UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TALLEN MARCE’ FLEMING, JR.,

CASE NO. 2:09-CV-11795

Plaintiff, JUDGE DAVID M. LAWSON

MAGISTRATE JUDGE PAUL J. KOMIVES

v.

STATE OF MICHIGAN,

Defendant, 

 /

REPORT AND RECOMMENDATION REGARDING DEFENDANT’S MOTION TO

DISMISS OR IN THE ALTERNATIVE MOTION FOR MORE DEFINITE STATEMENT

(Doc. Ent. 3); PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Doc. Ent. 10);

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER (Doc. Ent. 21);

DEFENDANT’S MOTION TO DISMISS AMENDED STATEMENT OF CLAIM (Doc.

Ent. 25); and PLAINTIFF’S MOTION FOR A MORE DEFINITE STATEMENT FOR

NATURE OF SUIT & TRO (Doc. Ent. 26)

I. RECOMMENDATION ................................................................ 2

II. REPORT ........................................................................... 2

A. Background .................................................................. 2

B. The Instant Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. Pending Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. Defendant State of Michigan’s June 4, 2009 Motion (Doc. Ent. 3) should be granted in

part and deemed moot in part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

a. Defendant’s Fed. R. Civ. P. 12(b) motion to dismiss should be granted. . . . . 10

b. Defendant’s alternative Fed. R. Civ. P. 12(e) motion for a more definite

statement should be deemed moot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

c. Any future action against state officials must be filed in accordance with the

Federal Rules of Civil Procedure and applicable statutes. . . . . . . . . . . . . . . . 17

2. Plaintiff’s June 11, 2009 Motion for Summary Judgment (Doc. Ent. 10) should be denied.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3. Plaintiff’s December 10, 2009 motion for TRO (Doc. Ent. 21) should be denied. . . . . 25

4. Defendant’s December 21, 2009 motion to dismiss amended statement of claim (Doc.

Ent. 25) should be deemed moot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

5. Plaintiff’s December 28, 2009 motion for a more definite statement for nature of suit &

temporary restraining order (Doc. Ent. 26) should be denied. . . . . . . . . . . . . . . . . . . . . 28

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2

I. RECOMMENDATION: The Court should grant in part and deem moot in part

defendant State of Michigan’s motion to dismiss or in the alternative motion for more definite

statement (Doc. Ent. 3). Specifically, the Court should grant defendant State of Michigan’s Fed.

R. Civ. P. 12(b) motion to dismiss on the basis that the State of Michigan is immune from suit

for damages or injunctive relief in the absence of consent. If the Court agrees with this

recommendation, then it need not rule upon defendant State of Michigan’s alternative Fed. R.

Civ. P. 12(e) motion for more definite statement.

Furthermore, the Court should deny plaintiff’s motion for summary judgment (Doc. Ent.

10), deny plaintiff’s motion for temporary restraining order (Doc. Ent. 21), deem moot

defendant’s motion to dismiss amended statement of claim (Doc. Ent. 25) and deny plaintiff’s

motion for a more definite statement for nature of suit and temporary restraining order (Doc. Ent.

26).

II. REPORT:

A. Background

It appears that Tallen Marce’ Fleming purchased a 2001 Oldsmobile Alero in June 2005. 

Doc. Ent. 1 at 37-38. According to a Michigan License Plate Renewal Notice, Fleming’s plate

for this car was due to expire on November 24, 2007. Doc. Ent. 1 at 36.

On January 5, 2008, Tallen Marce’ Fleming, Jr. received citations in Novi, Michigan, for

registration and/or plate violation and no proof of insurance. Doc. Ent. 1 at 34-35. It appears

that Fleming received another citation for no proof of insurance on February 1, 2008. Doc. Ent.

1 at 35. On March 3, 2008, he received a citation in Plymouth, Michigan for registration and/or

plate violation. Doc. Ent. 1 at 34-35. 
1

On or about March 25, 2008, the State of Michigan Department of Labor & Economic

Growth Unemployment Insurance Agency determined that Fleming was disqualified for benefits

under the Michigan Employment Security (MES) Act, Mich. Comp. Laws § 421.29(1)(A) and

ineligible for benefits under the MES Act, Mich. Comp. Laws § 421.28(1)(C). Doc. Ent. 1 at 42.

2

On or about May 13, 2008, the Agency affirmed and modified its determination. Doc. Ent.

1 at 43-44. On August 29, 2008, the Michigan Department of Human Services determined that

Fleming was eligible for food assistance effective August 26, 2008. Doc. Ent. 1 at 45.

3

Two days later, on or about March 5, 2008, Fleming resigned from his job with Brinks,

Inc., “due to an unlawful Plymouth, MI Police order about a prohibited driving privilege that

caused compulsory damages.” Doc. Ent. 1 at 27, 42. Shortly thereafter, on March 9, 2008,

Fleming’s vehicle was confiscated in Plymouth, Michigan, and stored with Mayflower Auto

Recovery. Doc. Ent. 1 at 40.1

 On or about March 27, 2008, the Plymouth Police Department

notified the Secretary of State of the abandoned vehicle and it was noticed for public sale on

Monday, October 27, 2008. Doc. Ent. 1 at 40-41. 

On April 7, 2008, Fleming was assessed a $123.00 Driver Responsibility Fee (P948143)

pursuant to Mich. Comp. Laws § 257.732a for the January 5, 2008 offense of no proof of

insurance. Doc. Ent. 1 at 35; Doc. Ent. 19 at 8, 10. On April 15, 2008, he was assessed a

$200.00 Driver Responsibility Fee (P975816) for what appears to have been the February 1,

2008 citation of no proof of insurance. Doc. Ent. 1 at 35; Doc. Ent. 19 at 8, 10.2

It appears that Fleming wrote to the State of Michigan Department of Attorney General. 

In a letter dated June 2, 2008, the Michigan Attorney General’s Office informed Fleming, “[w]e

sincerely regret our inability to provide assistance at this time.” Doc. Ent. 1 at 19. In a letter

dated June 16, 2008, the Michigan Attorney General’s Office stated the same. Doc. Ent. 1 at 18. 

On July 1, 2008, Fleming faxed materials to the Governor of the State of Michigan,

Jennifer Granholm. Doc. Ent. 1 at 11. Apparently, these materials included a complaint alleging
4

“municipal civil/criminal offenses enforced by the City of Novi, Michigan (52-1) District

Court[;]” and “municipal civil offenses enforced by the City of Plymouth, Michigan (35th)

District Court[.]” Doc. Ent. 1 at 2 ¶¶ 1-2. 

On October 31, 2008, the Novi, Michigan District Court (52-1) issued a bench warrant

for Fleming’s arrest based upon his failure to appear for an October 23, 2008 show cause

hearing, apparently regarding the aforementioned Novi citations. Doc. Ent. 1 at 46. It appears

that Fleming’s driver’s license was suspended on October 31, 2008 based upon his Plymouth

citation and on December 24, 2008 based upon his Novi citations. Doc. Ent. 1 at 34-35. 

During April 2009, Fleming was assessed a Category 2 Driver Responsibility Fee in the

amount of $200 (Q948017), apparently regarding the January 5, 2008 offense of no proof of

insurance. Doc. Ent. 1 at 33; Doc. Ent. 19 at 8, 10. Fleming was also assessed a Category 2

Driver Responsibility Fee in the amount of $200 (Q962006). Doc. Ent. 19 at 8, 10. 

As of July 2, 2009, Fleming owed the State of Michigan $723 in Driver Responsibility

Fees. Doc. Ent. 19 at 8, 10. On July 11, 2009, Fleming’s account was referred to the Michigan

Accounts Receivable Collection System (MARCS). Doc. Ent. 19 at 6-7. By a letter dated July

14, 2009, MARCS informed Fleming that “[t]o avoid further collection activity, send your

payment in full along with a copy of the State’s notice or a copy of this letter in the enclosed

envelop immediately.” Doc. Ent. 19 at 9. On or about July 27, 2009, the State of Michigan

Department of State issued an “Order of Action,” by which Fleming was notified that, unless he

took action, his driving privileges and license would be suspended from August 26, 2009 until he

paid the Mich. Comp. Laws § 257.732a Driver Responsibility Fee (Q948017). Doc. Ent. 21 at 2. 
3

Plaintiff has filed three (3) other cases in this Court. Before the instant case was filed,

Fleming filed Fleming v. United States Department of Justice, Attorney General, Case No. 2:08-cv14416-SFC-VMM (Oct. 17, 2008). Judge Cox dismissed that case on August 17, 2009 for lack of

subject matter jurisdiction. Doc. Ent. 22. 

After filing the instant case, Fleming filed Fleming v. United States Federal Bureau of

Investigation and Henry Ford Community College, Case No. 2:09-cv-13449-MOB-MAR (Aug. 31,

2009), wherein he alleges obstruction of 18 U.S.C. §§ 1505, 1510(a) against the Detroit, Michigan

Field Office of the FBI and “hindered accommodation complaint advantage” against Henry Ford

Community College. Doc. Ent. 1 at 2-4. On February 2, 2010, Judge Battani entered an order

dismissing the case in its entirety. Doc. Ent. 20.

Fleming has also filed Fleming v. Art Van Furniture, Inc., Case No. 2:09-cv-13448-AC-DAS

(Aug. 31, 2009), wherein he alleges that his on-duty equal employment opportunities have been

hindered. Doc. Ent. 1 at 2. Judge Cohn has entered an order setting deadlines with respect to

defendant’s November 18, 2009 motion to dismiss or compel arbitration. Doc. Ent. 14 (Dec. 2,

2009).

5

Fleming was arrested by the Royal Oak, Michigan police on December 4, 2009. Doc.

Ent. 21 at 1 ¶ 3. On December 5, 2009, an order for custody was entered in the 52-1 District

Court in Novi for the misdemeanor of failure to pay a $270.00 judgment for (I) registration/plate

violation and (II) no proof of insurance. Doc. Ent. 21 at 5. Fleming was booked in the Oakland

County Jail on the same day. Doc. Ent. 21 at 4. On December 8, 2009, Fleming was released

from the 52nd District Court for the expired registration tabs and no proof of insurance offenses. 

The notice advises that the “[f]ine and costs have been paid/suspended.” Doc. Ent. 21 at 6. 

B. The Instant Complaint 3

Fleming filed this fee-paid case on May 11, 2009. Interpreting plaintiff’s complaint has

been met with some challenges. 

1. For example, the case caption on each page identifies only the State of Michigan as a

defendant. Doc. Ent. 1 at 1-9. However, it appears that plaintiff may have intended to name

other defendants. First, the complaint alleges three causes of action, each of which are labeled

“[s]uspension of Michigan chauffeurs license[.]” The descriptions of these causes of action
6

arguably allege that plaintiff suffered damages following Governor Granholm’s Office’s alleged

failure to inform plaintiff of the status of his July 1, 2008 complaint(s). Doc. Ent. 1 at 2-3. 

Second, one of plaintiff’s legal theories also suggests the intent to name another

defendant. Plaintiff’s first legal theory is that defendant State of Michigan is “responsible for

enforcing Michigan motor-vehicle insurance law,” and has violated his federal constitutional

rights, state constitutional rights, and civil rights. Doc. Ent. 1 at 7 ¶ 1. His second legal theory is

that the Michigan Governor’s Office, the Michigan Insurance Commissioner and the Michigan

Secretary of State have violated his federal and state constitutional rights. Doc. Ent. 1 at 7 ¶ 2. 

Third, the section of plaintiff’s complaint labeled, “General notes and Michgian public

official jurisdiction[,]” Doc. Ent. 1 at 6, asserts jurisdiction with respect to the Governor of the

State of Michigan (¶ 3), the Michigan Secretary of State (¶ 4) and the Michigan Insurance

Commissioner (¶ 5). Doc. Ent. 1 at 6. Fourth, while plaintiff’s Summons and Complaint Return

of Service indicates that the State of Michigan was served (Doc. Ent. 6 at 2), it appears that

plaintiff served the Michigan Department of Attorney General and Governor Granholm with a

copy of the summons and complaint by certified mail on May 11, 2009. Doc. Ent. 6 at 2-3.

2. Also, plaintiff’s causes of action are not clear. The civil cover sheet labels the nature of

this lawsuit as challenging the constitutionality of state statutes. Doc. Ent. 1 at 47. If that is so,

the state statutes underlying the bases for plaintiff’s claims should be made clear in the

complaint. 

As it stands, plaintiff’s complaint mentions “the laws of the United States and the State of

Michigan.” Doc. Ent. 1 at 1 ¶ 1. Within the first cause of action, plaintiff cites 42 U.S.C. §

14141 (“Cause of action”) and Mich. Comp. Laws §§ 750.157, 750.157a. Doc. Ent. 1 at 2 ¶ 1. 
4

Plaintiff’s May 11, 2009 filing also contains a letter “to advise the U.S. federal court

concerning domestic and economic crime control.” Plaintiff claims that “[t]he location that [he is]

currently attending has an estimate average of narcotic conduct.” Plaintiff appears to be requesting

that the Court ask the U.S. Marshal to enforce certain federal and state statutes. Doc. Ent. 1 at 10.

5

Wage information, effective September 3, 2007, is attached to plaintiff’s complaint. Doc.

Ent. 1 at 28.

6

Plaintiff moved out of the Village Apartments on June 25, 2008 following a June 19, 2008

order of eviction. He allegedly owed $1,517.53 to the Village Apartments. Doc. Ent. 1 at 29-30.

