Auto buyers' claims for fraud relating to vehicle emissions; “Conflict preemption”; In re Ford Motor Co F-150 & Ranger Truck Fuel Econ Mktg & Sales Practices Litig (Ford); Fenner v General Motors, LLC; Dismissal of plaintiffs’ RICO claim under the “indirect-purchaser rule”; Denial of plaintiffs’ post-judgment motion to vacate the judgment in part & to approve a preliminary settlement agreement; Environmental Protection Agency (EPA); Auxiliary emission control devices (AECDs); Nitrogen oxides (NOx); Racketeer Influenced & Corrupt Organizations (RICO) Act

[This appeal was from the ED-MI.] The court vacated the district court’s ruling that plaintiffs’ fraud claims related to vehicle emissions were preempted under the Clean Air Act and remanded for a determination of whether their remaining claims “‘implicate or challenge’ a determination of the EPA.” New U.S. motor vehicles are generally required to have an EPA “certificate of conformity” with all federal emissions standards. Manufacturers are required to disclose whether the vehicle is equipped with any AECDs, which can sometimes increase vehicle emissions. If an AECD is determined to be a “defeat device” (defeating the proper functioning of the emission control system), the EPA may not issue a certificate for that vehicle. Defendant-GM produced a diesel Chevy Cruz and was issued a certificate. It advertised “that the Cruzes featured ‘Clean Diesel’ technology.” Plaintiffs sued GM and another company, claiming they misled consumers about the emissions generated by the Cruzes. At this point in the litigation, plaintiffs’ only remaining fraud claims concerned whether defendants “‘fraudulently concealed one or more defeat devices’ in” plaintiffs’ Cruzes. These claims were based on two theories – “that the Cruzes’ NOx emissions were higher than ‘(ii) what a reasonable consumer would expect’ and ‘(iii) what GM had advertised.’” The district court initially denied defendants summary judgment as to those claims and granted them summary judgment on plaintiffs’ RICO claims. But after the court’s decision in Ford, it revisited its ruling and concluded that conflict preemption barred the fraud claims. It then entered judgment for defendants. Plaintiffs relied on Fenner in arguing on appeal that the claims were not preempted. Fenner held that claims based on the same theories were not preempted. It concluded that claims were not preempted where they “did ‘not implicate or challenge the EPA’s determinations’ that the AECD at issue was not a defeat device[,]’” and where at least some of “plaintiffs’ evidence in support of those theories ‘exists independently of EPA standards.’” The court declined to determine whether the same things were true here where the district court was in a better position to do so, and remanded for it “to decide whether, on this record, the plaintiffs’ remaining claims can proceed without relying in any way on a disagreement with the EPA’s determinations.” It affirmed the dismissal of their RICO claims under the indirect-purchaser rule and the denial of their post-judgment motion to vacate the judgment in part and to approve a preliminary settlement agreement that the other defendant had earlier terminated. Affirmed in part, vacated in part, and remanded.

Homeowner’s insurance policy breach of contract action; Substantial compliance/performance; Gibson v Group Ins Co; The policy’s proof-of-loss requirement; Production-of-documents & examinations under oath (EUO) requirements; Waiver; Motions for directed verdict, JNOV & new trial; Whether a reasonable juror could have found that plaintiff did not comply with the policy’s conditions precedent; Whether evidence was admitted in violation of MRE 402, 403, 404, & 608(b); Jury instruction on the burden of establishing substantial compliance; M Civ JI 142.22; Evidence of the insurer’s policy interpretation

The court held that the trial court did not err in denying plaintiff-insured’s summary disposition motion as to compliance with the conditions precedent in her homeowner’s insurance policy because genuine issues of material fact existed. It also rejected her assertion that defendant-insurer (AAA) waived noncompliance as a defense. In addition, it upheld the trial court’s denial of her motions for directed verdict, JNOV, and new trial, rejecting her claim that “no reasonable juror could have found that she did not comply with the conditions precedent.” The case arose from damage to her home and contents caused by water originating from a second-floor bathroom. The court first found that a “genuine issue of material fact existed whether plaintiff complied with the proof-of-loss requirement. The evidence” showed that she submitted two proofs of loss to AAA but “AAA sent correspondence several times rejecting these proofs because they were not on AAA’s form and were missing information. In return,” her correspondence to AAA showed “that she believed her proofs were compliant and she would not send new” ones. A genuine issue of material fact also “existed whether plaintiff complied with the production-of-document and EUO requirements.” The court determined that she failed to “establish as a matter of law that she timely submitted sufficient proofs of loss to AAA, that she submitted sufficient documentation, that she permitted AAA to inspect her contents, or that she complied with AAA’s requests for EUOs. Because a genuine issue of fact existed whether plaintiff complied with the conditions precedent, a question of fact also existed whether her complaint was premature. These issues were properly presented to the jury.” The court further held that the trial court did not err in denying her “motions for directed verdict or JNOV because reasonable minds could differ on” material facts. In addition, the trial court did not abuse its discretion in denying her “a new trial because the record does not reveal that the evidence preponderated so heavily against the verdict that it would be a miscarriage of justice to allow it to stand.” The court also rejected her claims of evidentiary error and found that the challenged jury instruction on the burden of establishing substantial compliance with the conditions precedent “accurately instructed the jury[.]” Affirmed.

Sentencing; People v Lockridge; Doubling a defendant’s guidelines pursuant to MCL 333.7413(1)

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see eJournal # 82303 in the 10/1/24 edition), the court remanded the case to that court to allow defendant to file a supplemental brief as to whether, in light of Lockridge, “a court can double an individual’s sentencing guidelines pursuant to MCL 333.7413(1).” The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented. It denied a motion to remand. It granted in part a motion for peremptory relief or remand and to supplement application for leave to appeal, to permit defendant to file a supplemental brief in the Court of Appeals, and denied it in all other respects.

Concurring in part and dissenting in part, Justice Welch found that defendant raised important questions about juror bias, and because the court’s case law “on juror bias is underdeveloped,” she would have heard arguments on the issue. Thus, while she concurred with the order in all other respects, she dissented from it insofar as it denied leave to appeal on that issue.

Motion to suppress blood alcohol concentration (BAC) analysis results; Probable cause to arrest; People v Murawski; People v Maggit; People v Czuprynski; Operating while intoxicated (OWI)

The court held that the totality of the known facts and circumstances justified “the officer’s belief that defendant was operating his vehicle while intoxicated” and thus, probable cause supported his arrest. As a result, the district court erred in “suppressing the BAC analysis results” and the circuit court properly reversed. The “arresting officer testified that he was trained in field sobriety testing and that he had conducted hundreds of OWI investigations. He testified further that defendant was slow to stop his vehicle after the officer activated his overhead lights. As soon as the stop began, [he] observed that defendant’s eyes were ‘glassy’ and that there was an alcoholic odor coming from [his] car and person. This evidence supported a determination of probable cause to arrest defendant for OWI, even if the odor was only ‘slight.’” The court noted that he “also told the officer that he had consumed two 16-ounce beers about an hour and a half before the traffic stop. After considering these indicators of intoxication in defendant, the officer requested defendant to perform field sobriety tests, including a horizontal gaze nystagmus (HGN) test, a walk-and-turn test, and a one-legged stand test.” As to the HGN test, the officer “admitted that he did not perform all aspects of” it correctly. But the court noted that “even an improperly administered test can be relevant to a probable cause determination under the totality of the circumstances.” The court found that it did “not appear that the officer’s HGN test was so unreliable to prevent him from placing any stock in it.” In addition, “contrary to the district court’s findings that defendant did not appear ‘unsteady’ and did not wobble his head during HGN testing, the officer’s body camera footage, although at times difficult to see and hear, shows that defendant did exhibit signs of intoxication during the field sobriety testing.” The court further found that the record indicated “the circuit court understood and applied the totality-of-the-circumstances test and correctly concluded that the facts known to the officer objectively supported [his] determination that there was probable cause to believe defendant was” OWI. Affirmed.

Motion to suppress; Search & seizure; Warrantless search; People v Moorman; Consent; People v Mahdi; Coercion; People v Bolduc; Exclusionary rule; Fruit of the poisonous tree; People v Stevens; Bindover; People v Jenkins; Perjury; MCL 767A.9(1)(b); Motion to quash; MCR 6.110(H); Evidence of a victim’s death

The court held that the trial court erred by (1) denying defendant’s motion to suppress the search and seizure of his cell phone, and (2) binding him over “on a perjury charge under MCL 767A.9(1)(b) when no facts were presented to support the victim’s murder or death.” After he testified pursuant to a prosecutor’s investigative subpoena about a 1981 disappearance, the prosecutor seized his cell phone, and later charged him with perjury, as a third-offense habitual offender. On appeal, the court agreed with defendant that the trial court erred by denying his motion to suppress because his consent to the search and seizure of his cell phone was coerced. “The totality of the circumstances reflect that defendant did not voluntarily consent to the search and seizure of his cell phone. After the prosecutor finished questioning” him, she told him “they were ‘taking [his] phone.’” Before he consented, she told him “that: (1) she had probable cause to ‘just get the search warrant’; (2) defendant was ‘gonna give [his phone] to the detective’; (3) [he] did not ‘have a choice’ in whether he gave up his phone; and (4) [he] could not leave.” He only consented after she “told him that he would get his phone back ‘in a day’ if he consented, but that he would likely not get it back for about a week if she had to obtain a search warrant.” As such, the prosecutor’s statements that his “choice to consent was ‘totally up to [him]’ does not align with the interaction that actually took place.” In addition, while he “signed a consent form for the search,” it was signed just two minutes after the examination concluded. “Because defendant was told that he could not leave, that he did not have a choice in giving his phone up, and that he was going to give his phone to the detective, defendant’s consent was not ‘freely and voluntarily given’ under the totality of the circumstances, and the consent exception to the warrant requirement was not met.” The court also agreed with him that the prosecution could not prove he “made a false statement during the investigation of a homicide, a life offense, when no facts were presented to support that a murder, or even a death, occurred.” It found: (1) he was not limited to only one motion to quash; and (2) the district court never found he “made false statements ‘during the investigation of a crime punishable by imprisonment for life[.]’” Reversed in part and remanded.

