Opposition Brief — Hamilton v. City of Romulus

yn the

Supreme Coutt.U.S. |

FILED

APR 27 2011

j _OF FICE OF THE CLERK

Se

Supreme Court of the GAnited State

Counsel of Recor

FECREST WARDI

0903 NORTHWES'

OO. Box 3040

ARMINGTON Hit

48) 851-9500

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lingvler@se:

FLEON PRESENT I

DID THE TRIAL COURT PROPERLY APPLY RUL

56 STANDARDS AND CORRECTLY CONCLUDI

THAT PLAINTIFFS’ CONSPIRACY AND 42 US!

1983 CLAIMS WERE SUPPORTED

EVIDENCE?

THIS CASE INVOLVES A GARDEN VARIE’

APPLICATION OF SUMMARY JUDGMEN'’

PRINCIPLES, AND SUMMARY JUDGMEN'!

WAS PROPERLY GRANTED DUE TO THE

ABSENCE OF EVIDENCE TO UPPORT]

LAINTIFFS’ CLAIMS

ihe oixth Circuit Court : ippeal!l pI

iffirmed the dismissal of Plaintiffs’ § 1]

im against the Inkster Defendant

1 Sixth Circuit Court of Appeal: proj

ifirmed the dismissal of Plaintiffs’ feder

nd state law conspira laims arainst t

kster Defendant

alntilis did not reiy ric

evine as support for their conspira

laim against the Inkster Defendants }

he District Court and their argument

ised < f : kk af

t

, ’ a. Be I I 1G

2 ¢ a:

zainst the City of Inkster. Record 268, Responss

SJ Motion, p 6; Record on Appeal to the 6" Cir

hereafter “ROA”), Appellant Brief, 12/11/09, p 25,1

As to the Inkster Defendants, Plaintiffs did not app

from the United States District Court’s dismissal]

ims under 42 U.S.C 1985(2) anc

*

i

~onversion, taking and larceny. ROA Appellant Bris

2/11/09. With regard to the Inkster Defendant

Plaintiffs appeal is limited sof

S.C. 1983 and feds

{}

uDS; namely,

South”) owned by

by Garter Belt,

“Henry's” ywhned

Lounge, In

lamuilton

Rij

the Inkster Defendants st

from allegations that [they] conspired

themselves, and with the Michigan Liquor Contr

Commission (“MLCC”) to put Hamilton’s two Inkst

strip clubs — Henry’s and Bogart’ t of |

> yor An 5

atc ord » “ee * Viemo ‘ irae ry

A iia

v 7 +

Le mMmSeE lves reat 1 a plan to iarTass Sn

eX

lown Henry’s. The overt acts include the fal:

omb threat by Abdullah, which “justified

earch under false pretenses by Brown, wl

tole a tape, which was obtained by Martin, w

hen made a complaint to the ML‘

+ Y

ryarasry’t sry nt ™<.> ¥"¥ 5 ¥*x | ’ yy

POT LeUdU Uy CPe- TF Lt OCCU ei

that the Inkster Defen«

he MLCC to shut down H:

‘he overt acts include

iLCC’s eagerness to

nconstitutional!l

Was patent

‘ pate sitll }

laintiffs presented no evidence supporting the

federal and state law conspiracy claims or their 4

U.S.C. 1983 claims against the Inkster Defendants

Proof of Plaintiffs’ lack of evidence is found in Record

296, Joint Submission of Statement of Facts Not in

Material Dispute, the evidence the Inkster Defendants

cited therein, and in the attachments filed with the

Inkster Defendants’ summary judgment pleadings

Record 201; Record 252, SJ Pleadings and Exhibits.

tecord 201-1 to 201-9; Record 219, Supplemental

tachment, Record 219-3, Hamilton 4/17/0

I

Brief, and att

{

4

Specifically, Hamilton testified that he had noy

hat anyone from Inkster ever tried to close Dae art’s

that the Inkster Defendants were involved in

conspiracy with the other Defendants. Record

Joint Submission, Nos. 13, 14, 21, 22, 30, 32-37

addition, Hamilton testified that he has no person:

knowledge that the Inkster Defendants planned

executed a bomb scare at Henry’s. Record 296, Jou

Submission, Nos. 23, 24. The undisputed evidence

that the person who called in the bomb threat

Henry’s has never been identified. Record 296, Jo

Submission, No. 25; Record 201, Record 252

Pleadings, Record 201-6, Martin dep, pp 18

Previously, Michigan courts conclusively reviews

the issue of whether there was collusion between the

Inkster Police Department, including Officers Brow:

and Martin, and the MLCC, and concluded that there

was no evidence of any understanding between the

Inkster Police and the MLCC with respect

investigating violations in Henry’s after Brown gav

the MLCC the videotape that Martin removed fro!