7

Attached to plaintiff’s May 11, 2009 complaint is a document from Portfolio Recovery

Associates which notes that the balance on a Capital One Bank Account is $626.19. Doc. Ent. 1 at

31. A like document attached to plaintiff’s July 13, 2009 motion and dated July 2, 2009 shows a

7

Plaintiff also lists statutes which allegedly abridge the United States and Michigan

Constitutions, such as Chapter 500 of Michigan’s Insurance Code of 1956; Chapter 440 of the

Uniform Commercial Code; Chapter 8 of Michigan Compiled Laws; and Chapter 257 of the

Michigan Vehicle Code. Doc. Ent. 1 at 4-5 ¶¶ 1-11. In the list of “Authorities,” plaintiff cites

provisions of the United States Constitution and the Michigan Constitution, laws of the United

States Secret Service, and sections of Michigan’s Penal Code (Chapter 750) and a section of

Michigan’s “Crimes and Offenses” (Chapter 752). Doc. Ent. 1 at 5 ¶¶ 1-2.

Within “Legal Theory,” plaintiff cites Michigan motor-vehicle insurance law, his state

and federal constitutional equal protection rights, and civil rights. Doc. Ent. 1 at 7 ¶ 1. 

Furthermore, plaintiff’s “letter” within the complaint mentions federal and state statutes. Doc.

Ent. 1 at 10. 

3. In the end, plaintiff seeks dismissal of the suspension of his Michigan chauffeur’s

license, dismissal of municipal criminal charges, monetary relief and dismissal of unlawful debt. 

Doc. Ent. 1 at 8.4

 The $950,949.48 plaintiff seeks is made up of $947,845.12 in lost yearly

wages,5 $1,517.53 in apartment debt,6 $626.19 in credit debt,7 $523 in Michigan Drivers
balance on the account of $635.99. Doc. Ent. 19 at 11. 

8

The docket indicates that plaintiff has paid the $350.00 filing fee. Doc. Ent. 1; Doc. Ent.

6 at 3.

9

According to an April 23, 2009 Michigan Department of Treasury Notice of Adjustment to

Tax Refund, plaintiff owed $400 for State Agency Collections. His refund of $77 was applied to

this debt, leaving a balance of $323. Doc. Ent. 1 at 32.

10Plaintiff’s “Summons and Complaint Return of Service” declares that service fees were

$10.64. Doc. Ent. 6 at 2. 

11On February 11, 2010, I entered an opinion and order denying plaintiff’s motion to strike

(Doc. Ent. 8), denying plaintiff’s motion for harmless error (Doc. Ent. 9); and denying plaintiff’s

motion to strike (Doc. Ent. 19). See Doc. Ent. 28. Plaintiff has filed a notice of appeal regarding

this order. Doc. Ent. 29.

12On July 2, 2009, I entered an order setting the response deadline for August 5, 2009. Doc.

Ent. 15.

8

Responsibility Debt, $350.00 in U.S. federal court fee(s),8

 $77 in Michigan tax refund9 and

$10.64 in U.S. Postal fee(s).10 Doc. Ent. 1 at 8.

At the conclusion of his complaint, plaintiff states that “[a]ll documents are protected

under [18 U.S.C. §§ 1510 (“Obstruction of criminal investigations”) and 1512 (“Tampering with

a witness, victim, or an informant”)].” Doc. Ent. 1 at 9-10. Attached to plaintiff’s complaint are

several exhibits. Doc. Ent. 1 at 11-48. 

Judge Lawson has referred this case to me for general case management. Doc. Ent. 4.11

C. Pending Motions

Among the motions currently pending before the Court are defendant’s June 4, 2009

motion to dismiss or in the alternative motion for more definite statement (Doc. Ent. 3), to which

responses and a reply have been filed (Doc. Entries 7, 16 and 18),12 and defendant’s December

21, 2009 motion to dismiss amended statement of claim (Doc. Ent. 25).
13Plaintiff filed a Certificate of Service regarding these motions. Doc. Ent. 12.

14Plaintiff filed a Certificate of Service regarding this motion. Doc. Ent. 23.

15On December 18, 2009, plaintiff filed a “notice to omit documentation.” Doc. Ent. 24 at

1, 5. Apparently, plaintiff seeks to omit from the record (a) the Capital One Bank exhibit [Doc. Ent.

1 at 31]; (b) the bench warrant exhibit [Doc. Ent. 1 at 46]; (c) the civil cover sheet exhibit [Doc. Ent.

1 at 47 & Doc. Ent. 11 at 4]; (d) the civil litigation text book exhibits [Doc. Ent. 11 at 7-13]; (e) the

criminal law elements of conspiracy exhibit [Doc. Ent. 19 at 12]; and (f) the Michigan State Police

Directory exhibit [Doc. Ent. 1 at 15-16].

9

Also before the Court are plaintiff’s June 11, 2009 motion for summary judgment (Doc.

Ent. 10), regarding which a response and reply have been filed (Doc. Entries 14 and 17);13

plaintiff’s December 10, 2009 motion for temporary restraining order (Doc. Ent. 21)14 and

plaintiff’s December 28, 2009 motion for a more definite statement for nature of suit and

temporary restraining order (Doc. Ent. 26), regarding which a response has been filed (Doc. Ent.

27).15

D. Analysis

1. Defendant State of Michigan’s June 4, 2009 Motion (Doc. Ent. 3) should be granted

in part and deemed moot in part.

Currently before the Court is defendant’s motion to dismiss or in the alternative motion

for more definite statement. This motion is filed pursuant to Fed. Rules Civ. P. 12(b) and 12(e). 

With respect to Fed. R. Civ. P. 12(b)(6), it is defendant’s position that plaintiff’s May 11,

2009 complaint “contains no specific allegation against the State.” Doc. Ent. 3 at 2 ¶¶ 2, 4. 

With respect to Fed. R. Civ. P. 12(b)(1),(2), defendant notes, it “is not subject to federal

jurisdiction resulting from a lawsuit by one of its own citizens.” Also, defendant argues,

“[p]laintiff’s claims [for money damages] against the State are barred by [the Eleventh
16As defendant notes (Doc. Ent. 3 at 6-7), “the allegations of [a] pro se complaint [are held]

to less stringent standards than formal pleadings drafted by lawyers[.]” Haines, 404 U.S. at 520.

However, “we ‘need not accept as true legal conclusions or unwarranted factual inferences.’”

Montgomery v. Huntington Bank, 346 F.3d 693, 698 (6th Cir. 2003) (quoting Morgan v. Church's

Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987)). “[T]he lenient treatment generally accorded to pro

se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v.

Jabe, 951 F.2d 108, 110 (6th Cir.1991)).

In response to the portion of defendant’s standard of review which cites these cases, plaintiff

states that “defendant alleged inadmissible opinions . . . concerning how U.S. federal courts should

determine any pro se litigant standards.” Doc. Ent. 7 at 1 ¶ 2. Furthermore, plaintiff contends that

“[t]he Attorney General Michigan statutes do[] not have jurisdiction over the United States Federal

Rules of Civil Procedure[.]” Doc. Ent. 7 at 1 ¶ 3.

10

Amendment to the U.S. Constitution][,]” and “[j]urisdictional immunity has not been waived.” 