Search & seizure; “Reasonable suspicion” for a stop under Terry v Ohio; Whether the smell of marijuana localized to a person by itself can support probable cause for a warrantless arrest for marijuana possession; Sentencing; Substantive reasonableness challenge to a within-Guidelines sentence; Weighing of the 18 USC § 3553(a) factors

The court held for the first time in this circuit that the smell of marijuana localized to an individual by itself provides probable cause to arrest him or her for the crime of marijuana possession. A grand jury indicted defendant-Santiago for FIP. He unsuccessfully moved to suppress the evidence seized during his warrantless detention, arrest, and search, arguing that they were unconstitutional. A jury convicted him. His 56-month sentence fell within the Guidelines. He argued on appeal that the police detectives lacked a reasonable suspicion to detain him and probable cause to arrest him. The court held that there was reasonable suspicion to stop him under Terry where the detectives were familiar with the smell of marijuana through training, they “smelled a strong odor of marijuana coming from Santiago’s car when it entered the parking lot and” it intensified when he opened his car door. He was also alone in the car. “The smell of an illegal substance, like marijuana, localized to a suspect supports a Terry stop.” Because the search took place after Santiago was arrested, the next issue was the lawfulness of the warrantless arrest under the Fourth Amendment. Such an “‘arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence,’ . . . even if the crime was ‘very minor[.]’” The court noted that it had “yet to address whether the smell of marijuana, localized to a particular person, is sufficient to constitute probable cause to arrest the person for the crime of marijuana possession.” At least four other circuits have found that it is, and the court agreed. Considering its case law holding that the smell of marijuana provided probable cause to search a car, it concluded that law enforcement officers “are justified in both contexts in believing that marijuana is present where they smell it.” But it is necessary for the officer to be able to “localize” the source of the smell to a particular person. For “the same reasons the detectives had reasonable suspicion to detain Santiago, they had probable cause to arrest him.” The court also rejected his substantive reasonableness challenge to his sentence, finding the district court properly reviewed the § 3553(a) factors, including his “‘[v]ery, very bad record with firearms in the past’; he was on parole and the firearm was loaded at the time of arrest; and he had” 19 prior criminal sentences. The court found that his “medical condition and frustrations with his legal representation do not make his within-Guidelines sentence substantively unreasonable.” Affirmed.

Stay pending arbitration; MCR 3.602(C); “Must”; “On just terms”

Holding that the trial court was required to stay the case pending arbitration, the court reversed and remanded for the trial court to reinstate the case and enter a stay of proceedings. Plaintiff-Moorehead worked for defendant-Van Buren Public Schools (Van Buren). Her “employment application contained an arbitration clause stating that she agreed to arbitrate any employment-related disputes.” She argued “that the trial court erred by refusing to stay proceedings rather than dismiss her complaint because caselaw, statutory law, and the court rules required the court to enter a stay.” The trial “court abused its discretion by denying the stay because MCL 691.1687(6) and (7), MCR 3.602(C), and caselaw required” it to enter one. The court rejected “Van Buren’s argument that the phrase ‘on just terms’ in MCL 691.1687(6) and (7) required the [trial] court to enter a stay only if ‘just terms’ required doing so. The phrase ‘on just terms’ did not render a stay discretionary; the statutory language did not require the court to determine whether granting a stay was ‘just.’ Rather, it required the court to stay proceedings ‘on just terms.’” Van Buren also argued “that the trial court did not err by dismissing the action rather than staying proceedings because Moorehead refuses to arbitrate her claims.” The court noted its “decision should not be interpreted as validating Moorehead’s refusal to arbitrate this dispute until our Supreme Court decides the case that she asserts entitles her refusal.” The court did “not hold that Moorehead was entitled to refuse to arbitrate this matter.” Rather, it held “that the trial court was required to stay the proceeding regardless of Moorehead’s motivations.” Further, it concluded that “if Moorehead fails to comply with a court order regarding arbitration on remand, including an order requiring her to select an arbitrator, the trial court may impose sanctions.”

Whether the parties’ marriage was fraudulent; Enforceability of the I-864 Affidavit of Support; 8 USC §§ 1183a(a)(1)(A), (a)(2), & (a)(3); 8 CFR § 213a(e)(2)(j); Mao v Bright (SD OH); Whether divorce terminates an immigration sponsor’s financial obligation; I-130 petition; 8 USC § 1186a(b); Ranjit Singh v United States (ND OH) (Unpub); Matter of P Singh (BIA); Matter of Monroe (BIA); Annulment; Gillett v Gillett; Judgment of divorce (JOD); Board of Immigration Appeals (BIA)

