Dangerous animal complaint; MCL 287.322; Dangerous animal; MCL 287.321(a)(ii); Provocation; MCL 287.321(d); Objective reasonable-person standard; Statutory interpretation; In re Bradley Estate; Unpreserved civil issue; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC; Mootness

Noting the previous lack of published authority on the definition of “provoke” in the statute, the court held that the district court applied the wrong standard when deciding whether the dog (Chance) was provoked under MCL 287.321(d). After a guest put her face within less than six inches of Chance’s face and loudly scolded him over a shoe, Chance bit off part of her nose. The district court found Chance was a “dangerous animal” and ordered euthanasia, and the circuit court affirmed. On appeal, the court held that the statutory definition of “provoke” requires a “wholly objective standard.” The proper inquiry was whether the guest’s conduct constituted “a willful act or omission that an ordinary and reasonable person would conclude is likely to precipitate the bite or attack by an ordinary dog or animal.” The district court instead relied partly on the guest’s subjective familiarity with Chance and her comfort getting close to him, reasoning that she “obviously felt” familiar enough with him to do so. The court concluded this misconstrued MCL 287.321(d). It also noted the district court failed to make credibility findings on whether the guest was waving the shoe, which mattered because the testimony conflicted on that point. The court declined to review respondent’s unpreserved argument about a clear-and-convincing-evidence standard and held that the challenge to the denial of relief from judgment was moot. Reversed, vacated, and remanded.

§ 1983, qualified immunity/appellate jurisdiction

Action under 42 USC § 1983 alleging excessive force; Qualified immunity; Appellate jurisdiction; Two exceptions to the rule prohibiting fact-based interlocutory appeals; Cotton v Hughes; Conceding the most favorable view of the facts to plaintiff; “Blatantly” & “demonstrably false” determination that a factual dispute exists  

Holding that neither of the two narrow exceptions to the rule prohibiting fact-based interlocutory appeals applied, the court granted plaintiff-Lovell’s motion to dismiss defendants-officers’ appeal of the denial of qualified immunity and summary judgment. He sued defendants under § 1983, alleging the officers used excessive force while booking him into the county jail. The court noted that its “jurisdiction over interlocutory appeals of qualified-immunity denials is sharply circumscribed.” It is limited to purely legal questions. One exception allowing fact-based interlocutory appeals allows a defendant to invoke the court’s “jurisdiction by ‘conced[ing] the most favorable view of the facts to the plaintiff for purposes of the appeal.’” The other allows the court, in exceptional circumstances, “‘to overrule a district court’s determination that a factual dispute exists where’” record evidence establishes it “is ‘blatantly and demonstrably false.’” The court noted that the officers described “their appeal as challenging the district court’s ‘determination that a genuine issue of material fact exists as to whether [their] actions violated a clearly established constitutional right,’ – the very thing” it was prohibited from reviewing. Thus, it lacked jurisdiction unless one of the exceptions applied. The first did not apply because while the officers professed to do so, they did not concede the facts. “Their recitation of facts and the substance of their briefing” belied their concession. Second, the court concluded the record did not blatantly contradict the district court’s determination that a genuine factual dispute existed. The video evidence did “not blatantly contradict Lovell’s version of events.”

No-contest pleas; Motion to withdraw plea; MCR 6.310(C)(3); Preliminary exam; Waiver; MCL 767.42(1); MCL 766.4(4); Unconditional plea; People v McKinley; Subject-matter jurisdiction; Personal jurisdiction; People v Eaton; Preliminary exam as waivable right; People v Hall; Implied consent to personal jurisdiction; People v Lown; Ineffective assistance of counsel; Preliminary exam waiver without consent; Ginther hearing; People v Ginther; Plea prejudice; People v Pennington

