The Estate of JOANN MATOUK ROMAIN, deceased v. The CITY OF GROSSE POINTE FARMS et al

Filing 120

OPINION and ORDER Denying Defendants' 111 Motion to Dismiss Plaintiffs' Second Amended Complaint. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE ESTATE OF JOANN MATOUK
ROMAIN and MICHELLE MARIE ROMAIN,
Plaintiffs,
Civil Case No. 14-12289
Honorable Linda V. Parker

v.

THE CITY OF GROSSE POINTE FARMS,
DANIEL JENSEN, HOLLY KRIZMANICH,
JACK PATTERSON, ANDREW ROGERS,
RICHARD A. ROSATI, MICHAEL MCCARTHY,
KEITH COLOMBO, ANTONIO TRUPIANO,
GEOFFREY MCQUEEN, WELSEY KIPKE,
JOHN WALKO, FRANK ZIELINSKI, RICKY
GOOD, THE CITY OF GROSSE POINTE
WOODS, ANDREW PAZUCHOWSKI, JOHN
KOSANKE, JOHN ROSS, KEITH WASZAK,
DENNIS WALKER, MARTIN MITCHELL,
ANTHONY CHALUT, OFFICER JOHN DOE,
TIMOTHY J. MATOUK, JOHN DOE, and
KILLER JOHN DOE,
Defendants.
_____________________________________/
OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO
DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT
This matter is now before the Court on a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b), filed by Defendants City of Grosse Pointe
Farms, Daniel Jensen, Holly Krizmanich, Jack Patterson, Andrew Rogers, Richard
Rosati, Michael McCarthy, Keith Colombo, Antonio Trupiano, Geoffrey

McQueen, Wesley Kipke, John Walko, Frank Zielinski, and Ricky Good (hereafter
“Grosse Pointe Farms Defendants”). The motion has been fully briefed. The
Court finds the facts and legal arguments sufficiently presented in the parties’
pleadings and therefore is dispensing with oral argument pursuant to Eastern
District of Michigan Local Rule 7.1(f). For the reasons that follow, the Court is
denying the Grosse Pointe Farms Defendants’ motion to partially dismiss
Plaintiffs’ Second Amended Complaint.
Procedural Background
JoAnn Matouk Romain (“Ms. Romain”), through her personal representative
Michelle Marie Romain, filed this lawsuit on June 10, 2014, claiming that
Defendants murdered and/or conspired to cover up the murder of Ms. Romain.
Plaintiffs filed an Amended Complaint on July 16, 2014, in which they asserted the
following claims against Defendants: (I) denial of right of access to the courts
under 42 U.S.C. § 1983; (II) conspiracy to deny Plaintiffs their constitutional rights
under 42 U.S.C. § 1985; (III) “state created danger” under 42 U.S.C. § 1983; (IV)
violation of the Freedom of Information Act (“FOIA”); (V) spoliation of evidence;
(VI) violations of substantive and procedural due process and the Fair and Just
Treatment Doctrine under the Michigan Constitution; (VII) municipal liability
under 42 U.S.C. § 1983; and (VIII) wrongful death. The Grosse Pointe Farms
Defendants filed answers to Plaintiffs’ Amended Complaint on September 8, 2014.
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(ECF Nos. 55-68.) The remaining defendants filed motions to dismiss. (ECF Nos.
77, 82.)
On March 18, 2015, this Court issued an opinion and order granting in part
and denying in part the motions to dismiss. (ECF No. 91.) The Court found that
Plaintiffs failed to plead the essential elements of their denial of access to the
courts claim under 42 U.S.C. § 1983, but gave them the opportunity to amend their
pleading to remedy the defects identified by the Court. The Court dismissed
Plaintiffs’ FOIA claim (Count IV), spoliation of evidence claim (Count V), and
claim alleging due process violations under the Michigan Constitution (Count VI),
in their entirety (i.e., against all defendants). The Court also dismissed Plaintiffs’
wrongful death claim (Count VIII) against those defendants associated with the
City of Grosse Pointe Woods (“the Grosse Pointe Woods Defendants”): the City of
Grosse Pointe Woods, Andrew Pazuchowski, John Kosanke, John Ross, Keith
Waszak, Dennis Walker, Martin Mitchell, and Anthony Chalut. Specifically, the
Court found that “[t]he facts alleged in Plaintiffs’ Amended Complaint do not
suggest that the Grosse Pointe Woods Defendants’ conduct was the cause of Ms.
Romain’s death.” (Id. at 40.) The Court dismissed all of Plaintiffs’ claims against
two defendants, Martin Mitchell and Dennis Walker, and therefore dismissed them
from this action completely.

