Embed Size (px)
Citation preview
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HACK, et al.,
Plaintiffs, Hon. Marianne O. Battani
Case No. 2:18-cv-13330
v.
CHARTER TOWNSHIP OF MILFORD, et al.,
Defendants.
MICHELLE C. HARRELL (P48768)
R.J. CRONKHITE (P78374)
Maddin, Hauser, Roth & Heller, P.C.
Attorneys for Plaintiffs
28400 Northwestern Hwy, 2nd Floor
Southfield, MI 48034
(248) 351-7017
JULIE McCANN O’CONNOR
(P38484)
JAMES E. TAMM (P38154)
RICHARD V. STOKAN, JR. (P61997)
KEVIN A. MCQUILLAN (P79083)
O’Connor, DeGrazia, Tamm &
O’Connor, P.C.
Attorneys for Defendants
40701 Woodward Avenue, Ste. 105
Bloomfield Hills, MI 48304
(248) 433-2000
DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO
DEFENDANTS’ EMERGENCY MOTION FOR STAY OF PROCEEDINGS
TO ENFORCE JUDGMENT AND OBJECTIONS TO REQUESTS AND
WRITS FOR GARNISHMENT
Case 2:18-cv-13330-MOB-EAS ECF No. 111 filed 11/22/19 PageID.3351 Page 1 of 8
2
Defendants filed this Emergency Motion for Stay of Proceedings to Enforce
Judgment and Objections to Requests and Writs for Garnishment after Plaintiffs’
counsel filed writs for garnishments against Defendants Donald Green and Timothy
Brandt seeking to recover $394,000.00 of a $400,000.00 judgment.1 (See ECF Nos.
100-101). Subsequent to filing the motion, Milford Township received notice
pursuant to M.C.L. § 600.6093, that Plaintiffs were requesting that the Township
assess the amount of the Judgment on the Township’s tax rolls. (Ex. A,
Correspondence dated October 17, 2019).2 Plaintiffs’ latest attempts, along with the
uncertainty of the amount of the judgment against the three Defendants, amplify the
extraordinary circumstances which justify granting a stay of execution of the
judgment without a bond until all legal disputes have been resolved.
Plaintiffs’ Garnishments Do NOT Comport with the Judgment
Contrary to Plaintiffs’ assertion, the writs for garnishment against the
individual defendants do not comport with the Judgment. (Compare ECF Nos. 100-
101 with ECF No. 75). According to Plaintiffs they are entitled to a writ of
garnishment in the amount of $199,000.00 ($129,000.00 + $65,000.00 + $5,000.00)
against Defendant Green and $195,000.00 ($129,000.00 + $65,000.00 + $1,000.00)
1 Plaintiffs’ counsel made no attempt to advise Defendants of the attempt to garnish
wages prior to filing the requests for writs of garnishment. 2 Plaintiffs’ counsel did not mention the tax assessment request when defense
counsel spoke with him on October 18, 2019 regarding the Emergency motion.
Case 2:18-cv-13330-MOB-EAS ECF No. 111 filed 11/22/19 PageID.3352 Page 2 of 8
3
against Defendant Brandt. (Plaintiffs' Response Brief, ECF no. 108, Page ID 3246).
Plaintiffs reach this amount by calculating the compensatory and emotional distress
damages twice.3 (Id). Plaintiffs have offered no explanation for these calculations
with the exception that the claims against Defendants Green and Brandt were in their
individual capacity.4 (Id at Page ID 3247).
While Plaintiffs are correct that Defendants Green and Brandt were sued in
their individual and official capacity, the Verdict Form did not distinguish between
the two with regard to compensatory damages. (Verdict Form, ECF No. 75, Page
ID 2571-2572). The jury likewise did not distinguish the compensatory damages it
contributed to the Township. (Id). Instead, the Verdict Form, drafted by Plaintiffs’
counsel, specifically provided for compensatory damages proximately caused by the
“Defendants”. (ECF No. 75, Page ID 2571). As Plaintiffs’ conceded by failing to
address in their response brief, joint-and-several liability has been eliminated in the
State of Michigan except in limited circumstances which do not apply in this case.
