UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AHMAD MOURAD, HOUSE OF 

HARDTOPS, INC., MOSS & 

ASSOCIATES, INC., KAERY 

KORKES, and UNIVERSAL LOCK 

& SECURITY SERVICE, INC., 

 Plaintiffs, 

v. 

MARATHON PETROLEUM 

COMPANY LP, 

 Defendant. 

Case No. 14-cv-14217 

Honorable Patrick J. Duggan 

 

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO 

DISMISS SECOND AMENDED COMPLAINT AND DISMISSING 

PLAINTIFFS’ SECOND AMENDED COMPLAINT WITH PREJUDICE 

 In this diversity action, Plaintiffs – a group of current and former business 

owners and operators – are suing Defendant Marathon Petroleum Company, LP in 

connection with its operation of a refinery in the Oakwood Heights subdivision of 

the City of Detroit, Michigan. In their pleading for relief, Plaintiffs endeavor to 

state state-law claims for (1) tortious interference with business relationship or 

expectancy and (2) nuisance, and have requested damages in the amount of 

$75,000 each. 

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 Presently before the Court is Defendant’s Motion to Dismiss Plaintiff’s 

Second Amended Complaint. The matter has been fully briefed. Having 

determined that oral argument would not significantly aid the decisional process, 

the Court dispensed with oral argument pursuant to Eastern District of Michigan 

Local Rule 7.1(f)(2). For the reasons set forth herein, the Court will grant 

Defendant’s motion. 

I. BACKGROUND

A. Factual Allegations 

Plaintiffs Ahmad Mourad, House of Hardtops, Inc., Moss & Associates, Inc., 

Kaery Korkes, and Universal Lock & Security Service, Inc. (collectively, 

“Plaintiffs”) are or were owners or operators of small retail businesses located in or 

near the Oakwood Heights subdivision of the City of Detroit.1

 (Second Am. 

Compl. ¶ 1.) Defendant Marathon Petroleum Company owns and operates an oil 

refinery (the “Detroit Refinery”) on Fort Street in Detroit, in close proximity to 

Oakwood Heights. (Id. ¶ 3.) While parts of Oakwood Heights are zoned 

residential, one need not strain the imagination to envision the environmental 

impact an oil refinery would have on nearby properties.2

 Thus, when Defendant 

 1

 This neighborhood is roughly bounded by south Fort Street, the River 

Rouge and Fordson Island, South Dix, and Schaefer Highway. 

2

 Indeed, Plaintiffs allege several facts drawing a connection between the 

Detroit Refinery’s operations and environmental degradation, such as that “the 

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“expanded” the Detroit Refinery’s operations in November of 2012 by 

commencing “operation of the Detroit Heavy Oil Upgrade Project (DHOUP) 

facility on its premises[,]” a residential buyout program (the “Oakwood Heights 

Property Purchase Program”) initiated by Defendant in November of 2011 gained 

momentum.3

 (Id. ¶¶ 4, 8.) Plaintiffs allege that, as of the date the Second 

Amended Complaint was filed, Defendant had acquired “at least 277 of 294 [or, 

ninety-four percent of,] residential properties” in Oakwood Heights. (Id. ¶ 8.) The 

Oakwood Heights Property Purchase Program, which is “described in detail in a 

public ‘Informational Handbook[,]’” did not apply to commercial properties. (Id.

¶¶ 9-10.) Because such a significant proportion of Oakwood Heights residents 

took the buyouts offered by Defendant, Plaintiffs’ businesses suffered financial 

losses, depending as they did on the residents of Oakwood Heights for revenue 

generation. (Id. ¶¶ 11h, 11j.) 

 

owners of the refinery have been sued at least four times” over the past forty-two 

years “by nearby residents alleging the refinery caused a nuisance to them by 

polluting their air[,]” and that “[i]n 2012, Marathon Petroleum Company LP[] was 

named as a defendant by the United States of America on behalf of the 

[Environmental Protection Agency] in [a lawsuit filed in the United States District 

Court for the Eastern District of Michigan] for [] ongoing violations of 

environmental statutes and rules at its Detroit Refinery.” (Second Am. Compl. ¶¶ 

11a, 11g.) 

