AUREUS HOLDINGS, LTD. and DONALD SCHULTZ v. DETROIT CITY and JAMES DOCKERY

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0749n.06
Filed: December 9, 2008
No. 07-2195
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AUREUS HOLDINGS, LTD. and DONALD
SCHULTZ,
Plaintiffs-Appellants,
v.
DETROIT CITY and JAMES DOCKERY,
Defendants-Appellees,
and
DETROIT POLICE DEPARTMENT,
Defendant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
M E M O R A N D U M
O P I N I O N
BEFORE: ROGERS, SUTTON and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. This case stems from something of a feud between Aureus
Holdings, Ltd., a scrap metal processor operating in the City of Detroit, and Detroit Police Officer
James Dockery, acting in his capacity as Environmental Enforcement Officer. Aggrieved by various
actions taken by Officer Dockery, plaintiffs Aureus and Donald Schultz, an Aureus employee,
brought suit in the Eastern District of Michigan, asserting various federal and state causes of action.
The district court granted defendants’ motion for summary judgment in part, dismissing all claims
against the City, and conducted a five-day jury trial on Aureus’s remaining claims against Dockery.

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In trial, the district court awarded Dockery judgment as a matter of law on some claims and the jury
returned a verdict in Dockery’s favor on all remaining claims. The court subsequently denied
Aureus’s motion for new trial. On appeal, we find no error in the proceedings below and therefore
affirm the district court’s judgment.
I
Plaintiffs Aureus and Schultz raise several claims of error. We address them in the order
presented. The first asserted error relates to Schultz’s Count II claim under 42 U.S.C. § 1983 that
his Fourth Amendment right to freedom from unreasonable seizures was violated when Dockery,
without probable cause, temporarily seized his shotgun from the Aureus scrap yard office on or about
September12, 2001. Schultz contends the jury’s verdict is against the clear weight of the evidence
and that the district court erred by denying his motion for new trial. The district court denied relief
because the evidence of the circumstances surrounding the seizure of the shotgun was controverted
and the jury was entitled to accept Dockery’s version of the events rather than Schultz’s. The court
thus ruled that Schultz had failed to establish by a preponderance of the evidence that the seizure
violated his Fourth Amendment rights.
We review the district court’s denial of new trial for abuse of discretion. Taylor v. Teco
Barge Line, Inc., 517 F.3d 372, 383 (6th Cir. 2008). The trial court will be deemed to have abused
its discretion if the challenged verdict is so contrary to the clear weight of the evidence that a
reasonable juror could not have reached it. Id.
Schultz maintains that even accepting Dockery’s version of the events, probable cause to
seize the shotgun was not established. Schultz argues that even assuming he told Dockery he was

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For the same reasons, we find no abuse of discretion in the district court’s refusal to instruct1
the jury on awarding punitive damages for this claim. See Taylor, 517 F.3d at 387 (district court’s
refusal to give requested instruction reviewed for abuse of discretion). The record does not contain
evidence even suggesting that Dockery, in temporarily removing the shotgun, acted so maliciously,
wantonly or oppressively as to justify award of punitive damages. See Memphis Cmty. School Dist.
v. Stachura, 477 U.S. 299, 307 n. 9 (1986) (punitive damages are available in § 1983 case only for
acts “maliciously, or wantonly, or oppressively done”). Moreover, even if the refusal to give a
punitive damages instruction were in error, it was harmless inasmuch as the jury’s verdict was in
favor of Dockery.
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not in charge, and told Dockery that he owned the shotgun observed in plain view in the office but
refused to produce personal identification, this does not amount to probable cause to believe an
offense had been committed justifying seizure. Yet, Dockery explained that inasmuch as Schultz
was uncooperative, claimed ownership of a shotgun displayed in the office of a business he claimed
not to be in charge of, and refused to produce personal ID or proof of ownership, he was not
comfortable, from a public safety perspective, leaving the loaded shotgun there. Dockery testified
that he therefore invited Schultz to follow him to the police station where ownership could be
verified and the shotgun could be returned to him. Schultz did so and, upon producing personal ID
and admitting that he was in fact the manager of the Aureus facility, the shotgun was returned to
him.
In light of this testimony, the jury, having been properly instructed on the law, was entitled
to conclude that this temporary seizure was not so unreasonable as to violate Schultz’s constitutional
rights. The jury’s verdict was not plainly unreasonable and the district court’s denial of the motion
for new trial was not an abuse of discretion.1