Doc. Ent. 3 at 2 ¶ 3. 

Defendant characterizes plaintiff’s complaint as disagreeing “with various state and local

laws and their enforcement by local officials.” Defendant also claims that the complaint against

it “is a confusing narration of allegations which do not clearly identify any federal jurisdictional

laws or actions which are being challenged. Further, with regard to the State Defendant, the

Complaint fails to set forth any facts supporting any constitutional challenges or challenges to a

federal statute.” Doc. Ent. 3 at 5.16

a. Defendant’s Fed. R. Civ. P. 12(b) motion to dismiss should be granted.

Defendant’s arguments. With respect to Fed. R. Civ. P. 12(b)(1), (2), defendant State

of Michigan argues, “there is no showing that the State of Michigan consented to suit by its

private citizens in federal court.” Doc. Ent. 3 at 7. Elsewhere, defendant State of Michigan

argues that plaintiff’s complaint does not comply with Fed. R. Civ. P. 8(a)(1). Defendant claims

that “[t]here is no short, plain statement of the basis for the court’s jurisdiction.” Doc. Ent. 3 at

8. Defendant also claims that “[w]ith regard to the State Defendant, the district court’s
11

jurisdiction here is not based on diversity[,]” and “federal courts are without authority to direct

state officials to conform their conduct to state law.” Doc. Ent. 3 at 9.

With respect to Fed. R. Civ. P. 12(b)(6), defendant contends that plaintiff’s complaint

does not comply with Fed. R. Civ. P. 8(a)(2). Doc. Ent. 3 at 8. Defendant claims that “[n]one of

Plaintiff’s statements specifically state a claim against the State Defendant.” Defendant claims

that plaintiff “cites numerous laws . . . and is critical of the State’s failure to change certain of

those laws[,]” and that “Plaintiff provides no facts or law that would establish any cause of

action against the State of Michigan.” Defendant states, “[t]here is no short, plain statement of

the claim showing that Plaintiff is entitled to relief.” Doc. Ent. 3 at 8. Defendant characterizes

plaintiff’s complaint as “unfocused, alleging a myriad of legal contentions, opinions regarding

several laws and fragmented factual allegations.” Even under Haines v. Kerner, 404 U.S. 519,

520 (1972), defendant contends, plaintiff’s factual allegations “are lacking and fail to state a

claim.” Doc. Ent. 3 at 9.

Plaintiff’s responses. With respect to defendant’s jurisdictional argument, plaintiff

responds by citing Mich. Comp. Laws § 600.1631 (“Venue; action by attorney general; other

actions”), 28 U.S.C. § 1367 (“Supplemental jurisdiction”) and 28 U.S.C. § 1391 (“Venue

generally”). Doc. Ent. 7 at 2 ¶¶ 2-3. Also, plaintiff argues that “[t]he defendant alleged

insufficient civil immunity under the [Eleventh] Amendment of the U.S. Constitution.” It is

plaintiff’s position that “[i]f any State has civil immunity, they [w]ould be able to supersede

Article (VI) and any doctrine adopted by the U.S. Supreme Court.” Doc. Ent. 7 at 2 ¶ 4. 

With respect to Fed. R. Civ. P. 12(b)(6), plaintiff claims that “defendant was never served

attachments from the U.S. Marshals Service, only verbal admissible evidence with exhibits[,]”
17Plaintiff filed a second response on July 2, 2009. Doc. Ent. 16. In reply, defendant

contends that plaintiff’s second response “contains various assertions immaterial to the issues

presented in the motion to dismiss and thus should be stricken in accordance with Fed[.] R. Civ. P.

12(f) and further contains frivolous arguments for extending, modifying or reversing existing law

or for establishing new law so should be stricken in accordance with Fed. R. Civ. P. 11(b).” Doc.

Ent. 18 at 2 ¶ 4. Defendant reiterates that its June 4, 2009 motion “is a totally appropriate response

to Plaintiff’s complaint. No challenge was made to the constitutionality of state statutes, various

insurance requirements or any of the other frivolous arguments as presented by plaintiff in his

response.” Doc. Ent. 18 at 2-3 ¶ 5. Defendant elaborates upon its argument in its reply brief. Doc.

Ent. 18 at 5-6. 

However, to the extent defendant relies upon Fed. R. Civ. P. 11, it provides in part that "[a]

motion for sanctions must be made separately from any other motion and must describe the specific

conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2). Therefore, defendant’s request

to strike plaintiff’s second response in accordance with Rule 11(b) should be denied. 

Also, defendant’s Fed. R. Civ. P. 12(f) request should be denied. To be sure, plaintiff was

incorrect in his June 30, 2009 response (Doc. Ent. 16 at 1 ¶¶ 1, 2) that the Court had ruled on

defendant’s June 4, 2009 motion (Doc. Ent. 3). However, the remainder of plaintiff’s two-page

response (Doc. Ent. 16 at 1-2 ¶¶ 1-6) appears to be plaintiff’s attempt at responding to defendant’s

argument that “Plaintiff's Complaint is a confusing narration of allegations which do not clearly

identify any federal jurisdictional laws or actions which are being challenged. Further, with regard

to the State Defendant, the Complaint fails to set forth any facts supporting any constitutional

challenges or challenges to a federal statute.” Doc. Ent. 3 at 5. 

In other words, plaintiff appears to be setting forth the state statutes whose constitutionality

he is challenging. For example, in his June 30, 2009 response, plaintiff claims that “[i]t is unlawful

for the State of Michigan to prosecute Michigan residents determining consumer decisions.” He

contends that “[f]ailing to conceal auto-insurance documents or refusing to use auto-insurance

service does not meet any criminal actus-reus requirements.” Doc. Ent. 16 at 1 ¶ 1. Perhaps

plaintiff is challenging the validity of the laws of the State of Michigan that require drivers to carry

automobile insurance, such as Chapter 31 (§§ 500.3101-500.3179) of the Insurance Code of 1956

which governs “Motor Vehicle Personal and Property Protection.” 

Also, plaintiff mentions U.S. Const. Art. I § 9, cl. 3 and U.S. Const. Art. I § 10, cl. 1

12

and that on May 11, 2009, defendant was served with “a definite statement with facts alleging:

Michigan laws abridging U.S./Michigan Constitution[al] law, a conspiracy attempt to

incriminate an indigent party including compensatory damages[.]” Doc. Ent. 7 at 1 ¶¶ 2, 3. 

With respect to defendant’s Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 8(a) argument, plaintiff

responds that “[a] claim is demanded within section (D) page (8 of 9) prayer and signature of

the plaintiff[’s] complaint.” Doc. Ent. 7 at 2 ¶ 2 (referencing Doc. Ent. 1 at 8).17
(concerning ex post facto law) and what appears to be the Racketeer Influenced and Corrupt

Organizations Act (RICO) (18 U.S.C. §§ 1961-1968), alleging that “[t]he State of Michigan has

reached its constitutional limits[.]” Doc. Ent. 16 at ¶ 2. 