See Smiley v. Corrigan, 248 Mich. App. 51, 55 (2001); M.C.L. § 600.2956. Had
3 Based on Plaintiffs’ interpretation of the Judgment, it is unclear if Plaintiffs intend
to seek an additional $194,000.00 ($129,000.00 + 65,000.00) from the Township a
third time based upon their request that the Judgment be placed on the Township’s
tax rolls pursuant to MCL § 600.6093. (See Plaintiffs’ Response, ECF No. 108,
Page ID 3246). 4 Plaintiffs’ argument ignores the fact that the claims were also brought against
Defendant Green and Brandt in their official capacities. (Complaint, ECF No. 1,
Page ID 18).
Case 2:18-cv-13330-MOB-EAS ECF No. 111 filed 11/22/19 PageID.3353 Page 3 of 8
4
Plaintiffs intended to seek compensatory damages against Defendants Green and
Brandt in their individual capacity, they should have requested separate designations
on the Verdict Form along with a separate designation for the Jury to attribute
compensatory damages to the Township as was done with punitive damages. While
Defendants objected to the inclusion of the Township Board in the punitive damages
section, Plaintiffs’ Verdict Form specifically requested that the jury separate the
punitive damage award against each Defendant.5 No such request was made by
Plaintiff as to the compensatory damages.
Because Plaintiffs’ counsel failed to request that the Jury distinguish whether
the compensatory damages were against the Township or Defendants Green and
Brandt in their individual capacity there is no basis for Plaintiffs to request a
garnishment against their personal assets when the amount could be interpreted as a
damage award against the Township and the individual Defendants in their official
capacity. Plaintiffs’ after the fact interpretation would require the Court to override
the Jury’s verdict and declare that the damages were solely against the individual
Defendants in their personal capacity which would negate any compensatory
5 There was no legal reason to distinguish whether punitive damages were being
awarded against Defendants Green and Brandt in their official capacity versus
individual capacity based on clearly established law that a claim against a
government official in their official capacity is merely another way of pleading an
action against the municipality itself. Kentucky v. Graham, 473 U.S. 159, 165, 105
S.Ct. 3099, 87 L.Ed.2d 114 (1985).
Case 2:18-cv-13330-MOB-EAS ECF No. 111 filed 11/22/19 PageID.3354 Page 4 of 8
5
damage award against the Township. Plaintiffs have presented no authority under
which the Court could take such action. Therefore, because the Requests and Writs
for Garnishment were not clear and do not accurately reflect the Judgment against
Defendants Green and Brandt in their individual capacity, they should be stricken.
M.C.L. § 600.6093 – Tax Roll Assessment
In addition to requesting writs of garnishment, Plaintiffs have requested that
the Township place the Judgment on the tax rolls. (Ex. A, Correspondence dated
October 17, 2019). The sole remedy for collection of a judgment against a
municipality is provided by M.C.L. § 600.6093. Payton v. Highland Park, 211
Mich. App. 510, 512-513; 536 N.W.2d 285 (1995). Pursuant to M.C.L. § 600.6093
whenever a judgment is recovered against a township, upon application of the party
whose favor judgment is rendered, the clerk of the court shall deliver a “certified
transcript of the judgment, showing the amount and date thereof, with the rate of
interest thereon, and of the costs as taxed under the seal of the court, if in a court
having a seal.” M.C.L. § 600.6093(1).6 The party receiving the certified copy may
then file it with the supervisor of the township which compels the township to
proceed with assessing the amount thereof upon the taxable property of the township
upon the next tax roll of the township. Id.
6 The copy of the Judgment served on the Township Supervisor did not include a
rate of interest or taxable costs. (See Ex. A).
Case 2:18-cv-13330-MOB-EAS ECF No. 111 filed 11/22/19 PageID.3355 Page 5 of 8
6
While Plaintiffs served the Township with a certified copy of the Judgment,
it is unclear what amount Plaintiffs are requesting be placed on the tax rolls. The
total Judgment amount was $400,000.00 which included $206,000.00 in punitive
damages and $194,000.00 in compensatory damages. (ECF No. 75). However,
Plaintiffs has already requested garnishments against Defendants Green and Brandt
in the amounts of $199,000.00 and $195,000.00 and as stated above, it is unclear
what portion of the compensatory damages is attributed to the Township. Hence,
without clarification the Township could not comply with the request.
Extraordinary Circumstances Exist to Grant a Stay without Bond
In extraordinary circumstances this Court has discretion to enter a stay of
execution of judgment without a bond pending resolution of post judgment motions
and appeal. See Hamlin v. Charter Twp. of Flint, 181 F.R.D. 348, 353 (E.D. Mich.
