Opposition Brief — Renovo Services, LLC, et al., Petitioners v. George Badeen, et al.
Supreme Court briefJul 8, 2021
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No. 20-1705
In the
Supreme Court of the United States
__________________
RENOVO SERVICES, LLC,
REMARKETING SOLUTIONS, LLC, PAR, INC.,
Petitioners,
v.
GEORGE BADEEN, MIDWEST RECOVERY
AND ADJUSTMENT, INC.,
Respondents.
__________________
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
__________________
BRIEF IN OPPOSITION
__________________
JOSEPH M. XUEREB
Counsel of Record
XUEREB LAW GROUP PC
7752 N. Canton Center Rd.
Suite 110
Canton, Michigan 48187
(734) 455-2000
jxuereb@xuereblawgroup.com
Counsel for Respondents
July 8, 2021
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
QUESTION PRESENTED
Respondents object to the questions presented by
Petitioners as contrary to this Court’s well established
precedent.
The actual question presented is:
1. Did the Sixth Circuit Court of Appeals abuse its
discretion in deeming the petition to appeal
improvidently granted after receiving full
briefing of all issues relating to the untimely
removal by petitioners?
ii
CORPORATE DISCLOSURE STATEMENT
Pursuant to Supreme Court Rule 29.6, Midwest
Recovery and Adjustments, Inc., states that it is a
privately held Michigan For-Profit Corporation, and no
publicly held corporations own 10% or more of its stock.
iii
TABLE OF CONTENTS
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i
CORPORATE DISCLOSURE STATEMENT . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1
REASONS FOR DENYING THE PETITION. . . . . . 7
I.
Standard of Review . . . . . . . . . . . . . . . . . . . . . 8
II.
The Sixth Circuit did not abuse its discretion
because the thirty day requirement of 28
U.S.C. § 1447(c) is merely procedural, leaving
open a variety of legal arguments to find the
motion to remand timely filed that were
within the discretion of the Sixth Circuit. . . . 9
A. The Sixth Circuit did not abuse its
discretion because the District Court had
authority to stay procedural deadlines . . 11
1. The District Court had authority to
stay proceedings under common law
principals. . . . . . . . . . . . . . . . . . . . . . . 11
2. The District Court had authority to
stay proceedings under Fed. R. Civ. P.
6(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Equitable tolling also applies to make the
motion to remand timely . . . . . . . . . . . . . 15
C. Petitioners are estopped from arguing
that the motion to remand is untimely . . 18
iv
D. Public Policy considerations . . . . . . . . . . 20
E. Respondents’ motion to remand was
timely based on the foregoing . . . . . . . . . 21
III.
The Sixth Circuit did not abuse its discretion
because Petitioners were unambiguously able
to ascertain Respondents’ alleged damages
and missed their deadline to remove by 6
years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Petitioners have been on notice of
Respondents’ alleged damages . . . . . . . . 25
IV.
The Sixth Circuit did not abuse its discretion
because the Open Letter was clear and had
sufficient detail for Petitioners to determine
Respondents’ damages . . . . . . . . . . . . . . . . . 27
A. The Open Letter was directed at
Petitioners subject to this lawsuit. . . . . . 28
B. Respondents’ damages were clear and
defendants merely refused to do simple
math in 2014 . . . . . . . . . . . . . . . . . . . . . . 29
C. The Open Letter was not retracted . . . . . 30
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
APPENDIX
Appendix A Open Letter To All Michigan Licensed
Recovery Agencies dated July 25, 2014
(October 28, 2019) . . . . . . . . . . . . . App. 1
v
Appendix B Letter PAR Demand for Retraction
dated July 30, 2014
(October 28, 2019) . . . . . . . . . . . . . App. 5
Appendix C Declaration of Leslie C. Morant in the
United States District Court Eastern
District of Michigan Southern Division
(November 12, 2019) . . . . . . . . . . App. 14
vi
TABLE OF AUTHORITIES
CASES
Anderson v. City of Bessemer City, North Carolina,
470 U.S. 564 (1985). . . . . . . . . . . . . . . . . . 8, 25, 29
Bank of New York Mellon v. Glavin,
2012 WL 13069923 (W.D. Wis. Mar. 15, 2012) . 17
Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384 (1990). . . . . . . . . . . . . . . . . . . . . 8, 23
Cutrone v. Mrtg. Elec. Registration Sys.,
749 F.3d 824 (7th Cir. 2013). . . . . . . . . . . . . . . . . 7
Dart Cherokee Basin Operating Co., LLC v. Owens,
574 U.S. 81 (2014). . . . . . . . . . . . . . . . . . . . . . . . . 8
Deane v. Michigan Processed Foods,
5 F.R.D. 508 (W.D. Mich. 1946) . . . . . . . . . . . . . 14
Graham-Humphries v. Memphis Brooks Museum
of Art, Inc.,
209 F.3d 552 (6th Cir. 2000). . . . . . . . . . 15, 16, 17
Graiser v. Visionworks of Am., Inc.,
819 F.3d 277 (6th Cir. 2016). . . . . . . . . . . . passim
In re Allstate Ins. Co.,
8 F.3d 219 (5th Cir. 1993). . . . . . . . . . . . . . . . . . 10
Kelton Arms Condo Owners Ass’n, Inc. v.
Homestead Ins. Co.,
346 F.3d 1190 (9th Cir. 2003). . . . . . . . . . . . . . . 10
Landis v. North American Co.,
299 U.S. 248 (1936). . . . . . . . . . . . . . . . . . . . . . . 12
vii
Mack v. Alston,
2009 WL 2836421 (E.D. Mo. Aug 27, 2009) . . . . 17
Matter of Continental Cas. Co.,
29 F.3d 292 (7th Cir. 1994). . . . . . . . . . . . . . . . . 10
Mead v. IDS Property Cas. Ins. Co.,
2913 WL 12157838 (M.D. Fla. November 26,
2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Ohio Environmental Council v. U.S. Dist.
Court, Southern Dist of Ohio,
565 F.3d 393 (6th Cir. 1977). . . . . . . . . . . . . 11, 12
Page v. City of Southfield,
45 F.3d 128 (6th Cir. 1995). . . . . . . . . . . . . . . . . 10
Papadopoulous v. Mylonas,
2011 WL 4837276 (E.D. Pa. October 11, 2011) . 14
Phoenix Glonal Ventures LLC v. Phoenix
Hotel Associates, Ltd.,
422 F.3d 72 (2d Cir. 2005) . . . . . . . . . . . . . . . . . 10
Pierpoint v. Barnes,
94 F.3d 813 (2d Cir. 1996) . . . . . . . . . . . . . . 20, 21
Poulter v. Bank of America NA,
2014 WL 12770233 (D. S.C. July 30, 2014) . . . . 14
Ramos v. Quien,
631 F. Supp. 2d 601 (E.D. Pa. 2008) . . . . . . . . . 14
Reynolds v. CIR,
861 F.2d 469 (6th Cir. 1988). . . . . . . . . . . . . . . . 18
Roe v. O’Donohue,
38 F.3d 298 (7th Cir. 1994). . . . . . . . . . . . . . . . . 17
viii
Seaton v. Jabe,
992 F.2d 79 (6th Cir. 1993). . . . . . . . . . . . . . . . . 10
Tedford v. Warner-Lambert Co.,
327 F.3d 423 (5th Cir. 2003). . . . . . . . . . . . . . . . 17
Tyson v. Miller,
2012 WL 1994855 (S.D. Ala. May 8, 2012) . . . . 14
Walters v. Kentucky-American Water Co.,
2010 WL 1563497 (E.D. Ky. April 19, 2010) . . . 13
Zedner v. U.S.,
547 U.S. 289 (2006). . . . . . . . . . . . . . . . . . . . . . . 18
STATUTES
28 U.S.C. § 1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1446(b). . . . . . . . . . . . . . . . . . . . . . . . . . 10
28 U.S.C. § 1446(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . 6
28 U.S.C. § 1446(C)(3) . . . . . . . . . . . . . . . . . . . . 24, 26
28 U.S.C. § 1446(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
28 U.S.C. § 1447(c) . . . . . . . . . . . . . . . . . . . . . . passim
MCL 339.916(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 30
RULES
Fed. R. Civ. P. 6 . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
Fed. R. Civ. P. 6(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Fed. R. Civ. P. 6(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . 13
Fed. R. Civ. P. 6(b)(1)(a). . . . . . . . . . . . . . . . . . . . . . 14
ix
Fed. R. Civ. P. 6(b)(1)(b). . . . . . . . . . . . . . . . . . . . . . 14
Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
1
STATEMENT OF THE CASE
Plaintiffs-Respondents, George Badeen (“Badeen”)
and Midwest Recovery and Adjustment, Inc.
