Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Motion to compel arbitration; Whether arbitrators or the district court should determine whether defendant waived its right to arbitrate; “Waiver-through-inconsistent-conduct”; Whether the district court violated the principle of “party presentation” by raising the waiver issue sua sponte
[This appeal was from the ED-MI.] In this multi-district products liability suit, the court held that the district court violated the principle of party presentation and well-established waiver rules by sua sponte ruling that defendant-FCA waived its right to compel arbitration through its “inconsistent litigation conduct” when FCA did not become aware of the arbitration clauses until discovery. Plaintiffs sued FCA alleging that they purchased defective Chrysler Pacifica minivans. During discovery, FCA learned that some of the class members had signed agreements containing arbitration clauses when they purchased their vehicles. It then moved the district court to compel those plaintiffs to arbitration. But the district court denied the motion, ruling sua sponte that the FCA had waived its right to arbitrate by acting “‘entirely inconsistent[ly]’ with its arbitration rights” when it moved to dismiss all 69 plaintiffs’ claims. The court noted that there is a presumption that waiver through inconsistent litigation conduct is an issue that must be resolved by the courts. While parties can overcome the presumption, it concluded that here, the “issue is properly resolved by the court, not by an arbitrator.” But the district court could not have found that FCA waived its arbitration rights when “FCA could not have intentionally relinquished its arbitration rights by taking actions inconsistent with those rights if it never knew that they existed.” The court found that “neither the district court’s anecdotal experience with car dealerships nor its belief that arbitration agreements are ubiquitous throughout the industry is sufficient evidence to support a factual finding about FCA’s knowledge, and that makes the district court’s decision clearly erroneous.” Next, the court noted that the usual remedy in this situation would be remand for further fact finding. However, “because the district court violated the principle of party presentation by raising the waiver issue on its own[,]” the court declined to give it “another opportunity to decide the issue.” The court explained that district courts cannot “raise affirmative defenses sua sponte when deciding an arbitration motion unless their not doing so ‘would produce a plain miscarriage of justice.’” Another consideration was that FCA was never given “a chance to offer any evidence” contrary to the district court’s finding that “FCA should have known about its arbitration rights when it moved to dismiss.” Reversed and remanded for further proceedings.
Action under 42 USC § 1983; Malicious prosecution; “Probable cause”; Whether the exclusionary rule & fruit-of-the-poisonous-tree doctrine apply in § 1983 cases; Fabrication of evidence; Untimely claims for unlawful search & seizure, selective enforcement, & false imprisonment; Municipal liability claim; Monell v Department of Soc Servs
The court held as to plaintiff-Codrington’s claim of fabrication of evidence under § 1983 that he raised a genuine dispute whether the police fabricated evidence that was used to charge him with crimes. As to his malicious prosecution claim, in an issue of first impression in this circuit, it joined its sister circuits by holding that the exclusionary rule and fruit-of-the-poisonous-tree doctrine do not apply in § 1983 cases. Codrington was subjected to an illegal traffic stop. The illegally seized evidence was suppressed and the criminal proceedings dropped. Three years later, he sued under § 1983. The district court granted defendants summary judgment on all claims. The court first held that the applicable state statute of limitations barred Codrington’s unlawful-search-and-seizure, selective-enforcement, and false-arrest/imprisonment claims. But his claims for malicious prosecution and fabrication of evidence were not untimely. As to the malicious prosecution claim, the court found that, putting “aside the questions of fact regarding the allegedly fabricated evidence, the undisputed facts established probable cause for the officers to arrest and charge Codrington with possession of marijuana and possession of drug paraphernalia while possessing a firearm.” The court considered whether the illegal search and seizure precluded it from considering the illegally obtained evidence. As it held that the exclusionary rule and fruit-of-the-poisonous-tree doctrine apply only in criminal matters, the court was able to consider “the indisputably non-fabricated evidence found in Codrington’s vehicle[.]” Thus, it could “rely upon the small amount of marijuana, marijuana grinder, and legal firearm seized from the vehicle to determine whether defendants had probable cause to arrest Codrington. Plainly, they did.” Thus, the court held that defendants were entitled to summary judgment on the malicious prosecution claim. But it concluded that he raised a genuine dispute of material fact as to his fabrication of evidence claim. The traffic stop appeared “pretextual,” and the bodycam footage did not show the actions that were critical to the officers’ claims about Codrington’s suspicious actions, such as attempting to place something into the center console. A photo the officers submitted to the prosecutor contained a gun and ammunition magazines that did not belong to Codrington. “At the very least, there is a question of fact as to what role the fabricated evidence played in the prosecutor’s charging decision.” Further, given its reversal of the district court’s ruling on the fabrication-of-evidence claim, the court also vacated its Monell conclusions and remanded for consideration of the merits. Affirmed in part, reversed in part, vacated in part, and remanded.
