UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

GREGORY EVERETT, 

 Plaintiff 

v. 

TED WAHBY, et al., 

 Defendants 

 

Case No. 2:15-cv-11087 

District Judge Mark A. Goldsmith

Magistrate Judge Anthony P. Patti

___________________________________/ 

REPORT AND RECOMMENDATION TO GRANT DEFENDANTS’ 

MOTION TO DISMISS (DE 22) 

I. RECOMMENDATION: The Court should grant Defendants’ motion to 

dismiss based on the Court’s lack of subject matter jurisdiction. (DE 22.) 

II. REPORT 

 A. Background 

Plaintiff, Gregory Everett, who is proceeding without the assistance of 

counsel, filed his complaint with this Court on March 24, 2015. (DE 1.) He titled 

this document “Petition for Declaratory Judgment and Present Relief from 

Immediate and Defin[i]te Injury,” and brings the action pursuant to 18 U.S.C. §§ 

242, 2201, and 1983. 

 This cause of action arose from a February 6, 2015 foreclosure hearing in 

Macomb County, which occurred because Plaintiff failed to pay property taxes in 

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2012 and 2013. He names as Defendants Macomb County Treasurer Ted Wahby, 

Macomb County Assistant Corporation Counsel Frank Krycia, and the Honorable 

Mark Switalski, the Macomb County Circuit Court Judge who presided over 

Plaintiff’s foreclosure hearing in state court. Plaintiff contends that his foreclosure 

proceedings were a “sham,” that Defendants acted fraudulently during those 

proceedings, and that he is immune from state taxation of his property. (DE 1 at 2-

5.) He asks the Court to stay the pending Sheriff’s sale and make a declaratory 

judgment voiding all tax debts against Plaintiff and his property in perpetuity. 

B. The Instant Motion 

 Defendants filed the instant motion on May 20, 2015. They assert that 

Plaintiff’s complaint should be dismissed for several reasons pursuant to Federal 

Rules of Civil Procedure 12(b)(1) and 12(b)(6). First, Defendants contend that the 

Court lacks subject matter jurisdiction because the Tax Injunction Act, 28 U.S.C. § 

1341, deprives a district court of subject matter jurisdiction in matters of local 

taxation. Defendants also rely upon the doctrines of comity, mootness, and the 

Rooker-Feldman doctrine to demonstrate that this Court lacks subject matter 

jurisdiction in the instant matter. Second, Defendants argue that Plaintiff has failed 

to state a claim upon which relief can be granted because his claims are conclusory 

and contain only vague allegations. Finally, Defendants contend that Judge 

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Switalski is entitled to absolute judicial immunity for his actions in presiding over 

a foreclosure action. 

 Plaintiff opposes the motion. In his response, he further elucidates the 

arguments made in his complaint. Specifically, Plaintiff contends that it is “well 

established” that the State of Michigan is a corporation, and that Macomb County 

is a political subdivision of that corporation. (DE 24 at 5.) He asserts that this 

means he can only be compelled to pay property taxes if he is a holder in due 

course pursuant to Mich. Comp. Laws 440.3501(2)(b)(1). Plaintiff also asserts that 

he is not subject to ad valorem property taxation because he believes his property, 

a single-family home, does not fall within the definition of “homestead” in Mich. 

Comp. Laws 206.508(2). Furthermore, he brushes off the Rooker-Feldman

doctrine as a mere “fallacy.” (Id. at 9.) In addition, he makes what Defendants 

describe as a “fantastical” argument that he is unable to comply with the state real 

estate tax law because it is against the law to pay his tax debt in United States 

currency.

1

 Finally in his supporting affidavit, he asserts that, as a white man born 

in Michigan, he is “not restricted by the 14th Amendment, and . . . ha[s] no 

                                                            

1

 The Undersigned agrees that such an argument is fantastical, albeit somewhat 

nebulous, and seemingly contradicts Plaintiff’s own complaint, in which he states 

that Defendant Krycia informed him that payment could be made by check, bank 

draft, or legal tender. (DE 1 at 4.) 

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reciprocal obligation to 14th Amendment allegiance.” (Id. at ¶ 2.)2

 He therefore 

concludes that he is “not a resident of any state under the 14th Amendment and . . . 

publicly disavow[s] any contract, form, agreement, application, certificate, license, 

permit or other document that [he] may have signed . . . .” (Id. at ¶ 7.)3

 

C. Standard 

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant is 

authorized to move for dismissal based on lack of subject matter jurisdiction. 

