Anders v. Cuevas

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHANE ANDERS, STAR TOWING

AND RECOVERY, LLC, and AREA

TOWING AND RECOVERY, INC.,

Plaintiffs,

Case No. 19-10989

v.

Hon. George Caram Steeh

TONY CUEVAS, in his individual capacity

as Post Commander for the Michigan State

Police, DARZEIL HALL, in his individual

Capacity as a Michigan State Trooper,

CITY OF TAYLOR, HERMAN “BUTCH”

RAMIK, in his individual and official

Capacities as an elected member of the

Taylor City Council, and RICK SOLLARS,

in his individual and official capacities as

the elected Mayor of the City of Taylor,

Defendants.

___________________________________/

ORDER DENYING CITY OF TAYLOR DEFENDANTS’

MOTION FOR RECONSIDERATION (ECF NO. 24)

The City of Taylor Defendants seek reconsideration of the court’s

September 12, 2019 order granting in part and denying part their motion to

dismiss. Specifically, Defendants request that the court amend its opinion

to reflect that qualified immunity was denied as to the individual City of

Taylor Defendants – Herman Ramik and Rick Sollars. The court will deny

Defendants’ request as to Ramik, because it granted Defendants’ motion to

dismiss on the basis that the complaint contained no allegations of

wrongdoing against him. The court did not consider whether Ramik was

entitled to qualified immunity.

The court will also deny Defendants’ request as to Sollars because it

did not consider whether Sollars was entitled to qualified immunity.

Defendants did not raise the issue of qualified immunity in their principal

brief. See ECF No. 10. They argued that Anders did not have standing to

assert a retaliation claim and that Area Towing did not engage in protected

activity. Id. They did not argue that Plaintiffs failed to establish a

constitutional violation or that Sollars did not violate a clearly established

constitutional right. See Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d

673, 681 (6th Cir. 2011) (“When the qualified immunity defense is raised at

the pleading stage, the court must determine only whether the complaint

‘adequately alleges the commission of acts that violated clearly established

law.’”).

In their reply brief, the Taylor Defendants “concurred” in the

arguments made by the State of Michigan Defendants and asked that “they

be considered by the Court in conjunction with their own Motion to

Dismiss.” ECF No. 21. They did not, however, develop any argument with

regard to why Sollars was entitled to qualified immunity. “[I]ssues adverted

to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived. It is not sufficient for a party to

mention a possible argument in the most skeletal way, leaving the court to

. . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96

(6th Cir. 1997). Moreover, “it is not the office of a reply brief to raise issues

for the first time.” Sundberg v. Keller Ladder, 189 F. Supp. 2d 671, 682-83

(E.D. Mich. 2002) (citing United States v. Perkins, 994 F.2d 1184, 1191

(6th Cir. 1993)). See also Summe v. Kenton Cty. Clerk’s Office, 604 F.3d

257, 269 (6th Cir. 2010) (failure to raise and brief qualified immunity issue

resulted in waiver).

Accordingly, IT IS HEREBY ORDERED that the Taylor Defendants’

motion for reconsideration (ECF No. 24) is DENIED.

Dated: October 8, 2019

s/George Caram Steeh

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

October 8, 2019, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk