UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

ANDREW BAUMAN, 

 Plaintiff, Case No. 14-cv-12841 

v. Honorable Thomas L. Ludington 

TOWNSHIP OF TITTABAWASSEE, 

 Defendant. 

__________________________________________/ 

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION 

 Plaintiff Andrew Bauman initiated this case by filing a complaint on July 21, 2014. He 

alleges that Defendant Township of Tittabawassee (“Township”) violated his substantive due 

process rights under the Fourteenth Amendment by constructing a sidewalk on his property. At 

the time of filing his complaint the sidewalk had not yet been constructed. Bauman moved this 

Court for a temporary restraining order to enjoin the installation of the sidewalk. That motion 

was denied. The Court directed Plaintiff to serve the Township and then, if he so chose, to file a 

motion for a preliminary injunction. Plaintiff served the Township and then filed motion for a 

preliminary injunction. A hearing on the motion was held on October 8, 2014. 

I. 

 In his complaint Bauman alleges that his substantive due process rights were violated 

through the “installation of a sidewalk upon the Property [of Bauman].” ECF No. 1, Pl. Compl. 

at ¶20. He claims that “[t]he various ordinances [governing the sidewalk] fail to survive 

substantive due process review for failing to be narrowly tailored to serve a compelling state 

interest.” Id. 

 

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A. 

 Bauman owns a piece of property commonly known as 10285 Scott Road in Freeland, 

Michigan (“Property”). Freeland is an unincorporated community located with the Township of 

Tittabawassee. The Defendant Township “is a municipal corporation formed under the laws of 

the State of Michigan[.]” ECF No. 10, Pl. Mot. Br. at 3. In 1999, the Township adopted 

Ordinance 58-33. ECF No. 13, Def. Resp. Ex. 2 at ¶6. That ordinance mandates sidewalks on 

both sides of certain designated roads within the township. Id., Ex. 3 at 1-2. Scott Road is one of 

these roads. 

B. 

Recently, the Township decided to construct a sidewalk on or near Bauman’s property 

pursuant to Ordinance § 58-33. Part of the sidewalk construction took place on a parcel of land to 

the east of Bauman’s driveway. Both parties agree that this construction did not take place on 

Bauman’s land. See ECF No. 13, Def. Resp. Ex. 2 at ¶4; ECF No. 14, Pl. Reply Br. at 3. Another 

section of construction occurred, as Bauman alleges, across his property. ECF No. 14, Pl. Reply 

Br. at 3. According to the Township, they “offered Plaintiff $2500.00 if the Sidewalk were 

placed on his property.” ECF No. 13, Def. Resp. Ex. 2 at ¶5. Defendant rejected the offer. Id. 

The Township contends that the land on which the sidewalk was in fact constructed “is located 

within the Saginaw County Road Commission right of way.” ECF No. 13, Def. Resp. Ex. 2 at 

¶4. Plaintiff asserts that even if that is true he “is the owner of property and has a public sidewalk 

which crosses his property, with no fee title in favor of the Township or the Road Commission to 

the west of Plaintiff’s driveway.” ECF No. 14, Pl. Reply Br. at 3. 

 

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C. 

Sidewalks are governed by section 58 of the Township’s ordinances. See Code of 

Ordinances, Tittabawassee Township, http://www.tittabawassee.org/uploads/1/9/0/1/19016699/ 

code_of_ordinances_tittabawassee_twp..pdf. Under this section the rights and responsibilities of 

private landowners and the Township with respect to sidewalks are enumerated. As noted above, 

subsection 33 designates certain roads on which it is required to have sidewalks on both sides of 

the street. Subsection 35 addresses the maintenance of the sidewalks and driveway approaches. 

Section 58-35(a) addresses circumstances where a sidewalk crosses or adjoins the property of a 

landowner. No definition is given in the ordinances for “crossing” or “adjoining.” 

Section 58-35(b) addresses circumstances where the sidewalk falls between the lot line of 

a landowner’s parcel and the street curb. These landowners are called “abutting property owners” 

by the ordinance and are divided into two classes. The first class makes up all individuals with 

property abutting a sidewalk. The second class carves out an exception from those individuals 

for all property owners whose tract abuts a sidewalk along a specifically designated street in § 

58-33. There is no explicit definition in subsection 58-35(b) for “abutting” but, implicitly, it is 

any property that meets the description in subsection (a). 

