Ayers v. Enviro-Clean Services, Inc. et al

Filing 49

OMNIBUS ORDER: Granting in Part and Denying in Part 23 Motion to Dismiss; Denying 22 Motion to Dismiss, (Answer due by 10/1/2021), (Resolved/Unresolved Issues due by 10/1/2021). Signed by District Judge Stephen J. Murphy, III. (DPar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANE AYERS,

Case No. 2:19-cv-10314
Plaintiff,

HONORABLE STEPHEN J. MURPHY, III

v.
ENVIRO-CLEAN SERVICES, INC.
and WALLED LAKE
CONSOLIDATED SCHOOL
DISTRICT,
Defendants.
/

OMNIBUS OPINION AND ORDER
Plaintiff Dane Ayers sued Defendant Enviro-Clean Services, Inc. for violating
the Americans with Disabilities Act ("ADA") and Michigan's Persons With
Disabilities Civil Rights Act ("PWDCRA"). ECF 1, PgID 9–16. Plaintiff also sued
Defendant Walled Lake Consolidated School District for violating the PWDCRA. Id.
at 13–16. Enviro-Clean moved to dismiss under Federal Rule of Civil Procedure
12(b)(6), ECF 23, and the School District moved for judgment on the pleadings under
Rule 12(c), ECF 22. Shortly after, Plaintiff's attorneys moved to withdraw from the
case due to a breakdown in the attorney-client relationship. ECF 29; 30. Still, the
parties fully briefed the motions. ECF 32; 33; 35–39.
In an omnibus order, the Court granted Enviro-Clean's motion to dismiss the
ADA claim because Plaintiff had not timely exhausted his administrative remedies.
ECF 40, PgID 605–06. The Court also declined to exercise supplemental jurisdiction

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over the state law claims and dismissed the claims without prejudice. Id. at 606–07.
The Court ultimately denied the motions to withdraw as moot. Id. at 607.
Plaintiff then appealed the omnibus order and the Sixth Circuit vacated the
Court's judgment. ECF 47. The Sixth Circuit held that Plaintiff timely filed a charge
of discrimination with the Equal Employment Opportunity Commission ("EEOC")
and thus timely exhausted his administrative remedies. Id. at 635–36. The Sixth
Circuit recently issued a mandate for the case. ECF 48.
Because the Court's omnibus order only ruled on one argument in EnviroClean's motion to dismiss, the Court will address the remaining arguments in the
motion to dismiss and the motion for judgment on the pleadings. The Court will also
address the motions to withdraw. Because the motions are fully briefed, a hearing is
unnecessary. See E.D. Mich. L.R. 7.1(f).
BACKGROUND1
Plaintiff is in his mid-twenties and is a former student of Walled Lake
Consolidated School District. ECF 1, PgID 4. Plaintiff has been diagnosed with
autism spectrum disorder. Id.
In April 2016, the Assistant Principal of Plaintiff's former high school, Walled
Lake Central, issued a "trespassing letter" to Plaintiff because Plaintiff had entered
school property despite not being a student or an employee. Id. at 5–6; see also ECF

Because the Court must view all facts in the light most favorable to the nonmoving
party, see Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008), the Court's recitation
does not constitute a finding or proof of any fact.
1

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23-3, PgID 344–46; ECF 23-10, PgID 403. The letter explained that Plaintiff was
forbidden from stepping foot on Walled Lake Central property. ECF 23-10, PgID 403.
Despite the trespassing letter, Plaintiff visited Walled Lake Central again in
June 2017 to ask about the hiring process for open jobs. ECF 1, PgID 5. While inside
the school, Plaintiff believed that he spoke with an employee who worked for EnviroClean or the School District. Id. The employee told Plaintiff to apply for a janitorial
position on Enviro-Clean's website. Id.
Plaintiff then applied online for a full-time school cleaning job at Walled Lake
Schools. Id. at 6; see also ECF 23-2, PgID 333–36 (Plaintiff's job application). The next
day, Enviro-Clean asked Plaintiff to interview for the job. ECF 1, PgID 6. Shortly
after that, the Oakland County Sheriff's Department wrote Plaintiff a citation for
trespassing on Walled Lake Central property. Id. at 8; see also ECF 23-11, PgID 405.
And on the very next day, Enviro-Clean cancelled Plaintiff's interview. ECF 1,
PgID 8.
Plaintiff believed that School District employees directed Enviro-Clean to
cancel the interview and deny his job application. Id. at 8. Plaintiff also believed that
he was qualified for open positions he applied for with Enviro-Clean and that EnviroClean denied his job application because of his disability. Id. at 8–9.
The day after Enviro-Clean cancelled Plaintiff's interview, Plaintiff was
arraigned on the trespassing charge; he pleaded not guilty. ECF 23-12, PgID 410. At
the arraignment, a state judge ordered Plaintiff not to "go back to Walled Lake
Central." Id. at 412. At trial, Plaintiff was found guilty of the trespassing charge.

