Fowler et al v. Johnson

Filing 54

OPINION and ORDER. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ADRIAN FOWLER and KITIA HARRIS,
Plaintiffs,
Civil Case No. 17-11441
Honorable Linda V. Parker

v.
RUTH JOHNSON, Michigan Secretary
of State,
Defendant.
___________________________________/

OPINION AND ORDER
This is a putative class action lawsuit challenging Defendant’s practice,
pursuant to Michigan Compiled Laws § 257.321a, of suspending the driver’s licenses
of individuals who fail to pay court-ordered fines, costs, fees and assessments
resulting from traffic violations. The matter presently is before the Court on remand
from the Sixth Circuit Court of Appeals to address Plaintiffs’ standing. See Order,
Fowler v. Johnson, Case Nos. 17-2504/18-1089 (6th Cir. Feb. 7, 2018).
Factual Background
Plaintiffs Adrian Fowler and Kitia Harris are Michigan residents who claim to
have had their driver’s licenses suspended pursuant to Michigan Compiled Laws §
257.321a. While living in Georgia from 2008 to 2012, Ms. Fowler was issued three
tickets for civil traffic infractions, which she was not able to pay. (Fowler Decl. ¶ 4;
ECF No. 42-2 at Pg ID 676.) When she moved back to Michigan in 2012, Ms. Fowler

tried to renew her Michigan driver’s license and was informed that it was suspended
because she had not paid her Georgia court debts. (Id. ¶ 5.) Defendant explains that
Michigan law precludes the Secretary of State from issuing a driver’s license to
someone whose license is revoked or suspended in another state. See Mich. Comp.
Laws § 257.303(1). According to Defendant, Georgia suspended Ms. Fowler’s
license for nonpayment of court debts.
In Winter 2013, a police officer stopped Ms. Fowler for speeding in Ferndale,
Michigan, and issued her a citation for speeding and driving while license suspended
(“DWLS”). (Fowler Decl. ¶ 6, ECF No. 42-2 at Pg ID 676.) The total cost of the
ticket was almost $600. (Id.) According to Ms. Fowler, she subsequently went to the
Ferndale courthouse to report that she was unable to pay the $600 and was told to
return in three weeks with the full amount or a warrant would be issued for her arrest.
(Id. ¶ 7.) Ms. Fowler has been unable to pay the amount owed. (Id. ¶ 11.)
In October 2016, a Ferndale police officer stopped Ms. Harris and issued her a
ticket for “impeding traffic.” (Harris Decl. ¶ 7, ECF No. 42-4 at Pg ID 682.)
According to Ms. Harris, the officer instructed her to call a number to see how much
she owed for the ticket. (Id.) Ms. Harris called the number a couple of days later and
was told the cost was $150. (Id. ¶ 8.) Unable to pay that amount, Ms. Harris asked
the person on the phone if she could be placed on a payment plan. (Id. ¶ 8.)
According to Ms. Harris, she was told no and that she had to pay the amount in full.

2

(Id.) Ms. Harris was further informed that if she waited too long to pay, her license
would be suspended. (Id.) Ms. Harris avers that she was never told to come to court
to discuss a payment plan or provided other alternatives to paying the fine in full. (Id.
¶ 9.)
About a month later, Ms. Harris received a notice in the mail reflecting that the
amount she owed had increased and that her license had been suspended because of
her failure to pay the fine. (Id. ¶ 10.) Ms. Harris claims that she received three
additional suspensions of her license for failure to pay fines in November 2017. (Id.
¶ 12.)
Defendant informs the Court that these additional suspensions were not due to
Ms. Harris’ failure to pay traffic fines, but rather her failure to appear in court in
response to traffic citations. (See ECF No. 25-2 at Pg ID 300-01.) These citations
were accumulated after this lawsuit was filed. In the Sixth Circuit and here,
Defendant has argued that these additional suspensions for failure to appear—rather
than failure to pay—“remove [Ms. Harris’] situation from the terms of [this Court’s]
injunctive order because now there are independent grounds for suspending her
driving privileges.” (See, e.g., ECF No. 25 at Pg ID 290-91.)
Defendant also has asserted that when Ms. Harris contacted the Ferndale court
regarding her October 2016 citation, she in fact received an extension to make a
payment by November 7, 2016. Defendant claims Ms. Harris also was informed that