3

 Once up and running, the DHOUP provided the Detroit Refinery with the 

capacity to process tar sands. 

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Plaintiffs also allege that the DHOUP – which Defendant began operating in 

November 2012 after obtaining permits and approval from the State of Michigan 

during the period between November of 2002 and March of 2008 – increased 

ambient air pollution in the Oakwood Heights neighborhood, evidenced by 

admissions to this effect contained in the Application to Install filed by Defendant 

in November of 2002. (Id. ¶¶ 11c, 11e, 20 (“[O]n or about November 6th, 2012 

and continuing thereafter, defendant released from its refinery into the ambient air 

various air pollutants . . . and hazardous air pollutants [] increased by the DHOUP 

over previous emissions from the whole refinery[.]”).) The pollutants, carried by 

air currents, made their way to Plaintiffs’ premises. (Id. ¶ 21.) 

B. Procedural History 

Plaintiffs instituted the present civil action on November 3, 2014. (ECF No. 

1.) On December 13, 2014, after Defendant filed a motion to dismiss, Plaintiffs 

filed an amended pleading containing two counts: Count I – Intentional 

Interference with Business Relationship or Expectancy and Count II – Nuisance. 

(ECF No. 8.) Nine days later, Defendant filed a motion seeking dismissal of the 

amended complaint. (ECF No. 11.) This motion was fully briefed (ECF Nos. 13-

15, 17), and the Court held a motion hearing in conjunction with this motion on 

June 15, 2015, during which the Court heard the arguments of counsel. At the 

conclusion of this hearing, the Court permitted Plaintiffs to amend their pleading 

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once more to provide additional factual enhancement in support of the legal 

theories advanced in their first amended complaint. (ECF No. 19.) 

Plaintiffs filed a Second Amended Complaint containing the same two 

counts as the previous complaint on July 17, 2015 (ECF No. 21), which Defendant 

promptly moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 

on July 22, 2015 (ECF No. 22). This motion, which has been fully briefed, is the 

subject of this Opinion and Order. (ECF Nos. 24 (response), 26 (reply), 27(surreply).) 

II. GOVERNING LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) allows a 

court to assess whether a plaintiff’s pleadings state a claim upon which relief can 

be granted. Fed. R. Civ. P. 12(b)(6). As articulated by the Supreme Court of the 

United States, “[t]o survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 555, 570, 127 S. Ct. 1955, 1974 

(2007)). This facial plausibility standard requires claimants to put forth “enough 

fact[s] to raise a reasonable expectation that discovery will reveal evidence of” the 

requisite elements of their claims. Twombly, 550 U.S. at 557, 127 S. Ct. at 1965. 

Even though a complaint need not contain “detailed” factual allegations, its 

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“factual allegations must be enough to raise a right to relief above the speculative 

level.” Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 

(6th Cir. 2007) (citing Twombly, 550 U.S. at 555, 127 S. Ct. at 1965) (internal 

citations omitted). 

While courts are required to accept the factual allegations in a complaint as 

true, Twombly, 550 U.S. at 556, 127 S. Ct. at 1965, the presumption of truth does 

not apply to a claimant’s legal conclusions, Iqbal, 556 U.S. at 678, 129 S. Ct. at 

1949. See also Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005) (cautioning 

that legal conclusions “masquerading as factual” allegations are insufficient to 

withstand a properly supported motion to dismiss). Therefore, to survive a motion 

to dismiss, a plaintiff’s pleading for relief must provide “more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.” Ass’n of Cleveland Fire Fighters, 502 F.3d at 548 (quoting Twombly, 550 

U.S. at 555, 127 S. Ct. at 1964-65) (internal citations and quotations omitted); see 

also Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must contain . 