The court held that defendant failed to identify an error in the plea proceedings that would allow him to withdraw his no-contest pleas, and he failed to establish ineffective assistance of counsel. Defendant pled no contest in consolidated home-invasion cases after no preliminary exams were held, and the trial court denied his later motions to withdraw his pleas and dismiss the cases. On appeal, the court first held that he did not satisfy MCR 6.310(C)(3) because he “identifie[d] no error in the plea proceeding” and made no cogent argument that the rule’s requirements were met. The court rejected his claim that the lack of preliminary exams deprived the circuit court of “procedural jurisdiction,” explaining that Michigan recognizes subject-matter and personal jurisdiction, not procedural jurisdiction. It reasoned that a preliminary exam is “not an absolute prerequisite” to subject-matter jurisdiction because MCL 767.42(1) and MCL 766.4(4) allow waiver, and under Hall, a defendant who pleads to the information without objecting to the absence of an examination or valid waiver “is deemed to have waived that right.” The court also held that defendant consented to personal jurisdiction by entering no-contest pleas and participating in the proceedings, including by repeatedly expressing his willingness to plead and “accept [his] responsibility.” Finally, the court held that his ineffective-assistance claim failed. As to one case, defendant stated on the record that he waived the preliminary exam, and as to the other, even assuming deficient performance, he could not show plea prejudice under Pennington because there was no evidence better advocacy would have produced a better offer or that he would have gone to trial. Affirmed.

Pretrial detention; Bail Reform Act; 18 USC § 3142(e)(1); Review of detention decision; United States v Hazime; United States v Stone; Dangerousness; § 3142(g); Cyberstalking; § 2261A(2); Interstate communications involving threats; § 875(c); Threat to individual or community; United States v Munchel (DC Cir); Conditions of release; Internet monitoring; Home detention

[This appeal was from the ED-MI.] The court held that the Bail Reform Act required defendant’s pretrial detention because the government proved by clear and convincing evidence that he was dangerous and no release conditions would reasonably assure public safety. A grand jury indicted defendant for cyberstalking and transmitting interstate threats after online posts and messages involving federal law-enforcement officers, supporters, and the alleged doxxing of J.S. A magistrate judge ordered him detained, but the district court released him with conditions including GPS monitoring, home detention, restricted internet access, a social-media ban, and a no-threats condition. On appeal, the court first held that de novo review applied to the ultimate detention decision under Hazime and Stone. It then held that the § 3142(g) factors supported detention. The charged offenses weighed in favor of detention because they involved alleged threats to harm J.S., and attempts to minimize the risk were unpersuasive because there is no rule allowing “cyberstalking or interstate threats so long as the victim has a controversial persona.” The weight of the dangerousness evidence also favored detention because defendant’s posts included statements the district court accepted could be read as “actual threats,” including calls to “fight” federal agents and “[g]et your . . . guns and stop” them. The court also relied on private messages in which defendant allegedly entertained a request to help “kill” J.P. by offering to pass “credible verifiable information” to his “team.” The court further held that the nature and seriousness of the danger were significant because internet-based threats and doxxing pose “well-documented harms,” and defendant’s threats toward law enforcement were strong evidence of danger. Finally, the court held that the district court’s release conditions were insufficient because they mostly “hinge on” defendant’s “good faith compliance,” internet monitoring was easy to evade, and GPS or home detention would not prevent online threats or inducing others to act. Reversed.

Medical malpractice; Standard of care; Expert testimony; Elher v Misra; Proximate causation; MCL 600.2912a(2); Cause in fact; Taylor v Kent Radiology; Circumstantial evidence; Reasonable inference of causation; Robins v Garg

