Guertin et al v. State of Michigan et al

Filing 215

OPINION and ORDER Granting Defendants' Motions to Stay. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Shari Guertin, et al.,
Plaintiffs,
v.

Case No. 16-cv-12412
Judith E. Levy
United States District Judge

State of Michigan, et al.,
Mag. Judge Mona K. Majzoub
Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTIONS TO STAY [166, 169, 173]
On June 5, 2017, the Court entered an opinion and order granting
in part and denying in part the defendants’ motions to dismiss. (Dkt.
151.) In that opinion, the Court denied the motion to dismiss plaintiffs’
substantive due process bodily integrity claim against defendants City
of Flint, Earley, Ambrose, Wyant, and Croft, and defendants Shekter
Smith, Busch, Prysby, Wurfel, Wells, Scott, Lyon, and Peeler in their
individual capacities. (Dkt. 151 at 100.) Between June 19, 2017 and
July 3, 2017, each of those defendants filed an interlocutory appeal of
the Court’s order, which were permitted because the Court’s opinion

determined that qualified immunity did not apply to them. (Dkts. 157,
158, 167, 174, and 180.) The Court determines that oral argument is
not required pursuant to E.D. Mich. Local R. 7.1(f)(2).
Each of those defendants has filed or joined in a motion to stay
this case pending the outcome of their appeals. (Dkts. 166, 169, 173.)
The defendants generally make two arguments: 1) the filing of the
notices of appeal divested the Court of jurisdiction over at least the
claims that are the subject of the appeal, if not the entire case; and 2) a
stay is warranted on equitable grounds.

Plaintiffs argue that the

notices of appeal filed are insufficient to divest the Court of jurisdiction,
that the appeals only divest the Court of jurisdiction over the subject
matter of the appeals and not the entire case, and that the factors for
an equitable stay of the case do not justify a stay of the entire case.
“The filing of a notice of appeal is an event of jurisdictional
significance—it confers jurisdiction on the court of appeals and divests
the district court of its control over those aspects of the case involved in
the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58
(1982).

However, if the district court determines that the appeal is

2

frivolous, it retains jurisdiction over the entire case. Yates v. City of
Cleveland, 941 F.2d 444, 449 (6th Cir. 1991).
Plaintiffs argue that the Court should err in favor of retaining
jurisdiction, because it is possible that the appeals might be based on
factual, rather than legal, disputes. (See, e.g., Dkt. 187 at 5-6 (citing
cases).)

The Court has previously considered this argument and

declined to certify the pending appeals as frivolous. (Dkt. 208 at 2-3.)
Further, at the motion to dismiss phase a qualified immunity appeal in
this case must be legal in nature and not factual, and second, the
appeals are not substantively frivolous in nature.

Accordingly, the

Court is divested of jurisdiction over every defendant who has appealed,
because each of those defendants have appealed every claim against
them. The case must be stayed as to each of these defendants.
The remaining question is whether the Court should stay the
entirety of these proceedings pending appeal, including the pending
professional negligence claims against Lockwood, Andrews & Newnam,
Inc. and Veolia North America.

“[A] defendant’s interlocutory appeal

on federal qualified immunity does not divest the district court of
jurisdiction over pendent state-law claims,” subject to the exception of
3

state-law immunity being asserted, denied, and appealed alongside
federal qualified immunity. Krycinski v. Packowski, 556 F. Supp. 2d
740, 741 (W.D. Mich. 2008) (citing Knox v. City of Royal Oak, Case No.
06-cv-10428, 2007 WL 1775369, *2 (E.D. Mich. June 20, 2007)). Neither
Lockwood nor Veolia have moved to stay the case. And none of the
defendants who seek stays have provided any reason why permitting
the claims to proceed against these two parties would prejudice the
moving defendants in this litigation.
Accordingly, it is hereby ordered that the motions to stay pending
appeal (Dkts. 166, 169, 173) are GRANTED as to defendants City of
Flint, Earley, Ambrose, Wyant, Croft, Shekter Smith, Busch, Prysby,
Wurfel, Wells, Lyon, and Peeler, and this case is STAYED as to those
defendants. Although he did not move for a stay, the remaining claim
against defendant Scott is also STAYED, as he is appealing a denial of
qualified immunity.
Plaintiffs have filed a motion for leave to file an amended
complaint (Dkt. 161) that reasserts claims against the defendants who
have appealed and adds pendent state law claims against additional
private engineering defendants. The Court has jurisdiction to consider
4

the motion to amend the complaint, because it adds new parties that
would not be able to raise qualified immunity as a defense to the claims
against them, and it does not alter the claims against the defendants
who have appealed.
The proposed amended complaint raises two issues that must be
addressed.
lawsuit.

First, the amended complaint seeks to be a class-action

The Court has consolidated all other pending Flint water

class-action litigation as a single suit in Waid v. Snyder, Case No. 16-cv10444. If this case is amended to become a class action, it would be
consolidated with Waid once it is unstayed.

Second, the amended

complaint adds Rowe Professional Services Company, a Michigan
company. If the complaint is amended and the Sixth Circuit determines
that the governmental defendants are entitled to qualified immunity,
the Court would lack original jurisdiction over this case if it proceeded
as an individual, rather than class action, case.
Plaintiffs are to file supplemental briefing with the Court on or
before November 17, 2017 stating whether they wish to proceed with
the motion to amend the complaint as it currently stands. If they do
wish to proceed, plaintiffs are required to address the two issues the
5

Court has identified with their amended complaint. If they do not wish
to proceed, plaintiffs must either propose a date by which they may file
a revised motion for leave to file an amended complaint, or state their
intention to proceed with their complaint as currently drafted. This
briefing is limited to twenty-five pages.
IT IS SO ORDERED.
Dated: October 30, 2017
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 October 30, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

6