3

any payment would result in another extension on the balance and that her license
would not be suspended. (See ECF No. 33-5.) Defendant relates that Ms. Harris failed
to make any payment, which resulted in a default judgment on November 14, 2016.
According to Defendant, if Ms. Harris had again contacted the court, the court would
have made a payment arrangement with her to avoid the suspension of her license.
(Id.)
Defendant also offers the affidavit of Linda Carroll, Court Administrator for the
Ferndale court, who provides:
For civil infractions, defendant[s] that ask are given a payment extension
for 2 weeks. They are told that if they bring in a payment, preferably
half, we will grant another 2 week extension. If they are unable to pay in
full at that time, we will give them another extension. We will give an
extension until they are paid in full. Very often, we will give the
defendant several extensions. Anyone that calls in and makes any type
of payment will always be granted an extension.
(See Carroll Aff. ¶ 4, ECF No. 25-4 at Pg ID 307.) Ms. Carroll further attests that the
court allows defendants to enter into payment plans for fees that cannot be waived and
that such plans can be started for as little as a dollar. (Id. ¶¶ 6-7, Pg ID 308.) She
further states that individuals are informed that they can raise their inability to pay at a
show cause hearing. (Id. ¶ 8, Pg ID 308.)
Procedural Background
On the day they initiated this action, Plaintiffs also filed a motion for
preliminary injunction to enjoin Defendant from suspending the driver’s licenses of

4

individuals unable to pay their traffic debt. Concluding that Plaintiffs are likely to
prevail on their claim that Defendant violated their procedural due process rights by
suspending their driver’s licenses without first affording them an “ability to pay
hearing”, the Court granted Plaintiff’s motion and entered a preliminary injunction on
December 14, 2017.1 (See ECF No. 21.) Specifically, the Court ordered “that
Defendant is enjoined from enforcing Michigan Compiled Laws § 257.321a to
suspend the driver’s licenses of people unable to pay their traffic debt.” (Id. at Pg ID
268.)
Defendant appealed and asked the Sixth Circuit Court of Appeals to stay the
injunction. On December 28, 2017, the Sixth Circuit issued an order stating that
Defendant had “not demonstrated a strong likelihood of success on the merits of its
challenge to the district court’s ruling on procedural due process.” (ECF No. 30 at Pg
ID 450.) Nevertheless, the court of appeals stayed the injunction for thirty days and
remanded the matter “for the limited purpose of modifying the injunctive relief
granted … to provide direction to the State as to the type of process required to
comply with the court’s order.” (Id. at 450-51.)

In its December 14, 2017 decision, the Court concluded that Plaintiffs are not likely
to prevail on the claims in their Complaint alleging other constitutional violations.
(See ECF No. 21.)
5
1

In response to the Sixth Circuit’s remand order, this Court issued an order on
January 5, 2018, clarifying its injunction. (ECF No. 31.) The order stated:
To be clear, in its December 14, 2017 decision, this Court
intended to enjoin Defendant from suspending any further driver’s
licenses of individuals because of their inability to pay their traffic debt
until the State: (1) provides drivers a hearing where they have the
opportunity to demonstrate their inability to pay; (2) provides reasonable
notice to drivers of the hearing; and (3) institutes alternatives to full
payment for those unable to pay (e.g., realistic payment plans or
volunteer service).
(Id. at Pg ID 452-53, emphasis in original.) The Court further scheduled a hearing to
address any questions or concerns the parties may have had concerning the intended
modification to the preliminary injunction order. (Id. at Pg ID 453.)
Prior to the hearing, Defendant filed a supplemental brief presenting evidence
to convince the Court that Plaintiffs in fact “were provided well established and
readily available procedural due process in state court that they willfully ignored” and
that “[t]heir suspensions resulted from conscious failure to appear as required by law,
and not the alleged inability to pay.” (ECF No. 33 at Pg ID 465.) Defendant also
presented evidence of Ms. Harris’ November 2017 infractions and suspensions for
failure to appear, arguing that these infractions deprived her of Article III standing.
This Court ultimately concluded that the Sixth Circuit’s remand order did not
permit it to consider new evidence and revisit the merits of Plaintiffs’ procedural due