Henry’s. Record 201, Record 252, SJ Pleadings, R 20]

8, Henry the VIII Lounge, Inc. v. Dep’t of Consumer &

Industry Services and Liquor Control Comm’,

unpublished per curiam decision of the Michigan Cou

of Appeals, rel’'d May 18, 2006 (Docket No. 255893)

den 477 Mich 1055 (2007), pp 4-5

Furthermore, Jeremy Hamilton, John Hamilto1

and Michael Hamilton testified that they have

evidence supporting the conspiracy and (fi

amendment claims. Record 296, Joint Submission

Facts Not in Dispute, Nos. 39-48, 56-61. Hamulton als«

admitted that he has no evidence that the Inkste

Defendants tried to interfere with his family or righ

4 4 tealava. bar % ‘ sf

tL assOClavlloll WIth

Submission, No

Furthermore, Hamilton testified that the revenues

at Bogart’s and Henry’s in Inkster have not gone down

since the start of the lawsuit, that the business at

Bogart’s has been pretty consistent throughout the

years, that he has not lost any money at Bogart’s, and

that nobody in the City of Inkster has tried to close

Bogart’s. Record 296, Joint Submission, Nos. 64, 66.

Hamilton also testified that he has not lost any money

from his operations at Henry’s or Bogart’s that is

attributable to the Inkster Defendants, and that both

of those establishments still had their liquor licenses

and presented topless dancing when he was deposed

Record 296, Joint Submission, No. 67

In the District Court, Plaintiffs did not rely on the

report of Henry Levine to support their claims against

the Inkster Defendants. Record 268, Response. In the

United States Court of Appeals for the Sixth Circuit,

Plaintiffs cited the report as to the Inkster Defendants

in a conclusory manner without explaining how it

supported their claims of conspiracy or § 1983

violations. ROA, Appellant Brief, 12/11/09, pp 25, 26

The District Court granted the Inkster Defendants’

summary judgment motion, which was brought under

Rules 12(b)(6) and 56(c) of the Federal Rules of Civil

Procedure, and entered judgment in favor of all of the

Inkster Defendants, including the City of Inkster

Record 335, Memo/Order, Record 336, Judgment

or

Record 337, Order Amending Record 335

SUMMARY OF ARGUMENT

This case demonstrates a proper application

summary judgment principles. The District Court

correctly concluded that Plaintiffs had failed to

produce any evidence giving rise to a genuine issue of

material fact. Plaintiffs failed to produce any evidence

to sustain their claim of violation of 42 U.S.C. 1983,

whether that claim is premised on alleged deprivation

of the right of association, or on alleged retaliation for

exercise of First Amendment expression. The right of

association, according to Plaintiffs’ own theory, was

violated by a non-party, the MLCC. The Michigan

courts have conclusively determined that there was no

collusion between the MLCC and the Inkster

Defendants. Moreover, the individual Plaintiffs have

admitted that the Inkster Defendants did not interfere

with their family relationships. The alleged retaliation

is necessarily based on the same factual claims and

fails for the same reasons.

Plaintiffs have equally failed to produce any

evidence to show a conspiracy by or among the Inkster

Defendants. Plaintiffs’ claim that the lower courts

improperly narrowed their claim is without merit

where Plaintiffs themselves characterized the

conspiracy as arising from or related to the alleged

bomb threat at Henry’s. Plaintiffs’ belated attempt to

create a factual issue by relying upon an expert report

as to the Inkster Defendants fails for two reasons

because the report was not relied upon in this manner

in the trial court; and because the report merely

provides conclusory statements. Plaintiffs have failed

to show an agreement to injure another by unlawful

action, an overt act in furtherance of such agreement,

or any damages, monetary or otherwise, flowing fron

such agreement. In fact, the Plaintiffs admitted that

neither Inkster business has lost money from their

operations that is attributable to the Inkster

Defendants. Plaintiffs’ claims were dismissed not

because the District Court’s analysis was too narrow or

erroneous, but because Plaintiffs did not and could not

present evidence to support their claims

ARGUMENT

THIS CASE INVOLVES A GARDEN VARIETY

APPLICATION OF SUMMARY JUDGMENT

PRINCIPLES, AND SUMMARY JUDGMENT

WAS PROPERLY GRANTED DUE TO THE

ABSENCE OF EVIDENCE TO SUPPORT

PLAINTIFFS’ CLAIMS.

