AFSCME Council 25, and its affiliated locals v. Charter County of Wayne et al

Filing 60

MEMORANDUM OPINION and ORDER Granting Defendants' 44 Motion to Dismiss, Denying Plaintiff's 57 Motion to Stay Proceedings, and Denying 59 Plaintiffs' Motion to Amend - Signed by District Judge Judith E. Levy. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AFSCME Council 25, and Its
Affiliated Locals,
Case No. 15-cv-13288
Plaintiffs,
Judith E. Levy
United States District Judge

v.
Charter County of Wayne and
Warren Evans,

Mag. Judge R. Steven Whalen

Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS [44], DENYING PLAINTIFFS’ MOTION
TO STAY PROCEEDINGS [57], AND DENYING PLAINTIFFS’
MOTION TO AMEND [59]
Currently pending is defendants Charter County of Wayne
(“Wayne County”) and Warren Evans’ motion to dismiss plaintiffs’
second amended complaint, filed January 22, 2016.

(Dkt. 44.)

The

motion having been fully briefed since April 22, 2016 (Dkt. 54) following
two extensions of briefing deadlines by the parties (Dkts. 46, 47), oral
argument was to be held on July 21, 2016. (June 1, 2016 Dkt. Entry.)
On July 7, 2016, plaintiffs filed a motion to stay this case pending the

outcome of Phillips v. Snyder, a case currently pending in the United
States Court of Appeals for the Sixth Circuit. (Dkt. 57.) On July 18,
2016, three days before hearing was set on defendants’ motion to
dismiss, plaintiffs filed a motion to file a third amended complaint.
(Dkt. 59.) For the reasons set forth below, a stay is not warranted,
defendants’ motion to dismiss is granted, plaintiffs’ motion for leave to
amend their complaint a third time is denied. Oral argument is hereby
canceled pursuant to E.D. Mich. Local R. 7.1(f)(2).
I.

Background
The Court adopts the statement of facts set forth in the opinion

and order granting defendants’ first motion to dismiss and denying
plaintiffs’ motion for a preliminary injunction, issued on October 15,
2015. (Dkt. 30 at 2-5.)
The Court initially set the motion hearing for defendants’ first
motion to dismiss on October 9, 2015. (Dkt. 24.) On October 6, 2015,
the Court held a telephonic conference during which it denied a pending
motion to disqualify one of defendants’ counsel, and following some
argument, announced that it would determine defendants’ first motion
to dismiss and plaintiffs’ motion for a preliminary injunction without
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oral argument. (Oct. 6, 2015 Dkt. Entry.) On October 8, 2015, a day
before oral argument was originally scheduled, plaintiffs filed a motion
to file a second amended complaint. (Dkt. 27.)
After the first motion to dismiss was granted, plaintiffs filed a
motion for clarification and reconsideration of certain aspects of the
opinion, including whether the Court’s dismissal of the claims in the
first amended complaint were with or without prejudice. (Dkt. 32.) The
Court issued an order denying the motion for reconsideration and
reiterating the relevant portions of the opinion by way of clarification.
(Dkt. 34.)
On December 4, 2015, the Court granted in part and denied in
part the motion to amend the complaint, permitting the plaintiffs to
include two counts in their amended complaint: a count that plaintiffs
were deprived of certain property rights (namely, pension rights, vested
retirement rights, and pension board representation) without due
process, and a count that plaintiffs were retaliated against in violation
of the First Amendment to the United States Constitution. (Dkt. 35 at
11.)

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On December 10, 2015, plaintiffs filed a two-count complaint,
significantly altered from the proposed version submitted with their
motion to amend, alleging that: 1) they were deprived of certain
property rights without due process – the three property rights outlined
in the Court’s order, and a right to grievance arbitration; and 2) they
were retaliated against in violation of the First Amendment for filing
this lawsuit.

(Dkt. 36.)

Plaintiffs also filed a second motion for a

temporary restraining order. (Dkt. 37.) On December 14, 2015, the
Court denied the motion for a temporary restraining order. (Dec. 14,
2015 Dkt. Entry.)
On January 22, 2016, defendants filed a motion to dismiss the
second amended complaint.

