Reed-Pratt v. Winfrey et al

Filing 29

OPINION AND ORDER DISMISSING WITHOUT PREJUDICE Plaintiff's State Claims, STAYING Plaintiff's Federal Claim and DENYING 28 Emergency Motion for Leave to File a Reply Brief. Signed by District Judge Robert H. Cleland. (LWag)

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________________________________________________
LEIGH REED-PRATT,
Plaintiff,
v.
Case No. 20-12129
JANICE WINFREY,
DETROIT ELECTION COMMISSION,
and DETROIT DEPARTMENT OF ELECTIONS,
Defendants.
________________________________/
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE PLAINTIFF’S STATE
CLAIMS, STAYING PLAINTIFF’S FEDERAL CLAIM, AND DENYING PLAINTIFF’S
EMERGENCY MOTION FOR LEAVE TO FILE REPLY BRIEF
Plaintiff Leigh Reed-Pratt brings this action for alleged violations of her
procedural and substantive due process rights, as well as claims for a declaratory
judgment and a writ of mandamus pursuant to Michigan law. (ECF No. 1, PageID.4-20.)
She alleges Defendants have mailed, and plan to continue to mail, unsolicited absentee
voter applications to voters in Detroit contrary to state law. (Id., PageID.6-7.)
Plaintiff moved for a temporary restraining order and a preliminary injunction.
(ECF No 2.) On August 11, 2020, the court denied Plaintiff’s motion for a temporary
restraining order. (ECF No. 8.) Then, on August 17, 2020, the court ordered Plaintiff to
show cause why the court should not decline to exercise supplemental jurisdiction over
her state law claims. (ECF No. 22, PageID.363.) The court ordered Plaintiff to show
cause on August 19, 2020, why the entire case should not be stayed or dismissed
without prejudice pursuant to issues of comity, federalism, and abstention. (ECF No. 24,

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PageID.403.) Consideration of Plaintiff’s motion for a preliminary injunction was
adjourned without date. (Id., PageID.403-04.)
Plaintiff responded to the show cause orders. (ECF Nos. 25, 27.) Defendants
then filed a responsive brief. (ECF No. 27.) After briefing was complete, Plaintiff filed an
“Emergency Motion for Leave to File [a] Reply Brief.” (ECF No. 28.)
The court has reviewed the record and does not find a hearing to be necessary.
E.D. Mich. L.R. 7.1(f)(2). For the reasons provided below, the court will dismiss
Plaintiff’s state claims without prejudice, stay Plaintiff’s federal claim, and deny the
motion for leave to file a reply brief.
I. DISCUSSION
The court will first address the court’s jurisdiction over Plaintiff’s state law claims.
It will then turn to an analysis of the Colorado River abstention doctrine. Finally, the
court will address Plaintiff’s motion for leave to file a reply brief.
A. Supplemental Jurisdiction Over Plaintiff’s State Law Claims
Plaintiff states that she does not oppose the court declining supplemental
jurisdiction and “supports the immediate dismissal without prejudice” of her state law
claims. (ECF No. 25, PageID.406.)
Even if Plaintiff had not agreed to dismiss her state law claims, the court would
nonetheless decline to exercise supplemental jurisdiction. 28 U.S.C. § 1367(c).
Plaintiff’s state law claims present complex questions of state law that impact election
procedures for a major state-run election. She asks the court for a declaratory judgment
that Defendants violated Michigan law by mailing unsolicited absentee ballot
applications for the August primary election, (ECF No. 19, PageID.337.), and requests

