Case 5:19-cv-11062-JEL-EAS ECF No. 53 filed 09/08/20 PageID.569 Page 1 of 41
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`
`
`
`
`Case No. 19-cv-11062
`
`Judith E. Levy
`United States District Judge
`
`Mag. Judge Elizabeth A.
`Stafford
`
`
`Exclusive Brands LLC,
`
`
`Plaintiff,
`
`
`v.
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`City of Garden City, Michigan, et
`al.,
`
`
`Defendants.
`
`________________________________/
`
`
`
`OPINION AND ORDER GRANTING DEFENDANTS CITY OF
`GARDEN CITY, GARDEN CITY BUILDING DEPARTMENT,
`DALE DOUGHERTY, AND GARDEN CITY CITY COUNCIL’S
`MOTION TO DISMISS [23]; GRANTING DEFENDANT PATRICK
`J. SLOAN’S MOTION TO DIMISS [38]; AND GRANTING
`DEFENDANT JEFF VAN DAM’S MOTION TO DISMISS [42]
`
`
`I.
`
`Introduction
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`Plaintiff Exclusive Brands LLC brought this action for injunctive,
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`declaratory, compensatory, and punitive relief pursuant to 42 U.S.C. §
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`1983 for alleged violations of its rights to (1) equal protection under the
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`Fourteenth Amendment of the United States Constitution and the
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`Constitution of the State of Michigan; (2) procedural due process under
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`
`
`Case No. 19-cv-11062
`
`Judith E. Levy
`United States District Judge
`
`Mag. Judge Elizabeth A.
`Stafford
`
`
`Exclusive Brands LLC,
`
`
`Plaintiff,
`
`
`v.
`
`City of Garden City, Michigan, et
`al.,
`
`
`Defendants.
`
`________________________________/
`
`
`
`OPINION AND ORDER GRANTING DEFENDANTS CITY OF
`GARDEN CITY, GARDEN CITY BUILDING DEPARTMENT,
`DALE DOUGHERTY, AND GARDEN CITY CITY COUNCIL’S
`MOTION TO DISMISS [23]; GRANTING DEFENDANT PATRICK
`J. SLOAN’S MOTION TO DIMISS [38]; AND GRANTING
`DEFENDANT JEFF VAN DAM’S MOTION TO DISMISS [42]
`
`
`I.
`
`Introduction
`
`Plaintiff Exclusive Brands LLC brought this action for injunctive,
`
`declaratory, compensatory, and punitive relief pursuant to 42 U.S.C. §
`
`1983 for alleged violations of its rights to (1) equal protection under the
`
`Fourteenth Amendment of the United States Constitution and the
`
`Constitution of the State of Michigan; (2) procedural due process under
`
`
`
`Case 5:19-cv-11062-JEL-EAS ECF No. 53 filed 09/08/20 PageID.570 Page 2 of 41
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`the Fifth Amendment of the U.S. Constitution and the Michigan
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`Constitution; and (3) substantive due process under the Fifth
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`Amendment of the U.S. Constitution and the Michigan Constitution.
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`Plaintiff, a medical marijuana dispensary, argues that Defendants
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`Garden City and a number of its municipal entities and employees
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`unlawfully denied it a special use permit to operate a medical marijuana
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`facility in Garden City, Michigan.
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`Defendants collectively filed three motions to dismiss in this case:
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`(1) Defendants Garden City, Building Department, Dougherty, and City
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`Council filed a motion to dismiss for lack of subject-matter jurisdiction
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`and failure to state a claim upon which relief may be granted; (2)
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`Defendant Sloan filed an answer to Plaintiff’s second amended complaint
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`and subsequently filed a motion to dismiss for a failure to state a claim;
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`and (3) Defendant Van Dam filed a motion to dismiss for lack of subject-
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`matter jurisdiction and/or for failure to state a claim. For the reasons
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`below, the Court GRANTS all motions and dismisses this case.
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`II. Background
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`A. Parties
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`2
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`Plaintiff is a Michigan Limited Liability Corporation with its
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`principle place of business in Livonia, Michigan. (ECF No. 15,
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`PageID.79.) Plaintiff sought a special use permit to operate a medical
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`marijuana facility in Garden City, Michigan. (Id. at PageID.81.)
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`Defendant City of Garden City (“Garden City”) is a Michigan
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`municipal corporation (Id. at PageID.79), and Defendant Garden City
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`Building Department (“Building Department”) is a “a body within
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`[D]efendant Garden City.” (Id. at PageID.80.)
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`Defendant Dale Dougherty is the City Manager of Defendant
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`Garden City and the Planning and Zoning Administrator for Defendant
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`Garden City. (Id. at PageID.79.) The only facts with respect to Defendant
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`Dougherty in Plaintiff’s second amended complaint are his job title and
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`his general role as City Manager. (ECF No. 15, PageID.80 (“[D]efendant
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`Dougherty appoints the heads of nearly all departments of [D]efendant
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`Garden City, administers personnel relations, and prepares policy
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`recommendations for [D]efendant City Council . . . . [D]efendant
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`Dougherty is responsible for the direction and supervision of the
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`administration of all departments . . . of [D]efendant Garden City.”).)
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`3
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`Defendant Garden City City Council (“City Council”) is “the
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`legislative body within [D]efendant Garden City.” (Id.)
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`Defendant Patrick J. Sloan “was and is a Planning and Zoning
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`Consultant and Senior Principal Planner to [D]efendant Garden City.”
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`(Id.)
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`Defendant Jeff Van Dam is “the Administrator for [D]efendant . . .
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`Building Department.” (Id.) Defendant Van Dam contends that he is not
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`an employee of Defendant Garden City but rather an employee of Buccilli
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`Group, LLC, which provides the Building Department services on a
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`contract with Defendant Garden City. (ECF No. 42, PageID.294.)
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`Plaintiff’s complaint is silent as to this allegation.
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`B. Factual Background
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`i. Garden City’s Medical Marijuana Ordinance
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`The State of Michigan’s Medical Marihuana Facilities Licensing
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`Act (“MMFLA”) enables a municipality to decide whether to allow
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`marijuana facilities within the municipality by adopting an ordinance.
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`M.C.L. § 333.27205(1). Pursuant to MMFLA, Defendant Garden City
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`adopted an ordinance in February 2018 to allow medical marijuana
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`facilities within its boundaries and to participate in the medical
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`4
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`marijuana facilities licensing system. CITY OF GARDEN CITY, REGULAR
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`COUNCIL
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`MEETING
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`MINUTES
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`FEBRUARY
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`5,
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`2018,
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`http://www.gardencitymi.org/AgendaCenter/ViewFile/Minutes/_0205201
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`8-173; see GARDEN CITY, MICH., CODE OF ORDINANCES § 154.165. This
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`ordinance authorizes and specifies the number and types of permitted
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`medical marijuana facilities with special land use approval, and zoning
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`regulations.1 Id.
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`Garden City’s existing standards and procedures for special use
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`regulations, adopted in its ordinances §§ 154.415–17, apply to the
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`medical marijuana facility special use applicants. § 154.165(C).
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`According to Garden City’s ordinances, the Planning Commission and the
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`City Council approve or deny special use permit applications. § 154.416.
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`When an applicant submits the special use application materials,
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`required fees, and multiple copies of the completed site plan to the
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`Building Department, the Zoning Administrator and other city officials
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`review the application package and make recommendations as
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`appropriate. §§ 154.416(E)-(F). After revising the site plan and
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`1 More specifically, it permits Class A, B, and C grow operations, marijuana
`processing facilities, and provisioning centers as a special land use in the M-1 Light
`Industrial District zoning. GARDEN CITY, MICH., CODE OF ORDINANCES § 154.165.
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`application materials based on the recommendations, the applicant then
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`submits a revised plan for further review. § 154.416(G). The Planning
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`Commission reviews the application, and it “may approve, approve with
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`conditions, or deny a Special Use request.” § 154.416(I)(1). After the
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`Planning Commission makes a decision and forwards it to the City
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`Council, the City Council determines whether to consider the special use
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`application. §§ 154.416(I), (J). If the City Council decides not to consider
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`the application, then the Planning Commission’s decision is final. §
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`154.416(J). If, however, the City Council considers the application, it
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`takes the Planning Commission’s decision as a recommendation, and the
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`City Council makes a final decision to “approve, approve with conditions,
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`or deny a Special Use proposal” by reviewing the application and site
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`plan, along with findings of the Planning Commission. §§ 154.416(J), (L).
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`All decisions at each stage of the process are subject to the complete
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`discretion of the Planning Commission and the City Council.2 Issuing a
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`2 During the initial review process by the Zoning Administrator and other city
`officials upon receipt of the submission, no decision is made with regards to the
`submission. Instead, city officials prepare a written review for the applicant,
`“specify[ing] any deficiencies in the site plan and application and make
`recommendations as appropriate.” § 154.416(F).
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`building permit requires a submission of the final approval of the special
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`use application along with other materials. § 154.416(P).
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`On July 23, 2018, the City Council approved the proposal limiting
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`the total number of medical marijuana facilities in Garden City to three.
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`(ECF No. 23-5, PageID.166.) Then, on September 24, 2020, the City
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`Council adopted the amended ordinance, reflecting the change. (ECF No.
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`23-8, PageID.190.)
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`ii. Medical Marijuana Facility Licensing Process
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`The State of Michigan Department of Licensing and Regulatory
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`Affairs (“LARA”) employees a two-step process for medical marijuana
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`facility licensing: (1) pre-qualification; and (2) license qualification.
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`Medical Marihuana Facility License Application, Dep’t of Licensing and
`
`Regulatory
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`Affairs,
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`https://www.michigan.gov/lara/0,4601,7-154--
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`453929--,00.html (last visited June 22, 2020). The pre-qualification step
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`involves a background check of the applicant and all supplemental
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`applicants, and it requires applicants to disclose those entities with an
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`indirect or direct ownership interest. Id. Pre-qualification may be
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`granted before an applicant secures a physical location for the facility. Id.
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`The next step, license qualification, requires a pre-qualified applicant to
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`submit information specific to the facility location and to the type of
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`facility for which the license is applied. Id.
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`LARA cannot issue a medical marijuana facility license unless the
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`municipality where the proposed facility is located has authorized
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`marijuana facilities through its ordinance. Id. After an applicant
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`completes the license qualification step, the Medical Marihuana
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`Licensing Board (“MMLB”) makes a final approval of the application. Id.
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`iii. Plaintiff’s Special Use Permit Application Process
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`On May 31, 2018, MMLB granted Plaintiff a prequalification status
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`pursuant to the licensing provisions of the MMFLA. (ECF No. 15,
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`PageID.81.) Beginning in May 2018, Plaintiff’s representative contacted
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`Defendant Sloan frequently “regarding Plaintiff’s desire to obtain a
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`special use permit” for a medical marijuana facility. (Id.) In July 2018,
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`Plaintiff entered into a $1.2 million purchase agreement for property in
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`Garden City to operate a medical marijuana facility, contingent upon
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`Garden City’s approval of a special use permit. (Id. at PageID.82.)
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`Plaintiff made a non-refundable $25,000 deposit for the property and
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`additionally spent approximately $15,000 to prepare for renovation and
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`apply for a special use permit. (Id.)
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`Some time prior to August 6, 2018, Sloan advised Plaintiff’s
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`representative that, if submitted by August 13, 2018, Plaintiff’s
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`application for a special use permit “would be accepted and placed on the
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`agenda” for the Garden City Planning Commission’s meeting on
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`September 13, 2018. (Id.) However, on August 6, 2018, the City Council
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`established a six-month moratorium on accepting additional medical
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`marijuana special use permit applications. (Id. at PageID.83; ECF No.
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`23-6, PageID.169.) The moratorium began on August 7, 2018. (ECF No.
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`23-6, PageID.169.) The City Council adopted a resolution to reaffirm the
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`moratorium, mandating the moratorium to expire on February 7, 2019,
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`unless the City Council extended it. (ECF No. 42-6, PageID.361.) The
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`resolution specified that medical marijuana facility permit applicants
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`impacted by the moratorium could appeal a deferral of their application
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`with a written request for appeal submitted to the Building Department.