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On March 31, 2015, Plaintiffs filed a Second Amended Complaint. (ECF
No. 93.) In their amended pleading, Plaintiffs list only those claims and
defendants remaining after the Court’s March 18, 2015 ruling. In the factual
background section of the pleading, however, Plaintiffs do claim that Defendants
engaged in spoliation of evidence. (Id. ¶ 47(d).) The Grosse Pointe Farms
Defendants now ask the Court to “dismiss” Plaintiffs’ spoliation of evidence
reference and Plaintiffs’ wrongful death claim. With respect to the latter, the
Grosse Pointe Farms Defendants argue that the Court already has held that the
facts alleged in Plaintiffs’ pleading are insufficient to state a wrongful death claim
against any defendant but Defendant Timothy J. Matouk (“Defendant Matouk”).
Alternatively, the Grosse Pointe Farms Defendants contend that the claim is
subject to dismissal for failure to plead in avoidance of immunity under Michigan
law.
Analysis
Spoliation of Evidence
The Grosse Pointe Farms Defendants’ request with respect to Plaintiffs’
reference to spoliation of evidence is more properly brought as a motion to strike
under Federal Rule of Civil Procedure 12(f), than as a motion to dismiss under
Rule 12(b)(6), as Plaintiffs do not assert a spoliation of evidence claim in their
Second Amended Complaint. Rule 12(f) states that “[t]he court may strike from a
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pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f).
“While this Court has wide discretion to strike ‘redundant, immaterial,
impertinent, or scandalous’ material from a pleading, courts tend to disfavor
motions to strike and they are infrequently granted, because a motion to strike
‘proposes a drastic remedy.’ ” L and L Gold Assoc., Inc. v. American Cash for
Gold, LLC, No. 09-10801, 2009 WL 1658108, at *1 (E.D. Mich. June 10, 2009)
(quoting Stanbury Law Firm v. IRS, 221 F.3d 1059, 1063 (8th Cir. 2000)). “An
allegation is ‘impertinent’ or ‘immaterial’ when it is not relevant to the issues
involved in the action. ‘Scandalous’ generally refers to any allegation that
unnecessarily reflects on the moral character of an individual or states anything in
repulsive language that ‘detracts from the dignity of the court.’ ” Id. (quoting
Cobell v. Norton, 225 F.R.D. 1, 5 (D.D.C. 2003) (additional quotation marks and
citations omitted)).
Plaintiffs’ reference to spoliation of evidence in paragraph 47(d) of their
Second Amended Complaint is neither redundant nor scandalous. The Court finds
the allegation relevant to the issues involved in the action. As such, the Court finds
no basis on which to strike this portion of Plaintiffs’ pleading.

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Wrongful Death
In their First Amended Complaint, Plaintiffs did not specify whether their
wrongful death claim was brought under § 1983 or state law. (See ECF No. 3
¶¶ 107-09.) The subsequently filed pleadings in connection with Defendant
Matouks’ and the Grosse Pointe Woods Defendants’ motions to dismiss did not
provide further elucidation with respect to the basis of the claim. When ruling on
the motions, however, the Court assumed the claim was brought under Michigan’s
wrongful death statute.1 In their Second Amended Complaint, however, Plaintiffs
clearly identify their wrongful death claim as being brought under § 1983 against
only the Grosse Pointe Farms Defendants, Defendant Matouk, Defendant John
Doe, and Defendant Killer John Doe.2 (See ECF No. 93 at ¶¶ 81-83.) Thus the
Court will evaluate the claim as such in considering the present motion to dismiss.3

The Court made this assumption because Plaintiffs referred to § 1983 expressly in
the title of other counts which were brought under the statute. (See ECF No. 3.)
2
Because Plaintiffs clearly identify in their Second Amended Complaint that their
claim is brought under § 1983, the Court fails to understand the Grosse Pointe
Farms Defendants’ argument in their reply brief that Plaintiffs waived their
“argument” that the claim is brought under federal rather than state law. (See ECF
No. 119 at Pg ID 1849.)
3
This is a distinction without a difference, however, because whether brought
under § 1983 or state law, wrongful death is not a separate cause of action. See
Frontier Ins. Co. v. Blaty, 454 F.3d 590, 598-600 (6th Cir. 2006) (explaining that,
pursuant to 42 U.S.C. § 1988, Michigan’s wrongful death statute provides the
damages available when a civil rights violation results in death and that Michigan’s
wrongful death statute is derivate and thus does not provide an independent cause
of action); Kane v. Rohrbacher, 83 F.3d 804, 805 (6th Cir. 1996) (discussing
(Cont’d . . .)
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Whether brought under Michigan’s wrongful death statute or § 1983,
however, damages for wrongful death are available only where the defendant’s
unlawful conduct (a constitutional violation in the case of § 1983) was a cause of
the death. See, e.g., Cameron v. City of Pontiac, Mich., 813 F.2d 782, 782 (6th
Cir. 1987) (holding that, even if the decedent had been seized by unreasonable
means, his estate could not recover unless the constitutional violation caused the
death). “Traditional tort concepts of causation inform the causation inquiry on a
§ 1983 claim.” Powers v. Hamilton Cnty. Public Defender Comm’n, 501 F.3d 592,
608 (6th Cir. 2007), cert. denied 555 U.S. 813 (2008) (citation omitted). This
means that for § 1983, like Michigan’s wrongful death statute, the misconduct
must be the cause in fact and legal or proximate cause of the alleged injury. See
Halliw v. Sterling Heights, 627 N.W.2d 581, 588 (Mich. 2001) (defining causation