The court held that the trial court did not err by declining to find that the parties’ marriage was based on fraud perpetrated by defendant-ex-husband to gain immigration benefits. The parties were married in 2015, and in 2018 defendant was approved for his green card. Shortly thereafter, plaintiff-ex-wife claimed, defendant told her he didn’t love her and only married her to get his green card. The trial court later granted the JOD, but declined to find the marriage was fraudulent. On appeal, the court rejected plaintiff’s argument that there was clear and convincing evidence that defendant fraudulently induced her to marry him, and that the trial court erred by not issuing such a finding. “The issue of defendant’s motives for marrying came down to a classic he said-she said credibility contest, with no witnesses or documentation supporting either party’s positions. Plaintiff’s protestations regarding defendant’s marital motives, relying entirely on her own account of events, do not leave us with a definite and firm conviction that a mistake was made.” The court also declined plaintiff’s requests that the court: (1) find her to be relieved of her obligations under the I-864 based on a fraudulent marriage, and 2) find the marriage should be annulled and the JOD amended to stand as an annulment, noting it would not declare her “entitled to a remedy that is without legal underpinning.” It first found that “no matter what the trial court had included in the [JOD], plaintiff remains obligated under the I-864 that she signed, except through one of the five events stated in” § 213a.2(e)(2)(i). Plaintiff failed to establish that she qualified for any of them. As to her request for remand for an annulment, the court noted that “[b]ecause marital status does not factor into any of” the five bases under § 213a.2(e)(2)(i), “changing the divorce to an annulment would not provide plaintiff with the relief that she is seeking.” As such, “declining to consider this issue further would not result in manifest injustice, nor is consideration of it necessary for a proper determination of this case.” Affirmed.

Medical malpractice; Application of the Pandemic Health Care Immunity Act (PHCIA); MCL 30.411(4); MCL 691.1475 & 1477; Executive Orders 2020-30, 2020-61, & 2020-150; Comparing Warren v McLaren Flint & Skipper-Baines v Board of Hosp Managers for the City of Flint; “Gross negligence”; MCL 691.1473(a) & (e); Summary disposition under MCR 2.116(C)(8); El-Khalil v Oakwood Healthcare, Inc; Personal representative (PR)

Because it appeared at the pleading stage “that the decedent did not sustain injury by reason of healthcare services provided in support of the State of Michigan’s response to the COVID-19 pandemic,” the court reversed the trial court’s order granting defendants-medical providers summary disposition, and remanded. Plaintiff-PR sued defendants alleging their medical negligence caused the 88-year-old decedent’s death. The trial court, relying on the PHCIA, granted summary disposition for defendants. On appeal, the court, applying binding precedent, found defendants were “not immune from liability for medical malpractice and ordinary negligence.” It noted the “immunity conferred by the PHCIA in MCL 691.1475 just applies to injuries sustained ‘by reason of’ services provided by a healthcare provider or facility ‘in support of this state’s response to the COVID-19 pandemic.’” It observed that unlike “the plaintiff in Warren, the decedent in this case was not admitted to the hospital with symptoms of COVID-19, she was never treated for COVID-19, and there [was] no indication that she ever tested positive for COVID-19.” Indeed, those facts made “the request for immunity here even weaker than the immunity claim that [was] rejected in Skipper-Baines, where the decedent suffered injuries unrelated to COVID-19, but subsequently contracted COVID-19 while hospitalized, and then died of the disease.” The court rejected defendants’ argument that “even if the decedent developed pressure ulcers that were not properly diagnosed or treated, that deficiency was ‘a byproduct of the very demands, restrictions, protocols, uncertainties, and overall chaos considered by the governor and the legislature.’” It noted the trial court “granted summary disposition under MCR 2.116(C)(8), and nothing in the complaint even suggests that any factual basis for that argument exists.” And given that “relief under MCR 2.116(C)(8) depends on nothing but the contents of the pleadings,” it could not “review evidence or factual allegations presented by defendants.” Beyond that, if it accepted their “capacious approach to the immunity granted by the PHCIA in MCL 691.1475, ‘it is difficult to imagine any scenario in which a medical malpractice suit arising from acts and omissions occurring during the COVID-19 emergency could proceed.’” Further, as the court “astutely observed in Skipper-Baines, ‘[t]he Legislature and the Governor would not have limited the immunity conferred pursuant to this statute to services supporting the pandemic response if it actually intended for all medical providers to be immune from all liability short of gross negligence.’”

Whether the parties’ marriage was fraudulent; Enforceability of the I-864 Affidavit of Support; 8 USC §§ 1183a(a)(1)(A), (a)(2), & (a)(3); 8 CFR § 213a(e)(2)(j); Mao v Bright (SD OH); Whether divorce terminates an immigration sponsor’s financial obligation; I-130 petition; 8 USC § 1186a(b); Ranjit Singh v United States (ND OH) (Unpub); Matter of P Singh (BIA); Matter of Monroe (BIA); Annulment; Gillett v Gillett; Judgment of divorce (JOD); Board of Immigration Appeals (BIA)

