Dubuc v. Green Oak TownshipDubuc v. Green Oak Township
Gail P. Massad (argued and briefed), Owen J. Cummings, Cummings, McClorey, Davis & Acho, Livonia, MI, Raymond Clevenger, Ann Arbor, MI, for Defendants-Appellees.
WISEMAN, Senior District Judge.
This case involves a dispute over land use between landowner Dennis Dubuc (“Appellant“) and Green Oak Township (the “Township“), where the land is located. This dispute has taken numerous forms, lasted many years, and involved multiple judicial decisions by various courts. In its present manifestation, the parties opposing Appellant are Green Oak Township, Green Oak Township Zoning Board of Appeals, Dale Brewer, Raymond Clevenger, and Estate of Michael Vallie (collectively, “Appellees“). The first of these two companion cases, No. 00-2473, was filed by Appellant in 1991 and claims that the Township‘s denial of his аpplication for a lot split was in retaliation for his exercise of his First Amendment rights, in violation of
I.
Appellant owns approximately four acres of land, divided into two parcels, in the Township. In October 1985, Appellant began construction on the northern parcel of a second storage building, but the Township subsequently issued a work-stop order and denied a building permit because the structure violated a one hundred foot setback requirement for industrial buildings adjaсent to residentially zoned areas. Appellant then instituted an action in Livingston County Circuit Court, No. 85-8102 (hereinafter, ”Dubuc I“), seeking a variance from the setback requirement, and that action produced a consent judgment on May 21, 1986. This consent judgment resulted in the issuance of a building permit contingent upon Appellant‘s compliance with relevant building codes, local zoning ordinances, and a revised site plan.
Appellant completed construction of this second building as well as a third building, and applied for certificates of use and occupancy for both. In February 1987, the Township denied these certificates after inspection and ordered Appellant and his tenants to vacate the third building because it did not comply with fire and safety requirements and was not constructed in conformity with the approved site plan. The Township denied certificates for the second building because it was not constructed in accordance with the consent judgment and violated various building and construction codes. Appellant refused to vacate either building and filed a second suit in Livingston County Circuit Court, No. 88-9402 (hereinafter, ”Dubuc II“), alleging violations of
While Dubuc II was pending, Appellant sought a building permit from the Township to construct a building on the southern parcel of his land, and the Township denied the permit because the approved site plan had expired and the building dimensions and work site did not conform with that site plan. Appellant responded with a mandamus action in Livingston County Circuit Court, No. 89-10022 (hereinafter, ”Dubuc III“), challenging the denial. The defendants filed a counterclaim seeking enforcement of the 1986 consent judgment in Dubuc I, a contempt finding against Appellant for failing to bring the two northern buildings up to code, and damages. The trial court denied Appellant‘s claim and granted summary judgment for the defendants on their counterclaim, concluding that Appellant had no legal right to the issuance of a building permit and the Township had no obligation to issue one. After his motion for reconsideration failed, Appellant appealed and Dubuc III was consolidated with Dubuc II. The court of appeals affirmed both judgments in a per curiam order on June 13, 1995.
Appellant filed another suit, No. 92-012517 (hereinafter, ”Dubuc IV“), in Livingston County Circuit Court, arising from work Appellant completed on the roof of the second northern building in 1991. The Township had requested that Appellant seek a building permit and submit engineered drawings for the work in April 1991, but Appellant refused and argued the work was only repair work. In November 1992, Appellant evicted one tenant of the second northern building and attempted to relocate four tenants from another building into that space. The Township refused to issue certificates of occupancy for these tenants, citing Appellant‘s failure to conform to the city building codes. On December 2, 1992, the Township wrote to Appellant and described what would be required to obtain the certificates. Appellant responded on December 7, 1992, stating that he believed he did not need to follow those procedures, and he filed Dubuc IV on the next day, seeking a writ of mandamus compelling the issuance of certificates of use and occupancy.
In January 1993, the Township moved for and was granted an ex parte temporary restraining order forbidding Appellant or those acting at his direction from doing any construction, alteration, or building work on the second northern building. After several hearings, this temporary restraining order was converted to a preliminary injunction on August 31, 1993. Appellant‘s motion to disqualify the trial judge was denied and that denial was affirmed on appeal. Thе Dubuc IV court denied the request for mandamus in November 1995, finding it frivolous, and found Appellant in contempt of the 1986 consent judgment in Dubuc I, the January 1993 temporary restraining order, and the August 1993 preliminary injunction. The court of appeals affirmed. See Dubuc v. Green Oak Township, et al., 1999 WL 33455145, 1999 Mich.App. LEXIS 2105 (Mich.Ct.App. Jan. 5, 1999) (unpublished opinion). The Michigan Supreme Court denied Appellant‘s motion for leave to appeal and his motion for reconsideration.1 Dubuc v. Green Oak Township, 461 Mich. 916, 609 N.W.2d 829, 829 (2000). Additionally, the Michigan Supreme Court granted the defendant‘s motion for sanctions and remanded to the trial court for determination of the defendant‘s actual expenses. Id.
In 1990, Appellant sought approval to split his lot so he could sell it. Appellant filed the first of the two companion suits at bar in May 1991, alleging that the Township‘s denial of his application for a lot split was a taking without just compensation in violation of the Fifth Amendment. Defendants originally were Green Oak Township, Green Oak Township Zoning Board, the Township‘s supervisor Dale Brewer, and the Township‘s attorney Raymond Clevenger. Appellant claimed that the Township had retaliated against him because of his previous state law suits and his complaint to the Michigan Construction Code Commission, which resulted in corrective action taken against the Township and its zoning and building departments. According to Appellant, Appellees’ retaliation took the form of consistent denials or delays after he requested variances or permits.
In December 1992, Judge Newblatt granted in part and denied in part Appellees’ motion for summary judgment, finding the claim was not ripe for federal adjudication because Appellant had not exhausted all state judicial remedies. See Dubuc v. Green Oak Township, et al., 810 F.Supp. 867, 871 (E.D.Mich.1992). Judge Newblatt also found that Appellant had failed to state a claim for substantive due process violations, dismissing those claims. Id. at 874. Appellant‘s remaining claims were that the Township and its officials had violated his First Amendment rights and
Appellant filed an amended complaint in February 1993, alleging additional interference with the use of his property by the township building administrator, Michael Vallie (“Vallie“). After Vallie passed away, his estate was substituted as defendant. In late 1993, Appellant filed a series of motions seeking injunctive relief. On November 9, 1994, Judge Newblatt granted an injunction in part, ordering the Township to issue certificates of occupancy for Appellant‘s buildings, subject to Appellant‘s compliance with seven conditions. In this order, the judge credited the state administrator‘s opinions over that of Vallie because of “Vallie‘s obvious animus and uncooperative attitude toward plaintiff.” (Jt.App. at 1352, 1354.) In January 1996, Judge Newblatt denied all other pending motions for injunctive relief, dissolved the prior injunction he had issued, and forbade Appellant from filing any further requests for injunctive relief as an improper form of collateral attack on the orders of Livingston County Circuit Judge Burress.
The parties filed cross-motions for summary judgment in March 1996. Judge Newblatt denied Appellant‘s motion for summary judgment, granted Appellees’ motion for summary judgment as to Dale Brewer, and denied Appellees’ remaining motions for summary judgment. Dubuc v. Green Oak Township, et al., 958 F.Supp. 1231, 1240, 1244 (E.D.Mich.1997). The court dismissed Appellant‘s claim based on the Equal Protection Clause, claiming he was a class of one against whom the Township selectively enforced its building codes in retaliation for the exercise of his First Amendment right to sue. Id. at 1238 (citing Futernick v. Sumpter Township, 78 F.3d 1051, 1056-58 (6th Cir.1996)). Judge Newblatt also denied Appellees’ motion on the issue of claim and issue preclusion. Id. at 1243. The court stated that its January 1996 order, which dismissed Appellant‘s request for injunctive relief as an attempt to collaterally attack various orders of the Livingston County Circuit Court, was based on the fact that the issues of whether Appellant was entitled to a certificate of occupancy, whether defendants acted within their authority, and whether the state court injunctions and sanctions were appropriate were state matters. Id. Whether Appellees acted in retaliation of Appellant‘s exercise of his constitutionally protected rights, on the other hand, was the subject of this suit and “was not addressed in the state court litigation.” Id. Finally, the court specifically stated that Appellant‘s remaining claims arose under the First and Fourteenth Amendments for retaliation against him for exercising his First Amendment rights. Id. at 1244.
The case was transferred to Judge Borman on October 7, 1997. In September 1998, the district court below, upon motion by Appellees, stayed the proceedings pending thе outcome of the state court litigation. Once the stay was lifted, the district court considered: (1) Appellant‘s motion for interim attorney‘s fees, (2) Appellant‘s motion for leave to file a second amended complaint, (3) Appellees’ motion asserting legal defenses, and (4) Appellant‘s motion to reinstate the Equal Protection claim. See Dubuc v. Green Oak Township, et al., 117 F.Supp.2d 610 (E.D.Mich.2000). On August 31, 2000, Judge Borman denied all of Appellant‘s motions, granted Appellees’ motion asserting legal defenses in part, and dismissed the complaint with prejudice as barred by claim preclusion by virtue of the state court‘s dismissal with prejudice in Dubuc II. Id. at 625-26. Appellant filed a timely Notice of Appeal.2
In September 2000, Appellees filed a motion for attorney‘s fees pursuant to
III.
This Court reviews a grant of summary judgment or dismissal de novo. Wilkins v. Jakeway, 183 F.3d 528, 531-32 (6th Cir.1999). This standard of review applies to the district court‘s dismissal based on claim preclusion. Id.
The denial of a motion to amend the pleadings is reviewed for an abuse of discretion. Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 306 (6th Cir.2000). This standard applies to the denial of Appellant‘s motion to file a second amended cоmplaint, which was denied because it was unreasonably delayed and would prejudice Appellees. If the denial of the motion to amend is based on it being futile, or solely on the legal conclusion that the amended pleading would not withstand a motion to dismiss, then it is reviewed de novo. Inge v. Rock Financial Corp., 281 F.3d 613, 625 (6th Cir.2002); Parry, 236 F.3d at 306; Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir.1986). Appellant‘s motion to reinstate the Equal Protection Claim based on subsequent Supreme Court authority was denied because of claim preclusion. The district court denied this motion because, if allowed, the court believed the claim would only be dismissed based on claim preclusion. Thus, the district court‘s denial is reviewed de novo. Martin, 801 F.2d at 248.
A trial court‘s decision regarding an award of attorney‘s fees is reviewed for an abuse of discretion. Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir.2001); Cramblit v. Fikse, 33 F.3d 633, 634 (6th Cir.1994). This standard applies to both the denial of Appellant‘s motion for interim attorney‘s fees and the granting of Appellees’ motion for attorney‘s fees pursuant to
The purposes of claim preclusion are to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, prevent inconsistent decisions, encourage reliance on adjudicаtion, and promote comity between the state and federal courts. Allen v. McCurry, 449 U.S. 90, 94, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). A federal court must give a state court judgment the same preclusive effect it would have in the courts of the rendering state.
Before addressing the substance of the claim preclusion issue, we must address the application of the Michigan Court Rules (“MCR“), specifically Rule 2.203(A). There was an amendment to MCR 2.203(A) in 1985, and then another in 1999. The current version of the Rule states: “In a pleading that states a claim against an opposing party, the pleader must join every claim that the pleader has against that opposing party at the time of serving the pleading, if it arises out of the transaction or occurrence that is the subject matter of the action and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.”
Appellant argues that, under pre-1999 Michigan law, Appellees waived any claim preclusion argument by failing to object to non-joinder of claims in Dubuc II. Given the 1985 amendment, this argument is only valid if the language exempting “collateral estoppel or the prohibition against relitigation of a claim under a different theory” does not include claim preclusion, the basis of the district court‘s ruling below.3 There is no evidence that Appellant raised this procedural argument at the district court level before the case was dismissed for claim preclusion, even though Appellees had asserted claim preclusion in their affirmative defenses and on a motion for summary judgment.
Issue preclusion is generally referred to as collateral estoppel, whereas claim preclusion is encompassed by res judicata.4 See Black‘s Law Dictionary at 256, 1312 (7th ed.1999). The plain language of
Another applicable case is Jones v. State Farm Mutual Automobile Ins. Co., in which the court discussed MCR 2.203 in a footnote. 202 Mich.App. 393, 509 N.W.2d 829, 836 n. 5 (1994). The court ultimately applied Kentucky‘s court rules, but a Michigan appellate court‘s reading of Michigan court rules is nevertheless enlightening. The footnote states: “In addition, even if we were to apply Michigan‘s rule to this matter, plaintiff‘s argument would fail. MCR 2.203(A)(2) provides that the waiver rule ‘does not affect collateral estoppel or the prohibition against relitigation of a claim under a different theory.’ Because we have already held that plaintiff‘s Michigan action is ‘a claim under a different theory,’ MCR 2.203(A)(2) would not prevent defendant from raising the defense that plaintiff has split his cause of action.” Id. at 836 n. 5. The holding of the Jones court was that the claim was barred by res judicata, not by collateral estoppel. Id. at 835. Thus, a Michigan court discussing the same version of MCR 2.203 applicable to this case found that the waiver provision did not apply to either collateral estoppel or res judicata.