Plaintiffs assert before this Court that “{t}he Courts

below ignored a vast body of evidence from which a

reasonable jury could have found 42 U.S.C. § 1983

liability and a conspiracy to violate Plaintiffs’

constitutional rights.” (Petition for Certiorari, p 5).

However, as in the lower courts, Plaintiffs fail to

specify any facts that could support these claims.

This Court advised in Celotex v. Catrett, 477 U.S.

317,327; 1068S. Ct. 2548, 2555; 91 L. Ed.2d 265 (1986),

that “[s]ummary judgment is properly regarded not as

a disfavored procedural! shortcut, but rather as an

integral part of the Federal Rules as a whole, which

are designed ‘to secure the just, speedy and

inexpensive determination of every action.” /d.,

quoting Fed. R. Civ. P. 1. Summary judgment is

required “if the movant shows that there is no genuine

dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ

P. 56(a). “When the moving party has carrie

burden under Rule 56(c), its opponent must do mor:

than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

106 S. Ct. 1348, 1356; 89 L. Ed.2d 538 (1986) (footnot:

omitted). Rather, “the nonmoving party must com:

forward with ‘specific facts showing that there is

genuine tssue for trial.” Id., 475 U.S. at 587 (quotin;

Fed. R. Civ. P. 56(e) and adding emphasis). Evidenc:

that is merely colorable, or that is not “significantl}

probative” will not withstand summary judgment

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250

106 S. Ct. 2505, 2511; 91 L. Ed.2d 202 (1986). “[T]hi:

standard provides that the mere existence of som

alleged factual dispute between the parties will not

defeat an otherwise properly supported motion fo)

summary judgment; the requirement is that there b:

no genuine issue of material fact.” Id., 477 U.S. at 247

248. This case involves a straightforward applicatio1

of summary judgment principles. Defendant

resoundingly demonstrated that there was no factual!

support for Plaintiffs’ claims of conspiracy and § 1983

violations. Plaintiffs failed to come forward wit]

specific facts demonstrating a genuin

material fact as to either clain

A. The Sixth Circuit Court of Appea

properly affirmed the _ dismissal 0!

Plaintiffs’ § 1988 claim against the Inkst:

Defendants.

In seeking review by the United States Supre

Court, Plaintiffs herein refer generally to § 198

violations without specifying the underlying violatio

of federal law or constitution that is supposed

iderlie their claim (Petition for Certioranr In like

ianner, Plaintiffs complained to the Sixth Circuit

Court of Appeals that the trial court had failed to

consider all avenues of § 1983 liability, but failed to

identify the rights, privileges, or immunities allegedly

violated, except for cursory mention of the “right of

association” and “retaliation taken against the

appellants for engaging in 1* amendment expression.”

ROA, Appellant Brief, 12/11/09, pp 34, 34-36. In the

trial court, in their response to the Inkster Defendants’

summary judgment motion, Plaintiffs alleged a Fourth

Amendment violation as the basis for their § 1983

claim. Record 268, Response, p 8. However, they

waived that claim on appeal by failing to raise it in

their appellate brief. ROA, Appellant Brief, 12/11/09

Ahlers v. Schebil, 188 F.3d 365, 374 (6" Cir. 1999):

White Oak Prop. Dev., LLC, v. Washington Twp., Ohio,

606 F.3d 842, 854 (6” Cir. 2010) (claims not addressed

n appellate briefs are waived)

Plaintiffs did make mention of the right

issociation” in their appellate brief as a basis fo:

§ 1983 liability, albeit summarily and without citation

of supporting authority. ROA, Appellant Brief,

12/11/09, p 34. However, the alleged deprivation of

Plaintiffs’ right of association was undisputedly

attributed to a non-party, the Michigan Liquor Control

Commission. In their response to the Inkster

Defendants’ Motion for Summary Judgment, Plaintifl

sserted

‘he freedom of association claim comes from

MLCC’s acts to only grant liquor licenses

John Hamulton’s sons if they agreed to

stipulation that neither John Hamilton or the

othe r could he resent , pccjcf

management of the son’s business. This licens

stipulation arose in 1999. Jn 1996, Inkster

Defendant Martin made perjured claims against

Legg’s in Van Buren which undoubtedly tainted

the MLCC’s view of Hamilton's businesses. In

2000, the Inkster Defendants staged their bomb

threat and Martin made claims to the MLCC

against Hamuilton’s business in Inkster. It is

clear that the actions of the Inkster Defendants

in_ their Harassment of Hamilton led to the

actions by the MLCC against Hamilton's sons,

which interfered with their right «

association

Record 208, Nesp én

Plaintiffs did not present, nor cite, any eviden

supporting their speculation that Martin’s alleged

claim against Legg’s in Van Buren in 1996

“undoubtedly tainted the MLCC’s view of Hamilton’:

businesses” in Inkster. Jd. They also did not present

nor cite, any evidence supporting their speculative

allegation that the Inkster Defendants staged a bomb

threat, or that the bomb threat “led to the actions by

the MLCC against Hamilton’s sons, which interfered

with their right of association ” Id. In fact, it 1

undisputed that the perpetrator of the bomb threat

has never been identified Record 296, Joint

Submission, No. 25; Record 201, Record 252

Pleadings, Record 201-6, Martin dep, pp 18-19

The District Court properly dismissed “the F'n

Amendment claim because the individual plaintifi

claim that their right to association was violated — not

by any of the defendants who remain party to thi

action — but rather by the MLCC, a former defend

with which plaintiffs have settled.”. Record 335,

Memo/Order, p 9. The Court further noted

that the individual plaintiffs baldly assert in the

FAC [First Amended Complaint] that their

right to associate was violated by the Inkster

Defendants. However, in their brief, they state

that their “freedom to associate claim comes

from the MLCC’s acts to only grant liquor

licenses to John Hamilton’s sons if they agreed

to a stipulation that neither John Hamilton o1

their mother could be present or assist in the

management of the son’s businesses.” Pls.’ Br

at 5. [Record 268, p 5]. The individual plaintiffs

have not sufficiently alleged or proven that the

Inkster Defendants had anything to do with the

stipulation referenced in the _ preceding

sentence, much less that there was _ an

agreement among the Inkster Defendants, on

the one hand, and the MLCC, on the other

hand, to deprive the individual plaintiffs of

their rights. Hamilton even admitted during

his deposition that he has no evidence that

anyone associated with Inkster interfered with

his family relationship or right of association

See Hamilton Dep. (Dec. 11, 2006) [Record 201

5], pp 497-498. To the extent the individual

plaintiffs argue they are the MLCC’s co

conspirators, this argument fails because the

individual plaintiffs have offered only

onclusory allegations and no eviden

upport of such an extraordina ian

In addition to Hamilton’s testimony on which thi

District Court relied for its ruling, the other individual

plaintiffs also testified that they have no evidence that

the Inkster Defendants tried to interfere with thei

family relationships or their rights of association and

free speech. Record 201, 252, SJ Pleadings; Record

201-9, Jeremy Hamilton Dep, pp 119, 121-123; Record

201-10, John Hamilton, Jr. Dep, pp 107-108, 114, 115

Accordingly, the individual plaintiffs’ 42 U.S.C. 1983

claims, insofar as they were based upon an alleged

deprivation of the right of association, were proper!

dismissed

Plaintiffs in their appellate brief also summar1

mentioned as a potential basis for § 1983 lability

“retaliation taken against the Appellants for engaginys

in 1“ amendment expression.” ROA, Appellant Brief

12/11/09, pp 34-35. Plaintiffs failed to provide any

caselaw in support of this claim, or to specify it

factual basis. In the Sixth Circuit, “issues adverted t«

in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived

and [{] it is not sufficient for a party to mention

possible argument in the most skeletal way, leaving

the court to ... put flesh on its bones.” White Oak

Prop. Dev., supra, 606 F.3d at 850, quoting United

States v Robinson, 390 F.3d 853, 886 (6 Cir. 2004)

