United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:16-cv-00636-GJQ-PJG

Nappier v. Snyder et al Assigned to: Judge Gordon J. Quist Referred to: Magistrate Judge Phillip J. Green Related Case: 1:16-cv-00874-GJQ-PJG
Case in other court: Michigan Court of Claims, 16000071-MM
(U.S. Supreme Court, 18-00083) the Sixth Circuit, 17-01401 Cause: 28:1441 Petition for Removal

Date Filed: 05/31/2016 Date Terminated: 03/31/2017 Jury Demand: Plaintiff Nature of Suit: 893 Environmental Matters Jurisdiction: Federal Question

plaintiff
Tamara Nappier as mother and next friend of Takarie Nappier, a minor child, on behalf of Takarie Nappier and a class of all others similarly situated next friend of Takarie Nappier

represented by Elizabeth C. Thomson Hertz Schram PC 1760 S Telegraph Rd., Ste. 300 Bloomfield Hills, MI 48302-0183 (248) 335-5000 Email: lthomson@hertzschram.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia A. Stamler Hertz Schram PC 1760 S Telegraph Rd., Ste. 300 Bloomfield Hills, MI 48302-0183 (248) 335-5000 Email: pstamler@hertzschram.com ATTORNEY TO BE NOTICED

V.
defendant
Richard Snyder individually

represented by Eugene Driker Barris, Sott, Denn & Driker 211 W Fort St., 15th Fl Detroit, MI 48226-3281 (313) 596-9300 Email: edriker@bsdd.com ATTORNEY TO BE NOTICED

Margaret Bettenhausen MI Dept Attorney General (ENRALansing) Environment, Natural Resources & Agriculture Division P.O. Box 30755 Lansing, MI 48909 (517) 335-7664 Fax: (517) 335-7363 Email: BettenhausenM@michigan.gov ATTORNEY TO BE NOTICED
Morley Witus Barris Sott Denn & Driker PLLC 333 W. Fort St., Ste. 1200 Detroit, MI 48226 (313) 596-9308 Email: mwitus@bsdd.com ATTORNEY TO BE NOTICED
Nathan A. Gambill Michigan Department of Attorney General 525 W. Ottawa, 5th Fl. Lansing, MI 48909 517-335-7664 Fax: 517-335-7636 Email: GambillN@michigan.gov ATTORNEY TO BE NOTICED
Richard S. Kuhl MI Dept of Attorney General (ENRA) P.O. Box 30755 Lansing, MI 48909 517-335-7664 Fax: 517-241-3473 Email: kuhlr@michigan.gov ATTORNEY TO BE NOTICED
Todd R. Mendel Barris Sott Denn & Driker PLLC 333 W. Fort St., Ste. 1200 Detroit, MI 48226 (313) 596-9323

defendant Darnell Earley individually
defendant Gerald Ambrose individually

Email: tmendel@bsdd.com ATTORNEY TO BE NOTICED
Zachary C. Larsen MI Dept Attorney General (ENRALansing) Environment, Natural Resources & Agriculture Division P.O. Box 30755 Lansing, MI 48909 517-335-7664 Fax: 517-241-3473 Email: larsenz@michigan.gov ATTORNEY TO BE NOTICED
represented by Todd Russell Perkins The Perkins Law Group PLLC 615 Griswold Suite 400 Detroit, MI 48226 (313) 964-1702 Fax: (313) 964-1980 Email: tperkins@perkinslawgroup.net ATTORNEY TO BE NOTICED
William Young Kim Office of the City Attorney, Lansing 124 W Michigan, 5th Fl. Lansing, MI 48933 (517) 483-7864 Email: wkim@cityofflint.com TERMINATED: 02/27/2017 ATTORNEY TO BE NOTICED
represented by Barry Abba Wolf Barry A. Wolf, Attorney at Law, PLLC 503 S Saginaw St., Ste. 1410 Flint, MI 48502 (810) 762-1084 Email: bwolf718@msn.com ATTORNEY TO BE NOTICED

defendant Daniel Wyant individually and in his official capacity
defendant Liane Shekter Smith individually and in her official capacity

William Young Kim (See above for address) TERMINATED: 02/27/2017 ATTORNEY TO BE NOTICED
represented by Christopher Bradley Clare Clark Hill PLC (DC) 601 Pennsylvania Ave., NW, Ste. 1000 Washington, DC 20004 (202) 572-8671 Email: cclare@clarkhill.com ATTORNEY TO BE NOTICED
Jay M. Berger Clark Hill PLC (Detroit) 500 Woodward Ave., Ste. 3500 Detroit, MI 48226-3435 (313) 965-8381 Email: jberger@clarkhill.com ATTORNEY TO BE NOTICED
Michael J. Pattwell Clark Hill PLC (Lansing) 212 E Grand River Ave. Lansing, MI 48906 (517) 318-3043 Email: mpattwell@clarkhill.com ATTORNEY TO BE NOTICED
represented by Michael H. Perry Fraser Trebilcock Davis & Dunlap PC (Lansing) 124 W Allegan, Ste. 1000 Lansing, MI 48933 (517) 377-0846 Email: mperry@fraserlawfirm.com ATTORNEY TO BE NOTICED
Robert Paul Vance Fraser Trebilcock Davis & Dunlap PC (Lansing)

defendant
Stephen Busch individually and in his official capacity

124 W Allegan, Ste. 1000 Lansing, MI 48933 (517) 482-5800 Email: pvance@fraserlawfirm.com ATTORNEY TO BE NOTICED
Thaddeus E. Morgan Fraser Trebilcock Davis & Dunlap PC (Lansing) 124 W Allegan, Ste. 1000 Lansing, MI 48933 (517) 482-5800 Email: tmorgan@fraserlawfirm.com ATTORNEY TO BE NOTICED
represented by Courtney Beth Gilliam Kotz Sangster Wysocki PC 400 Renaissance Ctr., Ste. 3400 Detroit, MI 48243 (313) 259-8300 Email: cciullo@kotzsangster.com ATTORNEY TO BE NOTICED
Dennis Egan Kotz Sangster Wysocki PC 400 Renaissance Ctr., Ste. 3400 Detroit, MI 48243 (313) 259-8300 Email: degan@kotzsangster.com ATTORNEY TO BE NOTICED
Krista A. Jackson Kotz Sangster Wysocki PC 40 Pearl St., NW, Ste. 400 Grand Rapids, MI 49503 (616) 552-6400 Email: kjackson@shrr.com ATTORNEY TO BE NOTICED
Philip A. Grashoff , Jr. Kotz Sangster Wysocki PC 36700 Woodward Ave., Ste. 202 Bloomfield Hills, MI 48304 (248) 646-2073

defendant Patrick Cook individually and in his official capacity
defendant Michael Prysby individually and in his official capacity
defendant Bradley Wurfel individually and in his official capacity
defendant

Email: pgrashoff@kotzsangster.com ATTORNEY TO BE NOTICED
represented by Allison Marie Collins Foster Swift Collins & Smith PC (Lansing) 313 S Washington Sq. Lansing, MI 48933 (517) 371-8124 Email: acollins@fosterswift.com ATTORNEY TO BE NOTICED
Charles E. Barbieri Foster Swift Collins & Smith PC (Lansing) 313 S Washington Sq. Lansing, MI 48933 (517) 371-8100 Email: cbarbieri@fosterswift.com ATTORNEY TO BE NOTICED
represented by Allison Marie Collins (See above for address) ATTORNEY TO BE NOTICED
Charles E. Barbieri (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Bradley Clare (See above for address) ATTORNEY TO BE NOTICED
Jay M. Berger (See above for address) ATTORNEY TO BE NOTICED
Michael J. Pattwell (See above for address) ATTORNEY TO BE NOTICED

Eden Wells individually and in her official capacity
defendant Nick Lyon individually and in his official capacity
defendant Nancy Peeler individually and in her official capacity

represented by Margaret Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED
represented by Margaret Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED
represented by Michael S. Cafferty Michael S. Cafferty & Associates PC 333 West Fort St., Ste. 1400 Detroit, MI 48226 (313) 964-3070 Email: mcaffe@aol.com ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address)

defendant
Robert Scott individually and in his official capacity

TERMINATED: 10/04/2016 ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) TERMINATED: 10/04/2016 ATTORNEY TO BE NOTICED
represented by Mary Chartier-Mittendorf Alane & Chartier PLC 403 Seymour Ave. Lansing, MI 48933 (517) 482-2000 Email: mary@cndefenders.com ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) TERMINATED: 10/04/2016 ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) TERMINATED: 10/04/2016 ATTORNEY TO BE NOTICED

Date Filed 05/31/2016
05/31/2016

# Docket Text
1 NOTICE OF REMOVAL from Michigan Court of Claims case number 16-000071-mm filed by Stephen Busch (Attachments: # 1 Index Of Exhibits, # 2 Exhibit A - Summons to Stephen Busch Issued March 23, 2016, # 3 Exhibit B - Michigan Court of Claims March 23, 2016 Complaint, # 4 Exhibit C - Service of Process on April 29, 2016, # 5 Exhibit D - Copies of All Process, Pleadings and Orders Received by Removing Defendat, # 6 Exhibit E - November 3, 2015 USEPA Memorandum, # 7 Exhibit F - EPA's January 21, 2016 Emergency Order, # 8 Exhibit G - Notice of Filing of Notice of Removal) (Grashoff, Philip) (Entered: 05/31/2016)
FILING FEE PAID re 1 by defendant Stephen Busch in the amount of $400, receipt number 0646-3551036 (Grashoff, Philip) (Entered: 05/31/2016)

06/01/2016 06/02/2016 06/02/2016 06/03/2016 06/03/2016 06/03/2016 06/07/2016 06/07/2016 06/10/2016 06/10/2016 06/13/2016
06/14/2016

2 NOTICE that this case has been assigned Gordon J. Quist (ems) (Entered: 06/01/2016)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Allison Marie Collins on behalf of defendants Patrick Cook, Michael Prysby (Collins, Allison) (Entered: 06/02/2016)
3 DEMAND for TRIAL BY JURY by plaintiff Tamara Nappier (Thomson, Elizabeth) (Entered: 06/02/2016)
(NON-DOCUMENT) ATTORNEY APPEARANCE of William Young Kim on behalf of defendants Gerald Ambrose, Darnell Earley (Kim, William) (Entered: 06/03/2016)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Krista A. Jackson on behalf of defendant Stephen Busch (Jackson, Krista) (Entered: 06/03/2016)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Dennis Egan on behalf of defendant Stephen Busch (Egan, Dennis) (Entered: 06/03/2016)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Thaddeus E. Morgan on behalf of defendant Liane Shekter Smith (Morgan, Thaddeus) (Entered: 06/07/2016)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Robert Paul Vance on behalf of defendant Liane Shekter Smith (Vance, Robert) (Entered: 06/07/2016)
4 PROPOSED STIPULATION and ORDER Regarding Motion for Summary Disposition by Defendants Earley and Ambrose by plaintiff Tamara Nappier (Thomson, Elizabeth) (Entered: 06/10/2016)
5 ORDER granting STIPULATION 4 ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 06/10/2016)
8 STATE COURT FILE received from Michicgan Court of Claims (Attachments: # 1 Attachment 1 - Court Register of Actions, # 2 Attachment 2 - Proof of Service, # 3 Attachment 3 Acknowledgment of Service, # 4 Attachment 4 - Notice of Filing of Notice of Removal, # 5 Attachment 5 - Complete Certificate of Record) (ems) (Entered: 06/14/2016)
6 MOTION to remand or, in the alternative, dismiss the Plaintiff's claims by defendants Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells; (Gambill, Nathan) (Entered: 06/14/2016)

06/14/2016

7 BRIEF in support of MOTION to remand or, in the alternative, dismiss the Plaintiff's claims 6 filed by Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells (Attachments: # 1 Exhibit A) (Gambill, Nathan) Modified text on 6/15/2016 (ems) (Entered: 06/14/2016)

06/16/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Michael H. Perry on behalf of defendant Liane Shekter Smith (Perry, Michael) (Entered: 06/16/2016)

06/28/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Jay M. Berger on behalf of defendants Bradley Wurfel, Daniel Wyant (Berger, Jay) (Entered: 06/28/2016)

06/30/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Courtney Beth Ciullo on behalf of defendant Stephen Busch (Ciullo, Courtney) (Entered: 06/30/2016)

07/01/2016 9 MOTION to dismiss for failure to state a claim by defendants Gerald Ambrose, Darnell Earley; (Kim, William) (Entered: 07/01/2016)

07/01/2016

10 BRIEF in support of MOTION to dismiss for failure to state a claim 9 filed by Gerald Ambrose, Darnell Earley (Kim, William) (Entered: 07/01/2016)

07/11/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Christopher Bradley Clare on behalf of defendants Bradley Wurfel, Daniel Wyant (Clare, Christopher) (Entered: 07/11/2016)

07/12/2016

11 RESPONSE in opposition to MOTION to remand or, in the alternative, dismiss the Plaintiff's claims 6 filed by Tamara Nappier (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4) (Thomson, Elizabeth) (Entered: 07/12/2016)

07/13/2016

12 MOTION for leave to file excess pages MDEQ Employee Defendants' Ex Parte Motion for Leave to File Brief in Excess of the Page Limitation, Certificate of Service by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith; (Jackson, Krista) (Entered: 07/13/2016)

07/15/2016

13 JOINT MOTION to dismiss Plaintiffs' Complaint by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith; (Egan, Dennis) (Entered: 07/15/2016)

07/15/2016

14 JOINT MOTION for leave to file excess pages by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith; (Attachments: # 1 Exhibit A) (Egan, Dennis) (Entered: 07/15/2016)

07/15/2016

15 CERTIFICATE regarding compliance with LCivR 7.1(d) re JOINT MOTION for leave to file excess pages 14 filed by Stephen Busch (Egan, Dennis) (Entered: 07/15/2016)

07/15/2016 16 MOTION to dismiss by defendant Bradley Wurfel; (Berger, Jay) (Entered: 07/15/2016)

07/15/2016

17 BRIEF in support of MOTION to dismiss 16 and Certificate of Service filed by Bradley Wurfel (Attachments: # 1 Index, # 2 Exhibit A Lindsey Smith, Leaked Internal Memo Shows Federal Regulator's Concerns about Lead in Flint's Water, Michigan Radio, 7/13/15, # 3 Exhibit B - E-mail from Bradley Wurfel, MDEQ, to Dennis Muchmore, et al., dated 7/24/15, # 4 Exhibit C - Unpublished Cases Cited in Brief) (Berger, Jay) (Entered: 07/15/2016)

07/15/2016 18 MOTION to dismiss by defendant Daniel Wyant; (Berger, Jay) (Entered: 07/15/2016)

07/15/2016

19 BRIEF in support of MOTION to dismiss 18 and Certificate of Service filed by Daniel Wyant (Attachments: # 1 Index, # 2 Exhibit A Unpublished Cases Cited in Brief) (Berger, Jay) (Entered: 07/15/2016)

07/18/2016

20 ORDER granting 14 motion for leave to file excess pages; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 07/18/2016)

07/18/2016

21 BRIEF in support of JOINT MOTION to dismiss Plaintiffs' Complaint 13 (as filed per Order 20 ) filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (ems) (Entered: 07/19/2016)

07/26/2016

22 REPLY to response to motion 6 (state defendants' reply to plaintiff's response) filed by Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells (Kuhl, Richard) Modified text per request of Chambers on 8/9/2016 (ems) (Entered: 07/26/2016)

07/26/2016

23 CERTIFICATE OF SERVICE by defendants Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells re Reply to Response to Motion 22 [Attorney Richard S. Kuhl added to party Nick Lyon(pty:dft), Attorney Richard S. Kuhl added to party Nancy Peeler(pty:dft), Attorney Richard S. Kuhl added to party Robert Scott(pty:dft), Attorney Richard S. Kuhl added to party Richard Snyder(pty:dft), Attorney Richard S. Kuhl added to party Eden Wells(pty:dft)] (Kuhl, Richard) (Entered: 07/26/2016)

07/29/2016

24 RESPONSE in opposition to MOTION to dismiss for failure to state a claim 9 filed by Tamara Nappier (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Thomson, Elizabeth) (Entered: 07/29/2016)

08/03/2016

25 RESPONSE in opposition to MOTION to dismiss 16 filed by Tamara Nappier (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Thomson, Elizabeth) (Entered: 08/03/2016)

08/03/2016

26 RESPONSE in opposition to MOTION to dismiss 18 filed by Tamara Nappier (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Thomson, Elizabeth) (Entered: 08/03/2016)

08/04/2016

27 RESPONSE in opposition to JOINT MOTION to dismiss Plaintiffs' Complaint 13 filed by Tamara Nappier (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Thomson, Elizabeth) (Entered: 08/04/2016)

08/08/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Patricia A. Stamler on behalf of plaintiff Tamara Nappier (Stamler, Patricia) (Entered: 08/08/2016)

08/12/2016

28 REPLY to response to MOTION to dismiss for failure to state a claim 9 filed by Gerald Ambrose, Darnell Earley (Kim, William) Modified text on 8/15/2016 (ems) (Entered: 08/12/2016)

08/18/2016

29 REPLY to response to motion 18 to dismiss filed by Daniel Wyant (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Brief)) (Clare, Christopher) (Entered: 08/18/2016)

08/18/2016

30 REPLY to response to motion 16 to dismiss filed by Bradley Wurfel (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Brief)) (Clare, Christopher) (Entered: 08/18/2016)

08/19/2016

31 REPLY to response to motion 13 MDEQ Employee Defendants' Motion to Dismiss filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith (Attachments: # 1 Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Egan, Dennis) (Entered: 08/19/2016)

09/22/2016

32 STIPULATION and PROPOSED ORDER to Substitute Counsel by defendants Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells (Attachments: # 1 Proposed Order) (Gambill, Nathan) (Entered: 09/22/2016)

09/22/2016

33 CERTIFICATE OF SERVICE by defendants Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells re STIPULATION and PROPOSED ORDER to Substitute Counsel by defendants Nick Lyon,

Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells 32 (Gambill, Nathan) (Entered: 09/22/2016)

09/22/2016

34 STIPULATION and PROPOSED ORDER to Substitute Counsel for Nancy Peeler by defendants Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells (Attachments: # 1 Proposed Order) (Gambill, Nathan) (Entered: 09/22/2016)

09/22/2016

35 CERTIFICATE OF SERVICE by defendants Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells re STIPULATION and PROPOSED ORDER to Substitute Counsel for Nancy Peeler by defendants Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells 34 (Gambill, Nathan) (Entered: 09/22/2016)

09/22/2016

36 AMENDED CERTIFICATE OF SERVICE by defendants Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells re STIPULATION and PROPOSED ORDER to Substitute Counsel by defendants Nick Lyon, Nancy Peeler, Robert Scott, Richard Snyder, Eden Wells 32 (Gambill, Nathan) Modified text on 9/23/2016 (ems). (Entered: 09/22/2016)

10/04/2016

37 ORDER granting STIPULATION 32 to substitute counsel; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 10/04/2016)

10/04/2016

38 ORDER granting STIPULATION 34 to substitute counsel; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 10/04/2016)

10/04/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Michael S. Cafferty on behalf of defendant Nancy Peeler (Cafferty, Michael) (Entered: 10/04/2016)

10/06/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Todd R. Mendel on behalf of defendant Richard Snyder (Mendel, Todd) (Entered: 10/06/2016)

10/06/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Morley Witus on behalf of defendant Richard Snyder (Witus, Morley) (Entered: 10/06/2016)

10/06/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Eugene Driker on behalf of defendant Richard Snyder (Driker, Eugene) (Entered: 10/06/2016)

11/01/2016 39 MOTION for leave to file excess pages by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel,

Daniel Wyant; (Attachments: # 1 Proposed Motion for Change of Venue, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G1A, # 9 Exhibit G1B, # 10 Exhibit G1C, # 11 Exhibit G2A, # 12 Exhibit G2B, # 13 Exhibit G2C, # 14 Exhibit G3, # 15 Exhibit G4A, # 16 Exhibit G4B, # 17 Exhibit G4C, # 18 Exhibit G5A, # 19 Exhibit G5B, # 20 Exhibit G5C, # 21 Exhibit G6, # 22 Exhibit H, # 23 Exhibit I, # 24 Exhibit J, # 25 Brief in Support of Motion for Change of Venue, # 26 Exhibit K, # 27 Exhibit L, # 28 Exhibit M, # 29 Exhibit N, # 30 Exhibit O, # 31 Exhibit P, # 32 Exhibit Q, # 33 Exhibit R) (Grashoff, Philip) (Entered: 11/01/2016)

11/02/2016

40 ORDER granting 39 motion for leave to file excess pages; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 11/02/2016)

11/02/2016

41 JOINT MOTION to change venue (as filed per Order 40 ) by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant; (ems) (Entered: 11/03/2016)

11/02/2016

42 BRIEF in support of JOINT MOTION to change venue (as filed per Order 40 ) 41 filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G1A, # 8 Exhibit G1B, # 9 Exhibit G1C, # 10 Exhibit G2A, # 11 Exhibit G2B, # 12 Exhibit G2C, # 13 Exhibit G3, # 14 Exhibit G4A, # 15 Exhibit G4B, # 16 Exhibit G4C, # 17 Exhibit G5A, # 18 Exhibit G5B, # 19 Exhibit G5C, # 20 Exhibit G6, # 21 Exhibit H, # 22 Exhibit I, # 23 Exhibit J, # 24 Exhibit K, # 25 Exhibit L, # 26 Exhibit M, # 27 Exhibit N, # 28 Exhibit O, # 29 Exhibit P, # 30 Exhibit Q, # 31 Exhibit R) (ems) (Entered: 11/03/2016)