(Dkt. 44.)

Following two stipulations

extending plaintiffs’ time to respond to March 25, 2016 and then March
28, 2016 (Dkts. 46, 47), plaintiffs then filed a response on March 29,
2016. (Dkt. 49.) The Court struck that response because it did not
conform to the Local Rules (Dkt. 51), and plaintiffs then filed their
response on April 1, 2016. (Dkt. 52.)
On June 1, 2016, the Court set defendants’ motion for a hearing to
be held on July 21, 2016. (June 1, 2016 Dkt. Entry.) On July 7, 2016,
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plaintiffs filed a motion to stay this case pending the outcome of Phillips
v. Snyder, currently on appeal at the Sixth Circuit. (Dkt. 57.) Plaintiffs
also stated that they were “in the process of filing an Amended
Complaint based upon the holding in Lincoln Park Retirees Association
[v.] Coulter et al, case number 15-cv-12810, wherein the Honorable
Gershwin Drain, recently made a ruling that the actions of the
Emergency Manager appointed under Act 436 PA 2012, constituted acts
of the state government and were not actions of a local official.” (Id. at
3-4.) On July 17, 2016, plaintiffs filed a motion for leave to file a third
amended complaint. (Dkt. 59.)
II.

Legal Standard
When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6),

the Court must “construe the complaint in the light most favorable to
the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir.2012). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed
factual allegations,” but it must contain more than “labels and
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conclusions” or “a formulaic recitation of the elements of a cause of
action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III. Analysis
A. Motion to Stay Proceedings
Plaintiffs ask that the Court stay this proceeding until the Sixth
Circuit has issued an opinion in Phillips v. Snyder. “The District Court
has broad discretion to stay proceedings as an incident to its power to
control its own docket.” Clinton v. Jones, 520 U.S. 681, 706-07 (1997).
Plaintiffs’ motion argues that Phillips concerns “several of the
parallel issues, now before the Court.” (Dkt. 57 at 4.) Plaintiffs attach
the Appellants’ Brief in Phillips, presumably to show the range of issues
on appeal. (Dkt. 57-1.) That brief concerns a variety of constitutional
challenges to Michigan’s Public Act 436, none of which mirror the due
process and retaliation claims currently at issue in this case, which does
not challenge the constitutionality of Act 436. Resolution of Phillips
will not aid resolution of this case, because the legal and factual issues
are almost entirely distinct.
The Court declines to stay this case, and will decide the pending
motion to dismiss and motion to amend.
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B. Motion to Dismiss
Plaintiffs allege that defendants have violated the Due Process
Clause of the Fourteenth Amendment, which states that no state shall
“deprive any person of life, liberty, or property, without due process of
law[.]” U.S. Const. Amend. XIV §1.
“To establish a procedural due process claim pursuant to § 1983,
plaintiffs must establish three elements: (1) that they have a life,
liberty, or property interest protected by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution, (2) that they
were deprived of this protected interest within the meaning of the Due
Process Clause, and (3) that the state did not afford them adequate
procedural rights prior to depriving them of their protected interest.”
Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999).
“Property interests, of course, are not created by the Constitution.
Rather, they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as
state law—rules or understandings that secure certain benefits and
that support claims of entitlement to those benefits.” Board of Regents
of State Colleges v. Roth, 408 U.S. 564, 577 (1972). “A contract, such as
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a collective bargaining agreement, may create a property interest.”
Leary v. Daeschner, 228 F.3d 729, 741 (6th Cir. 2000).
First, plaintiffs allege that employees who have thirty years of
credited service have a vested property right to a disability pension of
seventy-five percent of their average final compensation, and that
defendants have reduced this to sixty percent. (Dkt. 36 at 8; Dkt. 36-7
at 7-8, 10.)