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that the court order Defendants to refrain from mailing unsolicited absentee ballot
applications for the November general election. (Id., PageID.337, 341.) Plaintiff supports
her claims with Michigan statute and a 2007 decision from the Michigan Court of
Appeals, Taylor v Currie, which held that a Detroit City Clerk could not mail unsolicited
absentee ballot applications to voters. 277 Mich. App. 85, 743 N.W.2d 571, 578 (2007).
Since that decision, Michigan has approved constitutional amendments expanding the
opportunities for absentee voting. See Mich. Const. art. II, § 4. The state has also
experienced the outbreak of the Coronavirus Disease (“COVID-19”) which may impact
the scope of the government’s authority. See Mich. Exec. Order No. 2020-27 (2020)
(Michigan executive order setting absentee voting procedures during the outbreak of
COVID-19). Given the substantial and unresolved questions of state law at issue,
Plaintiff’s claims “raise[] . . . novel or complex issue[s] of state law,” 28 U.S.C. § 1367(c),
and the exercise of supplemental jurisdiction is not warranted.
Plaintiff’s state law claims (Count II and Count III) will be dismissed without
prejudice.
B. Colorado River Abstention
In Colorado River Water Conservation District v. United States, the Supreme
Court held that federal courts may abstain from hearing a case solely because similar
pending state court litigation exists. 424 U.S. 800, 817 (1976); accord Romine v.
Compuserve Corp., 160 F.3d 337, 339-41 (6th Cir. 1998). “[D]espite the virtually
unflagging obligation of the federal courts to exercise the jurisdiction given them, . . .
considerations of judicial economy and federal-state comity may justify abstention in

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situations involving the contemporaneous exercise of jurisdiction by state and federal
courts.” Romine, 160 F.3d at 339 (quotation removed).
To abstain from exercising jurisdiction, a state court action must be “parallel.” Id.
at 340; accord Baskin v. Bath Tp. Bd. of Zoning Appeals, 15 F.3d 569, 571-72 (6th Cir.
1994). If state proceedings are parallel, eight factors must weigh in favor of abstention.
PaineWebber, Inc. v. Cohen, 276 F.3d 197, 206-07 (6th Cir. 2001); accord Great Earth
Cos. v. Simons, 288 F.3d 878, 886 (6th Cir. 2002).
With Plaintiff’s state claims dismissed, only her claim under procedural and
substantive due process (Count I) remains. That claim is closely tied to state law.
Plaintiff’s complaint states that Defendants violated her constitutional rights because
“Mich. Const. . . . art. 2, § 4(1)(g) and Mich. Comp. Laws § 168.759(4) [require that] the
registered voter . . . first request . . . an absentee voter application”, (ECF No. 19,
PageID.329, ¶ 33.); she also cites Taylor v. Currie, 743 N.W.2d 571. (ECF No. 19,
PageID.326, ¶ 21.) In fact, Plaintiff explicitly alleges that Defendants “denied . . . her
due process rights by denying . . . her state constitutional and statutory rights to choose
whether to request . . . an absentee voter application.” (Id., PageID.331, ¶ 41.) Further,
as Plaintiff asserts in her motion for a preliminary injunction, state law will determine
whether she had a constitutionally protected interest, sufficient to allege valid procedural
and substantive due process violations, in not receiving an absentee ballot application.
EJS Props., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012) (“Whether a
person has a ‘property’ interest [under due process] is traditionally a question of state
law.”); accord Silver v. Franklin Tp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th
Cir. 1992). (ECF No. 2, PageID.37, 44-45, Plaintiff’s Motion for Temporary Restraining

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Order and Preliminary Injunction (“Mich. Const. . . . art. 2, § 4(1)(g) and Mich. Comp.
Laws §168.759(5) establish a legitimate entitlement for Plaintiff to have the right to
request . . . an absentee ballot application.”).)
In a related case, Robert Davis, who filed an affidavit in support of Plaintiff in this
case, 1 (ECF No. 10), has sought criminal contempt and a declaratory judgment in
Wayne County Circuit Court against Defendants for violating Michigan law and Taylor v.
Currie by mailing unsolicited absentee ballot applications. (ECF No. 27-6, PageID.553565.) He requested an injunction to prevent Defendants from mailing absentee ballot
applications for the November general elections. (Id., PageID.558.)
Davis moved for an order to show cause why Defendants should not be held in
criminal contempt, (ECF No. 27-5, PageID.551); Plaintiff did the same in this case. 2
(ECF No. 12.) Davis’s motion was denied by Wayne County Circuit Court on July 10,
2020. (ECF No. 27-5, PageID.551.) The state court reasoned that “to the extent [Davis]
suggests Defendant Winfrey unlawfully distributed absentee ballots, [Davis’s]
allegations lack merit, in light of [a] Michigan Court of Claims’ ruling upholding the
Michigan Secretary of State’s authority to mail absentee ballot applications to all
registered voters.” (Id.) The complaint was dismissed on July 24, 2020, and Davis
appealed to the Michigan Court of Appeals. (ECF No. 27-7, PageID.568-70.) The case