11/03/2016

43 CERTIFICATE regarding compliance with LCivR 7.1(d) re JOINT MOTION to change venue (as filed per Order 40 ) 41 filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant (Grashoff, Philip) (Entered: 11/03/2016)

11/08/2016

44 JOINT MOTION to stay Proceedings Pending a Final Decision on Motion to Change Venue--Oral Argument Requested by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant; (Grashoff, Philip) (Entered: 11/08/2016)

11/08/2016

45 BRIEF in support of JOINT MOTION to stay Proceedings Pending a Final Decision on Motion to Change Venue--Oral Argument Requested 44 filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant (Attachments:

# 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Grashoff, Philip) (Entered: 11/08/2016)

11/08/2016

46 CERTIFICATE regarding compliance with LCivR 7.1(d) re JOINT MOTION to stay Proceedings Pending a Final Decision on Motion to Change Venue--Oral Argument Requested 44 filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant (Grashoff, Philip) (Entered: 11/08/2016)

11/09/2016

47 PROPOSED STIPULATION and ORDER Regarding Plaintiff's Response to the MDEQ Defendants' Motion for Change of Venue by plaintiff Tamara Nappier (Thomson, Elizabeth) (Entered: 11/09/2016)

11/10/2016

48 ORDER granting STIPULATION 47 for leave to file excess pages; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 11/10/2016)

11/16/2016

(NON-DOCUMENT) ATTORNEY APPEARANCE of Margaret Bettenhausen on behalf of defendants Nick Lyon, Richard Snyder, Eden Wells (Bettenhausen, Margaret) (Entered: 11/16/2016)

11/16/2016

49 RESPONSE TO JOINT MOTION to change venue (as filed per Order 40 ) 41 filed by Nick Lyon, Richard Snyder, Eden Wells (Bettenhausen, Margaret) (Entered: 11/16/2016)

11/16/2016

50 CERTIFICATE OF SERVICE by defendants Nick Lyon, Richard Snyder, Eden Wells re Response to Motion 49 (Bettenhausen, Margaret) (Entered: 11/16/2016)

11/16/2016

51 RESPONSE in opposition to JOINT MOTION to change venue (as filed per Order 40 ) 41 filed by Tamara Nappier (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3) (Thomson, Elizabeth) (Entered: 11/16/2016)

11/22/2016

52 RESPONSE TO JOINT MOTION to stay Proceedings Pending a Final Decision on Motion to Change Venue--Oral Argument Requested 44 filed by Nick Lyon, Richard Snyder, Eden Wells (Larsen, Zachary) (Entered: 11/22/2016)

11/22/2016

53 PROOF OF SERVICE by defendants Nick Lyon, Richard Snyder, Eden Wells re Response to Motion 52 [Attorney Zachary C. Larsen added to party Nick Lyon(pty:dft), Attorney Zachary C. Larsen added to party Richard Snyder(pty:dft), Attorney Zachary C. Larsen added to party Eden Wells(pty:dft)] (Larsen, Zachary) (Entered: 11/22/2016)

11/22/2016 54 RESPONSE in opposition to JOINT MOTION to stay Proceedings Pending a Final Decision on Motion to Change Venue--Oral Argument

Requested 44 filed by Tamara Nappier (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Thomson, Elizabeth) (Entered: 11/22/2016)

12/02/2016

55 MOTION for leave to file Reply to Plaintiff's Response to Motion to Change Venue, and Certificate of Service, by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant; (Attachments: # 1 Exhibit A) (Grashoff, Philip) (Entered: 12/02/2016)

12/02/2016

56 CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION for leave to file Reply to Plaintiff's Response to Motion to Change Venue, and Certificate of Service, 55 filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant (Grashoff, Philip) (Entered: 12/02/2016)

12/09/2016 57 ORDER granting 55 motion for leave to file; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 12/09/2016)

12/09/2016

58 REPLY to response to motion 41 filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant (Grashoff, Philip) (mg) Modified text on 12/12/2016 (mg). (Entered: 12/12/2016)

01/30/2017

59 NOTICE OF MOTION HEARING re 6 , 9 , 13 , 16 , 18 : oral argument will be heard on 3/2/2017 at 3:00 PM at 499 Federal Building, Grand Rapids, MI before Judge Gordon J. Quist; (Judge Gordon J. Quist, jmt) (Entered: 01/30/2017)

02/15/2017

60 MOTION to supplement Motion to Submit Supplemental Authority by defendants Nick Lyon, Richard Snyder, Eden Wells; (Attachments: # 1 Exhibit 1 - USDC EDMI 10-06-16 Opinion and Order, # 2 Exhibit 2 - 6th Circuit COA - 1-13-2017 Order, # 3 Exhibit 3 - MI COC - 11-2816 Opinion and Order, # 4 Exhibit 4 - MI COC 12-21-16 Opinion and Order) (Gambill, Nathan) Modified text on 2/15/2017 (ems). (Entered: 02/15/2017)

02/15/2017

61 BRIEF in support of MOTION to supplement Motion to Submit Supplemental Authority 60 filed by Nick Lyon, Richard Snyder, Eden Wells (Gambill, Nathan) Modified text on 2/15/2017 (ems). (Entered: 02/15/2017)

02/15/2017

62 CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION to supplement Motion to Submit Supplemental Authority 60 filed by Nick Lyon, Richard Snyder, Eden Wells (Gambill, Nathan) Modified text on 2/15/2017 (ems). (Entered: 02/15/2017)

02/15/2017

63 ORDER granting 60 motion for leave to file supplemental authority; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 02/15/2017)

02/17/2017

64 MEMORANDUM ORDER: (1) CANCELLING ORAL ARGUMENT; and (2) DIRECTING PARTIES TO ADDRESS SUBJECT MATTER JURISDICTION: 3/2/2017 motion hearing is CANCELLED; Plaintiff and MDEQ Employee Defendants to file within 14 days; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 02/17/2017)

02/23/2017 65 PROPOSED ORDER regarding Substitution of Attorney by defendant Gerald Ambrose (Kim, William) (Entered: 02/23/2017)

02/23/2017 66 PROPOSED ORDER regarding Substitution of Attorney by defendant Darnell Earley (Kim, William) (Entered: 02/23/2017)

02/27/2017

67 ORDER granting STIPULATION 65 for substitution of counsel as to Defendant Ambrose; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 02/27/2017)

02/27/2017

68 ORDER granting STIPULATION 66 for substitution of counsel as to Defendant Earley; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 02/27/2017)

02/27/2017

69 JOINT MOTION for leave to file excess pages by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant; (Barbieri, Charles) (Entered: 02/27/2017)

02/27/2017

70 CERTIFICATE regarding compliance with LCivR 7.1(d) re JOINT MOTION for leave to file excess pages 69 filed by Patrick Cook, Michael Prysby (Barbieri, Charles) (Entered: 02/27/2017)

03/01/2017

71 ORDER granting 69 motion for leave to file excess pages; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 03/01/2017)

03/02/2017

72 BRIEF by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel Regarding Subject Matter Jurisdiction (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M) (Barbieri, Charles) (Entered: 03/02/2017)

03/02/2017

73 BRIEF by plaintiff Tamara Nappier Regarding Removal Jurisdiction in Response to this Court's February 17, 2017 Order (ECF No. 64) (Thomson, Elizabeth) (Entered: 03/02/2017)

03/03/2017

74 BRIEF by defendants Nick Lyon, Richard Snyder, Eden Wells Response to Plaintiffs' and MDEQ Defendants' Briefs on Jurisdiction (Gambill, Nathan) (Entered: 03/03/2017)

03/31/2017 75 OPINION REGARDING JURISDICTION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 03/31/2017)

03/31/2017

76 ORDER OF REMAND: case remanded to Michigan Court of Claims; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 03/31/2017)

04/03/2017 77 LETTER, certified copy of remand order and docket sheet sent to Michigan Court of Claims (slk) (Entered: 04/03/2017)

04/06/2017

78 JOINT NOTICE OF APPEAL re 76 , 75 by defendants Patrick Cook, Michael Prysby, Stephen Busch, Liane Shekter Smith, Daniel Wyatt, Bradley Wurfel (Barbieri, Charles) Modified text and filers on 4/7/2017 (ems). (Entered: 04/06/2017)

04/10/2017 79 LETTER FROM CCA regarding appeal 78 indicating appeal has been docketed as USCA case number 17-1401 (ems) (Entered: 04/11/2017)

04/10/2017

CASE NUMBER 17-1401 assigned by the Sixth Circuit to appeal 78 (mkc) (Entered: 04/11/2017)

04/11/2017 80 ACKNOWLEDGMENT from Michigan Court of Claims, of receipt of remanded case (slk) (Entered: 04/11/2017)

04/14/2017

81 JOINT MOTION to stay Order Remanding Case Pending Appeal by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant; (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Barbieri, Charles) (Entered: 04/14/2017)

04/14/2017

82 CERTIFICATE regarding compliance with LCivR 7.1(d) re JOINT MOTION to stay Order Remanding Case Pending Appeal 81 filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant (Barbieri, Charles) (Entered: 04/14/2017)

04/18/2017 83 ORDER DENYING MOTION 81 TO STAY; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 04/18/2017)

04/24/2017

RECEIPT: USCA appeal fee re 78 by defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant in the amount of $505, receipt number GR054939 (anm) (Entered: 04/24/2017)

04/16/2018 84 SLIP OPINION of USCA re appeal 78 affirming the District Court's decision; mandate to issue (ems) (Entered: 04/16/2018)

05/08/2018 85 MANDATE of USCA re appeal 78 (ems) (Entered: 05/08/2018)

07/18/2018

86 LETTER from Supreme Court of the United States that a petition for writ of certiorari was filed by defendant Stephen Busch on July 11, 2018 and assigned case number 18-83 re Notice of Appeal 78 (ems) (Entered: 07/20/2018)

10/01/2018

87 LETTER from Supreme Court of the United States that the petition for writ of certiorari is denied re Notice of Appeal 78 (ems) (Entered: 10/03/2018)

 
 Case 1:16-cv-00636-GJQ-PJG ECF No. 1 filed 05/31/16 PageID.1 Page 1 of 15

UNITED STATES DISTRICT COURT IN THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TAMARA NAPPIER, et al., Plaintiffs,
v. RICHARD SNYDER, et al.,
Defendants.

Case No: Court of Claims Case No. 16-000071-MM CLASS ACTION

NOTICE OF REMOVAL TO FEDERAL COURT AND CONSENT TO REMOVAL
Defendant Stephen Busch (“Removing Defendant”) hereby removes this action from the Michigan Court of Claims to the United States District Court for the Western District of Michigan pursuant to 28 U.S.C. §§ 1441, 1442 and 1446. In support of this Notice of Removal, the Removing Defendant states as follows:
BACKGROUND 1. On March 23, 2016, Plaintiffs filed this class action against the Removing Defendant, and Patrick Cook (“Cook”), Michael Prysby (“Prysby”), Liane Shekter Smith (“Shekter Smith”), Bradley Wurfel (“Wurfel”) and Daniel Wyant (“Wyant”) (collectively “MDEQ Employee Defendants”), among others, in the Michigan Court of Claims. Plaintiffs have sued the Removing Defendant and MDEQ Employee Defendants in both their official and individual capacities. A copy of the Summons to Stephen Busch is attached as Exhibit A and Complaint is attached as Exhibit B. 2. Removing Defendant is a current employee of MDEQ on an unpaid leave of absence. The MDEQ Employee Defendants are also current or former employees of the

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Michigan Department of Environmental Quality (“MDEQ”). All are being sued for alleged actions and omissions that occurred during the course and scope of their employment. Defendant Cook was a Water Treatment Specialist assigned to the MDEQ’s Lansing Community Drinking Water Unit. Defendant Prysby was the District 11 Engineer for the MDEQ's Office of Drinking Water and Municipal Assistance (“ODWMA”). Removing Defendant was the MDEQ’s ODWMA Lansing District Supervisor. Defendant Shekter-Smith was Chief of MDEQ’s ODWMA. Defendant Wurfel was the MDEQ’s Director of Communications, and Defendant Wyant was the MDEQ Director.
3. Removing Defendant accepted Service of Process on April 29, 2016, Exhibit C. This Notice of Removal is filed within thirty (30) days of service upon the Removing Defendant. Due to the running of the thirty (30) day period during the course of the Memorial Day holiday, this Notice of Removal is timely under 28 U.S.C. § 1446(b).
4. Only Count I of the Complaint applies to the Removing Defendant and the MDEQ Employee Defendants. Count I alleges that the Removing Defendant and the MDEQ Employee Defendants, during the course and scope of their employment with the MDEQ, were purportedly negligent and/or grossly negligent in their alleged decision-making and oversight of the City of Flint’s monitoring, testing, and treatment of Flint’s drinking water under the federal Safe Drinking Water Act (“SDWA”), 42 U.S.C. 300f et seq., and the United States Environmental Protection Agency’s (“EPA’s”) Lead and Copper Rule (“LCR”), 40 C.F.R. Part 141 Subpart I. Exhibit B, ¶¶ 75-77.
5. Plaintiffs have not demanded a jury in this class action. 6. As more fully described below, Plaintiffs’ claims are removable to this Court by Removing Defendant (joined in and consented to by the former or current MDEQ employee
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Defendants) under the federal officer removal statute (28 U.S.C. § 1442), and alternatively under the substantial federal question doctrine (28 U.S.C. § 1441).
7. In accordance with 28 U.S.C. § 1446(d), a notice of filing this Notice of Removal and Consent to Removal and a copy of this Notice of Removal are being filed with the Michigan Court of Claims. A copy of both notices will be served upon Plaintiffs.
8. Copies of all process, pleadings, and orders received by Removing Defendant other than the Complaint are attached, Exhibit D. The Complaint is attached as Exhibit B.
9. By removing this action, Removing Defendant and the joining MDEQ Employee Defendants do not waive any defenses, objections, or motions available under state or federal law.
REMOVAL UNDER 28 U.S.C. § 1442 10. The federal officer removal statute permits a defendant to remove a state-court action brought against “any [federal] agency or any [federal] officer (or any person acting under that officer) . . . for or relating to any act under color of such office . . . .” 28 U.S.C. § 1442. 11. “The federal officer removal statute is not ‘narrow’ or ‘limited.’ At the very least, it is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.” Willingham v. Morgan, 395 U.S. 402, 406-07 (1969). 12. A defendant who is not a federal officer or federal agency must satisfy three elements to remove under the federal officer statute: (1) the defendant is a person acting under a federal officer or agency; (2) the defendant performed the actions for which the defendant is being sued under the direction of a federal officer or agency; and (3) the defendant has raised a colorable federal defense. See, e.g., Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th Cir. 2010) (citation omitted); Mesa v. California, 489 U.S. 121, 138-39 (1989).
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13. In this case, the Removing Defendant satisfies all three elements of the federal officer removal statute.
I. The Removing Defendant is a Person Acting Under Federal Officers and Agencies.
14. The Removing Defendant is a “person,” 1 U.S.C. § 1, whose authority to regulate Michigan’s public drinking water systems is derived from the SDWA, LCR, and other EPA regulations, and whose actual regulation of Michigan’s public drinking water systems occurred under the EPA’s direction, control, and close supervision.
15. As more thoroughly explained in Section II below, EPA has delegated authority to MDEQ’s ODWQMA to act on its behalf and regulate public drinking water systems in the State of Michigan. Removing Defendant’s alleged actions occurred while fulfilling these duties. Removing Defendant was standing in the shoes of EPA and taking actions which EPA would otherwise have been required to take, and his alleged actions were taken pursuant to EPA’s oversight and guidance.
II. The Removing Defendant’s Actions For Which He Is Being Sued Were Performed Under the Direction of a Federal Officer or Agency.
16. The SDWA directs the EPA to promulgate national primary drinking water standards and to regulate public water systems. See 42 U.S.C. § 300f et seq.
17. Specifically, with respect to the regulation of lead and copper, the EPA, in 1991, promulgated national primary drinking water regulations (“NPDWRs”) for controlling lead and copper in public drinking water. 56 Fed. Reg. 26460 (June 7, 1991). These regulations are known as the “Lead and Copper Rule” or “LCR” and are found at 40 C.F.R. §§ 141.80, et seq. The EPA has since amended the LCR several times, most notably in 2000 and 2007. See, e.g., 65 Fed. Reg. 1950 (Jan. 12, 2000); 72 Fed. Reg. 57782 (Oct. 10, 2007).
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18. The EPA’s LCR applies to public water systems such as the City of Flint. See 40
C.F.R. § 141.80(a). Generally speaking, it requires those water systems to monitor the levels of
lead and copper at consumers’ taps and, under a number of different circumstances, requires
those systems to employ various treatment techniques such as corrosion control treatment, source
water treatment, lead service line replacement, and public education. 40 C.F.R. §§ 141.80(b) – (h).1
19. The SDWA authorizes the EPA to delegate primary enforcement responsibility
for public drinking water systems to states where the EPA determines, inter alia, that the state:
(1) has adopted drinking water regulations that are no less stringent than the national primary
drinking water regulations promulgated by the EPA; (2) has adopted and is implementing
adequate procedures for the enforcement of such State regulations, including conducting such
monitoring and making such inspection as required by the EPA; and (3) will keep such records
and make such reports with respect to its activities as required by the EPA. See 42 U.S.C. § 300g-2; see also 40 C.F.R. §§ 142.10, 142.11.2
20. The SDWA, however, reserves tremendous oversight authority to the EPA,
including mandatory EPA intervention in the form of notifications, advice, technical assistance,
and, failing timely and sufficient state action, enforceable orders and inspections to bring water
systems into compliance with federal standards. See 42 U.S.C. § 300g-3; see also 40 C.F.R. §§
141.82(i), 141.83(b)(7), 142.19, 142.30, and 142.34.
1 Numerous scholars and practitioners have characterized the LCR as complex and recognized that many of its provisions are confusing and ambiguous. Most recently, the EPA and its Office of General Counsel determined, after several months of review, that “. . . there are differing possible interpretations of the LCR with respect to how the rule’s optimal corrosion control treatment procedures [applied] which may have led to some uncertainty with respect to the Flint water system.” Exhibit E. 2 EPA first granted the Michigan Department of Public Health primary enforcement responsibility over the regulation of Michigan’s public drinking water systems in 1977. 42 Fed. Reg. 44835 (Sept. 7, 1977).
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21. By way of example, each state with primary enforcement responsibility is required to submit to EPA detailed quarterly and annual reports regarding the regulation of public drinking water systems including detailed information regarding each system’s compliance with the treatment techniques for lead and copper. See 40 C.F.R. §§ 142.15, 142.19. All of these reports are publicly available and the EPA is required to, at least annually, review each state’s submittals for compliance with EPA requirements. 40 C.F.R. §§ 142.17(a)(1).
22. If the EPA determines that a state no longer meets its requirements, the EPA is required to initiate proceedings to withdraw primacy approval. See 40 C.F.R. §§ 142.17(a)(2). If the EPA believes a state has abused its discretion in making corrosion control or source water treatment determinations in a substantial number of cases or in cases affecting a substantial population, the EPA may issue an order establishing federal treatment requirements for a public water system. See 40 C.F.R. § 142.19(a) (emphasis added).
23. By way of further example whenever a state revises its approved primacy program in response to new or revised federal regulations, including those regulations which relate to lead and copper, the state must submit a request to the Administrator for approval of the program revision. See 40 C.F.R. §§ 142.12(a)(1), 142.16(d). And, before approving the revisions, the EPA must publish notice and provide an opportunity for a public hearing. See 40 C.F.R. §§ 142.13.
24. By way of even further example, whenever the EPA finds that a public water system is not in compliance with any primary drinking water regulation, the EPA “shall provide advice and technical assistance to such State and public water system as may be appropriate to bring the system into compliance by the earliest feasible time.” 40 C.F.R. §§ 142.30.
25. Recognizing the complexity and ambiguity of the LCR, the EPA’s commentary to its 2007 amendments to the LCR states that the EPA will provide guidance to help systems
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identify source water changes that could impact optimal corrosion control. 72 Fed. Reg. 57782,
57789 (Oct. 10, 2007). The EPA has responded to this mandate by issuing at least eleven major
guidance documents, directing all aspects of a state’s implementation of the LCR:
 Lead and Copper Rule Guidance Manual: Volume I: Monitoring (Sept. 1991);  Lead and Copper Rule Guidance Manual: Volume II: Corrosion Control
Treatment (EPA 811-B-92-002) (Sept. 1992);  Guidance Manual for Selecting Lead and Copper Control Strategies (Jan. 1997);  How to Determine Compliance with Optimal Water Quality Parameters as Revised
by the Lead and Copper Minor Revisions (EPA 815-R-99-019) (Feb. 2001);  Lead and Copper Monitoring and Reporting Guidance for Public Water Systems,
EPA-816-R-02-009 (Feb. 2002);  Lead in Drinking Water Regulation: Public Education Guidance for Community
Water Systems, EPA 816-R-02-010 (June 2002);  Revised Guidance Manual for Selecting Lead and Copper Control Strategies
(March 2003);  Lead and Copper Rule: 2007 Short-Term Regulatory Revisions and Clarifications;
State Implementation Guidance, EPA 816-R-08-009 (June 2008);  Implementing the Lead Public Education Provision of the Lead and Copper Rule:
A Guide for Community Water Systems (June 2008);  Lead and Copper Rule: Monitoring and Reporting Guidance for Public Water
Systems, EPA 816-R-10-004 (March 2010); and  Optimal Corrosion Control Treatment Evaluation Technical Recommendations for
Primacy Agencies and Public Water Systems (March 2016). 26. EPA’s direction and control over the MDEQ’s implementation of the SDWA and
LCR is further demonstrated by the EPA’s January 21, 2016 emergency order, whereby the EPA
began monitoring and testing the Flint water system and ordered the MDEQ to take specific
actions related to Flint. Exhibit F.
27. The Removing Defendant and the MDEQ Employee Defendants are being sued
for allegedly failing to adhere to federal law, due to their alleged lack of compliance with the
SDWA and LCR’s detailed monitoring, testing, sampling, and notification requirements in
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overseeing the Flint water system, as administered by the Removing Defendant and the MDEQ Employee Defendants under the EPA’s direction and control.
28. The court in Clio Convalescent Center v. Mich. Dept. of Consumer and Industry Services, 66 F. Supp. 2d 875, (E.D. Mich. 1999) (O’Meara, J.), held that a Michigan agency was entitled to federal officer removal under 28 U.S.C. § 1442, where the state agency was sued for “implementing federal regulations pursuant to its obligation under statutes, regulations, and/or contract, [and] was acting as [the federal agency’s] agent.” Id. at 877.
29. Similar to the state agency in Clio, the Removing Defendant is entitled to federal officer removal because the MDEQ functions as an agent of the EPA to implement the SDWA and LCR. The MDEQ has entered into an agreement with and been delegated authority by EPA to assure compliance with the SDWA and LCR, has the authority to investigate whether federal law has been violated by a public water system, and is obligated to forward monitoring results, consumer confidence reports, and SDWA and LCR violations to the EPA. Id. at 876; see also City of St. Louis v. Velsicol Chemical Corp., 708 F. Supp. 2d 632, 661-662 (E.D. Mich. 2010) (holding that federal officer removal was proper where defendant acted under EPA direction and control and assisted the EPA in performing tasks the EPA would otherwise be obligated to perform).
30. The Removing Defendant is, therefore, properly characterized as the EPA’s agent, acting under the EPA’s direction and control to assist with implementing and enforcing the federal SDWA and LCR. Furthermore, the Removing Defendant’s alleged actions and inactions in this case were not only taken pursuant to EPA’s LCR, guidance documents, training manuals, quarterly and annual reviews, but they were also guided by repeated written and verbal dialogue and interaction with a number of EPA officers who advised and oversaw the MDEQ’s regulation of the City of Flint water system.
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III. Removing Defendant Has Raised a Colorable Federal Defense. 31. The Removing Defendant has colorable federal defenses including: preemption of Plaintiffs’ claims by the SDWA (Matoon v. Pittsfield, 980 F.2d 1 (1st Cir. 1992)); qualified immunity (Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008) (holding that government officials sued in their individual capacity can be shielded from liability by qualified immunity); derivative discretionary function immunity (Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 648-49 (6th Cir. 2015); and a demonstration that he satisfied his delegated obligations to enforce the federal SDWA (Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1429 (11th Cir. 1996) (“The scope of our inquiry here is only whether Smith has advanced a colorable federal defense (including an assertion that he complied with all his federal law obligations), not whether his defense will be successful.”) (citing Mesa v. California, 489 U.S. 121, 133 (1989)). 32. Venue is proper in this district under 28 U.S.C. § 1442(a), because this case is pending in the Michigan Court of Claims District 3 (Grand Rapids), which is located in the Western District of Michigan, Southern Division. 33. For all these reasons, removal is proper under 28 U.S.C. § 1442.
REMOVAL UNDER 28 U.S.C. § 1441 34. A federal court must generally determine if a claim arises under federal law based on the well-pleaded complaint, but substantial federal question jurisdiction is an exception to the well-pleaded complaint rule. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007). The substantial federal question doctrine provides that “a state law cause of action may actually arise under federal law, even though Congress has not created a private right of action, if the vindication of the right under state law depends on the validity, construction, or effect of federal law.” Id. at 565 (internal citations omitted).
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35. Under the substantial federal question doctrine, federal jurisdiction exists when a “state-law claim necessarily raises a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing a congressionally approved balance of federal and state judicial responsibilities.” Grable v. Sons Metal Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308, 314 (2005).
36. At the heart of Plaintiffs’ Complaint are allegations that the drinking water provided to Flint residents was not safe and did not meet federal water quality standards, specifically standards related to lead. These and other Defendants were allegedly grossly negligent or negligent by failing to require, ensure, implement, and advise the public regarding compliance with federal water quality standards and corrosion control requirements.
37. The SDWA governs drinking water quality and provides detailed regulations related to water quality standards, monitoring, and testing requirements. The LCR specifically regulates lead in drinking water and provides detailed standards, monitoring, and testing protocols related to lead in drinking water. For additional information on the SDWA and LCR, see above ¶¶ 17-25.
38. Plaintiffs’ Complaint both specifically3 and implicitly4 alleges that these Defendants had duties to Plaintiffs based on the federal SDWA and LCR standards, regulations, monitoring, and testing requirements that were purportedly not followed and give rise to Plaintiffs’ various causes of action.
39. Plaintiffs’ claims are inextricably intertwined with the construction, interpretation, and effect of the SDWA and the LCR. If the Removing Defendant and former or current MDEQ
3 Exhibit B ¶¶ 12, 21, 22, 39, 40, 55, 69, 70. 4 Exhibit B, ¶¶ 1, 11, 13, 15, 16, 18, 27, 36, 37, 38, 41, 42, 44, 45, 46, 47, 50, 54, 56, 58, 59, 61,
68, 73, 75, 81.
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Employee Defendants establish that these federal laws and regulations were not violated, Plaintiffs’ claim against these Defendants are defeated.
40. Plaintiffs’ gross negligence or negligence claims depend on a question of federal law, primarily whether the Removing Defendant and the other Defendants complied with the SDWA and LCR during their oversight of the Flint water system. There are no alternative theories supporting gross negligence or negligence that do not implicate the SDWA and/or LCR, as the Removing Defendant is being sued for carrying out the EPA’s duty, as delegated to Removing Defendant, to ensure that public water systems such as Flint comply with the SDWA and LCR.
41. This is not a garden variety state law tort action that merely references a federal law or statute. This litigation stems from a unique situation involving individual governmental defendants implementing federal lead regulations, and removal of this action will not open the door to removal of a vast number of purely state law claims.
42. Whether these Defendants violated the SDWA and LCR is disputed. The EPA has admitted that the LCR is ambiguous and subject to different possible interpretations and constructions when applied to this particular situation. As recently as November 3, 2015, the Director of EPA’s Office of Drinking Water wrote a memo to the EPA’s Regional Water Division Directors stating: “After reviewing the rule with our Office of General Counsel, it appears that there are differing possible interpretations of the LCR with respect to how the rule’s optimal corrosion control treatment procedures apply to this situation, which may have led to some uncertainty with respect to the Flint water system.” Exhibit E.
43. There is a substantial need for uniform interpretation of the SDWA and LCR as it applies to Flint, and the other 155,000 public water systems subject to the SDWA and LCR, that provide water to almost all Americans across the United States.
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44. As the Court pointed out in Harding-Wright v. D.C. Water and Sewer Auth., 350 F. Supp. 2d 102, 107 (D.D.C. 2005), “federal jurisdiction over a state law claim is appropriate when necessary to protect against inconsistent interpretation of a federal statutory regime.” There is a substantial federal interest in resolving the disputed interpretations and effect of the SDWA and LCR to ensure accurate, consistent application of the federal statutes and regulations across the nation and across the various lawsuits relating to Flint's drinking water.
45. This Court’s exercise of jurisdiction over this case will not disturb a congressionally-approved balance of federal and state judicial responsibilities. Congress has placed the regulation of drinking water within the federal realm through promulgation of the SDWA, and via the EPA’s federal oversight, direction, and authority over the SDWA regulatory scheme.
46. To the extent some of Plaintiffs’ claims do not involve a substantial federal question, this Court has supplemental jurisdiction over Plaintiff’s state law claims under 28 U.S.C. § 1367(a).
47. Venue is proper in this district under 28 U.S.C. § 1441, because this case is pending in the Michigan Court of Claims District 3 (Grand Rapids) which is located in the Western District of Michigan, Southern Division.
48. A copy of the Notice of Filing of the Notice of Removal is attached hereto as Exhibit G.
WHEREFORE, Removing Defendant, Stephen Busch, respectfully requests that this action proceed in this Court as an action properly removed.
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Case 1:16-cv-00636-GJQ-PJG ECF No. 1 filed 05/31/16 PageID.13 Page 13 of 15 Respectfully submitted, KOTZ SANGSTER WYSOCKI, P.C. Attorneys for Stephen Busch By: /s/ Philip A. Grashoff, Jr.
Philip A. Grashoff, Jr. (P14279) 36700 Woodward Ave., Suite 202 Bloomfield Hills, MI 48304 (248) 646-1050 pgrashoff@kotzsangster.com Dated: May 31, 2016
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ALL MDEQ EMPLOYEE DEFENDANTS CONSENT TO AND JOIN IN THIS JOINT NOTICE OF REMOVAL

Consent to this Notice of Removal by all previously served Defendants is not procedurally required. Removal pursuant to 28 U.S.C. § 1442 does not require consent from all other properly joined and served defendants. Additionally, since this Notice of Removal is not based solely on 28 U.S.C. § 1441, consent of all other properly joined and served defendants is not required. While consent is not required to meet the procedural requirements for removal, Removing Defendant has sought the consent of all other joined and served MDEQ employee Defendants. The following Defendants have consented and join in the Removal: Daniel Wyant, Liane Shekter Smith, Patrick Cook, Michael Prysby, and Bradley Wurfel.
Therefore, removal under 28 U.S.C. § 1441 is permitted pursuant to 28 U.S.C. § 1446(b)(2)(b), because all MDEQ Employee Defendants implicated in Count I that have been served in this lawsuit consent and join in Removing Defendant’s Notice of Removal, as indicated by their signatures below.
WHEREFORE, the below designated Defendants respectfully request that this Court exercise jurisdiction over this action and grant such other relief as this Court deems proper.

Respectfully Submitted,

Dated: May 31, 2016

By: /s/ Philip A. Grashoff Jr. P14279 Attorney for Defendant Stephen Busch
By: /s/ Michael J. Pattwell P72419 (w/permission) Attorney for Defendants Daniel Wyant and Bradley Wurfel
By: /s/ Thaddeus E. Morgan P47394 (w/permission) Fraser Trebilcock Davis & Dunlap PC Attorney for Defendant Liane Shekter Smith
By: /s/ Charles E. Barbieri P31793 (w/permission) Foster Swift Collins & Smith, P.C. Attorney for Defendants Patrick Cook and Michael Prysby

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1808909

Case 1:16-cv-00636-GJQ-PJG ECF No. 1 filed 05/31/16 PageID.15 Page 15 of 15

CERTIFICATE OF SERVICE
I hereby certify that on May 31, 2016, I electronically filed the foregoing with the Clerk of the Court using the ECF system. A copy of the foregoing will be served upon all parties of record by regular mail.

Dated: May 31, 2016

s/ Philip A. Grashoff, Jr. Philip A. Grashoff, Jr. (P14279) Kotz Sangster Wysocki, P.C. 36700 Woodward Ave., Suite 202 Bloomfield Hills, MI 48304 (248) 646-1050 pgrashoff@kotzsangster.com

15
1808909

 
 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TAMARA NAPPIER, as mother and next fried of T.N., a minor child, on behalf of T.N. and a class of all others similarly situated,
Plaintiff,
v.
RICHARD SNYDER, et al.,
Defendants. /

Case No. 1:16-CV-636 HON. GORDON J. QUIST

OPINION REGARDING JURISDICTION Plaintiff filed this putative class action case in the Michigan Court of Claims on March 23, 2016, against Richard Snyder, Nick Lyon, Eden Wells, Nancy Peeler, and Robert Scott (collectively the State Defendants); Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, and Bradley Wurfel (collectively the MDEQ Defendants); and Darnell Early and Gerald Ambrose. Plaintiff alleged a single substantive count of gross negligence and/or negligence against all Defendants arising out of the water crisis in Flint, Michigan. On May 31, 2016, Defendant Busch removed the case to this Court, alleging that removal was proper under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), and, alternatively, under the substantial federal question doctrine arising from 28 U.S.C. § 1441. On February 17, 2017, the Court entered an order cancelling oral argument on Defendants’ motions to dismiss and directing the parties to address the Court’s concerns regarding subject matter jurisdiction. Pursuant to the February 17, 2017, Order, the MDEQ Defendants, Plaintiff, and the State Defendants have filed responses. Having read the parties’ responses, the Court concludes that the MDEQ Defendants

were not “acting under” any federal officer or agency when they took the actions set forth in the complaint, and thus were not entitled to remove this case under the federal-officer removal statute. In addition, the Court concludes that it does not have jurisdiction under the substantial federal question doctrine.1 Accordingly, the Court will remand this case to the Michigan Court of Claims.
I. BACKGROUND2 In 2014, as a cost-saving measure, the City of Flint switched its water source from the City of Detroit water system to the Flint River. (ECF No. 1-3 at PageID.43.) In connection with the switch, officials discontinued corrosion-control treatments required by the Environmental Protection Agency’s (EPA) Lead and Copper Rule (LCR) and added ferric chloride, which increased the corrosivity of the Flint River water, to reduce formation of trihalomethanes from organic matter. (Id.) Plaintiff, the mother and next friend of T.K., a minor, alleges that Defendants knew that the water pumped from the Flint River was toxic and not fit for consumption, but nonetheless assured the public that it was safe to drink. (Id.) Plaintiff further alleges that, in spite of Defendants’ assurances, T.K. experienced an elevated blood lead level and suffered permanent brain damage as a result of drinking water from the Flint River. (Id. at PageID.45.) Plaintiff alleges that Defendants were grossly negligent and/or negligent in participating in, or facilitating, the switch to Flint River water as the source of the City of Flint’s water. Plaintiff seeks to represent a class of all individuals who were minors, resided in the City of Flint, and suffered brain damage as a result of ingesting water supplied from the Flint River. (Id. at PageID.41.)
1Although the MDEQ Employee Defendants request oral argument, the Court concludes that oral argument will not assist the Court in deciding the issue, which has been fully briefed by the MDEQ Employee Defendants.
2The following facts are taken from the complaint.
2

The MDEQ Defendants are current and former employees of the MDEQ who played a part in the City of Flint’s change of water sources.
Defendant Shekter Smith was, until October 19, 2015, the Chief of the Office of Drinking Water and Municipal Assistance for the MDEQ. Plaintiff alleges that Shekter Smith “knowingly participated in, approved of, and caused the decision to transition Flint’s water source to a highly corrosive, inadequately studied and treated alternative,” and made false statements that led to public consumption of the contaminated water. (Id. at PageID.47, ¶ 38.)
Defendant Wyant was, until December 29, 2015, the Director of the MDEQ. Plaintiff alleges that Wyant “participated in, directed, and oversaw the MDEQ’s repeated violations of federal water quality laws, the failure to properly study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders.” (Id., ¶ 39.) Plaintiff alleges that Defendant Wyant also made false statements that led to continued public consumption of contaminated water. (Id.)
Defendant Busch was and remains the District Supervisor assigned to the Lansing District Office of the MDEQ. Plaintiff alleges that Busch “participated in MDEQ’s repeated violation of federal water quality laws, the failure to properly study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders.” (Id. at PageID.47–48, ¶ 40.)
Defendant Cook was and remains a Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of the MDEQ. Cook is also the manager of that unit and “participated in[,] approved, and/or assented to the decision to allow Flint’s water to be delivered to residents without corrosion control or proper study and/or testing.” (Id. at PageID.48, ¶ 41.)
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Defendant Prysby was and remains an Engineer assigned to MDEQ District 11 (Genesee County). Prysby “participated in, approved, and/or assented to the decision to switch to the water source, failed to properly monitor and/or test the Flint River water, and provid[ed] assurances . . . that the Flint River water was safe when he knew or should have known those statements to be untrue.” (Id., ¶ 42.)
Defendant Wurfel was, until December 29, 2015, the MDEQ’s Director of Communications. Plaintiff alleges that Wurfel was “the MDEQ’s principal means of public deception, repeatedly denying the increasingly obvious disaster as it unfolded.” (Id. at PageID.49, ¶ 43.)
II. REMOVAL BURDEN MDEQ Defendant Busch removed the case to this Court pursuant to the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), alleging that pursuant to the federal Safe Water Drinking Act (SDWA), 42 U.S.C. § 300f et seq. and the EPA’s LCR, the EPA has delegated authority to the MDEQ to act on its behalf and regulate public water drinking systems and that Defendant Busch took the actions alleged by Plaintiff in the course of fulfilling his duties delegated by the EPA to the MDEQ. (ECF No. 1 at PageID.4.) Defendant Busch alleged that he “was standing in the shoes of the EPA and taking actions which EPA would have otherwise been required to take, and his alleged actions were taken pursuant to EPA’s oversight and guidance.” (Id.) Defendant Busch also alleged that this Court has jurisdiction under 28 U.S.C. § 1441 because “Plaintiffs’ [sic] claims are inextricably intertwined with the construction, interpretation, and effect of the SDWA and the LCR.” (Id. at PageID.10.) The remaining MDEQ Defendants join in Busch’s notice of removal. As the removing parties, the MDEQ Defendants have the burden of establishing this Court’s jurisdiction. Jerome-Duncan, Inc. v. Auto-By-Tel, LLC, 176 F.3d 904, 907 (6th Cir. 1999). Any
4

doubts regarding “the propriety of removal are resolved in favor of remand.”3 Smith v. Nationwide
Prop. & Cas. Ins. Co., 505 F.3d 401, 405 (6th Cir. 2007) (quoting Jacada, Ltd. v. Int’l Mktg.
Strategies, Inc., 401 F.3d 701, 704 (6th Cir. 2005) (internal quotation marks omitted)).
III. DISCUSSION
A. Removal Under § 28 U.S.C. § 1442(a)(1)
The federal-officer removal statute provides as follows:
(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
28 U.S.C. § 1442(a)(1).
The purpose of the statute is to protect federal officers from being subjected to legal
proceedings in hostile state courts based on the enforcement of federal laws “by providing these
federal officials with an unbiased federal forum.” Brown & Williamson Tobacco Corp. v. Wigand,
913 F. Supp. 530, 533–34 (W.D. Ky. 1996); see also N. Colo. Water Conservancy Dist. v. Bd. of
Cnty. Comm’rs of the Cnty. of Grand, 482 F. Supp. 1115, 1117 (D. Colo. 1980) (“The purpose of
28 U.S.C. § 1442(a)(1) is to protect federal officers from state interference with the exercise of
3Suggesting that the answer to the instant jurisdictional question is obvious, the MDEQ Defendants state that “[i]t is telling that Plaintiffs [sic] did not object to removal, given the authority that MDEQ Defendants presented.” (ECF no. 72 at PageID.6815.) But Plaintiff’s failure to object does not relieve this Court of its obligation to examine its jurisdiction in this case. See Kusens v. Pascal Co., 448 F.3d 349, 359 (6th Cir. 2006) (“It is well-established that the federal courts are under an independent obligation to examine their own jurisdiction.”). Moreover, in her response, Plaintiff states that “she is not in a position to opine regarding the MDEQ Defendants’ factual basis for removal.” (ECF No. 73 at PageID.7387.) Thus, the Court infers nothing from Plaintiff’s failure to object.
5

federal authority.”). As the Supreme Court has explained, the history of the federal-officer removal statute is rooted in customs and revenue statutes that met with fierce opposition from the States. Willingham v. Morgan, 395 U.S. 402, 405, 89 S. Ct. 1813, 1815 (1969). The Willingham Court noted that the first such removal provision was included in an 1815 customs statute aimed at “enforc[ing] an embargo on trade with England over the opposition of the New Englant [sic] States, where the War of 1812 was quite unpopular.” Id. The removal provision prevented States from interfering with enforcement of the customs statute by allowing federal officers to remove to federal court any civil or criminal proceeding against them based on “any act done ‘under colour’ of the statute.” Id. Similar removal provisions were included in Civil War-era revenue laws, and Congress subsequently extended the protection to all federal officers when it enacted the current provision in 1948. Id. at 405–06, 89 S. Ct. at 1815.
It is true, as the MDEQ Defendants note, that the Supreme Court has observed that “[t]he federal officer removal statute is not ‘narrow’ or ‘limited[,]’ . . . [and] [a]t the very least, it is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.” Id. at 406–07, 89 S. Ct. at 1816 (citation omitted). But, Willingham cited Colorado v. Symes, 286 U.S. 510, 52 S. Ct. 635 (1932), for the quoted proposition, which, the Sixth Circuit has observed, considered a narrower removal statute that “protected only those ‘acting under or by authority of’ federal officers who were themselves ‘acting by authority of any revenue law of the United States.” Ohio State Chiropractic Ass’n v. Humana Health Plan, Inc., 647 F. App’x 619, 622 (6th Cir. 2016). The Sixth Circuit further observed in Humana that “each of the broad interpretations that Humana emphasizes traces to earlier versions of § 1442 that granted the removal power only to individuals enforcing federal customs and revenue laws.” Id. (citing, among others, Arizona v. Manypenny, 451 U.S. 232, 101 S. Ct. 1657 (1981), and Willingham). Thus, the
6

court reasoned, “proper context” showed that the liberal construction recognized in Symes was of limited use in determining whether a private health insurance contractor was entitled to remove under § 1442(a)(1). Id.4
Removing parties, such as the MDEQ Defendants, who are not federal officers must satisfy a three-part test to establish proper removal under § 1442(a)(1). Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th Cir. 2010). First, the removing party must show that “it is a ‘person’ within the meaning of the statute who ‘act[ed] under [a federal] officer.’” Id. (quoting § 1442(a)(1)). Second, the party “must demonstrate that it performed the actions for which it is being sued ‘under color of [federal] office[.]’” Id. (quoting § 1442(a)(1)). Finally, the party must “raise[] a colorable federal defense.” Id. (citing Jefferson Cnty. v. Acker, 527 U.S. 423, 431, 119 S. Ct. 2069 (1999)).
The Supreme Court’s decision in Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 127 S. Ct. 2301 (2007), provides the most useful guide in determining the circumstances under which a non-federal officer will be deemed to satisfy the “acting under” a federal officer requirement. In Watson, the plaintiffs sued the defendants, cigarette manufacturers, alleging that the defendants violated state laws prohibiting unfair and deceptive business practices by advertising certain cigarette brands as “light,” when, in fact, the manufacturers manipulated testing results by designing cigarettes and using techniques that caused the cigarettes to have lower levels of tar and nicotine than the cigarettes actually sold to customers. Id. at 146, 127 S. Ct. at 2304. The defendants invoked the federal-officer removal statute to remove, and both the district court and the
4Some courts have recognized a distinction in the application of the removal statute depending on the status of the removing party. Those courts note that while “federal officer jurisdiction is read expansively in suits involving federal officials, it is read narrowly where . . . only the liability of a private company purportedly acting at the direction of a federal officer is at issue.” Mills v. Martin & Bayley, Inc., No. 05-888-GPM, 2007 WL 2789431, at *5 (S.D. Ill. Sept. 21, 2007) (internal quotation marks omitted).
7

Eighth Circuit concluded that removal was proper because the plaintiffs’ complaint attacked the defendants’ use of the federal government’s method of testing cigarettes. Id. The Court held that removal was improper because the federal government’s heavy regulation of the defendants’ product testing did not satisfy the statute’s “acting under” requirement. Id. at152–53, 127 S. Ct. at 2308.
Watson emphasized several important principles that bear on whether a private person acted under a federal officer. First, the “acting under” relationship “typically involves subjection, guidance, or control,” id. at 151, 127 S. Ct. at 2307, and “must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.” Id. at 152, 127 S. Ct. at 2307. Mere compliance with the law does not constitute “help or assistance necessary to bring a private person within the scope of the statute.” Id. Second, the fact that a company (or a State) is subject to, and complies with, a federal order does not ordinarily create the type of state-court “prejudice” at which the removal statute is directed. Id. Finally, the fact that an entity is “highly regulated . . . even if the regulation is highly detailed and even if the [entity’s] activities are highly supervised and monitored,” will not provide a basis for removal under § 1442(a)(1). Id. at 153, 127 S. Ct. at 2308.
The MDEQ Defendants offer essentially three bases to support their contention that they were acting at the direction, and with the authorization, of the EPA, such that they should be deemed to have “acted under” the EPA. First, the MDEQ Defendants note that after Flint’s water source was switched to the Flint River and water quality issues arose, the EPA directed the MDEQ’s response and ultimately issued an Emergency Administrative Order addressing the steps the MDEQ and the City of Flint were required to take to protect the public health. Second, the MDEQ Defendants argue that Plaintiff’s allegations regarding their involvement in the process of switching the source of Flint’s water system to the Flint River necessarily implicate the MDEQ Defendants’ administration, application, and enforcement of the federal LCR, demonstrating that the MDEQ
8

Defendants acted on behalf of the EPA and not simply as an instrumentality of the State. Finally, they argue that, although their administration and enforcement of the federal LCR was accomplished through the Michigan Safe Drinking Water Act, they acted at the direction, and on behalf of, the EPA, and thus are actually being sued for actions that the EPA would have taken in the absence of the EPA’s formal delegation of authority to the MDEQ.
While this Court believes that Mays, et al v. City of Flint, et al., No. 16-11519 (E.D. Mich. Oct. 6, 2016), correctly concluded that the MDEQ Defendants are not entitled to remove under § 1442(a)(1), the analysis, in this Court’s judgment, begins and ends with the State of Michigan’s (and by extension the MDEQ’s) independent role as enforcer of Michigan law and the SDWA.
Congress enacted the SDWA in 1974 ‘to ensure that public water supply systems meet minimum national standards for the protection of public health.” Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 768 (D.C. Cir. 1992). The SDWA provides that the EPA’s drinking water regulations “shall apply to each public water system in each State.” 42 U.S.C. § 300g. The SDWA also recognizes that the States may play an important part in administering and enforcing drinking water standards. See Nat. Res. Def. Council v. EPA, 806 F. Supp. 275, 277 (D.D.C. 1992) (noting that “it is clear from the plain language of the Safe Drinking Water Act that the states play a critical and independent role of implementation”). In fact, a State may obtain “primary enforcement responsibility for public water systems” if the EPA determines that the State meets certain requirements. 42 U.S.C. § 300g-2. To obtain such authority, a State must: (1) adopt its own “drinking water regulations that are no less stringent than the . . . [EPA’s] regulations,”; (2) adopt and implement adequate procedures to enforce such regulations; and (3) keep records and make reports required by the EPA. 42 U.S.C. § 300g-2(a). See also 40 C.F.R. § 142.10 (setting forth the requirements for determination of primary enforcement responsibility). Thus, while the SDWA “is
9

administered by the EPA[,] . . . [it] establishes a joint federal-state system for assuring compliance with national standards.” Manufactured Hous. Inst. v. EPA, 467 F.3d 391, 401 (4th Cir. 2006); see also United States v. Cnty. of Westchester, No. 13-cv-5475 (NSR), 2014 WL 1759798, at *4 (S.D.N.Y. Apr. 28, 2014) (stating that the SDWA “authorized the EPA to establish Federal standards that would be applicable to all public water systems and to establish a joint Federal–State system for assuring compliance with these standards and for protecting underground sources of drinking water”); Nat. Res. Def. Council, 806 F. Supp. at 277–78 (concluding that the members of a Governors’ Forum on Environmental Management were not mere advisors to the EPA because, under the SDWA, governors “act operationally as independent chief executives in partnership with the federal agency,” and a contrary conclusion “would ignore the responsibilities the states maintain in complying with the [SDWA]”).
As the MDEQ Defendants concede, the Michigan legislature passed its own Safe Drinking Water Act in 1976, see M.C.L.A. § 325.1001, et seq., and the MDEQ’s predecessor assumed primary enforcement responsibility to administer and enforce the SDWA in 1978. (ECF No. 72-2.) And, pursuant to Michigan’s Safe Drinking Water Act, the MDEQ has “power and control over public water supplies and suppliers of water.” M.C.L.A. § 325.1003.
In light of the SDWA’s “joint federal-state system” that, as here, assigns primary enforcement responsibility to the States, the MDEQ Defendants were not “acting under” the EPA at all, in the sense of assisting or helping the EPA to perform its duties or tasks. See Watson, 551 U.S. at 2307. Rather, it is clear that at all times, the MDEQ Defendants were acting for and on behalf of the MDEQ to fulfill its own duties under the Michigan Safe Drinking Water Act. Cf. N. Colo. Water Conservancy Dist., 482 F. Supp. at 1118 (concluding that the removing parties were “not acting as federal entities or as agents of the [EPA]” pursuant to the Clean Water Act, but
10

instead were acting as political subdivisions of Colorado). Such remains true notwithstanding that the MDEQ Defendants consulted and interacted extensively with the EPA when water quality issues arose after the switch to the Flint River. After all, consultation and interaction are consistent with any joint undertaking. Thus, if anything, this is not a case of the MDEQ assisting the EPA to perform its duties, but of EPA personnel assisting the MDEQ in performing its duties.
The EPA’s Emergency Administrative Order issued on January 21, 2016, does not alter the analysis. The order itself confirms that, rather than acting for the EPA, the MDEQ was “an instrumentality of the State.” (ECF No. 1-7 at PageID.93.) Moreover, even if the order directed MDEQ to follow or apply the LCR or other regulations in a particular manner, Watson says that compliance with federal law does not constitute the type of “help or assistance” required under § 1442(a)(1), and compliance with a regulatory order is unlikely to “create a significant risk of statecourt ‘prejudice.’” 551 U.S. at 152, 127 S. Ct. at 2307.
Accordingly, the MDEQ Defendants have not shown that removal is proper under § 1442(a)(1). B. Removal Under 28 U.S.C. § 1441
The MDEQ Defendants’ also argue that removal was proper because Plaintiff’s state-law gross negligence/negligence claim raises a substantial federal question, namely construction and interpretation of the SDWA and the LCR. (ECF No. 1 at PageID.10.) The substantial federal question doctrine applies “where the vindication of a right under state law necessarily turn[s] on some construction of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9, 103 S. Ct. 2841, 2846 (1983). However, “[t]he mere presence of a federal issue in a state law cause of action does not automatically confer federal question jurisdiction, either originally or on removal.” Mikulski v. Centerior Energy Corp., 501 F.3d 555, 565 (6th Cir. 2007) (en banc).
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Application of the doctrine requires that: “(1) the state-law claim must necessarily raise a disputed federal issue; (2) the federal interest in the issue must be substantial; and (3) the exercise of jurisdiction must not disturb any congressionally approved balance of federal and state judicial responsibilities.” Id. (citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314, 125 S. Ct. 2363, 2368 (2005)). The Supreme Court has emphasized that the substantial federal question doctrine is limited to “a ‘special and small category’ of cases.” Gunn v. Minton, __ U.S. __ 133 S. Ct. 1059, 1064–65 (2013) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 701, 126 S. Ct. 2121, 2137 (2006)).
In Grable & Sons Metal Products v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S. Ct. 2363 (2005), the plaintiff filed a quiet title action in Michigan state court, alleging that the defendant’s title to certain property was invalid. 545 U.S. at 311, 125 S. Ct. at 2366. Pursuant to a Michigan court rule, the Plaintiff specifically alleged that its title was superior to the defendant’s title because the Internal Revenue Service failed to give adequate notice, as required by a federal statute. Id. at 314–15, 125 S. Ct. at 2368. The Court concluded that the Defendant properly removed the case based on federal question jurisdiction because whether the plaintiff “was given notice within the meaning of the federal statute [was] . . . an essential element of its quiet title claim, and the meaning of the federal statute [was] actually in dispute.” Id. at 315, 125 S. Ct. at 2368. In fact, the Court observed, because the proper interpretation of the federal statute was “the only legal or factual issue contested in the case,” its meaning was “an important issue of federal law that sensibly belongs in a federal court.” Id.
In contrast to Grable, the MDEQ Defendants have not shown that Plaintiff’s state-law negligence-based claims implicate an important federal interest. As the Court wrote in Gunn:
12

it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim necessarily raises a disputed issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole. 133 S. Ct. at 1066 (internal quotation marks and bracket omitted). In short, the state-law claim at issue in this case is a “garden-variety” state-law tort claim that does not raise a federal question at the level of importance of that raised in Grable. See Mikulski, 501 F.3d at 571; see also Mays, slip op. at 13.
IV. CONCLUSION For the foregoing reasons, the Court will remand this case to the Michigan Court of claims for lack of jurisdiction. An Order consistent with this Opinion will enter.

Dated: March 31, 2017

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

13

 
 Case 1:16-cv-00636-GJQ-PJG ECF No. 84 filed 04/16/18 PageID.7447 Page 1 of 8 (1 of 8)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: April 16, 2018

Mr. Charles Edward Barbieri Ms. Allison Marie Collins Foster, Swift, Collins & Smith 313 S. Washington Square Lansing, MI 48933
Ms. Margaret Bettenhausen Mr. Nathan A. Gambill Mr. Richard S. Kuhl Mr. Zachary Chad Larsen Office of the Attorney General of Michigan 525 W. Ottawa Street Lansing, MI 48909
Mr. Dennis K. Egan Kotz Sangster Wysocki 400 Renaissance Center Suite 3400 Detroit, MI 48243
Mr. Philip A. Grashoff Jr. Kotz Sangster 36700 Woodward Avenue Suite 300 Bloomfield Hills, MI 48304
Ms. Krista Aimee Jackson Kotz Sangster Wysocki 40 Pearl Street, N.W. Ste 400 Grand Rapids, MI 49503

Case 1:16-cv-00636-GJQ-PJG ECF No. 84 filed 04/16/18 PageID.7448 Page 2 of 8 (2 of 8)

Mr. Thaddeus E. Morgan Fraser Trebilcock 124 W. Allegan Street Suite 1000 Lansing, MI 48933
Mr. Michael John Pattwell Clark Hill 212 E. Cesar E. Chavez Avenue Lansing, MI 48906
Mr. Todd Russell Perkins 615 Griswold Street Suite 400 Detroit, MI 48226
Ms. Patricia A. Stamler Ms. Elizabeth C. Thomson Mr. Matthew J. Turchyn Hertz Schram 1760 S. Telegraph Road, Suite 300 Bloomfield Hills, MI 48302
Mr. Barry A. Wolf 503 S. Saginaw Street Suite 1410 Flint, MI 48502
Re: Case No. 17-1401, Tamara Nappier v. Richard Snyder, et al Originating Case No. : 1:16-cv-00636
Dear Counsel,
The Court issued the enclosed opinion today in this case.
Sincerely yours,

cc: Mr. Thomas Dorwin Enclosure Mandate to issue

s/Cathryn Lovely Opinions Deputy

Case 1:16-cv-00636-GJQ-PJG ECF No. 84 filed 04/16/18 PageID.7449 Page 3 of 8 (3 of 8)

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0197n.06

No. 17-1401

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

TAMARA NAPPIER, as mother and next friend of )

FILED

T.N., a minor child, on behalf of T.N. and a class of )

Apr 16, 2018

all others similarly situated,

)

DEBORAH S. HUNT, Clerk

)

Plaintiff-Appellee,

)

)

v. RICHARD SNYDER, et al.,
Defendants-Appellees,

) ) ) ) )

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

)

DANIEL WYANT, et al.,

)

)

Defendants-Appellants.

)

)

BEFORE: CLAY, COOK and WHITE, Circuit Judges. HELENE N. WHITE, Circuit Judge. Defendants-Appellants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter
Smith, Bradley Wurfel and Daniel Wyant, employees of the Michigan Department of Environmental Quality, (“MDEQ Defendants”) appeal the district court’s order remanding this case to the Michigan Court of Claims on the basis that it was improperly removed. Finding this court’s prior decision in Mays v. City of Flint, Michigan, 871 F.3d 437 (6th Cir. 2017) controlling, we AFFIRM.
I. Background This case arises from the water crisis in Flint, Michigan. Plaintiff Nappier and minor T.N. (“Plaintiff”) are residents of Flint. Seeking to represent a class

Case 1:16-cv-00636-GJQ-PJG ECF No. 84 filed 04/16/18 PageID.7450 Page 4 of 8 (4 of 8) No. 17-1401, Nappier v. Snyder
of all individuals who, from April 25, 2014 through the date of trial, are or were minor children (age 17 years and younger) who are or were residing in the City of Flint, Michigan and who have been brain damaged as a result of the ingestion of lead poisoned water from pipes and service lines that supplied water from the Flint River without the use of any corrosion control, (R. 1-3, PID 45; see also id. at PID 55-57), plaintiff filed her class-action complaint in the Michigan Court of Claims on March 23, 2016, alleging that Defendants breached various duties relating to the Flint water supply. There are numerous defendants, including various state officials, department heads and program heads, emergency managers, and the appellant MDEQ employees. On May 31, MDEQ Defendant Busch removed the case to the U.S. District Court for the Western District of Michigan, asserting federal subject-matter jurisdiction under the federal-officer removal statute, 28 U.S.C. § 1442, and federal-question jurisdiction under 28 U.S.C. § 1441. On June 14, 2016, several other defendants (State Defendants) filed a motion to remand, advancing arguments that are no longer relevant. During the remainder of 2016, various defendants filed a variety of motions, including motions to dismiss and a motion to change venue. After the district court scheduled oral argument on State Defendants’ motion to remand, it was provided with supplemental authority calling its attention to the decision of the U.S. District Court for the Eastern District of Michigan in Mays v. City of Flint, No. 5:16-cv-11519JCO-MKM (E.D. Mich. Oct. 6, 2016). The Plaintiffs in Mays, purporting to represent “a class of thousands of Flint water users,” sued numerous defendants, including MDEQ defendants, alleging “gross negligence, fraud, assault and battery, and intentional infliction of emotional distress.” (R. 60-1 at PID 6737.) The MDEQ defendants removed the case to federal court, invoking the same bases for federal jurisdiction as invoked here. The district court found that removal was improper because the MDEQ defendants had not shown that they were acting under federal officers or were being sued for acts performed under color of federal office, and because
-2-

Case 1:16-cv-00636-GJQ-PJG ECF No. 84 filed 04/16/18 PageID.7451 Page 5 of 8 (5 of 8) No. 17-1401, Nappier v. Snyder
the plaintiffs’ claims did not raise a federal question. The supplemental authority also included this court’s order denying the Mays MDEQ defendants’ motion for a stay of the district court’s remand order pending appeal, for failure to show “a strong likelihood of success on the merits.” (R. 60-2.)
The district court issued a memorandum and order canceling the scheduled oral argument and ordering further briefing on why the court should not remand the case to state court for lack of subject-matter jurisdiction in light of Mays. After reviewing the supplemental briefs, the district court issued its opinion finding that removal was improper and remanding the case to state court. Citing Mays, the district court found that MDEQ Defendants did not qualify for federal-officer removal because of their “independent role as enforcer of Michigan law and the [Safe Drinking Water Act (SDWA)].” (R. 75 at PID 7399.) The district court also cited Mays in support of its conclusion that Plaintiff’s state-law negligence claim did not raise a federal question.
During the pendency of this appeal, a divided panel of this court affirmed the district court’s remand order in Mays, and this court denied rehearing en banc.1
II. Discussion “We review de novo the district court’s determination that it lacked subject-matter jurisdiction and its consequent decision to issue a remand order.” Mays, 871 F.3d at 442 (citing Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 404 (6th Cir. 2007)).
1 On October 10, 2017, the MDEQ appellants in Mays filed a petition for rehearing en banc. That petition was subsequently denied and, on February 13, 2018, the MDEQ appellants filed a petition for certiorari with the United States Supreme Court.
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Case 1:16-cv-00636-GJQ-PJG ECF No. 84 filed 04/16/18 PageID.7452 Page 6 of 8 (6 of 8) No. 17-1401, Nappier v. Snyder
A. Federal-Officer Removal The federal-officer removal statute provides that the following may remove a civil action
to federal district court:
The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. 28 U.S.C. § 1442(a)(1) (emphasis added). When the removing party is not a federal officer, we
apply a three-part test to determine whether removal is proper. The removing party must
demonstrate that: (1) it is a “person” within the meaning of the statute who “acted under a federal
officer”; (2) “it performed the actions for which it is being sued under color of federal office”;
and (3) “it raised a colorable federal defense.” Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th
Cir. 2010) (alterations, quotations, and citations omitted). The Supreme Court has defined
“acting under”:
In this context, the word “under” must refer to what has been described as a relationship that involves “acting in a certain capacity, considered in relation to one holding a superior position or office.” That relationship typically involves “subjection, guidance, or control.” In addition, precedent and statutory purpose make clear that the private person’s “acting under” must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior. Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 151–52 (2007) (citations omitted).
MDEQ Defendants argue that (1) the district court erroneously resolved doubts about the
propriety of removal in favor of remand rather than in favor of broad federal-officer removal;
(2) although they were implementing Michigan’s SDWA, they were “acting under” federal
officers at the United States Environmental Protection Agency (USEPA) because (a) they were
performing tasks that the USEPA otherwise would have been required to undertake, (b) the
USEPA retained authority to control MDEQ’s actions and MDEQ was subject to USEPA
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Case 1:16-cv-00636-GJQ-PJG ECF No. 84 filed 04/16/18 PageID.7453 Page 7 of 8 (7 of 8) No. 17-1401, Nappier v. Snyder
supervision, and (c) the USEPA provided federal funding for MDEQ to administer and enforce the federal SDWA; (3) Michigan’s SDWA and its decision to take primary enforcement authority for the federal SDWA, and the duties that Plaintiff alleges MDEQ Defendants breached, only came about because of the federal SDWA; (4) the district court erred when it found that the USEPA was merely assisting MDEQ to perform its duties, and the reverse is true; (5) plaintiffs satisfied the “causal nexus” requirement for federal officer removal; and (6) the SDWA preempts state tort claims and they are therefore entitled to immunity.
In Mays, this court held that the relationship between the MDEQ and the USEPA “is a model of cooperative federalism, not an agency relationship,” 871 F.3d at 447, and “MDEQ Defendants were not ‘acting under’ the EPA and thus are not eligible for federal-officer removal,” id. at 449. The MDEQ Defendants do not argue that Mays is not controlling, and it is clear that a ruling in the MDEQ Defendants’ favor would be contrary to Mays. “It is firmly established that one panel of this court cannot overturn a decision of another panel; only the court sitting en banc can overturn such a decision.” United States v. Lanier, 201 F.3d 842, 846 (6th Cir. 2000) (citing United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996)). Because Mays is legally indistinguishable, we affirm the district court’s ruling that federal-officer removal was improper.
B. Federal-Question Jurisdiction MDEQ Defendants also argue that they established federal-question jurisdiction. A case may be removed to federal district court if the court would have had original jurisdiction. 28 U.S.C. § 1441(a). “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Id. § 1331. In this case, plaintiff did not allege any federal claims on the face of her complaint. “[F]ederal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed,
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Case 1:16-cv-00636-GJQ-PJG ECF No. 84 filed 04/16/18 PageID.7454 Page 8 of 8 (8 of 8) No. 17-1401, Nappier v. Snyder
(3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013) (discussing Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313-14 (2005)). “The substantiality inquiry under Grable looks . . . to the importance of the issue to the federal system as a whole.” Id. at 260. “[T]he presence of a claimed violation of a federal statute as an element of a state cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.” Mays, 871 F.3d at 449 (internal alterations omitted) (quoting Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 814 (1986)).
MDEQ Defendants argue that the district court erred by finding that Plaintiff’s “‘gardenvariety’ state-law tort claim . . . does not raise a federal question at the level of importance” required by Grable, (R. 75, PID 7403), because violations of the SDWA and the Lead Copper Rule will underpin state tort claims in jurisdictions across the country. They also assert that federal jurisdiction would not upset the balance of federal and state responsibilities.
But Mays resolved this issue as well, finding that the plaintiffs’ claims did not raise a substantial federal question. 871 F.3d at 449–50. Again, because Mays is legally indistinguishable on this issue, we affirm the district court’s determination that § 1441 removal was improper.2
III. Conclusion For these reasons, we AFFIRM. 2 Appellee State Defendants additionally argue that removal was improper under § 1441 for lack of unanimity. “[T]here is a rule of unanimity that has been derived from the statutory language prescribing the procedure for removing a state action to federal court, 28 U.S.C. § 1446.” Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir. 2003). See 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”). MDEQ Defendants do not dispute that Appellee State Defendants did not consent to removal. Thus, § 1441 removal was additionally improper for lack of unanimity.
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 Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.39 Page 1 of 20
EXHIBITB

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.40 Page 2 of 20

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IN THE STATE OF MICffiGAN

COURT OF CLAIMS

TAMARA NAPPlER, as mother and next friend ofTAKARIE NAPPIER, a minor chil~ on behalf of TAKARIE NAPPlER and a class of all others similarly situated,
Plaintiff,··

CLASS ACTION
Case No. 16- oooo?l Hon.13oon5-ir"CJ\..