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ECF 23-3, PgID 366. And at sentencing, the state judge prohibited Plaintiff from
being on Walled Lake Central property as part of his probation conditions. ECF 2318, PgID 456.
LEGAL STANDARD
I.

The Motions Will Be Treated as Motions to Dismiss Under Rule 12(b)(6)
Ordinarily, the Court cannot consider matters beyond the complaint when it

reviews a motion to dismiss. Kostrzewa v. City of Troy, 247 F.3d 633, 643 (6th Cir.
2001) (citation omitted). Under Rule 12(d), "[i]f, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not excluded by the [C]ourt,
the motion must be treated as one for summary judgment." But the Court may
consider public records without converting the motion to dismiss into a summary
judgment motion. Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008)
(citation omitted). And "when a document is referred to in the pleadings and is
integral to the claims, it may be considered without converting a motion to dismiss
into one for summary judgment." Com. Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d
327, 335–36 (6th Cir. 2007).
In Enviro-Clean's Rule 12(b)(6) motion, it attached an April 15, 2016 letter
from the Assistant Principal of Walled Lake Central. ECF 23-10, PgID 403. Plaintiff
addressed the letter in the complaint. ECF 1, PgID 6. Likewise, Enviro-Clean
attached Plaintiff's employment application, ECF 23-2, PgID 333–35, which Plaintiff
referenced in the complaint, ECF 1, PgID 8. And the transcripts of state judicial
proceedings also attached to Enviro-Clean's motion to dismiss, ECF 23-3; 23-12; 23-

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18, are public records. Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 576 (6th
Cir. 2008) ("[A] court may properly look at public records, including judicial
proceedings[.]") (quoting S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping
Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999)). Because these documents are integral to
Plaintiff's claims and were mentioned in the complaint or are public records, the
Court may consider the documents at the Rule 12(b)(6) motion to dismiss stage.2
II.

Rule 12(b)(6) Legal Standard
The Court may grant a Rule 12(b)(6) motion to dismiss if the complaint fails to

allege facts "sufficient 'to raise a right to relief above the speculative level,' and to
'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)). The Court views the complaint in the light most favorable to the
plaintiff, presumes the truth of all well-pleaded factual assertions, and draws every
reasonable inference in the nonmoving party's favor. Bassett, 528 F.3d at 430.
But the Court will not presume the truth of legal conclusions in the complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If "a cause of action fails as a matter of
law, regardless of whether the plaintiff's factual allegations are true or not," then the
Court must dismiss. Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir. 2009).
To resolve a Rule 12(b)(6) motion, the Court may rely on "exhibits attached [to the
complaint] . . . and exhibits attached to [D]efendant's motion to dismiss so long as

The School District moved to dismiss under Rule 12(c). ECF 22. A Rule 12(c) motion
follows the same legal standard as a Rule 12(b)(6) motion. Roger Miller Music, Inc. v.
Sony/ATV Publ'g, LLC, 477 F.3d 383, 389 (6th Cir. 2007).
2

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they are referred to in the [c]omplaint and are central to the claims." Bassett, 528
F.3d at 430.
DISCUSSION
The Court will first address the ADA claim. After, the Court will address the
state law claims.
I.

ADA Claim
The ADA prohibits discrimination "against a qualified individual on the basis

of disability in regard to job application procedures[] [and] [] hiring." 42 U.S.C.
§ 12112(a). ADA discrimination includes "not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant." Id. § 12112(b)(5)(A). A "'qualified individual' means
an individual who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires."
Id. § 12111(8).
The ADA also proscribes "denying employment opportunities to a job applicant
[] who is an otherwise qualified individual with a disability, if such denial is based on
the need of [the employer] to make reasonable accommodation to the physical or
mental impairments of the [] applicant." Id. § 12112(b)(5)(B). A "reasonable
accommodation" includes "job restructuring, part-time or modified work schedules,
[and] reassignment to a vacant position." Id. § 12111(9)(B).
"As a threshold matter in every disability-discrimination claim, a plaintiff
must demonstrate that (1) []he is disabled; and (2) []he is 'otherwise qualified for the