(“Midwest”) (“Respondents,” collectively), supplement
and correct the Petitioners’ statement of the case as
follows:
Respondents commenced this civil action in 2010 in
the Third Judicial Circuit Court. On September 7,
2010, Respondents filed a Second Amended Complaint
(“SAC”) asserting damages, including but not limited to
Count VII: MCL 339.916. (SAC, D. Ct. ECF No. 1-2,
PageID# 79-92.) MCL 339.916(2) states the following:
If the court finds for the petitioner, recovery
shall be in the amount of actual damages or
$50.00, whichever is greater. If the court finds
that the method, act, or practice was a willful
violation, it may award a civil penalty of not less
than 3 times the actual damages, or $150.00,
whichever is greater and shall award reasonable
attorney’s fees and court costs incurred in
connection with the action.
This triple damages provision, and the materially
similar triple damages provisions under the statute
aimed at non-Petitioner banks, is clearly referenced in
the SAC in Respondents’ requests for relief. (SAC,
D. Ct. ECF No. 1-2, PageID# 91-92.)
On July 25, 2014, Badeen sent an open letter
(“Open Letter”) via both email and posting on the
internet, addressed to recovery agencies across
Michigan, explicitly stating that the estimated number
of vehicles repossessed via unlicensed forwarders was
2
approximately 1.8 million. Open Letter, Resp’t App. 14. In response, Miller Canfield, on behalf of Petitioner
PAR, wrote a demand for retraction letter to
Respondent Badeen threatening a libel suit on July 30,
2014. PAR Demand for Retraction, Resp’t App. 5-13.
PAR even attached the Open Letter to its letter. Id.
This estimation of 1.8 million misdemeanor violations,
in combination with Respondents’ SAC and motion for
class certification, clearly put Petitioners on notice all
the way back in 2014 that Respondents’ proposed
damages would exceed five million dollars.
Additionally, on August 7, 2014, the Michigan
Collection Practices Board had a meeting discussing
the Open Letter, and the Open Letter was provided to
all attendees. (FOIA Response, D. Ct. ECF No. 57-2,
PageID# 1011-1015.) Both Leslie Morant, attorney for
Renovo and Remarketing, and Hon. Cliff Taylor (Ret.),
former attorney for PAR, attended the meeting and
signed the sign-in sheet. (Id.) Petitioners have long
been aware of both the Open Letter and the allegation
of the 1.8 million repossession violations it contained.
On February 21, 2019, nine years after this
litigation commenced, Petitioners filed a Notice of
Removal from the Wayne County Circuit Court to the
United States District Court for the Eastern District of
Michigan based on the Class Action Fairness Act
(CAFA), codified under 28 U.S.C. § 1332. The case was
assigned to Judge Matthew Leitman of the Eastern
District of Michigan. On March 5, 2019, Judge
Leitman entered a Notice to Appear and stayed all
matters pending before the court pending an in-person
status conference scheduled for April 3, 2019. (Order
3
for Stay, D. Ct. ECF No. 19.) Judge Leitman did not
specify the stay in an order, but it is reflected explicitly
on the docket. (Id.) Immediately after the stay was
entered, Respondents’ counsel spoke with Judge
Leitman’s case manager, Holly Monda, who indicated
that the stay also included a motion to remand and
that Respondents were not permitted to file a motion to
remand at that time pursuant to the stay.
Respondents’ counsel emailed Holly Monda on March
22, 2019 to clarify that a motion to remand should not
be filed, and requested that an order be entered to that
effect to prevent any Petitioners from arguing that
Respondents’ motion to remand would somehow be
untimely. (Email from Monda, D. Ct. ECF No. 57-3,
PageID# 1024.)
Holly Monda emailed Respondents’ counsel on
March 22, 2019 and expressly stated the following:
I have spoken with Judge Leitman and the
docket is clear that this case is stayed until we
hold a status conference. Judge Leitman is not
willing to enter anything additional on the
docket. The stay means that nothing can be
filed or should be filed until further order of the
court. You can certainly forward my e-mail to
the parties so that they are aware of what the
stay means. At this time, nothing should be
filed on the docket. That includes answers or
responsive pleadings, motions, etc.
(Id.) Petitioners have been aware at all times that the
stay entered by Judge Leitman on March 5, 2019
precluded Respondents from filing a motion within the
first 30 days from the day the case was removed to
4
federal district court. Petitioners’ counsel reached out
to Respondents’ counsel on March 7, 2019, requesting
that the status conference be adjourned from April 3,
2019, and Respondents’ counsel granted their request
without question. The District Court subsequently
adjourned the status conference (based upon
Petitioners’ request) from April 3, 2019 to April 18,
2019.
The parties attended the status conference on April
18, 2019, and at the hearing, Judge Leitman ordered,
and all parties agreed, that Respondents would have
three weeks (21 days) from April 18, 2019 to file a
motion to remand (or until May 9, 2019). (Status
Conference Tr., D. Ct. ECF No. 31, PageID# 472-74.)
Judge Leitman further ordered that Petitioners would
have two weeks after Respondents submitted their
motion to remand to file their response and also
allowed for two more weeks after that for the rest of
Petitioners to file “their tag along or supplements” to
the response. (Id. at PageID# 473-74.) Petitioners
were present at this hearing and agreed to these terms
on the record. Blaine Kimrey, counsel for PAR,
speaking on behalf of all Petitioners, expressly stated
on the record that Petitioners did not have any
objection to the motion to remand timeline set forth by
the Court. (Id. at PageID# 472.)
Judge Leitman subsequently discovered that he had
a conflict of interest with the case that required
mandatory recusal. On April 22, 2019, Judge Leitman
then entered an Order recusing himself and the case
was subsequently reassigned to Judge Victoria Roberts.
(Order of Recusal, D. Ct. ECF No. 32, PageID# 499.)
5
When the case was reassigned, Judge Roberts’s on May
8, 2019 also explicitly precluded Respondents from
filing a motion to remand until after the parties’
planned settlement conference. (Order for Stay and
Mediation, D. Ct. ECF No. 33, PageID# 500.) This
order states:
Since the parties have agreed to participate in a
settlement conference with Magistrate Judge
Stephanie Dawkins Davis, no motions to
remand need be filed. The Court will
consider such a motion and other matters
at a status/scheduling conference - if that
becomes necessary - following their settlement
conference.
(Id. (emphasis added)) Respondents, being mindful of
the District Court’s orders, followed Judge Roberts’s
May 8, 2019 Order and did not file a motion to remand
prior to the settlement conference with the Magistrate
Judge acting a facilitator.
An Order for Settlement Conference was entered on
May 22, 2019 with a settlement conference date set for
July 9, 2019. (Order for Settlement Conference, D. Ct.
ECF No. 35, PageID# 502.) At the request of
Petitioners, the settlement conference was adjourned
to October 1, 2019 because not all Petitioners could
attend the settlement conference in July and the
parties could not get a sooner date with the magistrate.
(Notice to Appear, D. Ct. ECF No. 37, PageID# 508.)
The parties attended the settlement conference on
October 1, 2019, but no settlement was reached. In
compliance with Judge Roberts’s May 8, 2019 Order,
Respondents filed a motion to remand on October 23,
6
2019, prior to the status/scheduling conference set for
November 6, 2019. On October 24, 2019, the District
Court entered an Order striking the motion because it
was missing required information. (Order Striking
Mot., D. Ct. ECF No. 44, PageID# 689-90.) The Order
expressly directed: “Respondents MUST refile a motion
that complies with all requirements by Monday,
October 28, 2019.” (Id. at PageID# 690.) In compliance
with the Order, Respondents timely re-filed their
Motion to Remand on Monday, October 28, 2019. (Mot.
to Remand, D. Ct. ECF No. 45, PageID# 691-714.)
Petitioners filed a response to Respondents’ motion
to remand, and Petitioners filed a reply brief. Judge
Roberts granted Respondents’ motion to remand the
case back to state court for the reason that Petitioners’
Notice of Removal was untimely under 28 U.S.C.
§ 1446(b)(3) because CAFA jurisdiction was
unambiguously ascertainable based on the Open Letter
and Respondents’ SAC, so the 30-day clock for
petitioners to seek removal began to run no later than
July 30, 2014. (Order Remanding Case, D. Ct. ECF No.
54, PageID# 888-899.)
7
REASONS FOR DENYING THE PETITION
This Court should deny the petition as Petitioners
have wholly failed to meet their burden under Supreme
Court Rule 10. Each of the arguments made by
Respondents in their Brief on Appeal in the Sixth
Circuit and here provides ample legal authority for the
Sixth Circuit to have exercised its discretion in
determining that the petition to appeal was
improvidently granted.
Petitioners unsuccessfully attempt to paint (1) a far
departure from accepted and usual judicial proceedings
by the Sixth Circuit requiring intervention by this
Court, and (2) circuit splits regarding the Class Action
Fairness Act (“CAFA”), 28 U.S.C. § 1446(c).
As explained in detail below, the Sixth Circuit acted
within accepted and usual judicial proceedings,
especially in light of the peculiar and unique factual
and procedural history of this case.
As to the circuit splits, while there are technically
opinions that provide slightly differing examples of the
interpretation of portions of CAFA (See, e.g., Cutrone v.
Mrtg. Elec. Registration. Sys., 749 F.3d 824 (7th Cir.
