Benjamin Franklin Franchising SPE LLC et al v. David Michael Plumbing, Inc. et al

Filing 28

OPINION AND ORDER Granting 19 Plaintiffs' Motion to Dismiss Counts II and III of Countercomplaint. Signed by District Judge Susan K. DeClercq. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BENJAMIN FRANKLIN
FRANCHISING SPE LLC et al.,
Plaintiffs,

Case No. 2:24-cv-10286

v.

Honorable Susan K. DeClercq
United States District Judge

DAVID MICHAEL PLUMBING
INC. et al.,
Defendants.
________________________________/
OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS
COUNTS II AND III OF COUNTERCOMPLAINT (ECF No. 19)
In this case, the relationship between several franchisors and their franchisee
broke down. The franchisors then sued, and the franchisee brought counterclaims—
two of which are the subject of this motion to dismiss. For the reasons explained
below, these two counterclaims fail as a matter of law, so they will be dismissed.
I. BACKGROUND
Plaintiffs Benjamin Franklin Franchising, One Hour Air Conditioning
Franchising, and Mister Sparky Franchising (collectively “Ben Franklin”) are each
party to franchise agreements with Defendant David Michael Plumbing, Inc. (DMP).
ECF No. 1 at PageID.1. In total, there were seven franchise agreements. See ECF
No. 16 at PageID.99–100.

In late 2023, the Parties’ relationship soured. Id. at PageID.103. Ben Franklin
then sued, alleging that DMP “flouted their contractual obligations under the
Franchise Agreements, intentionally underreported sales and underpaid royalties and
advertising fees due on those sales, misused Plaintiffs’ trademarks, and now have
abandoned their Franchise Agreements.” ECF No. 1 at PageID.1. Ben Franklin
alleges that it properly terminated all seven of the franchise agreements, and now
seeks to enforce their noncompete covenants. See id. at PageID.21–22.
DMP responds that the terminations were unjustified. ECF No. 16 at
PageID.104. Therefore, it brought counterclaims for breach of contract, declaratory
judgment, promissory estoppel, and violations of the Michigan Franchise Investment
Law (MFIL). Id. at PageID.105–09. Ben Franklin moved to dismiss the DMP’s
counterclaims for promissory estoppel and violations of the MFIL. ECF No. 19.
As for promissory estoppel, DMP alleges that in an April 2023 meeting, Ben
Franklin’s Brand President, Lance Sinclair, represented to DMP’s Executive Vice
President, Karla Michael, that “should DMP decide to end the franchise relationship,
DMP could buy out the term of any unexpired franchise agreements.” ECF No. 16
at PageID.101. “Sinclair promised Ms. Michael that, in such event, DMP would keep
its customers, and that DMP could continue to operate a competing business under
a different name in its territories.” Id. DMP also alleges that Sinclair told Michael
that, if DMP chose to leave the franchise system, Sinclair would “go to bat for her,”
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in his role as Ben Franklin’s Brand President, so that DMP could buy out of the
franchise by paying only the minimum monthly royalty fee for the months remaining
in the franchise term. Id. Over the next six months, DMP continued to ask Sinclair
for a buyout price, but those requests were met with silence. Id. at PageID.102.
II. STANDARD OF REVIEW
Under Civil Rule 12(b)(6), a pleading fails to state a claim if its allegations do
not support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). In considering a Rule 12(b)(6) motion, the court accepts the
complaint’s factual allegations as true and draws all reasonable inferences in the
plaintiff’s favor. See Lambert, 517 F.3d at 439 (6th Cir. 2008). The plaintiff need not
provide “detailed factual allegations” but must provide “more than labels and
conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] formulaic
recitation of the elements of a cause of action will not do.”).
Although the complaint “must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face,” the court need not accept
legal conclusions as true. Iqbal, 556 U.S. at 678–79 (quotations and citation
omitted). The complaint is facially plausible if it “pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678; see also 16630 Southfield Ltd. v. Flagstar Bank,
F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) (“The plausibility of an inference depends
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on a host of considerations, including common sense and the strength of competing
explanations for the defendant’s conduct.”). If not, then the court must grant the
motion to dismiss. Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir. 2009).
III. ANALYSIS
A. Threshold Issues
1. Conversion Into Motion for Summary Judgment
DMP requests that Ben Franklin’s motion to dismiss be converted into one for
summary judgment. ECF No. 22 at PageID.391–92. For the reasons stated on the
record at the July 9, 2024 motion hearing, and because neither this Court nor the
Parties rely on materials outside the pleadings for purposes of this motion, the
request for conversion will be denied. Ben Franklin’s motion is properly considered
under Civil Rule 12(b)(6).
2. Choice of Law
The Franchise Agreements at issue each contain choice-of-law provisions,
variously selecting Florida, Texas, or Maryland law—not Michigan. ECF No. 1 at
PageID.11. However, the Parties have made choice of law a nonissue for purposes
of this motion. See ECF Nos. 19 at PageID.131; 22 at PageID.392–95 (agreeing the
choice-of-law provision is “ultimately immaterial” to the promissory estoppel claim
and analyzing the claim under Michigan law); see also ECF Nos. 19 at PageID.136
n.3 (asserting that the MFIL does not apply because of the agreements’ choice-of-4-