Perhaps plaintiff is also challenging the adequacy of Chapter 20, “Unfair and Prohibited

Trade Practices and Frauds,” (Mich. Comp. Laws §§ 500.2001-500.2093) of the Insurance Code of

1956, as plaintiff alleges that “[t]he law does not protect consumer affairs concerning age and zip

code.” Doc. Ent. 16 ¶ 3. Furthermore, plaintiff may be alleging that the State of Michigan should

amend the Uniform Commercial Code (Mich. Comp. Laws §§ 440.1101 et seq.) “to allow autoindemnification whenever a motor-vehicle moving violation or a request for a writ of execution

court order is ruled against no-fault or at-fault parties.” Doc. Ent. 16 ¶ 4. Moreover, plaintiff

suggests that the State of Michigan could “amend parking/standing creditor indemnification under

crimes against property ordinance, amend criminal debtor community service or correction policy

to prosecute criminal detainees for damages and allow Michgian State Police to have more

jurisdiction to enforce [Chapter LXX, “Public Offices and Officers,” (Mich. Comp. Laws §§

750.478-750.490a) of the Michigan Penal Code].” Doc. Ent. 16 ¶ 5. 

Finally, plaintiff claims that “Michigan residents are responsible for [e]ffectively using

proper police service; Michigan Municipal Corporations are responsible for accurate police

administration policy and unnecessary criminal statistics.” Doc. Ent. 16 ¶ 6.

13

Eleventh Amendment generally. The Eleventh Amendment provides that “[t]he

Judicial power of the United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. Although the Eleventh

Amendment expressly prohibits only suits against states by citizens of other states, the Supreme

Court has long held that the Eleventh Amendment also bars suits by citizens of the state being

sued. See Hans v. Louisiana, 134 U.S. 1 (1890); Welch v. Texas Dep't of Highways and Public

Transp., 483 U.S. 468, 472-73 (1987) (plurality opinion). 

“There are . . . three qualified exceptions to Eleventh Amendment immunity[.]” Lawson

v. Shelby County, TN, 211 F.3d 331, 334 (6th Cir. 2000). “First, a state may waive the protection

of the Amendment by consenting to the suit.” Lawson, 211 F.3d at 334. “The second exception

to the Eleventh Amendment bar is that Congress, under certain provisions of the Constitution,
18This is a limited exception to the Eleventh Amendment bar for suits against state officers

in their official capacities which seek only prospective relief. To come within this exception, the

relief sought by the plaintiff must (1) remedy a continuing violation of federal law; and (2) properly

be characterized as prospective. See Verizon Maryland, Inc. v. Public Service Commission of

Maryland, 535 U.S. 635, 645 (2002); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73 (1996).

14

may abrogate the sovereign immunity of the states through statute.” Id. “Under the third

exception, a federal court may enjoin a ‘state official’ from violating federal law.” Id. at 335

(citing Ex parte Young, 209 U.S. 123 (1908)).18

Conclusion. The Court should grant defendant State of Michigan’s Fed. R. Civ. P. 12(b)

motion to dismiss, because the defendant State of Michigan is immune from suit for damages or

injunctive relief in this Court absent consent. See Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89, 100 (1984) (“[I]n the absence of consent a suit in which the State or

one of its agencies or departments is named as the defendant is proscribed by the Eleventh

Amendment.”); Papasan v. Allain, 478 U.S. 265, 276 (1986); Alabama v. Pugh, 438 U.S. 781

(1978) (“[S]uit against the State and its Board of Corrections is barred by the Eleventh

Amendment, unless [Michigan] has consented to the filing of such a suit.”); Abick v. State of

Michigan, 803 F.2d 874, 876 (6th Cir. 1986) (“Michigan and its agency, the State Judicial

Council, under the eleventh amendment, are immune from an action for damages or injunctive

relief in federal court.”) (citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,

97-98 (1984)); Alia v. Michigan Supreme Court, 906 F.2d 1100, 1105-1106 (6th Cir. 1990);

Pennhurst State School & Hospital, 465 U.S. at 99 (“a State may consent to suit against it in

federal court.”). 
15

Also, to the extent plaintiff’s complaint is brought under the federal civil rights statute,

the Supreme Court held that “a State is not a person within the meaning of § 1983.” Will, 491

U.S. at 64. “Section 1983 provides a federal forum to remedy many deprivations of civil

liberties, but it does not provide a federal forum for litigants who seek a remedy against a State

for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the

State has waived its immunity, or unless Congress has exercised its undoubted power under § 5

of the Fourteenth Amendment to override that immunity.” Will, 491 U.S. 58, 66 (1989) (internal

citation omitted). 

b. Defendant’s alternative Fed. R. Civ. P. 12(e) motion for a more definite statement

should be deemed moot. 

As for defendant’s alternative Rule 12(e) motion, defendant contends that “Plaintiff’s

allegations are so vague and ambiguous that Defendant cannot reasonably frame a response.” 

Doc. Ent. 3 at 3 ¶¶ 5, 6. In support of its Fed. R. Civ. P. 12(e) motion, defendant “seeks to know

what jurisdictional basis the Plaintiff has in bringing the case. Rather than page after page of

opinion and legal history Defendant wants a statement of the claim it can understand.” Doc. Ent.

3 at 10.

Fed. R. Civ. P. 12 provides in part that “[a] party may move for a more definite statement

of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that

the party cannot reasonably prepare a response. The motion must be made before filing a

responsive pleading and must point out the defects complained of and the details desired. If the

court orders a more definite statement and the order is not obeyed within 10 days after notice of

the order or within the time the court sets, the court may strike the pleading or issue any other

appropriate order.” Fed. R. Civ. P. 12(e) (emphasis added).
19See also Barreto v. Dillon, No. 06-0962-CV, 2007 WL 4102742, *1 (2d Cir. Nov. 19, 2007)

(“a pro se plaintiff should be afforded an opportunity to amend his complaint prior to its dismissal

for failure to state a claim unless the court can rule out any possibility, however unlikely it might

be, that an amended complaint would succeed in stating a claim.”) (citing, inter alia, 28 U.S.C. §

1915(e)(2)(B)(ii)); Dopp v. Loring, 54 Fed. Appx. 296, **2 (10th Cir. 2002) (“The district court,

therefore, erred in dismissing plaintiff's complaint with prejudice without first giving him an

opportunity to amend his complaint to cure any deficiencies.”); Stanko v. Fisher, No. 94-35503,

1995 WL 72398 (9th Cir. Feb. 22, 1995) (in a 42 U.S.C. § 1983 case, “[b]efore dismissing a

complaint for failure to state a claim, the district court should notify the pro se plaintiff of the

complaint's deficiencies and provide the plaintiff an opportunity to amend.”) (citation omitted).

16

“Whether to grant a Rule 12(e) motion is within the discretion of the trial court.” Babb v.