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`(Id.) Applicants seeking a hearing on their appeal had to request a
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`hearing in writing, and the hearing would be held before the City Council.
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`(Id.) However, Sloan did not inform Plaintiff’s representative or “any
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`other representative of Plaintiff or parties working with Plaintiff” of the
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`proposed moratorium prior to the August 6, 2018 City Council meeting.
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`(ECF No. 15, PageID.82–83.) Moreover, neither the Building Department
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`nor Van Dam informed Plaintiff of the moratorium when Plaintiff
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`submitted
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`its application. (Id. at PageID.83.) Plaintiff, without
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`knowledge of the moratorium, applied for a permit to the Building
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`Department on the deadline of August 13, 2018 “in compliance with, and
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`in reliance upon, the representation by [D]efendant Sloan.” (Id.) The
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`Building Department accepted Plaintiff’s application3 and
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`the
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`application fee of $3,950. (Id.) On August 23, 2018, Plaintiff’s
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`representative learned of the moratorium in a phone call to the Building
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`Department. (Id.) Sloan informed Plaintiff of the moratorium on August
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`29, 2018. (Id.)
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`Plaintiff alleges that Sloan knew that the City Council planned to
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`impose a moratorium prior to its meeting on August 6, 2018 (Id. at
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`PageID.82) but “intentionally failed to inform” Plaintiff.4 (Id. at
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`3 According to Defendant Van Dam, this was Plaintiff’s first application for a
`medical marijuana special use facility permit. (ECF No. 42, PageID.310.)
`4 Conversely, Defendant Van Dam alleges that he “never personally interacted
`with Plaintiff’s representatives prior to the moratorium’s enactment.” (ECF No. 50,
`PageID.515.) The Court points to Van Dam’s alleged contrary fact because Van Dam
`filed a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. For the
`purpose of Rule 12(b)(1) motion, the Court does not automatically defer to Plaintiff’s
`set of facts. See infra section IV(B) for the rules regarding treatments of the facts from
`Defendant Van Dam’s Rule 12(b)(1) motion to dismiss and the application of the facts.
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`PageID.85.) Plaintiff also alleges that Van Dam and/or the Building
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`Department, too, had “superior knowledge” of the City Council’s
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`intention to impose a moratorium. (Id. at PageID.84.) Moreover, Plaintiff
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`argues that Defendants Sloan, Van Dam and/or the Building Department
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`“knew, or should have known, that Plaintiff . . . was relying upon the
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`expressed deadline of August 13, 2018 for submission of its application.”5
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`(Id. at PageID.84.) Plaintiff alleges that it would have applied for a
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`special use permit before the August 6, 2018 City Council meeting, had
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`Defendants Sloan, Building Department, and/or Van Dam advised
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`Plaintiff or its representative of the proposed moratorium. (Id. at
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`PageID.83–84.) Plaintiff argues that its application and site plan
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`“compl[y] with all applicable zoning rules and regulations governing the
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`proposed use” and are “compatible with the Master Plan of [D]efendant
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`Garden City.” (Id. at PageID.85.)
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`On September 6, 2018, Plaintiff requested an appeal for a deferral
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`of its application to the Building Department (Id.), addressing the appeal
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`5 Plaintiff alleges that Defendant Dougherty “breached his duties . . . by failing
`to properly direct and supervise the administration of all departments, including
`[D]efendant Building Department, which failed to advise Plaintiff Exclusive Brands
`of the impending moratorium prior to its implementation.” (ECF No. 15, PageID.84.)
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`letter to Van Dam. (ECF No. 50, PageID.525–527.) According to Van
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`Dam,6 the Building Department forwarded the appeal to the City Council
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`(ECF No. 51, PageID.546), and the City Council heard Plaintiff’s appeal
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`at its regular meeting on December 3, 2018.7 (ECF No. 42, PageID.295.)
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`Also, Van Dam contends that Plaintiff did not appeal further to the
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`Wayne County Circuit Court. (ECF No. 51, PageID.540.)
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`In addition to the allegations above, Plaintiff argues that the City
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`Council “improperly and unlawfully ‘grandfathered in’ one or more
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`ineligible or unqualified applicants for special use permits for medical
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`marijuana facilities” after the City Council adopted the ordinance
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`amendment. (ECF No. 15, PageID.85.) However, Plaintiff does not
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`identify any other special use permit applicants similarly situated to
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`Plaintiff around the time the moratorium took effect. (Id.)
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`C. The Current Litigation
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`6 See infra section IV(B) for the treatments of the facts from Van Dam’s 12(b)(1)
`motion to dismiss and accompanying evidence.
`7 Plaintiff’s appeal letter did not specifically request a hearing, although the
`resolution adopted by the City Council on August 20, 2018 requires applicants to
`specify in writing that they request a hearing. (ECF No. 42-6, PageID.361.) Contrary
`to the City Council’s record on December 3, 2018 (ECF No. 42, PageID.295; ECF No.
`42-10, PageID.398), Plaintiff alleges that “Defendants . . . den[ied] Plaintiff a public
`hearing and an opportunity to be heard before [D]efendant Garden City’s Planning
`Commission and other governmental bodies.” (ECF No. 15, PageID.88.)
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`Plaintiff filed its second amended complaint on August 11, 2019.
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`(ECF No. 15.) Initially, Plaintiff filed a complaint against only
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`Defendants Garden City, the Building Department, and Dougherty.
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`(ECF No. 1.) Plaintiff names three additional Defendants in the second
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`amended complaint: Defendants Patrick J. Sloan and Jeff Van Dam,
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`individually and in their official capacity, and Defendant Garden City
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`City Council. (ECF No. 15, PageID.78.)
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`In response to Plaintiff’s second amended complaint, Defendants
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`filed three motions to dismiss. On September 12, 2019, Garden City, the
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`Building Department, Dougherty, and the City Council filed a motion to
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`dismiss for lack of subject-matter jurisdiction and failure to state a claim
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`upon which relief may be granted. (ECF No. 23.) Defendant Sloan filed
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`an answer to Plaintiff’s second amended complaint on September 5, 2019
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`(ECF No. 21) and subsequently on October 17, 2019, filed a motion to
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`dismiss for failure to state a facially plausible claim. (ECF No. 38.)
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`Finally, Defendant Van Dam, on December 5, 2019, filed a motion to
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`dismiss for lack of subject-matter jurisdiction and/or for failure to state a
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`claim. Defendant Van Dam also requests costs and attorney fees
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`associated with the motion. (ECF No. 42, PageID.279.)
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`13
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`III. Legal Standard
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`Defendants Garden City, the Building Department, Dougherty, the
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`City Council, and Defendant Van Dam filed motions to dismiss for lack
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`of subject-matter jurisdiction and failure to state a legal claim under
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`Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF Nos. 23, 42.)
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`When a court's subject-matter jurisdiction is challenged under
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`Federal Rule of Civil Procedure 12(b)(1), the plaintiff has the burden to
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`prove jurisdiction. Moir v. Greater Cleveland Reg’l Transit Auth., 895
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`F.2d 266, 269 (6th Cir. 1990). Proving subject-matter jurisdiction
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`requires a demonstration that the plaintiff has constitutional standing to
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`bring suit. Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 606
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`(6th Cir. 2007). If a plaintiff cannot demonstrate constitutional standing,
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`the case must be dismissed. Id. at 607 (citing Cent. States Se. & Sw. Areas
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`Health and Welfare Fund v. Merck–Medco Managed Care, 433 F.3d 181,
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`198 (2d Cir. 2005)). Constitutional standing requires three elements: (1)
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`that the plaintiff has suffered “an invasion of a legally protected interest,
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`which is concrete and particularized . . . and . . . actual or imminent”; (2)
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`that the injury is “fairly . . . trace[able] to the challenged action of the
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`defendant”; and (3) that a favorable decision must be likely to redress
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`that injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
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`(internal quotations omitted) (alteration in original).
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`Defendant Sloan filed an answer to the second amended complaint
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`(ECF No. 21) prior to filing this motion to dismiss under Rule 12(b)(6).