The court held that the trial court did not err by declining to find that the parties’ marriage was based on fraud perpetrated by defendant-ex-husband to gain immigration benefits. The parties were married in 2015, and in 2018 defendant was approved for his green card. Shortly thereafter, plaintiff-ex-wife claimed, defendant told her he didn’t love her and only married her to get his green card. The trial court later granted the JOD, but declined to find the marriage was fraudulent. On appeal, the court rejected plaintiff’s argument that there was clear and convincing evidence that defendant fraudulently induced her to marry him, and that the trial court erred by not issuing such a finding. “The issue of defendant’s motives for marrying came down to a classic he said-she said credibility contest, with no witnesses or documentation supporting either party’s positions. Plaintiff’s protestations regarding defendant’s marital motives, relying entirely on her own account of events, do not leave us with a definite and firm conviction that a mistake was made.” The court also declined plaintiff’s requests that the court: (1) find her to be relieved of her obligations under the I-864 based on a fraudulent marriage, and 2) find the marriage should be annulled and the JOD amended to stand as an annulment, noting it would not declare her “entitled to a remedy that is without legal underpinning.” It first found that “no matter what the trial court had included in the [JOD], plaintiff remains obligated under the I-864 that she signed, except through one of the five events stated in” § 213a.2(e)(2)(i). Plaintiff failed to establish that she qualified for any of them. As to her request for remand for an annulment, the court noted that “[b]ecause marital status does not factor into any of” the five bases under § 213a.2(e)(2)(i), “changing the divorce to an annulment would not provide plaintiff with the relief that she is seeking.” As such, “declining to consider this issue further would not result in manifest injustice, nor is consideration of it necessary for a proper determination of this case.” Affirmed.

Homeowner’s insurance policy breach of contract action; Substantial compliance/performance; Gibson v Group Ins Co; The policy’s proof-of-loss requirement; Production-of-documents & examinations under oath (EUO) requirements; Waiver; Motions for directed verdict, JNOV & new trial; Whether a reasonable juror could have found that plaintiff did not comply with the policy’s conditions precedent; Whether evidence was admitted in violation of MRE 402, 403, 404, & 608(b); Jury instruction on the burden of establishing substantial compliance; M Civ JI 142.22; Evidence of the insurer’s policy interpretation

The court held that the trial court did not err in denying plaintiff-insured’s summary disposition motion as to compliance with the conditions precedent in her homeowner’s insurance policy because genuine issues of material fact existed. It also rejected her assertion that defendant-insurer (AAA) waived noncompliance as a defense. In addition, it upheld the trial court’s denial of her motions for directed verdict, JNOV, and new trial, rejecting her claim that “no reasonable juror could have found that she did not comply with the conditions precedent.” The case arose from damage to her home and contents caused by water originating from a second-floor bathroom. The court first found that a “genuine issue of material fact existed whether plaintiff complied with the proof-of-loss requirement. The evidence” showed that she submitted two proofs of loss to AAA but “AAA sent correspondence several times rejecting these proofs because they were not on AAA’s form and were missing information. In return,” her correspondence to AAA showed “that she believed her proofs were compliant and she would not send new” ones. A genuine issue of material fact also “existed whether plaintiff complied with the production-of-document and EUO requirements.” The court determined that she failed to “establish as a matter of law that she timely submitted sufficient proofs of loss to AAA, that she submitted sufficient documentation, that she permitted AAA to inspect her contents, or that she complied with AAA’s requests for EUOs. Because a genuine issue of fact existed whether plaintiff complied with the conditions precedent, a question of fact also existed whether her complaint was premature. These issues were properly presented to the jury.” The court further held that the trial court did not err in denying her “motions for directed verdict or JNOV because reasonable minds could differ on” material facts. In addition, the trial court did not abuse its discretion in denying her “a new trial because the record does not reveal that the evidence preponderated so heavily against the verdict that it would be a miscarriage of justice to allow it to stand.” The court also rejected her claims of evidentiary error and found that the challenged jury instruction on the burden of establishing substantial compliance with the conditions precedent “accurately instructed the jury[.]” Affirmed.

Stay pending arbitration; MCR 3.602(C); “Must”; “On just terms”

Holding that the trial court was required to stay the case pending arbitration, the court reversed and remanded for the trial court to reinstate the case and enter a stay of proceedings. Plaintiff-Moorehead worked for defendant-Van Buren Public Schools (Van Buren). Her “employment application contained an arbitration clause stating that she agreed to arbitrate any employment-related disputes.” She argued “that the trial court erred by refusing to stay proceedings rather than dismiss her complaint because caselaw, statutory law, and the court rules required the court to enter a stay.” The trial “court abused its discretion by denying the stay because MCL 691.1687(6) and (7), MCR 3.602(C), and caselaw required” it to enter one. The court rejected “Van Buren’s argument that the phrase ‘on just terms’ in MCL 691.1687(6) and (7) required the [trial] court to enter a stay only if ‘just terms’ required doing so. The phrase ‘on just terms’ did not render a stay discretionary; the statutory language did not require the court to determine whether granting a stay was ‘just.’ Rather, it required the court to stay proceedings ‘on just terms.’” Van Buren also argued “that the trial court did not err by dismissing the action rather than staying proceedings because Moorehead refuses to arbitrate her claims.” The court noted its “decision should not be interpreted as validating Moorehead’s refusal to arbitrate this dispute until our Supreme Court decides the case that she asserts entitles her refusal.” The court did “not hold that Moorehead was entitled to refuse to arbitrate this matter.” Rather, it held “that the trial court was required to stay the proceeding regardless of Moorehead’s motivations.” Further, it concluded that “if Moorehead fails to comply with a court order regarding arbitration on remand, including an order requiring her to select an arbitrator, the trial court may impose sanctions.”

