JOHN CORBETT O'MEARA, District Judge.
Before the court are four motions for reconsideration filed by Plaintiffs, the Walled Lake School District Defendants, Oakland County Defendants, and Michigan Department of Human Services Defendants. All parties seek reconsideration of the court's March 30, 2011 opinion and order granting in part and denying in part Defendants' motions for summary judgment. With leave of the court, these motions have been fully briefed. Pursuant to L.R. 7.1, the court did not hear oral argument.
The standard for granting a motion for reconsideration is as follows:
LR 7.1(h)(3). A motion for reconsideration "is not properly used as a vehicle to re-hash old arguments or to advance positions that could have been argued earlier but were not."
The Oakland County Defendants seek reconsideration on two grounds: (1) that the court should have dismissed Plaintiffs' ADA and PWDCRA claims as a matter of law; and (2) the court should determine that statements made by David Gorcyca were not defamatory as a matter of law and dismiss Plaintiffs' defamation claim.
Plaintiffs' defamation claim against Gorcyca is based on statements he made in a July 2009
Defendants contend that these statements and others in the article are true or statements of opinion and, therefore, not defamatory as a matter of law. The court is not inclined to address Defendants' new arguments in this regard. Moreover, the court finds that the statements are "reasonably capable of defamatory meaning," and therefore summary judgment is not appropriate.
Each of the Plaintiffs has asserted a claim under Title II of the ADA and the PWDCRA against Oakland County. Defendants contend that Julian Wendrow, Thal Wendrow, and IW lack standing to sue under Title II of the ADA because they are not disabled and were not denied services by the county as a result of their association with a disabled individual (AW). Again, the court is generally not inclined to address arguments raised for the first time on a motion for reconsideration. The issue of standing, however, may not be waived by the parties and implicates the court's jurisdiction, such that the court has an obligation to address it sua sponte. "Standing is not an affirmative defense that must be raised at risk of forfeiture. Instead, it is a qualifying hurdle that plaintiffs must satisfy even if raised sua sponte by the court. We find no authority for the plaintiffs' argument that prudential standing requirements may be waived by the parties."
Title II of the ADA states that "no qualified individual with a disability shall, by reasons of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Plaintiffs contend that they have standing to sue under Title II of the ADA because plaintiffs who are not themselves disabled nevertheless enjoy "a right of action because of their association or dealings with disabled persons."
In
Although the other Wendrow family members may have suffered an injury as a result of Oakland County's alleged failure to accommodate AW, they have not suffered an "ADA injury" conferring standing to sue under that statute.
The only Plaintiffs asserting a PWDCRA claim are IW and AW. In relevant part, the PWDCRA provides:
M.C.L. 37.1302(a).
The DHS Defendants seek reconsideration on several grounds. The DHS Defendants argue that the court did not address Plaintiffs' official capacity claims in Counts 19, 20, 24, and 28 against Defendants Ahmed and Robydek. The court intended to dismiss those claims in its order (
The DHS Defendants also contend that the court failed to address Count 36; however, as the court noted in its order, Plaintiffs did not dispute the defendants' motion on that count. Accordingly, the court granted summary judgment on Count 36 in favor of the DHS Defendants.
The DHS Defendants contend that the court did not address whether Plaintiffs' substantive due process claim should be barred by qualified immunity. Plaintiffs' claim in this regard is based upon Robydek's production of IW for an interrogation and of AW for a gynecological examination, allegedly without authorization or parental consent. The court did not address qualified immunity in this context because Defendants did not raise the issue as to this specific conduct in their summary judgment motion. Accordingly, Defendants did not sustain their burden of demonstrating that summary judgment was appropriate. The court will not address Defendants' new arguments in this regard on a motion for reconsideration. Of course, Defendants may raise their qualified immunity argument at trial.
The DHS Defendants also argue that the court should have dismissed Plaintiffs' claims against DHS based upon the Michigan Constitution. The court noted that the parties did not adequately brief whether it is appropriate to infer a damages remedy under the Michigan Constitution and, therefore, DHS did not meet its burden of demonstrating that summary judgment in its favor was appropriate. Defendants' argument in their original brief was skeletal, essentially leaving it to the court to fashion an analysis. A party does not sustain his burden on summary judgment by asserting the legal standard and baldly proclaiming that the plaintiff's claim fails.