6

process claim. On January 24, 2018, the Court entered an Amended Preliminary
Injunction that enjoined Defendant
from suspending any further driver’s licenses of individuals because of
nonpayment of any fine, cost, fee or assessment under Michigan
Compiled Laws § 257.321a unless and until Defendant or another entity:
(1) offers drivers the option to request a hearing where they have the
opportunity to demonstrate their inability to pay a fine, cost, fee and/or
assessment; () provides a hearing when requested[]; (3) provides
reasonable notice to drivers of the hearing opportunity; and (4) institutes
alternatives to full payment for those unable to pay (e.g., realistic
payment plans or volunteer service.)
(ECF No. 35 at Pg ID 647, footnote omitted and emphasis in original.)
Defendant filed an appeal and an emergency motion to stay. In the motion,
Defendant argued that Plaintiffs lack standing because, even if they had suspensions
for failure to pay, they also had suspensions for failure to appear in state court.
According to Defendant, Plaintiffs could not benefit from the injunction as their
licenses had been suspended on grounds alternative to failure to pay.
On February 7, 2018, the Sixth Circuit entered an order remanding the matter
to address standing. (ECF No. 40.) The order reads, in relevant part:
The Secretary has challenged the standing of the plaintiffs to
pursue the claims alleged in this action. Specifically, the Secretary has
submitted evidence indicating that Plaintiff Kitia Harris contacted the
state court after she was issued a traffic ticket. Although she was granted
an extension of time to pay her traffic fine and offered a payment plan,
Harris allegedly failed to make any payments to the court or otherwise
contact the court again concerning the payment plan. And the district
court previously noted concerns about the standing of Plaintiff Adrian

7

Fowler. Because of the unresolved factual issues regarding standing, the
court’s jurisdiction over this case is unclear.
(Id.)
On remand, Plaintiffs filed a “Brief and Declaration in Support of Standing” to
which they attach amended declarations from Ms. Harris and Ms. Fowler. (EFC No.
42.) Defendant responded to Plaintiffs’ filing, Plaintiffs filed a reply brief, and
Defendant filed a sur-reply. (ECF Nos. 46, 50, 52.) Plaintiffs also filed a motion
seeking leave to file an amended complaint and a motion for class certification. (ECF
No. 43.) The parties have fully briefed that motion. (ECF Nos. 51, 53.) Further,
Defendant moved to strike Plaintiffs’ motion, arguing that the Court lacks jurisdiction
to entertain the motion under the Sixth Circuit’s limited remand order. (ECF No. 44.)
Defendant’s motion to strike also has been fully briefed. (ECF Nos. 45, 47.)
Standing2
“‘Under Article III of the Constitution, federal courts may adjudicate only
actual, ongoing cases or controversies.’” Kentucky v. U.S. ex rel. Hagel, 759 F.3d
588, 595 (6th Cir. 2014) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477
(1990)). “Courts have explained the ‘case or controversy’ requirement through a

2

“[O]nly one plaintiff needs to have standing in order for the suit to move forward.”
Parsons v. United States Dep’t of Justice, 801 F.3d 701, 710 (2015) (citing Horne v.
Flores, 557 U.S. 433, 446-47 (2009); Massachusetts v. EPA, 549 U.S. 497, 518
(2007)). The Court therefore is focusing on Ms. Harris’ standing, as it already has
independently raised concerns regarding Ms. Fowler’s standing.
8

series of ‘justiciability doctrines,’ including, ‘perhaps the most important,’ that a
litigant must have ‘standing’ to invoke the jurisdiction of the federal courts.” Parsons
v. United States Dep’t of Justice, 801 F.3d 701, 709-10 (6th Cir. 2015) (quoting Nat’l
Rifle Assoc. of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997)).
An actual case or controversy also must persist throughout the entire litigation.
See Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564, 567 (6th Cir. 2013). If
developments during the course of litigation eliminate the plaintiff’s personal stake,
the case generally must be dismissed as moot. Id. (citing Church of Scientology v.
United States, 506 U.S. 9, 12 (1992)). A case may become moot “when the issues
presented are no longer live or the parties lack a legally cognizable interest in the
outcome.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 410 (1980) (internal
quotation marks and citation omitted). This latter “personal stake requirement” is a
corollary to the rule that federal courts lack the power to “decide questions that cannot
affect the rights of the litigants in the case before them.” North Carolina v. Rice, 404
U.S. 244, 246 (1971).
The Supreme Court has identified the following elements necessary to establish
standing:
First, [the p]laintiff must have suffered an injury in fact—an invasion of
a legally-protected interest which is (a) concrete and particularized; and
(b) actual or imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the conduct
complained of—the injury has to be fairly traceable to the challenged

