The eJournal provides summaries of the latest opinions from the Michigan Supreme Court, Michigan Court of Appeals, and the U.S. Sixth Circuit Court. The summaries also include a PDF of the opinion and identifies the judges, key issues, and relevant practice area(s). Subscribe here.

RECENT SUMMARIES

    • Civil Rights (1)

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      This summary also appears under Employment & Labor Law

      e-Journal #: 81734
      Case: Gardner v. Michigan State Univ.
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Garrett, Letica, and Maldonado
      Issues:

      Elliott-Larsen Civil Rights Act (ELCRA); Timeliness; Accrual; Retaliation claim dismissed under MCR 2.116(C)(10); Whether the motion for summary disposition was premature; Failure to state a claim; MCR 2.116(C)(8)

      Summary:

      The court held that plaintiff’s claims related to the denial of a specified position were time-barred. But because his “amended complaint alleged that numerous positions were given to another person under circumstances giving rise to an inference of unlawful discrimination, the trial court erred in dismissing” his age and national origin discrimination claims under MCR 2.116(C)(8). Nonetheless, the court affirmed the trial court’s dismissal of those claims against defendants-Showerman, Kiley, and MSU under MCR 2.116(C)(10). However, it agreed with him that summary disposition was premature as to a retaliation claim involving defendant-Porter. Plaintiff (a Hispanic male in his 60s) argued “that the trial court erred by determining that his claims for the farm finance position accrued on” 9/11/17. He asserted the “claims accrued when defendants hired the other candidate for the position.” The court concluded plaintiff improperly conflated “the elements necessary to establish a prima facie case of discrimination with the accrual of a claim for purposes of the statute of limitations. The two are distinct and separate legal questions.” Plaintiff’s complaint clearly set forth 9/11/17 “as the operative date that he was denied the farm finance position. Although the hiring of a lesser qualified and either non-Hispanic or younger person was undoubtedly a part of plaintiff’s claim, the allegedly adverse employment action defendants took against plaintiff occurred when he was denied the position on [9/11/17]. The hiring of somebody else was not an adverse action taken against plaintiff; the action was his being denied the position. Rather, the hiring of someone else gives rise to an inference of unlawful discrimination. Because the law is clear that a claim accrues when the adverse employment action occurs,” there was no merit in his “argument that his claim did not accrue until this evidence of discriminatory intent was produced.” Plaintiff also argued “the trial court erred by granting summary disposition on his retaliation counts under MCR 2.116(C)(10) because his ‘declaration’ created a genuine issue of material fact and defendants’ motion was premature” before discovery was completed. The court disagreed, except as to the claim involving Porter. The court found plaintiff’s “supposition about Kiley’s role as to the positions at issue” was simply speculation. And plaintiff did not “dispute Showerman’s affidavit that Showerman was unaware of plaintiff’s prior litigation history with MSU and that Showerman had never spoken to or otherwise communicated with Kiley.” Affirmed in part, reversed in part, and remanded as to the “counts alleged against Porter and MSU insofar as the allegations against Porter are involved.”

    • Criminal Law (4)

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      e-Journal #: 81739
      Case: People v. Brown
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Servitto and Redford; Concurrence - Redford; Concurring in part, Dissenting in part - Garrett
      Issues:

      Motion for relief from judgment; MCR 6.508(D); Ineffective assistance of appellate counsel as “good cause” for failing to raise the issue of ineffective assistance of trial counsel; People v Gardner; Effect of an alleged suspension from practicing law; People v Pubrat; Effect of an alleged conflict of interest; MRPC 1.7(b)(1); People v Smith; Sentencing; Proportionality; Rehabilitative potential; Cruel or unusual punishment

      Summary:

      The court held that the trial court did not err by denying defendant’s motion for relief from judgment. In 2017, he was convicted of second-degree murder, first-degree fleeing and eluding police resulting in the death of another individual, and second-degree fleeing and eluding police resulting in serious impairment of a body function. The trial court sentenced him as a fourth habitual offender to concurrent terms of 100 to 150 years for second-degree murder, and 19 to 60 years for each of the fleeing and eluding convictions. The trial court denied his motion for relief from judgment. On appeal, the court first found that defendant failed to show “defense counsel was ineffective simply because he had been federally indicted during his representation” of defendant, or that “defense counsel’s indictment created a conflict of interest.” As such, he was “not entitled to postconviction relief on the basis of ineffective assistance of defense counsel.” As a result, “appellate counsel was not ineffective for failing to raise the instant arguments concerning ineffective assistance of counsel on direct appeal.” The court next found that defendant’s sentence did not constitute cruel or unusual punishment. And it was “proportionate such that the trial court did not abuse its discretion in imposing [it], and appellate counsel was not ineffective in failing to challenge [it], particularly when binding authority held that defendant’s within-guidelines sentence was not appealable at the time [his] appeal as of right was filed.” Affirmed.

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      e-Journal #: 81741
      Case: People v. Fenderson
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Swartzle and Servitto; Dissent – Garrett
      Issues:

      Motion to suppress a confession; Voluntariness; People v Ryan; Reinitiation; Delay in finding defendant an attorney; Pretrial release order providing no bond; People v Davis

      Summary:

      Concluding defendant voluntarily waived his right to counsel, the court held that the circuit court erred in granting his motion to suppress his confession. Thus, in this interlocutory appeal it reversed the order granting his motion and remanded. He was charged with first-degree murder and other crimes related to a hit-and-run. “The circuit court found that the officers used their inability to locate an attorney for defendant as a scare tactic that coerced” him into confessing. He was 24 years old when he was interrogated and had “three years of high-school education. Defendant was in the interrogation room for over five hours, and he spoke to the officers for approximately two of those hours. When” he was not speaking to them, “he received snacks and bathroom breaks. Defendant was fully informed of his constitutional rights on three separate occasions, and he affirmed that he understood his rights each time.” The court found no indication in the record “that there was any unnecessary delay in this process, and, further, there were no signs that defendant was intoxicated, drugged, or otherwise incapacitated during later attempts to interrogate him. Additionally, [he] made multiple unequivocal requests to speak to the officers without an attorney present, and he confirmed his reinitiation of the interrogation after being advised of his rights again.” As to his reinitiation, the record showed he knew “he was under no obligation to speak with the officers when they returned. Importantly, when the investigating officers returned to take [him] back to the detention center, they did not initiate any” questioning. The court noted that at no time before he said “he wanted to speak with them again without an attorney did an officer ask him questions about the offense.” The court found there was no reliable evidence suggesting the officers “intentionally delayed or refused to find defendant an attorney. Rather, the record shows that they tried to find” one who may have been available to represent him “during the interview; that their efforts were not successful should not be grounds for blame or suppression of defendant’s statement. Likewise, [he] was not physically or psychologically abused or threatened in any way, at any” time. Under the totality of the circumstances, the court found “the officers did not badger or coerce defendant into continuing the interrogation, and” his waiver of his right to counsel was voluntary.

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      e-Journal #: 81732
      Case: People v. Williams
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Jansen, Redford, and Yates
      Issues:

      Sentencing; Reasonableness & proportionality; People v Posey

      Summary:

      On remand from the Supreme Court for reconsideration in light of Posey, the court held that the trial court did not abuse its discretion in sentencing defendant to 25 to 40 years for his armed robbery conviction. He was also convicted of resisting or assaulting a police officer. He was sentenced as a fourth-offense habitual offender. He argued that his sentence was “unreasonably harsh and disproportionate.” He contended he was only “an aider and abettor, and his codefendant” (P), the one who went into “the store to commit the robbery, received a sentence of 70 months to 40 years.” But the court noted that defendant planned the robbery with P and provided P (who had no prior convictions) with a disguise and a firearm. The record indicated that despite a “prior armed robbery and other serious felony convictions for which defendant served significant periods of incarceration, [he] planned and engaged in additional armed robberies, including the” one here, committed while he was on parole. His criminal record indicated “that he did not learn from his prior convictions and the discipline imposed upon him. Despite opportunities to turn his life in the right direction, he failed to reform. Defendant stood before the sentencing court as a recidivist convicted criminal, a fourth-offense habitual offender[.]” Given that he previously committed the same crime and did not “reform, it was neither unreasonable nor an abuse of discretion for the trial court to impose a sentence to discipline defendant and provide him time to work toward reformation while incarcerated.” The court found his 25-year minimum sentence “particularly fitting under the circumstances” of the case. It noted that armed robbery and resisting or assaulting an officer are very serious offenses. “It is axiomatic that society must be protected from repeat offenders who commit armed robbery and place citizens in harm’s way and cause them to fear for their lives. Further, the sentence imposed by the trial court serves the purpose of deterring others from committing armed robbery. The record establishes that the trial court considered the seriousness of the circumstances surrounding the offense and the offender and imposed reasonable and proportionate sentences for the crimes of which the jury found [him] guilty beyond a reasonable doubt.” Affirmed.

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      e-Journal #: 81743
      Case: United States v. McMullen
      Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
      Judges: McKeague and Griffin; Dissent - Moore
      Issues:

      Motion to suppress; Search & seizure; Terry stop; Terry v Ohio; Reasonableness; United States v Clay (6th Cir.); Michigan v Long

      Summary:

      Finding no Fourth Amendment violation, the court affirmed the district court’s order denying defendant-McMullen’s motion to suppress evidence. First, he contended “that the detectives lacked the requisite reasonable suspicion to justify their initial stop.” The court held that the “detectives conducted a valid Terry stop. Both the initial stop and the protective search pass constitutional muster.” It started with the stop’s inception. In tackling this reasonable-suspicion inquiry, the court focused “on what the detectives knew when they exited their truck and started questioning McMullen. They identify several factors supporting their suspicion that [he] was unlawfully carrying a concealed weapon: (1) he was in a high-crime neighborhood known for gang activity and gun violence; (2) it was late at night; (3) his car was parked close behind an idling vehicle owned by a known gang member; (4) he was seated in a peculiar manner; and (5) he made a reaching motion toward his car’s floorboard when he saw the detectives approaching in their unmarked pickup truck—a motion that, in Detective [L’s] experience, resembled someone reaching for a gun.” The court found that taken together, these factors created reasonable suspicion. McMullen pushed back. The thrust of his argument targeted “the fifth factor: his reaching motion toward the floor of his vehicle.” The court found his argument unpersuasive. The detectives observed him “reach for something—potentially a gun—in response to their approaching truck. Such behavior, viewed together with the surrounding circumstances, could indicate criminal activity even if McMullen hadn’t realized that the truck contained police officers.” Next, the court examined “the detectives’ conduct during the Terry stop—particularly their vehicle search.” It agreed “with the district court that the detectives took reasonable protective measures to ensure their physical safety.” Their search did not offend his constitutional rights. He argued that Long did not apply. But he interpreted Long too narrowly.

    • Election Law (1)

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      e-Journal #: 81792
      Case: Neilson v. Board of State Canvassers
      Court: Michigan Court of Appeals ( Published Opinion )
      Judges: Per Curiam – Patel, Yates and Feeney; Concurrence – Yates (joined by Patel and Feeney)
      Issues:

      Action seeking a writ of mandamus compelling the Board of Canvassers (the Board) to certify a candidate for judge; Barrow v Detroit Election Comm’n; “Clear legal right”; Rental Props Owners Ass’n of Kent Cnty v Kent Cnty Treasurer; Sufficiency of a nominating petition; MCL 168.552(11); The Board’s duties as to nominating petitions; MCL 168.552(8), (9), & (13); Johnson v Board of State Canvassers; Signature requirement; MCL 168.409b; MCL 168.544f; MCL 168.542; Challenges to nominating petitions; MCL 168.552(10)