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`(ECF No. 38.) A post-answer motion to dismiss pursuant to 12(b)(6) is not
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`permitted. See Fed. R. Civ. P. 12(b)(6). However, an untimely motion to
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`dismiss “may be properly considered as one for judgment on the pleadings
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`under Fed. R. Civ. P. 12(c), and evaluated, nonetheless, under the
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`standards for dismissal under 12(b)(6).” Doe v. Sentech Empl. Servs., 186
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`F. Supp. 3d 732, 736 (E.D. Mich. 2016) (quotations omitted); see also
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`Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 n.1 (6th
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`Cir. 1988). Accordingly, the Court will construe Sloan’s motion as one for
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`judgment on the pleadings and analyze it under the same standard as
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`one to dismiss.
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`When deciding a motion to dismiss under Rule 12(b)(6), the Court
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`must “construe the complaint in the light most favorable to the plaintiff
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`and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605,
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`608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must
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`contain sufficient factual matter, accepted as true, to ‘state a claim to
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`relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`A plaintiff’s claim is facially plausible “when the plaintiff pleads factual
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`content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Id. A plausible claim need
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`not contain “detailed factual allegations,” but it must contain more than
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`mere “labels and conclusions” or “a formulaic recitation of the elements
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`of a cause of action.” Twombly, 550 U.S. at 555.
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`When defendants raise both the 12(b)(1) and 12(b)(6) motions, the
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`Court is “bound to consider the 12(b)(1) motion first, since the Rule
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`12(b)(6) challenge becomes moot if this court lacks subject matter
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`jurisdiction.” Wayside Church v. Van Buren Cty., 847 F.3d 812, 816 (6th
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`Cir. 2017) (internal citations omitted).
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`IV. Analysis
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`For the reasons below, the Court grants Defendants City of Garden
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`City, the Garden City Building Department, Dale Dougherty, the Garden
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`City City Council, and Patrick J. Sloan’s motions to dismiss for a failure
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`to state a claim.8 The Court also grants Defendant Jeff Van Dam’s motion
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`to dismiss for lack of subject-matter jurisdiction.
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`A. Defendants Building Department and Dougherty
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`i. Defendant Building Department
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`Plaintiff names the Garden City Building Department as well as
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`the City of Garden City as Defendants. (ECF No. 15.) Under Michigan
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`law, however, municipal departments are not separate legal entities
`
`capable of being sued because they are “merely agencies of the city.”
`
`Carey v. Hall, No. 12-14777, 2013 WL 174503, at *1 (E.D. Mich. Jan. 3,
`
`2013) (citing Boykin v. Van Buren Twp, 479 F.3d 444, 450 (6th Cir. 2007);
`
`
`8 Defendants Garden City, the Building Department, Dougherty, and City
`Council additionally filed a motion to dismiss Plaintiff’s second amended complaint
`for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1). (ECF No. 23.)
`However, Defendants raise this issue only in the abstract, and they neglect to make
`any arguments in its favor. (Id. at PageID.121.) Courts reject and do not pursue
`arguments which lack analysis because “issues adverted to in a perfunctory manner,
`unaccompanied by some effort at developed argumentation, are deemed waived. It is
`not sufficient for a party to mention a possible argument in the most skeletal way,
`leaving the court . . . to put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989,
`995-96 (6th Cir. 1997) (quoting Citizens Awareness Network, Inc. v. United States
`Nuclear Regulatory Comm’n, 59 F.3d 284, 293–94 (1st Cir. 1995)); accord United
`States v. Hayter Oil Co., 51 F.3d 1265, 1269 (6th Cir. 1995); United States v. Phibbs,
`999 F.2d 1053, 1080 n.12 (6th Cir. 1993), cert. denied, 510 U.S. 1119 (1994)). Because
`Defendants Garden City, the Building Department, Dougherty, and City Council
`leave the court to “put flesh” on their bare assertion of a 12(b)(1) dismissal, the Court
`declines to address this argument further.