The appellate panel tn the instant case noted that

“Appellants offerled] no argument regarding thi:

alleged § 1983 hability” and therefore, “alleged § 1983

liability for retaliation for engaging in First

Amendment expression was not appealed.” Record

340, 6" Circuit Opinion, p 16. The Court correct]

treated this issue as waived. Nevertheless, it went o1

fi

to correctly conclude that even if preserve

ywould be without mer

Netaliation for exercise of First Amendm

nights is a violation of § 1983. See Hartman

Moore, 547 U.S. 250, 256 [126 S. Ct. 1695, 1701

164 L.Ed.2d 441 (2006)]. The arguable “facts

identified by the Appellants for their conspiracy

claim... are the same and only facts that could

be identified as the basis for a § 1983 retaliation

laim. As with the conspiracy claim, thi:

plethora of arguable facts suffer from

multitude of problems, including that the

nisstate the underlying evidence, are presented

nly to prejudice this Court, are irrelevant, di

.ot describe illegal activity, do not constitut

vidence, are actions not taken under the “color

if the law or are legal conclusions | up)

factual allegation:

ecord od4U, ~ Circuit ¢ epbente

infirmities of the alleged evidence supporting the

onspiracy claims the only evidence that could

upport the claim of retaliation for exercise of First

\mendment mnght: examined at great length

tro it pp 1‘'7_1Q

ihe sixth Circuit Appeals

properly affirmed the dismissal of

Plaintiffs’ federal and state law conspiracy

laims against the Inkster Defendants

properly st ad the tandara

under reaqerail I IV ‘ follow

ii conspiracy is an agreement between ¢

more persons to injure another by unlawfu

3

tion. Express agreement among all of th

Kistence of acivilconspiracy. Kach conspirat

need not have known all of the details of thi

illegal plan or all of the participants involved

All that must be shown is that there was

single plan, that the alleged coconspirato:

shared in the general conspiratorial objective

and that an overt act was committed u

furtherance of the conspiracy that caused inji

to the complainant

Record 335, Memo/Order, |

71 F.2d 935. 948-944 (6 ¢

he District Court properly recognized that “|tjh

tandard is similar under Michigan law: ‘a conspiracy

is a combination of two or more persons, by some

concerted action, to accomplish a criminal or unlawful

purpose, or to accomplish a purpose not unlawful by

criminal or unlawful means.” Record 335

Memo/Order, p 11, citing Fenestra Inc. v. Guif Am

Land Corp, 377 Mich. 565, 593-594; 141 NW2d 36, 4

(1966). The District Court noted additionally

[Ajt_the core of an_actionable civil conspiracy

a question of damages. This facet of the law of

conspiracy is accurately summed up in the cas¢

of Roche v Blair (305 Mich. 608, 614; 9 NW2d

861 (1943)]: “The law is well established that in

1 civil action for damages resulting from

wrongful acts alleged to have been committed u

pursuance of a conspiracy, the gist or gravamen

of the action ts not the conspiracy but ts thé

wrongful acts causing the damages Th

onsptracy standing alone’ without

ommussion of acts causing damage would

fronatl , Ics ' ICTION

ut trom the conspiracy Dut irom tne a

one.” In the case of Auto Workers’ Temple Ass'n

Janson |, 227 Mich. 430, 433; 198 N.W. 99°!

1924)], the point is made more succinctly: the

foundation of the action is the dam

he conspiracy

yCTO SYP, r?

(J ¢ asa

COT OBO00 z

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BE? TT IGM A JT One

upra at 48-49, and noting 16 Am J

53. which is in accord

ONnSpIracy ivreement

amapgpe

unmntiliS Gid not rely o

y on the report of M1

Levine as support for their conspiracy claim

igainst the Inkster Defendants _in_the

District Court and their arguments based on

hat report as to Inkster are waived

petition for a writ of certiorari, Fiaintifi

and rely upon the report of their expert, Michael!

eevine, as support for their claim that the Inkster

’efendants took part in a conspiracy to put them out

fbusiness. Petition for Certiorari, pp 9-11. Plaintiffs

nade no reference to the report as support for thei

laims against Inkster in their Response to the Inkster

Defendants’ Motion for Summary Judgment, citing it

nly as to Van Buren

and Romulus. Record 268

n their brief as Appeliant the ouxth ( ft Appeal

laintiffs cited the expert report with respect to the Inkster!

