Bridgewater Capital Trust et al v. Bank of America

Filing 8

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIDGEWATER CAPITAL TRUST and
BANK OF AMERICA TRUSTEE,
Plaintiffs,
Civil Case No. 18-11378
Honorable Linda V. Parker

v.
BANK OF AMERICA,
Defendant.
___________________________________/

OPINION AND ORDER SUMMARILY DISMISSING COMPLAINT
Plaintiffs filed this lawsuit pursuant to 42 U.S.C. § 1983 on May 2, 2018,
alleging that Defendant Bank of America violated their constitutional rights.
Plaintiffs paid the filing fee for this action. The purported basis for jurisdiction is
that the Complaint presents a question of federal law. (Compl. at 1, ECF No. 1 at
Pg ID 1.)
“[A] district court may, at any time, sua sponte dismiss a complaint for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure when the allegations of a complaint are totally implausible,
attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to
discussion.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (citations omitted).
Plaintiffs’ § 1983 claim against Defendant is not arguably plausible.

In the Complaint, Plaintiffs allege that in 2014 and 2015 they began to
foreclose and seize Defendant’s real and intellectual property as a result of
defaulted international trading contracts. (Compl. ¶ 1, ECF No. 1 at Pg ID 2.)
Plaintiffs further allege that the foreclosure process was reported to the United
States Internal Revenue Service (“IRS”) and Department of Treasury. (Id. ¶ 2.)
During the foreclosure, Plaintiffs, through their Trustee Duane L. Berry, seized
several physical properties and bank branches. (Id. ¶ 3.)
Plaintiffs allege that Berry earned taxable income of $922,291,924.00 for his
role as trustee. (Id. ¶ 5, Pg ID 3.) Plaintiffs further allege:
Trustee Berry has stated to the Plaintiff, that as [sic] no fault of his
own, the Defendant has failed to relinquish full control of trust
property over to him and as a direct result the Plaintiff has suffered a
loss of $922,291.924.00 …
(Id ¶ 6.) Plaintiffs reported the loss to the IRS, but claim Defendant failed to
report its financial obligation to Plaintiffs to the IRS. (Id. ¶¶ 9, 10.) Plaintiffs
appear to be claiming that this caused them to suffer tax consequences of about
$21,000.00. (Id. ¶ 6.) Plaintiffs assert that “Defendant’s refusal to ‘settle
accounts’ cannot be justified by a rational basis as it causes a severe and illegal tax
consequence, violates Plaintiffs’ constitutional rights, and undermines the legality
of the entire federal tax system …” (Id. ¶ 11.)
A plaintiff alleging a claim under § 1983 “must demonstrate a deprivation of
a right secured by the Constitution or laws of the United States caused by a person
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acting under color of state law.” Westmoreland v. Sutherland, 662 F.3d 714, 718
(6th Cir. 2011) (emphasis added) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
Generally, private parties like Defendant are not state actors unless their actions are
“fairly attributable to the state.” See Lugar v. Edmondson Oil Co., 457 U.S. 922,
937 (1982); Black v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir.
1998). A private party that has conspired with state officials to violate
constitutional rights also qualifies as a state actor and may be held liable under
§ 1983. Moore v. City of Paducah, 890 F.2d 832, 834 (6th Cir. 1989); Hooks v.
Hooks, 771 F.2d 935, 943 (6th Cir. 1985).
The Sixth Circuit Court of Appeals recognizes three tests for determining
whether a private party’s conduct is fairly attributable to the state: the public
function test, the state compulsion test, and the nexus test. Am. Postal Workers
Union, AFL-CIO v. City of Memphis, 361 F.3d 898, 905 (2004) (citing Wolotsky v.
Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)). In summary,
[t]he public function test requires that the private entity exercise
powers which are traditionally exclusively reserved to the state. The
state compulsion test requires proof that the state significantly
encouraged or somehow coerced the private party, either overtly or
covertly, to take a particular action so that the choice is really that of
the state. Finally, the nexus test requires a sufficiently close
relationship between the state and the private actor so that the action
taken may be attributed to the state.
Id. (quotation marks and internal citations omitted). The allegations in Plaintiffs’
Complaint in no way suggest conduct by Defendant that is “fairly attributable to
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the state” under any of these tests. Nor do Plaintiffs’ allegations suggest a
conspiracy between Defendant and state officials.
Therefore, the Court concludes that Plaintiffs’ § 1983 claim against
Defendant is frivolous and must be dismissed.1
Accordingly,
IT IS ORDERED that Plaintiffs’ Complaint is summarily dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(1);
IT IS FURTHER ORDERED that the Clerk of the Court shall forthwith
refund Plaintiffs’ filing fee of $400 (Receipt No. DET113590), by issuance of a
check payable to Maurice D. Boraders, to be sent to Maurice D. Boraders, 38742
Bramham, Clinton Township, MI 48038.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 24, 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, May 24, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

On May 22, 2018, Plaintiff delivered six boxes of documents to the Court for
filing. In light of the Court’s ruling, the documents will not be entered on the
docket and Plaintiff shall retrieve the boxes within fourteen days of his receipt of
this Opinion and Order.
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