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position despite' [his] disability, either with or without a reasonable accommodation."
Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384, 391 (6th Cir. 2017) (citation
omitted). Enviro-Clean did not challenge whether Plaintiff is "disabled" under the
ADA. See ECF 23.3 The Court will therefore address Enviro-Clean's challenge that
Plaintiff was unqualified for the janitorial position.
Enviro-Clean offered several reasons why Plaintiff was unqualified for the job.
Enviro-Clean first asserted Plaintiff could not enter Walled Lake Central High School
property and thus could not fulfill the job's attendance requirement. ECF 23, PgID
317. Enviro-Clean also asserted Plaintiff would endanger the health and safety of
others in the workplace. Id. at 322. Last, Enviro-Clean claimed the Court is barred
from hearing the ADA claim under the Rooker-Feldman doctrine and issue
preclusion. Id. at 323, n.5. The Court will address each claim in turn.
A.

Attendance Qualification

"The Sixth Circuit has held that an employee who is unable to 'meet the
attendance requirements of the job at issue cannot be considered a 'qualified'
individual protected by the ADA.'" Coles v. Johnny Appleseed Broad. Co., 479 F. Supp.
3d 585, 597 (N.D. Ohio 2020) (quoting Gantt v. Wilson Sporting Goods Co., 143 F.3d
1042, 1047 (6th Cir. 1998)); see also EEOC v. Ford Motor Co., 782 F.3d 753, 762–63
(6th Cir. 2015) (en banc) ("Regular, in-person attendance is an essential function—

The School District appeared to challenge Plaintiff's disability, but the argument
appeared in the reply to Plaintiff's response brief. ECF 39, PgID 601–02. Arguments
raised for the first time in a reply to a response brief are waived. Scottsdale Ins. Co.
v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008).
3

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and a prerequisite to essential functions—of most jobs, especially the interactive
ones."). The Sixth Circuit has also clarified that "regular attendance" is almost always
an essential function of a job. Williams, 847 F.3d at 392 ("The Ford decision leaves
open the possibility that regular attendance might not be an essential function of
every job, but suggests that exceptions will be relatively rare.").
Enviro-Clean offered evidence from several sources that tended to show
Plaintiff was barred from entering Walled Lake Central High School property. For
one, the Assistant Principal of the High School signed a letter forbidding Plaintiff
"from returning to the grounds of Walled Lake Central for any reason." ECF 23-10,
PgID 403. For another, two Michigan state judges prohibited Plaintiff from entering
Walled Lake Central under any condition because of the trespassing ticket, of which
Plaintiff was convicted. ECF 23-12, PgID 412; ECF 23-18, PgID 456.
Although Plaintiff was prohibited from setting foot in Walled Lake Central, no
evidence showed that Plaintiff could not set foot in other schools or facilities belonging
to the School District. The evidence offered by Enviro-Clean showed only that
Plaintiff could not enter Walled Lake Central High School. And Plaintiff applied for
a janitorial position with "Walled Lake Schools." ECF 23-2, PgID 336. Although
Plaintiff may have been unqualified for a janitorial position within Walled Lake
Central based on the attendance qualification, no evidence showed that Plaintiff had
applied only for a janitorial position at the high school. What is more, no evidence
showed that the School District had open janitorial positions at only Walled Lake
Central High School. In short, without more factual development, it is plausible that

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Plaintiff could meet the attendance qualification for the open janitorial position that
he applied for at Walled Lake Schools. As a result, the Court will deny the motion to
dismiss on the attendance qualification argument.
B.

Health and Safety Qualification

A disabled person is unqualified for a job "if he [] poses a 'direct threat' to the
health or safety of others which cannot be eliminated by a reasonable
accommodation." Michael v. City of Troy Police Dep't, 808 F.3d 304, 307 (6th Cir.
2015) (citation omitted); see also 42 U.S.C. § 12113(b) (An employer may require "that
an individual shall not pose a direct threat to the health or safety of other individuals
in the workplace."). "The term 'direct threat' means a significant risk to the health or
safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C.
§ 12111(3). Whether an individual poses a "direct threat" to others is a defense under
the ADA. Id. § 12113. And "whether an employer properly determined that a person
poses a direct threat, for purposes of the ADA, depends on the objective
reasonableness of the employer's actions." Michael, 808 F.3d at 307 (cleaned up).
"An employer's determination that a person cannot safely perform his job
functions is objectively reasonable when the employer relies upon a medical opinion
that is itself objectively reasonable." Id. at 307. "[T]estimonial evidence" about the
employee's behavior is also enough for the Court to uphold an ADA direct threat
finding. Id. at 307 (citation omitted).