2013) (holding that the paper must be served by the
plaintiff to the defendant); Cf. Graiser v. Visionworks
of Am., Inc., 819 F.3d 277 (6th Cir. 2016) (holding that
the “other paper” under CAFA merely needs to come
from the plaintiff), these differences in interpretation
are quite minor, and may easily resolve themselves at
the court of appeals level in the future. The differences
in CAFA application complained of by Petitioners have
not yet even developed into majority/minority rules to
8
present to this Court for its analysis, which, if the
issues are as important as Petitioners would have this
Court believe, is likely to occur in the near future.
Determining the appeal was improvidently granted
was well within its discretion, and the Sixth Circuit
should be upheld, as Petitioners have failed to make
their case under Supreme Court Rule 10.
I.
Standard of Review
This Court reiterated the position that petitions for
certiorari from denial of petitions to appeal to a circuit
court are reviewed for an abuse of discretion. Dart
Cherokee Basin Operating Co., LLC v. Owens, 574 U.S.
81, 90-91, 95 (2014). An abuse of discretion standard
is deferential to lower court proceedings. Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 405 (1990). But a
court “[w]ould necessarily abuse its discretion if it
based its ruling on an erroneous view of the law or on
a clearly erroneous assessment of the evidence.” Id.
When a “[d]istrict court’s account of the evidence is
plausible in light of the record viewed in its entirety,
the court of appeals may not reverse…Where there are
two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.”
Anderson v. City of Bessemer City, North Carolina, 470
U.S. 564, 573-574 (1985).
9
II.
The Sixth Circuit did not abuse its
discretion because the thirty day
requirement of 28 U.S.C. § 1447(c) is merely
procedural, leaving open a variety of legal
arguments to find the motion to remand
timely filed that were within the discretion
of the Sixth Circuit.
The Sixth Circuit has not yet ruled on the
procedural or jurisdictional nature of 28 U.S.C.
§ 1447(c) in a reported case. Permission to Appeal
Order, App. to Pet. Cert. 5a. After having received full
briefing on the issues and having seen the documentary
evidence supplied to the District Court, the Court of
Appeals decided that the permission to appeal was
improvidently granted. There was no erroneous view
of the law either adopted or expressed, and the Court
of Appeals properly declined to review the issue based
upon the unique facts of this case.
In fact, as Respondents argued below, there is
plenty of published case law that the plain language of
28 U.S.C. § 1447(c) makes it clear that the thirty day
requirement is procedural in nature:
“A motion to remand the case on the basis of any
defect other than lack of subject matter
jurisdiction must be made within 30 days after
the filing of the notice of removal under section
1446(a). If at any time before final judgment it
appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”
10
28 U.S.C. § 1447(c)1. A plain reading of the statute
shows that for remand to occur for any reason other
than subject matter jurisdiction, a motion to remand
must be filed. Page v. City of Southfield, 45 F.3d 128,
133 (6th Cir. 1995). This is clearly a procedural
directive by Congress.
It has been held that a motion to remand, under the
first sentence of 1447(c), “[c]onsigns procedural
formalities to the care of the parties…” Kelton Arms
Condo Owners Ass’n, Inc. v. Homestead Ins. Co., 346
F.3d 1190, 1192 (9th Cir. 2003); citing In re Allstate
Ins. Co., 8 F.3d 219, 223 (5th Cir. 1993); Matter of
Continental Cas. Co., 29 F.3d 292, 295 (7th Cir. 1994)
(holding that 1447(c) remand is a “procedural” issue
that must be quickly addressed); See also Phoenix
Glonal Ventures LLC v. Phoenix Hotel Associates, Ltd.,
422 F.3d 72, 75 (2d Cir. 2005) (holding that “we have
never held [1447(c)] to be jurisdictional…”).
Additionally, 28 U.S.C. § 1446(b) controls the thirty
day deadline for removal that Petitioners failed to
meet. The Sixth Circuit had previously ruled that the
requirements of 1446(b) are procedural in nature. Page
v. City of Southfield, 45 F.3d 128, 131 (6th Cir. 1995);
Seaton v. Jabe, 992 F.2d 79, 81 (6th Cir. 1993). It
therefore follows that the Sixth Circuit time period for
filing a motion to remand under 1447(c) must also be
procedural, as the motion to remand is based on the
failure of Petitioners to meet their procedural burdens
under 1446(b).
1
Subject matter jurisdiction was not raised in the lower court.
11
The Sixth Circuit did not adopt any legal ruling that
was an erroneous view of the law. The Sixth Circuit
exercised is discretion not to take the appeal on the
peculiar and unique facts of this particular case. There
was no abuse of discretion in the court below, and the
order denying the appeal as improvidently granted
should stand.
A. The Sixth Circuit did not abuse its
discretion because the District Court
had authority to stay procedural
deadlines.
The Sixth Circuit did not adopt any erroneous view
of the law when it decided the appeal was
improvidently granted, and therefore did not abuse its
discretion. The record makes abundantly clear that the
District Court ordered several stays of proceedings
preventing Respondents from filing their motion for
remand after the case was removed. These stays are
authorized under several legal principles.
1. The District Court had authority to
stay proceedings under common law
principals.
The Sixth Circuit and this Court have previously
held that a District Court has broad authority to
control its docket. The Sixth Court, citing to this
Court, has held that “[t]he power to stay proceedings is
incidental to the power inherent in every court to
control the disposition of causes in its docket with
economy or time and effort for itself, for counsel, and
for litigations…entry of such an order ordinarily rests
with the sound discretion of the District Court.” Ohio
12
Environmental Council v. U.S. Dist. Court, Southern
Dist of Ohio, 565 F.3d 393, 396 (6th Cir. 1977) (internal
citations omitted); citing Landis v. North American Co.,
299 U.S. 248, 254-255 (1936).
Here, in an effort to better grasp the complexities of
this case, Judge Leitman ordered a blanket stay of all
proceedings, and later clarified through his clerk that
the stay precluded filing of any motion for remand. As
Judge Leitman explained at the hearing, as a result of
the status report he directed the parties to file prior to
the April 18, 2019 status conference, he then “[h]ad a
tiny sense of what’s going…” (Status Conference Tr.,
D. Ct. ECF No. 31, PageID# 460.) At that time, Judge
Leitman acknowledged that one point of the status
report was to inform the court whether or not
Respondents intended to file a motion to remand.
(Id.)
Based upon the suggestion of PAR that the case be
sent to the Magistrate for a settlement conference, and
the subsequent agreement of all parties, Judge Roberts
then continued Judge Leitman’s stay of proceedings
through the settlement conference.
Here, both District Court judges presiding exercised
their inherent powers of docket control and ordered a
stay of proceedings. Ohio Environmental Council, 565
F.3d at 396. This was done in order to facilitate not
only the needs of the Court in getting apprised on the
history and issues of the (then) nine-year-old proposed
class action, but also for judicial economy in going
along with PAR’s suggestion for a settlement
conference. The Petitioners even agreed to this
exercise of judicial economy by stating on the record
13
they would agree to continuance of remand proceedings
during the pendency of the settlement conference for
purposes of settlement leverage. (Status Conference
Tr., D. Ct. ECF No. 31, PageID # 480, ll. 10-17; PageID
# 483, ll. 15-21.)
It is clear that the District Court exercised its
inherent authority to control its own docket for the
economy of both the court and the litigants. It is also
clear that the Petitioners agreed to the District Court’s
exercise of this discretion. Therefore, Respondents’
motion was timely based upon the District Court stay,
and the Sixth Circuit did not abuse its discretion in
declining to fully hear Petitioner’s appeal.
2. The District Court had authority to
stay proceedings under Fed. R. Civ.
P. 6(b).
District Courts have authority to stay proceedings
under the Federal Rules of Civil Procedure. As
Respondents argued in both the District Court and in
their response in the Sixth Circuit, Respondents
withheld filing their motion to remand based upon duly
issued orders from the District Court. When an act
must occur within a specific time, a District Court may
extend the time “[w]ith or without motion or notice
before the original time or its extension expires…”
Fed. R. Civ. P. 6(b)(1).
Federal Rule of Civil Procedure Rule 6(b) rule has
been applied by District Courts across the country to
the thirty day requirement of 1447(c). Walters v.
Kentucky-American Water Co., 2010 WL 1563497 (E.D.
Ky. April 19, 2010) (holding that the District Court has
14
authority under Fed. R. Civ. P. 6(b)(1)(a) to extend
1447(c) remand motions); Tyson v. Miller, 2012 WL
1994855 (S.D. Ala. May 8, 2012) (holding that a
District Court has authority under Fed. R. Civ. P. 6 to
extend the time to file a motion to remand under Fed.
R. Civ. P. 6(b)(1)(a)); Ramos v. Quien, 631 F. Supp. 2d
601 (E.D. Pa. 2008) (holding that Fed. R. Civ. P. 6
grants the court authority to extend the time of 1447(c)
when there is excusable neglect under Fed. R. Civ. P.
6(b)(1)(b)); Poulter v. Bank of America NA, 2014 WL
12770233 (D. S.C. July 30, 2014) (holding that Fed. R.