Successive motion for relief from judgment; The trial court’s subject-matter jurisdiction when it entered a judgment of sentence (JOS); People v Washington; People v Scott; MCR 7.315(C) Entry & effective date of Supreme Court orders & judgments; MCR 7.315(C) & (D); Effect of the filing of a motion for reconsideration; MCR 7.311(G); Double jeopardy claim; MCR 6.502(G)(2); MCR 6.508(D)
The court held that (1) the trial court had subject-matter jurisdiction when it entered a JOS convicting defendant of second-degree murder and (2) the double jeopardy claim portion of his successive motion for relief from judgment was procedurally barred. He was convicted of first-degree murder in 1992. On 9/13/95, in lieu of granting leave to appeal, the Michigan Supreme Court entered an order vacating that “conviction and remanding the case to the trial court; it directed the prosecution to choose either to retry defendant for first-degree murder or to allow the entry of a conviction of second-degree murder.” On 10/4/95, defendant filed a motion for reconsideration of that order. On 11/17/95, the trial court entered an order vacating the first-degree murder conviction and a JOS convicting defendant of second-degree murder. The Supreme Court denied his motion for reconsideration 12 days later. In this appeal from the denial of his fourth motion for relief from judgment, the court concluded “the Supreme Court’s 1995 order was not an order or judgment issued pursuant to an opinion under MCR 7.315(C) (then MCR 7.317(C)), but instead was ‘[a]n order or judgment, other those by opinion under subrule (C),’ issued under MCR 7.315(D) (then MCR 7.317(D)).” The order was “in the Michigan Reporter under the ‘Actions on Applications’ section, is labeled as an order (not as an opinion), makes no reference to any related opinion, and does not itself fit the requirements for a Supreme Court opinion found in our court rules, either in 1995” or now. His “case was never placed on the calendar or heard by the Supreme Court; rather, [his] application was disposed of via order absent the issuance of any opinion. There simply is no evidence in the record from which to conclude that the 1995 remand order was ‘an order or judgment pursuant to an opinion’ under MCR 7.315(C) which, unless otherwise ordered, would not have become effective until either the time for filing a motion for rehearing had elapsed or a timely-filed motion for rehearing had been disposed of by the Court.” Under MCR 7.315(D), the order “became effective the day it was entered, [9/13/95], and subject-matter jurisdiction was re-invested in the trial court on that day.” His motion for reconsideration “did not stay that investiture.” The court also held that his double jeopardy claim did not fall within MCR 6.502(G)(2)’s exceptions. Affirmed.