. . a short and plain statement of the claim showing that the pleader is entitled to 

relief[.]”).4

 

 4

 Motions filed pursuant to Rule 12(b)(6) are “interpreted in conjunction 

with Federal Rule of Civil Procedure 8[.]” Chesbrough v. VPA, P.C., 655 F.3d 

461, 467 (6th Cir. 2011). 

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Ultimately, “[d]etermining whether a complaint states a plausible claim for 

relief will . . . be a context-specific task that requires the reviewing court to draw 

on its judicial experience and common sense. But where the well-pleaded facts do 

not permit the court to infer more than the mere possibility of [a legal 

transgression], the complaint has alleged – but it has not ‘show[n]’ – ‘that the 

pleader is entitled to relief.’” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (quoting 

Fed. R. Civ. P. 8(a)(2)) (internal citations omitted). 

When the jurisdictional basis of a lawsuit is predicated upon diversity of 

citizenship, federal courts must apply “the substantive law of the forum state.” 

Conlin v. Mortg. Elec. Registration Sys., Inc., 714 F.3d 355, 358 (6th Cir. 2013); 

see also Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938) (explaining that in 

diversity cases, state law governs matters of substance while federal law dictates 

procedure). The torts set forth in Plaintiffs’ Second Amended Complaint occurred 

in, and purportedly affected property situated in, the State of Michigan, and the 

parties do not dispute that Michigan law applies. Consequently, the Court is 

obligated to apply Michigan substantive law in accordance with the decisions of 

the Michigan Supreme Court. Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 

1181 (6th Cir. 1999). Unlike case law emanating from a state’s highest court, legal 

interpretations articulated by intermediate state appellate courts are not binding; 

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such articulations, are, however, “viewed as persuasive.” Savedoff v. Access Grp., 

Inc., 524 F.3d 754, 762 (6th Cir. 2008). 

III. ANALYSIS

 Defendant seeks dismissal of both counts in Plaintiffs’ Second Amended 

Complaint, arguing that the factual allegations are insufficient to give rise to a 

plausible claim for relief under either legal theory advanced therein. (Def.’s Br. 1 

(“In all three versions of their complaint, Plaintiffs, through nothing more than 

unfounded speculation and conclusions, have attempted to spin completely lawful 

conduct into a nefarious scheme to ruin their businesses.”).) Plaintiffs predictably 

disagree. The Court addresses each count in turn. 

A. Count I – Tortious Interference with Business Relationship or 

Expectancy 

Plaintiffs’ theory with respect to their tortious interference with business 

relationship or expectancy count is that Defendant created and executed the 

Oakwood Heights Property Purchase Program in a dual-pronged effort to reduce 

future liability associated with environmental contamination and to simultaneously 

cause Plaintiffs’ property values to plummet, so that it can acquire the properties in 

the future for less than market value. Defendant contends that this count must be 

dismissed because Plaintiffs’ pleading fails to allege any specific, affirmative acts 

by Defendant which would corroborate Defendant’s improper motive. For the 

reasons explored more fully below, the Court agrees with Defendant. 

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In Michigan, the intentional tort of interference with business relationship or 

expectancy “has been widely recognized.” Midwest Aluminum Mfg. Co. v. Gen. 

Elec. Co., No. 4:90-CV-143, 1992 U.S. Dist. LEXIS 21382, at *5 (W.D. Mich. 

Aug. 4, 1992) (unpublished).5

 The elements of this cause of action “are [(1)] the 

existence of a valid business relationship or expectancy, [(2)] knowledge of the 

relationship or expectancy on the part of the defendant, [(3)] an intentional 

interference by the defendant inducing or causing a breach or termination of the 

relationship or expectancy, and [(4)] resultant damage to the plaintiff.” Dalley v. 

Dykema Gossett, P.L.L.C., 287 Mich. App. 296, 323, 788 N.W.2d 679, 696 (Mich. 

Ct. App. 2010) (quotation omitted). With respect to the third element, “the 

interference . . . must be improper in addition to being intentional.” Formall, Inc. 

v. Cmty. Nat’l Bank of Pontiac, 166 Mich. App. 772, 779, 421 N.W.2d 289, 293 

(Mich. Ct. App. 1998); Advocacy Org. for Patients & Providers v. Auto Club Ins. 