However, in their response to the motion to dismiss,

plaintiffs argue that “there is no vesting requirements [sic] for a duty
disability pension” but that “any employee who has ten years of credited
service is automatically vested with the seventy five percent pension
benefit upon obtaining eight to ten years of credit service in the pension
plan.” (Dkt. 52 at 23.)
Plaintiffs’ complaint asserts a right to a disability pension that
vests at the time an employee has thirty years of credited service. Then
they argue that there are no such vesting requirements, and finally that
there are vesting requirements of eight to ten years. A review of the
collective bargaining agreement (“CBA”) attached to the second
amended complaint reveals that there are two forms of duty disability
benefits: one is under Defined Contribution Plan No. 4 for retired
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employees with certain minimum levels of service (Dkt. 36-7 at 7-8) and
one is under Hybrid Retirement Plan No. 5, and has no age or service
requirements. (Id. at 9-10.)
On the face of plaintiffs’ complaint, they do not appear to be
referencing either of these plans, and do not appear to be referring to
any plan actually set forth in the CBA. Even if the Court read the
complaint to be referring to Hybrid Retirement Plan No. 5, the
complaint fails to allege that the change in benefits applies
retroactively, and plaintiffs fail to argue in their response to the motion
to dismiss that the benefit level is actually a property right within the
meaning of the Due Process Clause.

Without this, the due process

claim cannot survive, and is dismissed with regard to the disability
pension plan.
Plaintiffs next allege that the CBA “provided that the Union did
not have to bargain pension benefits until the year 2020,” and because
of that provision, “[a]ll members of the bargaining unit were guaranteed
pension credit vesting until 2020 or an additional 5 years of pension
credits.”

(Dkt. 36 at 8.)

They further allege that defendants

unilaterally took away those vested benefits on September 21, 2015.
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The contract provision in question is § 38.01(L) of the original
CBA, which stated:
Upon the termination of this Collective Bargaining
Agreement on September 30, 2011, the parties may agree to
bargain over retirement related issues during the next round
of contract negotiations. However, all issues concerning
retirement, including but not limited to, any and all
provisions outlined in Article 38 of this agreement, covering
the period of October 1, 2008 through September 30, 2011,
shall not be subject to Act 312 arbitration until October 1,
2020.
(Dkt. 36-6 at 6 (the CBA was later extended until September 30, 2014).)
Defendants argue that this provision does not establish a
contractual right to unchanged retirement benefits through 2020, but
instead a contractual right for plaintiffs not to be required to negotiate
those benefits or subject such disputes to Act 312 arbitration. (Dkt. 44
at 23-24.)

In defendants’ view, none of these clauses provide an

exception to the powers afforded them under Act 436 to impose changes
after the thirty-day bargaining period ended.1
Plaintiffs appear to argue that because the union had no
affirmative obligation to bargain over changes, defendants could not
As set forth in the first motion to dismiss order, “the County’s obligation to
bargain with its unions is suspended after thirty days – in this case, on September
21, 2015.” (Dkt. 30 at 3 (citing Dkt. 16-3 at 3.).)
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impose changes once their statutory duty to bargain a new CBA ended.
Plaintiffs also reference a variety of exhibits unattached to their
complaint that cannot be considered at this juncture.
Plaintiffs provide no reason why a provision that permits them to
refrain from submitting disputes to Act 312 arbitration would prevent
the imposition of new terms under Act 436 once the duty to bargain had
expired. The provision contains no such bar, and does not affirmatively
state that the retirement provisions will remain in effect until 2020 – it
states only that plaintiffs have no obligation to bargain over the
provisions (which they did not) and will not submit any retirement
disputes to Act 312 arbitration (which they also did not). Accordingly,
this claim must also be dismissed.
Plaintiffs next allege that they were denied arbitration of
grievances filed prior to the invocation of Act 436. Those grievances
were filed in April and June of 2015. (Dkt. 36 at 9.) As the Court
previously stated in its order granting the motion to dismiss the first
amended complaint, “the arbitration proceeding is itself the process
plaintiffs argue is due, rather than the property interest to be protected
by due process. Plaintiffs are alleging that they are being deprived of
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protected property interests without due process; the process cannot
itself be the property interest.” (Dkt. 30 at 13.) In its order regarding
the amendment of the complaint, the Court denied leave to amend the
complaint to contain this claim. (Dkt. 35 at 8.)
Plaintiffs have again alleged that the denial of process constitutes
a deprivation of a property interest without indicating what the
property interest in question was. Further, plaintiffs have provided no
reason why the substance of those grievances relates to the subject
matter of this case, or why the Court’s order denying leave to amend the
complaint in this manner is invalid. This claim is also dismissed.
Plaintiffs next allege that the CBA contained a twenty-year bar to
negotiating changes to Wayne County Employees Retirement System
(“WCERS”), and that they further had a statutory and common-law
right to prevent restructuring of the pension system. (Dkt. 36 at 9-10.)
However, plaintiffs do not indicate where in the CBA this bar exists,
and they do not reference such a bar in their response to the motion to
dismiss. They also do not reference where their statutory and common
law rights to prevent such a restructuring arise from.