Bridgestone/Firestone, 861 F.Supp. 50, 52 (M.D. Tenn. 1993) (citing 5 Wright & Miller, Federal

Practice & Procedure, § 1217 (1990)). District courts have a “supervisory obligation to sua

sponte order repleading pursuant to [Fed. R. Civ. P. 12(e)] when a shotgun complaint fails to link

adequately a cause of action to its factual predicates.” Wagner v. First Horizon Pharmaceutical

Corp., 464 F.3d 1273, 1275 (11th Cir. 2006). See also Covington v. Cole, 528 F.2d 1365, 1373

(5th Cir. 1976) (“the court, sua sponte, might require the defendants to formulate and serve a

motion for a more definite statement on petitioner under Rule 12(e), F.R.Civ.P., in an effort to

ascertain the facts for use in proceedings short of trial.”). Furthermore, it has been stated in the

context of a 42 U.S.C. § 1983 action that “before dismissing a pro se complaint the district court

must provide the litigant with notice of the deficiencies in his complaint in order to ensure that

the litigant uses the opportunity to amend effectively.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261

(9th Cir. 1992) (citation omitted).19

In response to defendant’s Fed. R. Civ. P. 12(e) argument, plaintiff states that “[t]he

defendant is a law expert to understand U.S./Michigan equal protection clause has conjunction to
20Perhaps plaintiff intended to name one or more state officials as defendants in this case.

For example, one of the legal theories listed in plaintiff’s complaint alleges that the Office of the

Governor of the State of Michigan, the Michgian Insurance Commissioner and the Michigan

Secretary of State have abridged certain rights. Doc. Ent. 1 at 7. Also, it appears that plaintiff

served the Michigan Department of Attorney General and Governor Granholm with a copy of the

summons and complaint by certified mail on May 11, 2009. Doc. Ent. 6 at 3.

17

prohibit prejudice doctrine against due-process-of-law and statutory law obstructing

implementation.” Doc. Ent. 7 at 3 ¶ 3. It is not clear what plaintiff means by this sentence. 

Nonetheless, if the Court agrees with my foregoing recommendation that defendant’s

Fed. R. Civ. P. 12(b) motion should be granted on the basis that the State of Michgian is immune

from suit, then defendant’s alternative request for a more definite statement is moot. 

c. Any future action against state officials must be filed in accordance with the Federal

Rules of Civil Procedure and applicable statutes.

As noted above, it is clear that plaintiff cannot maintain a suit against the State of

Michigan without its consent. However, plaintiff may have a cause(s) of action against certain

state officials.20

In the event plaintiff intends to file a lawsuit against state officials, he should be

cautioned. First, the complaint must comply with Fed. R. Civ. P. 8(a). Rule 8(a) provides that

“[a] pleading that states a claim for relief must contain: (1) a short and plain statement of the

grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs

no new jurisdictional support; (2) a short and plain statement of the claim showing that the

pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in

the alternative or different types of relief.” Fed. R. Civ. P. 8(a) (“Claim for Relief.”). 

Ideally, a complaint clearly sets forth, among other things, (1) the identification of each

defendant; (2) a statement of jurisdiction, such as 28 U.S.C. §§ 1331 (“Federal question”) or 28
21In this case, plaintiff’s intended basis for jurisdiction was not clear. For example, he may

have intended to file his May 11, 2009 complaint on the basis of diversity of citizenship. He cites

to 28 U.S.C. § 1332. Doc. Ent. 1 at 1 ¶ 3. Also, the Civil Cover Sheet lists the basis of jurisdiction

as diversity. Doc. Ent. 1 at 47. 

However, the Civil Cover Sheet also acknowledges that plaintiff and defendant are citizens

of the same state and that this suit concerns the Constitutionality of State Statutes. Doc. Ent. 1 at

47. Also, plaintiff’s legal theories mention, among other things, his federal constitutional rights.

Doc. Ent. 1 at 7. These observations suggest that jurisdiction might be based upon federal question,

28 U.S.C. § 1331. In fact, the Civil Cover Sheet describes the nature of the lawsuit as challenging

the constitutionality of state statutes. Doc. Ent. 1 at 47. If this is the case, then plaintiff may have

intended to simultaneously maintain state law causes of action. See 28 U.S.C. § 1367

(“Supplemental jurisdiction”). This observation is supported by plaintiff’s attachment of

supplemental jurisdiction research. Doc. Ent. 11 at 6.

22See also E. D. Mich. LR 9.1(a) (“Notation of ‘Jury Demand’ in the Pleading.”) (“If a party

demands a jury trial by endorsing it on a pleading, as permitted by Fed. R. Civ. P. 38(b), a notation

shall be placed on the front page of the pleading, to the right of the caption, stating ‘Demand For

Jury Trial’ or an equivalent statement.”). 

18

U.S.C. § 1332 (“Diversity of citizenship; amount in controversy; costs”), and possibly 28 U.S.C.

§ 1367 (“Supplemental jurisdiction”);21 (3) a statement of facts; (4) delineated causes of action,

including names of the defendant(s) against whom the counts are brought and the legal bases

(statutory or otherwise) for the causes of action; (5) and a claim for relief.22 This list is not

exhaustive, but a pleading organized in this fashion would assist the Court in accurately

determining the bases of plaintiff’s claims and the type of relief he seeks.

Second, any such complaint may be subject to a Fed. R. Civ. P. 12(b)(6) motion to

dismiss pursuant to the standards recently discussed in Ashcroft v. Iqbal, 129 S.Ct. 1937 (May

18, 2009). Third, the filing of a complaint must take place within the statute of limitations

applicable to the causes of action therein. 

Fourth, state officials can still be immune from some forms of suit. Therefore, a

complaint against state officials should specify whether defendants are being sued in their

individual and/or official capacities. 
19

For example, in Will v. Michigan Department of State Police, 491 U.S. 58 (1989), the

Supreme Court stated, “a suit against a state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s office.” Will, 491 U.S. at 71 (citing

Brandon v. Holt, 469 U.S. 464, 471 (1985)). “As such, it is no different from a suit against the

State itself.” Id. Ultimately the Supreme Court held that “neither a State nor its officials acting

in their official capacities are ‘persons’ under § 1983.” Will, 491 U.S. 58, 71 (1989). See also,

Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473 U.S. 159, 166-67 (1985).

However, plaintiff may seek injunctive relief from a state official sued in his or her official

capacity. Will, supra, 491 U.S. at 71 n. 10.

On the other hand, plaintiff may sue state officials for damages in their personal

capacities, because ‘state officials, sued in their individual capacities, are ‘persons’ within the

meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers

absolutely immune from personal liability under § 1983 solely by virtue of the ‘official’ nature

of their acts.” Hafer v. Melo, 502 U.S. 21, 31 (1991). Therefore, a Court should only consider

claims against state officials insofar as they are sued in their personal capacities to the extent that

plaintiff seeks monetary damages. 