1

Plaintiff for her part filed an affidavit to support Davis in a case filed by his
corporate entity in Wayne County Circuit Court, also against Defendants, alleging
Defendants illegally mailed absentee ballot applications. (ECF No. 27-4.) That case was
voluntarily dismissed on August 14, 2020. (ECF No. 18-1.)
2

The court denied Plaintiff’s motion to show cause on August 13, 2020, reasoning
that “there [was] no justification shown for the court to immediately burden Defendants
with a requirement to come forward to show cause, shortcutting procedural protections
afforded to all litigants.” (ECF No. 17, PageID.304.)
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is currently before the Michigan Court of Appeals. Davis v. Wayne Cnty. Election
Comm’n, Case No. 354315 (Mich. Ct. App.).
1. Whether the Federal and State Suits are Parallel
Plaintiff’s federal claim is parallel to Davis’s case before the Michigan Court of
Appeals. “Exact parallelism is not required; it is enough if the two proceedings are
substantially similar.” Romine, 160 F.3d at 340 (quotation removed); accord Bates v.
Van Buren Tp., 122 F. App’x 803, 806 (6th Cir. 2004). “Where . . . the parties are
substantially similar and . . . [the claims] are predicated on the same allegations as to
the same material facts . . . the actions must be considered ‘parallel.’” Romine, 160 F.3d
at 340; accord Healthcare Co. v. Upward Mobility, Inc., 784 F. App’x 390, 394 (6th Cir.
2019).
Here, Plaintiff is bringing claims against the same Defendants in the Davis action.
(ECF No. 27-6, PageID.552.) She is alleging the same material facts as Davis, i.e., that
Defendants mailed unsolicited absentee ballot applications, (ECF No. 19, PageID.32526, ¶¶ 18-20; ECF No. 27-6, PageID.553-64.), and asserts the same legal conclusions,
i.e., that Defendants violated Michigan law and Taylor v. Currie. (Id., PageID.326, ¶ 21,
PageID.329, ¶¶ 33-34; ECF No. 27-6, PageID.553-64)
It is of no material significance that Plaintiff brings her claims under federal due
process while Davis brings his claims openly under state law. Healthcare Co., 784 F.
App’x at 394 (“Parallelism does not require identical causes of action in the state and
federal lawsuits.”); Romine, 160 F.3d at 340 (“Exact parallelism is not required.”).
Plaintiff predicates her claims on the contention that Defendants’ actions are illegal
under state law and uses the same laws and precedent that Davis relies on in his

