Attar 2018, LLC v. City of Taylor

611 F.Supp.3d 411

ATTAR 2018, LLC, Hope 2014, LLC, and Investment Realty Services, LLC, Plaintiffs,

v.CITY OF TAYLOR, Defendant.

Civil Case No. 19-10199

United States District Court, E.D. Michigan, Southern Division.

Signed February 3, 2020

Mark K. Wasvary, Mark K. Wasvary, P.C., Troy, MI, Aaron D. Cox, Law Offices of Aaron D. Cox PLLC, Taylor, MI, for Plaintiffs Attar 2018, LLC, Hope 2014, LLC.

Aaron D. Cox, Law Offices of Aaron D. Cox PLLC, Taylor, MI, for Plaintiff Investment Realty Services, LLC.

Eric Steven Esshaki, Michelle Dean Champane, Howard W. Burdett, Jr., Howard & Howard Attorneys PLLC, Royal Oak, MI, for Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

LINDA V. PARKER, U.S. DISTRICT JUDGE

This putative class action lawsuit was filed on January 21, 2019, to challenge the City of Taylor's alleged "policy, practice, and custom of imposing unlawful grass cutting and yard maintenance fees" on property owners. (See Am. Compl. ¶ 1, ECF No. 9 at Pg ID 45.) In an Amended Complaint filed March 27, 2019, Plaintiffs bring claims against the City of Taylor ("City") under 42 U.S.C. § 1983 for alleged violations of their Fourteenth Amendment procedural due process rights (Count One), their Eighth Amendment right to be free from excessive fines (Count Two), and denial of their Fourteenth Amendment appeal rights (Count Three).¹ Plaintiffs also assert a state law unjust enrichment claim (Count Four). The matter is presently before the Court on the City's motion to dismiss, filed pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12.) The motion has been fully briefed. (ECF Nos. 13, 15.) Finding the facts and legal arguments sufficiently presented in the parties' briefs, the Court is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f).

I. Rule 12(b)(6) Standard

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp. , 78 F.3d 1125, 1134 (6th Cir. 1996). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," but it must contain more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action...." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint does not "suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

As the Supreme Court provided in Iqbal and Twombly , "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). The plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct]." Twombly , 550 U.S. at 556, 127 S.Ct. 1955.

In deciding whether the plaintiff has set forth a "plausible" claim, the court must accept the factual allegations in the complaint as true. Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). This presumption is not applicable to legal conclusions, however. Iqbal , 556 U.S. at 668, 129 S.Ct. 1937. Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

Ordinarily, the court may not consider matters outside the pleadings when deciding a Rule 12(b)(6) motion to dismiss. Weiner v. Klais & Co., Inc. , 108 F.3d 86, 88 (6th Cir. 1997) (citing Hammond v. Baldwin , 866 F.2d 172, 175 (6th Cir. 1989) ). A court that considers such matters must first convert the motion to dismiss to one for summary judgment. See Fed. R. Civ. P 12(d). However, "[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the [c]omplaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to [the] defendant's motion to dismiss, so long as they are referred to in the [c]omplaint and are central to the claims contained therein." Bassett v. Nat'l Collegiate Athletic Ass'n , 528 F.3d 426, 430 (6th Cir. 2008). The court may take judicial notice only " ‘of facts which are not subject to reasonable dispute.’ " Jones v. Cincinnati , 521 F.3d 555, 562 (6th Cir. 2008) (quoting Passa v. City of Columbus , 123 F. App'x 694, 697 (6th Cir. 2005) ).

II. Factual and Procedural Background

A. The City's Weed Control Policies

Pursuant to the authority granted under Michigan's Home Rule City Act, Mich. Compiled Laws § 117.3(k), the City adopted the 2012 International Property Maintenance Code ("IPMC") and enacted amended sections of the IPMC in its Code of Ordinances. (Am. Compl. ¶¶ 4-6, ECF No. 9 at Pg ID 46-47); see also https://www.cityoftaylor.com/231/Building-Department. Section 302.4 of the IPMC ("Weed Ordinance"), as amended in Section 8.43 of the City's Code of Ordinances, reads:

Premises and exterior property shall be maintained free from weeds or plant growth in excess of eight inches. Noxious weeds shall be prohibited. Weeds shall be defined as all grasses, annual plants and vegetation, other than trees or shrubs provided; however, this term shall not include cultivated flowers and gardens.