Civ. P. 6 grants the court authority to extend the time
of 1447(c) under Fed. R. Civ. P. 6(b)(1)(b)); Deane v.
Michigan Processed Foods, 5 F.R.D. 508 (W.D. Mich.
1946) (applying then Federal Rules to extend time to
file motions under predecessor 1447(c)); Papadopoulous
v. Mylonas, 2011 WL 4837276 (E.D. Pa. October 11,
2011) (holding that Fed. R. Civ. P. 6 grants the court
authority to extend the time of 1447(c) under Fed. R.
Civ. P. 6(b)(1)(b)); Mead v. IDS Property Cas. Ins. Co.,
2913 WL 12157838 (M.D. Fla. November 26, 2013)
(holding that Fed. R. Civ. P. 6 grants the court
authority to extend the time of 1447(c) under Fed. R.
Civ. P. 6(b)(1)(b)).
Here, the District Court applied a stay of
proceedings just days after removal. Judge Leitman
made it very clear that this stay applied to motions for
remand. Judge Roberts extended that stay based upon
the agreement for a settlement conference and stay of
proceedings made by Petitioners. Petitioners agreed to
a briefing schedule for the motion to remand (that
would have already been late based upon the logic
asserted in the improvidently granted appeal and
15
here), as well as the stay of proceedings in order to
facilitate a settlement conference (that Petitioners
suggested be held).
Under Fed. R. Civ. P. 6, it is clear that the District
Court has authority to enlarge deadlines. As asserted
in the District Court below and in their response to
Petitioners’ petition for leave to appeal, at all times
Respondents followed their duty and obeyed the orders
of the District Court and withheld filing their motion to
remand. The orders issued by the District Court
served to enlarge the time for Respondents to file their
motion to remand, and the motion to remand was
therefore timely filed. The Sixth Circuit did not abuse
its discretion in declining to hear Petitioner’s appeal.
B. Equitable tolling also applies to make
the motion to remand timely.
The doctrine of equitable tolling applies to extend
the time that Respondents could file the motion,
making the decision not to hear the appeal within the
Sixth Circuit’s discretion.
Equitable tolling should be sparingly applied.
Graham-Humphries v. Memphis Brooks Museum of
Art, Inc., 209 F.3d 552, 560 (6th Cir. 2000). “Garden
variety neglect cannot be excused by equitable tolling.”
Id. at 561. But in the event of compelling equitable
considerations, a court may extend legal deadlines. Id.
There are five factors identified by the Sixth Circuit
in determining whether equitable tolling should be
applied: (1) lack of notice of a filing requirement,
(2) lack of constructive knowledge of the filing
requirement; (3) diligence in pursuing one’s rights;
16
(4) absence of prejudice to other parties; (5) the
reasonableness of remaining ignorant of legal
requirements. Id. However, these factors have not
been determined to be comprehensive, nor whether
each factor should be considered for each case. Id.
Rather, “[t]he propriety of equitable tolling must
necessarily be determined on a case-by-case basis.”
Id.(internal citation and quotation omitted).
Here, only factors 3 and 4 apply to the facts of this
case, and the other factors are irrelevant to the
equitable tolling analysis. See Id. Respondents knew
all along that they were required to file a motion to
remand within thirty days of the notice of removal.
However, they were ordered by the District Court
not to do so. Regardless, during that period they
diligently made inquiries of Judge Leitman’s chambers,
asserted their intent to file the motion and explained
the facts underlying their arguments for remand in the
status report and at the status conference with Judge
Leitman, and filed the motion when allowed by Judge
Roberts. Respondents diligently pursued their rights
but could only go so far without violating duly issued
court orders. Petitioners have not even argued that
they were prejudiced by the District Court granting the
motion to remand, as they have only asserted
procedural grounds in their appeal and here. Further,
Petitioners agreed to the stay of proceedings, and they
further agreed to a briefing schedule for Respondents’
motion to remand on the record. (Status Conference
Tr., D. Ct. ECF No. 31, PageID# 487.)
There is no prejudice to Petitioners, Respondents
had no ability to file the motion to remand without
17
running afoul of court orders, and the Petitioners
consented to the District Court’s orders on the record.
There is no “garden variety neglect” by Respondents
here, only adherence to orders issued by the District
Court. Clearly, the factors of Graham-Humphries
weigh in favor of granting equitable tolling of
Respondents’ 1447(c) deadline.
Federal Courts have held equitable tolling applies
to the procedural deadlines contained in 1446 and
1447. Roe v. O’Donohue, 38 F.3d 298, 302 (7th Cir.
1994) (holding that “the court may assume the 30-day
period [of 1447(c)] is subject to equitable tolling and
estoppel…”) (rev’d on other grounds); Tedford v.
Warner-Lambert Co., 327 F.3d 423, 428 (5th Cir. 2003)
(applying equitable principals to removal deadlines)
(abrogated by statute); Bank of New York Mellon v.
Glavin, 2012 WL 13069923 (W.D. Wis. Mar. 15, 2012)
(applying equitable tolling principals to 1447(c) remand
motions); Mack v. Alston, 2009 WL 2836421 (E.D. Mo.
Aug 27, 2009) (equitably tolling the 1447(c) remand
motion deadline).
The Sixth Circuit’s test for the application of
equitable tolling weighs in favor of equitably tolling
Respondents’ deadline under 1447(c). Additionally,
other courts, including the Seventh Circuit Court, have
held that equitable principles apply to the deadline of
1447(c). Because Respondents had no choice but to
follow the orders of the District Court preventing their
filing, and Petitioners consented to the District Court’s
actions, including the timing of the filing of the motion
to remand, equity demands that the Respondents be
found to have timely filed their motion to remand.
18
The Sixth Circuit was within its sound discretion to
decline to hear the appeal, and the order denying the
appeal as improvidently granted should stand.
C. Petitioners are estopped from arguing
that the motion to remand is untimely.
The Sixth Circuit has held that “[e]quitable estoppel
is designed to prevent undue hardship to one who has
relied to his detriment on an earlier inconsistent
position of his opponent.” Reynolds v. CIR, 861 F.2d
469, 474 (6th Cir. 1988). As explained in more detail
by this Court, “[w]here a party assumes a certain
position in a legal proceeding, and succeeds in
maintaining that position, he may not thereafter,
simply because his interests have changed, assume a
contrary position, especially if it be to the prejudice of
the party who has acquiesced in the position formerly
taken by him.” Zedner v. U.S., 547 U.S. 289, 504
(2006) (internal citations and quotations omitted). The
doctrine “[i]s equitable and thus cannot be reduced to
a precise formula or test…,” but the Supreme Court
identified the factors in the application of the doctrine:
(1) an inconsistent later position, (2) whether a court
was persuaded by the earlier position, (3) whether the
party asserting an inconsistent position would derive
an unfair advantage if not estopped. Id.
Petitioners’ argument clearly meets the standards
set out both by this Court. At the status conference, it
was Petitioners, speaking collectively through the
attorney for PAR, that suggested the settlement
conference. (Status Conference Tr., D. Ct. ECF No. 31,
PageID# 483.) “But we would stipulate to continue so
that the Court doesn’t have to focus on [remand], so the
19
other side doesn’t have to focus on it, but it’s still
hanging out there as a leverage point with respect to
settlement and go directly to settlement while the case
is stayed.” (Status Conference Tr., D. Ct. ECF No. 31,
PageID# 483, ll. 15-22.)
When Judge Leitman
questioned whether or not the settlement conference
would even be worthwhile, it was the Petitioners
who convinced the Judge that the opportunity for
the settlement conference should move forward if all
parties were to get authority to agree. (Id. at PageID#
484-491.) Petitioners asserted that a settlement
conference with a magistrate judge would be worth
pursuing, and Petitioners then persuaded the Judge to
pursue the opportunity for a settlement conference (all
while agreeing to a continuance of the remand briefing
schedule and the stay of proceedings). (Id. at PageID
# 460.)
Now, Petitioners adopt the inconsistent position
that the motion to remand was untimely. This position
is completely contrary to the arguments made at the
status conference. Respondents went along with the
settlement conference in good faith, and Petitioners are
now attempting to weaponize their own lobbying of the
District Court regarding a magistrate’s involvement.
Petitioners adopt this new contrary position for the
sake of their own benefit and to the detriment of
Respondents.
Clearly, Petitioners’ prior position in favor of a
settlement conference while agreeing to a stay of
proceedings and remand briefing schedules are
inconsistent with their current position that
Respondents filed their motion untimely and consented
20
to the jurisdiction of Federal Courts. Petitioners have
changed their position in yet another of many examples
of litigation gamesmanship to gain an advantage over
Respondents. Equity demands that Petitioners be
estopped from making these arguments.
D. Public Policy considerations.
As a threshold matter, the public policy behind the
thirty day limit of 1447(c) is to avoid forum shopping
and late stage motions to remand after significant
litigation in the Federal Courts. The Second Circuit, in
evaluating both the plain language of 1447(c) and its
legislative history, has held that “[t]he purpose of the
amendment then, was to avoid late-game forum
shopping by plaintiffs by imposing a 30-day limit to
ensure that improperly removed matters…would be
remanded early in the proceedings or not at all.”