Ass’n, 257 Mich. App. 365, 383, 670 N.W.2d 569, 579 (Mich. Ct. App. 2003) 

(explaining that a party asserting a claim of tortious interference “must establish 

that the interference was improper”) (citation omitted). In the context of tortious 

interference claims, “[i]mproper means illegal, unethical, or fraudulent.” Formall, 

 5

 As noted in Midwest Aluminum, the nomenclature used to label the tort has 

varied over time, sometimes being referred to, for example, as “tortious 

interference with advantageous business relationship” or “tortious interference 

with prospective advantage.” No. 4:90-CV-143, 1992 U.S. Dist. LEXIS 21382, at 

*6 n.2. 

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Inc., 166 Mich. App. at 779, 421 N.W.2d at 293. “‘[I]mproper’ interference can be 

shown either by proving (1) the intentional doing of an act wrongful per se, or (2) 

the intentional doing of a lawful act with malice and unjustified in law for the 

purpose of invading plaintiffs’ contractual rights or business relationship.” 

Advocacy Org., 257 Mich. App. at 383, 670 N.W.2d at 579 (citation omitted). 

“Where the defendant’s actions were motivated by legitimate business reasons, it 

would not constitute improper motive or interference.” Dalley, 287 Mich. App. at 

324, 788 N.W.2d at 696 (quotation omitted). 

In the instant case, Plaintiffs do not allege the doing of an act wrongful per 

se.6

 Thus, to withstand dismissal, the Court must evaluate whether Plaintiffs’ 

pleading for relief alleges, “with [the requisite level of] specificity, affirmative acts 

by the defendant that corroborate the improper motive of the interference.” Dalley, 

287 Mich. App. at 324, 788 N.W.2d at 696 (quotation omitted); Warrior Sports, 

Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 287 (6th Cir. 2010). 

Defendant contends that Plaintiffs’ pleading fails in this regard, suggesting that 

Plaintiff’s tortious interference claim “‘begins and ends with the third element.’”7

 

 6

 A per se wrongful act is “an act that is inherently wrongful or an act that 

can never be justified under any circumstances.” Maiberger v. City of Livonia, 724 

F. Supp. 2d 759, 778 (E.D. Mich. 2010) (quotation omitted). 

7

 Although the main thrust of Defendant’s argument is that Plaintiffs’ claim 

fails on the basis that they have not provided sufficient facts to allow this Court to 

plausibly infer that Defendant acted maliciously for the purpose of interfering with 

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(Def.’s Br. 9 (quoting Elias v. Fed. Home Loan Mortg. Corp., 581 F. App’x 461, 

464 (6th Cir. 2014) (unpublished)).) 

As Defendant convincingly argues, the main problem afflicting Plaintiffs’ 

Second Amended Complaint is that the factual allegations do not plausibly support 

the conclusion that Defendant acted with malice or for the purpose of interfering 

with Plaintiffs’ businesses. Plaintiffs allege that Defendant instituted the property 

purchase program with the following “improper motives:” 

(a) To acquire domain over the Oakwood Heights subdivision for 

future expansion of the refinery and access to the Rouge River; 

(b) To foreclose being sued again by Oakwood Heights residents for 

environmental pollution from its expanded refinery; 

(c) To shed or reduce Marathon’s liability to Oakwood Heights 

residents for the long standing contamination of the neighborhood 

brought about by Marathon’s continuing and expanding discharge 

of pollutants into the atmosphere of the Oakwood Heights area; 

and, 

 

Plaintiffs’ businesses, Defendant suggests that Plaintiffs’ claim fails for other 

reasons. For example, Defendant indicates that “Plaintiffs state that as of 

November 2011, they had business expectancies and relationships with residents of 

Oakwood Heights “who were customers of plaintiffs’ businesses.” (Def.’s Br. 9 

n.1 (quoting Second Am. Compl. ¶ 5).) Defendant points out that “this lone 

allegation is not supported with any facts to suggest any specific business 

expectancy that Plaintiffs would have realized but for the alleged tortious 

conduct.” (Id. (citing Jankovic v. Int’l Crisis Grp., 593 F.2d 22, 29-30 (D.C. Cir. 