Michigan court decisions holding “that a wrongful death action is derivative, rather
than independent, of a decedent’s underlying tort action.”). Instead, it is simply a
mechanism for determining whether an action under § 1983 for injury to the person
survives the person’s death and for recovering damages when the alleged wrongful
conduct resulted in death. See Frontier Ins. Co., 454 F.3d at 598-604 (looking to
Michigan law to determine damages recoverable under § 1983 for death of injured
person); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974) (looking to Kentucky law to
determine whether civil rights action survived the death of the injured person and
could be maintained by his legal representative); see also Mitchell v. City of
Warren, No. 09-11480, 2012 WL 424899, at *6 (E.D. Mich. Feb. 9, 2012) (“It is
clear that § 1988 allows § 1983 plaintiffs to ‘include remedies available under state
statutes’ like the Wrongful Death Act as a means of collecting damages in
circumstances like this where [the p]laintiff is a decedent’s estate and the decedent
perished as a result of constitutional violations.”).
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for purposes of a wrongful death claim under Michigan law); Horn v. Madison
Cnty. Fiscal Court, 22 F.3d 653, 659 (6th Cir. 1994) (citing Doe v. Sullivan Cnty.,
Tenn., 956 F.2d 545, 550 (6th Cir.), cert. denied, 506 U.S. 864 (1992) (defining
§ 1983’s causation requirement)).
The Sixth Circuit has described the “cause in fact” requirement as follows:
Cause in fact is typically assessed using the “but for” test, which
requires [the court] to imagine whether the harm would have occurred
if the defendant had behaved other than it did. . . . “Conduct is the
cause in fact of a particular result if the result would not have
occurred but for the conduct. Similarly, if the result would have
occurred without the conduct complained of, such conduct cannot be a
cause in fact of that particular result.”
Powers, 501 F.3d at 608 (quoting Butler v. Dowd, 979 F.2d 661, 669 (8th Cir.
1992)). The Powers court then explained proximate cause:
Courts have framed the § 1983 proximate-cause question as a matter
of foreseeability, asking whether it was reasonably foreseeable that
the complained of harm would befall the § 1983 plaintiff as a result of
the defendant’s conduct. Even if an intervening third party is the
immediate trigger for [the] plaintiff’s injury, the defendant may still
be proximately liable, provided that the third party’s actions were
foreseeable.
Id. at 609.
The Grosse Pointe Farms Defendants first argue that “this Court has already
recognized” that the allegations in Plaintiffs’ complaint are insufficient to satisfy
the causation element to state a plausible claim for wrongful death. In fact,
however, the Court only held that the allegations were insufficient to state a
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wrongful death claim against the Grosse Pointe Woods Defendants. The Court
reached this conclusion because the Grosse Pointe Woods Defendants were not
involved in the “investigation” surrounding Ms. Romain’s disappearance until two
days after she went missing. The Grosse Pointe Farms Defendants, in comparison,
were involved from the beginning-- and perhaps even before Ms. Romain’s
abandoned car was claimed to have been found in the parking lot of St. Paul
Catholic Church. Plaintiffs allege sufficient facts in their Second Amended
Complaint to suggest that Ms. Romain’s alleged murder would not have come
about but for the Grosse Pointe Farms Defendants’ conduct and that her alleged
murder was a foreseeable (if not planned) consequence of their conduct.
The Grosse Pointe Farms Defendants’ argument based on Michigan’s
governmental tort immunity statute is inapplicable, as Plaintiffs’ Second Amended
Complaint makes clear that their claim is brought under § 1983. See Palmer v.
City of Monticello, 31 F.3d 1499, 1504 & n.5 (10th Cir. 1994) (citing cases holding
that a § 1983 claim is not restricted by the contours of privilege and immunity
under state law); see also Howlett v. Rose, 496 U.S. 356, 375 (1990) (“The
elements of, and the defenses to, a federal cause of action are defined by federal
law.”) As explained in Palmer:
“Conduct by persons acting under color of state law which is
wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized
by state law. A construction of the federal statute which permitted a
state immunity defense to have controlling effect would transmute a
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basic guarantee into an illusory promise; and the supremacy clause of
the Constitution insures that the proper construction may be
enforced. . . . The immunity claim raises a question of federal law.”
Id. at 1504 (quoting Martinez v. California, 444 U.S. 277, 284 n.8 (1980) (omitting
additional quotation marks and citations)). In short, Michigan’s governmental
immunity from tort liability statute is inapplicable to Plaintiffs’ § 1983 wrongful
death claim and thus Plaintiffs’ claim is not subject to dismissal for failure to plead
in avoidance of immunity under the statute.
Conclusion
For the reasons stated, the Court concludes that Plaintiffs’ reference to
spoliation of evidence and their wrongful death claim are not subject to dismissal.
Accordingly,
IT IS ORDERED, that the Grosse Pointe Farms Defendants’ motion to
dismiss [ECF No. 111] is DENIED.

s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 31, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, July 31, 2015, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager
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