Section 58-36 addresses the allotment of construction and repair expenses associated with 

the Township’s sidewalks. Subsection (b) states: 

Unless otherwise approved by the township board, the expense of construction of 

such sidewalks, as designated in section 58-33, shall be charged as follows: 

(1) In newly developed subdivisions, the entire cost shall be borne by the 

developer. 

(2) Adjacent to all new construction, regardless of zoning, the entire cost shall 

be borne by the developer or property owner. 

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(3) Adjacent to all existing developments containing any multifamily use with 

more than two units and all developments zoned or used for commercial or 

industrial purposes, the cost will be shared equally by the township and 

owners of these premises. 

(4) Along designated roads adjacent to existing R-1 and R-2 development, the 

entire cost of original construction shall be borne by the township. 

No exception is listed in section 58-36 for section 58-33 roads. Despite the title of the section: 

“Construction or repair expense,” there is no mention of repair expenses in subsection (b). 

Relatedly, subsection (c) provides the manner in which certain construction and repair expenses 

may be assessed. Subsection (c)(2) provides that “the township board may require the owners of 

any lot or premises to build or repair such sidewalks within such time and in such manner as the 

township board may require[.]” The ordinance is not clear as to whether the classification system 

of subsection (b) applies to the imposition of repair obligations under subsection (c). Bauman 

contends that it does not. The Township makes no arguments regarding the applicability of 

subsection (c). 

D. 

 As of this date the sidewalk on Bauman’s property has been completed. There is no 

evidence in the record that any fine or maintenance obligation has been imposed upon or charged 

to the Plaintiff. Bauman contends that it is only a matter of time until such inevitably occurs and 

seeks a preliminary injunction to enjoin the enforceability of the ordinance pending the greater 

relief he seeks: removing the sidewalk or striking down the ordinance. ECF No. 10, Pl. Mot. Br. 

at 3. 

 

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II. 

A. 

The Court first notes that Plaintiff did not represent that he sought concurrence in his 

motion, as required by the Eastern District of Michigan Local Rules.1

 The Defendant mentions in 

its submission that concurrence was not sought and this is confirmed by the Plaintiff’s reply 

brief. ECF No. 14, Pl. Reply Br. at 3 n.3. Local Rule 7.1(a)(1) provides: “The movant must 

ascertain whether the contemplated motion . . . will be opposed.” If a movant cannot obtain 

concurrence, the motion must represent that either (1) “there was a conference between attorneys 

or unrepresented parties and other persons entitled to be heard on the motion in which the 

movant explained the nature of the motion or request and its legal basis and requested but did not 

obtain concurrence in the relief sought” or (2) the movant made “reasonable efforts” but was 

“unable to conduct a conference.” E. D. MICH. LR 7.1(a)(2)(A)-(B). Furthermore, in the July 24, 

2014 Order Denying a Temporary Restraining Order, the Court directed Bauman to serve a copy 

of the order on the Township “then file proof of service on the Court’s docket.” ECF No. 4 at 6. 

Thus, the Court explicitly directed Bauman to put the Township on notice as to the impending 

motion for a preliminary injunction in order to bring an end to ex parte proceedings. The Plaintiff 

is therefore encouraged to familiarize himself with the Local Rules. Copies of the Local Rules 

are available both in print and online. The parties may order print copies from the Clerk’s Office, 

E.D. MICH. L.R. 1.3, or they may access the rules online at 

http://www.mied.uscourts.gov/Rules/LocalRules/civilRules.cfm. 

 

 1

 The Court reminds the parties that the Local Rules are not optional: “[The Local Rules] shall govern all 

applicable proceedings brought in this Court . . . .” E. D. MICH. L.R. 1.1(d). 

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B. 

 The test for whether a preliminary injunction should be granted is settled law. A district 

court must weigh the following factors in reaching its decision: 

(1) whether the movant has a strong likelihood of success on the merits; (2) 

whether the movant would suffer irreparable injury without the injunction; (3) 

whether issuance of the injunction would cause substantial harm to others; and (4) 

whether the public interest would be served by issuance of the injunction. 

Am. Civil Liberties Union of Kentucky v. McCreary Cnty., Kentucky, 354 F.3d 438, 445 (6th Cir. 

2003) aff’d sub nom. McCreary Cnty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 125 

S. Ct. 2722, 162 L. Ed. 2d 729 (2005) (quoting Rock and Roll Hall of Fame & Museum, Inc. v. 

Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998)). A district court must balance these factors, as 

no factor is a prerequisite to the issuance of a preliminary injunction. Overstreet v. LexingtonFayette Urban County Government, 305 F.3d 566 573 (6th Cir. 2002). “A preliminary injunction 

is an extraordinary remedy which should be granted only if the movant carries his or her burden 

of proving that the circumstances clearly demand it.” Id. 

