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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT P. THOMAS, 

 Plaintiff,

v. Civil Case No. 15-10210 

Honorable Linda V. Parker

BRIGGS ET AL., 

 Defendants. 

__________________________/

OPINION AND ORDER DENYING (1) DEFENDANTS' MOTION TO 

DISMISS [ECF NO. 17] AND (2) DEFENDANTS' MOTION FOR 

PROTECTIVE ORDER AND/OR FOR SECURITY FOR COSTS AND 

FEES [ECF NO. 17] 

I. INTRODUCTION 

 Plaintiff Robert P. Thomas (“Plaintiff”) filed this lawsuit against Defendants 

Lori A. Briggs (“Defendant Briggs”) and Melissa Borden (“Defendant Borden”) 

(collectively “Defendants”) stemming from the alleged unlawful possession of 

Plaintiff’s two dogs. (ECF No. 1 ¶¶ 3,4.) Plaintiff filed his complaint on January 

20, 2015, alleging that Defendants violated his civil rights under the Fourth 

Amendment and Fourteenth Amendment pursuant to 42 U.S.C. § 1983 and state 

law claims for conversion and replevin. (Id.) On September 6, 2015, Defendants 

filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 

12(b)(6) and in the alternative, a motion for a protective order and/or security for 

costs and fees. (ECF No. 17.) 

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Presently before the Court is Defendants’ motion to dismiss Plaintiff’s 

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and in the 

alternative, motion for a protective order and/or for security for costs and fees. 

(ECF No. 19.) Finding the facts and legal arguments sufficiently presented in the 

parties’ briefs, the Court dispensed with oral argument pursuant to Eastern District 

of Michigan Local Rule 7.1(f) on January 7, 2016. For the reasons that follow, the 

Court is denying Defendants’ motion to dismiss for failure to state a claim and 

denying without prejudice Defendant’s motion for a protective order.

II. BACKGROUND 

 This dispute surrounds the ownership of two dogs. Plaintiff alleges that he 

is the owner of Swimmer and her offspring, Katrina. (ECF No. 1 ¶ 10.) On 

October 8, 2014, Defendant Briggs, a Detroit police officer employed by the 

Evidence Technician Unit, captured Swimmer and Katrina by “luring them from 

[the] property where they had a right to be [on].” (Id. ¶¶ 11, 16.) Defendant 

Briggs then transported the dogs to Defendant Borden, the owner of an animal 

rescue, rehabilitation, and adoption facility located in Newport, Michigan. (Id. ¶¶ 

14, 28.) Defendant Borden brought the dogs to her facility, The Devoted Barn, a 

nonprofit shelter located in Monroe County, Michigan. (Id. ¶¶ 28, 29.) 

 Plaintiff alleges that Defendant Briggs had no authority to seize his dogs 

from his property. Plaintiff’s complaint states that Defendant Briggs is not 

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affiliated with the Detroit Animal Control Center, nor seized the dog in connection 

with any case in her capacity as a police officer. (Id. ¶¶ 19-21.) 

 Plaintiff further alleges that Defendant Borden has conspired with Defendant 

Briggs over the seizure of his dogs. (Id. ¶ 72.) As of the filing of the complaint, 

Defendant Borden has continued to exercise dominion over Plaintiff’s dogs. (Id. ¶ 

36.) 

III. MOTION TO DISMISS

A. Legal Standard 

 Since the motion was filed after the answer, the Court evaluates this motion 

under Federal Rule of Civil Procedure 12(c) instead of Rule 12(b)(6). See, e.g., 

McGlone v. Bell, 681 F.3d 718, 728 n.2 (6th Cir. 2012) (“Defendants filed an 

untimely motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), 

as it was filed after Defendants' Answer. The district court, using its discretion to 

address substance over form, treated Defendants' motion to dismiss as a 12(c) 

motion for judgment on the pleadings.”); Dunn–Mason v. JP Morgan Chase Bank 

Nat. Ass'n, No. 11–CV–13419, 2013 WL 4084676, at *3 (E.D. Mich. Aug. 13, 

2013); Williams v. State Farm Ins. Co., 781 F.Supp.2d 519, 522 (E.D. Mich. 2011) 

(further citations omitted). However, the standard of review for a motion for 

judgment on the pleadings for failure to state a claim upon which relief can be 

granted under Federal Rule of Civil Procedure 12(c) is the same as that which 

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should be undertaken when evaluating a motion brought pursuant to Rule 12(b)(6). 

Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010); Kottmyer v. Maas, 436 F.3d 

684, 689 (6th Cir. 2006). 

 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 

tests whether a legally sufficient claim has been pleaded in a complaint, and 

provides for dismissal when a plaintiff fails to state a claim upon which relief may 

be granted. Fed. R. Civ. P. 12(b)(6). “To 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)). A claim is facially plausible when a plaintiff pleads 

factual content that permits a court to reasonably infer that the defendant is liable 

for the alleged misconduct. Id. (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 

1965). This plausibility standard “does not impose a probability requirement at the 

pleading stage; it simply calls for enough fact[s] to raise a reasonable expectation 

that discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 

556, 127 S. Ct. at 1965. 

 When assessing whether a plaintiff has set forth a “plausible” claim, the 

district court must accept all of the complaint’s factual allegations as true. Ziegler 

v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001). Even so, “the pleading 

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must contain more . . . than . . . a statement of facts that merely creates a suspicion 

[of] a legally cognizable right of action.” Twombly, 550 U.S. at 555, 570, 127 S. 

Ct. at 1965. A plaintiff has the duty to provide “more than labels and conclusions, 

and a formulaic recitation of the elements of a cause of action will not do . . . .” Id. 

Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 

1949 (citing Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). 