2010) (“A claim of tort[i]ous interference with prospective business relations 

cannot survive where the plaintiff does not allege any specific future business 

relations or expectancies and only provides general references to potential 

opportunities.”)).) However, because the Court agrees with Defendant that 

Plaintiffs have failed to adequately allege an improper motive, the Court need not 

address the other elements of Plaintiffs’ tortious interference claim. 

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(d) To diminish the market values of plaintiffs’ properties by making 

itself the only viable buyer or realty in the area. 

(Second Am. Compl. ¶¶ 14a-14d.) To support the inference of malice and the 

claim that Defendant possessed the intent to interfere with Plaintiffs’ business 

expectancies, Plaintiffs explain that Defendant knew that Plaintiffs relied on 

neighborhood residents for revenue yet declined to offer commercial entities a 

buyout similar to those offered to area homeowners. (Id. ¶¶ 11o, 12.) Similarly, 

Plaintiffs indicate that Defendant knew that by depopulating the neighborhood of 

residents, Plaintiffs would go out of business and that their property values would 

plummet. By purchasing the majority of residential properties in the community, 

Defendant knew that it would be “the only viable buyer of realty in the area[,]” and 

that it could therefore acquire Plaintiffs’ property for future expansion of the 

Detroit Refinery. (Id. ¶¶ 12p, 14a, 14d.) These factual allegations, however, do 

not permit this Court to draw the reasonable inference that Defendant acted with 

the requisite impermissible intent to interfere with Plaintiffs’ businesses. The 

United States Court of Appeals for the Sixth Circuit’s analysis in Elias, supra, is 

instructive in this regard. 

In Elias, a panel of the Sixth Circuit was tasked with reviewing a district 

court’s dismissal of a tortious interference claim, among others, pursuant to 

Federal Rule of Civil Procedure 12(b)(6). Elias, a real estate broker who owned a 

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brokerage company, claimed that Freddie Mac intentionally interfered with his 

business expectancies by adding him to an “Exclusionary List” consisting of 

businesses that Freddie Mac suspected of fraudulent or unethical business practices 

or practices that violated various mortgage industry regulations. 581 F. App’x at 

462. As a result of being placed on this list, Elias’s business suffered harm 

because mortgage servicers ceased doing business with him and his company. Id.

at 463. The district court dismissed the tortious interference claim, concluding that 

Elias had presented “no plausible allegations that Freddie Mac was motivated by 

anything other than its legitimate business purpose” when it placed Elias on the 

list. Id. at 646 (quoting district court). 

On appeal, the Sixth Circuit affirmed, pointing to two specific deficiencies 

in Elias’s pleading. First, Elias admitted that he had engaged in the business 

practice Freddie Mac identified as questionable and potentially exposing it to risk. 

Id. at 465. Second, the Sixth Circuit determined that Elias’s complaint failed to 

plausibly allege that Freddie Mac acted with malice because Elias did not allege a 

plausible reason to believe that Freddie Mac placed him on the list for an improper 

reason. Id. In short, the Sixth Circuit concluded that Freddie Mac placed Elias on 

the list for a legitimate business reason, therefore defeating the tortious 

interference claim. Id. at 466. 

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As in Elias, Plaintiffs’ allegations do not permit the Court to draw the fair 

inference that Defendant acted improperly as it pertains to the Oakwood Heights 

Property Purchase Program, namely because the factual allegations do not 

plausibly support the conclusion that Defendant acted with the purpose of 

interfering with Plaintiffs’ business operations or that it acted with malice, both of 

which are required to state a viable claim for relief. Simply stated, and taking 

Plaintiff’s allegations as true, this Court is unable to infer that Defendant instituted 

the property purchase program for any reason other than its legitimate business 

objectives. There is nothing inherently wrongful or improper about Defendant’s 

desire to expand the Detroit Refinery’s operations and to purchase surrounding 

property to facilitate this expansion.8

 Neither is there anything improper about 

offering neighborhood residents a buyout, even if the buyouts were motivated by a 

desire to stem future liability. 

