ASMAR et al v. City of Walled Lake et al
OPINION and ORDER Granting Defendants' 20 Motion for Judgment on the Pleadings and Denying Defendants' 16 Motion for Leave to File Amended Affirmative Defenses and CounterClaims. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
FRANK ASMAR and TINELLE
Case No. 2:16-cv-14101
Plaintiffs / Counter-Defendants,
HONORABLE STEPHEN J. MURPHY, III
CITY OF WALLED LAKE and DENNIS
Defendants / Counter-Claimants.
OPINION AND ORDER GRANTING DEFENDANTS'
MOTION FOR JUDGMENT ON THE PLEADINGS 
AND DENYING DEFENDANTS' MOTION FOR LEAVE TO FILE
AMENDED AFFIRMATIVE DEFENSES AND COUNTERCLAIMS 
Plaintiffs Frank Asmar ("Asmar") and Tinelle Properties, LLC ("Tinelle") sued the City
of Walled Lake ("City") and its manager, Dennis Whitt ("Whitt"), for alleged constitutional
violations arising from Plaintiffs' attempted use of property located at 1109 Decker Road
(the "Property"). Before the Court are Defendants' motion for judgment on the pleadings
and motion for leave to file an amended affirmative defense and counterclaims. For the
reasons set forth below, the Court will grant Defendants' motion for judgment on the
pleadings and deny Defendants' motion for leave to file amended affirmative defenses and
Tinelle Properties purchased the Property in 2003. ECF 1, PgID 3. The Property
housed a large mixed-use warehouse and an office space building situated on several
acres. Id. Tinelle Properties spent resources rehabilitating the Property. Id. The City
allegedly notified Tinelle Properties and Frank Asmar that compliance with municipal codes
was required before using the Property for commercial storage. Id. Compliance with the
municipal codes required the installation of a fire suppression system in the warehouse and
the clearance of trees from the surrounding area. Id. at 4. Installation of a "wet" fire
suppression system carried an estimated cost of approximately $1,000,000. Id. A "dry"
system was not feasible because, if activated, the system would "completely ruin the
contents of the facility[.]" Id. In accordance with City requirements, Tinelle hired "a
professional forester" to "name and tag all of the trees [Tinelle] intended to remove[.]" Id.
Attempts to comply with the municipal codes—"caused solely by the arbitrary and
capricious conduct" of the City and Whitt—delayed the opening of a storage facility. Id. at
5. Accordingly, Tinelle could not generate revenue sufficient to cover its tax liabilities, id.,
and the Property was subsequently foreclosed. Id.
A new purchaser took possession of the Property and allegedly began to operate
an indoor storage facility, but did not comply with the City's fire code. Id. The new
purchaser also removed trees—in noncompliance with municipal ordinances—and used
the land for outdoor storage. Id. The new purchaser was allegedly allowed to make
renovations without proper permits. Id. The City and Whitt's treatment of the new purchaser
allegedly "violated Plaintiff's constitutionally protected rights by treating Asmar and Tinelle
differently than the new purchaser." Id. at 6.
On November 18, 2016, Frank Asmar and Tinelle Properties filed a complaint
alleging violations of the Due Process and Equal Protection Clauses of the Fourteenth
Amendment, ECF 1, PgID 7, for which 42 U.S.C. § 1983 creates the cause of action.
Defendants answered, ECF 9, and subsequently filed a Motion for Leave to File Amended
Affirmative Defense and Counterclaims, ECF 16, and a Motion for Judgment on the
Pleadings, ECF 20.1 Plaintiffs did not amend the complaint, but instead responded to the
motions. ECF 21, 25. The Court held a hearing to address the motions on June 27, 2017
and will now resolve both pending motions.
STANDARD OF REVIEW
The Court analyzes a Rule 12(c) motion for judgment on the pleadings with the
same standard it would employ for a 12(b)(6) motion to dismiss. Tucker v. MiddleburgLegacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008) (citation omitted). The Court accepts
as true all well-pleaded material allegations of the pleadings and draws reasonable factual
inferences in favor of the non-moving party, but "need not accept as true legal conclusions
or unwarranted factual inferences." JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577,
581–82 (6th Cir. 2007) (quoting Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)). The
complaint must "give the defendant fair notice of what the claim is and the grounds upon
which it rests," Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v.