This view is reinforced by the Michigan Court of Appeals in Kelley v. Heppler, which also involved application of Rule 2.203 before the 1999 amendment. 1997 WL 33347916 (Mich.Ct.App. May 30, 1997) (unpublished opinion). The court specifically rejected the plaintiff‘s argument that the defendant was barred from asserting res judicata (not collateral estoppel) because he had failed to object to non-joinder. Id. at *2. Finally, the court called plaintiff‘s reliance on Rogers “misplaced because that case applied an outdated rule which did not contain the above-quoted language.” Id.
Applying the pre-1985 version of the Rule, the court in Purification Systems, Inc. v. Mastan Company also offered some helpful analysis. 40 Mich.App. 308, 198 N.W.2d 807 (Mich.Ct.App.1972). In determining whether res judicata (again, not collateral estoppel) applied, thе court noted that the plaintiff was to blame for not joining the claim in the previous suit and the defendant was to blame for not objecting to non-joinder in the previous suit. Id. at 810. Nevertheless, the court held that res judicata would bar the second suit, despite the failure to object to non-joinder, because “the only alternative for the defendant is in effect to plead plaintiff‘s case for it.” Id. Thus, Michigan courts have even been willing to overlook a defendant‘s failure to object to non-joinder when it is apparent that res judicata should apply. See Crawford v. Chabot, 202 F.R.D. 223, 227 (W.D.Mich.1998) (finding plaintiff‘s claim barred by res judicata without addressing whether the defendant objected to non-joinder or not).
V.
The district court dismissed the complaint, finding that the state court‘s decision in Dubuc II barred this action under claim preclusion. Dubuc v. Green Oak Township, et al., 117 F.Supp.2d 610, 625 (E.D.Mich.2000). Prior to this dismissal, the one surviving claim of Appellant was that Appellees violated
In Michigan, claim preclusion has the following elements: (1) the first action must have resulted in a decision on the merits; (2) the issues must have been resolved in the first action, either because they were actually litigated or because they might have been raised in the first action through reasonable diligence of the parties; and (3) both actions must be between the same parties, or their privies. Sloan v. City of Madison Heights, 425 Mich. 288, 389 N.W.2d 418, 422 (1986). See Katt v. Dykhouse, 983 F.2d 690, 693 (6th Cir.1992). This Court agrees with the district court‘s application of the first element of the Michigan preclusion test: a dismissal with prejudice for failure to comply with a court order amounts to an adjudication on the merits. Wilson v. Knight-Ridder Newspapers, Inc., 190 Mich.App. 277, 475 N.W.2d 388, 389 (1991);
Next, applying the second element for preclusion in Michigan, the district court found that the claims in this complaint could and should have been raised in Dubuc II. See Perry v. Croucher, 165 F.3d 28, 1998 WL 661151 at *4 (6th Cir. Aug.31, 1998) (unpublished opinion) (holding that the issue with claim preclusion “is not whether the court heard this claim, the issue is whether the court could have heard the claim“). The essence of Appellant‘s claim, according to the district court, is that from 1985 to 1997 the Township and its officials continually retaliated against him for speaking to the рress and petitioning the courts for redress. This retaliation consistently related to the development of his property, whether it be denial of a certificate for occupancy or refusal to allow a lot split. The test in Michigan is whether the same facts or evidence are essential to the maintenance of the two actions, not a comparison of the grounds for relief. Jones v. State Farm Mutual Automobile Insur. Co., 202 Mich. App. 393, 509 N.W.2d 829, 834 (Mich.Ct. App.1994). That the same facts are present in the state and federal cases here is evidenced by the fact that Appellant has continually updated his complaints in both the state and federal courts to allege new instances of this action. Thus, the major issue in the case at bar is at what point later-occurring allegations give rise to new claims that could not have been raised in the earlier proceeding.