law provisions but addressing the claim on the merits to “avoid the necessity of a
potentially complex choice of law analysis”). Accordingly, this Court will assume,
as the Parties have for this motion, that Michigan law applies.
B. Promissory Estoppel
Ben Franklin argues that DMP’s counterclaim for promissory estoppel fails
because there are express, enforceable contracts (i.e., the Franchise Agreements)
which broadly govern the Parties’ relationship. See ECF No. 19 at PageID.131–134.
DMP responds that it can maintain the claim so long as it seeks recovery for “extras”
that do not expressly contradict each contract’s written terms. See ECF No. 22 at
PageID.392–95.
Promissory estoppel is an equitable theory that allows courts to enforce an
implied agreement between parties who lack an express contract. APJ Assocs., Inc.
v. N. Am. Philips Corp., 317 F.3d 610, 617 (6th Cir. 2003). However, when an
express contract governs the parties’ relationship and covers the same interactions
for which a party seeks equitable relief, promissory estoppel does not apply.
Ingenieurbüro Giebisch & Volkert GMBH v. ASIMCO Int’l, Inc., No. 16-11760, 2017
WL 6539055, at *9 (E.D. Mich. Dec. 21, 2017) (citing Terry Barr Sales Agency, Inc.
v. All-Lock Co., Inc., 96 F.3d 174, 183 (6th Cir. 1996)).
For this reason, courts have generally entertained promissory estoppel claims
only when there is doubt as to the existence of a valid contract—that is, as an
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alternative theory of recovery if a contract is found to be unenforceable. See Silver
Foam Distrib. Co. v. Labatt Brewing Trading Co., No. 20-10681, 2021 WL 859043,
at *12 (E.D. Mich. Mar. 8, 2021) (dismissing promissory estoppel claim when
plaintiff failed to plead, even in the alternative, that the contract at issue was
unenforceable); Advanced Plastics Corp. v. White Consol. Indus., 828 F. Supp. 484,
491 (E.D. Mich. 1993) (“alternative pleading of an implied contract claim [like
promissory estoppel] is only allowed in a contract setting where a party doubts the
existence of a contract,” because “promissory estoppel is an alternative theory of
recovery where no contract exists”).
DMP acknowledges that the Franchise Agreements are enforceable and
broadly cover the Parties’ relationship. Still, DMP responds that the Michigan Court
of Appeals carved out an exception to the general rule in Cascade Electric Co. v.
Rice, 245 N.W.2d 774 (Mich. Ct. App. 1976), thereby allowing parties recover based
on equitable theories like promissory estoppel even in the face of a valid contract.
ECF No. 22 at PageID.393–95. In Cascade, the plaintiff agreed to construct a
building for the defendant according to a written contract. 245 N.W.2d at 775. The
plaintiff ended up doing work not contemplated by the contract when the defendant
allegedly promised to pay extra for it. Id. at 777. But then, the defendant argued that
the plaintiff could not recover for the extra work because the parties had an
enforceable contract covering the same subject matter—constructing the building.
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Id. The court rejected this theory, concluding that a party could recover on a quantum
meruit theory for performing “extras” not contemplated in the original contract. Id.
DMP analogizes this case to Cascade, contending that DMP may similarly
enforce Ben Franklin’s alleged promise to buy out the remainder of the franchise
terms, because that promise was an “extra” not contemplated by the original
contract. See ECF No. 22 at PageID.394–95. Ben Franklin concedes that the
Franchise Agreements do not contemplate a buyout. ECF No. 25 at PageID.417.
But DMP stretches this argument too thin because it misunderstands why the
Cascade court allowed recovery based on quantum meruit in the first place. The
theory underlying quantum meruit is that “the law will imply a contract in order to
prevent unjust enrichment when one party inequitably receives and retains a benefit
from another.” Morris Pumps v. Centerline Piping, Inc., 729 N.W.2d 898, 903 (Mich.
Ct. App. 2006). That was the situation in Cascade, as the defendant would have been
unjustly enriched if the plaintiff was not compensated for the extra work performed.
245 N.W.2d at 777–78. However, there is no unjust enrichment here: DMP does not
allege that it performed any extra work beyond what was contemplated by the
Franchise Agreements, nor that Ben Franklin received and retained any
corresponding benefit. Accordingly, there is no basis to conclude that this “narrow”
exception applies. See Ingenieurbüro, 2017 WL 6539055, at *9.