Pardus, 551 U.S. 89, 93 (2007)), "raise a right to relief above the speculative level, and 
state a claim to relief that is plausible on its face." Hensley Mfg. v. ProPride, Inc., 579 F.3d
603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). It is not enough to just offer "'labels and conclusions' or 'a formulaic recitation of
the elements of a cause of action[.]'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Plaintiffs' position regarding Defendants' failure to comply with E.D. Mich. LR
7.1 is well taken. Defendants' motions neither state that they sought concurrence for the
relief sought nor provide an explanation for the failure to obtain concurrence. The Court
will closely monitor future conduct by the attorneys, but now, the Court will exercise its
discretion and elect not to strike the motions. See Practice Guidelines for Judge
Stephen J. Murphy, III.
Twombly, 550 U.S. at 555).
Federal Rule of Civil Procedure 15 governs the Court's analysis of amendments to
pleadings. Courts should "freely give leave" to amend "when justice so requires." Fed. R.
Civ. P. 15(a)(2). Denial of leave may be appropriate when there is "undue delay, [a] bad
faith or dilatory motive on the part of the movant . . . [or] futility of amendment[.]" Foman v.
Davis, 371 U.S. 178, 182 (1962). Moreover, compulsory counterclaims must be stated if
it "arises out of the same transaction or occurrence that is the subject matter of the
opposing party's claim." Fed. R. Civ. P. 13(a)(1).
Motion for Judgment on the Pleadings
Exhibits attached to Defendants' Motion for Judgment on the Pleadings will
not be considered.
First, the Court must determine the appropriateness of considering exhibits attached
to Defendants' Rule 12(c) motion. Because the Court reviews a Rule 12(c) motion as it
would a Rule 12(b)(6) motion, it will focus on the Plaintiffs' allegations, but can consider
"matters of public record, orders, items appearing in the record of the case, and exhibits
attached to the complaint[.]" Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008)
(quotation omitted). The Court may also consider exhibits attached to the motion, "so long
as they are referred to in the Complaint and are central to the claims contained therein."
Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). The Plaintiffs'
complaint does not reference specifically any of the exhibits attached to the Defendants'
Motion for Judgment on the Pleadings and, therefore, the exhibits will not be considered.2
Plaintiff Asmar lacks standing to sue.
Federal courts are courts of limited jurisdiction. The standing doctrine helps identify
justiciable cases. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing
includes three "irreducible constitutional minim[a]": injury in fact ("invasion of a legally
protected interest"); a causal connection between the injury and the defendant's alleged
conduct; and likelihood that a favorable decision will redress the injury. Id. at 560–61.
Plaintiff carries the burden of proof on standing. FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 231 (1990) (noting that standing cannot be "inferred argumentatively from averments
in the pleadings" and that a plaintiff must "clearly  allege facts demonstrating that he is a
proper party to invoke judicial resolution of the dispute") (internal quotations omitted). A
plaintiff alleging harm to a separate entity caused by government regulation "make[s] it
substantially more difficult to meet the minimum requirements" of standing. Allen v. Wright,
468 U.S. 737, 758 (1984), abrogated on other grounds by Lexmark Intern., Inc. v. Static
Control Components, Inc., 134 S.Ct. 1377 (2014) .
Asmar fails to submit "affidavits or other evidence showing, through specific facts,"
that the City's alleged conduct caused him injury. Lujan, 504 U.S. at 563. Asmar alleges
merely that he "is an individual who resides in Oakland County, Michigan," ECF 1, PgID 2,
and that at various times City officials communicated with him regarding the Property.
Tinelle Properties owned the Property. Id. at 3. Asmar does not allege that he suffered an
Considering oblique, non-specific references to events potentially contained in
exhibits attached to a defendant's 12(c) motion would expand dramatically the number
of documents the Court reviewed and could transform the motion into a Rule 56(a)
motion for summary judgment. The Court is not inclined to do that.
injury or had any connection to Tinelle Properties' alleged injury. Nor does Asmar plead
causation or redressability. The Court cannot infer standing "from averments in the
pleadings." FW/PBS, Inc., 493 U.S. at 231. Asmar therefore lacks standing to sue and is
dismissed from the case without prejudice.