Pierpoint v. Barnes, 94 F.3d 813, 818 (2d Cir. 1996).
In our case, a stay of proceedings was ordered by
Judge Leitman and then continued by Judge Roberts.
These stays ensured that the public policy behind
1447(c) were met: that there was no late game forum
shopping by Respondents in this matter and no
significant proceedings in the District Court.2
Petitioners’ continued games are the only forum
shopping that have occurred, and because the entire
matter was stayed, there were no substantive
2
In fact, Petitioners are the ones guilty of forum shopping.
Petitioners first attempted to move this case from state court into
an administrative proceeding under Michigan’s Primary
Jurisdiction doctrine in January of 2015. Now, Petitioners have
removed to Federal Court nine years after the case was filed and
after four attempts to have the case dismissed in state court.
21
proceedings occurring in the District Court. At all
times, Respondents made clear to both the District
Court and Petitioners that they intended to file a
motion to remand. (See Status Conference Tr., D. Ct.
ECF No. 31, PageID# 460.) Thus, the remand was
issued “early in the proceedings,” especially relative to
the overall age of this case. Pierpoint, 94 F.3d at 818.
Any public policy concerns in the application of
1447(c) have been met by the stays imposed by the trial
court.
E. Respondents’ motion to remand was
timely based on the foregoing.
Petitioners filed their Notice of Removal on
February 21, 2019. The case was then stayed on March
5, 2019, and Judge Leitman of the Eastern District of
Michigan would not permit any filings by the parties
pending an in-person status conference. (Order for
Stay, D. Ct. ECF No. 19.) Accordingly, Respondents
could not file a motion to remand. To clarify whether
a motion to remand was permitted, Respondents’
counsel reached out to Judge Leitman’s case manager,
Holly Monda, requesting that Judge Leitman put the
stay in the form of an Order to prevent any
misunderstandings about the stay. Holly Monda
informed Respondents that nothing should be filed on
the docket, including a motion to remand. (Email from
Monda, D. Ct. ECF No. 57-3, PageID# 1024.)
Respondents could have been held in contempt for
filing a motion to remand in violation of Judge
Leitman’s stay order.
Respondents nonetheless
preserved the issue.
Moreover, Judge Leitman
22
Ordered, and all parties agreed, at the April 18, 2019
status conference that Respondents would have three
weeks to file a motion to remand. (Status Conference
Tr., D. Ct. ECF No. 31, PageID# 472-74.) This time
period is well after the thirty day clock would have run
out in the absence of the stay order. Blaine Kimrey,
counsel for PAR, speaking on behalf of all Petitioners,
expressly agreed to the motion to remand timeline set
forth by the District Court. (Id. at PageID# 472.)
Petitioners’ explicit concession as to the motion to
remand timeline should constitute a waiver and act as
an automatic bar to the arguments brought by
Petitioners regarding the timeliness of Respondents’
motion.3
The unsuccessful settlement conference took place
on October 1, 2019. In compliance with Judge
Roberts’s May 8, 2019 Order, Respondents then filed
their motion to remand on October 23, 2019, prior to
the status/scheduling conference set for November 6,
2019. On October 24, 2019, the District Court entered
an Order striking the motion on technical grounds.
(Order Striking Mot., D. Ct. ECF No. 44, PageID# 6893
Petitioners’ assert that the 12 days (the time from when the
Notice of Removal was filed on February 21, 2019 to when the stay
was entered on March 5, 2019) count as part of the 30-day clock for
removal, but these days are irrelevant because Judge Leitman
ordered (and all parties agreed on the record) at the April 18,
2019 status conference that Respondents would have three weeks
from that date to file a motion to remand, rendering any days
Respondents would have had prior to that status conference moot,
and Petitioners should be estopped from arguing that the motion
to remand could not be extended by Court Order by their judicial
admission. (Status Conference Tr., D. Ct. ECF No. 31, PageID#
472-74.)
23
90.) The Order expressly directed that plaintiffs refile
their motion to remand by Monday, October 28, 2019.
(Id. at PageID# 690.) In compliance with the Order,
Plaintiffs timely re-filed their motion on Monday,
October 28, 2019. (Mot. to Remand, D. Ct. ECF No. 45,
PageID# 691-714.)
The Sixth Circuit was well within its discretion to
consider all of the above laid out unique and peculiar
facts and circumstances, and arguments made by the
parties, in determining that the permission to appeal
was improvidently granted. There is no adoption of an
erroneous view of law because there were various views
of laws argued in the briefs on appeal. Simply put, the
Sixth Circuit exercised its discretion not to make a
ruling based on the overly convoluted facts before it.
III.
The Sixth Circuit did not abuse its
discretion because Petitioners were
unambiguously able to ascertain
Respondents’ alleged damages and missed
their deadline to remove by 6 years.
An abuse of discretion occurs when a ruling is based
upon an erroneous view of the law or when there is a
clearly erroneous view of the evidence. Cooter & Gell,
496 U.S. at 405. Here, there is no abuse of discretion
in the application of the convoluted facts of this case
applied to the law of the Sixth Circuit, and the Sixth
Circuit was within its discretion not to take the appeal.
Petitioners argue that the Open Letter was not
received by them “from Plaintiffs,” and thus fails the
Graiser bright-line test to begin the thirty day clock for
removal under the CAFA, but this argument is
24
meritless. But the District Court held in its Order for
Remand that, under CAFA, the thirty day window to
remove begins when a defendant receives, “[t]hrough
service or otherwise, [a] copy of amended pleading,
motion, order or other paper from which it may first
be ascertained that the case is one which is or has
become removable.” (Order Granting Mot. to Remand,
D. Ct. ECF No. 54, PageID# 892; citing 28 U.S.C.
§ 1446(C)(3)); Graiser, 819 F.3d at 282 (emphasis
added). The Sixth Circuit clarified in Graiser that the
thirty day clock begins to run when the defendant
receives a document from the Plaintiff and provides
that the purpose of the bright-line rule is so that “[a]
defendant is not required to search its own business
records or ‘perform an independent investigation into
a Plaintiff’s indeterminate allegations.’” (Order
Granting Mot. to Remand, D. Ct. ECF No. 54, PageID#
893); citing Graiser, 819 F.3d at 285. Further, as the
District Court pointed out in its order, “[a] defendant
cannot prevent the beginning of the thirty day window
by refusing to ‘multiply figures clearly stated in a
complaint.’” (Id.) Petitioners’ attempts to ignore both
the bright-line rule and its underlying policy fail.
It has been established beyond any doubt that
Petitioner PAR received the Open Letter. Open Letter,
Resp’t App. 1-4. Petitioners Renovo and Remarketing
also received the so-called “retraction” letter the very
day it was emailed to the exact same list of recipients
that resulted in PAR receiving the letter. Leslie
Morant Declaration, Resp’t App. 14-19. The Open
Letter and “retraction” letter were drafted by Badeen
and received by Petitioners “through service or
otherwise” to put them on notice of Respondents’
25
proposed damages. Graiser, 819 F.3d at 282. The
bright-line rule in Graiser was satisfied without
question. Petitioners expected the Sixth Circuit to
believe that while PAR definitively received the Open
Letter, and Renovo and Remarketing definitively
received the retraction letter, somehow it can be argued
that the Open Letter, drafted by Badeen, did not end
up in their possession or that they are not otherwise
charged with knowledge of the contents. This assertion
is particularly egregious given the blatant forum
shopping and litigation gamesmanship that has been
prevalent through this litigation.
The Sixth Circuit was well within its authority to
decline to hear the appeal on these facts and did not
abuse its discretion in doing so.
A. Petitioners have been on notice of
Respondents’ alleged damages.
Factual findings are upheld on appeal unless they
are clearly erroneous. Anderson, 470 U.S. at 573-574.
The Sixth Circuit properly declined to upset the factual
findings of the District Court as one of several plausible
views of the evidence, and therefore did not abuse its
discretion. Id.
Petitioners, in attempts to obscure their actual
knowledge of Respondents’ claims, want to claim that
the Open Letter fails to meet the standards and
rationale set out by Graiser. To bolster this argument,
they (only later) make the claim that this Open Letter
was not created or served by Respondents in the
context of this litigation and that it is akin to a social
media post that merely references a pending litigation.
26
Petitioners have already acknowledged that the Open
Letter was emailed as well as posted, and then
actually obtained by them. Clearly, their argument
is factually incorrect on its face.
Petitioners
consistently attempt to dance around their
unequivocal, actual notice and receipt of the Open
Letter. Badeen posted and emailed the Open Letter
to a privately generated list of licensed repossessors.
The District Court correctly noted that PAR sent a
cease and desist letter to Badeen in response to the
Open Letter five days later on July 30, 2014 and
attached a copy of the Open Letter for reference. (Order
Granting Mot. to Remand, D. Ct. ECF No. 54, PageID#
894); see also PAR Demand for Retraction, Resp’t App.