Appellant agrees that there is a recurring issue of alleged wrongdoing permeating both of these suits, but argues that this federal lawsuit is based on later misconduct and a different set of facts than Dubuc II. This is not a case where there were merely later consequences, Appellant continues, but one in which there were new facts and events. As authority, Appellant cites Ditmore v. Michalik, which involved a land dispute in which the court rejected the defendant‘s argument that a 1963 case involved the same legal issue of whether neighbors had any legal rights to a parcel of land, because the earlier court did not clearly adjudicate that issue. 244 Mich. App. 569, 625 N.W.2d 462, 466-67 (2001). The court held that it would not bar the second action because it was unclear why the earlier court had held as it did. Id. In this case, it is quite clear why the Dubuc II court held as it did \xe2\x80\x94 failure to pay sanctions for absences from court proceedings. In Plaza Investment Co. v. Abel, the court held that a tenant, who had previously received damages for breach of a covenant to repair, was not barred from bringing a second suit seeking damages suffered from a continuing breach since the last recovery. 8 Mich.App. 19, 153 N.W.2d 379, 383 (1967). Here, Appellant is not seeking damages that have occurred since another suit in which he received damages, because he has not received damages in a previous
Appellant also cites Putnam v. City of Cookeville, which involved First Amendment claims by the publisher of a tabloid and web page against a city refusing to allow him access to certain records. 221 F.3d 834 (6th Cir.2000). The defendants argued that an earlier suit between the same parties, in which defendants’ motion for summary judgment was granted, acted to preclude the subsequent suit. The court rejected this claim because the factual circumstances and events differed, and because summary judgment in the earlier suit was actually not granted until after it had been granted in the second suit. Id. at 839, 840 n. 3. In contrast, Dubuc II had been finally adjudicated before Appellant‘s complaint in this case was dismissed. Other cases cited by Appellant are similarly distinguishable. See Said v. Rouge Steel Co., 209 Mich.App. 150, 530 N.W.2d 765, 770 (1995) (remanding the case because it was unclear whether the claim should be barred by res judicata).
Appellant cites several cases employing a continuing violation theory to allow in evidence that would otherwise be time-barred. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 557, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) (involving a claim of continuing violаtion of Title VII in order to avoid the statute of limitations); Hull v. Cuyahoga Valley Joint Vocational School District, 926 F.2d 505, 510-11 (6th Cir. 1991) (holding that proof of a continuing violation of civil rights can overcome a motion for summary judgment because some of the actions alleged would be time-barred); Black Law Enforcement Officers Assoc. v. City of Akron, 824 F.2d 475, 483 (6th Cir.1987) (holding that the statute of limitations did not bar a plaintiff from offering proof of a pattern and practice of discrimination). Appellant asserts that this continuing violation theory should be extended to allow a claim to survive claim preclusion. The only case that lends any credence to this theory is Herendeen v. Michigan State Police, 39 F.Supp.2d 899 (W.D.Mich.1999). Herendeen, however, merely stands for the proposition that evidence that might have been used in a prior lawsuit is not barred by claim preclusion from being used in a subsequent suit raising a new claim. Id. at 907. In this case, the district court found that Appellant‘s entire claim, not just some of the evidence, was barred by claim preclusion.
This analysis, of course, should not be read to preclude the victim of ongoing retaliation from filing multiple suits. If retaliation persists after the victim prevails in an initial suit, or even if the victim does not prevail, then res judicata would not affect access to the courts. When the alleged additional manifestation of retaliatory animus occurs before adjudication on the merits of the initial suit, however, the victim is obliged to amend his or her initial complaint to add these new allegations. See Cox v. Tennessee Valley Authority, 16 F.3d 1218, 1994 WL 43433 at *4 (6th Cir. Feb.10, 1994) (unpublished opinion) (holding that, when a plaintiff becomes aware of additional facts or theories in the process of discovery, she should move to amend her complaint or face claim preclusion in subsequent suits). Cf. Sherman v. Ludington, 968 F.2d 1216, 1992 WL 158878 at *8 (6th Cir. July 7, 1992) (unpublished opinion) (holding that federal res judicata applied to a claim, which the plaintiff had unsuccessfully attempted to add by amending his complaint in the previous suit, “because plaintiff possessed the facts and evidence and had the opportunity to litigate the claims at an earlier date“); Nathan v. Rowan, 651 F.2d 1223, 1228 n. 8 (6th Cir. 1981) (citing Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877)) (“Nevertheless, the doctrine of res judicata necessarily applies to all matters, including new or different legal theories against the same parties, that ‘might have been offered in the prior action.[‘] “); Dart v. Dart, 460 Mich. 573, 597 N.W.2d 82, 88 (1999) (holding that res judicata bars “not only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not“). The doctrine of res judicata would become meaningless if a party could continue to relitigate the same issue \xe2\x80\x94 whether the defendant was acting in retaliation of the plaintiff‘s exercise of constitutional rights \xe2\x80\x94 by merely positing a few additional facts that occurred after the initial suit. See Crawford v. Chabot, 202 F.R.D. 223, 227 n. 1 (W.D.Mich.1998). When, as here, it is obvious that the alleged ongoing retaliation is actually the defendant continuing on the same course of conduct, which has previously been found by a court to be proper, a subsequent court must conclude that the plaintiff is simply trying to relitigate the same claim.
Finally, applying the last element of the Michigan preclusion test, the district court held that the same parties were involved in both suits. The plaintiff in both suits was Dennis Dubuc. Thus, the party against whom claim preclusion is being asserted was present in both suits. The Defendants in Dubuc II were the Township, Ron Niece (“Niece“), Gordon Appleton (“Appleton“), and Dale Brewer (“Brewer“). The first and fourth are defendants-appellees in this case and the secоnd and third are not involved in this case. The two defendants-appellees in this case not present in Dubuc II are Raymond Clevenger (“Clevenger“) and the Estate of Michael Vallie (“Vallie“). Appellant argues that, even if the municipality has claim preclusion, individuals sued in their individual capacities do not. See Perry v. Croucher, 165 F.3d 28, 1998 WL 661151 at * 7 (6th Cir. Aug.31, 1998) (unpublished opinion).
Vallie is the successor in office to Appleton, both of whom were sued for their alleged malfeasance in office by mistreating Appellant. This created sufficient privity between Vallie and Appleton. See Crawford v. Chabot, 202 F.R.D. 223, 227-28 (W.D.Mich.1998). In Dubuc IV, Appellant sued Vallie in his individual and official capacity, and Clevenger was later named as a defendant as well. Dubuc v. Green Oak Township, et al., 1999 WL 33455145, 1999 Mich.App. LEXIS 2105 (Mich.Ct.App. Jan. 5, 1999) (unpublished opinion); (Jt.App. at 1639, 2703.) Thus, strict claim preclusion does not apply to Vallie or Clevenger in their individual capacity only. However, Appellant has not presented sufficient evidence that actions in their non-official capacity by either party would raise a colorable
VI.
Judge Newblatt dismissed Appellant‘s claim that his right to equal protection of the laws was violated because he was singled out for strict application of the zoning and building codes \xe2\x80\x94 that he was a “class of one.” Appellant relies on Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), to argue that his Equal Protection theory has now been endorsed by the Supreme Court. The district court found that Appellant “might well be entitled to reinstatement of the claim,” but that claim preclusion applied equally to that claim. Dubuc v. Green Oak Township, et al., 117 F.Supp.2d 610, 626 (E.D.Mich.2000). In fact, claim preclusion applies with even greater force, because an equal protection claim was actually pled in Dubuc II, at least as a violation of Michigan‘s Constitution. See Dubuc v. Green Oak Township, et al., No. 154510, at *2 (Mich.Ct.App. June 13, 1995) (unpublished opinion); (Jt.App. at 2244.)
The Supreme Court did accept the theory espoused by Appellant in Village of Willowbrook: “Our cases have recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). The viability of this issue rises and falls with resolution of the first issue. Since this Court has determined that claim preclusion applies to the First Amendment claim, we find that claim preclusion also applies to the Equal Protection Claim. Thus, the district court did not err in denying the motion for reinstatement as futile.
Appellant seeks leave to file a second amended complaint to add events occurring between the time of the first amended complaint and August 19, 1997 (when the permanent certificates of occupancy were issued), and to add Township officials as defendants. A party must have leave or consent of the court in order to amend his complaint after a responsive pleading has been filed.
