NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 05a0232n.06

Filed: March 30, 2005

Nos. 03-2087/2123/2124

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DANIEL P. O’BRIEN et al.,

Plaintiffs-Appellants/CrossAppellees,

v.

NEW BUFFALO TOWNSHIP et al.,

Defendants-Appellees/CrossAppellants.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MICHIGAN

Before: SILER, BATCHELDER, and DAUGHTREY, Circuit Judges.

Plaintiff Daniel P. O’Brien was the original owner of property in New Buffalo,

Michigan, that ultimately became the Whittaker Woods Golf Community, a mixed-use

development including a golf course, a clubhouse, a restaurant, single-family homes, and

multi-family townhouses. The remaining plaintiffs, Whittaker Woods Golf Club, L.P., and

Whittaker Woods Golf Associates, Inc., were formed by Daniel O’Brien and his wife for the

sole purpose of owning and managing the development. When defendant New Buffalo

Township, through the remaining defendants – the township’s supervisor, trustees,

employees, and its engineering consultant – denied the plaintiffs permits they needed to

complete construction of the development, O’Brien, Whittaker Woods Golf Club, and
Nos. 03-2087/2123/2124

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Whittaker Woods Golf Associates filed suit against the defendants in federal district court,

alleging that:

[T]he Township defendants acted arbitrarily and capriciously in denying a

building permit to construct the first home at Whittaker Woods and in denying

approval of water and sewer systems of Phase I of Whittaker Woods; that,

following the November 2000 township elections, defendants retaliated

against plaintiffs because Mr. O’Brien had supported opposing candidates for

township office; and that defendants libeled Mr. O’Brien in a September 2000

letter that falsely accused plaintiffs of engaging in construction of Whittaker

Woods without the necessary permits.

After a suitable discovery period, the district judge issued an extensive 53-page

written opinion disposing of summary judgment motions filed by all parties and effectively

dismissing the plaintiffs’ lawsuit. The plaintiffs now appeal from that opinion and order,

asserting that the district court erred in finding no merit to their claims of retaliation for the

exercise of First Amendment freedoms, violation of substantive due process by engaging

in arbitrary and capricious decision-making, and libel. The township defendants crossappeal, contending that plaintiff O’Brien had no standing to advance the claims asserted

in the initial and amended complaints filed in this matter. Defendants Larry Merritt and

Merritt Engineering, Inc., also cross-appeal, contending that O’Brien is without standing and

that Merritt and his engineering firm cannot properly be deemed “state actors” for purposes

of 42 U.S.C. § 1983.

Having had the benefit of oral argument, and having studied the record on appeal

and the briefs of the parties, we are not persuaded that the district court erred in dismissing
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the complaint. The question of plaintiff O’Brien’s standing to bring the action has been

vigorously argued at each stage of the litigation. The district court opted not to examine

the issue at length, finding that although O’Brien’s standing to sue in his own name may

have been subject to dispute, “the issue ha[d] been rendered moot” by the addition of the

other plaintiffs to the suit. We agree. Moreover, because the reasons why judgment

should be entered for the defendants have been fully articulated by the district court, the

issuance of a detailed opinion by this court would be duplicative and would serve no useful

purpose. Accordingly, we AFFIRM the judgment of the district court based upon the

reasoning set out by that court in its opinion dated July 21, 2003.