5-13. Within days of it being sent, PAR had the Open
Letter. Shortly thereafter, all Petitioners had the
“retraction” letter in their possession. PAR, who it was
directly sent to, and Renovo and Remarketing, who
received it the day it was sent. Leslie Morant
Declaration, Resp’t App. 14-19.
Nothing that occurred in this case would have
required any Petitioner to conduct an independent
investigation, or examination of its own records, to
determine that Respondents are seeking over five
million in damages. The Open Letter from Badeen
landed directly into Petitioners’ hands.
CAFA
mandates that all it takes to put Petitioners on notice
is a paper, by service or otherwise. 28 U.S.C.
§ 1446(C)(3) (emphasis added). Graiser merely holds
(despite Petitioners’ tortuous twisting of the holding) is
that the paper must come from the plaintiff so that
Petitioner is not burdened with any independent
examination. (Order Remanding Case, D. Ct. ECF No.
27
54, PageID# 893); citing Graiser, 819 F.3d at 285.
“Federal jurisdiction should be exercised only when it
is clearly established.” Id. The District Court correctly
found that the Open Letter was received by the
Petitioners and met the requisite standards to merit
remand.
There is no abuse of discretion by the Sixth Circuit
in upholding these findings of fact.
IV.
The Sixth Circuit did not abuse its
discretion because the Open Letter was
clear and had sufficient detail for
Petitioners to determine Respondents’
damages.
Petitioners also contend that the Sixth Circuit
abused in discretion by failing to take their appeal,
despite the fact that the Open Letter constitutes
unambiguous evidence against removability. In making
this assertion, Petitioners fail to mention that the
District Court did not base its decision on the Open
Letter standing alone: the district court opinion
expressly states that the thirty day clock “began to run
when PAR received Plaintiffs’ July 25, 2014 open letter;
by then PAR could have unambiguously ascertained
CAFA jurisdiction by reading the July 25, 2014 open
letter in conjunction with the second amended
complaint.” (Order Remanding Case, D. Ct. ECF No.
54, at PageID# 894. (emphasis added))
Petitioners make three main arguments about the
Open Letter in an attempt to twist the conclusions of
the District Court and create an issue for this Court.
First, that it makes no reference to the Forwarder
28
Petitioners in this case. Second, that “there is no
evidence that the 1.8 million alleged violations occurred
during the class period of April 5, 2004 to April 4,
2010.” And third, that the Open Letter was retracted
by Plaintiffs before the removal clock expired.
The District Court adopted a clearly plausible view
of the evidence before it, and that view was properly
upheld by the Sixth Circuit. There was no abuse of
discretion, and this petition should be denied.
A. The Open Letter was directed at
Petitioners subject to this lawsuit.
Petitioners’ argument that this Open Letter would
somehow be directed at Forwarder’s not subject to this
lawsuit fails on its face. Petitioners’ argument
somehow draws the conclusion that Respondents
would, for some reason, write an Open Letter to and
about Forwarders they felt were acting in violation of
the law and for some reason not have included them
with the numerous defendants in this case. It makes
zero sense that Badeen would continue to track all
repossessions done by Forwarders that violated the
statute, complain about repossessions, then
inexplicably fail to include them in this lawsuit.
Plaintiff filed this action against all unlicensed
Forwarders in the state of Michigan specifically known
to be operating in Michigan and that the 1.8 million
misdemeanor violations referenced in the letter were
the repossessions they performed. The Open Letter
explicitly says the 1.8 million misdemeanors violations
refer to the “estimated number of vehicles repossessed
via these unlicensed repossessors.” Open Letter,
Resp’t App. 1-4 (emphasis added).
29
It was a completely plausible and permissible view
of this evidence for the District Court to conclude that
Respondents would sue every potential defendant, and
it was proper for the Sixth Circuit to decline to
overturn this conclusion. Anderson, 470 U.S. at 574.
This very issue was discussed on the record in front of
Judge Leitman prior to his recusal. (See Status
Conference Tr., D. Ct. ECF No. 31.) Respondents’
Counsel explained that Respondents are pursuing
every possible defendant on behalf of the class that
negatively impacted the class. (Id. at PageID# 465468.) Logically, it makes no sense that Respondents
would know about, address in an Open Letter, and fail
to join a potential defendant to the lawsuit. The
District Court’s decision to remand this case to state
court is fully supported by a simple and plausible
review of the record.
B. Respondents’ damages were clear and
defendants merely refused to do simple
math in 2014.
Petitioners’ argument that the 1.8 million
repossessions somehow makes the damages
Respondents’ seek unclear is ludicrous. There has been
no court-defined class period as of yet. The class period
will ultimately be for the period within the statute of
limitations that illegal repossessions took place. Again,
a simple reading of the record, including the twice-filed
in state court motion for class certification4, shows
4
No ruling has ever been made. The second filing, made after
appeal to the Michigan Supreme Court, was entered so that the
motion would be in the electronic filing system not used at the time
of the original filing.
30
Plaintiffs have not put a time limit on their class.
However, assuming arguendo that the class period
should be so defined, this does not help Petitioners.
The answer is still unambiguously contained in simple
math. Even a 40% reduction in damages (2004 to 2014,
minus 4 years) does not change the fact that
Petitioners cannot refuse to multiply figures.5 Graiser,
819 F.3d at 285. As the District Court pointed out, the
“$1” in actual damages example is “[a]n amount below
what any reasonably person could believe that
Plaintiffs were seeking for actual damages…” (Order
Remanding Case, D. Ct. ECF No. 54, PageID# 898899.) Given the documents and facts before it, the
District Court’s conclusions were one of several
supported by the evidence, and the Sixth Circuit
properly refused to set them aside.
C. The Open Letter was not retracted.
The District Court correctly found that the
“retraction” letter shows that Badeen stuck by his
original allegations. Petitioners make much ado about
the “retraction” letter. Once again, they are twisting
the facts and the District Court’s holding. Petitioners,
after receiving the Open Letter, sent a cease and desist
letter to Badeen and threatened a libel suit, and
demanded that he retract the Open Letter.6 PAR
5
At a 40% reduction, even if Respondents’ only allege the
minimum of $50.00 per violation under MCL 339.916(2),
Petitioners had ample notice that Respondents’ damages exceed 5
million dollars. 1.8 million violations x 60% = 1,080,000 x $50.00
per violation = $54,000,000.00.
6
PAR’s cease and desist letter was dated only 5 days after the
Open Letter.
31
Demand for Retraction, Resp’t App. 5-13.
Subsequently, Badeen drafted and submitted another
Open Letter to meet PAR’s demands, which was
circulated and posted to the same Petitioners who
received the Open Letter. The District Court correctly
pointed out that “Plaintiffs never retracted the letter or
their allegation that the Forwarder Petitioners were
responsible for 1.8 million repossessions/violations.”
(Order Remanding Case, D. Ct. ECF No. 54, PageID#
895.) In fact, other than the subject line, the
“retraction” letter does not use the word “retraction”
anywhere.
Badeen merely clarified his lay
misstatements about the Michigan Supreme Court
holding, without retracting any part of his actual letter.
Leslie Morant Declaration, Resp’t App. 14-19. A
careful reading of the “retraction” letter, issued at the
insistence of the Petitioners, clearly demonstrates that
once again the District Court’s holding was correct and
factually based. Following the District Court’s holding
is well within the discretion of the Sixth Circuit, and
this petition should be denied.
CONCLUSION
For the reasons stated above, the order of the Sixth
Circuit Court of Appeals determining that permission
to appeal was improvidently granted was within the
sound discretion of the Sixth Circuit, and the petition
should be denied. This case should be remanded back
to the 3rd Judicial Circuit Court of Michigan for Wayne
County.
32
Respectfully submitted,
Joseph M. Xuereb
Counsel of Record
XUEREB LAW GROUP PC
7752 N. Canton Center Rd.
Suite 110
Canton, Michigan 48187
(734) 455-2000
jxuereb@xuereblawgroup.com
Counsel for Respondents
Dated: July 8, 2021
APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Open Letter To All Michigan Licensed
Recovery Agencies dated July 25, 2014
(October 28, 2019) . . . . . . . . . . . . . App. 1
Appendix B Letter PAR Demand for Retraction
dated July 30, 2014
(October 28, 2019) . . . . . . . . . . . . . App. 5
Appendix C Declaration of Leslie C. Morant in the
United States District Court Eastern
District of Michigan Southern Division
(November 12, 2019) . . . . . . . . . . App. 14
App. 1
APPENDIX A
Midwest Recovery & Adjustment, Inc.