Sentencing; Armed Career Criminal Act (ACCA) enhancement; 18 USC § 924(e)(1); The occasions-different element; Wooden v United States; Erlinger v United States; Whether Erlinger errors are “structural”; Harmless error review; United States v Campbell; Apprendi v New Jersey; Alleyne v United States; Whether the government satisfied its burden to show that its failure to submit the occasions-different question to the jury was harmless; Double jeopardy
On remand from the Supreme Court, the court affirmed defendant-Thomas’s ACCA sentence enhancement, following precedent holding that Erlinger errors are subject to harmlessness review and concluding that the government met “its burden to show that its failure to submit the occasions-different question to the jury was harmless.” A jury convicted Thomas of FIP. He argued that he could not be sentenced under the ACCA because he had not been indicted for it and the jury did not find “the essential fact—that he had three prior violent-felony convictions committed on different ‘occasions[.]’” The district court disagreed. Following Sixth Circuit precedent, it determined that he had the three necessary prior convictions, and imposed an enhanced 432-month sentence. The court previously affirmed. The Supreme Court later decided Erlinger, where it held that a jury must “find the three-occasions element of an ACCA conviction.” Thomas now claimed that “Erlinger is a form of structural error and requires automatic reversal.” The government conceded that the occasions-different element should have been charged in the indictment and a jury should have made the determination but argued that the errors here were harmless. The court explained that after briefing in this case, another panel of the court decided Campbell, in which it responded to the same arguments raised here and held that “Erlinger errors are subject to harmless-error review.” The court noted that Campbell was binding, and it also saw “no reason to disagree.” The court further concluded the government satisfied its burden to establish harmless error. “Based on a review of the Shepard documents described in the PSR, the district judge’s error of finding the occasions-different element by a preponderance of the evidence was harmless beyond a reasonable doubt.” Those documents provided “the necessary information to answer the occasions-different inquiry.” The court also rejected Thomas’s argument that double-jeopardy principles prevented the harmless-error conclusion under the circumstances. “Because Erlinger is an outgrowth of Apprendi, the conclusion that a jury must find the occasions-different element effectively confirms that § 922(g)(1) and § 924(e)(1) convictions are related, lesser and greater offenses, respectively. . . . [I]f the government proves both the lesser § 922(g)(1) offense and that the defendant committed three prior violent felonies on different occasions in § 924(e)(1), the defendant is guilty of the greater offense and the enhanced penalties.”
Freedom of Information Act (FOIA) claim against the Michigan Department of Treasury; Federal preemption of state law; Ter Beek v Wyoming; Whether the notice requirement of MCL 600.6431(2)(d) was preempted by the notice requirement of 28 USC § 1746; Statutory interpretation; Comparing Brown v Chipotle Servs, LLC (MO App), Baker v State (MO App), Hickerson v State (MS App), & Toledo Bar Ass’n v Neller (OH)
The court held that because the notice requirement of 28 USC § 1746 only applies to federal proceedings, and the notice requirement of MCL 600.6431(2)(d) only applies to state proceedings, the verification language in MCL 600.6431(2)(d) does not conflict with § 1746. Thus, the Court of Claims did not err by dismissing plaintiff’s claim for failure to comply with the requirement set forth in MCL 600.6431(2)(d). Plaintiff filed a complaint against defendant seeking relief under the FOIA, but did not sign the verification pursuant to MCL 600.6431(2)(d). It claimed compliance was not required because MCL 600.6431(2)(d) was preempted by the verification standards in § 1746. The Court of Claims disagreed and dismissed the complaint for failure to comply with MCL 600.6431(2)(d). On appeal, the court rejected plaintiff’s argument that the Court of Claims erred by finding the notice requirement in MCL 600.6431(2)(d) was not preempted by § 1746. “Here, the law in question is a law of the State of Michigan, not of the United States. As a result, 28 USC 1746 does not apply to laws passed by the State of Michigan.” The court also rejected its claim that “because the phrase ‘any rule, regulation, order, or requirement made pursuant to law’ in 28 USC § 1746 does not specify that it is limited to federal law, [the court] should construe the word ‘law’ in ‘made pursuant to law’ to mean any law, state or federal.” Here, it was “evident in context that where the federal statute refers to ‘any law of the United States or . . . any rule, regulation, order, or requirement made pursuant to law,’ the words ‘requirement made pursuant to law’ mean requirement made pursuant to United States law.” Further, a court “‘should avoid a construction that would render any part of the statute surplusage or nugatory.’” Plaintiff’s interpretation that “‘requirement made pursuant to law’ includes state law—would render the words ‘of the United States’ in the prior clause surplusage, since Congress would have no need to specify ‘of the United States’ were its intent to include all law. Finally, there is ‘a strong presumption against preemption of state law,’ and to the extent the statute is ‘susceptible of more than one plausible reading,’ we should ‘accept the reading that disfavors pre-emption[.]’ Taken together, these principles” confirmed that § 1746 “does not apply to verification requirements under Michigan law.” Affirmed.