9

action of the defendant, and not the result of the independent action of
some third party not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and
quotation marks omitted). “The party invoking federal jurisdiction bears the burden
of establishing these elements.” Id. at 561.
Defendant challenges Ms. Harris’ standing to bring this lawsuit based on
evidence it claims shows she was afforded due process before her license was
suspended for failure to pay. Significantly, in her declaration, Ms. Harris offers a very
different version of the events leading to her license suspension. Defendant asserts
that Ms. Harris also lacks standing as a result of infractions she incurred after the
filing of this lawsuit resulting in license suspensions for failure to appear in court.
Defendant is essentially asserting a factual attack on the subject-matter jurisdiction
alleged in Plaintiffs’ Complaint.
“When a factual attack, also known as a ‘speaking motion,’ raises a factual
controversy, the district court must weigh the conflicting evidence to arrive at the
factual predicate that subject-matter does or does not exist.” Gentek Bldg. Prods., Inc.
v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat’l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). “In its review, the
district court has wide discretion to allow affidavits, documents, and even a limited

10

evidentiary hearing to resolve jurisdictional facts.” Id. “[W]hen a defendant produces
evidence challenging the factual existence of standing, a plaintiff must generally
prove standing with evidence, even at the motion-to-dismiss stage.” Harris v.
Lexington-Fayette Urban Cty. Gov’t, 685 F. App’x 470, 472 (6th Cir. 2017) (citing
Taylor v. KeyCorp., 680 F.3d 609, 613 (6th Cir. 2012); Superior MRI Servs., Inc. v.
All Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015)). There is an exception
to this rule, however.
“[A] district court engages in a factual inquiry regarding the complaint’s
allegations only when the facts necessary to sustain jurisdiction do not implicate the
merits of the plaintiff’s claim.” Gentek Bldg. Prods., 491 F.3d at 330 (citing Garcia
v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997)). As the Sixth
Circuit more recently stated:
If “an attack on subject matter jurisdiction … implicates an element of
the cause of action,” we confine our jurisdictional inquiry to the
allegations in the plaintiff’s complaint, no matter what evidence a
defendant has submitted in attempting to disprove jurisdiction.
Harris, 685 F. App’x at 472 (citing Gentek Bldg. Prods., 491 F.3d at 330; Xerox
Corp. v. Genmoora Corp., 888 F.2d 345, 350-52 (5th Cir. 1989)). If the jurisdictional
attack “implicates an element of the cause of action,” the Sixth Circuit instructs
district courts to “‘find that jurisdiction exists and deal with the objection as a direct
attack on the merits of the plaintiff’s claim.’” Gentek Bldg. Prods., 491 F.3d at 330

11

(emphasis in original) (quoting Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir.
1981)). Stated differently, “[w]hen the basis of federal jurisdiction is intertwined with
the plaintiff’s federal cause of action, the court should assume jurisdiction over the
case and decide the case on the merits.” Moore v. Lafayette Life Ins. Co., 458 F.3d
416, 444 (6th Cir. 2006) (citing Bell v. Hood, 327 U.S. 678, 681-82 (1946)).
Ms. Harris claims that Defendant denied her procedural due process before
suspending her driver’s license. Defendant challenges Ms. Harris’ standing in part by
presenting evidence to show that Ms. Harris in fact was informed of her right to a
hearing to raise her indigency and seek an alternative to full payment of her traffic
debt. According to Defendant, Ms. Harris simply failed to appear and take advantage
of that opportunity. Hence, Defendant’s attack on standing implicates the elements of
Ms. Harris’ procedural due process claim. In other words, Defendant’s factual attack
on standing is intertwined with the merits of Ms. Harris’ § 1983 claim. Under these
circumstances, Sixth Circuit precedent instructs that jurisdiction should be assumed.
Defendant also challenges Ms. Harris’ standing, however, on her accumulation
of additional infractions after this lawsuit was filed which resulted in her driver’s
license being suspended for failure to appear in court rather than her failure to pay her
traffic debt. Defendant argues that Ms. Harris’ injury (that is, suspension of her
license) therefore cannot be redressed through the relief she seeks in this litigation. In
other words, even if the Court held that Defendant violated the procedural due process