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Enviro-Clean offered evidence of several police reports that involved Plaintiff.
ECF 23-4–23-9. The reports explain that Plaintiff had the police called on him several
times for various incidents. See generally id.
Plaintiff countered with two reasons why the Court should give little weight to
the police reports. Plaintiff first asserted the police reports were inadmissible
hearsay. ECF 36, PgID 573–74. And second, Plaintiff argued he needs discovery to
develop a factual record that can rebut the evidence Enviro-Clean attached to the
motion to dismiss. Id. at 574–77. The Court agrees with Plaintiff's second argument
and will deny the motion to dismiss the ADA claim.
It would be premature for the Court to determine whether Plaintiff was
unqualified based on a "direct threat" finding for two reasons. One, for Plaintiff to
show he was qualified for the job, he must show that he "can perform the essential
functions of the employment position." 42 U.S.C. § 12111(8). "[E]ssential functions
are the core job duties, not the marginal ones." Hostettler v. Coll. of Wooster, 895 F.3d
844, 854 (6th Cir. 2018) (citing 29 C.F.R. § 1630.2(n)(1)). There are few categorical
rules defining a job's "essential function." Id. Rather, the analysis is "highly fact
specific." Id. (quoting Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d
595, 605 (6th Cir. 2018)).
Enviro-Clean has not shown whether any criminal history necessarily barred
Enviro-Clean from hiring Plaintiff for the janitorial position. For example, EnviroClean has not shown that certain criminal convictions, such as a trespass conviction,
would bar Plaintiff's employment. Granted, Enviro-Clean argued that trespassing on

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school grounds is an enumerated crime that school boards must notify the public
about on their websites under Mich. Comp. Laws § 380.1310a. ECF 38, PgID 588. But
the argument was first raised in Enviro-Clean's reply brief and thus Enviro-Clean
waived it. Id.; see Flowers, 513 F.3d at 553. And in any event, the argument failed to
connect whether trespassing at Walled Lake Central was linked to barring Plaintiff
from working at any school or facility within the School District as a janitor. To that
end, Enviro-Clean also explained Michigan school districts have the authority to
"[p]rovid[e] for the safety and welfare of pupils while at school." Mich. Comp. Laws
§ 380.11a(3)(b). Although the suggestion is true, Enviro-Clean has not shown what
exact essential function of the janitorial job Plaintiff was unqualified for based on the
interactions detailed in the police reports.
For example, if the police reports are admissible, the police reports do not show
that Defendant threatened employees within the School District. If he had, then
Plaintiff might have been unqualified for the position. See Sullivan v. River Valley
Sch. Dist., 197 F.3d 804, 813 (6th Cir. 1999) ("'[T]hreatening other employees
disqualifies one' from a job.") (quoting Palmer v. Cir. Ct. of Cook Cnty., 117 F.3d 351,
352 (7th Cir. 1997)). The police reports also fail to show that Plaintiff had a criminal
conviction before Enviro-Clean denied his application. Thus, without more evidence,
it would be premature for the Court to determine whether Plaintiff was unqualified
for the janitorial position based on the police reports and the trespassing citation.
Second, whether Enviro-Clean could refuse to hire Plaintiff based on his past
interactions with the police and his trespassing conviction is best saved for a

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summary judgment argument under the McDonnell Douglas burden-shifting
standard. Yarberry v. Gregg Appliances, Inc., 625 F. App'x 729, 735 (6th Cir. 2015)
(explaining that federal courts evaluate ADA claims under the McDonnell Douglas
standard). At its core, "McDonnell Douglas [] is an evidentiary standard, not a
pleading requirement." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). For
that reason, requiring Plaintiff "to plead a prima facie case under McDonnell Douglas
in order to survive a motion to dismiss" would be an error. Keys v. Humana, Inc., 684
F.3d 605, 609 (6th Cir. 2012).
Indeed, without more evidence, the Court cannot determine whether EnviroClean "properly determined that [Plaintiff] poses a direct threat, for purposes of the
ADA" because the Court does not know whether Enviro-Clean terminated Plaintiff's
interview based on "objective[ly] reasonable[] . . . actions." Michael, 808 F.3d at 307
(quotation and citation omitted). In other words, it is plausible, based on the
complaint, that Enviro-Clean terminated Plaintiff's application without knowing
whether Plaintiff posed a direct threat to the safety of others in the workplace.
At bottom, it could very well be the case that Plaintiff's interactions with police
or the trespassing citation were a "legitimate, non-discriminatory reason" for EnviroClean to not hire Plaintiff, but for the Court to make that finding at this stage would,
again, be premature. Yarberry, 625 F. App'x at 735 (quotation and citation omitted).
In sum, "the burden of making out a prima facie case is not an onerous one,"
Hostettler, 895 F.3d at 855, and Plaintiff has satisfied that burden.