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action. (ECF No. 19, PageID.326, ¶ 21, PageID.329, ¶ 33, PageID.331, ¶ 41; ECF No.
2, PageID.37, 44-45; ECF No. 27-6, PageID.553-64.) A finding in state court that
Defendants did not violate state law would defeat Plaintiff’s federal claim on its own
terms, and a state court decision would resolve the material legal issues of this case.
(ECF No. 19, PageID.331, ¶ 41; ECF No. 2, PageID.37, 44-45.) Plaintiff is simply
rearranging Davis’s state claims, and her own state claims, under the canopy of due
process. She cannot now argue that these nearly identical lawsuits are not at least
“substantially similar.” Romine, 160 F.3d at 340.
Additionally, the fact that Davis is the plaintiff in state court while Plaintiff brings
her claim in this court does not alter the analysis. Plaintiff and Davis have cooperated
with each other to file various lawsuits challenging the unsolicited mailing of absentee
voter applications. (ECF No. 10; ECF No. 27-4.) Curiously, although not a determinative
factor, Plaintiff’s and Davis’s court filings are all composed with a very similar writing
style and tone, and familiar language, leading to the impression that they were authored
by the same person(s). (Compare ECF No. 27-6, and, ECF No. 27-7, PageID.568-69,
with, ECF Nos. 18-19.) Defendants are named in Davis’s suit, and a nominal difference
in plaintiffs does not undermine the parallelism of the federal and state suits. Preferred
Care of Del., Inc. v. VanArsdale, 676 F. App’x 388, 394 (6th Cir. 2017) (“Even if . . . the
state suit includes parties . . . beyond those in the federal suit, this court has
nonetheless held that such differences will not upset an otherwise substantial symmetry
between a federal and state action.”); accord Healthcare Co., 784 F. App’x at 395.

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2. Whether the Balancing of Eight Factors Supports Abstention
With the two actions being parallel, the court will weigh eight factors to determine
if abstention is appropriate:
(1) whether the state court has assumed jurisdiction over any res or
property;
(2) whether the federal forum is less convenient to the parties;
(3) avoidance of piecemeal litigation;
(4) the order in which jurisdiction was obtained;
(5) whether the source of governing law is state or federal;
(6) the adequacy of the state court action to protect the federal plaintiff's
rights;
(7) the relative progress of the state and federal proceedings; and
(8) the presence or absence of concurrent jurisdiction.
Cohen, 276 F.3d at 206 (quotation removed). The court finds these factors weigh in
favor of abstention.
The first two factors are “irrelevant, as the case did not involve jurisdiction over
any res or property and the federal and state forums were equally convenient.” Great
Earth Cos., 288 F.3d at 886. Davis’s case is being litigated in Wayne County Circuit
Court and the Michigan Court of Appeals; this case is in the U.S. District Court for the
Eastern District of Michigan. In either proceeding, hearings will likely be conducted
electronically.
The third factor, the avoidance of piecemeal litigation, “was paramount in
Colorado River itself.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 19 (1983). “Piecemeal litigation occurs when different courts adjudicate the identical

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issue, thereby duplicating judicial effort and potentially rendering conflicting results.”
Romine, 160 F.3d at 341.
This factor weighs strongly in favor of abstention. Plaintiff and Davis are litigating
identical issues: whether Defendants’ mailing of unsolicited absentee ballot applications
violates Michigan’s statute, constitution, and precedents. (ECF No. 19, PageID.325-26,
¶¶ 18-21, PageID.329, ¶¶ 33-34; ECF No. 2, PageID.37, 44-45; ECF No. 27-6,
PageID.553-64.) Plaintiff’s due process claims merely restate Michigan legal issues in a
federal cause of action, and a determination of the state law issues will determine the
viability of Plaintiff’s federal claims. (ECF No. 19, PageID.325-26, ¶¶ 18-21,
PageID.329, ¶¶ 33-34; ECF No. 2, PageID.37, 44-45; ECF No. 27-6, PageID.553-64.)
Yet by allowing Plaintiff to litigate her case, and especially if the court were to decide
her motion for a preliminary injunction, the court would duplicate the efforts of state
courts and risk conflicting orders. The Michigan Court of Appeals is currently reviewing
Davis’s case and may issue an order affirming dismissal of Davis’s claims or enjoining
Defendants from mailing unsolicited absentee ballot applications. Davis, Case No.
354315. There would be little further need for this action, and if any need existed,
Plaintiff could continue this litigation after the state case is complete.
Plaintiff and Davis have worked together to file several lawsuits in state and
federal court. (ECF No. 10; ECF No. 27-4.) Allowing Plaintiff to continue here while
Davis appeals in state court, providing a proverbial “second bite of the apple,” would
undermine just adjudication and fairness to Defendants. “The legitimacy of the court
system in the eyes of the public and fairness to the individual litigants . . . are

