Petrou et al v. Christopher John Robert Laycock LLC et al
OPINION AND ORDER Granting 8 MOTION to Dismiss Rule 12 (b)(6) filed by Martin, Ann Arbor, City of, Bradley Rougeau. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Myria Petrou and Bradley Foerster,
Case No. 17-11508
Christopher John Robert Laycock LLC
Sean F. Cox
United States District Court Judge
OPINION AND ORDER GRANTING MOTION TO DISMISS (Doc. # 8)
Plaintiffs have filed suit in this Court against, among others, the City of Ann Arbor and
two officers of the Ann Arbor Police Department, raising one § 1983 claim and several state-law
claims. The rub? Plaintiffs dismissed the three City Defendants with prejudice in an identical
state-court lawsuit involving the same claims and the same parties. Now the City Defendants
have moved to dismiss, arguing that this federal-court action is barred by res judicata.
The City Defendants are correct. For the reasons below, the Court shall grant their Rule
12(b)(6) motion because, under Michigan law, the voluntary dismissal with prejudice of the
state-court action must be given preclusive effect. The state-court judgment is an adjudication on
the merits in a prior action between the same parties that addressed the same claims.
In 2017, Defendant Maria Petrou contacted Defendant Bradley Rougeau, an Ann Arbor
Police Detective, alleging that Plaintiffs–Maria’s daughter Myria Petrou and Myria’s husband
Bradley Foerster–had embezzled funds from her. Complaint, ¶ 37. During his investigation,
Rougeau swore to and obtained search warrants for Plaintiffs’ bank accounts, which effectively
froze those accounts. Id. at ¶ 40, 44. In response, Plaintiffs filed a petition for superintending
control in Washtenaw Circuit Court to lift the holds on their accounts. Id. at ¶ 47.
While their petition was pending, Plaintiffs filed simultaneous lawsuits in state court and
in this Court against several defendants, including Detective Rougeau, Ann Arbor Police
Sergeant Martin, and the City of Ann Arbor. Doc. # 1; Def. Ex. 2. The complaints allege six
different state law tort claims and a single § 1983 claim. But for differing jurisdictional
statements, the complaints are identical. Two months later, Plaintiffs stipulated to dismiss the
City Defendants with prejudice from the state-court proceedings. Def. Ex. 3.
Having been dismissed with prejudice from the state case, the City Defendants have
moved to dismiss the federal action under Rule 12(b)(6), arguing that it is barred by res judicata
(Doc. # 8). After being ordered to show cause, Plaintiffs have responded (Doc. # 17). The Court
shall decide the motion on the briefs, the issues having been adequately presented therein. E.D.
Mich. LR 7.1(f)(2).
STANDARD OF DECISION
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a case where the
complaint fails to state a claim upon which relief can be granted. A motion under Rule 12(b)(6)
challenges the legal sufficiency of the complaint. See Peatross v. City of Memphis, 818 F.3d 233,
240 (6th Cir. 2016). The Court must construe the complaint in the light most favorable to
Plaintiffs, accept its allegations as true, and determine whether it states a plausible claim for
relief. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010).
“When a court is presented with a Rule 12(b)(6) motion, it 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. Nat’l. Collegiate Athletic
Ass’n., 528 F.3d 426, 430 (6th Cir. 2008). This includes taking judicial notice of other judicial
proceedings. Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir. 2010).
“Federal courts must give the same preclusive effect to a state-court judgment as that
judgment receives in the rendering state.” Abbot v. Michigan, 474 F.3d 324, 330 (6th Cir. 2007),
citing 28 U.S.C. § 1738. The relevant state-court proceedings here took place in Michigan,
which “has taken a broad approach to res judicata[.]” Adair v. Michigan, 680 N.W.2d 386, 396
(Mich. 2004). In Michigan, res judicata “bars a second, subsequent action when (1) the prior
action was decided on the merits, (2) both actions involve the same parties or their privies, and
(3) the matter in the second case was, or could have been, resolved in the first.” Id.