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II
In the second claim of error, Aureus and Schultz challenge the district court’s denial of their
motion for new trial on the Count III claim for malicious prosecution. Again, they contend the jury’s
verdict in favor of Dockery was against the clear weight of the evidence. The district court treated
the claim as a state law claim (and so instructed the jury) and determined that plaintiffs’ proofs failed
to satisfy two essential elements of the claim. The court noted that plaintiffs had to prove they were
subject to prosecution without probable cause, which prosecution terminated in their favor. See
Matthews v. Blue Cross & Blue Shield of Michigan, 572 N.W.2d 603, 609-10 (Mich. 1998). Yet,
of the numerous citations issued to Aureus and Schultz—for disposal of waste oil, dumping,
operating without a certificate of occupancy, etc.—the court found evidence of the disposition of
only nine. These nine were dismissed without prejudice pursuant to a stipulation that required
Aureus to install storage tanks for the disposal of waste products. Reasoning that the jury was
entitled to view this as evidence that the citations were issued with probable cause and that the
proceedings were not terminated in plaintiffs’ favor, the court concluded that the jury’s verdict was
not shown to be unreasonable. See Peterson Novelties, Inc. v. City of Berkley, 672 N.W.2d 351,
363-64 (Mich. App. 2003) (where termination results from compromise or settlement, there is no
“favorable termination” for purposes of malicious prosecution claim).
On appeal, Aureus and Schultz do not even address the district court’s reasoning. Instead,
they rehash their litany of grievances over petty harassments inflicted on them during this period.
They do not identify a single prosecution, criminal or civil, that terminated in their favor. We are

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not persuaded that the district court abused its discretion in denying the motion for new trial on the
Count III malicious prosecution claim.
III
In Count IV of the complaint, Aureus asserts a claim against Dockery for tortious interference
with advantageous business relationship or expectancy. This claim is premised in part on the closure
of the Aureus scrap yard operation from May 17, 2001 to June 13, 2001. Dockery issued a citation
and ordered the business closed when he learned on May 17, 2001, that Aureus did not have a valid
license to operate. Aureus applied for a license later on May 17 and was directed by the Department
of Consumer Affairs to stay closed pending approval of the license application. It is undisputed that
Aureus was without a valid license during this twenty-six-day period. Concluding that the closure
was due to the undisputed lack of a license, not to any tortious interference by Dockery, the district
court, during trial, precluded Aureus from seeking damages for profits lost during this period.
Aureus contends the district court erred as a matter of law. Citing the City of Detroit
Ordinance, Aureus contends the City was obligated to (“shall”) issue the license as soon as the
application fee was paid, on May 17. Since the City was legally obligated to issue the license on
May 17, Aureus argues Dockery lacked legal authority to enforce the closure after May 17.
Dockery’s continued enforcement of the closure without legal authority is thus said to constitute
tortious interference with Aureus’s business relations.
Even if we were to accept Aureus’s questionable construction of the ordinance, its argument
would still fall short. Even if the Department of Consumers Affairs ought to have issued Aureus a
license on May 17, the fact is that it did not do so. The Department of Consumer Affairs took almost

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four weeks to process the application before issuing the license. Although the closure undoubtedly
visited hardship on Aureus, the City’s alleged nonfeasance and Aureus’s resultant loss cannot be
attributed to Dockery under a tortious interference theory. To make out a valid claim for tortious
interference under Michigan law, Aureus was required to show that Dockery acted without legal
justification and with malice. See Mino v. Clio School Dist., 661 N.W.2d 586, 597 (Mich. App.
2003); BPS Clinical Labs. v. Blue Cross & Blue Shield of Michigan, 552 N.W.2d 919, 925 (Mich.
App. 1996). The fact that Aureus was actually without a license during the period of closure by
express order of the Department of Consumer Affairs precluded a finding that Dockery’s
enforcement of the closure was with malice. We therefore find no error in the district court’s order
limiting the scope of Aureus’s claim for tortious interference damages.
IV
Insofar as the complaint set forth a claim under 42 U.S.C. § 1983 for denial of equal
protection, the district court awarded judgment to Dockery as a matter of law for lack of evidence
that Aureus and Schultz were treated differently from others similarly situated, citing Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Again, plaintiffs’ appellate arguments are
unresponsive to this identified deficiency. They failed to allege or show that they were discriminated
against because of their membership in any suspect class and they have not pointed to evidence that
they were treated less favorably than others similarly situated, such as would support a “class of one”
equal protection claim. See TriHealth, Inc. v. Board of Com’rs, Hamilton County, Ohio, 430 F.3d
783, 788 (6th Cir. 2005). Accordingly, we find no error in the district court’s ruling on the equal
protection claim.