Plaintiffs’ allegations that Defendant supposedly failed to provide 

neighborhood residents with sufficient information to make an informed decision 

 8

 Defendant suggests that the land was acquired for the legitimate business 

purpose of creating a green space around the Detroit Refinery. (Def.’s Br. 1, 3.) 

Because there is nothing in Plaintiffs’ Second Amended Complaint regarding 

Defendant’s intent to create a green space, the Court does not credit this 

explanation. Further, although Defendant challenges the veracity of Plaintiffs’ 

allegation that the property was purchased for future expansion of the Detroit 

Refinery, the Court must accept this well-pleaded factual allegation as true at this 

procedural juncture. The Court notes, however, that there is nothing improper 

about Defendant’s desire to expand the refinery. Indeed, a planned facility 

expansion strikes this Court as a prime example of a legitimate business purpose. 

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in the Informational Handbook it distributed in conjunction with the property 

purchasing program do not save the day, as Plaintiffs were admittedly not involved 

in these transactions and have failed to draw any sort of connection between the 

supposedly inadequate disclosures and an intent to interfere with Plaintiffs’ 

businesses. (Second Am. Compl. ¶¶ 9, 11k-11o.) Of greater import, Plaintiffs have 

not provided any allegations drawing any rational connection between Defendant’s 

allegedly intentional concealment of information from area residents and 

Defendant’s alleged purpose of interfering with Plaintiffs’ businesses. Plaintiffs’ 

protestations to the contrary in their Sur-Reply do not change this analysis. (Pls.’ 

Sur-Reply 5 (“Plaintiffs have alleged and will ultimately demonstrate that the 

publicly available handbook provided absolutely no information about the 

existence of such environmental claims, or that a waiver would be required in 

conjunction with the sale to Marathon or the value of such claims to participants in 

the buy-out program.”).) Even assuming this is true, these omissions to residential 

owners in the Oakwood Heights subdivision are untethered from an intent to 

interfere with Plaintiffs’ businesses. 

Plaintiffs have also failed to sufficiently allege facts in support of their claim 

that Defendant’s acts, though lawful, were malicious. Advocacy Org., 257 Mich. 

App. at 383, 670 N.W.2d at 579 (citation omitted). This is because Plaintiffs have 

not alleged facts from which this Court can reasonably infer that Defendant acted 

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with the requisite state of mind. Although Plaintiffs correctly point out that 

Federal Rule of Civil Procedure 9(b) permits “[m]alice, intent, knowledge, and 

other conditions of a person’s mind [to] be alleged generally[,]” this Rule does not, 

as Plaintiffs insist, permit a party to simply parrot the state of mind required by a 

particular cause of action. Rather, to withstand dismissal, factual allegations 

corroborating Defendant’s malicious intent are necessary. Requiring corroborating 

facts does not, as Plaintiffs maintain, require Plaintiffs to prove anything; rather, 

factual enhancement is part of the federal pleading standard. As the Sixth Circuit 

has stated in the context of Rule 9(b)’s heightened pleading requirement for fraud 

and mistake, “Rule 9(b)’s particularity requirement does not mute the general 

principles set out in Rule 8; rather, the two rules must be read in harmony.” Saltire 

Indus., Inc. v. Waller, Lansden, Dortch & Davis, P.L.L.C., 491 F.3d 522, 526 (6th 

Cir. 2007) (quotation omitted). In other words, although Rule 9(b) permits 

conditions of the mind to be alleged generally, such allegations are still subject to 

the plausibility standard articulated in Twombly and its progeny. Indeed, the 

Supreme Court stated as much in Iqbal, where it noted that “‘generally’ is a 

relative term.” 556 U.S. at 686, 129 S. Ct. at 1954. While malice is not a matter 

that requires particularity in pleading, Rule 9(b) does not give plaintiffs “a license 

to evade the less rigid – though still operative – strictures of Rule 8.” Id. at 686-

87, 129 S. Ct. at 1954. Thus, “to make out a plausible malice claim, a plaintiff 

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must still lay out enough facts from which malice might reasonably be inferred[.]” 