`17
`
`
`
`
`
`Case 5:19-cv-11062-JEL-EAS ECF No. 53 filed 09/08/20 PageID.586 Page 18 of 41
`
`Laise v. City of Utica, 970 F. Supp. 605, 608 (E.D. Mich. 1997);
`
`Pierzynowski v. Police Dept. City of Detroit, 941 F. Supp. 633, 637 n.4
`
`(E.D. Mich. 1996)). The Carey Court explained that, although courts
`
`apply this principle most frequently to police departments, the same
`
`principle “applies with equal force to other city departments.” Id. For this
`
`reason, Carey concluded that the Department of Public Works for the
`
`City of Taylor was not a separate entity for purposes of civil suit. Id.
`
`(citing Michonski v. City of Detroit, 162 Mich. App. 485, 490 (Mich. Ct.
`
`App. 1987) (“finding that the City of Detroit Public Lighting Department
`
`was ‘not a separate legal entity against which a tort action can be
`
`directed.’”)).
`
`Similarly, because the Building Department is a municipal agency
`
`and not a municipality itself, the Building Department is not a legal
`
`entity capable of being sued. See id. at *1–2. Accordingly, Plaintiff’s
`
`complaint against the Building Department fails to state a legal claim,
`
`and the Court dismisses the Building Department.
`
`ii. Defendant Dougherty in his individual and official
`capacities
`
`Plaintiff brings claims against Defendant Dougherty in his
`
`individual and official capacities “as representative and employee of
`
`
`
`18
`
`
`
`Case 5:19-cv-11062-JEL-EAS ECF No. 53 filed 09/08/20 PageID.587 Page 19 of 41
`
`Garden City” under a respondeat superior liability theory of 42 U.S.C. §
`
`1983. (ECF No. 15, PageID.78, 86–91.) Plaintiff alleges that Dougherty
`
`breached his duties because the Building Department, which is under
`
`Dougherty’s supervision along with all the departments in Garden City,
`
`failed to inform Plaintiff of the moratorium prior to its implementation.
`
`(ECF No. 15, PageID.84.) However, as Dougherty correctly points out,
`
`Plaintiff fails to make “even the most rudimentary factual allegations
`
`about Mr. Dougherty.” (ECF No. 23, PageID.131.) Plaintiff fails to plead
`
`factual content that would allow the Court to make a reasonable
`
`inference as to Dougherty’s liability in this case. See Iqbal, 556 U.S. at
`
`678. Accordingly, and for the reasons below, both the individual and
`
`official capacity claims against Dougherty fail, and the Court dismisses
`
`him.
`
`Plaintiff alleges that Dougherty held a supervisory role as manager
`
`of Garden City, and that he accordingly “fail[ed] to properly direct and
`
`supervise the administration of all departments, including [D]efendant
`
`Building Department, which failed to advise Plaintiff [] of the impending
`
`moratorium.” (ECF No. 15, PageID.84.) Aside from this allegation,
`
`Plaintiff fails to produce facts related to Dougherty’s alleged misconduct,
`
`
`
`19
`
`
`
`Case 5:19-cv-11062-JEL-EAS ECF No. 53 filed 09/08/20 PageID.588 Page 20 of 41
`
`and it includes no allegations of direct action—as opposed to supervisory
`
`inaction—on Dougherty’s part. (Id.)
`
`Plaintiff’s individual liability theory cannot proceed without
`
`allegations of direct action. “Under § 1983, there is no respondeat superior
`
`or vicarious liability.” Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir.
`
`2013) (citing Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992)).
`
`When a plaintiff sues an individual actor under § 1983, “[the] plaintiff
`
`must demonstrate that the actor ‘directly participated’ in the alleged
`
`misconduct, at least by encouraging, implicitly authorizing, approving or
`
`knowingly acquiescing in the misconduct, if not carrying it out himself.”
`
`Id. (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
`
`Because Plaintiff’s pleading fails to allege sufficient facts supporting an
`
`individual liability theory against Dougherty, Plaintiff’s claim fails to
`
`state a claim against Dougherty in his individual capacity.