Finally, in Blosser v. Land, No. 2:07-cv-11781, 2008 WL 795748 (E.D. Mich. Mar. 25,

2008) (Duggan, J.), plaintiff challenged Mich. Comp. Laws § 257.732a. My report

recommended that plaintiff had failed to state a claim that the statute constituted an excessive

fine prohibited by the Eighth Amendment or that the statute effected a denial of property without

due process of law. Blosser, 2008 WL 795748 at *8-*11. Judge Duggan found no error in this

report and granted defendants’ motion to dismiss. Id. at *2. See also Blosser v. Land, No. 08-
23Assistant Attorney General Michael F. Murphy filed an appearance on May 20, 2009. Doc.

Ent. 2. Mr. Murphy filed a motion on behalf of the defendant State of Michigan on June 4, 2009.

Doc. Ent. 3. On June 10, 2009, defense counsel entered her appearance. Doc. Ent. 5.

24See Doc. Ent. 3 at 7, 7-9.

20

1529 (6th Cir. Jan. 14, 2009) (affirming district court’s dismissal of the complaint for failure to

state a claim).

2. Plaintiff’s June 11, 2009 Motion for Summary Judgment (Doc. Ent. 10) should be

denied.

a. In his one-page Fed. R. Civ. P. 56(a)(1) motion for summary judgment, plaintiff

characterizes his lawsuit as one challenging the constitutionality of state statutes. Doc. Ent. 10 ¶

1a. See also Doc. Ent. 1 at 47 (Civil Cover Sheet). It appears that plaintiff served the Michigan

Department of Attorney General and Governor Granholm with a copy of the summons and

complaint by certified mail on May 11, 2009 (Doc. Ent. 6 at 3), and that the materials were

received at the Lansing, Michigan Post Office on May 12, 2009. Doc. Ent. 11 at 2-3. In his

motion, plaintiff claims that defendant State of Michigan “was served . . . on May 12, 2009 and

answered before June 10, 2009.”23 Doc. Ent. 10 at 1 ¶ 1b.

In its response, defendant claims that its June 4, 2009 dispositive motion “is a totally

appropriate response to Plaintiff’s complaint. No challenge was made to the constitutionality of

state statutes.” Doc. Ent. 14 at 2 ¶ 5. Instead, defendant explains, its motion focuses “on the

jurisdiction of the court over the State defendant and Plaintiff’s failure to state a claim for

relief.”24 It argues that “[p]laintiff failed to prove or even allege there is no genuine issue as to a

material fact.” Doc. Ent. 14 at 5. Referring to plaintiff’s complaint (Doc. Ent. 1), defendant’s

June 4th motion (Doc. Ent. 3), and the motions plaintiff filed on June 11th (Doc. Entries 8, 9, 10),

defendant argues, “there were no other pleadings filed in this case; certainly no admissions,
25Also, plaintiff requests that the Court sustain his June 11, 2009 motions (Doc. Entries 8,

9, 10), his June 30, 2009 reply (Doc. Ent. 16) and the relief sought by his May 11, 2009 complaint

(Doc. Ent. 1 at 8). Doc. Ent. 17 at 2. 

21

depositions, or affidavits.” Furthermore, defendant notes, “Plaintiff submitted no affidavits,

factual evidence or argument supporting his motion for summary judgment.” Doc. Ent. 14 at 6.

In reply, plaintiff alleges that defendant’s response and brief in support are ambiguous. 

Doc. Ent. 17. First, plaintiff objects to defendant’s response that its June 4, 2009 motion is an

appropriate response to the complaint and that its motion does not challenge the constitutionality

of state statutes. Doc. Ent. 17 at 1 ¶ 1. Second, characterizing his May 11, 2009 complaint and

his June 30, 2009 response (to defendant’s June 4, 2009 dispositive motion) as “definite

statement[s] with facts and exhibits[,]” plaintiff claims that “defendant is responsible for

complying with its revision and repeal rules within jurisdiction.” Doc. Ent. 17 at 1 ¶ 2. Third,

plaintiff appears to claim he did not file a motion for judgment on the pleadings, see Fed. R. Civ.

P. 12(c), because defendant contested plaintiff’s allegations in the June 4, 2009 motion to

dismiss. Doc. Ent. 17 at 1 ¶ 3. Fourth, referring to the “Summons and Complaint Return of

Service” filed with the Court on June 11, 2009 (Doc. Ent. 6), plaintiff claims that

“[c]ommencement of service on May 12, 2009 to June 11, 2009, is complying with [Fed. R. Civ.

P. 6] and [Fed. R. Civ. P. 56(a)(1)].” Doc. Ent. 17 at 1 ¶ 4. Finally, plaintiff claims: “U.S.

federal courts will not reprehend admissible facts to allow vague laws or judicial retroactive

lawmaking to rule within U.S. court jurisdictions. U.S. district courts can use either exclusive or

supplemental jurisdiction over a party under certain civil or criminal circumstances using a

vague-for-vagueness doctrine.” Doc. Ent. 17 at 1 ¶ 5.25
26This is the version of Fed. R. Civ. P. 56(a) which was in effect at the time plaintiff filed his

motion. As of December 1, 2009, the text of this subsection states: “A party claiming relief may

move, with or without supporting affidavits, for summary judgment on all or part of the claim.” Fed.

R. Civ. P. 56(a). Also, the text of Fed. R. Civ. P. 56(c) now provides in part that “[t]hese times

apply unless a different time is set by local rule or the court orders otherwise: (A) a party may move

for summary judgment at any time until 30 days after the close of all discovery; (B) a party opposing

the motion must file a response within 21 days after the motion is served or a responsive pleading

is due, whichever is later; and (C) the movant may file a reply within 14 days after the response is

served.” Fed. R. Civ. P. 56(c)(1).

22

b. Fed. R. Civ. P. 56 governs summary judgment. With respect to such a motion by the

claiming party, the rule provides:

A party claiming relief may move, with or without supporting affidavits, for

summary judgment on all or part of the claim. The motion may be filed at any

time after:

(1) 20 days have passed from commencement of the action; or

(2) the opposing party serves a motion for summary judgment.

Fed. R. Civ. P. 56(a).26 

With respect to time, Fed. R. Civ. P. 56(c) states, in pertinent part, “[t]he judgment

sought should be rendered if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). 

c. The Court should deny plaintiff’s June 11, 2009 Rule 56 motion if it agrees with my

foregoing recommendation that defendant State of Michigan is immune from suit. This is so,

because plaintiff would not be entitled to summary judgment against a defendant who is immune

from suit. 

Additionally, I note that it appears plaintiff is challenging the timeliness of defendant’s

June 4, 2009 motion. Defendant was required to serve an answer “within 20 days after being
27To the extent, if at all, plaintiff was challenging the timeliness of defendant’s June 4, 2009

motion under Rule 56, the pre-December 1, 2009 version of Fed. R. Civ. P. 56(a) applied to the

claiming party, i.e., the plaintiff. The pre-December 1, 2009 version of Fed. R. Civ. P. 56(b)

provided that “[a] party against whom relief is sought may move at any time, with or without

supporting affidavits, for summary judgment on all or part of the claim.” 