Ripeness is dispositive of some, but not all, claims.
Plaintiffs' complaint alleges that the City's enforcement—or lack of enforcement—of
municipal ordinances violated the Fourteenth Amendment's Due Process and Equal
Protection Clauses.3 ECF 1, PgID 7. Defendants respond that the claims are not ripe for
judicial review. ECF 20, PgID 119–23. Ripeness is "determinative of jurisdiction" and
therefore the Court must consider the matter to avoid issuing an advisory opinion. Bigelow
v. Mich. Dep't of Natural Resources, 970 F.2d 154, 157 (6th Cir. 1992). Whether a claim
is ripe depends upon the nature of the claim asserted.
The Sixth Circuit recognizes six categories of federal zoning claims. Pearson v. City
of Grand Blanc, 961 F.2d 1211, 1215–16 (6th Cir. 1992). Plaintiffs' complaint lacks
specificity, but may be fairly construed to encompass four of the six categories.4
First, a "just compensation takings claim" seeks just compensation because
application of zoning laws "constitutes a taking" of property in violation of the Fifth
"[N]or shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws." U.S. Const. amend. XIV.
Plaintiffs do not allege a zoning claim under the First Amendment. Pearson, 961
F.2d at 1216. While Plaintiffs do allege violations of the Due Process Clause, a "due
process takings claim" requires that the property owner seek "invalidation of the zoning
regulation," see id., and Plaintiffs seek only money damages. ECF 1, PgID 7–8.
Amendment.5 Id. at 1215. Takings Clause claims ripen when the government actor makes
a final decision.6 Williamson Cty. Regional Planning Comm'n v. Hamilton Bank of Johnson
City, 473 U.S. 172, 195 (1985)). The final decision must reflect "some sort of an impasse"
between the parties' clearly defined positions. Bannum, Inc. v. City of Louisville, 958 F.2d
1354, 1362 (6th Cir. 1992). In other words, the finality requirement is met when "further
administrative action by [the complaining party] would not be productive." Id. at 1362–63.
A plaintiff need not show finality, however, if "seek[ing] a variance from a zoning regulation
would be an 'idle and futile act.'" Id. (quoting Martino v. Santa Clara Valley Water Dist., 703
F.2d 1141, 1146 n.2 (9th Cir.1983), cert. denied, 464 U.S. 847 (1983)).
Here, to demonstrate ripeness, Plaintiffs would need to allege that Walled Lake
made a final decision creating an impasse between the parties; Plaintiffs utilized remedial
procedures such as zoning variance applications; Walled Lake provided inadequate
procedures; or that remedial procedures were unavailable. Plaintiffs do not allege any of
these facts. And so, the claim is not ripe on its face.
As with Takings Clause claims, equal protection zoning claims are not ripe without
a showing of finality pursuant to the Williamson County decision's analysis. Bigelow, 970
F.2d at 158; see also Bannum, 958 F.2d at 1362–63. Plaintiffs allege that the new owner
The Fifth Amendment's prohibitions were made applicable to the states through
the Fourteenth Amendment's Due Process Clause. See Chicago, B. & Q. R.R. Co. v.
City of Chicago, 166 U.S. 226 (1897).
The concept of finality is distinct from that of exhaustion. "While the policies
underlying the two concepts often overlap, the finality requirement is concerned with
whether the initial decisionmaker has arrived at a definitive position on the issue that
inflicts an actual, concrete injury; the exhaustion requirement generally refers to
administrative and judicial procedures by which an injured party may seek review of an
adverse decision and obtain a remedy[.]" Williamson Cty., 473 U.S. at 193.
of the Property began using the space for commercial storage in noncompliance of
ordinances. ECF 1, PgID 5–6. But Plaintiffs do not allege facts tending to show that the
City's non-enforcement of the zoning ordinance constitutes a final decision. The claim is
not ripe on its face.
