Raleigh v. Service Employees International Union

Filing 18

MEMORANDUM OPINION and ORDER GRANTING IN PART 12 Plaintiff's MOTION for Leave to File Second Amended Complaint, and DENYING 6 MOTION to Dismiss. (Second Amended Complaint due by 3/28/2019) Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK E. RALEIGH,
Plaintiff,
Case No. 18-11591
Hon. Terrence G. Berg

v.
SERVICE EMPLOYEES
INTERNATIONAL UNION,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT IN PART AND
DENYING DEFENDANT’S MOTION TO DISMISS
I.

Introduction

Plaintiff was fired from his job with Defendant Service Employees International Union (SEIU) while on medical leave. After he
was fired, several news outlets reported that he was fired because
of sexual misconduct. Plaintiff then brought suit alleging that Defendant violated the Family and Medical Leave Act (FMLA), was
liable for defamation, false light invasion of privacy, and public disclosure of private facts, and had violated its duty to indemnify and
defend Plaintiff in an unrelated IRS investigation. Plaintiff filed a
First Amended Complaint on July 23, 2018. ECF No. 4. On August
13, 2018, Defendant filed a Motion to Dismiss. ECF No. 6. Plaintiff
responded to the Motion to Dismiss, ECF No. 11, and filed a Motion
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for Leave to File a Second Amended Complaint, ECF No. 12, the
same day. The Second Amended Complaint adds factual allegations
related to the FMLA and defamation claims. It also adds claims for
defamation by implication and group libel. Defendant opposes allowing Plaintiff to amend the Complaint on the ground that amendment would be futile. See ECF No. 13.
The Court finds that Proposed Second Amended Count I would
not be futile because that section of the Proposed Second Amended
Complaint would survive a 12(b)(6) Motion to Dismiss. With respect
to Count II as amended, which alleges defamation, false light invasion of privacy, public disclosure of private facts, defamation by implication, and group libel, the Court finds that this Count would
survive a motion to dismiss, but only in part. Count III as amended
would not survive a motion to dismiss. Plaintiff’s Motion for Leave
to File a Second Amended Complaint is therefore granted in part.
Defendant’s Motion to Dismiss is denied as moot.
II.

Background

Plaintiff was “in a leadership or staff management position with
[Defendant]” between February 2001 and November 2, 2017, until
Defendant fired him. ECF No. 12-3 PageID.172, 174. According to
Plaintiff’s Complaint, on October 23, 2017, Plaintiff submitted a
medical certification of total incapacity, with a return to work date
of October 30, 2017. ECF No. 4 PageID.21. On October 26, 2018, he
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submitted another certification extending the period of total incapacity to November 7, 2017, with a return to work date to be determined. Id. at PageID.22. At the time he was fired, Plaintiff was a
Deputy Campaign Director for Defendant. ECF No. 4 PageID.18.
On November 2, 2017, Defendant fired Plaintiff. Id. at
PageID.20. Plaintiff alleges that Defendant then issued a statement to the press that incorrectly stated or implied that Plaintiff
was fired for sexual misconduct. Id. at PageID.21. Certain news aggregation websites, including BuzzFeed and Breitbart, reported the
story as if Plaintiff had been fired for sexual misconduct. ECF No.
6-3, 6-4. But Plaintiff alleges that he obtained his employment file,
it contains no complaints about sexual misconduct, and counsel for
Defendant told Plaintiff that he was not in fact fired for sexual misconduct. ECF No. 4 PageID.22.
Plaintiff did not attach a copy of Defendant’s allegedly defamatory statement to any of his complaints. However, Defendant attached a copy of the statement to its Motion to Dismiss, which does
not contain the words “sexual misconduct.” In it, a spokesperson for
Defendant states:
As a result of information that has come to light through
our ongoing internal investigation, today SEIU took action on two senior staff. These personnel actions are the
culmination of this stage of the investigation which
brought to light the serious problems related to abusive
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behavior towards staff, predominantly female staff. We
know that progress does not stop with these personnel
actions alone. President Henry has taken important
steps toward ensuring that our workplace environment
reflects our values and that all staff is respected, their
contributions are valued, and there are [sic] voices
heard.
ECF No. 6-5. At oral argument on the pending motions, Plaintiff
suggested that this was only one of several statements Defendant
made to the press, and did not concede that this was in fact the
allegedly defamatory language or the only allegedly defamatory
language at issue in the case.
III. Standard of Review
After a responsive pleading has been served, “a party may amend
the party’s pleading only by leave of court; and leave shall be freely
given when justice so requires.” Head v. Jellico Hous. Auth., 870
F.2d 1117, 1123 (6th Cir. 1989). But a district court can deny leave
to amend the complaint if the amendment would be futile. “A proposed amendment is futile if the amendment could not withstand a
Rule 12(b)(6) motion to dismiss.” Rose v. Harford Underwriters Ins.
Co., 203 F.3d 417, 420 (6th Cir. 2000).
A party may move to dismiss under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be
granted.” Rule 12(b)(6) is read in conjunction with the pleading
standard set forth in Rule 8(a), which requires “a short and plain
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statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2); see Ashcroft v. Iqbal, 556 U.S. 662, 677–68 (2009).
This standard does not require detailed factual allegations. Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). However, a party’s “obligation to provide the ‘grounds’
of his ‘entitle[ment]’ to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (internal citations omitted).
To survive a Rule 12(b)(6) motion, the complaint and any other matters properly considered must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
A claim has facial plausibility when the pleaded factual content
allows the court, drawing upon its “judicial experience and common
sense,” to infer that the defendant is liable for the misconduct alleged. Id. at 678 (citing Twombly, 550 U.S. at 556), 679. “But where
the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but
it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at
679 (quoting Rule 8(a)(2)).
The futility analysis is intertwined with the motion to dismiss
analysis. Consequently, the Court considers both together.