III. 

While Bauman correctly states that a court need not give specific weight to each factor, 

nor find each factor met, he contends that each nevertheless favors him. 

A. 

First, Bauman alleges that he will succeed on the merits of his claim. To substantiate this 

assertion he primarily relies on a case out of this Court that he contends is controlling, 

Shoemaker v. City of Howell, 982 F. Supp. 2d 745 (E.D. Mich. 2013). The Court held that 

private citizens have a fundamental right not to have imposed upon them the obligation to 

maintain public property. Id. at 757. “[S]uch action strikes at the very heart of the freedoms and 

liberties the United States has come to represent.” Id. at 757-58. Shoemaker is the only case that 

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holds the freedom from such imposition to be a fundamental right. Id. at 757. As the Court 

recognized, uncovering fundamental rights protected by the Fourteenth Amendment is not lightly 

undertaken. Id. Accepting the reasoning of Shoemaker as advanced by Bauman, he makes out a 

claim for a likelihood of success on the merits. 

B. 

Bauman asserts an ability to show two areas in which he will suffer irreparable harm. 

Under the irreparable harm inquiry it must be demonstrated by the moving party that harm is 

indeed irreparable. “The possibility that adequate compensatory or other corrective relief will be 

available at a later date, in the ordinary course of litigation, weighs heavily against a claim of 

irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974). In evaluating the harm that will 

occur absent a stay the court generally looks to three factors: (1) the substantiality of the injury 

alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided. Mich. 

Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991). 

Bauman first claims that a constitutional violation amounts per se to irreparable harm. 

Second, he claims that his inability to recuperate attorney’s fees under the “American Rule” 

against cost-shifting also amounts to irreparable harm. Neither of Bauman’s claims have merit. 

His claim of a constitutional violation can be adequately remedied at law and the loss of 

attorney’s fees does not amount to irreparable harm under the current law governing preliminary 

injunctions. 

1. 

 Bauman’s primary claim that he will suffer imminent irreparable harm or a threat thereof 

is that actual or potential violations of constitutional rights are per se irreparable. He cites once 

again to Shoemaker to demonstrate that his rights will be violated by the ordinance. As noted 

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above, the Court need not address Shoemaker on the merits. Assuming, arguendo, that such a 

fundamental right exists, Bauman must still show imminent irreparable harm or the threat of 

irreparable harm. 

 Bauman emphasizes Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.), in support of his 

claim that the threat of a violation of a constitutional right constitutes per se irreparable harm. 

But the rule Bauman cites is not so categorical. “The case law is replete with examples of courts 

finding no irreparable harm despite the allegation of a constitutional violation where the only 

remedy would be monetary in nature.” Hamlyn v. Rock Island Cnty. Metro. Mass Transit Dist., 

960 F. Supp. 160, 163 (C.D. Ill. 1997).2

 The primary focus of the rule is on the infringement, or 

threatened infringement of First Amendment rights, “rights which must be exercised within a 

certain period of time,” or other “injur[ies] which cannot be compensated by monetary damages 

alone.” Id.

3

 In the years since Hamlyn’s survey of the law addressing irreparable harm in 

 2

 The Hamlyn decision helpfully collects a list of cases where courts found no irreparable harm despite a 

constitutional violation: 

For instance, in a procedural due process action, there is no harm where the injury is ultimately 

redressable through monetary compensation. See Sampson v. Murray, 415 U.S. 61, 89–92, 94 

S.Ct. 937, 952–54, 39 L.Ed.2d 166 (1974); Wisconsin Central Ltd. v. Public Service Commission,

95 F.3d 1359, 1369–70 (7th Cir.1996); Cunningham v. Adams, 808 F.2d 815, 822 (11th Cir.1987); 

Roberts v. Van Buren Public Sch., 731 F.2d 523, 526 (8th Cir.1984); Ciechon v. City of Chicago,

634 F.2d 1055, 1057 (7th Cir.1980); Kennedy–Kartheiser, 1987 WL 17164, at *1.3

 Likewise, the 

Seventh Circuit has held that no irreparable harm existed in a First Amendment retaliation action 

where the only injury would be the plaintiff’s expense of defending against the suit. Smart v. 

Board of Trustees of Univ. of Illinois, 34 F.3d 432, 435 (7th Cir.1994). 