“When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff 

has the burden of proving jurisdiction in order to survive the motion.” MadisonHughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). In reviewing a motion 

under Rule 12(b), the “court may consider evidence outside the pleadings to 

                                                            

2

 Plaintiff cites no case law relating to his assertion that he is not restricted by the 

Fourteenth Amendment by virtue of being born “a white man . . . on the land of 

Michigan . . . .” (DE 24 at ¶2.) However, Plaintiff’s admission that he was born 

“on the land of Michigan,” an undisputed territory of the United States, is 

sufficient to demonstrate that the Fourteenth Amendment does, in fact, apply to 

Mr. Everett. See United States v. Wong Kim Ark, 169 U.S. 649, 675-76 (1898) 

(discussing the Fourteenth Amendment’s affirmation of United States citizenship 

on the basis of birth within a territory of the United States); see also Nolos v. 

Holder, 611 F.3d 279, 284 (5th Cir. 2010) (explaining that the Court in Wong Kim 

Ark found it unnecessary to define ‘territory’ because the child was born in San 

Francisco, an undisputed territory of the United States, and therefore his 

citizenship (on that basis) was presumed, even despite the fact that his parents were 

not United States citizens). 

3

 He also filed a subsequent “Notice to Court of Continuing Lawlessness” (DE 28), 

asserting that the taxes required by these “conspiring actors” are constitutionally 

prohibited.” (Id.) 

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resolve factual disputes concerning jurisdiction, and both parties are free to 

supplement the record by affidavits.” Nichols v. Muskingum Coll., 318 F.3d 674, 

677 (6th Cir. 2003). When faced with a challenge to subject matter jurisdiction, “a 

court must address that issue before all others.” Cain v. Redbox Automated Retail, 

LLC, 981 F.Supp 2d 674, 681 (E.D. Mich. 2013) (collecting cases). 

 Motions under Rule 12(b)(1) fall into two categories: “facial attacks and 

factual attacks.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A 

facial attack challenges “the sufficiency of the pleading itself,” and the “court must 

take the material allegations of the petition as true and construed in the light most 

favorable to the nonmoving party.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 

235-37 (1974)). A factual attack does not challenge the sufficiency of the 

allegations, but is a “challenge to the factual existence of subject matter 

jurisdiction,” to which “no presumptive truthfulness applies to the factual 

allegations, and the court is free to weigh the evidence and satisfy itself as to the 

existence of its power to hear a case.” Id. (internal citation omitted). 

D. Analysis 

Defendants bring their motion under Rule 12(b)(1) and, in the alternative, 

12(b)(6). Because I conclude that the Court does not have subject matter 

jurisdiction over this issue, I will not address Defendants’ arguments that Plaintiff 

has failed to state a claim upon which relief can be granted under 12(b)(6). 

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1. The Tax Injunction Act 

Defendants make a facial challenge to the existence of subject matter 

jurisdiction in this action. Specifically, they assert that the Tax Injunction Act, 28 

U.S.C. § 1341 (“TIA”), deprives the District Court of jurisdiction in this local 

taxation issue. The TIA reads in its entirety as follows: 

The district courts shall not enjoin, suspend or restrain the assessment, 

levy or collection of any tax under State law where a plain, speedy 

and efficient remedy may be had in the courts of such State. 

28 U.S.C. § 1341. The TIA is “first and foremost a vehicle to limit drastically 

federal district court jurisdiction to interfere with so important a local concern as 

the collection of taxes.” Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 522 (1981). 

Where the TIA applies, the “exclusion of federal courts from the state taxation area 

is so far reaching it precludes federal courts from declaring state tax laws 

unconstitutional.” Thiokol Corp. v. Dep’t of Treasury, State of Mich., Revenue 

Div., 987 F.2d 376, 378 (6th Cir. 1993). Further, “[a]lthough the TIA mentions 

only injunctions, its policy of comity bars declaratory judgment and 42 U.S.C. § 

1983 damages actions as well.” Id. 

 The Supreme Court has described the objectives of the TIA as follows: 

 (1) to eliminate disparities between taxpayers who could seek 

injunctive relief in federal court—usually out-of-state corporations 

asserting diversity jurisdiction—and taxpayers with recourse only to 

state courts, which generally required taxpayers to pay first and 

litigate later; and (2) to stop taxpayers, with the aid of a federal 

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injunction, from withholding large sums, thereby disrupting state 

government finances. 