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IV.

Analysis

a. Violation of FMLA
Plaintiff raises six subparts of Count I. He alleges that Defendant violated the FMLA by:
A. Interfering with Plaintiff’s FMLA leave;
B. Retaliating against Plaintiff for taking the leave;
C. Terminating Plaintiff during his FMLA leave;
D. Failing to return Plaintiff to a substantially equivalent position after his FMLA leave;
E. Retaliating against Plaintiff by denying him the opportunity
to resign in lieu of termination; and
F. Retaliating against Plaintiff by denying him indemnification
in an IRS investigation.
Plaintiff does not specify which sections of the FMLA are violated
by this litany of conduct. While specificity would have been helpful,
it is not necessary in order to rule on Plaintiff’s Motion to Amend
because Defendant’s central contention is that Plaintiff was not a
covered employee under the FMLA. Employees at a worksite with
fewer than 50 employees are excluded from the definition of “eligible employee” under the FMLA unless the worksite is located
within 70 miles of another worksite with more than 50 employees.
29 U.S.C. § 2611(2)(B)(ii). Defendant asserts that Plaintiff was ineligible for FMLA leave because Defendant employed fewer than 50
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employees at Plaintiff’s worksite. Consequently, if Defendant is correct, Plaintiff cannot maintain any of the claimed violations of the
FMLA.
i. Original allegation
In Plaintiff’s First Amended Complaint, his allegation of an
FMLA violation is plainly inadequate. He states only “Raleigh was
an ‘eligible employee’ as defined in the FMLA, 29 USC 2611(2), at
all relevant times, and/or the SEIU is equitably estopped from
claiming Raleigh was not an ‘eligible employee.’” ECF No. 4
PageID.17. This statement is no more than a “formulaic recitation”
of the elements of Plaintiff’s cause of action. Twombly, 550 U.S. at
555. Plaintiff does not address the exemptions to the definition of
“eligible employee.” And he does not provide the Court with any
facts that allow a reasonable inference that he was eligible for
FMLA leave.
The second part of Plaintiff’s original allegation claims that Defendant should be estopped from arguing that Plaintiff was ineligible for FMLA leave. “Our circuit recognizes that in certain circumstances equitable estoppel applies to employer statements regarding an employee’s FMLA eligibility, preventing the employer from
raising non-eligibility as a defense.” Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d 551, 554 (6th Cir. 2009). In order to prevail on
an equitable estoppel argument, Plaintiff must show “(1) a definite
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misrepresentation as to a material fact, (2) a reasonable reliance on
the misrepresentation, and (3) a resulting detriment to the party
reasonably relying on the misrepresentation.” Id. at 557 (citing Minard v. ITC Deltacom Communications, Inc., 447 F.3d 352, 359 (5th
Cir. 2006)).
Plaintiff fails to allege that Defendant specifically told Plaintiff
that was eligible for FMLA leave or that the leave he was taking
was in fact FMLA leave. Instead, Plaintiff makes a vague statement
about the “policies, practices, and procedures conveyed to employees.” ECF No. 4 PageID.17. This does not rise to the level of “a definite misrepresentation as to a material fact.” Where a defendant
makes no “forward-looking promises” with respect to an employee’s
eligibility for FMLA leave, that defendant is not equitably estopped
from arguing that an employee-plaintiff is ineligible for such leave.
See Davis v. Michigan Bell Telephone Co., 543 F.3d 345, 353 (6th
Cir. 2008).
Based on the foregoing analysis, the FMLA violation allegations
in Plaintiff’s First Amended Complaint cannot survive Defendant’s
Motion to Dismiss.