lefendants for the conclusion that “the fake bomb threat was

rerpetrated by Inkster officers” for the purpose of obtaining

ee & iat ' rf Hi ul

Sixth Circuit

sumilar casi

ite a genuine issue of matenal fact,

party must do more than file an expert repo!

with the district court. It was Big Dipper’s job

not the district court’s, to present argument a

to how McLaughlin’s report created genuin:

issues of material fact as to the number of site

available to Big Dipper’s business. Big Dippe1

did not make those arguments in the district

court, and it cannot make them now. Bi:

Dipper’s arguments as to how McLaughlin’

report supports a sites-available number of les

than 39 are waived. See Sigmon Fuel Co

Tennessee Valley Auth., 754 F.2d 162, 164-1

6“ Cir. 1985)

Big Dipper Entm't v City of Warren, I’ 3d

(6™ Cir. 2011) (No. 09-2339, rel’d April 13, 2011)

this case too, Plaintiffs appended their expert report

their Response to Defendants’ Motion for Summary

Judgment. Record 268, 268-2, p 2. However, they did

not rely upon the report to establish any factual basi:

for their claims against the Inkster Defendants, citing

it only as to Van Buren and Romulus. Record 268

Response, p xix. Inthe United States Court of Appeal:

for the Sixth Circuit, Plaintiffs cited the report fo1

summary factual conclusions, but failed to place th

equally conclusory statement that “[t]he procedures followed

investigating the bomb threat evidence that it was a hoax.” ROA

Appellant Bnef, 12/11/09, pp 25, 26. Plaintiffs did not place thess

factual allegations into any legal framework to explain how the}

might form the basis for § 1983 liability or for a conspira Re

Appellant Brief 12/11/09

onclusions in a legal framework or explain how they

would show a conspiracy on the part of the Inkster

Defendants. ROA, Appellant Brief, 12/11/09, pp 25,

26. It is too late for Plaintiff to cite and rely upon the

report of Mr. Levine, which it now claims “identified

specific overt acts committed by the Inkster

Defendants in furtherance of the conspiracy.” Petition

for Certiorari, p 9. Plaintiffs are asking this Court to

act as a trial court, and to examine evidence that

Plaintiffs themselves failed to rely on in the trial court

in the first instance. As in Big Dipper, supra,

Plaintiffs’ arguments as to how Mr. Levine’s report

ipports an inference of conspiracy are waived

Plaintiffs’ own arguments in the District

Court narrowed their conspiracy claims

against the Inkster Defendants to the claim

allegedly arising out of the false bomb

threat.

‘he Inkster Defendants sougl dismissal

Plaintiffs’ conspiracy claims against them because

there is no evidence to sustain those claims. Record

201, Record 252, SJ Brief, pp 2-8. As the District

Court accurately explained, Plaintiffs asserted in

response to the Inkster Defendants’ summary

judgment motion seeking dismissal of the conspiracy

claims against said Defendants that, “the overt act in

furtherance of the conspiracy was the false bomb

threat.” Record 335, Memo/Order, p 13, citing Record

268, Response, p 4. Plaintiffs made this assertion in

the context of their unsubstantiated allegations that

the Inkster Defendants, among themselves and with

the MLCC, created a plan to harass or shut down

Henry's. Record 268, Response, pp 4-5 It was

Plaintiffs’ response that narrowed thei ns piracy

claims involving the Inkster Defendants to

allegedly arising out of the false bomb threat

There is no evidence to support Plaintifi

allegations of conspiracy against the Inkste

Defendants

Plaintiffs have not presented an iota of evidence

any conspiracy by or among the Inkster Defendants

Contrary to the impression that Plaintiffs would lik«

to give this Court, the District Court thoroughly

reviewed whether Plaintiffs had presented evidence t«

support the conspiracy alleged to have arisen out

the bomb scare at Henry’s or otherwise

First, the District Court noted Hamilton’s swo1

testimony that nobody in Inkster was involved in any

conspiracy with respect to Bogart’s, and ruled that his

testimony “forecloses any conspiracy claim involving

the Inkster Defendants to harm Bogart’s.” Record 335

Memo/Order, p 4, citing Record 201-5, Hamuilt

12/11/06 Dep, pp 399, 496

To the extent that Plaintiffs contend that tl

alleged acts can establish a conspiracy with the MLC¢

the District Court concluded that Plaintiffs did not

present any evidence of any conspiracy between thx

Inkster Defendants and the MLCC. Record, 335

Memo/Order p 10,n 3. As the District Court correctly

determined, Plaintiffs “offered only conclusory

allegations and no evidence in support of [their]