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Defendants argue that the composition of the Board is a
mandatory subject of bargaining. (Dkt. 44 at 31 (citing Werdlow v. City
of Detroit Police & First System Board of Trustees, 269 Mich. App. 383
(2006).) Because it is a mandatory subject of bargaining, defendants
contend both that the composition of the Board cannot be a property
right and that the invocation of Act 436 means that the requirement to
bargain over mandatory subjects of bargaining is suspended. (Dkt. 44
at 31.)
The Court specifically permitted plaintiffs leave to amend their
complaint to allege that “their rights to representation on the governing
public employee pension board” were property rights of which they had
been deprived without due process. (Dkt. 35 at 8.) The claim plaintiffs
now assert is not about their specific right to representation on the
Board, but instead a global right to prevent all changes to the board.
Plaintiffs were not granted leave to assert this claim, and to the extent
they have, they have not plausibly asserted a property right that exists
by virtue of contract or law.
It appears that plaintiffs are alleging that they have a specific
property right to the overall composition of WCERS, despite the fact
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that the board is chosen by different groups of people, including groups
of which plaintiffs cannot be a part, including non-union employees and
retirees. As previously mentioned, property rights are created by state
law and contracts. If Act 436 removes the obligation of defendants to
bargain over mandatory subjects of bargaining, and plaintiffs cannot
plead the existence of the actual contract provision or law at issue, then
plaintiffs can neither establish a property right or that property right’s
deprivation as a matter of law. This claim is, accordingly, dismissed.
Plaintiffs next allege that they were singled out by defendants
because they filed their lawsuit on September 17, 2015, and defendants
imposed certain non-economic proposals on them on September 21,
2015.

The imposition of those terms, plaintiffs argue, was in direct

retaliation for filing the lawsuit.
Establishing a prima facie case of retaliation under the First
Amendment requires a plaintiff to establish that (1) it engaged in
constitutionally protected speech or conduct; (2) an adverse action was
taken against it that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal
connection between elements one and two—that is, the adverse action
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was motivated at least in part by its protected conduct. Vereecke v.
Huron Valley Sch. Dist., 609 F.3d 392, 399 (6th Cir. 2010) (further
citations omitted).
Assuming at this stage that this lawsuit is constitutionally
protected speech or conduct, and that the new terms imposed on
September 21, 2015 were materially adverse, the Court must determine
whether plaintiffs have sufficiently pled that there is a causal
connection between the lawsuit and the imposition of these terms.
Plaintiffs must make more than a “bare allegation of malice . . . to
establish a constitutional claim.” Crawford-El v. Britton, 523 U.S. 574,
588 (1998). Plaintiffs must show that “the speech at issue represented
a substantial or motivating factor in the adverse . . . action.” Rodgers v.
Banks, 344 F.3d 587, 602 (6th Cir. 2003) (internal quote marks and
citations omitted). “Motivating factor” is “essentially but-for cause—
‘without which the action being challenged simply would not have been
taken.’”

Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007)

(quoting Greene v. Barber, 310 F.3d 889, 897 (6th Cir. 2002). The Court
should not draw an inference of causation from temporal proximity

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alone, but very close proximity may create a strong inference of
retaliation. Vereecke, 609 F.3d at 400 (collecting cases).
Here, the Consent Agreement permitted defendants to impose the
terms at issue on September 20, 2015. They did so on September 21,
2015.

In fact, plaintiffs admit that defendants announced their

intention to do this on September 17, 2015, during a call with Judge
Matthew Leitman.