      Summary:

      The court held that plaintiff was not entitled to a writ of mandamus compelling defendant-Board to certify her as a judicial candidate because she failed to demonstrate entitlement to relief. Plaintiff submitted her nominating petitions for the office of Judge of the Court of Appeals for the Second District. Two challengers filed challenges to her petitions, alleging she did not have enough signatures as many were invalid. The Board ultimately agreed, finding her nominating petitions were insufficient. As a result, she was not certified as an eligible candidate. The court granted her motion for immediate consideration, then denied her complaint on the ground that she was unable to establish entitlement to mandamus relief. It rejected her argument that the Board had a clear legal duty under MCL 168.552 to consider the late affidavits she tried to submit. “There is nothing in the statute that requires the Board to consider each and every submission by a candidate, regardless of the time that the candidate submits the materials to the Board.” Likewise, it “authorizes the Board, in its discretion, to check ‘doubtful’ signatures against the qualified voter file, as occurred here. The statute does not afford a candidate unlimited opportunities to rehabilitate ‘doubtful’ signatures, however. Nor does [it] provide any indication of whether the Board must accept and review late submissions from candidates. Rather, the same appears to fall within the discretion afforded to the Board, meaning that the legal duty plaintiff seeks to establish does not find support in the statute.” In addition, it was “not even apparent that the affidavits were adequate to rehabilitate the signatures at issue. No determination was ever made about the same, and it appears likely that additional time was needed to review the materials.” The court found this significant “because plaintiff has not only asked that the Board to be compelled to review the materials . . . but she has asked that the Board be compelled to declare her petitions are sufficient. Where the facts are not clear—as they are not in this case given the unreviewed submissions—mandamus cannot lie.” Finally, because the Board “has discretion as to how to conduct its review of petition signatures and as to the procedure that it will employ, the act that plaintiff seeks to compel in this case is not ministerial.”

    • Employment & Labor Law (1)

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      This summary also appears under Civil Rights

      e-Journal #: 81734
      Case: Gardner v. Michigan State Univ.
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Garrett, Letica, and Maldonado
      Issues:

      Elliott-Larsen Civil Rights Act (ELCRA); Timeliness; Accrual; Retaliation claim dismissed under MCR 2.116(C)(10); Whether the motion for summary disposition was premature; Failure to state a claim; MCR 2.116(C)(8)

      Summary:

      The court held that plaintiff’s claims related to the denial of a specified position were time-barred. But because his “amended complaint alleged that numerous positions were given to another person under circumstances giving rise to an inference of unlawful discrimination, the trial court erred in dismissing” his age and national origin discrimination claims under MCR 2.116(C)(8). Nonetheless, the court affirmed the trial court’s dismissal of those claims against defendants-Showerman, Kiley, and MSU under MCR 2.116(C)(10). However, it agreed with him that summary disposition was premature as to a retaliation claim involving defendant-Porter. Plaintiff (a Hispanic male in his 60s) argued “that the trial court erred by determining that his claims for the farm finance position accrued on” 9/11/17. He asserted the “claims accrued when defendants hired the other candidate for the position.” The court concluded plaintiff improperly conflated “the elements necessary to establish a prima facie case of discrimination with the accrual of a claim for purposes of the statute of limitations. The two are distinct and separate legal questions.” Plaintiff’s complaint clearly set forth 9/11/17 “as the operative date that he was denied the farm finance position. Although the hiring of a lesser qualified and either non-Hispanic or younger person was undoubtedly a part of plaintiff’s claim, the allegedly adverse employment action defendants took against plaintiff occurred when he was denied the position on [9/11/17]. The hiring of somebody else was not an adverse action taken against plaintiff; the action was his being denied the position. Rather, the hiring of someone else gives rise to an inference of unlawful discrimination. Because the law is clear that a claim accrues when the adverse employment action occurs,” there was no merit in his “argument that his claim did not accrue until this evidence of discriminatory intent was produced.” Plaintiff also argued “the trial court erred by granting summary disposition on his retaliation counts under MCR 2.116(C)(10) because his ‘declaration’ created a genuine issue of material fact and defendants’ motion was premature” before discovery was completed. The court disagreed, except as to the claim involving Porter. The court found plaintiff’s “supposition about Kiley’s role as to the positions at issue” was simply speculation. And plaintiff did not “dispute Showerman’s affidavit that Showerman was unaware of plaintiff’s prior litigation history with MSU and that Showerman had never spoken to or otherwise communicated with Kiley.” Affirmed in part, reversed in part, and remanded as to the “counts alleged against Porter and MSU insofar as the allegations against Porter are involved.”