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ii. Amended allegation
1. No fixed worksite
The Court next analyzes Plaintiff’s Proposed Second Amended
Complaint to determine whether the proposed changes would allow
Count I to survive a 12(b)(6) Motion to Dismiss.
Plaintiff’s proposed amendments attempt to salvage the FMLA
claims first by alleging that Plaintiff falls under the “no fixed
worksite” exemption. This exemption provides that an employee
otherwise subject to the exclusion in 29 U.S.C. § 2611(2)(B)(ii) is
covered under the FMLA if that employee has no fixed worksite.
Implementing regulations for the FMLA state that “[a]n employee’s worksite under FMLA will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.” 29 C.F.R. § 825.111(a). “For employees with no fixed
worksite, e.g., construction workers, transportation workers (e.g.,
truck drivers, seamen, pilots), salespersons, etc., the worksite is the
site to which they are assigned as their home base, from which their
work is assigned, or to which they report.” 29 C.F.R. § 825.111(a)(2).
Plaintiff’s Proposed Second Amended Complaint states that “Raleigh did not have a fixed worksite in that his position required that
he travel throughout the country to perform his duties.” ECF No
12-3 PageID.171. But the no-fixed-worksite rule does not apply

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simply because an employee’s position requires him to travel. Rather, upon review of the regulation, the rule applies where the nature of the position is such that there is no “site the employee reports to.” See Grimsley v. Fiesta Salons, Inc., 2003 WL 117985, at
*5 (E.D. Mich. Jan. 7, 2003) (“It is undisputed that [the employee]
worked from her home in Williamston, Michigan, but supervised all
the salons in Michigan and received her assignments from the home
office in Dublin, Ohio. Thus, the Ohio location is considered [the
employee]’s workplace under the regulations.”) The record at this
stage is insufficient to determine whether Plaintiff had a worksite
to which he was assigned and to which he regularly reported. If
someone regularly reports for duty to the company’s facility, then
departs that facility, the facility is the person’s worksite for determining FMLA eligibility. Cobb v. Contract Transport, Inc., 452 F.3d
543, 558–59 (6th Cir. 2006) (finding that a truck driver’s work site
was where he reported and received his work assignments). If, however, an employee regularly works from his home, he may qualify
as an employee with no fixed worksite for FMLA purposes.
Based on the facts as alleged before the Court in this minimal
record, Plaintiff’s allegation that he had no fixed worksite crosses
the threshold of plausibility, though just barely.
2. Equitable estoppel

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Plaintiff seeks to add two factual allegations to his complaint to
support his equitable estoppel claim.
a. A definite misrepresentation
Plaintiff first seeks to add an allegation to support the first prong
of his estoppel defense—a definite misrepresentation as to a material fact. The Proposed Second Amended Complaint states, “Upon
receipt of Raleigh’s medical certification, the Union immediately
placed Raleigh on leave, consistent with the Union’s FMLA policy.”
This additional factual allegation, taken as true, allows Plaintiff to
survive a motion to dismiss based on the first prong of the equitable
estoppel defense. There is no case law to suggest that a defendant’s
conduct alone cannot suffice as a “definite misrepresentation” for
purposes of equitable estoppel at the motion to dismiss stage. Cf.
Dobrowski, 571 F.3d at 555–556 (“[T]he party claiming the estoppel
must have relied on its adversary’s conduct in such a manner as to
change his position for the worse.” (quoting Heckler v. Community
Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 59 (1984) and
adopting Heckler’s approach to FMLA equitable estoppel).
So long as Defendant allegedly made a “forward-looking promise,” the first prong is satisfied, regardless of the method of communication it used to convey that promise. Plaintiff’s allegation that
Defendant’s conduct in placing him on leave consistent with its
FMLA policy conveyed the promise that Plaintiff’s leave was FMLA
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leave, along with the allegation in his First Amended Complaint
that Defendant had in place policies and procedures that indicated
to Plaintiff that he was eligible for FMLA, again places his proposed
amendment plausibly above futile, but only slightly so.