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Even assuming that DMP could assert a promissory estoppel claim, it would
fail because DMP has not alleged a “clear and definite” promise upon which it could
reasonably rely.
Under Michigan law, promissory estoppel requires “(1) a promise, (2) that the
promisor should reasonably have expected to induce action of a definite and
substantial character on the part of the promisee, and (3) that in fact produced
reliance or forbearance of that nature in the circumstances such that the promise must
be enforced if injustice is to be avoided.” Novak v. Nationwide Mut. Ins. Co., 599
N.W.2d 546, 552 (Mich. Ct. App. 1999).
For promissory estoppel to apply, the promise must also be clear and definite,
and a party’s reliance is reasonable only if there was an actual promise made.
Charter Twp. of Ypsilanti v. Gen. Motors Corp., 506 N.W.2d 556, 559 (Mich. Ct.
App. 1993) (citing State Bank of Standish v. Curry, 500 N.W.2d 104, 108–09 (Mich.
1993)), appeal denied, remanded sub nom. Charter Twp. of Ypsilanti, Cnty. of
Washtenaw v. Gen. Motors Corp., 509 N.W.2d 152 (Mich. 1993). To determine
whether there was a clear and definite promise, courts use an objective test that
examines “the words and actions of the transaction as well as the nature of the
relationship between the parties and the circumstances surrounding their actions.”
Standish, 500 N.W.2d at 109.

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Here, DMP alleges that in an April 2023 meeting, Ben Franklin’s Brand
President, Sinclair, “made a promise to DMP that it would be allowed to buy-out of
the remainder of the term of [the Franchise Agreements at issue] so that DMP could
operate its business independently,” and that in such an instance, DMP could keep
its customers. ECF No. 16 at PageID.101, 107. Specifically, DMP alleges that
Sinclair promised to “go to bat” for DMP so that DMP could buy out of the Franchise
Agreements by paying the minimum monthly royalty fee. Id. at PageID.101.
Even assuming these statements to be true, none is sufficiently “clear and
definite” for promissory estoppel. Ypsilanti, 506 N.W.2d at 559. Notably, DMP
alleges no agreed-upon terms allowing it to actually buy out of the Agreements.
Additionally, the phrase “go to bat” suggests that Ben Franklin’s President, at most,
promised to try to convince someone else to approve the buyout, not that he promised
to approve it himself. Moreover, the allegation that DMP continued to ask Sinclair
for buyout terms but received no response further undercuts the assertion that there
was a clear and definite promise between the Parties.
Accordingly, DMP’s promissory estoppel claim will be dismissed.
C. Right of Action Under the MFIL
This next issue pits principles of stare decisis and federalism against each
other. Over 30 years ago, the Sixth Circuit made an Erie guess about an undecided
issue of state law, but certain evidence—including the statute’s text and a later
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Michigan Court of Appeals decision—suggests that the Sixth Circuit’s interpretation
no longer controls. Must this Court follow the earlier Sixth Circuit precedent on the
meaning of state law, even if doing so would contradict the statute’s text and the state
courts’ later interpretation of state law?
As background, § 445.1527 of the MFIL makes certain provisions in franchise
agreements void and unenforceable. Specifically, DMP alleges that Ben Franklin
violated § 445.1527(c), which voids “[a] provision that permits a franchisor to
terminate a franchise prior to the expiration of its term except for good cause.”1 ECF
No. 16 at PageID.108.
Yet there is a threshold question: may private parties sue to remedy § 445.1527
violations? DMP says yes, relying on two Sixth Circuit cases that implied a private
right of action under the MFIL. See ECF No. 22 at PageID.397–402. Ben Franklin
says no, noting that no Michigan court had weighed in before those cases were
decided, and that since then, the Michigan Court of Appeals has held there is no such
right of action. ECF Nos. 19 at PageID.136–41; 25 at PageID.419–21. What’s more,
§ 445.1534 of the MFIL, by its plain language, appears to foreclose any implied
rights of action whatsoever:

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“Good cause shall include the failure of the franchisee to comply with any lawful
provision of the franchise agreement and to cure such failure after being given
written notice thereof and a reasonable opportunity, which in no event need be more
than 30 days, to cure such failure.” MICH. COMP. LAWS § 445.1527(c).
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Except as explicitly provided in this act, civil liability in favor of any
private party shall not arise against a person by implication from or as
a result of the violation of a provision of this act or a rule or order
hereunder.
MICH. COMP. LAWS § 445.1534.
To start, consider the Sixth Circuit cases DMP relies upon. In General Aviation
v. Cessna Aircraft Co., 915 F.2d 1038, 1043–44 (6th Cir. 1990), the court implied a
private right of action for violations of § 445.1527, but it did so without considering
the plain language of § 445.1534 noted above. When the court again considered the
question a few years later in Geib v. Amoco Oil Co. (Geib I), 29 F.3d 1050, 1059–61
(6th Cir. 1994) and Geib v. Amoco Oil Co. (Geib II), 163 F.3d 329, 330 (6th Cir.
1995), it cast doubt on whether General Aviation was correctly decided. The court
noted that General Aviation conflicted with § 445.1534 and that there was “new
evidence suggesting that both the executive and legislative branches of the Michigan
government intended to vest sole enforcement authority in the Attorney General of
Michigan, not to create a private cause of action.” Geib II, 163 F.3d at 330 (citing
Geib I, 29 F.3d at 1058–59, 1060 n.7).
In light of its doubt that the MFIL created a private right of action for §
445.1527 violations, and seeking to avoid “the problem of authoritatively
determining unresolved state law involved in federal litigation,” the Sixth Circuit
certified the question to the Michigan Supreme Court. Geib I, 29 F.3d at 1061
(quoting Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 212 (1960)). However, the
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Michigan Supreme Court declined certification, and so the Sixth Circuit saw “no
alternative” but to follow its prior General Aviation holding. In re Certified Question,
527 N.W.2d 513 (Mich. 1994); Geib II, 163 F.3d at 330.
In 1997, a Michigan court finally had the opportunity to address this state-law
issue. In Franchise Management Unlimited, Inc. v. America's Favorite Chicken, 561
N.W.2d 123, 129 (Mich. Ct. App. 1997), the Michigan Court of Appeals
acknowledged the Sixth Circuit holdings but contradicted them. It held that “the
[Michigan] Legislature clearly expressed its intent [in § 445.1534] that the courts
not imply a private right of action to remedy violations of the MFIL.” Id.; see also
Drery v. Marathon Oil Corp., No. 200674, 1998 WL 1989877, at *8 (Mich. Ct. App.
1998). The Michigan Supreme Court then denied leave to appeal, 590 N.W.2d 570
(Mich. 1999) (Table), and also reconsideration, 595 N.W.2d 843 (Mich. 1999)
(Table), effectively letting the Michigan Court of Appeals’ decision stand.
In sum, that is the current state of things: despite the Sixth Circuit previously
holding that there is a right of action, the Michigan Court of Appeals’ 1997
decision—which is still good law—held that there is no right of action. Both times,
the Michigan Supreme Court declined to weigh in, and it has not addressed the
matter since. What is a federal district court to do?
When deciding substantive state-law issues, federal courts must apply the
same law that Michigan state courts would apply. Auburn Sales, Inc. v. Cypros
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Trading & Shipping, Inc., 898 F.3d 710, 715 (6th Cir. 2018) (citing Kurczi v. Eli Lilly
& Co., 113 F.3d 1426, 1429 (6th Cir. 1997)). Generally, that means following what
the Michigan Supreme Court has said on the matter. Kirk, 16 F.3d at 707. But when
it has not yet spoken, federal courts “must predict how [the Michigan Supreme
Court] would rule by looking to all available data,” including decisions of the
Michigan Court of Appeals. Stryker Corp. v. XL Ins. Am., 735 F.3d 349, 360 (6th Cir.
2012) (quoting Allstate Ins. Co. v. Thrifty Rent–A–Car Sys., Inc., 249 F.3d 450, 454
(6th Cir. 2001)).
When making that prediction, federal courts sometimes treat Michigan Court
of Appeals decisions as “binding authority” in the Michigan Supreme Court’s
absence. Wieczorek v. Volkswagenwerk, A.G., 731 F.2d 309, 310 (6th Cir. 1984); see
also Montgomery v. Kraft Foods Glob., Inc., 822 F.3d 304, 308–09 (6th Cir. 2016)
(quoting Berrington v. Wal–Mart Stores, Inc., 696 F.3d 604, 608 (6th Cir. 2012)).
Other times, state appellate-court decisions have been considered only a data point—
albeit a very important one—in determining how the state supreme court would rule.
See Horizon Lawn Maint., Inc. v. Columbus-Kenworth, Inc., 188 F. Supp. 3d 631,
635 (E.D. Mich. 2016) (collecting cases); Grantham & Mann, Inc. v. Am. Safety
Prods., Inc., 831 F.2d 596, 608–09 (6th Cir. 1987). Yet even in the latter scenario,
Michigan Court of Appeals decisions are “normally treated as authoritative absent a