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endangered by duplicative suits that are the product of gamemanship or that result in
conflicting adjudications.” Romine, 160 F.3d at 341.
The order in which jurisdiction was obtained, the fourth factor of Colorado River
analysis, supports abstention. Davis filed his case in Wayne County Circuit Court on
July 8, 2020. The case was dismissed July 24, 2020, (ECF No. 27-7), and it has been
before the Michigan Court of Appeals since then. This case was initiated on August 9,
2020. (ECF No. 1.) Given that the general election will be held on November 3, 2020
(absentee ballots will be submitted weeks before then), and both Plaintiff and Davis
seek immediate injunctive relief against Defendants, a month’s delay is considerable.
The source of law in this case, the fifth Colorado River factor, is facially federal.
However, Plaintiff’s federal claim is premised on the state issues Davis is currently
litigating in state court. (ECF No. 19, PageID.325-26, ¶¶ 18-21, PageID.329, ¶¶ 33-34;
ECF No. 2, PageID.37, 44-45; ECF No. 27-6, PageID.553-64.) Plaintiff explicitly styles
her due process claims on the theory Defendants violated state law and deprived her of
a state “entitlement.” (ECF No. 19, PageID.325-26, ¶¶ 18-21, PageID.329, ¶¶ 33-34;
ECF No. 2, PageID.37, 44-45.) In a sense, Plaintiff invites this court to resolve whether
Defendants’ actions are illegal under state law, the central question at issue in the state
court litigation and this action, in order to adjudicate a tangential due process claim.
In addition, “the source-of-law factor has less significance where the federal
courts' jurisdiction to enforce the statutory rights in question is concurrent with that of
the state courts,” the eighth factor. Romine, 160 F.3d at 342 (quoting Moses H., 460
U.S. at 25). Michigan courts are fully capable of hearing a federal due process claim,
e.g., Bonner v. City of Brighton, 495 Mich. 209, 848 N.W.2d 380 (2014), and in this case

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state courts are better qualified given that the claims present complex and significant
questions of state law. (ECF No. 19, PageID.325-26, ¶¶ 18-21, PageID.329, ¶¶ 33-34;
ECF No. 2, PageID.37, 44-45.)
Michigan courts are also capable of protecting Plaintiff’s rights, the sixth
Colorado River factor. Plaintiff’s claims here are predicated on state law, and if Davis is
successful, he may achieve the injunctive relief that Plaintiff also seeks. (ECF No. 19,
PageID.325-26, ¶¶ 18-21, PageID.329, ¶¶ 33-34; ECF No. 2, PageID.37, 44-45; ECF
No. 27-6, PageID.553-64.) A ruling from Michigan courts would also definitively
determine whether Plaintiff presents a facially viable federal claim. Given that state law
predominates the legal questions of this case, adjudication in state court provides
adequate protection for the harms Plaintiff allegedly experienced.
Finally, the progress of the proceedings, factor number seven, weighs strongly in
favor of abstention. No discovery has taken place in this case; the court has not
reviewed the merits of the claims or Plaintiff’s motion for preliminary injunction. In state
court, Davis’s claims have already been dismissed and an appellate court is in the
process of review. Davis, Case No. 354315. (ECF No. 27-7, PageID.568-70.) State
court litigation has advanced much further and is more matured than this action.
Although abstention is “narrow exception” to the court’s duty to exercise its
jurisdiction, this case presents extraordinary circumstances. RSM Richter, Inc. v. Behr
Am., Inc., 729 F.3d 553, 557 (6th Cir. 2013). Plaintiff’s federal claim is predicated on
state law, asserts complex and potentially significant state law theories, and seeks to
enjoin state officials before a major state-run election. Litigation in state court would

