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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SOUTHWEST METALS Inc., a 

Michigan corporation, and JOSEPH FAWAZ,

an individual, 

Plaintiffs,

v. Case No.: 15-CV-11080

 Hon. Marianne O. Battani

Mag. Anthony P. Patti

CITY OF DETROIT, MICHAEL E. 

DUGGAN, Mayor of Detroit, in his 

official capacity, DETROIT POLICE 

DEPARTMENT, JAMES CRAIG, 

Detroit Police Chief, in his official 

capacity, SGT. REBECCA McKAY in 

her individual and official capacities, 

KEVIN JONES, City of Detroit 

Business License Center Manager, in his 

official capacity, CITY OF DETROIT 

BUSINESS LICENSE CENTER, 

jointly and severally.

 

Defendants.

AYAD LAW, PLLC CITY OF DETROIT LAW DEPARTMENT

NABIH H. AYAD (P59518) ERIC B. GAABO (P39213)

Attorney for Plaintiffs Attorney for Defendant City of Detroit

645 Griswold St., Ste. 2202 Coleman A. Young Municipal Center

Detroit, MI 48226 2 Woodward Avenue, Suite 500

Phone: (313) 983-4600 Detroit, MI 48226

Fax: (313) 983-4665 (313) 237-5052

Email: nayad@ayadlaw.com gaabe@detroitmi.gov ________________________________________________________________________

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PLAINTIFFS’ REPLY TO CITY OF DETROIT’S ANSWER TO 

PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER 

AND A PRELIMINARY INJUNCTION

Defendant City of Detroit attempts to paint a picture that Plaintiffs have

perpetually engaged in unlawful activity at Southwest Metals. In support of this 

baseless allegation, the City proceeds to list numerous examples of alleged unlawful 

activity that has taken place at Southwest Metals and supposedly attaches Detroit 

Police Department reports in support.1 While the City of Detroit would lead this 

Court to believe that Southwest Metals is involved in a nefarious business ripe of 

unlawful activity, such is not the case. The City of Detroit lists thirteen allegations 

of alleged unlawful conduct at Southwest Metals. The City of Detroit positions that 

these allegations are all but a foregone conclusion of unlawful activity. However, 

such was the case, the simple question to ask is where are the citations and criminal 

conviction for Southwest Metals and its employees? If Southwest Metals was 

involved in unlawful activity or was in continuous violation ordinances there would 

simply be convictions and citations to match. However, there are not criminal 

convictions and citations. As stated in Plaintiffs’ prior filings, Southwest Metals has 

an exemplary record free from convictions and non-dismissed citations. Sgt. McKay 

stated herself in an article with the New York Times that half of her investigations 

 1 The City of Detroit has referenced numerous exhibits in its response, but exhibits 

after exhibit 13 were not attached to its response.

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deal with Southwest Metals, one of, if not the smallest metal recycling business in 

the City. EXHIBIT A: New York Times Article. In all essence, if Southwest 

Metals was truly the hotbed for years for criminal activity it would have been out of 

business years ago or would have had a history of convictions or citations. 

1. Younger v. Harris is not Applicable

This Court should not grant Defendant’s request for Younger deference, as not 

all three (3) of the Younger criteria have been met. Younger abstentions require that 

there be state proceedings that are (1) currently pending; (2) involving an important 

state interest; that (3) will provide the federal plaintiff with an adequate opportunity 

to raise his or her constitutional claims. Hayse v. Wethington, 110 F.3d 18, 20 (6th 

Cir. 1997). 

With regards to the TRO Motion to restore Plaintiff’s business license, there 

are no pending administrative hearings to Plaintiff’s knowledge. Plaintiff had an 

administrative license revocation hearing scheduled for April 15, 2015, however, the 

business license was wrongfully not renewed rendering the April 15, 2015 hearing 

moot. Furthermore, Plaintiff alleges that to the extent that such administrative 

appeals are offered, they fail the requirements of procedural due process. Indeed, 

the Detroit City Ordinance makes it possible for the City to deny to renew a license, 

and have 60 days pass before a hearing is held. Detroit, Mich. Code § 30-1-17(a) 

(1984). Central to Southwest Metals’ claims is the meritorious argument that the 

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administrative process does not provide Plaintiff with an adequate or timely 

opportunity to raise its Constitutional claims. For these reasons, Younger deference 

is not warranted. 

Even if this Court finds that the Younger doctrine applies, which it clearly does 

not, this Court may decline to apply Younger deference if it finds evidence of “bad 

faith, harassment, or flagrant unconstitutionality.” Squire v. Coughlan, 469 F.3d 

551, 556 (6th Cir. 2006). To the extent that any state court proceedings exist, they 

are the result of a clear pattern of harassment and abuse of power by Sgt. Rebecca 

McKay of the Detroit Police Department’s Copper Theft Task Force. Specifically, 

Plaintiffs alleged that Sgt. Rebecca McKay has engaged in harassing activities, 

including but not limited to: (1) reissuing without personal knowledge, previously 

dismissed citations against Plaintiffs, which were again dismissed; (2) issuing fake 

scrap metal alerts; (3) threatening to assault Joe Fawaz; (4) planting evidence on the 

grounds of Southwest Metals; (5) attempting to bribe a Southwest Metals employee. 