Hibbs v. Winn, 542 U.S. 88, 104 (2004). Although the TIA was not intended to bar 

every federal lawsuit related to state tax collection, it does reflect Congress having 

“trained its attention on taxpayers who [seek] to avoid paying their tax bill by 

pursuing a challenge route other than the one specified by the taxing authority.” 

Id. at 105. Nevertheless, the TIA does contain certain limitations to these 

objectives. As is relevant in this case, the TIA only bars federal claims where there 

exists a state remedy that is “plain, adequate, and complete,” or “plain, speedy, and 

efficient.” Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 116 n. 

8 (1981) (finding “no significant difference between remedies which are ‘plain 

adequate and complete’ . . . and those which are ‘plain, speedy, and efficient.’). 

The requirement is satisfied if the state remedy ‘“provides the taxpayer with a ‘full 

hearing and judicial determination’ at which [the taxpayer] may raise any and all 

constitutional objections to the tax.”’ California v. Grace Bretheren, 457 U.S. 

393, 411-12 (1982) (quoting Rosewell, 450 U.S. at 512).4

 The plaintiff bringing 

                                                            

4

 This reading of the statute is remarkably consistent with the principles of the 

Rooker-Feldman doctrine, which holds that “a district court [cannot] exercise 

appellate review of a state court decision.” McCormick v. Braverman, 451 F.3d 

382, 389 (6th Cir. 2006). Here, it is apparent that Plaintiff lost his foreclosure 

action in state court and now attempts to challenge his loss in this district court. 

See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 281 (2005) 

(noting that Rooker-Feldman bars district court jurisdiction in “cases brought by 

state-court losers complaining of injuries caused by state-court judgments rendered 

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the action bears the burden of establishing jurisdiction when it has been 

challenged. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986). 

 Defendants contend that the State of Michigan provides a remedy that is 

plain, speedy, and efficient. As support for this proposition, Defendants ably lay 

out the tax reversion process addressed in Mich. Comp. Laws § 211. (See DE 22 at 

5-8.) Specifically, it provides a process by which local governments, cities, 

townships, villages, and school districts collect property taxes. Id. If property 

taxes are not paid by February of the year in which they are assessed, they become 

delinquent on March 1st and are turned over to the County Treasurer. Id. at § 

211.78(1), 211.78(a)(2) and 211.55. Pursuant to Mich. Comp. Laws 211.78, 

property may be foreclosed upon by the state or county treasurer for delinquent 

taxes. The law provides for two notices to be sent prior to foreclosure. Id. at 

211.78b and 211.78c. If the taxes remain unpaid, the treasurer sends notice by 

certified mail that the property will be forfeited. Id. at 211.78f. 

 On March 1 of the year following the year of delinquency, the treasurer files 

a certificate of forfeiture with the register of deeds. Id. at 211.78g. The statute sets 

                                                                                                                                                                                               

before the federal district court proceedings commenced and inviting district court 

review and rejection of those judgments.”). In the absence of the TIA, the Court’s 

jurisdiction in this action would likely be barred by the Rooker-Feldman doctrine 

alone. See, e.g., Anderson v. Cnty. of Wayne, No. 10-13708, 2011 WL 2470467, at 

*6 (E.D. Mich. June 20, 2011) (holding that dismissal would be appropriate under 

either the Rooker-Feldman doctrine or the TIA). 

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out a timeline in which the foreclosure hearing must be held, in addition to an 

administrative show-cause hearing. Id. at 211.78h(1) and 211.78j(1). It also 

provides the procedure for a judicial foreclosure hearing, which allows a person 

claiming ownership of the property to file written objections contesting the 

petition. Id. at 211.78k(3). The statute specifically provides that objections may 

be made for the following reasons: 

(a) No law authorizes the tax. 

(b) The person appointed to decide whether a tax shall be levied 

 under a law of this state acted without jurisdiction, or did not 

 impose the tax in question. 

(c) The property was exempt from the tax in question, or the tax 

 was not legally levied.

(d) The tax has been paid within the time limited by law for 

 payment or redemption. 

(e) The tax was assessed fraudulently. 

(f) The description of the property used in the assessment was so 

 indefinite or erroneous that the forfeiture was void. 