The court held that plaintiff’s expert testimony created a genuine issue of material fact as to causation in this medical-malpractice action arising from the decedent’s death after an elective abortion and IUD placement. Plaintiff alleged defendants failed to timely recognize and treat a uterine perforation and thrombotic complications that led to a fatal pulmonary embolism. The trial court granted summary disposition for all defendants, reasoning that causation could not be established because no expert could definitively identify whether the fatal emboli originated in the decedent’s uterine veins or lower extremities. On appeal, the court held that plaintiff did not have to identify and trace “a particular clot” through the decedent’s body. Rather, plaintiff only had to show “a reasonable likelihood of probability” and “a fair amount of certainty.” Viewed in plaintiff’s favor, the testimony allowed a reasonable jury to find that timely recognition and treatment of the uterine perforation “more probably than not would have prevented the fatal pulmonary embolism, regardless of the precise origin of the thrombi.” The court emphasized expert testimony that surgery could have addressed the uterine-vein thrombosis, heparin would have prevented a pulmonary embolus, the perforation caused the thrombi and emboli, and timely diagnosis would have led to referral or surgical care. Thus, the trial court improperly weighed uncertainty about the clot’s source rather than recognizing a triable causation issue. Reversed and remanded.

Removal; Class Action Fairness Act (CAFA); 28 USC § 1332(d); 30-day limitation on removing a case to federal court; § 1446(b)(1); Enbridge Energy, LP v Nessel ex rel MI; Whether plaintiffs’ class certification attempt in state court after remand “reset the removal clock”; § 1446(b)(3); Metz v Unizan Bank; CAFA jurisdiction after denial of class certification; Panel rehearing petition; Rule 60(b); Forfeiture; United States v Dairy Farmers of Am, Inc

In an amended opinion (see eJournal # 85842 in the 6/11/26 edition for the original opinion), the court again held that defendant-GateHouse Media’s second removal of plaintiffs’ putative class action to federal court was untimely under the 30-day deadline, and that equitable tolling of the removal deadline was foreclosed under the Supreme Court’s decision in Enbridge. This case was originally filed in state court, then timely removed under the CAFA to federal court, which eventually denied class certification and remanded to state court on the basis federal jurisdiction disappeared with the certification denial. Eight months later, plaintiffs filed a renewed motion in state court to certify a class, and GateHouse responded by again removing the case to federal court based on the CAFA. Plaintiffs argued that the removal was untimely and moved for remand to state court, but the district court denied the motion based on equitable tolling. On appeal, the court first rejected GateHouse’s argument that plaintiffs’ class certification attempt in state court after remand reset the removal clock because “once commenced, that clock cannot be reset by later developments in a case, including those tied to class certification.” The court noted that the prior remand was improper, as a denial of class certification “‘does not divest federal courts of [CAFA] jurisdiction.’” However, despite this, “the district court was not authorized to absolve GateHouse of the untimeliness of its second removal.” The Supreme Court recently addressed the viability of equitable tolling in the removal context in Enbridge, and held that § 1446(b)(1)’s 30-day deadline cannot be equitably tolled. In the amended portion of the opinion, the court declined to alter its remand instruction based on GateHouse’s Rule 60(b) motion because GateHouse mentioned the motion only once, “in a footnote at that,” and that “passing reference” did not preserve the issue. Reversed with instructions to remand to state court.

§ 1983, qualified immunity/appellate jurisdiction

Action under 42 USC § 1983 alleging excessive force; Qualified immunity; Appellate jurisdiction; Two exceptions to the rule prohibiting fact-based interlocutory appeals; Cotton v Hughes; Conceding the most favorable view of the facts to plaintiff; “Blatantly” & “demonstrably false” determination that a factual dispute exists  