For brevities sake, not all of Sgt. McKay’s activities can be listed here. Finally, 

while the Defendants note that Sgt. McKay is but one actor in this situation, and go 

to great lengths to allege that Southwest Metals is a hub for criminal activity, they 

can point to no proof to support these allegations. Indeed, even with the unlawful 

harassment and abuse of power of Sgt. Rebecca McKay and the investigative efforts 

of the Copper Theft Task Force, Joseph Fawaz has only ever plead to a charge under 

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advisement, which has already been dismissed. Further, this Court should be 

reminded that the original felony charge against Jospeh Fawaz was based upon the 

unlawful conduct of Sgt. McKay and was based upon a case that had already been 

closed where Joseph Fawaz was a prosecutorial witness. 

2. Plaintiffs Have Met the Elements for a TRO

Plaintiffs have established a likelihood of success on the merits for its claims. 

First, as detailed in Plaintiffs’ Renewed TRO and Supplemental Brief, Plaintiffs 

have a strong case for a violation of procedural due process when the City of Detroit 

denied Plaintiffs a pre-renewal denial hearing. Second, Plaintiffs have outlined 

outrageous conduct that truly “shock the conscious.” U.S. v. Salerno, 481 U.S. 739 

(1987). The present case does not merely allege a single instance or small number 

of unconstitutional acts. Sgt. McKay’s actions such as the planting of evidence at 

Southwest Metals, EXHIBIT B: Detroit News Article- Detroit sergeant seen on 

video planting evidence, the issuance of unfounded warrants, lying to prosecutors 

in order to reopen closed cases and obtain new warrants against Plaintiffs, and 

reissuing previously dismissed citations without any personal knowledge of the 

underlying facts are in clear violation of Plaintiffs’ constitutional rights. Some of 

this misconduct, such as the planting of evidence, was captured in physical video 

evidence. In all essence, there is substantial and objective evidence against Sgt. 

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McKay, corroborating her personal vendetta against Plaintiffs and the condoning of 

such conduct by the City of Detroit. 

Finally, Plaintiffs’ timeline of events does create an inference that the action 

at the hands of Defendants was based in retaliation due to Joseph Fawaz’s report of 

Sgt. McKay to Internal Affairs. After filing this report, and notifying Defendants of 

such action, Defendants increased the unlawful conduct directed at Plaintiffs. New 

unfounded citations were issued against Joseph Fawaz and Southwest Metal’s 

business license was not renewed in violation of due process.

Plaintiffs have already suffered irreparable harm as Southwest Metal’s 

business license renewal application has been wrongfully denied. As such, 

Southwest Metals presently cannot operate its business in Detroit. Every day that 

Southwest Metals cannot operate its business due to the unconstitutional acts of 

Defendants results in continued and irreparable harm in the form of massive 

pecuniary losses, loss of reputation in the community, as well as the loss that all of 

its employees who are now out of work will suffer. If Plaintiffs’ requested relief is 

not granted and the status quo is not returned, allowing Southwest Metals to continue 

to operate its business, this family business that has been in operation for years may 

collapse and fold, leaving behind it the destroyed lives of several people who are 

dependent on the business. Finally, Southwest Metals does not have the opportunity 

to assert its position and evidence in administrative hearings as the previously 

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scheduled April 15, 2015, License Revocation Hearing should now be moot as there 

is not an active license to revoke. 

The City of Detroit’s argument with regard to the third parties and the public 

being harmed by Southwest Metal’s operation due to its alleged unlawful conduct is 

without merit. Despite the contrary image the City of Detroit attempts to draw, 

Southwest Metals has a record free from criminal convictions and citations. Any 

alleged unlawful conduct is simply that—mere allegations. As noted above, 

Plaintiffs do not have the opportunity to present its arguments in an administrative 

hearing while continuing to operate. Southwest Metals is presently without a license 

to do business in Detroit and is without an adequate remedy.

Respectfully submitted,

Ayad Law, P.L.L.C.

/s/ Nabih H. Ayad___________

Nabih H. Ayad

645 Griswold Street, Suite 2202

Detroit, MI 48226

(313) 983-4600

Dated: April 7, 2015 nayad@ayadlaw.com

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CERTIFICATE OF SERVICE

I hereby certify that on April 7, 2015, I electronically filed the foregoing paper 

with the Clerk of the Court using the ECF system, which will send notification of 

such filing to the attorneys of record.

Respectfully Submitted,

AYAD LAW, P.L.L.C. 

/s/ Nabih H. Ayad 

Nabih H. Ayad (P59518)

645 Griswold Street, Suite 2202

Detroit, MI 48226

(313) 983-4600

Dated: April 7, 2015 nayad@ayadlaw.com

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