Upon failure of the owner or agent having charge of a property to cut and destroy weeds after service of a notice of violation, they shall be subject to prosecution in accordance with Section 106.3^{[2 ]} and as prescribed by the authority having jurisdiction. Upon failure to comply with the notice of violation, any duly authorized employee of the jurisdiction or contractor hired by the jurisdiction shall be authorized to enter upon the property in violation and cut and destroy the weeds growing thereon, and the costs of such removal shall be paid by the owner or agent responsible for the property.

See https://library.municode.com/mi/taylor/codes/code_of_ordinances; see also https://www.hs-sd.org/assets/docs/uploads/Planning-Administrator/icc.ipmc.2012.pdf. The City hires outside vendors to remedy violations of the Weed Ordinance. (Am. Compl. ¶ 23, ECF No. 9 at Pg ID 50-51.)

Weed control also is addressed in Section 20-148 of the City's Code of Ordinances. See https://library.municode.com/mi/taylor/codes/code_of_ordinances. This provision states that when weed violations are found, the City "shall provide written notice or, in the alternative, by posting on the property and in City Hall, to the owner, agent or occupant of any land on which [the violation occurs]" that the weeds must be removed within ten days after service of the notice.³ Id. § 20-148(a). Section 20-148 further states that if the owner fails to "destroy the noxious weeds or cause them to be destroyed," the City will enter the property and do so and that the City will continue to remove the weeds, "at the owner's expense, until it receives actual written notice by the owner that he shall remedy the [violation] on an ongoing basis." Id. Section 20-148 provides that "[a]ny expense incurred in the destruction shall be paid by the owner of the land according to the rate schedule approved by the city council" and that "[t]he city shall have a lien against the land for the amount of the expense." Id. "[I]f the owner fails to pay the expense, the lien shall be enforced in the same manner provided by law or enforcement of delinquent special assessment tax liens." Id. A violation of the Weed Ordinance constitutes a municipal civil infraction. Id. § 20-148(c).

The City's website reflects that if a violation of the Weed Ordinance is not corrected by the deadline provided on the notice left at the property, "[t]he property owner will be responsible for all costs associated with the cutting as well as a $250 administration fee each time the property is cut." http://www.cityoftaylor.com/1363/Grass-cutting-and-weed-control. The website includes images of the stickers the City states it posts to warn property owners of a violation.⁴ Id. According to the website, an orange sticker "is a warning notice" alerting property owners that they have ten days to correct the violation.⁵ Id. A green sticker informs property owners that their property has been added to the grass cutting list.⁶ Id. The letter the City purportedly sends property owners whose property is identified as having overgrown or noxious weeds also is posted on its website.⁷ See http://www.cityoftaylor.com/DocumentCenter/View/266/Property-Maintenance-Grass-Removal-Letter-PDF?bidId.

B. Plaintiffs & Their Receipt of City Invoices for Weed Control Violations

Plaintiff Attar 2018, LLC ("Attar") owns property commonly known as 15665 Kerstyn, Taylor, Michigan ("Kerstyn property"). (Am. Compl. ¶ 3, ECF No. 9 at Pg ID 45.) Plaintiff Hope 2014, LLC ("Hope") owns property commonly known as 25978 Superior, Taylor, Michigan ("Superior property"). (Id. ) Plaintiff Investment Realty Services, LLC ("IRS") owns two properties in Taylor, Michigan: 7521 Katherine ("Katherine property") and 27051 Joan ("Joan property"). (Id. )

In August 2018, Attar and Hope received invoices from the City for fees under the Weeds Ordinance and/or Nuisance Ordinance. (Id. ¶ 38, Pg ID 52-53.) The invoices indicated that they were for the actual costs the City paid to a vendor to remedy the weed...