Amendment confers no substantive rights on its own; in
context, it means that rather than being an independent source of substantive rights,
the Ninth Amendment was designed to prevent the limitation of fundamental rights
arising from other provisions of the Constitution merely because those rights were
not expressly stated in the text of the document.
This Court concludes that the Magistrate Judge did not err in relying on Green.
Accordingly, Plaintiff’s twelfth objection is overruled.
The Magistrate Judge recommended that any Tenth Amendment claims
asserted in Count V be dismissed because the Complaint alleges no commandeering
of state regulatory schemes by the federal government, nor any other theory of
liability under the Tenth Amendment.
In her thirteenth objection, Plaintiff argues that the Magistrate Judge
improperly overlooked the fact that under the Tenth Amendment, “powers not
delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.” U.S. Const. amend. X
The Magistrate Judge correctly determined that this case does not involve any
federal commandeering of state regulatory schemes. Much of the specific
government approval of DTE’s smart-meter program, including approval of the opt21
out system that Plaintiff deems insufficient, came from the state of Michigan rather
than the federal government, and the Michigan Court of Appeals subsequently
affirmed the state’s approval of the opt-out program. See generally In re Application
of DTE, 2015 WL 728383. Plaintiff has not cited precedent interpreting the Tenth
Amendment to require interference by this Court with this Michigan regulatory
scheme, or to otherwise impose liability on any of the Defendants in this action. The
Court overrules Plaintiff’s thirteenth objection.
After finding that all of Plaintiff’s federal claims must be dismissed for failure
to state a claim under Rule 12(b)(6), the Magistrate Judge further recommended that
this Court decline to exercise supplemental jurisdiction over the state-law claims
remaining in the action. 28 U.S.C. § 1367(c) provides that a federal district court
“may decline to exercise supplemental jurisdiction” over state-law claims asserted
in tandem with federal claims if the court “has dismissed all claims over which it has
original jurisdiction . . . .” The Sixth Circuit has held that “[w]hen all federal claims
are dismissed before trial, the balance of considerations usually will point to
dismissing the state law claims, or remanding them to state court if the action was
removed.” Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1254–55
(6th Cir. 1996). This is in large part because “[n]eedless decisions of state law should
be avoided both as a matter of comity and to promote justice between the parties, by
procuring for them a surer-footed reading of applicable law.” Rouster v. Cty. of
Saginaw, 749 F.3d 437, 454 (6th Cir. 2014) (quoting United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 724 (1966)).
Plaintiff objects to the Magistrate Judge’s recommendation that this Court
decline to exercise supplemental jurisdiction over her state-law claims, arguing that
the decision reflects bias and prejudice on the Magistrate Judge’s part, and that
judicial economy for all parties would be promoted were this Court to retain
jurisdiction over the remaining claims. The Court rejects the first of these
contentions out of hand: this Court sees no evidence of bias or prejudice in the
Magistrate Judge’s recommendations, particularly given the well-established legal
principles supporting it. Moreover, to whatever extent judicial economy would be
served by this Court’s retention of jurisdiction over Plaintiff’s state-law claims, it is
outweighed by the federalism concerns embodied in Rouster and Gibbs: in
circumstances like this, the state courts are better situated to adjudicate state-law
claims untethered to claims over which the federal courts have original jurisdiction.
For these reasons, Plaintiff’s fourteenth objection is overruled.
Plaintiff’s final objection is to the Magistrate Judge’s recommendation that
Although Plaintiff’s final objection is titled “Objection # 21,” there are no
objections numbered 15 through 21 in Plaintiff’s brief.
this Court dismiss the claims asserted against the ten John Doe Defendants for the
same reasons that they should be dismissed as against Defendants McCormick and
Sitkauskas. Plaintiff explains that the specific identities of these Defendants, the
DTE employees who Plaintiff alleges trespassed on her property and disrupted her
electrical service, are still unknown, and argues that the John Doe Defendants should
not avoid liability simply because they were following orders if those orders were
Plaintiff’s objection does not address the specific justification for the
Magistrate Judge’s recommended dismissal of these Defendants: that Plaintiff’s
claims against them are deficient for the same reasons that the claims against the
named DTE employees are deficient. Indeed, Plaintiff makes no argument that the
grounds for dismissal of Defendants McCormick and Sitkauskas stated by the
Magistrate Judge do not apply to the John Doe Defendants. Whatever the merits of
Plaintiff’s argument that the John Doe Defendants should be no less liable than their
superiors because they were following orders, the fact remains that the superiors
themselves cannot incur liability under any of the theories that Plaintiff has asserted
in this action. Accordingly, the Court overrules Plaintiff’s final objection.
For all of the reasons stated above, the Court hereby:
- OVERRULES Plaintiff’s Objections (ECF No. 43);
- ADOPTS the Report and Recommendation of Magistrate Judge Mona K.
Majzoub (ECF No. 40) as this Court’s findings and conclusions of law;
- GRANTS Defendant Brader’s Motion to Dismiss (ECF No. 11) as to the claims
in Counts I-V of the Complaint (ECF No. 1);
- GRANTS Defendants McCormick and Sitkauskas’s Motion to Dismiss (ECF No.
13) as to the claims in Counts I-V of the Complaint;
- GRANTS Defendants Nesbitt and Liberati’s Motion to Dismiss (ECF No. 17) as
to the claims in Counts I-V of the Complaint; and
- DISMISSES WITH PREJUDICE the claims asserted against John Doe
Defendants 1-10 in Counts I-V of the Complaint.
Further, the Court declines to exercise supplemental jurisdiction over
Plaintiff’s remaining state-law claims in Counts VI-XIV of the Complaint and
DISMISSES those claims WITHOUT PREJUDICE.
This Order closes this case.
IT IS SO ORDERED.
Dated: October 6, 2017
s/Paul D. Borman
Paul D. Borman
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on October 6, 2017.
Case Manager Generalist
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?