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strong showing that the Michigan Supreme Court would decide the issue
differently.” Auburn Sales, 898 F.3d at 715 (cleaned up) (emphasis in original).
Here, DMP has not made a “strong showing” that the Michigan Supreme
Court would decide the issue differently than did the Michigan Court of Appeals in
Franchise Management. Id.; see also CJ Consultants, LLC v. Window World, Inc.,
No. 1:22-CV-3, 2022 WL 4354265, at *7 (W.D. Mich. Sept. 20, 2022). DMP argues
that because the Michigan Supreme Court previously declined to accept certification
of the Sixth Circuit holdings, it had “no concerns” with those decisions. ECF No. 22
at PageID.399. But again, Franchise Management had not yet been decided, and the
Michigan Supreme Court ultimately let it stand despite it contradicting the Sixth
Circuit holdings. 595 N.W.2d 843 (Mich. 1999). If anything, the court’s refusal to
review Franchise Management is more instructive because it suggests agreement
with the Michigan Court of Appeals over the Sixth Circuit. See Lukas v. McPeak,
730 F.3d 635, 638 (6th Cir. 2013) (“State appellate court precedent is considered
particularly persuasive where the [state] Supreme Court has refused to review the
decision.”). After all, by declining review, the Michigan Supreme Court effectively
made Franchise Management the law of the land. Tebo v. Havlik, 343 N.W.2d 181,
185 (Mich. 1984) (“A decision by any panel of the Court of Appeals is, therefore,
controlling statewide until contradicted by another panel of the Court of Appeals or
reversed or overruled by this Court.”). Accordingly, Franchise Management is
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currently the “authoritative” statement of Michigan law. See Auburn Sales, 898 F.3d
at 715.
Even so, DMP invokes the “fundamental principle” of stare decisis as for why
this Court must follow the contrary Sixth Circuit holdings over Franchise
Management. ECF No. 22 at PageID.398. True, generally a published decision of
the circuit court “remains controlling authority” unless overruled en banc or
modified by the United States Supreme Court. Salmi v. Sec’y of Health & Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985).
However, when interpreting state law, “the federal court is not bound by
ordinary principles of stare decisis.” Rutherford v. Columbia Gas, 575 F.3d 616, 619
(6th Cir. 2009) (quoting Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th
Cir. 2003)). Rather, in these situations a “panel may reconsider [a previous panel
decision interpreting state law when] the [state] courts have expressly indicated . . .
that they disagree with [the previous panel decision] and would have decided it
differently.” Bennett v. MIS Corp., 607 F.3d 1076, 1095 (6th Cir. 2010) (alterations
in original) (quoting Hampton v. United States, 191 F.3d 695, 701 (6th Cir. 1999)).
Put otherwise, an earlier panel decision remains binding “unless [state] law has
measurably changed in the meantime.” Rutherford, 575 F.3d at 619 (quoting Big
Lots Stores, Inc. v. Luv N'Care, Ltd., 302 F. App’x 423, 427 (6th Cir. 2008)
(unpublished)).
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Here, Franchise Management “expressly indicated” that the state courts
disagree with the Sixth Circuit’s rulings in General Aviation and Geib. See Bennett,
607 F.3d at 1095. This is strong evidence that state law has “measurably changed in