b. Reliance on the misrepresentation
Plaintiff also seeks to amend his factual allegation to better support the second prong of the equitable estoppel test—that Plaintiff
reasonably relied on Defendant’s indication that he was eligible for
FMLA leave when he decided to take that leave. Defendant argues
that Plaintiff’s amendment is futile because he states that he “submitted a medical certification of total incapacity.” Plaintiff’s Proposed Second Amended Complaint, ECF No. 12-3 PageID.176. If
Plaintiff was in fact totally incapacitated, Defendant argues, taking
leave was unavoidable, regardless of whether that leave was under
the FMLA. Therefore, Plaintiff could not have changed his position
in reliance on Defendant’s misrepresentation.
Defendant’s argument fails. Obtaining a “medical certification of
total incapacity” does not necessarily mean that Plaintiff had no
choice but to go on leave, even if he had known that he would lose
his job for doing so. Terminology describing patients’ ability to
work—or not—with a medical condition may not translate to realworld behaviors when a person is faced with termination from a
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long-held position. When a plaintiff alleges in a complaint that he
would have returned to work had he known he could not take protected leave, the existence of a medical certification of total incapacity is not enough to grant a motion to dismiss that complaint. Cf.
Smyth v. Wawa, Inc., No. 06-4474, 2008 WL 741036, at *7 (E.D. Pa.
Mar. 19, 2008) (finding a genuine issue of material fact as to
whether the plaintiff could have returned to work despite her doctor’s note indicating that the plaintiff was totally incapacitated on
that date).
Based on the foregoing, the Court finds that in Plaintiff’s Proposed Second Amended Complaint, (1) Plaintiff has plausibly alleged that Defendant is estopped from claiming that Plaintiff was
not eligible for FMLA protections; and (2) Plaintiff has plausibly
alleged that he falls under the no-fixed-worksite exception to the
50-employee minimum for FMLA coverage. Plaintiff’s Motion for
Leave to File Second Amended Complaint is therefore granted as to
Count I.
c. Count II defamation claims
Plaintiff combines several causes of action into his Count II
claim: defamation, false light invasion of privacy, public disclosure
of private facts, defamation by implication, and group libel. As discussed below, his Proposed Second Amended Complaint would be