extraordinary’ claim that the Inkster Defendants ari

liable for First Amendment violations because the}

allegedly were the MLCC’s coconspirator R 3

Memo/Order p 310 }

Plaintiffs offered no evidence of any action by

Anthony Abdullah with respect to their businesses,

other than investigating the bomb threat at Henry’s

They merely speculate that Abdullah called in that

threat, but the person who did so has never been

identified. Record 201-5, Hamilton 12/11/06 dep, pp

460, 462-463; Record 201-6, Martin dep, pp 18-19. In

the absence of specific facts that are “significantly

probative,” Anderson, supra, 477 U.S. at 249,

furthermore, the conclusions of Plaintiffs’ expert, if

considered at this late time, supply no evidence of

conspiracy. As the Circuit Court correctly noted,

Plaintiffs’ speculative and conclusory expert report

“cannot be used to create an issue of fact where none

existed.” See Williams v. Ford Motor Co., 187 F.3d

533, 544 (6 Cir. 1999) (Plaintiffs cannot rely on expert

affidavit merely stating conclusory allegations to

hallenge motion for summary judgment)

Hamulton merely assumes that Martin was behind

he bomb scare. Record 201-5, Hamilton 12/11/06 dep,

p 437. There is no evidence that Martin was involved

in any agreement to take the surveillance tape from

Henry’s. Record 201-6, Martin dep, pp 26-27, 28. The

mere fact that Officer Martin acted as an undercover

police officer in 1996 in one of Hamilton’s businesses in

Southgate at the request of the Wayne County

Sheriffs Department is clearly not evidence of a

wrongful conspiracy. Record 201-6, Martin Dep, pp 8,

13-14; Record 201-5 Hamilton 12/11/06 dep, pp 301-

302, 471-473. Hamilton admitted, moreover, that he

has no evidence that Martin conspired with the

Southgate Defendants Record 201-5, Hamilton

12/11/06 Dep, pp 432, 43

Similarly, Martin’s reporting of MLCC violation

observed on the surveillance tape from Henry’s to th:

MLCC is not evidence of collusion between Martin and

the MLCC. The Michigan courts so concluded. Record

201-8, Court of Appeals Opinion, pp 4-5. Furthermore

Martin’s alleged vague threat in 1996 to “get’

Hamilton, which did not occur, is not evidence of any

conspiracy to put Hamilton’s strip clubs out of

business. There is no evidence of any further contact

between Hamilton and Martin until Marti

investigated a bomb threat at Henry’s four years late1

in 2000. Record 201-6, Martin dep, pp 16-17

Plaintiffs failed to show damages that

necessary to sustain a conspiracy claim

Even if Plaintiffs had proven the conspiracy allege

against the Inkster Defendants, which they did not do

they were required to allege and prove damages 11

order to sustain a conspiracy claim. Hooks, supra

Fenestra, supra; See also 16 Am. Jur. 2d Conspiracy

§ 53. Plaintiffs’ First Amended Complaint did not

allege that Plaintiffs suffered any non-monetary

damages as a result of the alleged conspiracies by tl

Inkster Defendants. Record 131, FAC, pp 38-39

Plaintiffs merely allege in their Petition

Certiorari, Petition for Certiorari, p 20, as they did

before the Sixth Circuit Court of Appeals, that

Hamilton experienced personal humiliation and

mental anguish. ROA, Appellant Brief, 12/11/09, p 51

However, they do not cite to any evidence in the record

of any such damages, nor, more specifically, to any

such damages attributable to the conspiracy alleged

against the Inkster Defendants. Furthermore

Defendants do not contend that Bogart’s and Henry’

(In Inkster), John Hamilton, Jr., Jeremy Hamilton or

Michael Hamilton suffered any damages as a result of

1 conspiracy involving the Inkster Defendants.