Mich. Comp. Laws 211.78k(2) (emphasis added). 

 Defendants also present evidence that those procedures were followed with 

respect to Plaintiff’s residential real estate located at 24609 Eureka in Warren, 

Michigan. (DE 22-2 and 22-4.) Plaintiff does not object to their summary of the 

Michigan tax statutes, but asserts that his single-family home is immune from such 

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taxes based on a misreading of Mich. Comp. Laws 206.508(2).5

 (DE 24 at 19.) As 

noted above, Plaintiff was free to raise the issue that his property was exempt from 

taxation as an objection during the state foreclosure hearing process. He was also 

free to raise jurisdictional objections in the state court proceedings, and to 

adjudicate his fraudulent assessment claim. 

 Based on these statutes, the State of Michigan affords property owners a full 

hearing and judicial determination at which they may raise any and all 

constitutional objections to the tax. Conely v. Township of York, 76 F.App’x 49, 

51 (6th Cir. 2003) (“Michigan provides a ‘plain, speedy and efficient remedy’ for 

tax disputes.”). Plaintiff does not raise any issues in his complaint or response to 

                                                            

5

 Although it is not relevant because the Court does not have subject matter 

jurisdiction over this matter, a brief note on this misunderstanding may be helpful. 

Plaintiff asserts that Michigan Law subjects only homesteads, which it defines as 

multiple-unit dwellings, to ad valorem property taxes. However, the statute 

Plaintiff quotes actually states: 

“Homestead” means a dwelling or unit in a multiple-unit dwelling that 

is subject to ad valorem taxes, or a service charge in lieu of taxes as 

provided by section 15a of the state housing development authority 

act of 1966, 1966 PA 346, MCL 125.1415a, owned and occupied as a 

home by the owner of the dwelling or unit, or occupied as the 

dwelling of the renter or lessee, including all unoccupied real property 

not classified for ad valorem tax purposes as commercial, industrial, 

residential, or timber-cut over, owned by the owner of the homestead. 

Mich. Comp. Laws § 206.508(2) (emphasis added). Plaintiff ignores the initial 

part of the sentence, which indicates that homesteads include dwellings OR units 

within multiple-unit dwellings. 

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Defendants’ motion that contradict the existence of a plain, speedy, and efficient 

method for contesting the foreclosure under Michigan law. Notably, three of the 

objections Plaintiff raises in the instant action are specifically enumerated in 

Michigan law as matters to which a property owner may object during the judicial 

foreclosure proceedings. 

The clear and direct language of the TIA unambiguously mandates that 

aggrieved taxpayers seeking to enjoin enforcement of state taxes must seek their 

remedies in state courts, where, as here, state courts provide appropriate remedies. 

The property taxes with which Plaintiff takes issue arise under Michigan state law, 

and this Court is prohibited from enjoining, suspending or restraining their 

assessment, levy or collection. Accordingly, the TIA squarely applies to this case 

and I recommend that the Court GRANT Defendants’ motion and DISMISS this 

action for a lack of subject matter jurisdiction pursuant to Rule 12(b)(1). 

 2. Absolute Judicial Immunity 

 If the Court disagrees with the above recommendation to dismiss this action 

based on lack of subject matter jurisdiction, Plaintiff’s claims against Defendant 

Switalski should be dismissed on the basis of absolute judicial immunity. “[S]tate 

judges are absolutely immune from liability for their judicial acts.” Briscoe v. 

LaHue, 460 U.S. 325, 334 (1983). Judicial acts are those “normally performed by 

a judge.” Stump v. Sparkman, 435 U.S. 349, 362-63 (1978). Here, Plaintiff asserts 

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that Defendant Switalski was the judge who presided over his foreclosure hearing, 

which, in fact, is an act normally performed by a judge. (DE 1 at 2.) See, e.g., 

Rice v. Wayne Cnty. Treasurer, No. 13-cv-12456, 2013 WL 5913685, at *8 (E.D. 

Mich. Nov. 1, 2013) (holding that resolving a judicial foreclosure proceeding was a 

function normally performed by a judge). As a result, Defendant Switalski is 

entitled to absolute judicial immunity in this action. 

IV. PROCEDURE ON OBJECTIONS 

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

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Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: October 14, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on October 14, 2015, electronically and/or by U.S. Mail. 

 s/ Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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