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vs.

RicHA:RD sNYDER' (ilidlV!duauy)~ ·

DARNELL EARLEY (individually),

~ GERALD AMBROSE (individually), ~ DANIEL WYANT (individually and in his official capacity),
~ LIANE SHEKTER SMITH (individually and in her official capacity),

~ STEPHEN BUSCH (individually and in his official capacity),
!2 PATRICK COOK (individually and in his official capacity),

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:MICHAEL PRYSBY (individually and in his official capacity), BRADLEY WURFEL (individually and in his official capacity), EDEN WELLS (individually and in her official capacity),

~ NICK LYON (individually and in his official capacity), ~ NANCY PEELER, (individually and in her official capacity), and

ROBERT SCOTT, (individually and in his official capacity),

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Elizabeth C. Thomson (P53579)

Patricia A. Stamler (P35905)

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Matthew J. Turchyn (P76482)

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Attorneys for Plaintiff

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(248) 335-5000 lthomson@hertzschram.com pstamler@hertzschram.com mturchyn@hertzschram.com

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Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.41 Page 3 of 20
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A civil action involving Defendants Rick Snyder, Darnell

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Earley, and Jerry Ambrose that arises out of the transactions or

occurrences alleged in this complaint was previously :filed and

is pending in the Court of Claims. The case was assigned

docket number 16-000017-:MM and was assigned to the

Honorable Mark T. Boonstra (P36046).

VERIFIED CLASS ACTION COMJ>LAINT Ibis is a class action lawsuit filed by Tamara Nappier ("Plaintiff'), as mother and next

friend of Takarie Nappier ("Takarie") on behalf of Takarie Nappier and all others similarly

situated against Richard Snyder ("Snyder"), Darnell Earley ("Earley"), Gerald Ambrose

("Ambrose"), Daniel Wyant ("Wyant"), Liane Shekter Smith ("Shekter Smith"), Stephen Busch

C) p..

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~ ("Busch"), Patrick Cook ("Cook"), Michael Prysby ("Prysby''), Bradley Wurfel ("Wurfel"),

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!Zl Eden Wells ("Wells"), Nick Lyon ("Lyon"), Nancy Peeler ("Peeler"), and Robert Scott ("Scott")
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!@ (collectively referred to as ("Defendants") and states as follows:

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INTRODUCTION

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There is No Safe Level of Lead Exposure for Children

1. This is a class action case filed on behalf of all individuals who, from April 25,

2014 through the date of trial, are or were minor children (age 17 years and younger) who are or

were residing in the City of Flint, Michigan and who have been brain damaged as a result of the

ingestion of lead-poisoned water from pipes and service lines that supplied water from the Flint

River without the use of any corrosion control (hereinafter referred to as the "Plaintiff Class").
2. The dangers of lead exposure have been have been recognized for millennia. In

the first century, Dioscorides observed in his De Materia Medica that "lead makes the mind give

way."
3.

Environmentalist Rene Dubos warned that the problem of childhood lead

poisoning "is so well-defined, so neatly packaged, with both causes and cures known, that if we

2

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.42 Page 4 of 20

don't eliminate this social crime, our society deserves all the disasters that have been forecast for

it"

4. It is now established that there is no safe level oflead for children.

5. Children are more vulnerable to lead than adults because oftheir greater fractional

absorption of ingested lead, because their greater lead intake on a bodyweight basis, and because

development of a child's central nervous system is easily derailed in ways that result in cognitive

and behavioral abnormalities.

6. Lead is a potent neurotoxin; childhood lead poisoning has an impact on many

~ developmental and biological processes, most notably intelligence, behavior, and overall life

I achievement.

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7. Children can absorb 40 percent to 50 percent of an oral dose ofwater-soluble lead

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compared with 3 percent to 10 percent for adults. In a dose-response relationship for children

~ aged 1 to 5 years, for every i part-per-billion ("ppb") increase in water lead, blood lead increases

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35 percent.

8. The greatest risk of lead in water may be to infants on reconstituted formula.

Among infants drinking formula made from tap water at 10 ppb, about 25 percent would

experience a blood lead level above 56 micrograms per deciliter, which the Centers for Disease

Control and Prevention has defined as an elevated level.

9. Tap water may account for more than 85 percent o~ total lead exposure among

infants consuming reconstituted formula. A lmown abortifacient, lead has also been impiicated in

increased fetal deaths and reduced birth weights.

10. With estimated societal costs in the billions, lead poisoning has a disproportionate

impact on low-income and minority children.

3

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.43 Page 5 of 20
~._: __________ ...:.:..l__~ _________ _

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B. Children in Flint Have Been Exposed to Lead Due to a Change in Flint's WaterSupply.
11. As a soluble metal, lead leaches into drinking water via lead-based plumbing or

lead particles that detach from degrading plumbing components (the word "plumbing" is derived

from the Latin word for lead, "plumbum.").

12. In 2014, ·as a cost-saving measure, the City of Flint began taking its water from
I
the Flint River rather than Lake Huron via the City of Detroit Water System. The corrosion-

control treatments required by the Environmental Protection Agency's Lead and Copper Ru1e

were discontinued.

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13. In further exacerbation of the problem, ferric chloride was added to reduce the

rn formation of trihalomethanes from organic matter thereby increasing the corrosivity of the Flint

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14. The more corrosive water is, the more readily it can dissolve metals such as lead.

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15. The Defendants had knowledge that the water pumped from the Flint River was

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toxic and not fit for use and consumption and exposed the Plaintiff Class to extreme and unsafe

levels of lead.

16. Notwithstanding the Defendants' knowledge regarding the toxicity of the water, Defendants advised the Plaintiff Class to believe that the water was safe to drink, use for

cooking, bathing, brushing teeth, and other personal uses.

17. As minor children, Takarie and the members of the Plaintiff Class did not know,

could not know, and had no duty to know of the toxicity ofthe water they were drinking.

18. Defendants assured the Plaintiff Class that the water supplied from the Flint River

was properly treated, monitored, tested, and was safe for use and consumption.

4

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.44 Page 6 of 20

19. Defendants knew and expected that the Plaintiff Class would rely upon their

representations regarding the safety ofthe water.

20. The Plaintiff Class took comfort and reasonably relied upon Defendants'

assurances and representations regarding the alleged safety and fitness· of the water and

consumed and used it for all purposes.

21. After changing its water source to the Flint River, the lead concentration in Flint's

water began to rise. In six of nine city wards, the water in 20 to 32 percent of the homes had a

lead concentration above 15 11g per liter, a concentration that triggers remedial action under the

~ Lead and Copper Rule.

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22. The 90th percentile was 25 11g per liter, and in some samples the concentration

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exceeded 1000 11g per liter.

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23. This contamination had consequences. Published medical .and scientific research

~ reports that among children in Flint, the incidence of blood lead concentrations above the

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reference value of 5 11g per deciliter rose from 2.4 percent to 4.9 percent between 2013 and 2015.

The increase was greatest, from 4.0 percent to 10.6 percent, among children in neighborhoods

with the highest lead concentrations in water.

24. There is no safe level of lead consumption for children.

25. Irrespective of blood lead concentrations, any amount of lead consumed by

children (ages 17 and under), including the Plaintiff Class, is unsafe, toxic, and causes damage to

brain cells upon consumption.

26. Upon consumption oflead-contaminated water, children suffer concomitant brain

damage that is permanent and without cure.

5

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.45 Page 7 of 20

27. The Plaintiff Class consumed lead contaminated water as a result of the

Defendants' grossly negligent and/or negligent actions as alleged herein, and its members have

suffered current, present, and permanent brain damage, and will continue to suffer injuries and

damages as a result thereof.

JURISDICTION
28. This Court has jurisdiction over this action pursuant to MCL 600.6419 because

the Defendants to the claims alleged herein are agents and officers ofthe State of Michigan.

29. The amount in controversy exceeds the jurisdictional limit ofthis Court.

u....

PLAINTIFF AND THE PLAINTIFF CLASS

I

30. Plaintiff is the mother and next friend of Takarie. At all relevant times, Plaintiff

~"~' has resided in the City ofFlint.

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31. Takarie was born on July 3, 2001 and has been a resident ofthe City of Flint at all

11: 1j
~ relevant times. Takarie consumed water that was poisoned as a result of the circumstances

....:!

alleged herein and suffered damage as a result. Blood testing has shown that Takarie's blood lead

level is elevated. Takarie has suffered permanent brain damage as a result of his exposure to

lead.

32. The Plaintiff Class is comprised of all individuals who, from April 25, 2014

through the date of trial, are or were minor children (age 17 years and younger) who are or were

residing in the City of Flint, Michigan and who have been brain damaged as a result of the

ingestion of lead poisoned water from pipes and service lines that supplied water from the Flint

'

River without the use of any corrosion control.

I.

33. The Plaintiff Class representative was exposed to Flint's toxic water in his home.

6

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.46 Page 8 of 20

34. The Plaintiff Class representative brings this action on behalf of himself and

others similarly situated who sustained brain damage because of their consumption of lead laden

water pumped from the Flint River at all relevant times.

DEFENDANTS
35. Snyder is sued in his individual capacity. Snyder has been the Governor of the

State ofMicl:iigan at all relevant times. Among other things, Snyder participated in, directed, and

facilitated the state's decision to transition Flint's water source from safe, treated water to

untreated corrosive water that would deliver lead into Flint residents' homes. He also

~ participated in, directed, and facilitated the state's insufficient response to protect those residents
~ from the state's actions. Snyder's actions and omissions constitute gross negligence and/or

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!;:: negligence for the reasons stated herein. ~

§

36. Earley is sued in hiS individual capacity. Earley was Governor Snyder's ·

~

~ Emergency Manager in Flint from November 1, 2013 through January 12, 2015. Among other

....1

things, Earley made the decision to switch to Flint River water on an impossibly reckless

timeframe, preventing Flint's water treatment plant from properly analyzing and· treating a new

source of corrosive water. Earley made false and/or misleading statements representing that the

water was safe to drink, as it poisoned thousands. Earley's actions and omissions constitute gross

negligence and/or negligence for the reasons stated herein.

37. Ambrose is sued in his individual capacity. Ambrose ("Ambrose") was Snyder's

Emergency Manager in Flint from January 13," 2015 through April 28, 20i5. Ambrose was

employed by the state as a :fi.n,ancial advisor for Flint's financial emergency from January, 2012,

through December, 2014. Among other things, he was involved and directed the state's decision

to transition Flint from safe, treated water on an impossibly aggressive timeline to corrosive, untreated water from an unprepared water treatment plant. He also made false and!or misleading
7

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.47 Page 9 of 20

statements representing that the water was safe to drink as it poisoned thousands. Ambrose's

actions and omissions constitute gross negligence and/or negligence for the reasons stated herein.

38. Shekter Smith is sued in her individual capacity and in her official capacity.

Shekter -

Smith

was,

at

all

relevant

times

until

she

was

removed

from

her

position

on

October

19 '

2015, the Chief of the Office of Drinking Water and Municipal Assistance for the Michigan

Department of Environmental Quality ("MDEQ"). Shekter Smith was grossly negligent and/or

negligent in that, among other things, she knowingly participated in, approved of, and caused the

decision to transition Flint's water source to a highly corrosive, inadequately studied and treated

~ alternative. She disseminated false statements to the public that led to the continued consumption
~ of dangerous water despite knowing or having reason to know that the water was dangerous.
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!!;ial Shek:ter Smith's actions and omissions constitute gross negligence and/or negligence for the
~ reasons stated herein.

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39. Wyant is sued in his individual capacity and in his official capacity_ Wyant was,

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at all relevant times, the Director of MDEQ until the Governor accepted his resignation on or

about December 29, 2015. Among other things, Wyant participated in, directed, and oversaw the

MDEQ's repeated violations of federal water quality laws, the failure to properly study and treat

Flint River water, and the MDEQ's program of systemic denial, lies, and attempts to discredit

honest outsiders. He disseminated false statements to the public that led to the continued

consumption of dangerous water despite knowing or having reason to know that the water was

dangerous. Wyant's actions and omissions constitute gross negligence and/or negligence for the

reasons stated herein.

40. Busch is sued in his individual capacity and in·his official capacity. Busch was, at

all relevant times, the District Supervisor assigned to the Lansing District Office of the MDEQ.

8

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.48 Page 10 of 20

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. Among other things, he participated in MDEQ's repeated violations of federal water quality laws, the failure to properly study and treat Flint River water, and the MDEQ's program of

systemic denial, lies, and attempts to discredit honest outsiders. He personally falsely reported to

the EPA that Flint had enacted an optimized corrosion control plan, providing assurances to the I
Plaintiff and the Putative class that the water was safe when he knew or should have known that

these assurances were false, or were no more likely to be true than false. Busch's actions and

i

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omissions constitute gross negligence and/or negligence for the reasons stated herein.

4L Cook is sued in his individual capacity and :in his official capacity. Cook was, at

~ all relevant times, Water Treatment Specialist assigned to the Lansing Community Drinking
~ Water Unit of the MDEQ. Among other things, Cook is :individually liable because he, as the
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~~ Lansing Community Drinking Water Unit manager, in a grossly negligent _manner, participated

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in approved, and/or assented to the decision to allow Flint's water to be delivered to residents

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~ without corrosion control or proper study and/or testing. Cook's actions and omissions constitute

gross negligence and/or negligence for the reasons stated herein.

42. Prysby is sued in his individual capacity and in his official capacity. Michael Prysby was, at all relevant times, an Engineer assigned to District 11 (Genesee County) of the

MDEQ. Among other things, Prysby is liable because he, as the Engineer assigned to District 11, participated in, approved, and/or assented to the decision to switch the water source, failed to

properly monitor and/or test the Flint River water, and providing assurances to the Plaintiff and

the Putative class that the Flint River water was safe when he knew or should have known those

statements to be untrue, or no more likely to be true than false. Prysby's actions and omissions constitute gross negligence and/or negligence for the reasons stated here:in.

9

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.49 Page 11 of 20
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. .

43. Wurfel is sued in hi.s individual capacity and in his official capacity. Wurfel was,

I

at all relevant times, the Director of Communications for Iv.IDEQ. Wurfel resigned his position

I

on December 29, 2015. Among other things, Wurfel served as the :MDEQ's principal means of

public deception, repeatedly denying the increasingly obvious disaster as it unfolded and

attempting to discredit the only reliable people in the picture. Wurfel would eventually be

relieved of his duties for his "persistent [negative] tone and derision" and his "aggressive dismissal, belittlement and attempts to dis~redit the individuals involved in [conducting

independent studies and tests]." Wurfel repeatedly made public statements that created,

~ increased, and prolonged the risks and harms facing Plaintiff and the Putative -class. Wurfel's

~ actions and omissions constitute gross negligence and/or negligence for the reasons stated herein.

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44. Wells is sued in her individual capacity and in her official capacity. Wells was, at

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all relevant times, Chief Medical .Executive within the Population Health and .Community

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~ Services Department of the Michigan Department of Health and Human Services ("Iv.IDHHS").

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Among other things, Wells participated in, directed, and/or oversaw the department's efforts to

hid information to save face, and to obstruct the efforts of outside researchers. Further, Wells

knew as early as 2014 of problems with lead contamination in Flint's water and instead of

fulfilling her duty to protect and notify the public, she participated in hiding this information.

Wells' actions and omissions constitute gross negligence and/or negligence for the reasons stated

herein.

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45. Lyon is sued in his individual capacity and in his official capacity. Lyon was, at

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; -.

all relevant times, Director of Iv.IDHHS. Among other things, he participated in, directed, and/or

oversaw the department's efforts to hid information to save face, and to obstruct the efforts of

outside researchers. He knew as early as 2014 of problems with lead contamination in Flint's

10

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.50 Page 12 of 20

water and instead of fulfilling her duty to protect and notify the public, she participated in hiding

this information. Lyon's actions and omissions constitute gross negligence and/or negligence for

the reasons stated herein.

46. Peeler is sued in her individual capacity and in her official capacity. Peeler was, at

all relevant times, a MDHHS employee in charge of its childhood lead poisoning prevention

program. Among other things, she participated in, directed, and/or oversaw the department's

efforts to hid information to save face, and to obstruct the efforts of outside researchers. Even

when her own department had data that verified outside evidence of a lead contamination

~ problem, she continued trying to generate evidence to the contrary. Peeler's actions. and

~ omissions constitute gross negligence and/or negligence for the reasons stated herein.

iIZ)
N

47. Scott is sued in his individual capacity and in his official capacity. Scott was, at

'11.:..-~· :-
:L.<--

1-·-

~ all relevant times, Data Manager for MDHHS' Healthy Homes and Lead Prevention Program.

1-

1:3 ~ Among other things, Wells participated in, directed, and/or oversaw the department's efforts to
....:!

hid information to save face, and to obstruct the efforts of outside researchers. Even when his

own department had data that verified outside evidence of a lead contamination problem, she

continued trying to generate evidence to the contrary. He also served a key role in withholding

and/or delaying disclosure of data that outside researchers needed to protect the people of Flint.

Scott's actions and omissions constitute gross negligence and/or negligence for the reasons stated

herein.

48. To the extent the Defendants' conduct was inconsistent with or contrary to their

respective job responsibilities they acted outside the scope of their employment and are thus

individually liable.

rf-::;
11

Case 1:16-cv-00636-GJQ-PJG

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FACTUAL BACKGROUND REGARDING DEFENDANTS' GROSS NEGLIGENCE AND/OR NEGLIGENCE
49. Shortly after switching to the Flint River water supply, Defendants began

receiving concerns and complaints from residents about the color, taste and odor ofthe water.

50. By August, 2014, Flint water tested positive for E. coli. and several "boil water"

advisories were issued by the City ofFlint through September, 2014. I' I I
51. These "boil water" instructions were relied upon and followed by Plaintiff and

other Plaintiff Class members.

52. Unbeknownst to the Plaintiff Class, including Plaintiff, boiling water worsens
() p.,
~lead concentrations in the water thereby making it more dangerous to consume.

~

53. For the next several months after the water supply change, resident protests

i;2
~ regarding the water increased, but were disregarded by the Defendants in a grossly negligent
~
~ and/or negligent manner despite their knowledge of the dangers and dire consequences of

~
....:~ continuing to use the water.

54. Defendants continued to falsely reassure the public, including Plaintiff and the

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il

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Plaintiff Class members, and insisted that the water was safe despite their knowledge that the

foul taste, odor and appearance was highly likely the result of using the corrosive Flint River

1:.

water, untreated with the proper anti-corrosive agents, which caused particulate lead to contaminate the water.

,.1·.
r,.·;·

,(. ~

55. After the Flint River became the primary source of water for the Flint users,

;;?

Defendants were also on actual notice of that the levels of Trihalmomethanes ("TfHM''), a

disinfectant byproduct that can cause liver and kidney problems, had exceeded federal limits..

56. In June 24, 2015, EPA representative Miguel Del Toral wrote a detailed memo

outlining numerous dangerous problems with the water being pumped from the Flint River

12

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.52 Page 14 of 20

including unacceptable levels of lead. This report was shared with, among others, Shekter-Smith,

Cook, Busch, and Prysby.

57. Nonetheless, Defendants failed to undertake any measures to effectively address

any ofthe dangers identified by EPA Agent Del Toral.

58. By July 2015, Defendants had actual notice of high lead exposure in the Flint

water.

59. Yet, Wurfel appeared on public radio on July 10, 2015, and advised listeners that

Flint water was safe and that it was not causing "any broad problem" with lead leaching into

~ residential water.

~

60. On July 22, 2015, Snyder's Chief of Staff, Dennis Muchmore, admitted in an

rn

N
~ email to MDHHS officials that "I'm frustrated by the water issue in Flint ... I really don't think
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~

people are getting the benefit of the doubt. Now they are concerned and rightfully so about the

~ lead level studies they are receiving . . . These folks are scared and worried about the health

...:1

impacts and they are basically getting blown off by us (as a state we're not sympathizing with

their plight.)"

61. On July 24, 2015, Wurfel responded to Mr. Muchmore's concerns, saying, "In

terms of near-future issues, the bottom line is that residents of Flint do not need to worry about

lead in their water supply, and DEQ's recent sampling does not indicate an imminent health

threat :from lead or copper."

62. By late 2014 or early 2015, the MDHHS was aware from its own data that there

was dramatic increase in the percentage of Flint children with elevated blood lead level readings

from blood drawn during the second and third quarters of2014.

13

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.53 Page 15 of 20

63. The MDHHS knew that these elevated blood lead levels correlated with the

introduction of the corrosive Flint River water into the Flint water distribution system.