    • Insurance (1)

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      e-Journal #: 81740
      Case: Allstate Ins. Co. v. Fremont Ins. Co.
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam – Borrello and Young; Dissent - Swartzle
      Issues:

      Rescission of a policy as to an innocent third party; Balancing the equities under Bazzi v Sentinel Ins Co; Pioneer State Mut Ins Co v Wright; Michigan Assigned Claims Plan (MACP)

      Summary:

      The court held that the “trial court did not abuse its discretion in prohibiting rescission as to” an innocent third party (Cundiff) or err in granting plaintiff-Allstate summary disposition in this insurer priority dispute. Defendant-Fremont informed its insured (P), Cundiff’s mother, that it “was rescinding her insurance policy premised on [P’s] failure to disclose Cundiff’s residency, coupled with [his] driving record that made him ineligible for insurance coverage. Fremont argued in the trial court that the equities weighed in favor of enforcing rescission of the policy against Cundiff as well such that it was not liable for the PIP benefits related to” his injuries. The trial court applied the Pioneer framework for balancing the equities and ruled “it would not be equitable to enforce rescission of the policy against Cundiff as an innocent third party.” As to the first Pioneer factor, the trial court concluded it “weighed in favor of enforcing rescission against Cundiff. [It] reasoned that although Fremont did not make any effort to discover [his] resident relative status before the motor vehicle accident, there was no evidence of any ‘red flags’ that arose prior to the loss that would have alerted Fremont to the possibility of a resident relative driver living with” P. The trial court found the second factor, “the relationship between the fraudulent insured and the innocent third party, weighed against enforcing rescission against Cundiff because there was no evidence that [he] was complicit in [P’s] failure to disclose his residency with” her. The court concluded the trial court’s findings were supported by the record. The trial court determined the third factor, the nature of the innocent third party’s conduct in the injury-causing event, weighed against enforcing rescission against Cundiff. It reasoned “there was no evidence that [he] was operating the moped in a negligent or reckless manner and the other driver fled the scene, which suggested culpability on” that driver’s part. The trial court held that “the fourth factor—whether the innocent third party has an alternative avenue for recovery—weighed in favor of enforcing rescission against Cundiff because [P] was able to make a claim with the MACP on [his] behalf.” This finding also did not appear clearly erroneous. Finally, the fifth factor was whether enforcing the “policy would merely serve to relieve the fraudulent insured of personal liability to the innocent third party by subjecting the insurer to coverage for tort liability for an at-fault insured. The trial court concluded that because enforcement of the policy in this case would not operate to relieve [P] of what would otherwise be personal liability to Cundiff, equity weighed against enforcing rescission against Cundiff.” This constituted “an error of law because this Court has held that the fifth factor is ‘inapplicable’ when, as is the case here, the fraudulent insured was not involved in the accident.” The court held that Fremont did not meets its burden to establish “that rescission was warranted as to Cundiff.” Affirmed.