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futile as to public disclosure of private facts and group libel, but not
as to the other claims.
As an initial matter, Plaintiff is correct that Michigan’s heightened pleading standard for defamation claims does not apply in federal court. “The Federal Rules of Civil Procedure govern the pleading requirements in federal court.” State Farm Fire and Casualty
Co. v. Allied and Assocs., 860 F. Supp. 2d 432, 446–47 (E.D. Mich.
2012) (finding that Michigan law requiring a plaintiff to plead a
defamation claim with specificity does not apply in federal court,
where the federal rules require only a short and plain statement of
the claim showing that the pleader is entitled to relief) (citing Ridgway v. Ford Dealer Computer Servs., Inc., 114 F.3d 94, 98 n.5 (6th
Cir. 1997); Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co.,
559 U.S. 393 (2010)). Therefore, Plaintiff need not allege the actual
words that Defendant said that constitute the basis of his claim.
Armstrong v. Shirvell, 596 F. App’x 433, 444 (6th Cir. 2015); but see
Bhan v. Battle Creek Health Sys., 579 F. App’x 438, 446–47 (6th Cir.
2014). However, he must still allege facts that, when taken as true,
would entitle him to relief under Michigan law.
i. Defamation
In Michigan, stating a claim for defamation requires: (1) a false
and defamatory statement concerning the plaintiff; (2) an unprivileged publication or communication to a third party; (3) fault on the
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part of the publisher at least amounting to negligence; and (4) either actionability of the statement irrespective of special harm or
the existence of special harm caused by the publication. 15 Mich.
Civ. Jur. Libel and Slander § 3.
Plaintiff has alleged that Defendant published a false statement
to third parties, satisfying prongs one and two. ECF No. 12-3
PageID.178. Plaintiff has also alleged facts sufficient to find that
Defendant was at least negligent in publishing this information.
The fourth element of a defamation claim is also satisfied here. “[A]t
common law, defamation per se typically concerns issues of chastity, commission of a crime, loathsome disease, or disparagement of
one’s profession or business.” Nehls v. Hillsdale College, 65 F. App’x
984, 990–91 (6th Cir. 2003) (citing cases). Even if Defendant’s alleged statement did not fall into one of these categories, Plaintiff
has also pled special damages based on his loss of income. Therefore, Plaintiff’s Proposed Second Amended Complaint would not be
futile as to this claim.
ii. False light invasion of privacy
The elements of the claim of false light invasion of privacy are
that “the defendant broadcast to the general public, or to a large
number of people, information that was unreasonable and highly
objectionable by attributing to the plaintiff characteristics, conduct,
or beliefs that were false and placed the plaintiff in a false position.”
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20 Mich. Civ. Jur. Privacy § 9; Puetz v. Spectrum Health Hospitals,
919 N.W.2d 439, 449 (Mich. Ct. App. 2018).
Plaintiff has alleged that Defendant attributed false conduct to
him—namely, committing sexual misconduct. Plaintiff has also alleged that Defendant broadcast this information to the general public. Finally, Plaintiff has alleged facts supporting the conclusion
that this information was unreasonable and highly objectionable.
Plaintiff’s Proposed Second Amended Complaint would not be futile
as to this claim.
iii. Public disclosure of private facts
“A cause of action for public disclosure of embarrassing private
facts requires (1) the disclosure of information, (2) that is highly
offensive to a reasonable person, and (3) that is of no legitimate concern to the public.” Doe v. Mills, 536 N.W.2d 824, 828 (Mich. Ct.
App. 1995). Plaintiff fails to plead facts to support the third element
of this claim.
Construed extremely liberally, Plaintiff’s Proposed Second
Amended Complaint alleges that Defendant disclosed private information—the reason for Plaintiff’s firing. Plaintiff also adequately
alleges that this information satisfied the second element. See Pawlaczyk v. Besser Credit Union, 14-cv-10983, 2014 WL 5425576, at *5
(E.D. Mich. Oct. 22, 2014) (“It is only when the publicity given to
him is such that a reasonable person would feel justified in feeling
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seriously aggrieved by it, that the cause of action arises.” (discussing the “highly offensive to a reasonable person” standard) (quoting
Restatement 2d of Torts § 652D)). In Pawlaczyk, the court found
that the plaintiff had not met the pleading standard for her claim
that her employer revealed that she was fired, in part because the
employer did “not disclose the nature of the separation or any reasons behind it.” Id. at *6. Here, Plaintiff alleges that Defendant did
disclose the nature of his separation with Defendant.
However, Plaintiff has not alleged that the information disclosed
was of no legitimate interest to the public. In order to be actionable
as a public disclosure of private facts, a disclosure “must concern
plaintiffs’ private, as distinguished from public, lives.” Lansing
Ass’n of School Administrators v. Lansing School Dist. Bd. of Educ.,
549 N.W.2d 15, 21 (Mich. Ct. App. 1996). In Lansing Association,
the Michigan Court of Appeals declined to find that disclosure of
information “regarding the professional performance” of teachers
was of no legitimate concern to the public. Id. In addition, generally,
“[i]nformation of a legitimate concern to the public includes matters
regarded as ‘news.’” Fry v. Iona Sentinel-Standard, 300 N.W.2d
687, 690 (Mich. Ct. App. 1980). Plaintiff has not pled that the reason for his firing was of no legitimate concern to the public. In fact,
his lawsuit is based in part on the premise that his firing was newsworthy—and that Defendant sought to use that to its advantage.
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For this reason, Plaintiff’s Proposed Second Amended Complaint
would be futile as to his claim for public disclosure of private facts.
iv. Defamation by implication
“Michigan recognizes defamation by implication without a direct
showing of a false statement,” so long as “the defamatory implications are materially false.” Panian v. Lambrecht Assocs., 14-cv-572,
2014 U.S. Dist. LEXIS 167189, at *5 (W.D. Mich. Dec. 3, 2014) (citing Locricchio v. Evening News Ass’n, 476 N.W.2d 112, 132 (Mich.
1991); Am. Transmission, Inc. v. Channel 7 of Detroit, Inc., 609
N.W.2d 607, 611 (Mich. Ct. App. 2000)). The remaining elements of
a defamation by implication claim under state law are the same as
the elements of a defamation claim. Those elements are satisfied
here, as they were with respect to Plaintiff’s defamation claim
above. Plaintiff’s Second Amended Complaint has therefore plausibly alleged this claim.
v. Group libel
Michigan law recognizes a cause of action for libelous statements
directed toward a small group of people, in which the plaintiff is
“readily ascertainable.” Hoffman v. Roberto, 85 B.R. 406, 412 (W.D.
Mich. 1987). In order to sustain this claim, a plaintiff must show
that he is an identifiable member of a group that has been defamed.
See Mich. United Conservation Clubs v. CBS News, 485 F. Supp.
893, 898 (W.D. Mich. 1980) (“The plaintiff must first of all show that
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he is in fact a member of the class defamed.” (emphasis added)
(quoting W. Prosser, The Law of Torts, § 112)). Plaintiff has not alleged facts sufficient to support the background allegation that Defendant defamed a group of people. He has not alleged that Defendant’s statements about the group of fired employees was false as to
the entire group.
For these reasons, Plaintiff’s Proposed Second Amended Complaint would be futile as to the group libel claim.
d. Violation of duty to indemnify and defend
The duty to indemnify “relates to the obligation of one person or
entity to make good a loss another has incurred while acting for its
benefit or at its request” and can be based on a contract or imposed
by law. Langley v. Harris Corp., 321 N.W.2d 662, 665 (Mich. 1981).
Plaintiff has not alleged the existence of any contract between him
and Defendant to provide indemnification, nor has he specified any
facts showing a breach of a contractual duty to indemnify him.1
The common law duty to indemnify applies only “where the
wrongful act of one party results in another being held liable.” North
Community Healthcare, Inc. v. Telford, 556 N.W.2d 180, 182 (Mich.
Ct. App. 1996) (emphasis in original). As Defendant points out,
Plaintiff has not alleged that he was held liable for any act. Plaintiff

