1 

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

Robert Samberg, 

 

 Plaintiff, Case No. 14-cv-13851 

 Hon. Judith E. Levy 

 Mag. Judge David R. Grand 

 v. 

 

Detroit Water & Sewer Company, 

 

 Defendant. 

__________________________________/ 

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO 

DISMISS [9] 

 Robert Samberg files this complaint against the Detroit Water & 

Sewer Company (the “DWSD”).1 The case arises out of defendant’s 

tender offer to buy back bonds and plaintiff’s allegation that defendant 

withheld material information until after plaintiff was required to make 

his decision. (Dkt. 1.) Plaintiff brings claims of (1) fraud, (2) negligent 

misrepresentation, (3) intentional infliction of emotional distress, and 

(4) negligent infliction of emotional distress. (Id.) 

 

1 Plaintiff incorrectly identified the defendant in his complaint as the Detroit Water 

& Sewage Company. The proper defendant is the Detroit Water & Sewage 

Department. 

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 Before the Court is defendant’s motion to dismiss. Defendant 

argues that the case should be dismissed because plaintiff has failed to 

state an actionable claim upon which relief could be granted. (Dkt. 9.) 

For the reasons set forth below, the Court grants defendant’s motion to 

dismiss. 

I. Facts 

 Plaintiff held bonds with the DWSD. On some unspecified date, 

the DWSD made a tender offer to buy back their bonds and gave all the 

bondholders until April 21, 2014, to act on the offer. (Dkt. 1 at ¶ 1.) 

Plaintiff’s personal broker required that plaintiff provide the broker 

with a response to this offer by April 20, 2014. (Id.) After plaintiff 

informed his broker of his decision to accept the tender offer but before 

the close of the April 21 deadline, the DWSD released additional 

information that affected the value of the bonds. Plaintiff alleges that 

this newly released information was “[c]ritical information affecting 

[his] decision” and that he would not have accepted the offer to tender 

his bonds had the information been provided sooner. (Id. at ¶ 3.) As a 

result of this information being released after his broker’s deadline, 

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plaintiff alleges that he tendered his bonds “at a significant loss.” (Id. 

at ¶ 11.) 

II. Legal Standard 

When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 

the Court must “construe the complaint in the light most favorable to 

the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,

684 F.3d 605, 608 (6th Cir.2012). “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 (2009). A plausible claim need not contain “detailed 

factual allegations,” but it must contain more than “labels and 

conclusions” or “a formulaic recitation of the elements of a cause of 

action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

A pro se complaint, such as this one, is entitled to a liberal 

construction and “must be held to less stringent standards than formal 

pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 

(2007) (citation omitted). 

III. Analysis 

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 Defendant argues that all of plaintiff’s claims should be dismissed 

because he failed to state a claim upon which relief could be granted. 

(Dkt. 9 at 5.) 

 Plaintiff has failed to identify any action taken by defendant that 

could be construed as fraudulent, negligent, or that could lead to 

plaintiff suffering from emotional distress. Construing the complaint in 

the light most favorable to Samberg, the following is alleged: (1) the 

defendant issued an offer to tender bonds, (2) the defendant’s deadline 

to respond to the offer was April 21, 2015, and (3) after plaintiff 

provided a response in compliance with his personal broker’s deadline, 

defendant released additional information that affected the value of the 

bonds. (Dkt. 1.) 

A. Fraud and Negligent Misrepresentation 

 With respect to plaintiff’s fraud claim, the complaint states that 

defendant “made misrepresentations of fact” to defendant. (Dkt. 1 at 5-

8.) Apart from these conclusory allegations, plaintiff’s complaint fails to 

allege any specific fraudulent actions on the part of defendant. As 

required by Fed. R. Civ. P. 9(b), plaintiff does not allege who made the 

fraudulent statements or omissions, what those statements were, when 

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they were made, or how he relied on them. See Fed. R. Civ. P. 9(b); 

Frank v. Dana Corp., 547 F.3d 564, 569–70 (6th Cir.2008) (internal 

quotation marks and citation omitted). At a minimum, plaintiff “must 

allege the time, place and contents of the misrepresentations upon 

which they relied.” Id. This threshold is not met by plaintiff’s 

complaint. 

 Even granting plaintiff a more liberal construction of his pro se 

complaint, and even if he were granted leave to amend it, his claims 

would still not survive defendant’s motion to dismiss. Under Michigan 

law a fraudulent misrepresentation claim requires a showing that the 

defendant made a material misrepresentation that was known to be 

false. Hi–Way Motor Co. v. Int'l Harvester Co., 398 Mich. 330, 247 

N.W.2d 813, 816 (Mich.1976). Similarly, a negligent misrepresentation 

claim requires an allegation that defendant made a material 

misrepresentation that was unintentionally false. See Sipes v. Kinetra, 

LLC, 137 F. Supp. 2d 901, 910 (E.D. Mich. 2001). 