(Dkt. 52 at 33.)

In support of their argument,

plaintiffs offer an unverified e-mail purportedly sent on November 30,
2015, by Diane L. Webb, a Wayne County Commissioner. (Dkt. 36 at
12; Dkt. 36-12.)
This e-mail claims to relay statements made by Evans to Webb, in
which Evans states that he would not give plaintiffs the same deal
another union got because “[plaintiffs’] lawyer MF’d me up one side and
down the other and they want the same as POAM that was willing to
work with us?” (Id.) Webb claims that she asked if Evans was “going to
punish all those working guys that had nothing to do with what that
lawyer had to say, because he cussed you out?” (Id.) Evans’ alleged
response was “that’s right, I am not going to reward those that fight us,
it wouldn’t be those [sic] to those that don’t.” (Id.)
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Even if the Court were to accept this unverified e-mail, which
relays two layers of hearsay, as admissible evidence, it does not show
that defendants imposed new terms because plaintiffs filed suit.
Instead, it shows that defendants imposed new terms because of a
perceived lack of respect on the part of plaintiffs’ counsel. The e-mail
does not show that the lawsuit was the but-for cause of the imposition
of worse terms.
Further, the unfavorable terms were, by all accounts, on the table
and a known risk of plaintiffs’ decision not to come to an agreement
before September 20, 2015 before the lawsuit was filed, and were in fact
a motivation for filing the original suit. (See Dkt. 1 at 2 (“On September
20, 2015, protected and accrued benefits will be dramatically slashed or
terminated, contrary to the U.S. Constitution.”).)
Plaintiffs filed suit on September 16, 2015, to stop the imposition
of unfavorable terms on September 20, 2015. (Dkt. 1.) The unfavorable
terms were then imposed on September 21, 2015. A First Amendment
retaliation claim requires that an adverse action be taken because the
plaintiff engaged in protected conduct. When the plaintiff takes the
protected conduct to prevent the already-known adverse action from
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taking place, a complaint without pleading something more than what
is set forth in this case, cannot properly allege that the occurrence of the
known adverse action is the basis for a retaliation claim.2 In short, a
retaliation claim will generally not stand where an adverse action is
threatened by a date certain, a plaintiff responds to the threat by
engaging in protected conduct to prevent the adverse action, and a
defendant then carries through with the adverse action in the manner
previously threatened.
This claim is therefore dismissed.
IV.

Motion to Amend

For the second time in this case, plaintiffs have sought leave to
amend their complaint days before a scheduled hearing on a motion to
dismiss. (See Dkts. 27, 59.) Under Fed. R. Civ. P. 15(a)(2), “[t]he court
should freely give leave [to amend a complaint] when justice so
requires.”

“A motion to amend a complaint should be denied if the

amendment is brought in bad faith, for dilatory purposes, results in

For instance, had defendants accelerated the imposition of unfavorable terms, or
imposed terms outside of the scope previously known to plaintiffs, a retaliation
claim might be plausible.

2

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undue delay or prejudice to the opposing party, or would be
futile.” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995).
Plaintiffs seek to add Michigan’s Treasurer as a defendant and
add a third count claiming that defendants (including the Treasurer)
committed a taking of property without due process under the Fifth
Amendment of the United States Constitution. (Dkt. 59-4 at 15-17.)3
They base this claim on Judge Drain’s opinion in Lincoln Park Police
and Fire Retirees Association, Inc. v. Coulter, Case No. 15-cv-12810,
issued on May 5, 2016. In that opinion, Judge Drain held that certain
claims similar to those pleaded here could proceed against the
Treasurer, who was named as a defendant in that case – namely,
Contracts Clause, due process, and takings claims.