Schatz v. Republican State Leadership Comm., 669 F.3d 50, 58 (1st Cir. 2012). 

This, Plaintiffs have failed to do. 

In sum, any connection between Plaintiffs’ factual allegations and a 

plausible inference of malice is, in this Court’s opinion, too attenuated. Despite 

the conclusory assertions of malice and purposeful interference, there are no facts 

in Plaintiffs’ pleading supporting the fair inference of either malice or an 

orchestrated effort to interfere with Plaintiffs’ business relationships. Rather, at 

best, Plaintiffs have alleged that Defendant lawfully purchased property for the 

purpose of expanding the Detroit Refinery and that Plaintiffs’ businesses suffered 

as a result. Even assuming that Defendant knew that the property purchase 

program would depopulate Oakwood Heights and have an adverse impact on the 

businesses that remained, knowledge does not equate to malice. Saab Auto. AB v. 

Gen. Motors Co., 770 F.3d 436, 441 (6th Cir. 2014) (applying Michigan law) 

(“Intentional interference ‘requires more than just purposeful or knowing behavior 

on the part of the defendant.’”) (quoting Wausau Underwriters Ins. Co. v. Vulcan 

Dev., Inc., 323 F.3d 396, 404 (6th Cir. 2003)). Because Plaintiffs’ Second 

Amended Complaint lacks the factual enhancement to “nudge[] the[] claims across 

the line from conceivable to plausible[,]” Twombly, 550 U.S. at 570, 127 S. Ct at 

1974, the Court dismisses Count I with prejudice. 

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B. Count II – Nuisance 

 In Count II, Plaintiffs seek to state a claim for nuisance stemming from the 

DHOUP, which commenced operating in November of 2012. They allege that the 

DHOUP increased the emission of pollutants into the ambient air and that these 

pollutants were carried by air currents into the Oakwood Heights neighborhood 

and onto Plaintiffs’ properties. (Second Am. Compl. ¶¶ 19-21.) These increased 

emissions “unreasonably interfered with [P]laintiffs’ use and enjoyment of their 

premises and interfere[ed] with the successful and profitable operation of their 

businesses thus constituting a nuisance condition as to them and their customers.” 

(Id. ¶ 22.) 

 Under Michigan law, “[a]n actor is subject to liability for private nuisance 

for a nontresspassory invasion of another’s interest in the private use and 

enjoyment of land if”: 

(a) the other has property rights and privileges in respect to the use or 

enjoyment interfered with, (b) the invasion results in significant harm, 

(c) the actor’s conduct is the legal cause of the invasion, and (d) the 

invasion is either (i) intentional and unreasonable, or (ii) unintentional 

and otherwise actionable under the rules governing liability for 

negligent, reckless, or ultrahazardous conduct. 

Terlecki v. Steward, 278 Mich. App. 644, 654, 754 N.W.2d 899, 907 (Mich. Ct. 

App. 2008). 

Defendant argues that Plaintiffs have not alleged sufficient factual content, 

taken as true, to state a viable claim, as they have failed to allege facts supporting 

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19 

their theory that the alleged interference was unreasonable or resulted in significant 

harm. Interestingly, Plaintiffs devote little attention to this argument, focusing 

instead on Defendant’s arguments concerning the three-year limitations period and 

Michigan’s abolition of the continuing nuisance doctrine. Perhaps not recognizing 

that the limitations period argument is secondary to the threshold issue of whether 

or not Plaintiffs have stated a viable claim of nuisance against Defendant, Plaintiffs 

do not endeavor to explain how the emissions interfered with their use and 

enjoyment of their properties, let alone how the interference was unreasonable in 

light of the Detroit Refinery’s utility. Perhaps the argument is that the increased 

emissions ensured the success of the property buyout program, thus interfering 

with the businesses by guaranteeing that the neighborhood would be stripped of its 

consumer base, but this Court is simply left to guess. Instead of providing factual 

content, Plaintiffs’ pleading parrots the elements of a nuisance action and contains 

legal conclusions that are not entitled to a presumption of truth. Acosta Orellana v. 