`
`Plaintiff’s official capacity claim against Dougherty also fails
`
`because Plaintiff additionally names the municipality—the City of
`
`Garden City—as a defendant in this suit. “A suit against an individual
`
`in his official capacity is the equivalent of a suit against the government
`
`entity.” Myers v. Potter, 422 F.3d 347, 357 (6th Cir. 2005) (quoting
`
`
`
`20
`
`
`
`Case 5:19-cv-11062-JEL-EAS ECF No. 53 filed 09/08/20 PageID.589 Page 21 of 41
`
`Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)). When a claim is
`
`brought against both an individual in her official capacity and the
`
`governmental entity, the claim against an individual in her official
`
`capacity is redundant. Jackson v. Shelby Cty. Gov’t, No. 07-6356, 2008
`
`WL 4915434, at *2 (6th Cir. Nov. 10, 2008). Accordingly, the claim
`
`against Dougherty in his official capacity is redundant to the claim
`
`against Garden City, and Plaintiff fails to state a claim against
`
`Dougherty in his official capacity. For the reasons above, the Court
`
`dismisses Dougherty in both his individual and official capacity.
`
`B. Subject-Matter Jurisdiction over Claims against
`Defendant Van Dam
`
`Defendant Van Dam challenges subject-matter jurisdiction of this
`
`Court over the claims against him because Plaintiff fails to meet the
`
`Article III standing requirements.9 (ECF No. 42, PageID.276, 298–305.)
`
`“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction
`
`generally come in two varieties: a facial attack or a factual attack.”
`
`
`9 Van Dam also argues this Court lacks subject-matter jurisdiction because
`Plaintiff failed to exhaust administrative remedies in the state court. (ECF No. 42,
`PageID.277, 300–01.) However, it is a well-settled rule that “exhaustion of state
`remedies is not a prerequisite to an action under [42 U.S.C.] § 1983” in the federal
`court. Knick v. Twp. of Scott, 139 S. Ct. 2162, 2167 (2019) (internal quotations
`omitted) (quoting Heck v. Humphrey, 512 U.S. 477, 480 (1994)).
`21
`
`
`
`
`
`Case 5:19-cv-11062-JEL-EAS ECF No. 53 filed 09/08/20 PageID.590 Page 22 of 41
`
`Gentek Bldg. Prod., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th
`
`Cir. 2007). Relevant here as raised by Van Dam, a factual attack “raises
`
`a factual controversy requiring the district court to ‘weigh the conflicting
`
`evidence to arrive at the factual predicate that subject-matter does or
`
`does not exist.’” Wayside Church v. Van Buren Cty., 847 F.3d 812, 817
`
`(6th Cir. 2017) (citing Gentek Bldg. Prods., 491 F.3d at 330) (internal
`
`citations omitted). When a court reviews a facial challenge, the court
`
`“takes the allegations in the complaint as true.” Ohio Nat. Life Ins. Co. v.
`
`United States, 922 F.2d 320, 325 (6th Cir. 1990). However, when it
`
`reviews a factual challenge, “no presumptive truthfulness applies to the
`
`factual allegations.” Id. The court has “wide discretion to allow affidavits,
`
`documents and even a limited evidentiary hearing to resolve disputed
`
`jurisdictional facts.” Id.
`
`Specifically, Van Dam argues that Plaintiff lacks standing because
`
`Plaintiff fails to show (1) a causal connection between Van Dam’s actions
`
`and Plaintiff’s alleged harm, and (2) that Plaintiff’s alleged harm is
`
`redressable via any judgement against Van Dam. (ECF No. 42,
`
`PageID.276, 298–305.) The Court agrees on both counts, and Plaintiff
`
`accordingly lacks standing to bring the suit against Van Dam.
`
`
`
`22
`
`
`
`Case 5:19-cv-11062-JEL-EAS ECF No. 53 filed 09/08/20 PageID.591 Page 23 of 41
`
`Plaintiff fails to establish a causal connection that the injury is
`
`traceable to Van Dam’s actions. See Lujan, 504 U.S. at 560. Plaintiff
`
`contends that its injury is due to Van Dam’s failure to timely inform
`
`Plaintiff’s representative about an impending moratorium. (ECF No. 15,
`
`PageID.83–84.) However, Plaintiff’s second amended complaint is devoid
`
`of any allegation that Van Dam knew about the pending moratorium or
`
`ever had a personal interaction with Plaintiff’s r
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