While Plaintiff does allege that the Union offered to provide an attorney to
represent him, he also alleges that he did not accept that offer. Such claims do
not allege the existence of a contract to provide indemnification.
1

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responds with the argument that “no law requires a plaintiff to wait
until a judgment before seeking indemnification.” ECF No. 11
PageID.102. But Plaintiff fails to address the law Defendant cites
from Michigan courts saying exactly this.
Plaintiff also establishes no basis for Defendant’s alleged duty to
defend him. “[T]he common law duty to indemnify does not encompass a separate duty to defend.” Partner & Partner II, Inc. v. Ayar
Property Management, LLC, No. 298693, 2011 WL 3593996 (Mich.
Ct. App. Aug. 16, 2011). Any such duty would therefore arise out of
a contract between the parties. Plaintiff has not alleged that a contractual duty to defend exists. Nor has Plaintiff cited any case law
in his Response to the Motion to Dismiss that supports his position
that the facts he alleges could plausibly support the inference that
Defendant owed a duty to defend him.
Finally, Plaintiff admits that Defendant did offer to provide an
attorney to represent him for his IRS interview. Had Plaintiff
stated a claim, this would render it moot. Plaintiff’s Proposed Second Amended Complaint would be futile as to Count III.
V.

Conclusion

For the foregoing reasons, Plaintiff’s Motion for Leave to File a
Second Amended Complaint is GRANTED as to Count I,
GRANTED in part as to Count II, but DENIED in part as to the
public disclosure of private facts and group libel claims of Count II,
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and DENIED as to Count III. Defendant’s Motion to Dismiss is consequently DENIED as moot. Plaintiff must file his Second
Amended Complaint containing the claims allowed by this decision
within seven (7) days of the date of this Order.
SO ORDERED.

Dated: March 21, 2019

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed,
and the parties and/or counsel of record were served on March
21, 2019.
s/A. Chubb
Case Manager

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