Auto buyers' claims for fraud relating to vehicle emissions; “Conflict preemption”; In re Ford Motor Co F-150 & Ranger Truck Fuel Econ Mktg & Sales Practices Litig (Ford); Fenner v General Motors, LLC; Dismissal of plaintiffs’ RICO claim under the “indirect-purchaser rule”; Denial of plaintiffs’ post-judgment motion to vacate the judgment in part & to approve a preliminary settlement agreement; Environmental Protection Agency (EPA); Auxiliary emission control devices (AECDs); Nitrogen oxides (NOx); Racketeer Influenced & Corrupt Organizations (RICO) Act

[This appeal was from the ED-MI.] The court vacated the district court’s ruling that plaintiffs’ fraud claims related to vehicle emissions were preempted under the Clean Air Act and remanded for a determination of whether their remaining claims “‘implicate or challenge’ a determination of the EPA.” New U.S. motor vehicles are generally required to have an EPA “certificate of conformity” with all federal emissions standards. Manufacturers are required to disclose whether the vehicle is equipped with any AECDs, which can sometimes increase vehicle emissions. If an AECD is determined to be a “defeat device” (defeating the proper functioning of the emission control system), the EPA may not issue a certificate for that vehicle. Defendant-GM produced a diesel Chevy Cruz and was issued a certificate. It advertised “that the Cruzes featured ‘Clean Diesel’ technology.” Plaintiffs sued GM and another company, claiming they misled consumers about the emissions generated by the Cruzes. At this point in the litigation, plaintiffs’ only remaining fraud claims concerned whether defendants “‘fraudulently concealed one or more defeat devices’ in” plaintiffs’ Cruzes. These claims were based on two theories – “that the Cruzes’ NOx emissions were higher than ‘(ii) what a reasonable consumer would expect’ and ‘(iii) what GM had advertised.’” The district court initially denied defendants summary judgment as to those claims and granted them summary judgment on plaintiffs’ RICO claims. But after the court’s decision in Ford, it revisited its ruling and concluded that conflict preemption barred the fraud claims. It then entered judgment for defendants. Plaintiffs relied on Fenner in arguing on appeal that the claims were not preempted. Fenner held that claims based on the same theories were not preempted. It concluded that claims were not preempted where they “did ‘not implicate or challenge the EPA’s determinations’ that the AECD at issue was not a defeat device[,]’” and where at least some of “plaintiffs’ evidence in support of those theories ‘exists independently of EPA standards.’” The court declined to determine whether the same things were true here where the district court was in a better position to do so, and remanded for it “to decide whether, on this record, the plaintiffs’ remaining claims can proceed without relying in any way on a disagreement with the EPA’s determinations.” It affirmed the dismissal of their RICO claims under the indirect-purchaser rule and the denial of their post-judgment motion to vacate the judgment in part and to approve a preliminary settlement agreement that the other defendant had earlier terminated. Affirmed in part, vacated in part, and remanded.

Jurisdiction; The Declaratory Judgment Act; 28 USC § 2201(a); “Mixed action” for both coercive relief (damages) & non-coercive (declaratory) relief; Meredith v City of Winter Haven; Adrian Energy Assocs v Michigan Pub Serv Comm’n; Applicability of a traditional abstention doctrine; Louisianna Power & Light Co v City of Thibodaux

In an issue of first impression in this circuit, the court held that in a “mixed action” for damages (coercive relief) and declaratory relief (non-coercive) “the normal rules of mandatory jurisdiction and abstention” are to be applied to “coercive claims and the discretionary standard to declaratory judgment claims. If no traditional abstention doctrine applies to the coercive claim, the district court must exercise jurisdiction over that claim.” It found the district court erred when it remanded plaintiff-Fire-Dex’s claim for declaratory relief and defendant-Admiral’s counterclaim for such relief back to state court and entered a stay of Fire-Dex’s damages claims pending resolution of the state court case. The case involved an insurance-coverage dispute. Admiral sought a declaratory judgment in the district court, which exercised its discretion and declined to hear the case. Fire-Dex sued Admiral in state court for damages. Admiral removed that case to federal court and again sought a declaratory judgment. The district court then entered the order at issue on appeal. The court noted “district courts have much more leeway in declining to exercise jurisdiction over a claim for declaratory relief than” one for damages or an injunction. Section 2201(a)’s “discretionary standard applies regardless of whether the declaratory claim is part of a mixed action. But” the court concluded that “when the coercive and declaratory claims in a mixed action are tightly linked, it would most likely be an abuse of discretion to abstain on the declaratory claim.” It found the conflicting approaches used by other circuits “unpersuasive.” Turning to this case, it noted that in “justifying abstention on the declaratory claims, the district court relied on Thibodaux abstention, but” that did not apply. “And it would have been an abuse of discretion to abstain on the declaratory claims under the normal discretionary standard. Why? Because no traditional abstention doctrine supported not exercising jurisdiction over the damages claims, and one of those damages claims turned on the exact same legal issues as the declaratory claims.” Also, the district court could not abstain “from the declaratory claims based on its normal, expansive discretion to not exercise jurisdiction over declaratory claims.” Answering the damages question here required “an answer to the declaratory relief question—and vice-versa.” In addition, “no traditional abstention doctrine stood in the way of the normal rule of mandatory jurisdiction over the breach of contract damages claim. Therefore, it would be an abuse of discretion not to exercise jurisdiction over Fire-Dex’s declaratory claim and Admiral’s mirror-image declaratory counterclaim.” Vacated and remanded.