the meantime,” which effectively diminishes—if not extinguishes—the precedential
effect of the prior Sixth Circuit rulings. See Rutherford, 575 F.3d at 619.
In this way, principles of stare decisis, as important as they are, may
sometimes yield to the federal courts’ great responsibility under Erie Railroad Co.,
304 U.S. 64 (1938), to properly determine state law. See Rutherford, 575 F.3d at
623–24 (Clay, J., concurring in part and dissenting in part); see also Lindenberg v.
Jackson Nat’l Life Ins. Co., 919 F.3d 992, 1003 (6th Cir. 2019) (recognizing that
federal courts are “merely predictors of state law,” and so “stare decisis does not turn
unsettled questions of law into settled ones”). Indeed, because a federal court sitting
in diversity is, “in effect, only another court of the State,” Guaranty Trust Co. v. York,
326 U.S. 99, 108 (1945), it is especially important for lower federal courts “to make
sure that questions of state law are ‘settled right,’ not that they are just ‘settled.’”
Rutherford, 575 F.3d at 627 (Clay, J., concurring in part and dissenting in part).
The obligation to make sure that state law is “settled right” falls on all federal
courts—not just the appellate courts. Indeed, it would be strange for this Court, when
sitting only as another Michigan state court, to ignore state precedent barring implied
rights of action under the MFIL, see Guaranty Trust, 326 U.S. at 108, or to ignore
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the plain language of § 445.1534 barring the same, see Erie R.R., 304 U.S. at 78
(recognizing the basic principle that “the law of the state [may] be declared by its
Legislature”). Doing so would perpetuate the current disharmony between federaland state-court interpretations of Michigan law and encourage the forum shopping
that Erie sought to prevent. See Hanna v. Plumer, 380 U.S. 460, 468 (1965).
Therefore, this Court will apply Michigan law as pronounced by the Michigan
Court of Appeals, and declines to recognize an implied private right of action for
violations of § 445.1527. Accordingly, DMP’s MFIL counterclaim will be dismissed.
D. Leave to Amend
Finally, DMP requests leave to amend its countercomplaint but does so only
in its response, failing to submit a separate motion or a proposed amended pleading.
ECF No. 22 at PageID.402–03; see E.D. Mich. LR 15.1.
In any event, DMP’s request for leave to amend will be denied as futile
because any amendment would still not withstand a motion to dismiss. Beydoun v.
Sessions, 871 F.3d 459, 469 (6th Cir. 2017) (quoting Rose v. Hartford Underwriters
Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). No set of facts could change the
conclusions that, as a matter of law, (1) DMP may not assert a promissory estoppel
claim when there are valid contracts governing the Parties’ relationship, and (2)
DMP does not have a private right of action under Michigan law for violations of §
445.1527 of the MFIL.
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IV. CONCLUSION
Accordingly, it is ORDERED that Plaintiffs’ Motion to Dismiss Counts II and
III of the Countercomplaint, ECF No. 19, is GRANTED. Counts II and III of the
Countercomplaint, ECF No. 16, are DISMISSED.
This is a non-final order as does not close the above-captioned case.

/s/Susan K. DeClercq
SUSAN K. DeCLERCQ
United States District Judge
Dated: 8/29/2024

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