The DHS Defendants contend that the court should have dismissed Plaintiffs' ADA and PWDCRA claims. As stated in the court's order, however, Defendants did not provide the court with a basis to do so. Nonetheless, the court will dismiss Thal Wendrow, Julian Wendrow, and IW's ADA claim and IW's PWDCRA claim against the DHS Defendants based upon a lack of standing, consistent with the analysis above. The court otherwise declines to consider new arguments raised here regarding AW's ADA and PWDCRA claims.
Consistent with its treatment of these claims against the other Defendants, the court will also dismiss Thal Wendrow, Julian Wendrow, and IW's ADA claim and IW's PWDCRA claim against the Walled Lake School District Defendants, based upon a lack of standing. In their original motion, the Walled Lake School District Defendants did not address the merits of AW's ADA claim and provided only skeletal argument regarding her PWDCRA claim. Accordingly, the court will not consider new argument on these issues now.
The Walled Lake School District Defendants also contend that the court failed to address Count 59, AW's battery claim. As the court noted in its order, however, it "is the court's understanding Plaintiffs have agreed to the dismissal of Count 59 (battery), except as against Rebecca Robydek." Order at 9 n.2. To the extent clarification is needed, Count 59 has been dismissed, except as to Robydek.
The Walled Lake School District Defendants' remaining contentions of error are either based upon new argument or a reiteration of arguments previously considered and rejected by the court. Therefore, these Defendants have failed to demonstrate a "palpable defect" supporting reconsideration.
Plaintiffs also seek reconsideration on several issues involving the dismissal of some of their claims against the individual prosecutors (Defendants Dean and Carley) and Oakland County. Plaintiffs contend that the court erred in finding their § 1983 claims against Dean and Carley to be barred by absolute immunity. As the court noted: "Whether Dean and Carley are entitled to absolute immunity here turns on whether the interviews of IW and AW should be characterized as the evaluation and marshaling of evidence, and the preparation of witness testimony, or whether Dean and Carley instead engaged in investigative or `police work.' The court finds that Dean and Carley's interviews of IW and AW fit squarely within their roles as advocates." Order at 10.
Plaintiffs suggests that a question of fact exists whether the prosecutors' questioning of IW was done in their role as advocates, given that they were not imminently preparing for trial and did not plan on calling IW as a witness. The court finds, however, that Plaintiffs urge an unduly cramped view of the advocate's role. It would be a very poor prosecutor indeed who did not explore if a potential witness had more to say than what was included in a statement to police. Simply because additional information may be elicited at a witness interview by a prosecutor does not transform the interview into "police work" akin to a "detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested," for example.
Plaintiffs also contend that the court should not have dismissed their Fourth Amendment claim against Oakland County, making the point that even if the individual prosecutors are immune, Oakland County could nonetheless be liable on a failure to train theory. Plaintiffs have not, however, demonstrated a "palpable defect" in the court's determination that they have not met the "deliberate indifference" standard for imposing municipal liability under § 1983.
Plaintiffs argue that Oakland County has failed to train its prosecutors to handle recurring situations, such as interviewing child witnesses.
The reasoning in
Plaintiffs also seek reconsideration of the court's dismissal of their state tort claims against the individual prosecutors. In this regard, Plaintiffs present arguments already ruled upon by the court, expressly or by reasonable implication. Plaintiffs have not demonstrated a palpable defect warranting reconsideration of these claims.
IT IS HEREBY ORDERED that Plaintiffs' motion for reconsideration [docket no. 289] is DENIED.
IT IS FURTHER ORDERED that the DHS Defendants' motion for reconsideration [docket no. 290], the Oakland County Defendants' motion for reconsideration [docket no. 291], and the Walled Lake Schools Defendants' motion for reconsideration [docket no. 292] are GRANTED IN PART and DENIED IN PART, consistent with this opinion and order.