Motion to reopen proceedings under FedRCivP 60(b); McCurry ex rel Turner v Adventist Health Sys/Sunbelt, Inc; The Federal Tort Claims Act (FTCA); 28 USC § 1346(b)(1); Claim under Bivens v Six Unknown Named Agents of Fed Bureau of Narcotics; The “judgment bar” in § 2676; Brownback v King
[This appeal was from the WD-MI.] The court affirmed the district court’s denial of plaintiff-King’s Rule 60(b) motion to reopen the judgment on his FTCA claim to retroactively withdraw that claim in an attempt to avoid § 2676’s judgment bar as to his Bivens claim. King sued the United States for physical abuse under the FTCA and sued the individual government employees under Bivens. Defendants were granted judgment on both claims. King chose to only appeal as to the Bivens claim. Thus, the judgment on the FTCA claim became final. The individual defendants in the Bivens action relied on § 2676’s judgment bar on appeal because the facts underlying King’s claims against them were the same as those underlying his claims against the United States. In Brownback, the Supreme Court held that the bar applies when the adverse judgment is based on a failure to meet the § 1346 requirements. On remand from the Supreme Court, the Sixth Circuit held that the judgment bar applied to Bivens claims that are brought in the same suit as FTCA claims. King subsequently filed a Rule 60(b) motion in the district court to reopen the FTCA judgment, seeking to retroactively withdraw the FTCA claim and avoid the judgment bar. But the district court denied the motion, reasoning “that King’s Rule 60(b) motion was based on ‘a straightforward claim of either attorney error or strategic miscalculation,’” which are not bases for post-judgment relief. The court found no abuse of discretion in this ruling. It agreed with the district court’s reliance on McCurry, which held that “claims of attorney error and even attorney malpractice, including strategic miscalculation or counsel’s misinterpretation, do not warrant an award of relief under Rule 60(b)(1) . . . and that this reasoning also forecloses relief under Rule 60(b)(6).” The court rejected King’s assertion that before Brownback, “it was clearly established and well settled (not just arguable) that an adverse judgment for failure to meet the cause-of-action requirement of the FTCA in” § 1346(b)(1) did not trigger the judgment bar, concluding that his premise was wrong.
Nuisance per se claim related to a wood processing business; MCL 125.3407; Alleged zoning ordinance violation; The Right to Forest Act; MCL 320.2034(1); “Forestry” (MCL 320.2033(d)); “Generally accepted forestry management practices” (MCL 320.2033(e)); Grant of a motion for partial summary disposition based on a limited factual record; North American Industry Classification System (NAICS)
The court held that the trial court did not err in granting plaintiffs-Bloemkers partial summary disposition on their nuisance per se claim “based on the factual record before it.” The trial court was correct that the “motion presented an issue of law fit for adjudication through summary disposition.” It also did not err in ruling that defendants-Dumonts’ actions did not constitute “forestry” and violated the local zoning ordinance (ZO). The trial court found as to the nuisance per se claim “that processing timber into firewood and then selling the firewood is not ‘forestry’ under the” ZO. The court concluded that defendants “failed to present any argument or evidence to the trial court that demonstrated a deficiency fatal to the Bloemkers’ motion or the existence of a genuine issue of material fact.” And it held that summary disposition for plaintiffs was proper. The trial court primarily considered the ZO and the Right to Forest Act “in determining whether the Dumonts have the right to conduct their wood processing operation on their property[.]” The parties’ properties are within the ZO’s Rural Conservation District. The inquiry was whether defendants’ activities constituted “forestry.” The court found that they did not “create a genuine factual dispute as to their use of machinery on their property to convert timber into firewood.” Although the ZO’s plain language “did not define ‘forestry,’ it expressly incorporated by reference the definition provided by the NAICS, which is not ambiguous as to what constitutes forestry. Under its plain language, the NAICS does not contemplate the activities at issue within” that definition. Further, “reviewing the Right to Forest Act, the trial court found that the plain definition of forestry provided in that statute also did not include the activities at issue here. The trial court’s interpretation of these provisions was proper, as was its application of them to the record before it. . . . [T]he trial court acknowledged the limited record and lack of factual development presented by both parties, and correctly concluded it was nonetheless equipped to grant partial summary disposition on the legal issue before it without needing additional facts.” The court found no error in its “method of statutory interpretation and its award of summary disposition to” plaintiffs. Affirmed.