12

clause by suspending Ms. Harris’ license for failure to pay her traffic debt without
affording her an ability to pay hearing, Defendant maintains that Ms. Harris’ failure to
appear in court provides additional and separate grounds for suspending her license.
As set forth earlier, redressability is the third prong of the Article III standing
test. See Lujan, 504 U.S. at 561. “[T]he relief the plaintiff is seeking must provide
redress for the injury.” Parsons, 801 F.3d at 715. “An injury is redressable if a court
order can provide ‘substantial and meaningful relief.’” Id. (quoting Larson v. Valente,
456 U.S. 228, 243 (1982)). “‘A plaintiff satisfies the redressability requirement when
he shows that a favorable decision will relieve a discrete injury to himself. He need
not show that a favorable decision will relieve his every injury.’” Id. (quoting Larson,
456 U.S. at 243 n.15) (emphasis in original); see also Massachusetts v. EPA, 549 U.S.
497, 525 (2007).
Here, a favorable decision would remedy the violation of Plaintiffs’ procedural
due process rights caused by the suspension of their licenses for failure to pay before
they were afforded ability to pay hearings. A favorable decision also puts Plaintiffs
one step closer to regaining their driving privileges. The fact that there may remain
other impediments for Plaintiffs regaining those privileges does not render the injury
complained of—that is, the violation of their due process rights—non-redressable for
standing purposes.

13

For these reasons, the Court concludes that Ms. Harris has standing to pursue
the due process claim alleged in the Complaint.
Plaintiffs’ Motion for Leave to File Amended Complaint and Motion for Class
Certification and Defendant’s Motion to Strike
On remand, Plaintiffs filed a motion for leave to file an amended complaint to
add two additional named plaintiffs and hopefully strengthen their position on
standing. Plaintiffs also seek leave to file a motion for class certification. Defendant
moves to strike Plaintiffs’ motion, arguing that the Court lacks jurisdiction to decide it
under the Sixth Circuit’s “limited” remand order. Defendant also opposes the motion,
arguing that Plaintiffs’ proposed amendment would be futile and that it is premature
to decide class certification.
“‘As a general rule, an effective notice of appeal divests the district court of
jurisdiction over the matter forming the basis for the appeal.’” Zundel v. Holder, 687
F.3d 271, 282 (6th Cir. 2012) (quoting NLRB v. Cincinnati Bronze, Inc., 829 F.2d
585, 588 (6th Cir. 1987)). “However, ‘an appeal from an order granting or denying a
preliminary injunction does not divest the district court of jurisdiction to proceed with
the action on the merits.’” Id. (quoting Moltan Co. v. Eagle-Picher Indus., Inc., 55
F.3d 1171, 1174 (6th Cir. 1995)); see also 11A Wright & Miller, Fed. Practice and
Proc. § 2962, at 438-39 (2d ed. 1995) (“An appeal from the grant or denial of a
preliminary injunction does not divest the trial court of jurisdiction or prevent it from

14

taking other steps in the litigation while the appeal is pending.”). “The district court
retains some jurisdiction to continue deciding other issues during the pendency of an
interlocutory appeal.” Zundel, 687 F.3d at 282. (citations omitted).
As such, while the appeal in the present matter may preclude this Court from
revisiting Plaintiffs’ request for a preliminary injunction, the Court concludes that it
does not prevent Plaintiffs from filing and the Court from deciding a motion to amend
the complaint or to certify a class. The Court therefore rejects Defendant’s argument
that Plaintiffs’ motion should be stricken. Moreover, even if the Court lacked
authority to decide the motion because of Defendant’s appeal, Federal Rule of Civil
Procedure 62.1 provides an avenue for a district court to render an indicative ruling in
that instance.3
Rule 15 of the Federal Rules of Civil Procedure instructs district courts to
“freely grant[]” leave to amend “where justice so requires.” Fed. R. Civ. P. 15(a)(2).

3

Rule 62.1 provides:
If a timely motion is made for relief that the court lacks authority to
grant because of an appeal that has been docketed and is pending, the
court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial issue.