Plaintiffs attempt to avoid the deficiencies in their

arguments by contending that the District Court

ignored settled law that a co-conspirator is liable not

only for the damages caused by it, but also for

damages caused by its co-conspirators. The District

Court did not err as Plaintiffs allege because the

evidence that the Inkster Defendants presented

established, as a matter of law, that Plaintiffs have no

evidence of any conspiracy between and among the

Inkster Defendants and/or between and among the

Inkster Defendants and the other Defendants. Record

201-4, Hamilton 11/15/06 dep, pp 45, 51-52, 281;

Record 201-5, Hamilton 12/11/06 dep, pp 293, 301-302,

305, 317, 329-330, 368, 401-402, 432-433, 435, 437,

460, 462-463, 471-473, 474-475, 480, 497-498; Record

201-6, Martin Dep, pp 8, 13-14, 16, 17, 18-19, 26-27,

28; Record 201-7, Brown dep, pp 8-10, 11, 24; Record

201-8, Michigan Appellate Court opinion/order; Record

201-9, Jeremy Hamilton dep pp 116, 118-119, 121-123,

126; Record 201-10, J. Hamilton, Jr. Dep, pp 111, 1138,

114-115, 117

Plaintiffs’ final argument with respect to the lack

f damages/conspiracy issue is that the District Court

completely ignored Kenneth Landini’s report “of the

losses suffered by Appellants’ bars,” which loss

allegedly amounted to $13.6 million. However, when

Plaintiffs responded to the Inkster Defendants’

summary judgment motion, they did not contend that

they suffered any damages at the Inkster businesses,

that is, Bogart’s and Henry’s. Record 268, Response.

Thus, they abandoned any claim that they had

evidence to Support a monetary damages ciaim arisil

out of their conspiracy allegations against the Inkste:

Defendants. See United States v. Pellullo, 399 F.3

197, 222 (3d Cir. 2005) cert den. 546 U.S. 1137; 126

Ct. 1141; 163 L. Ed.2d 999 (2006)

Furthermore, Plaintiffs do not contend that

Landini’s report established any monetary damages a

Bogart’s or Henry’s in Inkster attributable to thi

conspiracy alleged against the Inkster Defendant

Morevoer, even if Plaintiffs had done so, that repo:

cannot be used to contradict Hamilton’s sworn

deposition testimony that those entities did not suffe

any monetary damages. See Barwick v Celotex Corp

736 F.2d 946, 960 (4" Cir. 1984) (party cannot rai

issue of fact by submitting affidavit contradicting |

prior testimony)

To the extent that Plaintiffs contend that

District Court did not consider the Inkster Defendant

alleged involvement in a broader conspiracy with the

other Defendants, the Inkster Defendants presente:

Plaintiffs’ sworn admissions that they had no evidenc

to support the claims alleged, including the conspiracy’

claims against the Inkster Defendants and any alleged

broader conspiracy by the Inkster Defendants with the

other Defendants, including Romulus, Van Buren

Southgate and the MLCC. Record 201-4, Hamilto:

11/15/06 dep, pp 51-52, 218; Record 201-5, Hamilto:

12/11/06 dep, pp 293, 305, 317, 329-330, 401-402, 43:

433, 435, 437, 460, 462-463, 472-473; See also Recor

201-6, Martin Dep, op 16-27. 28: Record 201-7. Brov

dep, pp 8-11, 24

The District

Plaintiffs did

nspiracy With respect DOPRAaATrTt S, L e1cne

idmitted that they did not have evidence, or failed to

present evidence, of a conspiracy between the Inkster

Defendants, the Van Buren Defendants, the Romulu

Defendants, and the MLCC. Record 333, Memo/Order

7, pp 16-17, 24, 26; Record 335, Memo/Order, p 4

iting Record 201-5, Hamilton 12/11/06 dep, pp 39

196: Record 335. Memo/Order. n 3. p 10

laintiffs’ conspiracy claims were dismissed

ecause the District Court’s analysis was too narrow 0}

rroneous, but, instead, because Plaintiffs did not and

ould not present evidence to support their claim:

Plaintiffs did not present evidence establishing th

ynspiracies alleged and they did not present evidence

damages suffered as a result of th llege

iracyv involving the Inkster Ds

the roregoing reas eS]

ikster, Paul Martin, Kenneth Brown and Anthor:

4

Abdullah, respectfully requs

Cal P

LUNEY A. KLINGI

Counsel of Record

IECREST WARDLI

30903 Northweste:

P.O. Box 3040

farmington Hill

148) 851-9500

lincler@sex r'é