Holding that neither of the two narrow exceptions to the rule prohibiting fact-based interlocutory appeals applied, the court granted plaintiff-Lovell’s motion to dismiss defendants-officers’ appeal of the denial of qualified immunity and summary judgment. He sued defendants under § 1983, alleging the officers used excessive force while booking him into the county jail. The court noted that its “jurisdiction over interlocutory appeals of qualified-immunity denials is sharply circumscribed.” It is limited to purely legal questions. One exception allowing fact-based interlocutory appeals allows a defendant to invoke the court’s “jurisdiction by ‘conced[ing] the most favorable view of the facts to the plaintiff for purposes of the appeal.’” The other allows the court, in exceptional circumstances, “‘to overrule a district court’s determination that a factual dispute exists where’” record evidence establishes it “is ‘blatantly and demonstrably false.’” The court noted that the officers described “their appeal as challenging the district court’s ‘determination that a genuine issue of material fact exists as to whether [their] actions violated a clearly established constitutional right,’ – the very thing” it was prohibited from reviewing. Thus, it lacked jurisdiction unless one of the exceptions applied. The first did not apply because while the officers professed to do so, they did not concede the facts. “Their recitation of facts and the substance of their briefing” belied their concession. Second, the court concluded the record did not blatantly contradict the district court’s determination that a genuine factual dispute existed. The video evidence did “not blatantly contradict Lovell’s version of events.”

Medical malpractice; Standard of care; Expert testimony; Elher v Misra; Proximate causation; MCL 600.2912a(2); Cause in fact; Taylor v Kent Radiology; Circumstantial evidence; Reasonable inference of causation; Robins v Garg

The court held that plaintiff’s expert testimony created a genuine issue of material fact as to causation in this medical-malpractice action arising from the decedent’s death after an elective abortion and IUD placement. Plaintiff alleged defendants failed to timely recognize and treat a uterine perforation and thrombotic complications that led to a fatal pulmonary embolism. The trial court granted summary disposition for all defendants, reasoning that causation could not be established because no expert could definitively identify whether the fatal emboli originated in the decedent’s uterine veins or lower extremities. On appeal, the court held that plaintiff did not have to identify and trace “a particular clot” through the decedent’s body. Rather, plaintiff only had to show “a reasonable likelihood of probability” and “a fair amount of certainty.” Viewed in plaintiff’s favor, the testimony allowed a reasonable jury to find that timely recognition and treatment of the uterine perforation “more probably than not would have prevented the fatal pulmonary embolism, regardless of the precise origin of the thrombi.” The court emphasized expert testimony that surgery could have addressed the uterine-vein thrombosis, heparin would have prevented a pulmonary embolus, the perforation caused the thrombi and emboli, and timely diagnosis would have led to referral or surgical care. Thus, the trial court improperly weighed uncertainty about the clot’s source rather than recognizing a triable causation issue. Reversed and remanded.

Dangerous animal complaint; MCL 287.322; Dangerous animal; MCL 287.321(a)(ii); Provocation; MCL 287.321(d); Objective reasonable-person standard; Statutory interpretation; In re Bradley Estate; Unpreserved civil issue; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC; Mootness

Noting the previous lack of published authority on the definition of “provoke” in the statute, the court held that the district court applied the wrong standard when deciding whether the dog (Chance) was provoked under MCL 287.321(d). After a guest put her face within less than six inches of Chance’s face and loudly scolded him over a shoe, Chance bit off part of her nose. The district court found Chance was a “dangerous animal” and ordered euthanasia, and the circuit court affirmed. On appeal, the court held that the statutory definition of “provoke” requires a “wholly objective standard.” The proper inquiry was whether the guest’s conduct constituted “a willful act or omission that an ordinary and reasonable person would conclude is likely to precipitate the bite or attack by an ordinary dog or animal.” The district court instead relied partly on the guest’s subjective familiarity with Chance and her comfort getting close to him, reasoning that she “obviously felt” familiar enough with him to do so. The court concluded this misconstrued MCL 287.321(d). It also noted the district court failed to make credibility findings on whether the guest was waving the shoe, which mattered because the testimony conflicted on that point. The court declined to review respondent’s unpreserved argument about a clear-and-convincing-evidence standard and held that the challenge to the denial of relief from judgment was moot. Reversed, vacated, and remanded.