Hamlyn, 960 F. Supp. at 163. 

3

 Once again, Hamlyn offers a helpful, though slightly dated, collection of caselaw on point: 

In contrast, those cases which have held that a constitutional wrong constitutes an irreparable 

injury involve some continuing or future injury which cannot be compensated by monetary 

damages alone. Examples include a First Amendment claim that one’s speech is presently being 

chilled, Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689–90, 49 L.Ed.2d 547 (1976); 

National People’s Action v. Village of Wilmette, 914 F.2d 1008, 1013 (7th Cir.1990); Schnell v. 

City of Chicago, 407 F.2d 1084, 1086 (7th Cir.1969), a Due Process or Eighth Amendment 

allegation concerning a continued threat to a prisoner’s health or safety, Preston v. Thompson, 589 

F.2d 300, 302–03 & n. 3 (7th Cir.1978); Jolly v. Coughlin, 894 F.Supp. 734, 740 (S.D.N.Y.1995), 

aff’d, 76 F.3d 468, 482 (2d Cir.1996); Young v. Ballis, 762 F.Supp. 823, 827 (S.D.Ind.1990), the 

loss of fundamental rights which must be exercised within a certain period of time, such as the 

right to vote or to have an abortion, Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 

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connection with constitutional violations the law has not broadened. See, e.g., Libertarian Party 

of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) (reciting the rule of Elrod v. Burns, 427 

U.S. 347 (1976) that the loss of First Amendment freedoms constitutes irreparable injury); 

Liberty Coins, LLC v. Goodman, 748 F.3d 682, 690 (6th Cir. 2014) (“In cases implicating the 

First Amendment, the other three factors often hinge on this first factor.”). Bauman does not 

advance, and the Court is not aware of, any case where the threat of a violating a substantive due 

process right was considered irreparable harm of the type to be protected by a preliminary 

injunction. Bonnell itself concerned a First Amendment violation, despite the broad language 

cited by Bauman. 241 F.3d at 802.4

 Even in the case of a constitutional violation such as the violation of a substantive due 

process right, courts will hesitate to find irreparable harm where any potential harm is readily 

compensable by damages. In fact, the case on which Bauman relies, Shoemaker, demonstrates 

just that proposition. In Shoemaker the plaintiff had been repeatedly fined and his amount owed 

to the city of Howell totaled $600.00. 982 F. Supp. 2d at 750. The court in Shoemaker did not 

indicate that any harm suffered by Shoemaker went beyond mere monetary damage. The same is 

the case here. 

 338 (5th Cir.1981); Doe v. Mundy, 514 F.2d 1179, 1183 (7th Cir.1975); Auerbach v. Kinley, 499 

F.Supp. 1329, 1340–41 (N.D.N.Y.1980), a claim that one will be subjected to an unlawful search 

and seizure under the Fourth Amendment, Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.1983); 

Bannister v. Board of County Comm’n of Leavenworth County, Kansas, 829 F.Supp. 1249, 1252 

(D.Kan.1993), and an unconstitutional taking of property (on the basis that property is always 

“unique”). United Church of the Medical Ctr. v. Medical Center Comm’n, 689 F.2d 693, 701 (7th 

Cir.1982). 

Hamlyn, 960 F. Supp. at 163. 

4

 It should be noted that even if Bauman can show that the rule has been broadened beyond non-monetary 

constitutional violations such as Free Speech and Equal Protection violations, he has not shown that the statute 

actually violates the constitution. Shoemaker held that the City of Howell’s ordinance was unconstitutional as 

applied to Shoemaker. Here, Bauman does not allege facial unconstitutionality and to the extent he does, does not 

offer sufficient evidence to support his claim that the facially unconstitutional statute will result in imminent 

irreparable harm to him. 

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 Based on the ordinance the most that Bauman can be held responsible for financially is 

expense of removing snow and manmade obstructions and compensating for any Townshipordered repairs. Code of Ordinances, Tittabawassee Township §§ 58-35, 58-36. Shoemaker does 

stand for the proposition that imposing maintenance and repair obligations5

 would, as discussed 

above, violate the Fourteenth Amendment. It also establishes that any harm sustained by Bauman 

can be compensated by a damage award. Any cost imposed by the Township on Bauman for 

failure to act in compliance with the ordinance can be ordered to be reimbursed by the Township 

if Bauman is successful on the merits. 

2. 

As an additional ground for showing irreparable harm Bauman claims that in any 

possible action he will be precluded from recovering attorney’s fees under the “American Rule.” 