Neither of the remaining two categories require finality and are thus ripe. Arbitrary
and capricious substantive due process claims challenge the zoning regulations as lacking
a substantial relation to the public health, safety, moral, or general welfare. Pearson, 961
F.2d at 1216. "[T]he very existence of an allegedly unlawful zoning action, without more,
makes a substantive due process claim ripe for federal adjudication." Id. at 1215.
Procedural due process claims assert that a municipality employed deficient procedures
in pursuing a particular course of action. Procedural due process claims are "instantly
cognizable in federal court without requiring a final decision" from a municipal agency.
Nasierowski, 949 F.2d at 894. The Court will thus analyze those two remaining categories
Plaintiffs' arbitrary and capricious substantive due process and procedural
due process claims are barred by the statute of limitations.
The duration of the statute of limitations in § 1983 actions depends upon a state
law's statute of limitations for personal injury actions. Owens v. Okure, 488 U.S. 235, 236
(1989) (citing Wilson v. Garcia, 471 U.S. 261 (1985)). For federal courts sitting in Michigan,
"the state's three-year limitations period for personal injury claims" provides the appropriate
standard. Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005) (citing Mich. Comp. Laws
§ 600.5805(10)). Federal law determines when the statute of limitations begins to run in
§ 1983 actions. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The limitations period
begins "when the plaintiff knows or has reason to know of the injury which is the basis of
his action." Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003).
Johni Semma purchased the Property in a foreclosure action on October 31, 2012;
that action terminated Tinelle's interest in the land. ECF 20-17, PgID 204.7 Any alleged
wrongdoing by the Defendants' enforcement of the fire and tree ordinances must have
occurred prior to that date—during Tinelle's ownership of the property. October 31, 2012
marks the latest date by which Defendants knew or should have known of the alleged
harm. Plaintiffs were therefore required to bring their claims by October 31, 2015. The
Plaintiffs filed the complaint on November 18, 2016.
Plaintiffs aver, however, that the "continuing violation doctrine" tolls the statute of
limitations. ECF 25, PgID 283. The doctrine allows courts to consider "conduct that would
ordinarily be time barred as long as the untimely incidents represent an ongoing unlawful
 practice." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107 (2002) (quotation
omitted). Plaintiffs' only plausible claim for a continuing violation rests on their unripe equal
protection allegations.8 But the continuing violation doctrine does not apply to the ripe
claims and the statute of limitations did not toll. The claims are time-barred.
The Plaintiffs do not include dates of relevant events in the complaint. The
Plaintiffs do not append the deed transfer or incorporate it by an explicit reference into
the complaint. "When, as now, a complaint's factual allegations are expressly linked
to—and admittedly dependent upon—a document" that document merges into the
pleadings for purposes of reviewing a matter under the 12(b)(6) standard. Beddal v.
State Street Bank and Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998). The Plaintiffs claims
depend upon a transfer of the Property from Tinelle to Semma. ECF 1, PgID 5–6.
"The City of Walled Lake and Whit[t] violated Plaintiff's [sic] constitutionally
protected rights by treating Asmar and Tinelle differently than the new purchaser of the
property." ECF 1, PgID 6.
Motion for Leave to File Amended Affirmative Defense and Counterclaims
Defendants seek to amend their affirmative defenses under Rule 15. The Court
should freely give leave to amend when justice requires, but deny leave if the amendment
would be futile. Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 495 (6th Cir. 2011)
(citation omitted). The Court dismissed all claims pending against the Defendants so
amendment would be futile.
Defendants rely upon Rules 13 and 18 to add a state-law counterclaim to recover
allegedly delinquent property taxes. The Court may "decline to exercise supplemental
jurisdiction over a claim" if it "dismissed all claims over which it has original jurisdiction." 28
U.S.C. § 1367(c). The Court will not take up Defendants' state tax claim.
WHEREFORE, it is hereby ORDERED Defendants' Motion for Judgment on the
Pleadings is GRANTED .
IT IS FURTHER ORDERED that Defendants' Motion for Leave to File Amended
Affirmative Defenses and Counterclaims  is DISMISSED WITH PREJUDICE.
Dated: October 16, 2017
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on October 16, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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?