CropLife Int’l, 711 F. Supp. 2d 81, 103 n.25 (D.D.C. 2010) (dismissing plaintiffs’ 

nuisance claim where complaint recited “conclusory allegations that the defendants 

‘substantial[ly] and unreasonabl[y] interefer[ed] with the [plaintiffs’] use and 

enjoyment’ of their land, . . . without the necessary factual support to maintain the 

claim. Absent more detailed allegations, the defendants are not on notice of what 

use or enjoyment of the plaintiffs’ land has been violated or how the interference 

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20 

substantially interfered with the plaintiffs’ enjoyment of their property.”). Such 

bare bones allegations are insufficient to withstand Defendant’s request for 

dismissal. The Court therefore dismisses Count II.9

C. Plaintiffs’ Request to Amend

 In their Response, Plaintiffs have requested an opportunity to amend their 

pleading should the Court conclude that it is deficient. (Pls.’ Resp. 17.) Defendant 

opposes this request, noting that the Second Amended Complaint represents 

“Plaintiffs’ third bite at the same apple.” (Def.’s Br. 1.) Because Plaintiffs have 

benefitted from the opportunity to amend their pleading twice previously, the 

Court is inclined to agree with Defendant. Plaintiffs’ request to amend is therefore 

denied. 

D. Defendant’s Request for Costs and Fees 

In addition to dismissal of the claims asserted against it, Defendant asks this 

Court to enter an order awarding it “costs and attorney fees wrongfully incurred.” 

(Def.’s Br. 24.) Despite requesting such relief, and perhaps unaware that awarding 

attorney’s fees to a prevailing party is a rare occurrence, Defendant fails to cite to a 

single rule, statute, or case in support of such relief, and further fails to present any 

argument as to why such relief is proper under the circumstances presented here. 

 9

 Because the Court concludes that Plaintiffs have not discharged their 

pleading burden in Count II of their Second Amended Complaint, the Court 

declines to address the parties’ arguments regarding the limitations period and the 

abolition of the continuing wrongs doctrine. 

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21 

As every student attending an American law school presumptively learns, there 

exists a “bedrock principle known as the American Rule,” under which “each 

litigant pays his own attorney’s fees, win or lose, unless a statute or contract 

provides otherwise.” Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1175 (2013). 

Although a federal court may, relying on its inherent equitable powers, award 

attorney’s fees in a narrow set of circumstances, see, e.g., Wolfe v. Perry, 412 F.3d 

707, 720 (6th Cir. 2005), the Court declines to award Defendant its attorney’s fees 

where Defendant has expended negligible energy in pursuit of its request. 

IV. CONCLUSION AND ORDER

 For the reasons set forth herein, the Court concludes that Plaintiffs have 

failed to state a viable claim for relief on either count set forth in their Second 

Amended Complaint. 

 Accordingly, 

IT IS ORDERED that Defendant’s Motion to Dismiss Second Amended 

Complaint (ECF No. 22) is GRANTED, Plaintiff’s request to amend is DENIED, 

and Plaintiffs’ Second Amended Complaint (ECF No. 21) is DISMISSED WITH 

PREJUDICE. 

Dated: September 15, 2015 

 s/PATRICK J. DUGGAN 

 UNITED STATES DISTRICT JUDGE 

Copies to: 

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Donnelly W. Hadden, Esq. 

Amy M. Johnston, Esq. 

Conor Terrence Fitzpatrick, Esq. 

Michael C. Simoni, Esq. 

Samantha S. Galecki, Esq.

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