Jurisdiction; MCL 712A.2(b)(2); “Neglect” (MCL 722.602(1)(d)); Distinguishing In re Lange; Termination under §§ 19b(3)(b)(i), (b)(ii), (g), (j), & (k)(ii); Doctrine of anticipatory neglect; In re Mota; Requirement that the trial court assess the current situation

The court held that while the trial court did not clearly err in exercising jurisdiction under MCL 712A.2(b)(2), it did clearly err in finding statutory grounds to terminate respondent-mother’s parental rights. Thus, it affirmed in part, reversed in part, vacated the termination order, and remanded. A preponderance of the evidence supported the “finding that respondent, ‘by reason of neglect,’ failed to provide” the child (CP) “a fit ‘home or environment.’” Immediately after CP was born, respondent reported to CPS “‘that there wasn’t a home to go to’ and failed to seek other reasonable housing alternatives.” The court noted that it was CP’s situation that was at issue – while respondent lived in a facility, its rules did not permit children. She relied on Lange, but the court found it distinguishable. Here, respondent chose to participate in a “program knowing that it did not accommodate children, and [she] did not seek out alternative living arrangements for herself or her soon-to-be-born child.” As to statutory grounds for termination, the court held that § (g) was not established because the record did “not support a finding that there was no reasonable expectation that respondent would be able to provide such care and custody within a reasonable time considering” CP’s age. By the time of the trial, she “had fully and successfully participated in multiple forms of educational and therapeutic programming, had made significant progress in striving toward stability and independence, and had support systems in place as she emerged from the” program. As to §§ (b)(i), (b)(ii), (j), and (k)(ii), the court addressed the doctrine of anticipatory neglect. It noted that “‘probative’ does not mean dispositive or conclusive, and the probative value of the evidence in question depends on the circumstances of each individual case.” While respondent’s past abuse of CP’s sibling (MP) was “disturbing, the trial court was required to assess respondent’s (and CP’s) current situation to determine whether there is a reasonable likelihood that CP would be harmed in respondent’s care. The record” showed that the abuse of MP took place in 2017, “when respondent was a 19-year-old victim of human trafficking and directed by her own abuser to commit the abusive acts. It also” showed that she was “now far removed from that world[.]”

Reasonable reunification efforts; MCL 712A.19a(2); In re Walters; Efforts with an incarcerated parent; In re Mason; Plain error review; Michigan Department of Corrections (MDOC)

Holding that the trial court plainly erred in finding that the DHHS made reasonable reunification efforts and that the error affected respondent-father’s substantial rights, the court vacated the order terminating his parental rights and remanded. While the DHHS’s “supplemental petition alleged the aggravating circumstance of abandonment [it] ultimately opted not to pursue that theory.” Thus, there were no aggravated circumstances to excuse it from making reasonable efforts. There was “no dispute that MDOC’s policies and the circumstances of father’s incarceration impacted” the reunification efforts. But “the caseworker did not testify about steps she took to identify services for [him] or how she tried to adjust [his] service plan given his incarceration and MDOC’s policy decision not to provide him with MDOC services until he was closer to his release date.” While she was able to send him mail, there was “also no indication in the record that she sent father materials to work on in lieu of more formal services when, ‘[a]t the very least, the caseworker must provide available workbooks for [a parent] to complete, as has been done in many other cases involving incarcerated parents.’” Further, the court’s review of MDOC’s visitation policy that was effective on 5/5/25, showed that it did not prohibit respondent from visiting with the child, “either in-person or by video. In fact, the MDOC policy directive contains a specific process for DHHS employees or privately-run agencies working under a contract with DHHS to facilitate either an in-person or video visit between a prisoner and their child.” There were no visits in this case “due to the current caseworker’s reliance on” a trial court order reflecting that the facility did not currently permit parenting time. The court concluded from the record that the DHHS failed to make reasonable reunification efforts “by navigating MDOC policy to arrange in-person or virtual visits between” respondent and the child “and provide father with services that he could actually participate in and benefit from.” In addition, he established prejudice.