The district court found that the delay was substantial, because Appellant admits that the last date of any dispute with the Township was August 19, 1997, more than a year before this action was stayed by the district court. Appellant does not argue that the information only recently came to his аttention, nor offer any other excuse for the delay. The district court also found that allowing the amended complaint would prejudice Appellees, because the case was ready for trial before Judge Newblatt retired, and had since only been delayed to await the outcome of the state court proceedings. Adding new claims and defendants would significantly delay resolution of the dispute. Phelps, 30 F.3d at 662-63. Such an amendment would also require the defendants to expend significant additional resources, because the new defendants would have to familiarize themselves with the long record in this case, and all defendants would have to conduct discovery related to the after-occurring events alleged in the amendment. Thus, the district court did not abuse its discretion in denying Appellant a second amendment to his complaint.
VIII.
Appellant seeks interim attorney‘s fees based on Judge Newblatt‘s preliminary injunction issued in November 1994.
The district court found that Judge Newblatt‘s injunctive relief was procedural and not an unambiguous indication of probable success on the merits. Dubuc v. Green Oak Township, et al., 117 F.Supp.2d 610, 619 (E.D.Mich.2000). The injunction, which ordered the Township to issue a temporary certificate of occupancy to Appellant as long as he complied with seven conditions, could be seen in two lights. Id. at 618. Judge Newblatt based the injunction on crediting state officials’ testimony over the Township‘s official because he believed the Township‘s official was tainted by animus toward Appellant. This could show that Appellant had a likelihood of success on the merits of his retaliation claim. Id. On the other hand, given that Appellant had to comply with several conditions in order to get the certificate, the Township was getting what it wanted from Appellant all along. Id. The district court concluded that there was not “unambiguous” language indicating probable success on the merits for Appellant. Id.
Appellant argues that the preliminary injunction, although not affording final relief, gave him substantial relief because he could occupy the building until the injunction was vacated. Once the injunction was vacated, Appellant argues that he obtained final relief using Michigan procedures.8 This Court agrees with the district court that the injunction was not a clear victory for Appellant. The injunction was specifically called temporary, and was only issued subject to Appellant complying with seven conditions. (Jt.App. at 1352.) This finding is supported by Judge Newblatt‘s order dissolving the injunction, in which he states that the injunction was only meant to be temporary and preserve the status quo while Appellant came into compliance. Id. at 1358. Appellant‘s goal in this suit is not to obtain a temporary certificate of occupancy, which the injunction provided, but to seek damages for alleged violations of Appellant‘s constitutional rights. The district court did not abuse its discretion in denying Appellant interim attorney‘s fees.
IX.
On February 26, 2001, the district court granted Appellees’ motion for attorney‘s fees. In an order dated August 28, 2001, the district court adopted the report and recommendation of the magistrate judge and awarded Appellees $136,728.67 in attorney‘s fees ($63,988.00 to lead counsel, $72,740.67 to Appellee Clevenger). The fee award was based on
Such fee awards to defendants are limited to instances of egregious misconduct by a plaintiff, based “upon a finding that the plaintiff‘s action was frivolous, unreasonable, or without foundation ... And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). See Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (applying this standard to a case involving
The arguments laid out in this opinion demonstrate that the claim preclusion issue was not clear cut. At the very least, the fact that the district court ultimately dismissed the claim based on claim preclusion does not demonstrate that Appellant knew when he filed the suit in 1995 that it was frivolous. The first federal district judge, Judge Newblatt, in fact rejected the claim preclusion contention in 1997, had previously issued a preliminary injunction in favor of Appellant, and had set the case for trial. (Jt.App. at 1352, 1915.) It is clear that Appellant has evoked disfavorable comments in the past from numerous judges who have concluded that he files multiple frivolous suits just to harass. However true that was in the past, this suit was not obviously frivolous, but in fact survived for many years under two different judges. Attorney‘s fees cannot be awarded in an effort to teach Appellant a lesson when this is not one of the instances in which he blatantly abused the judicial system. The district court‘s award of attorney‘s fees to Appellees is reversed.
X.
Based on the foregoing, we AFFIRM the district court‘s decision in the first companion case (1) dismissing for claim preclusion, (2) denying Appellant‘s motion for interim attorney‘s fees, (3) denying Appellant‘s motion to file a second amended complaint, and (4) denying Appellant‘s motion to reinstate, but REVERSE the district court‘s award of attorney‘s fees to Appellees in the second companion case.