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resolve the central issues in this case and is well advanced. Thus, the court will abstain
from adjudicating Plaintiff’s due process claim (Count I).
3. Whether the Court Should Stay or Dismiss the Case
Plaintiff argues that, if the court finds abstention warranted, the case should be
stayed and not dismissed. (ECF No. 26, PageID.413-14.) Defendants assert that the
case should be dismissed. (ECF No. 27, PageID.504.)
The court can dismiss an action when Colorado River applies. The Supreme
Court affirmed dismissal of the complaint in Colorado River, 424 U.S. at 820-21, and
has stated that the use of a stay or dismissal is little different. Moses H., 460 U.S. at 28
(“We can say, however, that a stay is as much a refusal to exercise federal jurisdiction
as a dismissal.”). The Sixth Circuit has affirmed dismissal under Colorado River on
several occasions. E.g., White v. Morris, 972 F.2d 350 (Table), at *2 (6th Cir. Aug. 6,
1992); Preston v. Eriksen, 106 F.3d 401 (Table), at *4 (Jan. 14, 1997).
However, the Sixth Circuit has held that the “best way to effectuate Colorado
River abstention” is through a stay, not dismissal. Bates, 122 F. App’x at 809. A
dismissal would impose additional costs on the plaintiff if he or she seeks to refile; a
stay, by contrast, does not impose additional burdens on the court. Id. Courts in this
district have described a stay as the “preferred course of action.” Taylor v. Campanelli,
29 F. Supp. 3d 972, 981 (E.D. Mich. 2014) (Cox, J.) (quoting Timeco Mach. Works v. S
& M Machinery Sales Corp., 2014 WL 1308511, at *4 (E.D. Mich. Mar. 31, 2014)
(Rosen, J.)).
Thus, although the court has the authority to dismiss Plaintiff’s complaint, it will
stay Plaintiff’s federal claim. Davis’s case will resolve whether Defendants violated state

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law and whether they should be enjoined from mailing absentee ballot applications for
the November general election. (ECF No. 27-6, PageID.553-65.) Plaintiff’s claims and
her request for an injunction will be resolved by the state court litigation, and she can
move to lift the stay after the state litigation is complete if needed.
C. Plaintiff’s Motion for Leave to File a Reply Brief
In its orders to show cause, the court stated that “no reply brief shall be
presented.” (ECF No. 22, PageID.363; ECF 24, PageID.403.) Plaintiff moves to file a
reply brief, arguing that cases before the Michigan Court of Claims, brought by Robert
Davis against the Michigan Secretary of State, are not parallel to this action. (ECF No.
28, PageID.578-85.) Plaintiff requests an additional five pages to “argue[] in greater
detail [those] legal arguments.” (Id., PageID.585.)
First, Plaintiff’s motion for leave includes eight pages of substantive legal
arguments against abstention. (Id., PageID.578-85.) The court does not believe an
additional five pages is necessary. What is more, local rules state that “[t]he text of a
reply brief, including footnotes and signatures, may not exceed 7 pages.” E.D. Mich.
L.R. 7.1(d)(3)(B).
Second and more importantly, Plaintiff’s motion and her proposed reply do not
discuss Davis’s case before the Michigan Court of Appeals that challenges Defendants’
mailing of unsolicited absentee ballot applications. Davis, Case No. 354315. That case
independently justifies abstention. See supra Section I.B. A reply brief is unnecessary
and Plaintiff’s motion will be denied.

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II. CONCLUSION
This case presents novel and complex state law issues. The court will decline
supplemental jurisdiction over Plaintiff’s state claims and will stay her federal claim
under the Colorado River doctrine. The predominant legal issues in this case will be
resolved in pending state court litigation. Accordingly,
IT IS ORDERED that Plaintiff’s state law claims (Count II and Count III) are
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED the Plaintiff’s federal claim (Count I) is STAYED
pending further order from the court.
Finally, Plaintiff’s “Emergency Motion for Leave to File [a] Reply Brief” (ECF No.
28) is DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

/

Dated: September 9, 2020
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, September 9, 2020, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
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