Arp v. City of Romulus et al

Filing 15

ORDER Denying 5 Motion for Final Possession Pending Judgment on Plaintiff's Claim and Delivery Cause of Action. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIFFANY M. ARP,
Plaintiff,

Case No. 17-cv-13501
Hon. Matthew F. Leitman

v.
CITY OF ROMULUS, et al.,
Defendants.
_______________________________________________________________________/
ORDER DENYING MOTION FOR FINAL POSSESSION
PENDING JUDGMENT ON PLAINTIFF’S CLAIM
AND DELIVERY CAUSE OF ACTION (ECF #5)
In this action, Plaintiff Tiffany M. Arp alleges that Hussein Farhat, an officer with
the City of Romulus Police Department, unlawfully seized (1) some of her personal
property, including her cellular telephone, and (2) a sample of her DNA. (See Compl. at ¶¶
59-64, ECF #1 at Pg. ID 19.) Arp has filed a “Motion for Possession Pending Judgment
on Plaintiff’s Claim and Delivery Cause of Action.” (See Mot., ECF #5.) In the motion,
Arp also complains that, in addition to unlawfully obtaining the cellular phone and DNA
sample, Farhat may have unlawfully obtained evidence from her social media accounts and
cellular phone records. (See id. at Pg. ID 82.) The motion requests entry of an order
compelling the Defendants to return or destroy the property that they are alleged to have
improperly obtained. (See id.) The motion is DENIED.1

1

The Court originally scheduled this motion for a hearing but has decided that the
motion may appropriately be resolved without a hearing. See L.R. 7.1(f).
1

Arp has failed to demonstrate that prior to the entry of judgment she is entitled to
the return of the property and/or to entry of an order requiring Defendants to destroy it.
Arp does not cite any legal authority in her motion. The brief she filed in support of the
motion provides, in its entirety: “Plaintiff relies on her allegations listed in Count V of her
Complaint for Claim and Delivery pursuant to MCL 600.2920 and MCR 3.105.” (Id.)
Neither the statute nor the Michigan Court Rule cited in Arp’s brief support her claimed
right to possession pending entry of final judgment.
The statute simply creates a cause of action for claim and delivery. See Mich. Comp.
Laws § 600.2920. It says nothing about the procedures to be employed in adjudicating
such a claim and, more importantly, says nothing about a plaintiff’s right to possession
pending entry of final judgment. See id.
The Michigan Court Rule does establish a procedure through which a plaintiff may
seek the return of property pending final judgment, but Arp has not even attempted to
satisfy the rule’s test for pre-judgment return. The rule provides in relevant part:
(C) Complaint; Joinder of Claims; Interim Payments. A
claim and delivery complaint must:
(1) specifically describe the property claimed;
(2) state the value of the property claimed (which will be used
only to set the amount of bond and not as an admission of
value);
***
(E) Possession Pending Final Judgment.
(1) Motion for Possession Pending Final Judgment. After the
complaint is filed, the plaintiff may file a verified motion
requesting possession pending final judgment. The motion must
2

(a) describe the property to be seized, and
(b) state sufficient facts to show that the property described will be
damaged, destroyed, concealed, disposed of, or used so as to
substantially impair its value, before final judgment unless the
property is taken into custody by court order.
***
MCR 3.105 (emphasis added). As the highlighted text makes clear, the rule “requires a
showing that the property will be damaged, destroyed, concealed, disposed of, or used so
as to substantially impair its value.” Vehicle Dev., Corp. PTY, LLD v. Livernois Vehicle
Dev., LLC, No. CIV. 13-14090, 2013 WL 6196965, at *3 (E.D. Mich. Nov. 27, 2013)
(emphasis in original). Arp does not address this required showing in her Complaint,
motion, or brief. None of those filings say anything about damage, concealment, disposal,
or impairment of the value of the property in question.2 Thus, Arp has not demonstrated

2

Arp initially filed this action in state court, and the Defendants removed the action
to this Court. (See Notice of Removal, ECF #1.) Prior to removal, Arp filed in the
state court a motion for an order of possession pending entry of final judgment. In
that motion, Arp asserted that the property was at risk absent an award of possession
because the Defendants “intend[ed] to improperly use the items taken….” (State
Court Mot., ECF #1 at Pg. ID 30.) This conclusory assertion – unsupported by any
evidence or details and not made in any of the submissions to this Court – is not
sufficient to demonstrate a risk to the property absent an order of possession pending
final judgment. Moreover, it strikes the Court as unlikely that the Romulus Police
Department intends to “use” a cellular phone seized as part of a criminal
investigation.
3

that she has a right to possession of the property pending the entry of final judgment (nor
that she has a right to an evidentiary hearing on her motion for such judgment).3
Accordingly, IT IS HEREBY ORDERED that Arp’s motion for possession
and/or destruction of the proper pending the entry of final judgment is DENIED.4
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 13, 2018
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 13, 2018, by electronic means and/or ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

3

Arp has not made any effort to demonstrate how MCR 3.105 – a state-court
procedural rule – applies in federal court proceedings. For purposes of this motion,
the Court assumes without deciding that the state rule could apply in these
proceedings by operation of Rule 64(a) of the Federal Rules of Civil Procedure. That
rule provides that “[a]t the commencement of and throughout an action, every
remedy is available that, under the law of the state where the court is located, provide
for seizing a person or property to secure satisfaction of the potential judgment.”
See Auramet Int'l, LLC v. Metals, No. 16-CV-11177, 2016 WL 4087234, at *4 (E.D.
Mich. Aug. 2, 2016) (applying MCR 3.105 by operation of Rule 64(a)).
4

The Defendants have offered to destroy Arp’s DNA sample and to return Arp’s
cellular telephone so long as the Court orders Arp’s counsel to retain the phone and
to refrain from deleting any data on the phone. The Defendants are certainly free to
return the phone and destroy the DNA if they wish to do so, but the Court will not
order them to do so because Arp has not established that she is entitled to that relief.
The parties remain free to enter into and present to the Court a mutually-agreeable
proposed stipulated order addressing the pre-judgment possession and handling of
the phone.

4