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C.

Rooker-Feldman and Issue Preclusion

Last, the Court is not barred from hearing Plaintiff's ADA claim under the
Rooker-Feldman doctrine or issue preclusion. "The Rooker–Feldman doctrine bars
lower federal courts from conducting appellate review of final state-court judgments."
Berry v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012) (citing Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 291 (2005)). Yet Rooker-Feldman is not a bar to the
ADA claim because, although the Court may not modify Defendant's trespassing
conviction, "Plaintiff does not ask th[e] Court to reverse or modify his trespassing
conviction." ECF 35, PgID 556. And because Defendant is not seeking review of the
trespassing conviction, issue preclusion (collateral estoppel) does not apply either.
See Montana v. United States, 440 U.S. 147, 153 (1979) (Issue preclusion applies "once
an issue is actually and necessarily determined by a court of competent jurisdiction,
that determination is conclusive in subsequent suits based on a different cause of
action involving a party to the prior litigation."). The Court will therefore decline to
dismiss the ADA claim against Enviro-Clean.
II.

PWDCRA Claims
The Court will first address the PWDCRA claim against the School District.

After, the Court will address the PWDCRA claim against Enviro-Clean.
A.

Walled Lake Consolidated School District

The PWDCRA "substantially mirrors the ADA, and resolution of a plaintiff's
ADA claim will generally, though not always, resolve the plaintiff's PWDCRA claim."
Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir. 2012) (quotation omitted); see also

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Chiles v. Mach. Shop, Inc., 238 Mich. App. 462, 472 (1999) ("[The Michigan Court of
Appeals] and the Michigan Supreme Court have noted that the federal [ADA] and the
PWDCRA share the same purpose and use similar definitions and analyses, and both
courts have relied on the ADA in interpreting the PWDCRA."). The School District's
motion raised the same arguments as Enviro-Clean's motion. Compare ECF 22, PgID
81 with ECF 23, PgID 298. And the School District has "provide[d] no argument as to
why [the Court] should treat the claims separately, nor does [the Court's] review
indicate as much." Sybra, Inc., 667 F.3d at 764; see ECF 22, PgID 102–09. On that
basis, the Court will deny the School District's motion for the same reasons that the
Court denied Enviro-Clean's motion to dismiss the ADA claim.
B.

Enviro-Clean

The Court will dismiss the PWDCRA claim against Enviro-Clean as untimely.
Plaintiff signed the job application, which contained a one hundred eighty-day
limitations period. ECF 23-2, PgID 335. The application unambiguously stated, "I
agree that any action, claim or lawsuit against [Enviro-Clean] . . . arising out of or
related to my [] application for employment, or consideration for employment, must
be brought within 180 days of the event giving rise to the claims or be forever barred."
Id.
Under Michigan law, "an unambiguous contractual provision providing for a
shortened period of limitations is to be enforced as written unless the provision would
violate law or public policy." Rory v. Cont'l Ins. Co., 473 Mich. 457, 470 (2005).
"[T]here is no general public policy prohibition against contractually-shortened

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limitations periods for employment contracts between private parties, even when the
limitation affects civil rights claims." Wineman v. Durkee Lakes Hunting & Fishing
Club, Inc., 352 F. Supp. 2d 815, 820 (E.D. Mich. 2005) (citation omitted). The one
hundred eighty-day limitations period appears reasonable and Plaintiff made no
attempt to argue that the Court should not enforce it. See ECF 36, PgID 570–73
(arguing only that the shortened limitations period does not apply to the ADA claim);
see also ECF 38, PgID 584 (noting that the response brief failed to address the
shortened limitations period to the ADA claim). The Court will therefore apply the
one hundred eighty-day limitations period.
Based on the shortened limitations period, the Court must dismiss the claim
as untimely. The events that gave rise to the PWDCRA claim occurred when EnviroClean cancelled Plaintiff's job interview in June 2017. ECF 1, PgID 8. Plaintiff filed
the complaint in February 2019. As a result, the PWDCRA claim against EnviroClean is untimely and the Court will dismiss it.
Because the Court is dismissing Enviro-Clean's Rule 12(b)(6) motion in part,
the Court will require Enviro-Clean to answer the complaint no later than October 1,
2021.
III.