Children’s removal; Probable cause; Suspension of parenting time
Concluding that the trial court did not err in removing the children from respondent-father’s care and suspending his parenting time, the court affirmed. He first argued “that there was a lack of evidence to justify the children’s removal.” After performing a preliminary investigation, the DHHS “petitioned the Family Division of the circuit court to take jurisdiction over respondent.” The court found that as “required by caselaw, this petition had ‘[t]he essential facts that, if proven, would allow the trial court to assume jurisdiction over the child.’” The trial court was prepared to hold a preliminary hearing, but respondent explicitly waived it, along with the probable cause determination. Further, respondent alleged “a lack of evidence to satisfy MCL 712A.13a(9), which governs the placement of a child into foster care. In this case, the children were not placed into foster care but were instead released to the” nonrespondent-mother. Thus, MCL 712A.13a(9) was not applicable. The court noted that following a preliminary examination, which was waived in this case, “[t]he court may authorize the filing of the petition upon a showing of probable cause, unless waived, that one or more of the allegations in the petition are true and fall within MCL 712A.2(b).” Respondent alleged “the trial court erred in holding that there were sufficient findings to have probable cause to remove the children from respondent’s care. However, the petition set forth numerous allegations of repeated physical and sexual abuse by respondent against both children, including [his] penetration of [one of the children] multiple times. The children disclosed the abuse on several occasions to counselors, healthcare providers, CPS investigators, and their mother. At the preliminary hearing, the referee acknowledged the serious allegations and found that it was contrary to the children’s welfare for them to remain under respondent’s care and that no other arrangement was available except to remove the children from respondent’s care. The trial court did not err when it found that it was contrary to [their] welfare to remain in respondent’s care.”
Children’s best interests; In re Gonzales/Martinez; History of domestic violence; In re Rippy; Relative placement; In re Olive/Metts Minors; “Relative”; MCL 712A.13a(1)(j); “Within the fifth degree of blood”; MCL 710.22(y); Whether remand was required
Holding that termination was in the children’s best interests, the court affirmed termination of respondent-father’s parental rights. His rights were terminated on the basis of domestic violence. On appeal, the court rejected his argument that the trial court failed to consider the children’s placement with their mother as a relative-placement factor that weighed against termination of his parental rights. It found that a reasonable interpretation of MCL 712A.13a(1)(j) “indicates that the children’s placement with their biological mother” constituted a relative placement. As such, this placement “triggered the trial court’s obligation to consider this placement as a factor weighing against termination of” his parental rights. It then noted that the trial court “considered the children’s placement with their biological mother by hearing testimony about that placement and acknowledging [they] were with her when it discussed best interests and the possibility of a future adoption by a partner of” hers. The “record demonstrates that the trial court was aware of the relative-placement aspect in the case and correctly applied the law therein.” And because “a relative placement does not always weigh against termination, the circumstances in which a relative placement does not weigh against termination are limited but appropriate to consider.” Given that respondent “repeatedly and violently abused the relative with whom the children were placed, the record demonstrates that this relative placement could not safely facilitate an ongoing relationship between respondent and the children.” Moreover, the trial court: (1) “acknowledged that the children had a bond with respondent, but they had not spent time with him in eight months”; (2) “considered the factor concerning the possibility of adoption in the future, noting that ‘their father might be able to waltz back into their lives at some point in the future, particularly after a potentially lengthy period of incarceration if that’s what lies ahead, [but] these children deserve the chance to have somebody step up and be the father figure that they need’ if and when that opportunity presents itself”; and (3) “found that the children were young and needed permanency.”