The Rule refers to the maxim of the United States’ legal system that “litigants are generally 

expected to pay their own way” through the course of litigation. Mills v. United Producers, Inc., 

No. 11-13148-BC, 2013 WL 228086 at *2 (E.D. Mich. Jan. 22, 2013). A court will only award 

fees where there is express statutory authority for doing so. See Tucker v. Sterling Jewelers, Inc., 

No. 09-14102, 2012 WL 2501120 at *4 (E.D. Mich. June 28, 2012). Bauman alleges that the 

expense of compensating his attorney will go unreimbursed due to the American Rule. Correct. 

But the law is clear in providing that this does not constitute irreparable harm. In Renegotiation 

Board v. Bannercraft Clothing Company, 415 U.S. 1, 24 (1974), the Supreme Court held that 

“[m]ere litigation expense, even substantial and unrecoupable cost, does not constitute 

irreparable injury.” In light of this authority, Bauman cannot use the American Rule as a basis 

for alleging irreparable harm. 

 5 Shoemaker does not stand for the proposition that imposing the obligation to remove manmade 

obstructions violates the Fourteenth Amendment. 

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C. 

 Bauman claims that if an injunction were to issue there would be no substantial harm to 

others. In support of this assertion he alleges that “[t]he public will be better guarded if the 

Township is obligated to maintain those sidewalks which it installed and Plaintiff does not wish 

and cannot to [sic] protect at his own expense.” ECF No. 10 at 13. This may be so. Bauman is 

probably right that the Township possesses more resources than he. But he does not explain how 

imposing the obligation to maintain the sidewalk on him, rather than the Township imposes a 

greater risk of harm to others than the reverse. Bauman’s proximity to the sidewalk and ability to 

respond quickly to any obstruction, such as snow, carry considerable advantages to the public 

that may be using the pedestrian right-of-way. If Bauman is indeed saddled with the obligation to 

maintain the sidewalk under the ordinance, the harm to others would be equal whether or not a 

preliminary injunction is entered enjoining the effect of the ordinance. 

D. 

 Lastly, Bauman asserts that the public interest is best served by entering a preliminary 

injunction. Bauman writes: 

Lastly, the public interest is assuring proper constitutional application of its local 

government clearly outweighs any counter-interests in convenience the Township 

may suffer as a result of its own decision to install the sidewalk despite the 

concerns the Township was on notice as existing via this lawsuit [sic throughout]. 

ECF No. 10 at 13. It appears that Bauman’s argument is that the public interest in proper 

application of the Township’s ordinances outweighs any benefit that would flow to the public 

from having a sidewalk cross his property. Perhaps. But this assertion by Bauman highlights a 

more significant issue in the case: that all of this is moot if the Township possesses an easement 

or right-of-way across Bauman’s property that permits the construction of a sidewalk. If so, the 

Township, under their ordinance, bears the maintenance responsibilities. 

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E. 

Even if, despite the above, Bauman could make out a claim for a preliminary injunction, 

he also fails to establish certain predicate conditions to his claims. 

1. 

First, Shoemaker may not be applicable to Bauman’s case. In fact, the question of 

Shoemaker’s applicability to Bauman cannot be answered because there is insufficient 

information to determine important facts. Bauman and his counsel asserted at the hearing that the 

ordinance applies to him because there is a presumption under Michigan law that property lines 

extend to the middle of the public right-of-way which they abut. See Morrow v. Boldt, 512 

N.W.2d 83, 86 (1994). The Township, on the other hand, claimed that there is a state-law created 

easement from the center-line of public rights-of-way specifically in place for the construction of 

sidewalks. The Township alleges that they sought to build the sidewalk across Bauman’s 

property and offered him $2500.00 to do so, which he declined. Instead, they built the sidewalk 

within their easement. 

Bauman does not contest that the Township possesses a sidewalk easement or that the 

sidewalk is constructed within that easement. An Easement is “[a]n interest in land owned by 

another person, consisting in the right to use or control the land, or an area above or below it, for 

a specific limited purpose (such as to cross it for access to a public road).” EASEMENT, Black’s 

Law Dictionary (9th ed. 2009). Bauman’s central point of contention is that even if the Township 

possesses such an easement, his fee interest extends to the center line of the street, making him a 

crossing, not adjoining property owner. Again, perhaps, but Bauman has not advanced any 

evidence that he owns title to the center of Scott Road west of his driveway. At the hearing, 

Bauman admitted that he has a survey of his land, but did not submit to the Court that survey or 

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any of the documents relevant to his chain of title. Instead, Bauman submitted a secondary 

approximation by the Saginaw Area GIS Authority. See ECF No. 10 at Ex. E. But Bauman 

contests the veracity of his own exhibit and claims that it incorrectly shows the end of his 

driveway as existing within County Road Commission property to the northeast of his lot. 