Fed. R. Civ. P. 62.1(a)
15

This is because, as the Supreme Court has advised, “[i]f the underlying facts or
circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to
be afforded an opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S.
178, 182 (1962). However, a motion to amend a complaint should be denied if the
amendment is brought in bad faith or for dilatory purposes, results in undue delay or
prejudice to the opposing party, or would be futile. Id. In the case of futility,
“[a]mendment of a complaint is futile when the proposed amendment would not
permit the complaint to survive a motion to dismiss.” Miller v. Calhoun Cty., 408 F.3d
803, 817 (6th Cir. 2005).
Defendant argues that amending Plaintiffs’ Complaint to add Nadiyah Jones
and Jeanette Rankin as plaintiffs would be futile because Ms. Jones lacks standing and
Ms. Rankin’s claims are time-barred.4 Specifically, Ms. Jones’ driver’s license was
suspended because she owed approximately $626 for an unpaid traffic debt. (See
Proposed Am. Compl. ¶ 16, ECF No. 43-1 at Pg ID 701.) On March 2, 2018,

The statute of limitations for a claim brought pursuant to 42 U.S.C. § 1983 is the
State’s statute of limitations for personal injury actions. Wallace v. Kato, 549 U.S.
384, 387 (2007) (citations omitted). For § 1983 actions arising in Michigan, the
applicable limitations period is three years. Wolfe v. Perry, 412 F.3d 707, 714 (6th
Cir. 2005) (citing Mich. Comp. Laws § 600.5805(10). The “limitations period begins
to run when the plaintiff knows or has reason to know that the act providing the basis
of his or her injury has occurred.” Collyer v. Darling, 98 F.3d 211, 220 (6th Cir.
1995). With respect to Plaintiffs’ procedural due process claim, this would be when
they learned that their licenses were suspended for failure to pay without being
afforded ability to pay hearings.
16
4

however, Ms. Jones paid the outstanding fines and costs and the suspension was
terminated. (ECF No. 51-11 at Pg ID 1015; see also ECF No. 53 at Pg ID 1036.) Ms.
Rankin’s suspension arises from a ticket in December 2011. (See Proposed Am.
Compl. ¶ 83, ECF No. 43-1 at Pg ID 712.) In April 2012, Ms. Rankin learned the
amount she owed for the infractions and her driving privileges were suspended. (Id.
¶ 88, Pg ID 712; Rankin Decl. ¶¶ 13-15, ECF No. 43-7 at Pg ID 762.)
In reply, Plaintiffs point out that Ms. Jones had standing when they sought
leave to amend their Complaint. Plaintiffs urge the Court to grant their motion for
leave nunc pro tunc, and deem the filing date of their Amended Complaint to be the
day they filed their motion—that is, while Ms. Jones’ license was still suspended.
With respect to Ms. Rankin, Plaintiffs urge the Court to apply the continuing violation
doctrine to find her claims not barred by the applicable three-year limitations period.
(Pls.’ Reply Br. at 4-6, ECF No. 53 at Pg ID 1037-39.) Plaintiffs contend that
“Defendant committed a continuing wrongful act by rendering Ms. Rankin’s license
ineligible for routine renewal on the fourth anniversary of her license expiration,
which occurred in 2017.” (Id. at 5, Pg ID 1038.)
While federal courts have inherent authority to issue nunc pro tunc orders to
correct mistakes in the record, that power is quite limited. As the Ninth Circuit Court
of Appeals has explained:

17

“Nunc pro tunc amendments are permitted primarily so that errors in the
record may be corrected. The power to amend nunc pro tunc is a limited
one, and may be used only where necessary to correct a clear mistake
and prevent injustice.” Martin v. Henley, 452 F.2d 295, 299 (9th Cir.
1971). It does not imply the ability to alter the substance of that which
actually transpired or to backdate events to serve some other purpose.
See Kusay v. United States, 62 F.3d 192, 193 (7th Cir.1995). Rather, its
use is limited to making the record reflect what the district court actually
intended to do at an earlier date, but which it did not sufficiently express
or did not accomplish due to some error or inadvertence. See Fierro v.
Reno, 217 F.3d 1, 4-5 (1st Cir. 2000).
United States v. Sumner, 226 F.3d 1005, 1009-10 (9th Cir. 2000); see also Patterson
v. Chrysler Group, LLC, 845 F.3d 756, 761 (6th Cir. 2017) (citing cases and
explaining that “[n]unc pro tunc orders do not revise the substance of what has
transpired, backdate events, or give rise to new substantive rights, including resetting
the statute of limitations”); Crangle v. Kelly, 838 F.3d 673, 680 (6th Cir. 2016)
(quoting Kusay v. United States, 62 F.3d at 193) (“Nunc pro tunc orders are
customarily used only ‘to correct erroneous records,’ not to ‘revise the substance of
what transpired or to backdate events.’”). Based on this authority, the Court
concludes that it lacks the power to issue the nunc pro tunc order Plaintiffs request. In
other words, the Court concludes that it cannot back-date the filing of Plaintiffs’
Amended Complaint to avoid the futility of adding Ms. Jones as a plaintiff.
Moreover, even if Ms. Jones had standing when Plaintiffs moved to add her as a
plaintiff, her claims are now moot—an additional reason to find Plaintiffs’ attempt to