[Seal]
14666 Telegraph Road
Redford, Michigan 48239
George Badeen
President
(313) 817-2100
gbadeen@midwestautoauction.com
[Filed October 28, 2019]
July 25, 2014
Open Letter To All Michigan Licensed Recovery
Agencies
Dear Fellow Michigan Recovery Agent,
Many years ago I began to wonder, how it was that
a Forwarder could operate In our State without a
Collection License, and in doing so, avoid the
encumbrances of insurance, bonding, taxes,
governmental oversight, and act as an unregulated
middleman who stood between me, the regulated
repossessor, and the regulated Bank? How was it that
they could interfere and nullify existing contracts with
my clients, then demand the same ·work for less than
half, and retaliate by destroying my business if I
refused their “offer”? Over the next several years I
brought this question before various levels of our
Courts until eventually I reached the Supreme Court of
App. 2
Michigan. Their answer to my question was in total
unison; Forwarders are violating Michigan Law by not
possessing a State Collection License. Additionally,
they also ruled that anyone who has hired an
unlicensed Forwarder to repossess a vehicle is also in
violation of Michigan Law. You would think that their
ruling would have stopped these Forwarders but you
would be wrong. Many still haven’t ceased and are
demonstrating their arrogance for our Laws by
continuing with business as usual.
Despite the decision of our Supreme Court the
Attorney General, the top enforcer of the laws of our
State, has been slow to do anything; and why? After all
this is a slam-dunk! The entire Supreme Court has
already ruled the Fowarders to be in violation of our
Laws and I understand that there are now some
Federal agencies that have begun investigations based
on their ruling. Why is our own Attorney General still
dragging his feet? Could it be that he’s just slow to the
draw or is it something else. As a result of his inaction,
the Forwarders have been allowed time to mitigate
their impending damages that they know are coming
and to apply for Collection Licenses. I have been
informed that after receiving these “shinny” new
licenses, they will not only become “cleansed of their
sins” for operating without one to begin with, but will
now be “licensed” to continue with the theft of our
businesses and the gouging of Michigan’s Consumers.
I suppose that If the AG were to apply this skewed
logic of the law equally, than I guess he thinks that it’s
“OK” to perform brain surgery, or drive a car without
a license. If you get caught, don’t worry, he’ll give the
time you need to get one and all will be forgiven.
App. 3
Obviously, he fails to understand that a license is more
than piece of paper. It signifies, that you have met
certain legal standards, such as a background check,
passing an exam, providing proof of insurance, and
certifying that you are a law abiding citizen. Despite
the approximate 1.8 million misdemeanor violations,
(the estimated number of vehicles repossessed via
these unlicensed Forwarders), it is now apparent that
this delay has been intentional to allow time for the
construction of a special fast track to legal acceptability
for these Forwarders. In short, the standard roadblocks
of legality that applied to you and me, are to be
removed to accommodate them.
This travesty at our expense cannot continue. Our
task is obvious, we must work together and stop these
Forwarders from obtaining a license to operate in our
State. I ask for your support and encourage you to
stand with me in this fight and attend the next
meeting of the Michigan Collection Practices
Board on August 7, 2014 at 10:00 A.M., in
Conference Room #1, located at 2501 Woodlake
Circle, in Okemos. Please mark your calendar and
make plans to attend so that we can demonstrate to
our State’s Government that we stand united.
Lastly, in light of the recent Ruling of our Supreme
Court, I think it prudent and I would recommend to
you, that you ask any Forwarder you are doing
business with to provide you proof of their Michigan
State Collection License. If they cannot do this, you
may consider ceasing all work for them and going
directly to the Banking entity who placed the order and
App. 4
inform them that you can no longer accept orders
through their Forwarder.
In closing, please allow me to thank you for your
support and unity in this battle to take back control of
our industry.
Sincerely,
/s/ George Badeen
George Badeen
App. 5
APPENDIX B
MILLER
CANFIELD
Miller, Canfield, Paddock and Stone, P.L.C.
150 West Jefferson, Suite 2500
Detroit, Michigan 48226
TEL (313) 963-6420
FAX (313) 496-7500
www.millercanfield.com
[Filed October 28, 2019]
Founded in 1852
by Sidney Davy Miller
MICHIGAN: Ann Arbor
Detroit•Grand Rapids
Kalamazoo•Lansing•Troy
FLORIDA: Tampa
ILLINOIS: Chicago
NEW YORK: New York
OHIO: Cincinnati
LARRY J. SAYLOR
CANADA: Toronto•Windsor
TEL (313) 496-7986
CHINA: Shanghai
FAX (313) 496-8454
MEXICO: Monterrey
E-MAIL saylor@millercanfield.com
POLAND: Gdynia
Warsaw•Wroclaw
July 30, 2014
George Badeen
Midwest Recovery & Adjustment, Inc.
c/o Joseph M. Xuereb, Esq.
App. 6
Xuereb Snow, PC
7752 Canton Center Road, Ste. 110
Canton, MI 48187
Re:
Defamation of PAR, Inc. d/b/a PAR North
America
Dear Mr. Badeen:
This firm represents PAR, Inc. d/b/a PAR North
America (“PAR”). I write to address your “Open Letter
to All Michigan Licensed Recovery Agencies” dated
July 25, 2014, which is attached, along with your
transmittal letter. Your statements regarding the effect
of the Michigan Supreme Court opinion dated June 14,
2014 in Badeen v. PAR, Inc. are false and defamatory.
Specifically, without limitation, the following
statements are factually wrong and per se actionable:
• The Michigan Supreme Court has ruled that
PAR is “violating Michigan Law by not
possessing a State Collection License.”
• The Michigan Supreme Court has also ruled
that “anyone who has hired” PAR “to repossess
a vehicle is also in violation of the Michigan
Law.”
• PAR is demonstrating “arrogance for our Laws
by continuing with business as usual.”
• The Michigan Supreme Court “has already
ruled” that PAR is “in violation of our Laws.”
As you well know, the Michigan Supreme Court
remanded the matter to the Wayne County Circuit
Court for further proceedings, including consideration
App. 7
of all remaining defenses and exceptions to the
application of the licensing requirement in Article 9 of
the Michigan Occupational Code, MCL 339.901 et seq.
No court has held either that PAR violated Michigan
law by failing to be licensed as a collection agency, or
that anyone violated Michigan law by retaining PAR as
a repossession forwarder.
On behalf of PAR, we demand that you immediately
cease and desist from further distribution of the “Open
Letter,” issue a retraction pursuant to MCL
600.2911(2)(b) to any and all recipients of that letter,
and cease and desist from posting or communicating
any defamatory statements regarding PAR. Your
counsel should immediately contact us to discuss the
appropriate form of the retraction.
Please confirm your compliance with this demand
by 5:00 p.m. Friday, August 15, 2014 by providing a
copy of the agreed retraction, a list of the names and
addresses of all recipients of the “Open Letter,” the
names and addresses of all recipients of the retraction,
and the date and manner that each was transmitted.
Absent such confirmation, we will take such measures
as may be appropriate to protect PAR’s interests.
Very truly yours,
Miller, Canfield, Paddock and Stone, P.L.C.
By: /s/ Larry J. Saylor_____________________
Larry J. Saylor
LJS/slb
App. 8
Midwest Recovery & Adjustment, Inc.
[Seal]
14666 Telegraph Road
Redford, Michigan 48239
Greetings to all,
My name is George Badeen and I am the owner and
President of Midwest Recovery and Adjustment, Inc. of
Redford, Michigan. As many of you are aware, I have
been fighting a legal battle in this State against
unlicensed and unregulated third party collection
agencies, commonly known in our business as
Forwarders. Recently, I was able to secure a major
victory when the Supreme Court ruled unanimous in
my favor. Naturally, this will create many new and
positive changes in the way our Clients and all of us
will be able to conduct business in the future. However,
I recently learned that their are still many officials in
our States’ Government that are doing all they can to
dilute the impact, if not completely block the ruling of
our highest Court from taking affect. If they have their
way, these officials and their “Banking Backers”, will
destroy all we have built and once again, place our
businesses and our very lives at their mercy.
Below is a link to a letter that I have written to all
of you, and I hope that you will take a few moments
and read it over. It provides in greater detail as to,
“what’s going on”, as well as a plan of action and a call
to arms to protect our Industry. I have also provided
the unanimous ruling of our Supreme Court for your
review and information.
Thank You For Your Indulgence,
App. 9
Sincerely,
George Badeen
Press Here To View Letter & Court Ruling
App. 10
Midwest Recovery & Adjustment, Inc.
[Seal]
14666 Telegraph Road
Redford, Michigan 48239
George Badeen
President
(313) 817-2100
gbadeen@midwestautoauction.com
July 25, 2014
Open Letter To All Michigan Licensed Recovery
Agencies
Dear Fellow Michigan Recovery Agent,
Many years ago I began to wonder, how it was that
a Forwarder could operate in our State without a
Collection License, and in doing so. avoid the
encumbrances of insurance, bonding, taxes,
governmental oversight, and act as an unregulated
middleman who stood between me, the regulated
repossessor, and the regulated Bank? How was it that
they could interfere and nullify existing contracts with
my clients, then demand the same work for less than
half, and retaliate by destroying my business if I
refused their “offer”? Over the next several years I
brought this question before various levels of our
Courts until eventually I reached the Supreme Court of
Michigan. Their answer to my question was in total
unison; Forwarders are violating Michigan Law by not
possessing a State Collection License. Additionally,
they also ruled that anyone who has hired an
unlicensed Forwarder to repossess a vehicle is also in
violation of Michigan Law. You would think that their
App. 11
ruling would have stopped these Forwarders but you
would be wrong. Many still haven’t ceased and are
demonstrating their arrogance for our Laws by
continuing with business as usual.