Medical malpractice; Application of the Pandemic Health Care Immunity Act (PHCIA); MCL 30.411(4); MCL 691.1475 & 1477; Executive Orders 2020-30, 2020-61, & 2020-150; Comparing Warren v McLaren Flint & Skipper-Baines v Board of Hosp Managers for the City of Flint; “Gross negligence”; MCL 691.1473(a) & (e); Summary disposition under MCR 2.116(C)(8); El-Khalil v Oakwood Healthcare, Inc; Personal representative (PR)

Because it appeared at the pleading stage “that the decedent did not sustain injury by reason of healthcare services provided in support of the State of Michigan’s response to the COVID-19 pandemic,” the court reversed the trial court’s order granting defendants-medical providers summary disposition, and remanded. Plaintiff-PR sued defendants alleging their medical negligence caused the 88-year-old decedent’s death. The trial court, relying on the PHCIA, granted summary disposition for defendants. On appeal, the court, applying binding precedent, found defendants were “not immune from liability for medical malpractice and ordinary negligence.” It noted the “immunity conferred by the PHCIA in MCL 691.1475 just applies to injuries sustained ‘by reason of’ services provided by a healthcare provider or facility ‘in support of this state’s response to the COVID-19 pandemic.’” It observed that unlike “the plaintiff in Warren, the decedent in this case was not admitted to the hospital with symptoms of COVID-19, she was never treated for COVID-19, and there [was] no indication that she ever tested positive for COVID-19.” Indeed, those facts made “the request for immunity here even weaker than the immunity claim that [was] rejected in Skipper-Baines, where the decedent suffered injuries unrelated to COVID-19, but subsequently contracted COVID-19 while hospitalized, and then died of the disease.” The court rejected defendants’ argument that “even if the decedent developed pressure ulcers that were not properly diagnosed or treated, that deficiency was ‘a byproduct of the very demands, restrictions, protocols, uncertainties, and overall chaos considered by the governor and the legislature.’” It noted the trial court “granted summary disposition under MCR 2.116(C)(8), and nothing in the complaint even suggests that any factual basis for that argument exists.” And given that “relief under MCR 2.116(C)(8) depends on nothing but the contents of the pleadings,” it could not “review evidence or factual allegations presented by defendants.” Beyond that, if it accepted their “capacious approach to the immunity granted by the PHCIA in MCL 691.1475, ‘it is difficult to imagine any scenario in which a medical malpractice suit arising from acts and omissions occurring during the COVID-19 emergency could proceed.’” Further, as the court “astutely observed in Skipper-Baines, ‘[t]he Legislature and the Governor would not have limited the immunity conferred pursuant to this statute to services supporting the pandemic response if it actually intended for all medical providers to be immune from all liability short of gross negligence.’”

Retaliatory prosecution claims; Governmental immunity; Vicarious liability for county employees’ alleged intentional torts; Whether an activity constitutes a governmental function; Margaris v Genesee Cnty; Injunctive relief against future criminal prosecutions; Jeffrey v Clinton Twp; Monetary damages claim against a local government for allegedly violating the Michigan Constitution; Prosecutorial immunity; Bischoff v Calhoun Cnty Prosecutor; Whether challenged conduct was quasi-judicial in nature or investigative/administrative; Buckley v Fitzsimmons

The court held that: (1) the trial court properly dismissed “plaintiff’s claims for injunctive and monetary relief under the Michigan Constitution”; (2) defendant-Wayne County was entitled to governmental immunity from vicarious liability for its employees’ alleged intentional torts; (3) “prosecutors are entitled to absolute immunity only for judicial or quasi-judicial functions, and qualified immunity for administrative or investigative acts” and (4) defendants’ challenges to the sufficiency of plaintiff’s original complaint were moot in light of his amended complaint. Given that plaintiff alleged defendant-assistant prosecutor’s (Doherty) conduct fell into the administrative/investigative act category, the court reversed the trial court’s grant of absolute immunity and remanded “for proceedings consistent with a qualified immunity analysis.” It also reversed the denial of summary disposition for Wayne County based on governmental immunity. It affirmed as to plaintiff’s claims for injunctive and monetary relief under the state constitution. He asserted that the County retaliated against him for suing it in federal court, by “reviving a dormant criminal case and selectively prosecuting him for bringing that suit. The charges against [him] were ultimately dismissed (twice) for lack of evidence.” On appeal, the court concluded that, as in Margaris, the conduct at issue here fell “within the core functions of local government. Representing the County in civil litigation, prosecuting criminal charges, and employing attorneys to perform those functions all fall within the general scope of government activity. Because the analysis focuses on the general nature—and not the specific actions Doherty” or a County assistant corporate counsel were “alleged to have taken in the course of their duties—Wayne County is immune from vicarious liability under the government immunity act.” As to Doherty, noting that “the law on this subject is unsettled,” the court agreed with plaintiff “that Doherty is not entitled to absolute immunity.” While Bischoff was not controlling, the court found its approach as to “the distinction between absolute immunity for quasi-judicial acts and only qualified immunity for investigative or administrative conduct” persuasive. And it concluded only qualified immunity applied where plaintiff’s allegations suggested “Doherty’s conduct was aimed at reviving a dormant prosecution and falls within the category of investigative or administrative acts, not quasi-judicial ones.”