Bauman provides no evidence that he actually holds title to the center of Scott Road, despite 

acknowledging that he possesses the documents to prove or disprove that fact.6

2. 

 Even if Bauman could show that he owns fee title to the center of Scott Road to the west 

of his driveway, he has offered no evidence that he would then be classified as a crossing 

property owner. At the hearing, Bauman reiterated the position he advanced in his papers: that 

the plain text of the ordinance means that the maintenance obligation would apply to him. But 

the Township contends that Bauman never sought a determination of his obligations under the 

ordinance and that this would have foreclosed the litigation because the ordinance does not, in 

fact, apply to him. The Township asserts that the sidewalk easement across the western portion 

of Bauman’s land is a property interest that converts Bauman’s status to that of an abutting 

property owner. As such, the Township claims, Bauman is covered by the exception in Section 

58-35(b)(1) and he is not saddled with the maintenance obligation in the ordinance. At the 

hearing, the Township alleged that both Michigan statutes and case law support the proposition 

that Bauman would not be liable for maintenance on the sidewalk. Furthermore, the Township 

claims, there was a hearing held and determination made in the late 1990’s that explicitly placed 

all Scott Road sidewalk maintenance obligations on the Township. 

 6

 Similarly, the Township did not include a copy of Bauman’s deed or other proof of title that reflects their 

easement, despite claiming that they possess a right-of-way easement that permits the construction of a sidewalk 

adjacent to a county road. 

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 Bauman advances no evidence that the ordinance applies to him other than his reading of 

the ordinance’s text. Bauman concedes the Township’s position that state law imposes upon 

easement owners any and all duties to maintain the easement in a safe condition. ECF No. 14 at 4 

(citing Morrow v. Boldt, 512 N.W.2d 83 (Mich. Ct. App. 1994)). Bauman also concedes that 

Michigan statutes specifically impose this duty on Townships in the maintenance of sidewalks. 

Id. (citing MCL 691.1402a(1)). Thus, Bauman’s position boils down to the assertion that the 

Township “has decided to create liability and obligations for Plaintiff by ordinance . . . not 

otherwise existing under other law.” Id. But this reading of the ordinance is not certain. In fact, 

the ordinance is to be read in light of this state law authority, as the Township contends. The 

ordinance should not be read as imposing maintenance obligations on Bauman. 

Ultimately, Bauman’s claim that he is faced with sidewalk maintenance obligations rests 

solely on his interpretation of the ordinance. The definitions of the different forms of property 

owners that may or may not face liability are not readily apparent in the text. Exegesis of the 

ordinance necessitates the use of extrinsic evidence to determine which category a property 

owner should be placed in. Absent any extrinsic evidence that the Township is interpreting the 

ordinance in the same manner as Bauman and, as a result, imposing fines or initiating 

prosecutions, a preliminary injunction is not justified. 

IV. 

Lastly, it is necessary to address numerous references made by the Township in their 

response brief to the fact that Bauman may not be permitted to pursue this claim. For example, 

the Township states at one point that “Plaintiff’s motion and his Complaint, are unripe, 

premature, and unnecessary.” ECF No. 13, Def. Resp. Br. at 3. At another point the Township 

claims that “there is no case or controversy, any claims are unripe and not final, and there is 

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simply no cause of action that exists with respect to this Plaintiff.” Id. at 7-8. To the extent the 

Township is moving the Court to dismiss for want of jurisdiction, the claims must be ignored, at 

least at this juncture. This Court’s Local Rules bar pleading motions seeking affirmative relief in 

response briefing. E.D. MICH. LR 5(e). 

V. 

Because Bauman cannot show that he meets the requirements for the issuance of 

injunctive relief, a preliminary injunction will not be entered. Even if Bauman could meet the 

high showing required for such extraordinary relief, he still fails to demonstrate, in the first 

instance, the necessary facts to support his claim of a constitutional violation. 

Accordingly, it is ORDERED that Plaintiff’s Motion for Preliminary Injunction (ECF 

No. 10) is DENIED. 

Dated: October 30, 2014 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on October 30, 2014. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

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