 In plaintiff’s response, he claims that “defendant’s purpose was to 

coerce the plaintiff into tendering his bonds without the necessary 

information to make an informed decision.” (Dkt. 15 at 2.) This 

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statement, along with the allegations in plaintiff’s complaint, is in 

direct contradiction with plaintiff’s description of the facts of the case. 

Plaintiff acknowledges that the defendant was releasing information 

“right up to the tender expiry date that could affect a bondholder’s 

decision to tender.” (Id. at ¶ 8.) Defendant did, indeed, release material 

information after plaintiff had accepted the offer by a deadline set by 

his own broker, but plaintiff did not allege that any of the information 

provided to him was false. 

 Accordingly, plaintiff’s fraud and negligent misrepresentation 

claims will be dismissed for failure to state a claim upon which relief 

could be granted. 

B. Intentional Infliction of Emotional Distress 

 To establish a claim of intentional infliction of emotional distress, 

a plaintiff must prove the following elements: “(1) extreme and 

outrageous conduct, (2) intent or recklessness, (3) causation, and (4) 

severe emotional distress.” Hayley v. Allstate Ins. Co., 262 Mich. App. 

571, 577 (2004). 

 Plaintiff’s claim fails, in part, because he has not alleged any 

conduct that was “extreme and outrageous.” Extreme and outrageous 

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conduct is conduct that “must be so outrageous in character, and so 

extreme in degree, as to go beyond all possible bounds of decency, and to 

be regarded as atrocious and utterly intolerable in a civilized 

community.” Hayley, 262 Mich. App. at 577. There is nothing about 

defendant’s conduct that remotely rises to the level contemplated by 

Michigan courts. On the contrary, defendant did exactly what it said it 

would do when it made its initial offer – continue to offer information 

up until the April 21 deadline. 

 Even if all of the other elements were met, plaintiff would still be 

unable to establish a causal link between defendant’s conduct and 

plaintiff’s alleged injury. Plaintiff indicates that he “would have waited 

until August 21, 2014” to respond to defendant’s offer if his own

personal broker did not impose an earlier deadline. Plaintiff’s alleged 

injury ultimately arose from the deadline established by his broker and 

not by defendant’s conduct. 

 Accordingly, plaintiff has failed to state a claim for intentional 

infliction of emotional distress. 

C. Negligent Infliction of Emotional Distress 

 The elements of negligent infliction of emotional distress are: 

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(1) serious injury threatened or inflicted on a person, not the 

plaintiff, of a nature to cause severe mental disturbance to 

the plaintiff, (2) shock by the plaintiff from witnessing the 

event that results in the plaintiff's actual physical harm, (3) 

close relationship between the plaintiff and the injured 

person (parent, child, husband, or wife), and (4) presence of 

the plaintiff at the location of the accident at the time the 

accident occurred or, if not presence, at least shock “fairly 

contemporaneous” with the accident. 

Hesse v. Ashland Oil, Inc., 466 Mich. 21, 34 (2002). Michigan has 

refused “to apply the tort of negligent infliction of emotional distress 

beyond the situation where a plaintiff witnesses negligent injury to a 

third person and suffers mental disturbance as a result.” Duran v. The 

Detroit News, 200 Mich. App. 622, 629 (1993) (emphasis added). Under 

no circumstances could plaintiff’s complaint be construed as alleging 

that he witnessed harm to a third person and suffered mental 

disturbance as a result. Thus, plaintiff’s negligent infliction of 

emotional distress claim will be dismissed for failure to state a claim. 

IV. Conclusion2

 

2 While plaintiff uses California law as the basis for the claims in his complaint, 

defendant points out that he acknowledges that the action arose in Wayne County, 

Michigan. (Dkt. 1-1.) Defendant further argues correctly that the disposition of 

this case would be the same regardless of whether the Court applied Michigan or 

California law because under California law, a claim of fraud or negligent 

misrepresentation also includes the element of a false statement, and an infliction 

of emotional distress claim includes the element of causation. See Lazar v. Superior 

Court, 12 Cal.4th 631, 638 (1996) (elements of fraud); Wells Fargo Bank, N.A. v. 

FSI, Financial Solutions, Inc., 196 Cal.App.4th 1559, 1573 (2011) (elements of 

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Accordingly, for the reasons set forth above, IT IS HEREBY 

ORDERED that: 

Defendant’s motion to dismiss (Dkt. 9) is GRANTED, and 

plaintiff’s complaint is DISMISSED with PREJUDICE. 

Dated: May 5, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on May 5, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

 

negligent misrepresentation); Christensen v. Superior Court, 54 Cal.3d 868, 903 

(1991) (elements of intentional infliction of emotional distress); Huggins v. Longs 

Drug Stores California, Inc., 6 Cal.4th 124, 129 (elements of negligent infliction of 

emotional distress). 

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