    • Litigation (2)

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      This summary also appears under Negligence & Intentional Tort

      e-Journal #: 81736
      Case: Stone Age Props., LLC v. 800 Golf Drive, LLC
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Gadola, Borrello, and Boonstra
      Issues:

      Motion for a preliminary injunction; Detroit Fire Fighters Ass’n, IAFF Local 344 v Detroit; Apprehension of future injury; Whether an adequate legal remedy was available; Pontiac Fire Fighters Union Local 376 v Pontiac; Irreparable harm; Michigan Coal of State Employee Unions v Michigan Civil Serv Comm’n; Balance of hardships; Likelihood of success on the merits; Potential harm to the public interest; Trespass & nuisance; Terlecki v Stewart

      Summary:

      The court held that the trial court erred by granting plaintiffs’ motion for a preliminary injunction. Plaintiffs-property owner and commercial tenant sued defendant-golf course for trespass, private nuisance, declaratory relief, and injunctive relief, alleging defendant “knowingly permitted wayward golf balls to land on the [the] property, hitting structures and vehicles stored on the [the] property, and causing safety risks to individuals lawfully present on the” property. The trial court enjoined defendant from “permitting wayward golf balls from being hit from” the golf course and onto plaintiffs’ property. In a prior appeal, the court peremptorily reversed the trial court’s order on the ground that plaintiffs only showed “apprehension of a future injury and thus did not meet their burden to show irreparable harm.” The Supreme Court reversed and remanded to the court for reconsideration. On reconsideration, the court again found plaintiffs failed to meet their burden of showing “there is any harm that will occur without a preliminary injunction for which there is not an adequate legal remedy.” There was no evidence “from which the trial court could have discerned that the threatened injury, under the precise circumstances present in this case, was sufficiently great to be considered ‘irreparable.’” Plaintiffs did not provide “any evidence of a golf ball striking a person outside of the boundaries of a golf course’s property and causing serious injury or death.” While this occurrence was not “inherently impossible” plaintiffs had the “burden to demonstrate the entitlement to this extraordinary preliminary injunctive relief—before the merits” were fully litigated and they completely failed to do so. In addition, they did not “carry their burden of showing that the harm they will suffer without the preliminary injunction outweighs the harm to defendant with the injunction in place.” They also did not meet “their burden to show that they are likely to prevail on the merits of their trespass” and nuisance claims. Finally, the court could not “discern any public interest favoring either side in this matter.” Reversed and remanded.

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      e-Journal #: 81791
      Case: Nessel v. Enbridge Energy, LP
      Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
      Judges: Griffin, Thapar, and Nalbandian
      Issues:

      Whether a removal was timely under 28 USC § 1446(b); Whether there was an exception to § 1446(b)(1)’s 30-day limit under § 1446(b)(3); Whether § 1446(b) permitted an equitable exception to the statutory deadlines; Michigan Environmental Protection Act (MEPA)

      Summary:

      [This appeal was from the WD-MI.] The court held that plaintiff-Michigan Attorney General’s (AG) suit seeking to have defendant-Enbridge shut down its pipeline running under the Straits of Mackinac belongs in state court because Enbridge’s removal was untimely under § 1446(b). In an issue of first impression in this circuit, it also held that “§ 1446(b)’s time limitations are mandatory[,]” and the district court erred by ruling that § 1446(b) permitted an equitable exception to the statutory deadlines. The AG sought to enjoin Enbridge’s continued operation of Line 5 under three state laws: “the public-trust doctrine,” common-law public nuisance, and the MEPA. While this case was pending, Governor Whitmer issued a notice revoking Enbridge’s easement and called for the line’s closure. She then filed another suit that closely resembled this case. Enbridge timely removed of the Governor’s case from state court to federal court, and the Governor was denied remand. After the federal court concluded that there was a federal question at issue the Governor voluntarily dismissed her case. Then 887 days after Enbridge received the AG’s complaint, Enbridge removed this case. It claimed that it was not aware removal was an option until the district court ruled that it had subject-matter jurisdiction in the Governor’s case. The court first declined to reach the subject-matter jurisdiction issue here and instead reviewed whether the removal was timely. It explained that § 1446(b)(1) provides that “the notice of removal ‘shall be filed within 30 days’ of the defendant’s receipt of the complaint or summons.” However, § 1446(b)(3) allows for an extension to this time limit under certain circumstances. Assuming that Enbridge’s federal-question arguments had merit, the court held that Enbridge could not show that “‘the case stated by the initial pleading [was] not removable[,]’” as required for an extension under § 1446(b)(3), especially where it timely removed the Governor’s case. The court found that “Enbridge’s removal in the Governor’s case shows that it was the Governor’s complaint, not the district court’s order denying remand, that first gave Enbridge good-faith grounds to remove. Regardless of whether the Governor’s notice sparked a ‘foreign-affairs controversy’ Enbridge plainly had good-faith grounds to remove when it received the Governor’s complaint[.]” The court found no merit in Enbridge’s explanations for the delay. It then considered whether “non-jurisdictional time limits are mandatory and thus immune from equitable exceptions.” It held that the district court erred by ruling that § 1446(b) permitted an equitable exception to the statutory deadlines where the 30-day deadline was a “‘mandatory’ claims-processing rule[]” and was not subject to the ‘“equitable approach the district court applied here.” The court reversed the district court’s denial of the motion to remand and remanded for the district court to enter an order remanding the case to Michigan’s 30th Circuit Court for the County of Ingham.

    • Negligence & Intentional Tort (1)

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      This summary also appears under Litigation

      e-Journal #: 81736
      Case: Stone Age Props., LLC v. 800 Golf Drive, LLC
      Court: Michigan Court of Appeals ( Unpublished Opinion )
      Judges: Per Curiam - Gadola, Borrello, and Boonstra
      Issues:

      Motion for a preliminary injunction; Detroit Fire Fighters Ass’n, IAFF Local 344 v Detroit; Apprehension of future injury; Whether an adequate legal remedy was available; Pontiac Fire Fighters Union Local 376 v Pontiac; Irreparable harm; Michigan Coal of State Employee Unions v Michigan Civil Serv Comm’n; Balance of hardships; Likelihood of success on the merits; Potential harm to the public interest; Trespass & nuisance; Terlecki v Stewart

      Summary:

      The court held that the trial court erred by granting plaintiffs’ motion for a preliminary injunction. Plaintiffs-property owner and commercial tenant sued defendant-golf course for trespass, private nuisance, declaratory relief, and injunctive relief, alleging defendant “knowingly permitted wayward golf balls to land on the [the] property, hitting structures and vehicles stored on the [the] property, and causing safety risks to individuals lawfully present on the” property. The trial court enjoined defendant from “permitting wayward golf balls from being hit from” the golf course and onto plaintiffs’ property. In a prior appeal, the court peremptorily reversed the trial court’s order on the ground that plaintiffs only showed “apprehension of a future injury and thus did not meet their burden to show irreparable harm.” The Supreme Court reversed and remanded to the court for reconsideration. On reconsideration, the court again found plaintiffs failed to meet their burden of showing “there is any harm that will occur without a preliminary injunction for which there is not an adequate legal remedy.” There was no evidence “from which the trial court could have discerned that the threatened injury, under the precise circumstances present in this case, was sufficiently great to be considered ‘irreparable.’” Plaintiffs did not provide “any evidence of a golf ball striking a person outside of the boundaries of a golf course’s property and causing serious injury or death.” While this occurrence was not “inherently impossible” plaintiffs had the “burden to demonstrate the entitlement to this extraordinary preliminary injunctive relief—before the merits” were fully litigated and they completely failed to do so. In addition, they did not “carry their burden of showing that the harm they will suffer without the preliminary injunction outweighs the harm to defendant with the injunction in place.” They also did not meet “their burden to show that they are likely to prevail on the merits of their trespass” and nuisance claims. Finally, the court could not “discern any public interest favoring either side in this matter.” Reversed and remanded.

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