18

add her as a plaintiff futile. The Court similarly concludes that the continuing
violation doctrine has no applicability here.
The Sixth Circuit has identified three requirements for finding a continuing
violation:
“First, the defendant’s wrongful conduct must continue after the
precipitating event that began the pattern. … Second, injury to the
plaintiff must continue to accrue after that event. Finally, further injury
to the plaintiff must have been avoidable if the defendants had at any
time ceased their wrongful conduct.”
Edison v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007)
(brackets omitted) (quoting Tolbert v. State of Ohio Dep’t of Transp., 172 F.3d 934,
940 (6th Cir. 1999)). “‘[A] continuing violation is occasioned by continual unlawful
acts, not continual ill effects from an original violation.’” Id. (quoting Tolbert, 172
F.3d at 940) (additional quotation marks and citation omitted). “Passive inaction does
not support a continuing violation theory.” Id.
Here, the right Plaintiffs assert is the right to procedural due process.5 “‘In
procedural due process claims, the deprivation by state action of a constitutionally
protected interest in ‘life, liberty or property’ is not itself unconstitutional; what is

While Plaintiffs’ proposed Amended Complaint admittedly alleges additional
constitutional violations (see ECF No. 43-1), this Court found them unlikely to
succeed on those claims in its December 14, 2017 decision addressing Plaintiffs’
preliminary injunction motion. (See ECF No. 21.) Amending the complaint to assert
those claims on behalf of Ms. Rankin would be futile for the reasons stated by the
Court in that earlier decision.
19
5

unconstitutional is the deprivation of such an interest without due process of law.’”
Edison, 510 F.3d at 635 (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1981))
(emphasis in original) (additional quotation marks and citation omitted). The premise
of Plaintiffs’ due process claim is Defendant’s failure to afford individuals ability to
pay hearings before suspending their driver’s licenses for failure to pay their traffic
debts. For Ms. Rankin, this occurred in April 2012. Any harmful effects resulting
from that suspension (such as the ineligibility of Ms. Rankin’s license for routine
renewal on the fourth anniversary of the suspension) constitute “continuing ill effects”
which do not make out a continuing violation.
Because Ms. Rankin’s license was suspended without the process Plaintiffs
claim was due to her more than three years before Plaintiffs moved to add her as a
plaintiff, the Court holds that her procedural due process claim is time-barred.
Therefore, it also would be futile for Plaintiffs to amend their complaint to add Ms.
Rankin as a plaintiff.
For these reasons, the Court is denying Plaintiffs’ motion for leave to file an
amended complaint.
It is premature to decide Plaintiffs’ motion for class certification at this time.
While the Court has found that at least Ms. Harris has standing to pursue this lawsuit
on behalf of the putative class, that finding undoubtedly will be included as an issue
for review by the Sixth Circuit in the pending appeal. Until the issue is finally

20

resolved, it makes little sense for this Court to decide whether Ms. Harris’ claims are
typical of the putative class and whether she is an adequate class representative. For
that reason, the Court is denying Plaintiffs’ request to file their class certification
motion at this time.
Conclusion
To summarize, this Court concludes that Ms. Harris has standing to pursue this
lawsuit and that her claims have not been rendered moot by the additional infractions
she incurred after the action was filed. Ms. Jones lacks standing, however. Further,
Ms. Rankin’s claims are barred by the applicable statute of limitations. As such, the
Court concludes that it would be futile for Plaintiffs to amend their complaint to add
Ms. Jones or Ms. Rankin as plaintiffs. Therefore, the Court is DENYING Plaintiffs’
motion for leave to file an amended complaint. The Court also is DENYING
Plaintiffs’ request to file their motion for class certification at this time.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: April 11, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, April 11, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

21