Because the federal and state actions at issue involve identical complaints raising the
same claims against the same parties, the second and third res judicata elements are not
reasonably in dispute. This leaves only the first element. And in Michigan, “a voluntary
dismissal with prejudice acts as an adjudication on the merits for res judicata purposes.”
Limbach v. Oakland County Bd. of County Rd. Comm’r, 573 N.W.2d 336, 340 (Mich. Ct. App.
1997). That is what happened here; Plaintiffs stipulated to dismiss the City Defendants with
prejudice from the state-court action. Def. Ex. 3.
In response, Plaintiffs raise two objections to the application of res judicata, neither of
which are persuasive. They first argue that res judicata does not apply when the two actions were
filed simultaneously because there is no “subsequent action.” This is incorrect. When “actions
proceed simultaneously, as here, the first judgment entered must be regarded as res judicata for
issues in the remaining case.” Lesher v. Lavrich, 784 F.2d 193, 196 (6th Cir. 1986); Brownridge
v. Mich. Mut. Ins. Co. 321 N.W.2d 798, 801 (Mich. Ct. App. 1982) (“Whenever a judgment is
rendered in one of the courts and pleaded in the other, the effect of that judgment is to be
determined by the application of the principles of res adjudicata by the court in which the action
is still pending . . .”) (quotation omitted). Thus, even though Plaintiffs filed their actions
simultaneously, the state-court judgment is the first judgment entered and it must be given
Plaintiffs also claim that res judicata should not apply because their dismissal of the City
Defendants with prejudice was a mistake; they actually intended to dismiss them without
prejudice. How did that happen? Plaintiffs’ counsel claims that he believed the stipulated
dismissal was without prejudice and that when the City Defendants emailed him the stipulation
he gave them permission to sign his name “without carefully reviewing the terms of the
stipulation.” Having done so, he now asks the Court to rectify his carelessness by setting aside
the dismissal. There are a number of flaws in this argument.
First, this argument is, in effect, a collateral attack on the validity of the state court
judgment. But Plaintiffs cite no authority to support their suggestion that the Court can entertain
this challenge and provide the relief they seek. Indeed, their argument would seem to be more
appropriately raised in state court, where they can seek relief from the judgment based on
mistake. See Mich. Ct. Rules 2.612(C)(1)(a).
Second, Plaintiffs did not plead facts in the complaint to support their assertion that the
stipulated dismissal with prejudice was a mistake. Although they have attached an affidavit to
this effect from an employee of their attorney, this document falls outside the ambit of materials
that the Court may consider when ruling on a Rule 12(b)(6) motion. See Bassett, 528 F.3d at 430.
Finally, even if the Court were to entertain Plaintiff’s argument on its merits, under
Michigan law a unilateral mistake (which the alleged mistake here appears to be) does not justify
setting aside or modifying a stipulation. Limbach, 573 N.W.2d at 339. Any mistake by Plaintiffs’
counsel may not be “excused by [his] own carelessness or lack of due diligence.” Farm Bureau
Mut. Ins. Co. of Mich. v. Buckallew, 690 N.W.2d 93, 94 (Mich. 2004). Thus, Plaintiffs have
provided the Court with no basis to set aside the state-court judgment.
In sum, the state-court judgment dismissing the City Defendants with prejudice from the
state-court action must be given preclusive effect. It is a prior action decided on the merits,
between the same parties, addressing the same claims. Adair, 680 N.W.2d at 396. Thus,
Plaintiffs’ federal-court action against the City Defendants is barred by res judicata and the Court
shall grant their Motion to Dismiss.
For the reasons above, IT IS ORDERED that the Motion to Dismiss filed by Defendants
Rougeau, Martin, and the City of Ann Arbor is GRANTED.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 8, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 8, 2018, by electronic and/or ordinary mail.
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