 Compared to formal pleadings drafted by lawyers, a generally less stringent 

standard is applied when construing the allegations pleaded in a pro se complaint. 

Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 596 (1972). Even so, pro 

se plaintiffs must still provide more than bare assertions of legal conclusions. 

Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citing Scheid v. Fanny 

Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). 

B. Analysis 

 Defendants argue that Plaintiff has failed to establish that he has ownership 

of either dog pursuant to the Michigan Dog Law of 1919 (“Michigan Dog Law”) 

or Section 6-1-1 of the City of Detroit Code of Ordinances (“Section 6-1-1”). 

(ECF No. 17 ¶¶ 4, 5.) However, on a motion to dismiss, Plaintiff does not bear the 

burden of establishing that he has ownership pursuant to either statute. Plaintiff 

need only provide factual allegations that demonstrate he is the owner of the dogs 

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at the motion to dismiss stage. Plaintiff states sufficient factual allegations in the 

complaint for establishing ownership. (ECF No. 1 ¶ 10 (“Plaintiff is the owner of a 

shepherd-mix dog named Swimmer, born in August 2008, and her offspring, 

Katrina, born in July 2013”).) The burden rests with Defendants to establish that 

Plaintiff has failed to state a claim based on the facts alleged in the complaint. 

Defendants fail to cite any case law stating that a party lacks property 

interest if they are not in compliance with the Michigan Dog Law or Section 6-1-1. 

Rather, Defendants’ brief is limited to addressing facts that are not presented in 

Plaintiff’s complaint. 

This Court is required to accept Plaintiff’s allegations as true. Ziegler v. IBP 

Hog Mkt., Inc., 249 F.3d at 512. Further, this Court is required to construe 

Plaintiff’s allegations liberally due to his pro se status. Haines, 404 U.S. at 520-21. 

Therefore, Defendants’ motion to dismiss is denied.

IV. MOTION FOR PROTECTIVE ORDER 

A. Legal Standard 

 Federal Rule of Civil Procedure 26(c) provides that a “court may, for good 

cause, issue an order to protect a party or person from annoyance, embarrassment, 

oppression, or undue burden or expense...” Fed.R.Civ.P. 26(c)(1). “The burden 

of establishing good cause for a protective order rests with the movant.” Nix v. 

Sword, 11 Fed. Appx. 498, 500 (6th Cir. May 24, 2011) (citing General Dynamics 

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Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973)). “To show good 

cause, a movant for a protective order must articulate specific facts showing 

‘clearly defined and serious injury’ resulting from the discovery sought and cannot 

rely on mere conclusory statements.” Id. (citing Avirgan v. Hull, 118 F.R.D. 252, 

254 (D.D.C. 1987)). 

B. Analysis 

 First, the Court notes that Defendants failed to adhere to this Court’s 

Practice Guidelines in filing this motion. The guidelines state that “[n]o discovery 

motion may be filed before the Court is contacted.” Defendants should have 

contacted the Court’s Case Manager to schedule a conference call to determine 

whether the discovery issue warranted a motion being filed. 

 Defendants’ motion requests that the court broadly strike Plaintiff’s 

subpoenas duces tecum, interrogatories, and requests for production. (ECF No. 17 

¶¶ 5-8.) Defendants’ general objections fail to provide sufficient specifics for the 

court to evaluate in determining whether “good cause” has been established. 

 Further, Defendants ask the court to strike discovery requests sent to third 

parties. (Id. ¶ 7, 8.) The Court finds that Defendants lack standing to object to 

discovery requests sent to a third party. “A party generally lacks standing to 

challenge a subpoena directed to a non-party unless it claims a privilege or 

demonstrates a personal interest.” Sys. Prods. & Solutions, Inc. v. Scramlin, No. 

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13-CV-14947, 2014 WL 3894385, at *7) (E.D. Mich. Aug. 8, 2014) (citing 

Underwood v. Riverview of Ann Arbor, No. 08-CV-11024-DT, 2008 WL 5235992, 

at *1 (E.D. Mich. Dec. 15, 2008); see also Mann v. Univ. of Cincinnati, 114 F.3d 

1188 (Table), at *4 (noting that a party generally does not have standing to contest 

third-party subpoena unless the party claims a personal right). 

V. SECURITY FOR COSTS AND FEES 

 In the motion for protective order, Defendants request the court to order 

Plaintiff to post a security bond for costs and attorney fees if the motion is denied. 

(ECF No. 17 ¶ 9.) The Supreme Court has recognized the authority of district 

courts to take action to prevent abuse of the judicial system. Chambers v. NASCO 

Inc., 501 U.S. 32, 43-44 (1991). This court has recognized that “in the interest of 

justice and in the exercise of its inherent discretion...the ordering of security for 

costs” can be justified. State Wide Enters., Inc. v. U.S. Gypsum Co., 238 F.Supp. 

604, 606 (E.D. Mich. 1965); see also Anderson v. Steers, Sullivan, McNamar & 

Rogers, 998 F.2d 495, 496 (“So if there is reason to believe that the prevailing 

party will find it difficult to collect its costs, the court can require the posting of a 

suitable bond.”). 

 Again, Defendants fail to provide any case law to support their request that 

Plaintiff post a security bond. Defendants also do not provide the court with any 

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factual allegations to suggest that Plaintiff will be unable to pay costs and attorney 

fees.1

 Therefore, the request to require Plaintiff to post a security bond is denied. 

VI. CONCLUSION 

Accordingly, 

IT IS ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Complaint 

(ECF No. 17) is DENIED; 

IT IS FURTHER ORDERED that Defendant’s Motion for a Protective 

Order and/or for Security for Costs and Fees (ECF No. 17) is DENIED 

WITHOUT PREJUDICE. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: September 28, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, September 28, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

                                                            

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 The Court notes that Plaintiff filed his filing fee in this action.

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