64. These conditions created a Health Emergency. The MDilliS failed to report to the

MDEQ, Governor's Office, EPA, or the Flint community that it had discovered a Health

Emergency in its own data

65. In the summer of 2015, Dr. Mona Hanna-Attisha MD, ("Dr. Hanna-Attisha"), a

pediatrician :from Hurley Hospital in Flint, using data available to her from Hurley Hospital,

observed an increase in the percentage of Flint children with elevated blood lead levels from

~ blood drawn in the second and third quarter of 2014. She published her study in an effort to alert

I the community about the health risks associated with drinking Flint River water.

til

~
~

66. Defendants were aware of Dr. Hanna-Attisha's findings, but rejected them as

~ false and inaccurate.

~

67. The MDHHS re-evaluated its own data and ultimately admitted that Dr. Hanna-

'""' Attisha's data and conclusions were correct and that its own data confirmed Dr. Hanna-Attisha's

conclusion.

68. By early 2015, Defendants knew that Flint residents were being exposed to

particulate lead on a daily basis and were on actual notice that inaccurate test results were
I"
providing false assurance to residents, including Plaintiff and the Plaintiff Class, about the true

lead levels in the water.

69. On March 30, 2015, MDEQ notified the Flint Water Treatment Plant ("FWTP")

of the first of two consecutive six-month lead/copper sampling results showing that the lead

action levels were unacceptably elevated.

14

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.54 Page 16 of 20

70. These lead levels, according to the first round of the six-month sampling results,

were above 5 ppb and therefore exceeded acceptable and safe levels.

71. On October I, 2015, faced with overwhelming evidence that the water waS unsafe

I

I

!

to use and a source of lead poisoning for the children ofFlint, including Plaintiff and the Plaintiff

I

Class members, Genesee County Health Officials issued a public health emergency advising

Flint residents not to drink the tap water.

72. On October 16, 2015, Detroit City Water began to flow to Flint water users once

a gam.

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73. However, based on. information and belief, due to the prolonged exposure of

~ contaminated water without adequate anti-corrosive agents, Plaintiff and Plaintiff Class members

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i;2 were further exposed to toxic water, which exposure continues until such time that pipes and ~

~
~

services lines that were damaged by corrosive water from the Flint River can be replaced.

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CoUNTI

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GROSS NEGLIGENCE AND/OR NEGLIGENCE

74. Plaintiffre-alleges incorporates by reference all prior paragraphs as though fully

set forth herein.

75. Defendants owed duties to Plaintiff and the Class of children he seeks to

represent, including but not limited to the following:

a

To refrain from providing lead contaminated water;

b. To ensure that appropriate corrosive control measures were implemented to prevent lead from leaching into the water supply;
c. To timely and ~equately test the water supply to ensure that it was safe and sound for use and consumption;
i ·.
d. To timely and appropriately inspect the water system;

e. To ensure that the water supply met federal, state and other applicable requirements;

15

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16

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PageID.55

Page 17 of 20

f. To timely and appropriately warn of the dangers in the lead contaminated water;
g. To timely and appropriately advise to refrain from drinking the 'water due to lead contamination;
h. To timely and adequately respond to information, studies, tests and concerns regarding the excessive lead concentrations in the water supply;
i. To timely and adequately respond to information, studies, tests and concerns regarding the excessive lead concentrations in the blood tests of the children exposed to the lead tainted water supply;
j. To refrain from providing false, misleading, inaccurate and otherwise inappropriate information and assurances regarding the safety of the water supply; and
k. Other duties as uncovered through discovery. 76. Defendants breached all duties set forth herein.
77. Defendants conduct and/or failures constitute negligence and/or gross negligence
IZl
~ as their actions were so reckless so as to demonstrate a substantial lack of concern for whether t5
~ injury would result
....1
78. Defendants conduct and/or failures were the direct and proximate cause of injury
to Takarie and the Plamtiff Class.
79. Defendants are liable to Takarie and all those similarly situated for the brain
damage they suffered as a result oftheir consumption oflead contaminated water.
CoUNT II
CLASS ACTION ALLEGATIONS
80. Plaintiff re-alleges incorporates by reference all prior paragraphs as though fully
set forth herein.
81. This action is brought by the named Plaintiff, as next friend of Takarie, on behalf
of individuals who, :fromApril25, 2014 through the date oftrial, are or were minor children (age
17 years and younger) who are or were residing in the City of Flint, Michigan and who have
16

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.56 Page 18 of 20

been brain damaged as a result of the ingestion of lead poisoned water from pipes and service

lines that supplied water from the Flint River without the use of any corrosion control.

82. The number of class members is sufficiently numerous to make class action status

the most practical method for Plaintiffto secure redress for injuries sustained.

83. There are questions of law and fact that are common to, and typical of, those

raised by the Class he seeks to represent.

84. The violations of law and resulting harms alleged by the named Plaintiff are

typical of the legal violations and harms suffered by all Class members.

() p..,

85. Plaintiff will fairly and adequately protect the interests of the Plaintiff Class

~ members. P!Jrintiff's counsel are upaware of any conflicts of interest between fue class

N
tJ representative and absent class members with respect to the matters at issue in this litigation.
!il

~ B

86. Plaintiff is represented by attorneys with substantial experience and expertise in

~ complex and class action and environmental litigation involving personal injury and damages.

87. Plaintiff's attorneys have investigated all claims in this action and have

committed sufficient resources to represent the Class.

88. The maintenance of the action as a class action will be superior to other available

methods of adjudication and will promote the convenient administration ofjustice. .Moreover' the
prosecution of separate actions by individual members of the Class could result in inconsistent or

varying adjudications with respect to individual members of the Class and/or one or more of the

Defendants.

WHEREFORE, Plaintiffrequests that the Court grant the following relief:

a An order certifying the Plaintiff Class pursuant to MCR 3.501;

b. An order declaring the Defendants liable to Plaintiff and the Plaintiff Class;

17

Case 1:16-cv-00636-GJQ-PJG
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PageID.57

.... Page 19 of 20

--- i

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c. Compensatory and exemplary damages;

d. Attorney fees and litigation expenses; e. Any and other relief this Court may deem fair and reasonable.
Respectfully submitted,

0p..
I
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~
~
~
~ Dated: March23, 2016
~
..:I

HERTZ ScHRAM PC
/) hlit c, By: t;u_~& :})v~~t-.. EliZabe~C. ThJmson (P53579) Patricia A. Stamler (P35905) Matthew J. Turchyn (P76482) Attorneys for Plaintiff 1760 South Telegraph Road, Suite 300 Bloomfield Hills, MI 483 02 (248) 335-5000 lthomson@hertzschram.com pstamler@hertzschram.com mturchyn@hertzschram.com

18

Case 1:16-cv-00636-GJQ-PJG ECF No. 1-3 filed 05/31/16 PageID.58 Page 20 of 20
~I~

DESIGNATION OF INSTITUTIONS OF THE STATE JNVOLVED IN CLAIM

I

Pursuant to MCL 600.6431(1), Plaintiff designates the following institutions or agencies

I
I

ofthe state "involved in connection" with this claim:

Office ofthe Governor ofthe State ofMichigan

Michigan Department ofEnvironmental Quality

Michigan Department ofHealth andHuman Services

u
p.,

SIGNATURE AND VERIFICATION OF COMPLAINT BY PLAINTIFF

I

Pursuant to MCL 600.6431(1), Plaintiff hereby signs and verifies this Class Action

tZ)

~~ Complaint before an officer authorized to administer oaths:

~

~
~
.....:l

~ ~

.<'

Signed:

{ tAIVv\ (}A-0....

Tamara Nappier, as mother and Next nend ofTakarie Nappier

CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC

State of:

Michigan

County of: Oakland

The foregoing instrument was acknowledged·before me this 23rd day of March 2016 by Tamara

Nappier.
Signature ofNotary Public: Title or Rank: My Commission Expires:

~Cban+W DEB/ CHARTIER NOTARY PUBUC, STATE OF Ml 2022 COUNfYOF OAKLAND MYCOMM~SIQN ~SNov26, ACTING IN COHNrfOF ~~'\

19
,... ·

 
 Nappier by Nappier v. Governor, Not Reported in N.W. Rptr. (2019) 2019 WL 1211469

2019 WL 1211469 Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
UNPUBLISHED Court of Appeals of Michigan.
Takarie NAPPIER, a Minor, BY Next Friend Tamara NAPPIER, and All Others Similarly
Situated, Plaintiffs-Appellees, v.
GOVERNOR, Darnell Earley, Daniel Wyant, Liane Shekter Smith, Bradley Wurfel, Victoria Eden
Wells, Nancy Peeler, Robert Scott, Nick Lyon and Gerald Ambrose, Defendants, and
Stephen Busch, Patrick Cook and Michael Prysby, Defendants-Appellants.
No. 344363 |
March 14, 2019
Court of Claims LC No. 16-000071-MM
Before: Sawyer, P.J., and Cavanagh and K.F. Kelly, JJ.
Opinion
Per Curiam.
*1 Defendants Stephen Busch, Patrick Cook, and Michael Prysby appeal as of right an order denying their motion for summary disposition premised on the ground that governmental immunity barred this class action lawsuit alleging gross negligence claims. We affirm.
This case concerns what has commonly been referred to as the “Flint water crisis.” In 2014, the City of Flint switched its water source from the City of Detroit water system to the Flint River. Corrosion-control treatments required by the Environmental Protection Agency’s (EPA) Lead and Copper Rule (LCR) were discontinued and ferric chloride was added to the water, which reduced the formation of trihalomethanes from organic matter but also increased the corrosivity of the Flint River water. The more corrosive water is, the more readily metals like lead can be dissolved. Thereafter, the lead concentration in Flint’s water rose to unsafe levels. Plaintiffs unknowingly

consumed the lead-contaminated water, which caused elevated blood lead levels, which then caused brain damage.
On March 23, 2016, plaintiffs’ class action lawsuit was filed on behalf of the minor children who had been living in Flint since April 25, 2014, and who suffered brain damage “as a result of the ingestion of lead-poisoned water from pipes and service lines that supplied water from the Flint River without the use of any corrosion control[.]” Defendants Busch, Cook, and Prysby were sued in their individual1 and official capacities as employees of the Michigan Department of Environmental Quality (MDEQ) who were involved in the City of Flint’s change of water sources, as well as its oversight, and were negligent or grossly negligent in the performance of their duties. In particular, defendant Busch was the district supervisor assigned to the Lansing District Office of the MDEQ, and plaintiffs’ complaint alleges that he:
participated in MDEQ’s repeated violations of federal water quality laws, the failure to properly study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders. He personally falsely reported to the EPA that Flint had enacted an optimized corrosion control plan, providing assurances to the Plaintiff and the Putative class that the water was safe when he knew or should have known that these assurances were false, or were no more likely to be true than false.
Defendant Cook was the water treatment specialist assigned to the Lansing Community Drinking Water Unit of the MDEQ, and plaintiffs’ complaint alleges that he:
participated in[,] approved, and/or assented to the decision to allow Flint’s water to be delivered to residents without corrosion control or proper study and/or testing.
Defendant Prysby was an engineer assigned to District 11

Nappier by Nappier v. Governor, Not Reported in N.W. Rptr. (2019) 2019 WL 1211469

(Genesee County) of the MDEQ, and plaintiffs’ complaint alleges that he:
participated in, approved, and/or assented to the decision to switch the water source, failed to properly monitor and/or test the Flint River water, and providing assurances to the Plaintiff and the Putative class that the Flint River water was safe when he knew or should have known those statements to be untrue, or no more likely to be true than false.
*2 With regard to their gross negligence claims, plaintiffs’ complaint alleges, in brief, that for several months defendants ignored complaints from the residents about the water, including its foul taste, odor, and color, and repeatedly reassured the public that the water was safe despite defendants’ knowledge that the water contained dangerous concentrations of lead, as well as dangerous levels of trihalomethanes, a disinfectant byproduct. In fact, in March 2015, the MDEQ notified the Flint Water Treatment Plant that lead levels exceeded acceptable and safe levels. In June 2015, an agent from the EPA, Miguel Del Toral, wrote a report detailing the numerous, dangerous problems with Flint’s water and this report was provided to these three defendants but no corrective actions were taken. Plaintiffs’ complaint further alleges that in the summer of 2015, a pediatrician at Hurley Hospital in Flint, Dr. Mona Hanna-Attisha, published a study showing that there was “an increase in the percentage of Flint children with elevated blood lead levels from blood drawn in the second and third quarter of 2014.” The data and conclusions drawn in that study were later determined to be correct by the Michigan Department of Health and Human Services (MDHHS). Despite the overwhelming evidence that the water was unsafe and a source of lead poisoning, plaintiffs allege in their complaint, defendants did not take any action with regard to this contaminated water supply until October 1, 2015, when a public health emergency was declared by Genesee County and residents were advised not to drink the water. Plaintiffs allege that defendants had duties to inspect, test, and treat the water supply system to ensure that it was safe for use, and to respond to and remedy the dangers discovered through timely and appropriate measures. Defendants also had duties to warn residents about the dangers rather than provide residents with false and misleading information. Plaintiffs further allege that defendants breached their duties and that their actions

were so reckless as to demonstrate a substantial lack of concern for whether injury would result. Moreover, defendants’ conduct was the direct and proximate cause of plaintiffs’ lead poisoning and related injuries.

On April 6, 2018, defendants Busch, Cook, and Prysby moved for summary disposition under MCR 2.116(C)(7) and (C)(8). First, defendants argued that plaintiffs failed

to comply with the statutory notice provision, MCL 600.6431, because the lawsuit had to be filed within six months of the accrual of claims for personal injuries and it was not so filed. In particular, plaintiffs’ complaint was filed on March 23, 2016, and thus the action had to have accrued after September 23, 2015. However, plaintiffs’ complaint avers that their damages arose from the April 25, 2014 water switch, and that public information regarding elevated blood lead levels and the related harm was published in the summer of 2015. Therefore, plaintiffs should have been aware of a possible cause of action no later than the summer of 2015, but their complaint was untimely filed in March 2016. Accordingly, the complaint should be dismissed for

failure to provide statutory notice under 600.6431.

MCL

Second, defendants argued that the Michigan Safe Drinking Water Act (MSDWA), MCL 325.1001 et seq., preempts common-law claims falling within its scope and plaintiffs’ claims for negligence and/or gross negligence are based on duties imposed by the MSDWA. Because only the Michigan Attorney General may bring a civil action to enforce the MSDWA, plaintiffs’ common-law claims must be dismissed as preempted.

Third, defendants argued that they were entitled to governmental immunity with regard to plaintiffs’ negligence claims because they were acting within the scope of their authority, while engaged in the exercise of the governmental function of regulatory oversight of the public water system, and their conduct was neither grossly negligent nor the proximate cause of injury. In particular, defendants argued, they could not be held liable for ordinary negligence and plaintiffs’ claims alleging gross negligence are not specific enough to give fair notice to each defendant as to their purported acts or omissions that caused damages. But in any case, plaintiffs did not set forth any conduct that rises to the level of gross negligence. And, defendants argued, plaintiffs failed to allege that as public employees they owed duties of care to the general public or that any gross negligence in the performance of those duties was the proximate cause of plaintiffs’ injuries. Accordingly, defendants argued, they were entitled to summary disposition of plaintiffs’ claims.

Nappier by Nappier v. Governor, Not Reported in N.W. Rptr. (2019) 2019 WL 1211469

Plaintiffs responded to defendants’ motion for summary disposition arguing, first, that plaintiffs complied with the
statutory notice requirement set forth in MCL 600.6431. The only allegation in plaintiffs’ complaint indicating that plaintiffs had notice of the basis of their lead poisoning claims was the October 1, 2015 declaration of a public health emergency by Genesee County—when the public was advised not to drink the water—and then plaintiffs filed their complaint within six months, on March 23, 2016.
Second, plaintiffs argued, the MSDWA does not preempt plaintiffs’ common-law claims because there is no express legislative intent to do so and such common-law rights cannot be extinguished by implication. Further, the MSDWA is limited to setting standards related to public water supplies and provides for the MDEQ and the Attorney General to enforce those standards. There is no provision in the MSDWA either establishing a private right of action or abrogating a private right of action. It simply does not apply to this case seeking redress for injuries caused by tortious conduct.
*3 Third, plaintiffs argued that the allegations in their complaint, accepted as true, stated actionable claims of gross negligence against these defendants. As stated in the complaint, defendants owed duties to plaintiffs that included, in brief: to ensure that lead-contaminated water was not provided to the public; to ensure proper corrosion control measures were taken; to properly inspect and test the water supply system to ensure it was safe; to properly act on information demonstrating contamination and unsafe water; and to timely warn the public of the unsafe water and dangers of the lead-contaminated water. Further, defendants breached their duties by, in brief: approving the water supply switch to the Flint River without proper corrosion control measures; failing to properly monitor and test the water; failing to act on knowledge and information that the water supply system was contaminated and unsafe; and by advising and representing to the public that the water was safe. Plaintiffs argued that their complaint was specific and detailed enough to apprise defendants of the claims against them and clearly set forth grossly negligent conduct that is actionable. Plaintiffs further argued that the determination whether defendants’ conduct was the proximate cause of their injuries could not be made without additional evidence. Thus, defendants’ motion for summary disposition should be denied.
Defendants replied to plaintiffs’ response to their motion for summary disposition, arguing that they are clearly immune from any claims of ordinary negligence and the Court of Claims lacked jurisdiction over claims against them in their individual, rather than official, capacities.

Further, defendants argued, plaintiffs’ claims accrued when the water was switched in 2014, not later; thus, notice was insufficient. And, in any case, plaintiffs failed to state claims of gross negligence against defendants. Thus, they were entitled to summary disposition.
On June 13, 2018, the trial court issued its opinion and order on defendants’ motion for summary disposition. First, the court concluded that all claims of ordinary negligence were, as a matter of law, barred by governmental immunity because it was undisputed that defendants were acting within the scope of their authority and were engaged in the exercise of a governmental function. Second, the court concluded that defendants were not entitled to summary disposition on the ground
that plaintiffs failed to comply with MCL 600.6431, the statutory notice provision. Relying on this Court’s
reasoning in Mays v. Snyder, 323 Mich. App. 1; 916 N.W.2d 227 (2018), the trial court held that plaintiffs should be given the opportunity to establish precisely when their distinct harms arose following a period of discovery.
Third, the trial court rejected defendants’ argument that the MSDWA preempted plaintiffs’ common-law claims which are permitted under the governmental tort liability act (GTLA), MCL 691.1401 et seq., and which are based on each individual defendant’s conduct. The MSDWA is silent in this regard and such legislative intent may not be inferred from silence.
Fourth, the trial court concluded that plaintiffs’ allegations of gross negligence are specific enough to give fair notice to each defendant as to their purported wrongdoing that caused damages and, further, that genuine issues of material fact existed as to whether defendants acted with a substantial lack of concern for whether an injury would result. Plaintiffs allege that both defendants Busch and Prysby assured the public, including plaintiffs, that the Flint drinking water was safe although they knew or should have known that such assurances were false or at least no more likely true than false. Plaintiffs also allege that Busch falsely reported to the EPA that Flint had enacted an optimized corrosion control plan. With regard to defendant Cook, plaintiffs allege that he was involved in the decision to allow Flint’s water to be supplied without proper controls or testing and, although he had knowledge of the significant problems with the water quality through a detailed EPA report, Cook failed to act. The trial court concluded that, if plaintiffs prove these allegations against defendants, a jury could find that they acted without care for the safety and welfare of the Flint public.
Finally, the trial court concluded that, to the extent

Nappier by Nappier v. Governor, Not Reported in N.W. Rptr. (2019) 2019 WL 1211469

plaintiffs pursued claims against defendants in their “individual” capacities, such claims were rejected because it was undisputed that defendants’ alleged wrongdoing arose from their respective government positions. Further, the court concluded that, as plaintiffs argued, the determination whether defendants’ conduct was the proximate cause of their injuries could not be made on the insufficient record at that juncture. Thereafter, an order was entered granting defendants’ motion for summary disposition as to claims of ordinary negligence and claims against defendants in the individual capacities, but denying the remainder of defendants’ motion. This appeal by defendants followed.
*4 Defendants first argue that plaintiffs failed to comply
with the statutory notice provision, MCL 600.6431; thus, the trial court should have dismissed this case. We disagree. An issue of statutory interpretation, including
whether MCL 600.6431 requires dismissal for failure to provide the requisite notice, is reviewed de novo.
McCahan v. Brennan, 492 Mich. 730, 735-736; 822 N.W.2d 747 (2012).
MCL 600.6431 provides:
(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim ... stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage ....
* * *
(3) In all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of action.
This statutory notice provision—and in particular the issue of when a claim accrues for its purposes—was
considered in Mays, 323 Mich. App. at 25-45. This Court held that “a claim does not accrue until each element of the cause of action, including some form of
damages, exists.” Id. at 29. “Determination of the time at which plaintiffs’ claims accrued therefore requires a determination of the time at which plaintiffs were first harmed.” Id. Accordingly, the Mays Court held that, because it was “not clear on what date plaintiffs suffered actionable personal injuries as a result of their use and consumption of the contaminated water,” they “should be permitted to conduct discovery and should be given the

opportunity to prove the dates on which their distinct harms first arose before summary disposition may be
appropriate.” Id. at 29-30.
In this case, defendants argued that plaintiffs should have been aware of their possible causes of action no later than the summer of 2015, when public information regarding elevated blood lead levels and related harm was published; thus, plaintiffs’ March 2016 complaint was untimely. However, as set forth in plaintiffs’ complaint, until October 2015 the public was repeatedly reassured by the state and its agents like defendants that the water was not contaminated and was safe for consumption and use. It was not until the October 1, 2015 declaration of a public health emergency by Genesee County that the public was advised not to drink the water and thus, as plaintiffs argued, they had notice of the basis of their lead poisoning claims. Plaintiffs timely filed their complaint within six months of that announcement, on March 23, 2016. We agree with plaintiffs’ argument and reject defendants claim that, in effect, plaintiffs should have ignored or mistrusted the state and government officials’ repeated assurances that the water was safe and filed their lawsuit even before the water was publicly declared unsafe. To adopt defendants’ argument would be tantamount to mandating an expectation that the government and its agents will lie and scheme to avoid liability—regardless of the threat to public health—which
is clearly untenable. See Mays, 323 Mich. App. at 27-28, 36. And under the unique circumstances presented, we agree with the trial court that plaintiffs should be given the opportunity to establish when their distinct
harms arose following a period of discovery. See id. at 28-30. That is, summary disposition on this ground would be premature in this case. Accordingly, we affirm the trial court’s decision in this regard.
*5 Next, defendants argue that the trial court erred in denying their motion for summary disposition on the ground that governmental immunity barred plaintiffs’ gross negligence claims. We disagree.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Walsh v. Taylor, 263 Mich. App. 618, 621; 689 N.W.2d 506 (2004). Defendants moved for summary disposition under MCR 2.116(C)(7) which tests whether a claim is barred by immunity. Herman v. Detroit, 261 Mich. App. 141, 143; 680 N.W.2d 71 (2004) (citation omitted). “To survive such a motion, the plaintiff must allege facts justifying the application of an exception to governmental immunity.”
Fane v. Detroit Library Comm., 465 Mich. 68, 74; 631 N.W.2d 678 (2001). The factual allegations set forth in the complaint are accepted as true “unless affidavits or

