Mount Hope Church v. Bash Back! et al

Filing 69

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

U N I T E D STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

M O U N T HOPE CHURCH, P l a in tif f , F ile No. 1:09-CV-427 v. H O N . ROBERT HOLMES BELL B A S H BACK!, D-01 B A S H BACK! LANSING, D-02 G IN A ELEYNA WERTZ, D-03 K R IS T Y ELIZABETH BOUSQUET, D-04 A M Y MICHELLE FIELD, D-05 J A S O N DAVID HATZ, D-06 C A IL IN ELIZABETH MAJOR, D-07 W E N D Y RENAE DEBNAR, D-08 M IC H E L L E NICOLE TROUTMAN, D-09 S A M U E L D. KREUGER, D-10 N A T H A N JAMES KELLER, D-11 A N T O N BOLLEN, D-12 D E V IN SCOTT MERGET, D-13 D A N IE L A REGENSCHEIT, D-14 R Y A N LEVITT, D-15 A L L IS O N MARGARET PENNINGS, D-16 J O H N DOES 1-20, D-17-36 D e f e n d a n ts . / OPINION T h is matter is before the Court on a joint motion for summary judgment and motion to dismiss filed by thirty-four of the thirty-six Defendants named in Plaintiff Mount Hope C h u rc h 's complaint. (Dkt. No. 61.) Plaintiff's complaint asserts claims for trespass and 1

v io la tio n of the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248. On July 31, 2 0 0 9 , thirty-four of the Defendants filed an answer to Plaintiff's complaint. On the same day thes e Defendants filed a "Motion for Summary Judgment/Disposition" on Plaintiff's c o m p la i n t , which asked the Court to grant "summary judgment . . . pursuant to F.R.C.P. 1 2 (b )(1 ) and 12(b)(6), as applied by F.R.C.P. 56(b)." (Dkt. No. 61, Def.'s Mot. 3.) The only tw o Defendants not participating in the July 31, 2009, answer and motion are Defendant N a th a n James Keller and Defendant Jason David Hatz. 1 For the reasons that follow, D e f en d a n ts ' motion will be denied. I . Factual Background O n November 9, 2008, Defendants allegedly participated in a demonstration at Mount H o p e Church in Delta Township, Michigan. Plaintiff alleges that "Defendants intentionally a c ted and appeared in a threatening manner and physically obstructed not only traffic en terin g the Church parking lot, but access to the church building itself." (Dkt. No. 1, Pl.'s C o m p l. 1.) Plaintiff argues that Defendants' conduct on November 9, 2008, constituted t re s p a s s and violated 18 U.S.C. § 248, which prohibits the use of force or physical o b s tru c ti o n to intimidate and interfer with persons seeking to exercise First Amendment rig h ts at a place of religious worship. II. Law and Analysis D ef en d an ts ask the Court to dismiss Plaintiff's claims "pursuant to . . . FRCP 12(b)(6), On August 21, 2009, Plaintiff filed a notice of voluntary dismissal of its claims against Defendant Hatz. (Dkt. No. 65.) 2
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a s applied by FRCP 56(b)." 2 The Court interprets this motion liberally, and determines that it constitutes both a motion to dismiss under Fed. R. Civ. P. 12(b)(6) and a motion for su m m ary judgment under Fed. R. Civ. P. 56(b). 1 ) Motion to Dismiss Pursuant to Fed. R. Civ. P 12(b)(6) U n d e r Fed. R. Civ. P. 12(b), a 12(b)(6) motion must be filed before an answer, if an a n sw e r is required. Defendants filed an answer on July 31, 2009, at 5:04 p.m. Defendants f ile d their 12(b)(6) motion on July 31, 2009, at 5:16 p.m. To the extent Defendants' motion c o n stitu te s a motion to dismiss under 12(b)(6), that motion is untimely. See United States v . Beltecno Inc. & Subsidiaries, No. C09-300 RSM, 2009 WL 2568232, at *2 (W.D. Wash. A u g . 12, 2009) (looking to the time the answer and motion were filed to determine timeliness w h e n the answer and motion were filed on the same day). However, this Court will liberally c o n stru e a motion to dismiss under 12(b)(6) filed after an answer as a motion for judgment o n the pleadings under Fed. R. Civ. P. 12(c), which may be filed after an answer. Gen. Elec. C o . v. United States, 87 Fed. Cl. 221, 222 n.1 (Fed. Cl. 2009). The standard of review for m o t io n s under 12(c) is the same as it is for motions under 12(b)(6). Kottmyer v. Maas, 436 F .3 d 684, 689 (6th Cir. 2006); EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2 0 0 1 ). A c c o rd in g to Fed. R. Civ. P. 12(d), if, in a motion under 12(c), matters outside the

Defendants also ask the Court to dismiss Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(1). Defendants, however, do not argue that the Court does not have subject matter jurisdiction over this action. 3

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p lead ing s are presented to the court, the court must treat the motion as one for summary ju d g m e n t under Rule 56(c). In their motion, Defendants use various exhibits to introduce " m a tters outside the pleadings" in support of their motion. For this reason, the Court will tre a t Defendants' motion exclusively as one brought under Fed. R. Civ. P. 56. Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 452 F. 3d 494, 503 (6th Cir. 2006) ("In our view, R u le 12(c) requires only one action by the district court for the conversion to a summary jud g m en t motion to occur: failure to exclude presented outside evidence."). 2 ) Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(c) S u m m a ry judgment is appropriate only if the non-moving party fails to establish the e x is te n c e of a genuine issue of material fact "after adequate time for discovery." Celotex C o rp. v. Catrett, 477 U.S. 317, 322 (1986). "The non-movant bears the obligation to inform th e district court of its need for discovery." Abercrombie & Fitch Stores, Inc. v. Am. Eagle O u tf itte rs, Inc., 280 F.3d 619, 627 (6th Cir. 2002). The non-movant may satisfy this o b lig a tio n by filing a motion for additional discovery or by filing an affidavit under Fed. R. C iv . P. 56(f) detailing the discovery needed. Id. Defendants filed their motion for summary judgment on July 31, 2009, the same day th e y filed their answer. The parties have not exchanged the disclosures mandated by Fed. R . Civ. P. 26(a), scheduled a discovery conference pursuant to Rule 26(f), nor engaged in any o th e r discovery. Plaintiff filed a response to Defendants' motion on August 31, 2009. (Dkt. N o . 67.) Plaintiff asked that the Court permit the parties to conduct discovery prior to ruling

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o n a motion for summary judgment. Plaintiff also filed an affidavit under Rule 56(f) d e t a i l in g the discovery needed. (Dkt. No. 66.) Plaintiff states that additional discovery is n e c es s a ry for it to, inter alia, identify the remaining Defendants, identify the extent of each D e f en d a n ts ' participation in the demonstration, and otherwise develop the facts surrounding th e demonstration. I I I . Conclusion P lain tiff 's motion and accompanying affidavit are sufficient to convince the Court th a t Defendants' motion for summary judgment is premature. The parties must conduct d isco v ery sufficient to demonstrate the absence of a genuine issue of material fact before th e Court rules on a summary judgment motion. An order will be entered that is consistent with this opinion.

Dated: September 23, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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