Case Management
Assuming Plaintiff's attorneys would renew their motions to withdraw, the

Court will grant the motions to withdraw. The attorneys explained their relationship
with Plaintiff irreconcilably broke down more than a year ago (before the parties fully
briefed the motions to dismiss). ECF 29, PgID 528; ECF 30, PgID 530. Defendants

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did not oppose the withdrawals. ECF 32, PgID 534; ECF 33, PgID 537. Plaintiff,
however, opposed the withdrawals. ECF 34, PgID 539. Plaintiff explained a
withdrawal would prejudice him because, without his attorneys, Plaintiff would be
unable to comply with the deadlines to respond to the motions to dismiss. Id.
Factors that influence whether a Court should exercise its discretion to permit
an attorney to withdraw include: (1) the motion's timeliness, (2) the severity of the
attorney-client conflict, and (3) "the public's interest in the prompt and efficient
administration of justice." U.S. S.E.C. v. Merklinger, No. 08–CV–13184, 2009 WL
3498721, at *2 (E.D. Mich. Oct. 26, 2009) (citing United States v. Mack, 258 F.3d 548,
556 (6th Cir. 2001)).4
For the first factor, the withdrawal motions were timely because the Court
resolved the motions to dismiss with full briefing, and the parties have not begun
discovery. Because the attorneys moved to withdraw early in the case, Plaintiff is not
prejudiced, and the Court will grant Plaintiff time to find new counsel before
beginning discovery.
For the second factor, the attorneys have explained the relationship is beyond
repair. ECF 29, PgID 528; ECF 30, PgID 530. Because Plaintiff appealed the case pro
se, it appears that the attorneys and Plaintiff have not repaired their relationship
since the withdrawal motions.

The Merklinger court also mentioned a fourth factor, "the adequacy of the court's
inquiry into the matter." 2009 WL 3498721, at *2. But this factor appears only
relevant when an appellate court reviews a district court's order.
4

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For the last factor, the public's interest in efficiently resolving the case is not
hampered. The case will soon begin discovery and any delay created by Plaintiff
finding a new attorney would be minimal.
Because each factor supports granting the motion, the Court will grant the
withdrawal motions subject to these conditions:
Counsel must provide Plaintiff with a copy of this Order and highlight the
following instruction: Plaintiff will have until October 1, 2021 to either (1) retain new
counsel and have that counsel file an appearance; or (2) file notice that he intends to
represent himself. If Plaintiff disregards the instruction, the Court will dismiss the
case without prejudice. See Fed R. Civ. P. 41(b).
The Court will hold a Rule 16 conference after Plaintiff has retained new
counsel or informed the Court that he wishes to proceed pro se.
ORDER
WHEREFORE, it is hereby ORDERED that Enviro-Clean Services, Inc.'s
motion to dismiss [23] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Walled Lake Consolidated School
District's motion to dismiss [22] is DENIED.
IT IS FURTHER ORDERED that the PWDCRA claim against Enviro-Clean
Services, Inc. is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Enviro-Clean must ANSWER the
complaint no later than October 1, 2021.

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IT IS FURTHER ORDERED that the motions to withdraw [29, 30] are
GRANTED.
IT IS FURTHER ORDERED that Joseph A. Golden and Syeda F. Davidson
must PROVIDE Plaintiff with a copy of this Order, making special note of the Court's
instruction about possible dismissal if Plaintiff disregards the Court's order. Golden
and Davidson must SEND this Order to Plaintiff by email and certified mail. Golden
and Davidson must CERTIFY on the docket that they complied with the Court's
Order.
IT IS FURTHER ORDERED that Plaintiff must either (1) RETAIN new
counsel and have that counsel file an appearance, or (2) FILE notice that he intends
to represent himself, no later than October 1, 2021. If Plaintiff disregards the
instruction, the Court will dismiss the case without prejudice.
IT IS FURTHER ORDERED that the case is REOPENED.
SO ORDERED.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: September 8, 2021
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 8, 2021, by electronic and/or ordinary mail.
s/ David P. Parker
Case Manager

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