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V
Counts V and VI of the complaint state claims against Dockery for intentional and negligent
infliction of emotional distress. During trial, the district court awarded Dockery judgment as a
matter of law on these claims as well. The court found the evidence of Dockery’s conduct,
“whatever the shortfalls,” certainly insufficient to satisfy the “extreme and outrageous” element of
the intentional infliction claim. Further, the court found the evidence insufficient to justify a
reasonable jury finding that Dockery’s enforcement excesses were the product of gross negligence,
as would have been required to avoid the governmental immunity Dockery enjoyed under Mich.
Comp. Laws § 691.1407(2).
On appeal, Schultz insists there was enough evidence to create a jury question. Under
Michigan law, it is generally the trial court’s duty to determine in the first instance whether a
defendant’s conduct may reasonably be regarded as “so outrageous in character and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community.” Lewis v. LeGrow, 670 N.W.2d 675, 689 (Mich. App. 2003)
(quoting Graham v. Ford, 604 N.W.2d 713, 716 (Mich. App. 1999)). The trial court answered this
question in the negative after hearing Schultz’s entire testimony.
It appears Dockery may have performed his duties with excess zeal on occasion. Yet, while
Schultz experienced anxiety as a result, he did not seek medical or mental health treatment, such as
might support a finding that Dockery’s conduct was truly extreme, atrocious and intolerable. Nor
does the evidence suggest that Dockery’s conduct could be fairly characterized as “reckless” or

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“grossly negligent.” In sum, Schultz has, in his appellate arguments, simply failed to draw our
attention to any evidence that persuades us the district court erred in this respect.
VI
Finally, Aureus contends the district court erred, in its summary judgment ruling, when it
dismissed all claims asserted against the City of Detroit. Aureus does not quarrel with the district
court’s conclusion that the only claim properly asserted against the City is contained in Count VII,
which alleges, under 42 U.S.C. § 1983, that Aureus’s business license was confiscated on December
20, 2002 without due process. However, the district court construed the claim against the City as
logically flawed. Indeed, Aureus alleges that Dockery and others participated in the confiscation of
the license in a manner violative of the City’s own policies. Yet, as the district court noted, citing
Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978), to impose liability on the City under §
1983, Aureus must establish that City officials were acting pursuant to a City custom or policy.
We review the order granting summary judgment de novo. Johnson v. Karnes, 398 F.3d
868, 873 (6th Cir. 2005). Summary judgment “should be rendered if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The court must view the evidence in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor. Johnson, 398 F.3d at 873. Not just any alleged factual dispute
between the parties will defeat an otherwise properly supported motion for summary judgment; the
dispute must present a genuine issue of material fact. Leadbetter v. Gilley, 385 F.3d 683, 689-90
(6th Cir. 2005). A dispute is “genuine” only if based on evidence upon which a reasonable jury

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could return a verdict in favor of the non-moving party. Hedrick v. W. Reserve Care Sys., 355 F.3d
444, 451 (6th Cir. 2004). A factual dispute concerns a “material” fact only if its resolution might
affect the outcome of the suit under the governing substantive law. Id.
Aureus acknowledges its burden to demonstrate that the alleged confiscation and non-
renewal of its license were accomplished pursuant to City policy. To satisfy this burden, Aureus
argues that, notwithstanding the City’s official policies, which were allegedly ignored in this case,
“the City, through its Department of Consumer Affairs, instituted a de facto policy of deliberate
indifference in ignoring prescribed procedure in confiscating, then failing to renew, the business
license of Aureus without due process of the law.”
Granted, Aureus may establish municipal liability under § 1983 upon a showing that the City
had “a custom of tolerance or acquiescence of federal rights violations.” Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). To prevail on such a theory, however, Aureus must
demonstrate, by a preponderance of the evidence, that: there was a clear and persistent pattern of
illegal activity; the City had notice of it; the City tacitly approved the unconstitutional activity such
that its deliberate indifference amounts to an official policy of inaction; and this custom or policy
of inaction was the moving force behind the constitutional deprivation. Id. Yet, as the district court
observed, Aureus has merely argued the existence of such a policy of inaction or “de facto policy”
and has adduced no evidence of a pattern of similar activity. Such bald allegations are clearly
insufficient to forestall summary judgment. We therefore find no error in the district court’s award
of summary judgment in favor of the City.

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VII
For the foregoing reasons, we deny all of appellants’ claims of error and AFFIRM the district
court’s judgment in all respects.

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