See generally

Lincoln Park, Dkt. 79.
Plaintiffs claim that the Court, in its order clarifying its opinion
on the first motion to dismiss (Dkt. 34) and in its order granting in part
and denying in part the first motion for leave to amend the complaint
(Dkt. 35), “held that some of the plaintiffs’ Constitutional challenges
In their motion to amend the complaint, plaintiffs also state that this claim is
supposed to include a takings claim under Art. 10, § 2 of the Michigan Constitution.
(Dkt. 59 at 4.) The claim in the complaint does not include a Michigan
constitutional claim.
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had to be dismissed, as plaintiffs did not show that the acts of Evans
were acts empowered by the State Legislature and therefore, the
challenge as to Impairment of Contracts and the plaintiffs [sic] right to
petition the government were not properly before the Court.” (Dkt. 59
at 2-3.) None of this is correct.
As previously set forth, plaintiffs’ unenumerated Contracts Clause
claim was dismissed because it alleged only that the Michigan State
Legislature violated the Contracts Clause of the Constitution, but did
not name the Legislature. (Dkt. 34 at 4-5; Dkt. 30 at 10 n.1.) The
dismissal of the claim had nothing to do with the issue of whether
Evans, as chief administrative officer, was “empowered” by the
Legislature. Instead, it was based on the fact that plaintiffs did not
allege that Evans or Wayne County actually did anything to violate the
Contracts Clause.
The Court’s dismissal of the plaintiffs’ First Amendment right to
petition claim similarly had nothing to do with Evans’ empowerment by
the Legislature. Instead, the claim was dismissed because plaintiffs
failed to plead that their right to petition the government was actually
impaired. (Dkt. 30 at 9-10.)
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Plaintiffs now seek to add the Treasurer to assert a wholly
different claim than the two described above: a takings claim. Plaintiffs
also seek, for a second time, to amend their complaint days before a
hearing on a motion to dismiss their current claim. (See also Dkt. 27
(motion to amend filed one day before the originally scheduled oral
argument on defendant’s first motion to dismiss).)
Plaintiffs’ counsel is also counsel in Lincoln Park, which was filed
on August 10, 2015, named the Treasurer as a defendant, and contained
many of the same claims asserted here. Id., Dkt. 1. Since that case was
filed, plaintiffs have filed three complaints in this case, never naming
the Treasurer. (Dkts. 1, 9, 36.) Further, defendant’s pending motion to
dismiss was filed on January 22, 2016.

(Dkt. 44.)

completed on April 22, 2016.

Judge Drain’s opinion in

(Dkt. 54.)

Lincoln Park was issued on May 5, 2016.

Briefing was

Lincoln Park, Dkt. 79.

Despite having over two months to seek leave to amend the complaint,
plaintiffs waited until the eve of hearing to file their motion to amend.
Now, plaintiffs seek to add a defendant their counsel was aware
may have needed to be joined for nearly a year, and to assert a claim for
the first time despite numerous opportunities to do so. They premise
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the need for this amendment in large part on purported statements
from the Court. They also do this two months after they became (or
should have become) aware of the legal authority for doing so.
The Court discerns that the primary purpose of this amended
complaint is to further this litigation and to assert a claim that
plaintiffs knew should have been added months earlier against a
defendant plaintiffs knew should have been included from the outset of
this litigation.4
Further, plaintiffs’ proposed third amended complaint contains at
least one significant and undisclosed revision: the Webb e-mail at the
heart of the retaliation claim is now gone. (Dkt. 59-4 at 13; see Dkt. 36
at 12.)

Based on this omission, and plaintiffs’ filing of a second

amended complaint that failed to conform to the Court’s order granting
leave to amend, this current motion to amend is not brought in good
faith. Instead, it is clear that this amendment is an attempt to prevent
dismissal by asserting a new claim, then using the Court’s leave to
either revise old claims or attempt to relitigate already dismissed ones.

At best, what plaintiffs or their counsel have done is waited until Judge Drain
issued a ruling in the earlier-filed Lincoln Park, then based their amendment on the
claims that survived that motion to dismiss.

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The motion for leave to amend the complaint is denied.
V.

Conclusion
For the reasons set forth above, it is hereby ordered that:
Plaintiffs’ motion to stay this case (Dkt. 57.) is DENIED;
Defendant’s motion to dismiss the second amended complaint

(Dkt. 44) is GRANTED;
Plaintiffs’ motion for leave to amend the complaint (Dkt. 59) is
DENIED; and
This case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: July 21, 2016
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 21, 2016.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
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