Waad et al v. Farmers Insurance Exchange, Inc. et al
MEMORANDUM AND ORDER GRANTING DEFENDANT DANA GOLDBERG'S MOTION TO DISMISS [DOC. 14]. Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MAHER WAAD, an individual,
MARKS ONE CAR RENTAL, a
Michigan corporation, MARKS ONE
COLLISION, a Michigan corporation,
Case No. 16-13362
SERGEANT DAN WILLIS, in his individual capacity,
DETECTIVE DAVE KRISS, in his individual and
official capacity, LIEUTENANT MARK OERMAN,
in his individual capacity, DANA GOLDBERG, in her
official and individual capacity, THE COUNTY
OF MACOMB, a municipality, jointly and severally,
HON. AVERN COHN
MEMORANDUM AND ORDER GRANTING DEFENDANT DANA GOLDBERG’S
MOTION TO DISMISS (Doc. 14)1
This is essentially a civil rights case. Plaintiffs Maher Waad, an individual, Marks
One Car Rental, and Marks One Collision, two companies owned by Waad, sued
multiple individuals and entities, as follows: (1) Farmers Insurance Exchange, (2) Allen
Keller - an employee of Farmers, (3) Sergeant Dan Willis - a Warren police officer, (4)
Detective Dave Kriss- a Macomb County Deputy Sheriff, (5) Lieutenant Mark Oerman a Macomb County Deputy Sheriff, (6) Dana Goldberg - a Macomb County prosecutor,
(7) Macomb County, (8) Macomb County Sheriff’s Department, and (9) Michigan Auto
Upon review of the parties’ papers, the Court deems this matter appropriate for
decision without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
Theft Authority. Following various stipulations, see Docs. 32, 33, 34 the remaining
defendants are: (1) Willis, in his individual capacity, (2) Kriss, in his official and individual
capacity, (3) Oerman, in his individual capacity, (4) Goldberg, and (5) Macomb County.
Upon the dismissal of plaintiffs’ state law claims, see Doc. 27, the following claims are
Count I - Federal Claim Violation of the Fourth and Fourteenth Amendment False Arrest, False Imprisonment and Unreasonable Search and Seizure
Count II - Federal Claim Violation of Fourth and Fourteenth Amendments
Count III - Federal Claim, 42 U.S.C. § 1983 Monell Claim (against Macomb
Before the Court is Goldberg’s motion to dismiss on the grounds of prosecutorial
immunity. For the reasons that follow, the motion will be granted.
Under Rule 12(b)(6) a complaint must be dismissed if it does not “contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The plausibility standard
demands more than a “sheer possibility that a defendant has acted unlawfully.” Id.
Rather, for a claim to be facially plausible, a plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1949. Rule 12(b)(6) motion tests the sufficiency of a
plaintiff’s pleading. Fed. R. Civ. P. 12(b)(6). The Court need not accept as true “legal
conclusions or unwarranted factual inferences.” In Re Packaged Ice Antitrust Litig., 723
F. Supp. 2d 987, 1002 (E.D. Mich. 2010) (quoting Directv, Inc. v. Treesh, 487 F.3d 471,
476 (6th Cir. 2007)).
The Supreme Court has held that prosecutors have absolute immunity from
damages for both initiating and prosecuting a case, including presentation of the state's
case at trial. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). A prosecutor must
exercise his or her best professional judgment both in deciding which suits to bring and
in prosecuting them in court. Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006).
Without the protection of absolute immunity, prosecutors could not properly perform this
duty if every decision carried the potential consequences of personal liability in a suit for
damages. Id. Prosecutors, therefore, are granted absolute immunity when the
challenged actions are those of an advocate, or in connection with duties required to
function a prosecutor. Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir. 2003).
The Sixth Circuit has further recognized that immunity is granted to prosecutors
“pursuing a civil action” when they are “functioning in an enforcement role and acting as
advocates for the state,” Cooper v. Parrish, 203 F.3d 937, 947 (6th Cir. 2000).
Since Imbler, the courts have taken a functional approach and have concluded
that a prosecutor is protected in connection with his duties in functioning as a
prosecutor. Id. (quoting Higgason v Stephens, 288 F.3d 868, 877 (6th Cir. 2002)). The
"critical inquiry is how closely related is the prosecutor's challenged activity to his role as
an advocate intimately associated with the judicial phase of the criminal process."