1998). The facts in this case warrant such relief. Plaintiffs efforts to enforce the
Judgment through requests for writs of garnishment and requesting that the
Township place the Judgment on the tax rolls combined with Plaintiffs’ failure to
recognize the distinction between individual and official capacity claims is further
recognition that a stay of execution of the judgment is warranted, and warranted
without a bond. In addition to the legal issues raised in Defendants’ Renewed
Motion for Judgment as a Matter of Law, Plaintiffs’ efforts to collect on the
judgment and response to Defendant’s current motion raises significant questions
Case 2:18-cv-13330-MOB-EAS ECF No. 111 filed 11/22/19 PageID.3356 Page 6 of 8
7
regarding enforcement of the Judgment. It is unclear what actions Plaintiffs will
take to enforce the Judgment given their recent interpretation of the compensatory
damage award and the uncertainty of what portion, if any, was awarded against
Defendants Green and Brandt in this individual capacity. As a result, the Township
and individual Defendants face uncertainty and the impossible task of complying
with the garnishments or tax assessment until after a ruling on Defendants’ pending
motion and appeal, if necessary. Conversely, there will be no harm to Plaintiffs if a
stay is entered without a bond. In addition to the statutory authority to place the
Judgment on the tax rolls, any potential judgment, including an award of attorney
fees, costs and interest are below the Defendants’ $5,000,000.00 insurance coverage.
(Ex. B, Dec Sheet). Consequently, a bond requirement would do little except waste
funds which could be allocated to Plaintiffs if an appeal is unsuccessful.
Respectfully submitted,
O’CONNOR, DEGRAZIA, TAMM & O’CONNOR
By: /s/Richard V. Stokan, Jr.
JULIE McCANN O’CONNOR (P38484)
RICHARD V. STOKAN, JR. (P61997)
Attorneys for Defendants
40701 Woodward Avenue, Suite 105
Bloomfield Hills, MI 48304
(248) 433-2000
Dated: November 22, 2019 [email protected]
Case 2:18-cv-13330-MOB-EAS ECF No. 111 filed 11/22/19 PageID.3357 Page 7 of 8
8
CERTIFICATE OF SERVICE
I hereby certify that on November 22, 2019, I electronically filed the foregoing
paper(s) with the Clerk of the Court using the ECF system and that I have mailed by
United States Postal Service the Paper(s) to the following non-ECF participants:
None.
/S/ Richard V. Stokan, Jr.
40701 Woodward Avenue, Ste. 105
Bloomfield Hills, MI 48304
(248) 433-2000
Case 2:18-cv-13330-MOB-EAS ECF No. 111 filed 11/22/19 PageID.3358 Page 8 of 8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HACK, et al.,
Plaintiffs, Hon. Marianne O. Battani
Case No. 2:18-cv-13330
v.
CHARTER TOWNSHIP OF MILFORD, et al.,
Defendants.
Exhibit List
Exhibit A. Correspondence dated October 17, 2019
Exhibit B. Dec Sheet
Case 2:18-cv-13330-MOB-EAS ECF No. 111-1 filed 11/22/19 PageID.3359 Page 1 of 1
Case 2:18-cv-13330-MOB-EAS ECF No. 111-2 filed 11/22/19 PageID.3360 Page 1 of 5
Case 2:18-cv-13330-MOB-EAS ECF No. 111-2 filed 11/22/19 PageID.3361 Page 2 of 5
Case 2:18-cv-13330-MOB-EAS ECF No. 111-2 filed 11/22/19 PageID.3362 Page 3 of 5
Case 2:18-cv-13330-MOB-EAS ECF No. 111-2 filed 11/22/19 PageID.3363 Page 4 of 5
Case 2:18-cv-13330-MOB-EAS ECF No. 111-2 filed 11/22/19 PageID.3364 Page 5 of 5
Case 2:18-cv-13330-MOB-EAS ECF No. 111-3 filed 11/22/19 PageID.3365 Page 1 of 3
Case 2:18-cv-13330-MOB-EAS ECF No. 111-3 filed 11/22/19 PageID.3366 Page 2 of 3
Case 2:18-cv-13330-MOB-EAS ECF No. 111-3 filed 11/22/19 PageID.3367 Page 3 of 3