Nappier by Nappier v. Governor, Not Reported in N.W. Rptr. (2019) 2019 WL 1211469

other appropriate documents specifically contradict them.” Id. The pleadings and documentary evidence must be construed in the light most favorable to the nonmoving party. Herman, 261 Mich. App. at 143-144. If a relevant factual dispute exists, summary disposition may not be granted. Moraccini v. Sterling Heights, 296 Mich. App. 387, 391; 822 N.W.2d 799 (2012).
Defendants also moved for summary disposition under MCR 2.116(C)(8) which tests the legal sufficiency of the
complaint. Maiden v. Rozwood, 461 Mich. 109, 119; 597 N.W.2d 817 (1999). “All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant.” Id. “A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.” Id. (quotation marks and citation omitted).
Under MCL 691.1407 of the GTLA, governmental employees acting within the scope of their authority are generally entitled to immunity from tort liability unless their conduct amounts to gross negligence that is the proximate cause of the alleged injury or damage. MCL
691.1407(2)(c); Tarlea v. Crabtree, 263 Mich. App. 80, 89; 687 N.W.2d 333 (2004). Gross negligence is specifically defined by the GTLA as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). As this Court noted in Tarlea, the definition suggests “almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks. It is as though, if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge.”
Tarlea, 263 Mich. App. at 90. Moreover, this grossly negligent conduct must be the proximate cause of the plaintiffs’ injuries, i.e., “the one most immediate, efficient, and direct cause preceding an injury.”
Robinson v. City of Detroit, 462 Mich. 439, 458-459; 613 N.W.2d 307 (2000).
First, defendants argue that they owed no duty to plaintiffs upon which gross negligence claims can be based; thus, plaintiffs’ gross negligence claims must fail. We disagree. A gross negligence claim is properly dismissed under MCR 2.116(C)(8) if the plaintiff fails to establish that the defendant owed the plaintiff a legal duty
in tort. Beaudrie v. Henderson, 465 Mich. 124, 130;
631 N.W.2d 308 (2001); Maiden, 461 Mich. at 135.
*6 We note first that, contrary to plaintiffs’ argument on appeal, defendants did raise this issue in the trial court but it was not addressed by the court. However, the trial

court’s failure to address an issue that was properly raised does not preclude our consideration of that issue.
Peterman v. Dep’t of Natural Resources, 446 Mich. 177, 183; 521 N.W.2d 499 (1994). We may consider an issue that is necessary to a proper determination of the case, or an issue of law for which the necessary facts have been presented. Steward v. Panek, 251 Mich. App. 546, 554; 652 N.W.2d 232 (2002). And the issue whether defendants owed plaintiffs an actionable legal duty
presents a question of law for the court. See Maiden, 461 Mich. at 131.

MCL 691.1407 does not create a cause of action; rather, a plaintiff must establish that a governmental employee defendant owed a common-law duty to the plaintiff.

Beaudrie, 465 Mich. at 139 n.12. “A negligence action may only be maintained if a legal duty exists which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable

risks of harm.” Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96; 485 N.W.2d 676 (1992). Generally, an individual has no duty to protect another who is endangered by a third person’s conduct, but a duty of reasonable care may arise when there is a special relationship between the defendant and either the plaintiff or the third party causing the injury. Bailey v. Schaaf, 494 Mich. 595, 604; 835 N.W.2d 413 (2013); Murdock v. Higgins, 208 Mich. App. 210, 214; 527 N.W.2d 1 (1994),

affirmed

454 Mich. 46 (1997). Whether a

duty-imposing special relationship exists generally

depends on “whether the plaintiff entrusted himself to the

control and protection of the defendant, with a consequent

loss of control to protect himself.” Murdock, 208 Mich.

App. at 215. Another consideration is the foreseeability of

the risk. Buczkowski v. McKay, 441 Mich. 96, 101; 490 N.W.2d 330 (1992). In Murdock, this Court explained that, to determine whether an actionable duty exists in a particular case, it is necessary to:

“balance the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the relationship between the parties. ... Other factors which may give rise to a duty include the foreseeability of the [harm], the defendant’s ability to comply with the proposed duty, the victim’s inability to protect himself from the [harm], the costs of providing protection, and whether the plaintiff had bestowed some economic benefit on the defendant.” [Murdock, 208 Mich. App. at 215, quoting Dykema v. Gus Macker Enterprises, Inc., 196 Mich. App. 6, 9; 492 N.W.2d 472 (1992), quoting Roberts v. Pinkins, 171 Mich. App. 648, 652-653; 430 N.W.2d 808 (1988);
see also Buczkowski, 441 Mich. at 100-102.]

Nappier by Nappier v. Governor, Not Reported in N.W. Rptr. (2019) 2019 WL 1211469

In this case, defendants argue that as public employees of the MDEQ, they owed no duties to individual members of the public like plaintiffs in this case. We cannot agree. While the type of “special relationship” at issue here is not the type normally found in our caselaw, nonetheless, we conclude that plaintiffs properly alleged that a duty-imposing special relationship existed. Defendants, as key employees of the MDEQ, had a “special relationship” with the City of Flint which distributed the lead-poisoned water to plaintiffs and the existence of this relationship gave rise to defendants’ duties to exercise reasonable care to protect plaintiffs from an unreasonable risk of harm.2
See Riddle, 440 Mich. at 96; Murdock, 208 Mich. App. at 214.
*7 Pursuant to the MSDWA, the MDEQ has “power and control over public water supplies and suppliers of water.” MCL 325.1003. As employees of the MDEQ, defendants were charged with the duties to ensure that the water supply system serving the public in the City of Flint met federal, state, and other requirements so that it was safe to use and consume. Plaintiffs have alleged in their complaint that each defendant in this case played a critical role in the City of Flint distributing lead-poisoned water to its residents in the first place, and then allowed the City of Flint to continue to do so by failing to properly inspect, monitor, and test the water system, as well as timely and properly respond to information indicating that lead contaminated the water. As residents of the City of Flint, plaintiffs were dependent on—and justifiably relied upon—the water supply provided to them by the City of Flint, which was to be regulated by defendants. That is, plaintiffs clearly had no control over the public water supply system and relied on defendants to ensure that the City of Flint complied with the applicable laws for the protection of the public. See Murdock, 208 Mich. App. at 214-215. It is undisputed that lead-poisoned water poses an unreasonable risk of harm to persons using and consuming the contaminated water. Further, that unreasonable risk of harm was well-known and plaintiffs were persons who were readily identifiable as foreseeably
endangered. See Murdock v. Higgins, 454 Mich. 46, 58; 559 N.W.2d 639 (1997) (citation omitted). Balancing the societal interests involved and severity of risk, including that lead-poisoned water causes death and/or permanent, irreversible brain damage in infants and children, as well as the burden on defendants—which was simply to perform their duties as required by their employment with the MDEQ—we conclude that defendants owed a legal duty to each plaintiff upon which gross negligence claims could be based.
Next, defendants argue that the trial court erred in holding that a genuine issue of material fact existed as to whether

defendants’ conduct could be considered grossly negligent. We disagree.
Generally, plaintiffs alleged in their complaint that defendants’ egregious conduct included (1) permitting the City of Flint to distribute to its residents improperly treated water, which resulted in lead-contaminated water being used and consumed by unsuspecting residents; (2) ignoring or concealing information that the water was unsafe for use and consumption; (3) failing to properly act to confirm or remedy the contamination problem when it was revealed; (4) failing to stop the distribution of lead-contaminated water; and (5) failing to timely advise Flint residents, including plaintiffs, of the dangerous condition. More specifically, as the trial court noted, plaintiffs alleged that defendant Busch falsely reported to the EPA that Flint had enacted an optimized corrosion control plan; participated in MDEQ’s repeated violations of federal water quality laws; failed to properly study and treat the Flint River water; participated in MDEQ’s program of denials, lies, and attempts to discredit outside information; and provided false assurances to Flint residents, including plaintiffs, that the water was safe to consume although he knew or should have known that it was not. Plaintiffs also alleged that defendant Prysby participated in and approved the decision to switch the water source; failed to properly monitor and test the Flint River water; and provided false assurances to the Flint residents, including plaintiffs, that the water was safe to consume although he knew or should have known that it was not. Plaintiffs alleged that defendant Cook participated in and approved the decision to allow water to be delivered to Flint residents without corrosion control or proper study and testing. These allegations indicate that defendants’ conduct not only created this public health crisis, but allowed it to perpetuate because of gross incompetence, obstructive conduct, and indifference for the health of Flint residents, including plaintiffs. In other words, we agree with the trial court that a reasonable juror could conclude that defendants’ conduct was so “reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). An objective observer could reasonably conclude that defendants did not care about the health, safety, and
welfare of Flint residents. See Tarlea, 263 Mich. App. at 90.
Finally, defendants argue that the trial court erred in holding that there was insufficient record evidence to make the determination whether defendants’ conduct was the proximate cause of plaintiffs’ injuries. We disagree.
As defendants argue, even if their conduct was grossly negligent, they are immune from liability unless that conduct was the proximate cause of plaintiffs’ injuries,

Nappier by Nappier v. Governor, Not Reported in N.W. Rptr. (2019) 2019 WL 1211469

i.e., “the one most immediate, efficient, and direct cause.”

Robinson, 462 Mich. at 462. However, as the trial

court noted, in Ray v. Swager, 501 Mich. 52; 903 N.W.2d 366 (2017), our Supreme Court clarified the analysis required to determine whether a defendant’s conduct is “the proximate cause” of an injury. In Ray, the defendant argued that he was entitled to governmental immunity and the issue was whether his conduct was “the

proximate cause” of the plaintiff’s injuries. 62-63. The Ray Court explained:

Id. at

*8 Proximate cause is an essential element of a negligence claim. It involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences. Proximate cause is distinct from cause in fact, also known as factual causation, which requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have occurred.... In a negligence action, a plaintiff must establish both factual causation, i.e., the defendant’s conduct in fact caused harm to the plaintiff, and legal causation, i.e., the harm caused to the plaintiff was the general kind of harm the defendant negligently risked. If factual causation cannot be established, then proximate cause, that is, legal causation, is no longer a relevant issue.

We take this opportunity to clarify the role that factual and legal causation play when analyzing whether a defendant’s conduct was ‘the proximate cause’ of a plaintiff’s injuries under the GTLA. In any negligence case, including one involving a government actor’s gross negligence, a court must determine whether ‘the defendant’s negligence was a cause in fact of the plaintiff’s injuries .... But the court must also assess proximate cause, that is, legal causation, which requires a determination of whether it was foreseeable that the defendant’s conduct could result in harm to the victim. A proper legal causation inquiry considers whether an actor should be held legally responsible for his or her conduct, which requires determining whether the actor’s breach of a duty to the plaintiff was a proximate cause of the plaintiff’s injury. It is not uncommon that more than one proximate cause contributes to an injury.

Footnotes

However, under the GTLA, we have held that when assessing whether a governmental employee was ‘the proximate cause’ of the plaintiff’s injuries, a court must determine whether the defendant’s conduct was the one most immediate, efficient, and direct cause of the injury[.] [Id. at 63-65 (quotation marks and footnoted citations omitted).]
In this case, we agree with the trial court that the issue whether defendants’ conduct was the proximate cause of plaintiffs’ injuries cannot be determined as a matter of law on the evidence of record. In brief, plaintiffs alleged in their complaint that defendants failed to prevent the City of Flint from distributing to its residents improperly treated water which ultimately became contaminated with lead; failed to timely discover that the water was unsafe through proper inspection, monitoring, and testing of the water system; failed to immediately act on information indicating that the water system was contaminated and unsafe; failed to immediately stop the distribution of lead contaminated water; and failed to timely advise Flint residents of the dangerous condition which resulted in serious injuries. If the evidence bears out plaintiffs’ allegations that defendants’ conduct in fact caused harm to plaintiffs, then it appears that the harm caused to plaintiffs—lead poisoning—is the general kind of harm
that defendants’ conduct foreseeably risked. See Ray, 501 Mich. at 64, 81-82. In other words, defendants’ conduct could be deemed the legal or “the proximate cause” of plaintiffs’ injuries, i.e., the one most immediate, efficient, and direct cause of plaintiffs’ injuries. See
id. at 65. But, again, the evidentiary record is not sufficient at this time to make such a determination. Thus, defendants’ argument is without merit.
Affirmed.
All Citations
Not Reported in N.W. Rptr., 2019 WL 1211469

1

Plaintiffs’ complaint alleged that, “[t]o the extent the Defendants’ conduct was inconsistent with or contrary to their respective

job responsibilities they acted outside the scope of their employment and are thus individually liable.”

2

Defendants are not entitled to application of the public duty doctrine, which generally applies to police officers on the ground

that they owe a duty to the public in general and not to any specific individual. See, e.g., Gazette v. City of Pontiac, 212 Mich.

App. 162, 171; 536 N.W.2d 854 (1995). In Beaudrie v. Henderson, 465 Mich. 124, 134; 631 N.W.2d 308 (2001), our Supreme Court refused to expand the public duty doctrine, holding that the “liability of government employees, other than those who

Nappier by Nappier v. Governor, Not Reported in N.W. Rptr. (2019) 2019 WL 1211469
have allegedly failed to provide police protection, should be determined using traditional tort principles without regard to the defendant’s status as a government employee.”

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

 
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DEFENDANT 1 INACTIVE AS OF 6/29/17
DEFENDANT 2 INACTIVE AS OF 8/1/17
DEFENDANT 4 INACTIVE AS OF 4/19/18
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DEFENDANT 7
DEFENDANT 8
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DEFENDANT 12
DEFENDANT 13
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Date Filed

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3/23/16 STAY OF PROCEEDINGS 12/3/20

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STATE OF MICHIGAN COURT OF CLAIMS

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Certified copy of case file mailed to below address: Judge Gordon J. Quist 110 Michigan Street NW Grand Rapids, MI 49503
CLOSE CASE STATUS

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DEF 1 RICHARD SNYDER

DEF 2 DARNELL EARLEY

DEF 4 DANIEL WYANT

DEF 5 LIANE SHEKTER SMITH

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4/26/17

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 7 of 19

Activity Date

DEF 14

4/26/17

MOTION FOR STAY PENDING APPEAL

Activity

4/26/17 4/26/17
4/26/17 4/27/17

DEF 4 DEF 5 DEF 6 DEF 7 DEF 8 DEF 9 RECEIVABLE MOTION FEE BRIEF FILED IN SUPPORT OF MOTION FOR STAY PENDING APPEAL DEF 4 DEF 5 DEF 6 DEF 7 DEF 8 DEF 9 ORDER FROM THE MICHIGAN SUPREME COURT (ADM FILE NO. 201701) ASSIGNMENT OF JUDGES TO THE COURT OF CLAIMS AND REAPPOINTMENT OF CHIEF JUDGE ORDER

4/27/17
4/27/17 4/28/17 5/1/17 5/1/17 5/5/17
5/5/17
5/5/17 5/8/17
5/10/17

BOONSTRA, MARK 36046 PAYMENT RECEIPT NUMBER: COC-LAN.0001948 METHOD: CHECK $20.00 COMMENT NOTIFICATION form was generated. ORDER OF REASSIGNMENT TALBOT, MICHAEL 21245 JUDICIAL OFFICER REASSIGNED FROM BOONSTRA, MARK 36046 JUDICIAL OFFICER ASSIGNED TO MURRAY, CHRISTOPHER M. 43849 RESPONSE TO DEFENDANTS GOVERNOR SNYDER, EDEN WELLS, AND NICK LYON'S 4/14/17 MOTION FOR SUMMARY DISPOSITION (ORAL ARGUMENT REQUESTED) PTF 1 MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED) DEF 12 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0001997 METHOD: CHECK $20.00 ORDER SETTING BRIEFING SCHEDULE

5/15/17

APPEARANCE

DEF 2

User

Entry Date

$20.00

mmla mmla

4/27/17 4/27/17

$20.00

mmla mmla

4/27/17 4/27/17

$20.00

amd

4/27/17

mmla amd

4/27/17 2/12/18

mmla

4/27/17

amd

4/27/17

amd

5/1/17

system system
mmla

4/28/17 4/28/17
5/5/17

$20.00
$20.00 $20.00

mmla mmla
mmla mmla

5/8/17 5/8/17
5/8/17 5/8/17

mmla mmla
mmla amd

5/10/17 5/10/17
5/15/17 9/25/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 8 of 19

Activity Date

Activity

5/19/17

REPLY BRIEF OF DEFENDANTS IN SUPPORT OF THEIR 4/14/2017 MOTION FOR SUMMARY DISPOSITION

DEF 1

DEF 10

DEF 14

5/24/17

ORDER SETTING BRIEFING SCHEDULE

5/24/17

ORDER FOR RESPONSE BRIEF

5/26/17 6/7/17 6/7/17

RESPONSE TO MAY 5, 2017 MOTION OF DEFENDANT PEELER FOR SUMMARY DISPOSITION (ORAL ARGUMENT REQUESTED) PTF 1 CONCURRENCE IN MOTION FOR STAY PENDING APPEAL DEF 13 RESPONSE TO MDEQ MOTION FOR STAY PENDING APPEAL

6/7/17 6/9/17

PTF 1 RESPONSE TO MDEQ DEFENDANTS' MOTION FOR STAY DEF 1 DEF 10 DEF 14 ORDER

6/12/17 6/13/17 6/14/17 6/14/17
6/16/17

RESPONSE TO MDEQ DEFENDANTS' 4/26/2017 MOTION FOR STAY PENDING APPEAL DEF 12
PROOF OF SERVICE PLAINTIFF'S RESPONSE TO MOTION FOR STAY
PTF 1
RESPONSE TO MOTION FOR SUMMARY DISPOSITION BY DEFENDANTS DARNELL EARLEY AND GERALD AMBROSE (ORAL ARGUMENT REQUESTED) PTF 1
RESPONSE TO MOTION FOR SUMMARY DISPOSITION FILED BY FORMER EMERGENCY MANAGERS (ORAL ARGUMENT REQUESTED) DEF 1
DEF 10
DEF 14
PAYMENT

6/17/17

RECEIPT NUMBER: COC-LAN.0002087 METHOD: ELECTRONIC FUND TRANSFER $20.00 AMENDED ORDER SETTING BRIEFING SCHEDULE

6/21/17 6/23/17

REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY DISPOSITION BY DEFENDANTS DARNELL EARLEY AND GERALD AMBROSE DEF 2
DEF 15
REPLY IN SUPPORT OF MOTION TO STAY
DEF 4

User

Entry Date

amd

5/19/17

mmla amd
mmla amd
mmla

5/25/17 9/25/18
5/25/17 9/25/18
5/26/17

mmla

6/7/17

mmla mmla
mmla

6/7/17 9/25/18
6/7/17

mmla amd
mmla

6/13/17 9/26/17
6/13/17

mmla

6/14/17

mmla mmla

6/14/17 5/21/18

mmla

6/14/17

$20.00

mlh

6/16/17

mlh

6/16/17

mmla mmla
amd

6/26/17 8/16/17
6/21/17

mmla

6/26/17

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 9 of 19

Activity Date DEF 5

Activity

DEF 6

DEF 7

DEF 8

DEF 9

6/26/17

MOTION TO STRIKE STATE DEFENDANTS' RESPONSE TO MOTION FOR SUMMARY DISPOSITION FILED BY FORMER EMERGENCY MANAGERS OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A REPLY
PTF 1

6/26/17

RECEIVABLE MOTION FEE

6/26/17

PAYMENT

RECEIPT NUMBER: COC-LAN.0002128

METHOD: CHECK $20.00

6/27/17

PROPOSED STIPULATED ORDER

DEF 1

DEF 2

DEF 10

DEF 14

DEF 15

6/28/17

MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT

6/28/17 6/28/17 6/29/17
6/29/17 6/29/17 6/30/17

DEF 13 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0002133 METHOD: CHECK $20.00 ORDER GRANTING IN PART MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY DEFENDANTS' MOTION TO STAY DEF 2 DEF 4 DEF 5 DEF 6 DEF 7 DEF 8 DEF 9 DEF 12 DEF 13 DEF 15 OPINION AND ORDER GRANTING DEFENDANTS SNYDER, LYON AND WELLS' MOTION FOR SUMMARY DISPOSITION DEF 1 DEF 10 DEF 14 STIPULATED ORDER REPLY TO STATE DEFENDANTS' RESPONSE TO FORMER EMERGENCY MANAGERS' MOTION FOR SUMMARY DISPOSITION (ORAL ARGUMENT REQUESTED)