Holloway v Brush, 220 F.3d 767, 775 (6th Cir. 2000) (en banc). Immunity is granted not
only for actions directly related to initiating a prosecution and presenting the State's
case, but also to activities undertaken "in connection with [the] duties in functioning as a
prosecutor." Id. at 431; Higgason, supra at 877. Absolute immunity is therefore
extended to prosecuting attorneys when the actions in question are those of an
advocate engaged in activities that are “an integral part of the judicial process.”
Spurlock v Thompson, 330 F3d 791, 797-798 (6th Cir. 2003)
The complaint alleges that Goldberg as “a Macomb county Assistant Prosecuting
Attorney (who was) at all times relevant was assigned as the Macomb County
Prosecutor’s Office’s designated asset forfeiture prosecutor” and that she “was the
prosecutor involved in the unconstitutional taking of hundreds or thousands of dollars of
personal and business property belonging to Plaintiff Waad…” (Doc. 1, Pg ID #5).
Plaintiffs more specifically allege:
On the date of May 20th, 2014, as a means of articulating the Agreement to
return in excess of sixty (60) illegally seized vehicles to Plaintiff Maher Waad and
his car rental company, Macomb County Assistant Prosecuting Attorney
Defendant Dana Goldberg misrepresented to the Court the negotiated “out of
court” agreement with Plaintiff Waad and instead struck a vengeful secret deal
with counsel for Plaintiff’s finance company threatening “to take the
vehicles again” if they returned the vehicles to the possession of Mr. Waad.
This perjured representation offered by Prosecutor Goldberg was made on
the record in a District Court hearing…
(Doc. 1, Pg ID #14) (quotation marks and emphasis in original).
These allegations are clearly founded upon Goldberg’s actions within the
confines of her position as a prosecutor. Indeed, from the transcript of the state court
proceedings it is clear that Goldberg was acting as a prosecutor during the time in which
plaintiffs allege she acted wrongfully. The transcript in the matter of People v. Waad,
no. W144117, on May 20, 2014 before the Honorable Dean J. Ausilio reads in relevant
part: “Ms. Goldberg: Good morning, Your Honor, Dana Goldberg on behalf of the
People and representing the Macomb Auto Theft Square.” In the balance of the
hearing, Goldberg is defending the forfeiture of several items of plaintiffs’ property which
were seized pursuant to a search warrant. That plaintiffs disagree with Goldberg’s
argument does not diminish the fact that she was acting in her role as a prosecutor
during the entire hearing.
Plaintiffs, however, contend that Goldberg is not entitled to immunity because her
actions related to a civil forfeiture action not a criminal proceeding. This argument lacks
merit. The Sixth Circuit has clearly held "that prosecutorial immunity extends to
proceedings where the prosecutor institutes a civil forfeiture proceeding." Blakely v
United States, 276 F.3d 853, 871 (6th Cir. 2002); Cooper v Parrish, 203 F.3d 937, 947
(6th Cir. 2002). The Sixth Circuit explained:
Prosecutorial immunity extends to those activities that occur in the prosecutor's
role as advocate for the government. If, however, the prosecutor is only serving
in an investigatory capacity, i.e., activities normally performed by a detective or
police officer such as searching for the clues and corroboration that might give
him probable cause to recommend that a suspect be arrested [he] is entitled only
at most to qualified immunity. Plaintiffs argue in the instant case that Green and
Reno's conduct was not covered by absolute immunity because they acted as
mere custodians of property and were thus engaged in administrative conduct
rather than advocacy. This argument is unavailing. The prosecutor's decision
not to agree to vacate a civil forfeiture judgment, just as his decision to institute
the forfeiture proceedings in the first instance, is in the nature of advocacy rather
than administrative conduct, and is covered by the absolute immunity doctrine.
Blakely, supra at 871. (internal quotations and citations omitted).
Thus, the fact that Goldberg was the prosecutor in a civil forfeiture matter as
opposed to a criminal matter is of no consequence. Goldberg is entitled to prosecutorial
immunity. As such, the complaint does not allege a plausible claim for relief against
For the reasons stated above, Goldberg’s motion is GRANTED. Plaintiffs’ claims
against Goldberg are DISMISSED.
UNITED STATES DISTRICT JUDGE
Dated: June 7, 2017
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