I agree with the majority that the district court did not abuse its discretion in denying Dubuc‘s motion for leave to file a second amended complaint, that the district court did not abuse its discretion in denying Dubuc attorney fees, and that the district court erred in awarding attorney fees to the defendants. However, I disagree with the majority‘s conclusion that the claims that Dubuc alleged in the Dubuc II suit bar all of the claims that Dubuc asserts here. Dubuc II was dismissed on March 12, 1992. In the present suit, Dubuc alleges, inter alia, constitutional violations that occurred in October, November, and December of 1992. The majority holds that under Michigan law, claim preclusion can bar a plaintiff from asserting claims that arose after the previous suit had been dismissed. Finding no basis for this holding in Michigan law or in general principles of claim preclusion, I respectfully dissent.
The majority states that under Michigan law, a claim is barred if it “might have been raised in the first action through reasonable diligence of the parties,” and that “[t]he test in Michigan is whether the same facts or evidence are essential to the maintenance of the two actions.” Majority Op., supra at 747. The majority thus appears to conclude both that Dubuc could have raised, in a lawsuit dismissed in March of 1992, events that occurred in December of 1992, and that the facts essential to Dubuc II, which involved alleged retaliatory acts between November of 1985 and April of 1989, are essеntial to a lawsuit challenging acts that occurred between 1990 and 1992.
The majority concludes that all of Dubuc‘s claims should have been litigated in Dubuc II because the alleged retaliatory acts arose from the same retaliatory animus. That is, according to the majority, “[h]ow the Appellees’ retaliatory animus manifested itself is not the crucial element of Appellant‘s claim; rather, it is the retaliatory animus itself.” Majority Op., supra at 748. This argument has two flaws, however. First, it overlooks the fact that “[h]ow the Appellees’ retaliatory animus manifested itself” is a necessary element of Dubuc‘s allegations. See, e.g., Cockrel v. Shelby County School District, 270 F.3d 1036, 1048 (6th Cir.2001) (identifying both retaliatory animus and adverse actions as necessary elements of a First Amendment retaliation claim). Second, a bar prohibiting subsequent suits arising from the same retaliatory animus, no matter what retaliatory act might follow, offers no limiting principle. It is unclear, under the majority‘s theory, how a victim of ongoing retaliation could ever file a suit alleging subsequent acts of retaliation \xe2\x80\x94 even if the victim had prevailed on the first suit.
So far as I am aware, Michigan courts have never ruled that clаim preclusion bars plaintiffs from alleging harm from events that occurred after the disposition of the original suit. To the contrary, Michigan courts recognize that continuous harms that justify subsequent lawsuits can arise from a single initial incident. See, e.g., Said v. Rouge Steel Co., 209 Mich.App. 150, 530 N.W.2d 765, 770 (Mich.Ct.App. 1995) (recognizing, in maintenance and cure context, that when defendant violates a “continuing” duty, “the doctrines of res judicata and collateral estoppel do not bar serial suits“); Burroughs v. Lake Arrowhead Prop. Owners Ass‘n, No. 221511, 2001 WL 709277 (Mich.Ct.App. Mar.16, 2001) (unpublished) (holding claim preclusion inapplicable when plaintiff alleged continuous breach of duty, because, first, “the facts were not identical because subsequent occurrences of defendant‘s conduct created new claims and a new cause of action,” and second, because “as a matter of practicality, the issue of damages for future breach of the defendant‘s duty to maintain could not have been litigated until such breach occurred“) (emphasis added); see also Restatement (Second) of Judgments § 24, at 204 (1982) (stating that prior antitrust suit would not bar subsequent suit that relied on acts that occurred after the first suit was dismissed, and noting that the second suit could still “rely also on acts preceding the [first] judgment insofar as these lend significance to thе later acts“).
The rule requiring acts arising from the same retaliatory animus to be litigated together is limited by Michigan‘s general rules of claim preclusion, which bar only those claims that involve the same facts or evidence or those claims that might have been raised in the first action. Under the preferred rule, plaintiffs should join all claims arising out of a transaction that have accrued “up to the time when action is brought.” Restatement (Second) of Judgments § 24, at 201. I would hold that claim preclusion bars Dubuc from alleging retaliatory actions that occurred before June 5, 1990, when Dubuc last moved to amend his complaint in Dubuc II.
The majority‘s holding is contrary to Michigan claim preclusion law and will eliminate remedies available to undisputed victims of ongoing retaliation.