User

Entry Date

$20.00
$20.00 $20.00

mmla mmla

6/26/17 6/26/17

mmla mmla

6/26/17 6/26/17

mmla

6/27/17

$20.00
$20.00 $20.00

mmla mmla
mmla mmla

6/28/17 6/28/17
6/28/17 6/28/17

mmla

6/29/17

mmla amd

6/29/17 9/25/18

mmla mmla

7/3/17 7/3/17

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 10 of 19

Activity Date DEF 2

Activity

DEF 15

6/30/17

REPLY TO STATE DEFENDANTS' MOTION FOR SUMMARY DISPOSITION FILED BY FORMER EMERGENCY MANAGERS
PTF 1

6/30/17

NOTICE OF WITHDRAWAL OF PLAINTIFF'S 6/26/17 MOTION TO STRIKE STATE DEFENDANTS' RESPONSE TO MOTION FOR SUMMARY DISPOSITION FILED BY EMERGENCY MANAGERS OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A REPLY BRIEF
PTF 1

6/30/17

PROOF OF SERVICE

PTF 1

7/3/17

NOTICE OF SUBSTITUTION OF COUNSEL

DEF 13

7/12/17

RESPONSE TO ROBERT SCOTT'S 6/28/17 MOTION FOR SUMMARY DISPOSITION
PTF 1

8/1/17

SET ASIDE DISPOSITION

DEF 2 DARNELL EARLEY

DEF 15 GERALD AMBROSE

8/1/17

OPINION AND ORDER GRANTING DEFENDANTS EARLEY AND AMBROSE'S MOTION FOR SUMMARY DISPOSITION
DEF 2

DEF 15

8/10/17

BRIEF FILED - SUPPLEMENTAL BRIEF REGARDING RAY V SWAGER

PTF 1

8/25/17

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS SCOTT AND PEELER'S MOTIONS FOR SUMMARY DISPOSITION
DEF 12

DEF 13

9/25/17

MOTION FOR STAY OF PROCEEDINGS WITH BRIEF IN SUPPORT

9/25/17 9/26/17
10/3/17 10/9/17 10/12/17 11/2/17

DEF 12 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0002330 METHOD: CHECK $20.00 Payment received at the Detroit location of the Michigan Court of Appeals. RESPONSE TO NANCY PEELER'S MOTION FOR TEMPORARY STAY OF PROCEEDINGS PTF 1 BRIEF FILED - REPLY BRIEF IN SUPPORT OF MOTION FOR TEMPORARY STAY OF PROCEEDINGS DEF 12 ORDER DISMISSING DEFENDANT NANCY PEELER'S MOTION FOR TEMPORARY STAY OF PROCEEDINGS AS MOOT NOTICE OF SCREENING DEVICE DEF 1

User

Entry Date

mmla

7/3/17

mmla mmla

7/3/17 8/14/17

mmla

7/3/17

mmla

7/3/17

mmla

8/14/17

mmla

8/2/17

mmla amd

8/2/17 9/25/18

mmla

8/14/17

mmla

8/30/17

$20.00
$20.00 $20.00

amd

9/26/17

amd

9/26/17

amd

9/26/17

amd

9/26/17

mmla

10/5/17

mmla

10/9/17

mmla mmla

10/12/17 11/3/17

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 11 of 19

Activity Date DEF 10

Activity

DEF 14

12/18/17

ORDER REGARDING STAY AND SETTING STATUS CONFERENCE

12/18/17
12/19/17 1/16/18 1/17/18 1/17/18 1/17/18 1/18/18 2/6/18
2/8/18 2/12/18

SET ASIDE DISPOSITION

STAY LIFTED

DEF 4 DANIEL WYANT

DEF 5 LIANE SHEKTER SMITH

DEF 6 STEPHEN BUSCH

DEF 7 PATRICK COOK

DEF 8 MICHAEL PRYSBY

DEF 9 BRADLEY WURFEL

DEF 12 NANCY PEELER

DEF 13 ROBERT SCOTT

STATUS CONFERENCE

CANCELLED 1/18/18 10:00 A

LOC: DETROIT COA COURTROOM

ORDER APPOINTING FACILITATIVE MEDIATORS PURSUANT TO E.D. MICH LOCAL R. 16.4 (HONORABLE JUDITH E. LEVY)
STIPULATION AND PROPOSED ORDER TO ADJOURN STATUS CONFERENCE
ORDER ADJOURNING STATUS CONFERENCE

STATUS CONFERENCE 1/18/18 10:00 AM

CANCELLED

STIPULATION TO ADJOURN

SCHEDULING ORDER

PROPOSED STIPULATED ORDER ALLOWING PLAINTIFFS AN EXTENSION TO FILE MOTION FOR CLASS CERTIFICATION
PTF 1

DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

DEF 12

DEF 13

STIPULATED ORDER ALLOWING PLAINTIFFS AN EXTENSION TO FILE MOTION FOR CLASS CERTIFICATION
STIPULATION - JOINT REQUEST FOR STATUS CONFERENCE

PTF 1 DEF 4 DEF 5 DEF 6 DEF 7 DEF 8 DEF 9

User

Entry Date

amd 12/19/17 amd 12/19/17
amd 12/20/17

amd 12/19/17

amd

4/12/18

amd

1/17/18

amd

1/17/18

amd

1/17/18

mmla
mmla mmla

1/18/18
2/6/18 5/22/18

amd mmla
mmla amd

2/8/18 5/22/18
2/13/18 9/25/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 12 of 19

Activity Date DEF 12

Activity

DEF 13

2/21/18

ORDER SETTING STATUS CONFERENCE

2/21/18

STATUS CONFERENCE (LEAD COUNSEL FOR EACH PARTY TO ATTEND)
LOC: DETROIT COA COURTROOM

3/12/18

DEFAULT, REQUEST AFFIDAVIT AND ENTRY

DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

DEF 12

DEF 13

3/12/18

RESPONSE TO REQUEST FOR ENTRY OF DEFAULT

DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

3/12/18

MOTION TO (1) ADJUDICATE THEIR PREVIOUSLY-FILED MOTIONS TO DISMISS, OR SET BRIEFING SCHEDULE FOR MOTIONS UNDER MCR 2.116(C)(7) AND (8); AND (2) STAY PROCEEDINGS UNTIL ADJUDICATION OF DISPOSITIVE MOTIONS
DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

3/12/18

RECEIVABLE MOTION FEE

3/13/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0002647

METHOD: CHECK $20.00

3/13/18

REQUEST FOR ADMISSIONS AND FOLLOW UP INTERROGATORY DIRECTED TO DEFENDANT STEPHEN BUSCH
PTF 1

3/13/18

REQUEST FOR ADMISSIONS AND FOLLOW UP INTERROGATORY DIRECTED TO DEFENDANT PATRICK COOK
PTF 1

3/13/18

REQUEST FOR ADMISSIONS AND FOLLOW UP INTERROGATORY DIRECTED TO DEFENDANT NANCY PEELER
PTF 1

3/13/18

REQUEST FOR ADMISSIONS AND FOLLOW UP INTERROGATORY DIRECTED TO DEFENDANT MICHAEL PRYSBY

SET 3/15/18 10:00 A
$20.00 $20.00 $20.00

User

Entry Date

amd

2/21/18

amd

2/21/18

amd

3/12/18

mmla

3/13/18

mmla mmla

3/13/18 3/13/18

mmla mmla

3/13/18 3/13/18

mmla amd

3/16/18 9/25/18

mmla amd

3/16/18 9/25/18

mmla amd

3/16/18 9/25/18

mmla amd

3/16/18 9/25/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 13 of 19

Activity Date PTF 1

Activity

3/13/18

REQUEST FOR ADMISSIONS AND FOLLOW UP INTERROGATORY DIRECTED TO DEFENDANT ROBERT SCOTT
PTF 1

3/13/18

REQUEST FOR ADMISSIONS AND FOLLOW UP INTERROGATORY DIRECTED TO DEFENDANT LIANE SHEKTER SMITH
PTF 1

3/13/18

REQUEST FOR ADMISSIONS AND FOLLOW UP INTERROGATORY DIRECTED TO DEFENDANT BRADLEY WURFEL
PTF 1

3/13/18

REQUEST FOR ADMISSIONS AND FOLLOW UP INTERROGATORY DIRECTED TO DEFENDANT DANIEL WYANT
PTF 1

3/13/18 3/15/18

PROOF OF SERVICE OF A COPY OF PLAINTIFF'S REQUEST FOR ADMISSIONS AND FOLLOW UP INTERROGATORY
AMENDED SCHEDULING ORDER

3/15/18
3/15/18
3/15/18 3/15/18 3/27/18

STATUS CONFERENCE 3/15/18 10:00 AM

PTF 1 TAMARA NAPPIER

DEF 4 DANIEL WYANT

DEF 5 LIANE SHEKTER SMITH

DEF 6 STEPHEN BUSCH

DEF 7 PATRICK COOK

DEF 8 MICHAEL PRYSBY

DEF 9 BRADLEY WURFEL

DEF 12 NANCY PEELER

DEF 13 ROBERT SCOTT

HELD

STATUS CONFERENCE LOCATION: HALL OF JUSTICE ROOM 3S-86
LOC: HALL OF JUSTICE

CANCELLED 6/13/18 4:00 P

PTF 1

DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

DEF 12

DEF 13

PROOF OF SERVICE NOTICE OF TAKING DEPOSITION DUCES TECUM OF DEFENDANTS
PTF 1

RESPONSE TO REQUEST FOR ENTRY OF DEFAULT

DEF 12

NOTICE OF WITHDRAWAL OF MDEQ DEFENDANTS' MOTION TO (1) ADJUDICATE THEIR PREVIOUSLY - FILED MOTIONS TO DISMISS, OR, IN THE ALTERNATIVE, SET A BRIEFING SCHEDULE FOR MOTIONS UNDER MCR 2.116(C)(7) AND (8)...

User

Entry Date

mmla amd

3/16/18 9/25/18

mmla

3/16/18

mmla

3/16/18

mmla

3/16/18

amd
mmla amd
mmla

9/25/18
3/15/18 9/25/18 3/15/18

mmla

3/15/18

mmla

3/15/18

mmla

3/16/18

amd mmla

3/27/18 5/22/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 14 of 19

Activity Date DEF 4

Activity

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

3/27/18

RESPONSE TO THE MDEQ'S MOTION TO ADJUDICATE THEIR PREVIOUSLY-FILED MOTIONS TO DISMISS, OR, IN THE ALTERNATIVE, SET A BRIEFING SCHEDULE FOR MOTIONS UNDER MCR 2.116(C)(7) AND (8)
PTF 1

4/5/18

MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY

4/5/18 4/5/18
4/5/18 4/6/18
4/6/18 4/6/18
4/6/18
4/6/18 4/6/18
4/6/18 4/6/18
4/6/18
4/6/18
4/6/18 4/6/18

DEF 12 RECEIVABLE MOTION FEE ANSWER, CIVIL TO VERIFIED CLASS ACTION COMPLAINT AND DEFENSES DEF 12 NOTICE OF SPECIAL AND/OR AFFIRMATIVE DEFENSES DEF 12 MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT *ORAL ARGUMENT REQUESTED* DEF 9 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0002682 METHOD: CHECK $20.00 MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT *ORAL ARGUMENT REQUESTED* DEF 4 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0002683 METHOD: CHECK $20.00 ANSWER, CIVIL DEF 13 CONCURRENCE WITH MOTION FOR PROTECTIVE ORDER FILED BY NANCY PEELER DEF 13 CONCURRENCE WITH MOTION FOR PROTECTIVE ORDER FILED BY MDEQ DEF 13 MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED) DEF 5 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0002686

User

Entry Date

mmla amd

3/30/18 9/25/18

$20.00 $20.00
$20.00 $20.00 $20.00

mmla mmla
mmla mmla

4/6/18 4/6/18
4/6/18 4/6/18

mmla
amd amd
amd amd

4/6/18
4/6/18 4/6/18
4/6/18 4/6/18

$20.00
$20.00 $20.00

amd

4/6/18

amd

4/6/18

amd

4/6/18

amd

4/6/18

$20.00
$20.00 $20.00

amd

4/6/18

amd

4/6/18

amd

4/6/18

mmla mmla
mmla mmla

4/6/18 4/6/18
4/6/18 4/6/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 15 of 19

Activity Date METHOD: CHECK $20.00

Activity

4/6/18

MDEQ EXECUTIVE DEFENDANTS' CONCURRENCE IN MDEQ DEFENDANTS' MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY
DEF 4

DEF 9

4/6/18

CERTIFICATE OF SERVICE DEFENDANT DANIEL WYANT'S MOTION FOR SUMMARY DISPOSITION
DEF 4

4/6/18

CERTIFICATE OF SERVICE DEFENDANT WURFEL'S MOTION FOR SUMMARY DISPOSITION
DEF 9

4/6/18

MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED)
DEF 5

DEF 6

DEF 7

DEF 8

4/6/18

RECEIVABLE MOTION FEE

4/6/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0002687

METHOD: CHECK $20.00

4/6/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0002688

METHOD: CHECK $20.00

4/6/18

MOTION TO DISMISS AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED)
DEF 6

DEF 7

DEF 8

4/6/18

RECEIVABLE MOTION FEE

4/10/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0002697

METHOD: CHECK $20.00

4/11/18 4/12/18

PROOF OF SERVICE OF A COPY OF LIANE SHEKTER SMITH'S MOTION FOR SUMMARY DISPOSITION AND SUPPORTING BRIEF
ORDER SETTING BRIEFING SCHEDULE

4/12/18 4/13/18
4/13/18

ORDER FOR MEDIATION PROOF OF SERVICE MDEQ EMPLOYEE DEFENDANTS' MOTION TO DISMISS AND BRIEF IN SUPPORT DEF 6 DEF 7 DEF 8 STIPULATION REGARDING THE USE OF E-MAIL SERVICE AND PROPOSED ORDER PTF 1 DEF 4 DEF 5

User

Entry Date

mmla

4/6/18

$20.00

mmla

4/6/18

mmla

4/6/18

mmla mmla

4/6/18 4/6/18

$20.00 $20.00

mmla mmla

4/6/18 4/6/18

$20.00

mmla

4/6/18

$20.00

mmla mmla

4/10/18 4/10/18

$20.00 $20.00

mmla mmla

4/10/18 4/10/18

amd
amd mmla
amd mmla mmla

4/11/18
4/12/18 1/3/19
4/12/18 4/13/18
1/3/19

mmla

4/13/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Activity Date DEF 6

Activity

DEF 7

DEF 8

DEF 9

DEF 12

DEF 13

4/17/18

ORDER REGARDING EMAIL SERVICE

4/18/18

STIPULATION AND PROPOSED ORDER TO DISMISS

PTF 1

DEF 4

DEF 5

DEF 9

4/19/18

ORDER OF DISMISSAL

DEF 4

DEF 5

DEF 9

4/27/18

REPLY BRIEF TO DEFENDANT NANCY PEELER'S SPECIAL AND/OR AFFIRMATIVE DEFENSES
PTF 1

4/30/18

RESPONSE TO THE MDEQ DEFENDANTS' MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY (ORAL ARGUMENT REQUESTED)
PTF 1

4/30/18

RESPONSE TO DEFENDANT NANCY PEELER'S MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY (ORAL ARGUMENT REQUESTED)
PTF 1

4/30/18

RESPONSE TO THE MDEQ EMPLOYEE DEFENDANTS' MOTION TO DISMISS (ORAL ARGUMENT REQUESTED)
PTF 1

4/30/18

PROOF OF SERVICE

PTF 1

5/11/18

REPLY BRIEF IN SUPPORT OF 4/6/18 MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY (ORAL ARGUMENT REQUESTED)
DEF 6

DEF 7

DEF 8

5/11/18

REPLY BRIEF IN SUPPORT OF MDEQ EMPLOYEE DEFENDANTS' 4/6/18 MOTION TO DISMISS (ORAL ARGUMENT REQUESTED)
DEF 6

DEF 7

DEF 8

5/11/18

CONCURRENCE WITH REPLY BRIEF FOR PROTECTIVE ORDER

DEF 13

5/30/18 5/30/18

OPINION REGARDING MDEQ DEFENDANTS, ROBERT SCOTT, AND NANCY PEELER'S COLLECTIVE MOTIONS FOR PROTECTIVE ORDER STAYING DISCOVERY
ORDER REGARDING MDEQ DEFENDANTS, ROBERT SCOTT, AND NANCY PEELER'S COLLECTIVE MOTIONS FOR PROTECTIVE ORDER STAYING DISCOVERY

Public 2/5/2021 8:24:23 AM Page: 16 of 19

User

Entry Date

amd mmla

4/17/18 4/18/18

amd

4/19/18

mmla

5/1/18

mmla mmla
mmla

5/2/18 5/22/18
5/2/18

mmla

5/2/18

mmla

5/2/18

mmla

5/11/18

mmla

5/11/18

mmla

5/11/18

amd

5/30/18

amd

5/30/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 17 of 19

Activity Date DEF 4

Activity

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

DEF 12

DEF 13

5/30/18

STATUS CONFERENCE 6/13/18 4:00 PM

CANCELLED

OTHER

Order issued 5/30/2018.

6/13/18

OPINION ON MDEQ EMPLOYEES' APRIL 6, 2018 MOTION TO DISMISS

6/13/18

ORDER REGARDING MDEQ EMPLOYEES' APRIL 6, 2018 MOTION TO DISMISS

7/2/18

CLAIM OF APPEAL

7/2/18 7/2/18
9/24/18
9/25/18 3/15/19 3/15/19

DEF 6 DEF 7 DEF 8 RECEIVABLE APPEALS FEE PAYMENT RECEIPT NUMBER: COC-LAN.0003012 METHOD: CHECK $25.00 COMMENT Notification from the Court of Appeals requesting record within 21 days.
COA #344363 'TAKARIE NAPPIER V GOVERNOR'] COMMENT File prepared and sent electronically to the Court of Appeals. OPINION AND ORDER (FROM APPELLATE COURT) - AFFIRMED NOTICE OF CHANGE OF FIRM NAME AND CONTACT INFORMATION

3/28/19
4/1/19 4/29/19

DEF 6 STIPULATION AND PROPOSED ORDER REGARDING MDEQ EMPLOYEE DEFENDANTS' ANSWERS TO COMPLAINT PTF 1 DEF 6 DEF 7 DEF 8 DEF 12 DEF 13 ORDER REGARDING MDEQ EMPLOYEE DEFENDANTS' ANSWER TO COMPLAINT NOTICE OF FILING APPLICATION FOR LEAVE TO APPEAL DEF 6 DEF 7

User

Entry Date

amd

5/30/18

$25.00

amd
amd mmla
mmla mmla

6/13/18
6/13/18 7/19/18
7/2/18 7/2/18

$25.00 $25.00

mmla mmla

7/2/18 7/2/18

amd

9/24/18

amd

9/25/18

amd

3/15/19

nmh

3/15/19

nmh

3/15/19

nmh

3/29/19

mmla nmh

4/1/19 4/30/19

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 18 of 19

Activity Date DEF 8

Activity

7/29/20 10/6/20

OPINION OF THE MICHIGAN SUPREME COURT (REMANDED TO THE COURT OF CLAIMS)
REVIEW SCAO - MAXIMUM CASE AGE

10/27/20

MICHIGAN SUPREME COURT ORDER (APPLICATION DENIED)

11/2/20

STIPULATION AND PROPOSED ORDER TO STAY PROCEEDINGS PENDING SETTLEMENT
PTF 1

DEF 6

DEF 7

DEF 8

DEF 12

DEF 13

12/2/20

MOTION - JOINT MOTION TO STAY PROCEEDINGS PENDING SETTLEMENT AND BRIEF IN SUPPORT
PTF 1

DEF 6

DEF 7

DEF 8

12/2/20

RECEIVABLE MOTION FEE

12/2/20

PAYMENT

RECEIPT NUMBER: COC-LAN.0005041

METHOD: CHECK $20.00

12/3/20

SET ASIDE DISPOSITION

DEF 1 RICHARD SNYDER

DEF 2 DARNELL EARLEY

DEF 4 DANIEL WYANT

DEF 5 LIANE SHEKTER SMITH

DEF 6 STEPHEN BUSCH

DEF 7 PATRICK COOK

DEF 8 MICHAEL PRYSBY

DEF 9 BRADLEY WURFEL

DEF 10 EDEN VICTORIA WELLS

DEF 12 NANCY PEELER

DEF 13 ROBERT SCOTT

DEF 14 NICK LYON

DEF 15 GERALD AMBROSE

12/3/20

ORDER GRANTING THE JOINT MOTION FOR A STAY OF PROCEEDINGS PENDING FINALIZATION OF SETTLEMENT
DEF 1

DEF 2

DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

SET 9/30/21 8:00 A
$20.00 $20.00 $20.00

User

Entry Date

amd
mmla mmla mmla

7/29/20
10/6/20 11/2/20 11/2/20

mmla mmla

12/2/20 12/2/20

mmla mmla

12/2/20 12/2/20

mmla

12/3/20

mmla

12/3/20

STATE OF MICHIGAN COURT OF CLAIMS
Activity Date DEF 9 DEF 10 DEF 12 DEF 13 DEF 14 DEF 15

REGISTER OF
ACTIONS
Activity

CASE ID 16-000071-MM
C/COC/MI

Public 2/5/2021 8:24:23 AM Page: 19 of 19

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Entry Date