Retaliatory prosecution claims; Governmental immunity; Vicarious liability for county employees’ alleged intentional torts; Whether an activity constitutes a governmental function; Margaris v Genesee Cnty; Injunctive relief against future criminal prosecutions; Jeffrey v Clinton Twp; Monetary damages claim against a local government for allegedly violating the Michigan Constitution; Prosecutorial immunity; Bischoff v Calhoun Cnty Prosecutor; Whether challenged conduct was quasi-judicial in nature or investigative/administrative; Buckley v Fitzsimmons

The court held that: (1) the trial court properly dismissed “plaintiff’s claims for injunctive and monetary relief under the Michigan Constitution”; (2) defendant-Wayne County was entitled to governmental immunity from vicarious liability for its employees’ alleged intentional torts; (3) “prosecutors are entitled to absolute immunity only for judicial or quasi-judicial functions, and qualified immunity for administrative or investigative acts” and (4) defendants’ challenges to the sufficiency of plaintiff’s original complaint were moot in light of his amended complaint. Given that plaintiff alleged defendant-assistant prosecutor’s (Doherty) conduct fell into the administrative/investigative act category, the court reversed the trial court’s grant of absolute immunity and remanded “for proceedings consistent with a qualified immunity analysis.” It also reversed the denial of summary disposition for Wayne County based on governmental immunity. It affirmed as to plaintiff’s claims for injunctive and monetary relief under the state constitution. He asserted that the County retaliated against him for suing it in federal court, by “reviving a dormant criminal case and selectively prosecuting him for bringing that suit. The charges against [him] were ultimately dismissed (twice) for lack of evidence.” On appeal, the court concluded that, as in Margaris, the conduct at issue here fell “within the core functions of local government. Representing the County in civil litigation, prosecuting criminal charges, and employing attorneys to perform those functions all fall within the general scope of government activity. Because the analysis focuses on the general nature—and not the specific actions Doherty” or a County assistant corporate counsel were “alleged to have taken in the course of their duties—Wayne County is immune from vicarious liability under the government immunity act.” As to Doherty, noting that “the law on this subject is unsettled,” the court agreed with plaintiff “that Doherty is not entitled to absolute immunity.” While Bischoff was not controlling, the court found its approach as to “the distinction between absolute immunity for quasi-judicial acts and only qualified immunity for investigative or administrative conduct” persuasive. And it concluded only qualified immunity applied where plaintiff’s allegations suggested “Doherty’s conduct was aimed at reviving a dormant prosecution and falls within the category of investigative or administrative acts, not quasi-judicial ones.”

Judicial estoppel; Spohn v Van Dyke Pub Sch; Ownership; Unjust enrichment or quantum meruit

The court concluded that “judicial estoppel bars [plaintiff-]Lauren from claiming ownership of the home she once disavowed, but it does not necessarily bar her from seeking compensation for what she put into it.” Thus, it affirmed the trial court’s dismissal of her constructive trust, breach of contract, quiet title, and injunctive relief claims, reversed the dismissal of her claims for unjust enrichment or quantum meruit, and remanded. The case involved family members entering into an informal agreement regarding property. “Lauren’s claim for constructive trust, breach of contract, quiet title, and injunctive relief are all ultimately derived from her asserted ownership interest in the house.” Because she “unambiguously denied having any such ownership interest in her bankruptcy petition,” the court affirmed the trial court’s grant of summary disposition on those counts. As defendant-Kathryn correctly noted, “Lauren responded ‘No’ when asked in her bankruptcy petition whether she had ‘any legal or equitable interest in any residence, building, land, or similar property.’ Under Spohn, her claims that are predicated on her being the true owner of the house are precluded by judicial estoppel.” Lauren also raised a claim for unjust enrichment or quantum meruit. The court found that her “unjust enrichment claim does not depend on any interest in the house—indeed, the claim can be brought only if she is denied any legal or equitable interest in the house.” Thus, it agreed that she is judicially estopped from recovering certain expenses and affirmed “the trial court’s ruling to that extent.” But it disagreed “that her claim for unjust enrichment or quantum meruit is entirely barred by her bankruptcy statement disclaiming any interest in the house.”