Despite the decision of our Supreme Court the
Attorney General, the top enforcer of the laws of our
State, has been slow to do anything; and why? After all
this is a slam-dunk! The entire Supreme Court has
already ruled the Fowarders to be in violation of our
Laws and I understand that there are now some
Federal agencies that have begun investigations based
on their ruling. Why is our own Attorney General still
dragging his feet? Could it be that he’s just slow to the
draw or is it something else. As a result of his inaction,
the Forwarders have been allowed time to mitigate
their impending damages that they know are coming
and to apply for Collection Licenses. I have been
informed that after receiving these “shinny” new
licenses, they will not only become “cleansed of their
sins” for operating without one to begin with, but will
now be “licensed” to continue with the theft of our
businesses and the gouging of Michigan’s Consumers.
I suppose that if the AG were to apply this skewed logic
of the law equally, than I guess he thinks that it’s “OK”
to perform brain surgery, or drive a car without a
license. If you get caught, don’t worry, he’ll give the
time you need to get one and all will be forgiven.
Obviously. he fails to understand that a license is more
than piece of paper. It signifies, that you have met
certain legal standards, such as a background check,
passing an exam, providing proof of insurance, and
certifying that you are a law abiding citizen. Despite
the approximate 1.8 million misdemeanor violations,
App. 12
(the estimated number of vehicles repossessed via
these unlicensed Forwarders), it is now apparent that
this delay has been intentional to allow time for the
construction of a special fast track to legal acceptability
for these Forwarders. In short, the standard roadblocks
of legality that applied to you and me, are to be
removed to accommodate them.
This travesty at our expense cannot continue. Our
task is obvious, we must work together and stop these
Forwarders from obtaining a license to operate in our
State. I ask for your support and encourage you to
stand with me in this fight and attend the next
meeting of the Michigan Collection Practices
Board on August 7, 2014 at 10:00 A.M., in
Conference Room #1, located at 2501 Woodlake
Circle, in Okemos. Please mark your calendar and
make plans to attend so that we. can demonstrate to
our State’s Government that we stand united.
Lastly, in light of the recent Ruling of our Supreme
Court, I think it prudent and I would recommend to
you, that you ask any Forwarder you are doing
business with to provide you proof of their Michigan
State Collection License. If they cannot do this, you
may consider ceasing all work for them and going
directly to the Banking entity who placed the order and
inform them that you can no longer accept orders
through their Forwarder.
In closing, please allow me to thank you for your
support and unity in this battle to take back control of
our industry.
App. 13
Sincerely,
/s/ George Badeen
George Badeen
App. 14
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No: 19-cv-10532
[Filed November 12, 2019]
__________________________________________
GEORGE BADEEN, an individual and on
)
behalf of a proposed class, and MIDWEST
)
RECOVERY AND ADJUSTMENT, INC.,
)
a Michigan for profit corp., individually
)
and on behalf of a proposed class,
)
)
v.
)
)
PAR, INC, d/b/a, PAR NORTH
)
AMERICA, an Indiana corporation;
)
REMARKETING SOLUTIONS, a
)
Delaware limited liability company, for
)
itself and as successors in interest;
)
RENOVO SERVICES, LLC, a Delaware
)
limited liability company; TD AUTO
)
FINANCE LLC, a Michigan limited
)
liability company; TOYOTA MOTOR
)
CREDIT CORPORATION, a California
)
corporation; SANTANDER CONSUMER
)
USA INC., an Illinois corporation; PNC
)
BANK, N.A., an Ohio corporation; BANK
)
OF AMERICA, a North Carolina
)
company; FIFTH THIRD BANK, an Ohio
)
App. 15
company; NISSAN MOTOR
)
ACCEPTANCE CORPORATION, a
)
California corporation; THE
)
HUNTINGTON NATIONAL BANK, an
)
Ohio corporation, jointly and severally.
)
__________________________________________)
Hon. Judge Victoria A. Roberts
Hon. Magistrate Judge Stephanie Dawkins Davis
DECLARATION OF LESLIE C. MORANT
I, Leslie C. Morant, hereby declare:
1. I am a partner at the law firm Morant Law
PLLC and am lead counsel for defendants Remarketing
Solutions (“Remarketing”) and Renovo Services, LLC
(“Renovo”) in the above-referenced action. I am over the
age of 18, have personal knowledge of the matters set
forth herein, and if called to testify as a witness, I could
and would testify competently. I make this declaration
in support of the Opposition to Plaintiff’s’ Motion to
Remand.
2. Attached as Exhibit 1 is a true and correct copy
of an August 15, 2014 email from plaintiff George
Badeen to an undisclosed list of recipients. The email
attached as Exhibit 1 was first obtained by Renovo the
same day it was sent and was subsequently provided
by Renovo to me on August 15, 2014.
I declare under penalty of perjury under the laws of
the United Sates that the foregoing is true and correct.
App. 16
Dated: November 11, 2019
Respectfully submitted,
By: /s/ Leslie C. Morant
App. 17
Exhibit 1
From: Midwest Recovery & Adjustment, Inc.
[mailto:auctions@mr44.mr.bmdeda99.com ] On Behalf
Of Midwest Recovery & Adjustment, Inc.
Sent: Friday, August 15, 2014 12:06 AM
To: jxuereb@xuereblawgroup.com <mailto:jxuereb@
xuereblawgroup.com>
Subject: Retraction
View this email in your browser
<http://midwestauctionsales.bmetrack.com/c/v?e=4F
B300&c=11616&I=8B28EFC&email=rTPQDs%2FfXu
AAAqiFzD9KSI0dC00x%2FiwKCJ%2FwYbRnGP0%3
D&relid=2E04A964 >
View this email in your browser
<http://midwestauctionsales.bmetrack.com/c/v?e=4F
B300&c=11616&t=0&I=8828EFC&email=rTPQDs%2
FfXuAAAqiFzD9KSI0dC00x%2FiwKCJ%2FwYbRnG
P0%3D>
[http://images.benchmarkemail.com/client71190/
image1491690.jpg]
I am writing you as a follow up to my Open Letter
To All Michigan Licensed Recovery Agencies dated July
25, 2014. One of the forwarding companies has
complained that my letter did not accurately
characterize the Michigan Supreme Court’s Opinion in
my case against them. Now, I am not an attorney, so I
apologize for any such mischaracterization. However,
I did attach the full Supreme Court opinion with my
letter so you could read for yourself what the court
said. I hope they don’t think there was anything
App. 18
inaccurate in the Supreme Court’s opinion? I am
attaching another copy so you can please review it if
you did not last time.
The forwarder complained about the fact that I said
the Michigan Supreme Court ruled that the forwarders
were violating Michigan Law by not possessing a State
Collection License. They contend the Supreme Court
did not say this. They are correct. However, everyone
should be clear that the Supreme Court ruled against
the forwarders. The forwarders contended that they
were not collection agencies under the Act’s definition.
The Supreme Court in fact stated forwarders do come
within the statute’s definition of a collection agency
when they contact creditors asking for debts to forward
to licensed collection agents. This reversed the trail
court’s opinion which held forwarders were not
collection agencies under the statute. The Supreme
Court stated ordinarily this would require the
forwarders to become licensed. However, the
forwarders have a number of arguments that have not
been decided by the courts yet. For this reason the
Supreme Court did not address in its opinion the issue
of whether forwarders were violating Michigan law at
the present time by not being licensed.
The forwarder also complained that I said that
anyone who hired a forwarder to repossess a vehicle is
also in violation of the Michigan law. The forwarder
contended the Supreme Court did not say this, which
apparently it didn’t. However, my attorneys tell me the
law is clear that if forwarders are required to be
licensed, lenders that contract with them will very
likely be violating a different section of the law.
App. 19
Lastly, the forwarder who complained about my
letter did not like the fact that I said forwarders were
demonstrating arrogance for our laws by continuing to
do business as usual. The Supreme Court said in its
opinion that forwarders come within the definition of a
collection agency, who are ordinarily required to be
licensed under the Occupational Code. It certainly in
my opinion is arrogant to continue to search for an
exception to the licensing requirements rather than
simply become licensed. Nonetheless, as stated above,
the court did not find the forwarders are required to be
licensed at the present time.
I hope this satisfies the forwarders search for
accuracy with respect to the Supreme Court opinion,
which in my opinion, was a victory for licensed
repossessors in the battle against unlicensed
forwarders in our industry.
Sincerely,
[http://images.benchmarkemail.com/client71190/image
1491515.jpg]
George Badeen
Press Here To Read Supreme Court Ruling
<http://midwestauctionsales.bmetrack.com/c/l?u=3B4
E116&e=4FB300&c=11616&t=0&I=8B28EFC&email
=rTPQDs%2FfXuAAAqiFzD9KSl0dC00x%2FiwKCJ
%2FwYbRnGP0%3D>
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.