23

served with the summons and complaint[.]” Fed. R. Civ. P. 12(a)(1)(A)(i). If defendant received

the complaint on May 12, 2009 (Doc. Ent. 14 at 2 n.1), then, in the absence of a waiver of

service, defendant’s answer was due on June 4, 2009. See Fed. R. Civ. P. 5(b)(2)(C), Fed. R.

Civ. P. 6(d). Therefore, defendant’s motion was timely.27

Furthermore, I note that, although the timing of plaintiff’s motion was appropriate under

Fed. R. Civ. P. 56(a)(1), plaintiff has not satisfied the burden required of him under Fed. R. Civ.

P. 56(c). Where “the crucial issue is one on which the movant will bear the ultimate burden of

proof at trial, summary judgment can be entered only if the movant submits evidentiary materials

to establish all of the elements of the claim or defense.” Stat-Tech Liquidating Trust v. Fenster,

981 F.Supp. 1325, 1335 (D. Colo. 1997); see also, United States v. Four Parcels of Real

Property in Greene and Tuscaloosa Counties in State of Ala., 941 F.2d 1428, 1438 (11th Cir.

1991); Resolution Trust Corp. v. Gill, 960 F.2d 336, 340 (3d Cir. 1992). In other words, in such

a case the movant “must satisfy both the initial burden of production on the summary judgment

motion–by showing that no genuine dispute exists as to any material fact–and the ultimate

burden of persuasion on the claim–by showing that it would be entitled to a directed verdict at

trial.” William W. Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions,

139 F.R.D. 441, 477-78 (1991). “Once a moving party with the burden of proof makes such an

affirmative showing, it is entitled to summary judgment unless the non-moving party comes
24

forward with probative evidence that would demonstrate the existence of a triable issue of fact.” 

In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003).

Plaintiff has not shown the absence of a genuine issue of material fact. Defendant is

correct that plaintiff’s June 11, 2009 motion for summary judgment, itself (Doc. Ent. 10 at 1 ¶¶

1a, 1b), “provide[s] no facts, argument or affidavit supporting his motion for summary

judgment[,]” and “fails to allege there are no material factual issues in dispute.” Doc. Ent. 14 at

5. Even the exhibits plaintiff filed the same day as his Rule 56 motion consist only of proof of

service materials, the civil cover sheet and legal research materials. Doc. Ent. 11 at 1-3, 4, 5-13. 

Furthermore, plaintiff’s complaint did not assist him in satisfying his burden under Fed.

R. Civ. P. 56(c). As mentioned above in Section II.B, interpreting plaintiff’s complaint (Doc.

Ent. 1) was not without questions. Perhaps, as mentioned in a Section II.D.1 footnote, plaintiff’s

second response (Doc. Ent. 16) was plaintiff’s effort at clarifying the claims in his complaint. 

However, “the plaintiff is the master of the complaint[,] [and] that is why he must take

responsibility for the allegations included in it.” Segal v. Fifth Third Bank, N.A., 581 F.3d 305,

312 (6th Cir. 2009) (quotations omitted). See also Alexander v. Electronic Data Systems Corp.,

13 F.3d 940 (6th Cir. 1994) (“The well-pleaded complaint rule generally provides that the

plaintiff is the master of his complaint, and the fact that the wrong asserted could be addressed

under either state or federal law does not ordinarily diminish the plaintiff’s right to choose a state

law cause of action.”) (citing cases); Medlen v. Estate of Meyers, 273 Fed.Appx. 464, 466 (6th

Cir. 2008) (“because a plaintiff is the master of his complaint, he can generally choose to avoid

federal jurisdiction by asserting only state law claims.”) (citing cases); NicSand, Inc. v. 3M Co.,
28Plaintiff’s assignment regarding Taxes and Insurance was due on Monday, December 7th

by 11:55 p.m. Doc. Ent. 21 at 8. 

25

507 F.3d 442, 458 (6th Cir. 2007) (“The plaintiff remains the master of its complaint, and when it

says that it is not bringing a predatory-pricing claim, we should take it at its word.”). 

3. Plaintiff’s December 10, 2009 motion for TRO (Doc. Ent. 21) should be denied.

On December 10, 2009, plaintiff filed a motion for entry of a temporary restraining order

against defendant State of Michigan based upon Fed. R. Civ. P. 65(b)(1)(A). Doc. Ent. 21. 

Plaintiff characterizes his case as challenging the constitutionality of state statutes. Doc. Ent. 21

at 1 ¶ 1. According to plaintiff, defendant “uses immunity for economic retroactive law making

and allowing its Municipal Corporations to use immunity for economic retroactive law

enforcement.” Doc. Ent. 21 at 1 ¶ 2. Plaintiff appears to seek a temporary restraining order

preventing the State of Michigan Department of State from enforcing its July 27, 2009 order of

action regarding plaintiff’s Driver Responsibility Fee assessment and prohibiting “motor-vehicle

bench warrant harassment.” Doc. Ent. 21 at 1 ¶ 3. Perhaps referencing Fleming v. United States

Federal Bureau of Investigation and Henry Ford Community College, Case No. 2:09-cv-13449-

MOB-MAR , plaintiff further claims he “was not able to receive grade progress credit from

course schedule assignments due by December 07, 2009 at 11:55 p.m.” in his Business Math

course at Henry Ford Community College. Doc. Ent. 21 at 1 ¶ 4, 7-8.28 

Plaintiff’s request for a temporary restraining order should be denied. Fed. R. Civ. P.

65(b)(1)(A) provides that “[t]he court may issue a temporary restraining order without written or

oral notice to the adverse party or its attorney only if: . . . specific facts in an affidavit or a
26

verified complaint clearly show that immediate and irreparable injury, loss, or damage will result

to the movant before the adverse party can be heard in opposition[.]” 

Aside from my conclusion that defendant State of Michigan is immune to suit, plaintiff’s

complaint is not signed under penalty of perjury. Doc. Ent. 1 at 1, 8-10; 28 U.S.C. § 1746

(“Unsworn declarations under penalty of perjury”). Nor is the instant motion for temporary

restraining order signed under penalty of perjury. Doc. Ent. 21 at 1. 

Furthermore, I note that plaintiff filed this request on December 10, 2009 - a date

following his December 5-8, 2009 confinement. To the extent plaintiff seeks to enjoin the State

from executing its July 27, 2009 Order of Action (Doc. Ent. 21 at 1 ¶ 3), the December 8, 2009

notice of release indicates that the “[f]ine and costs have been paid/suspended.” Doc. Ent. 21 at

6. To the extent plaintiff seeks to prohibit “motor-vehicle bench warrant harassment[,]” Doc.

Ent. 21 at 1 ¶ 3, the October 31, 2008 bench warrant provides that plaintiff was to be brought

“before the Court immediately, or [he] may be released when a cash or surety bond in the

amount of $270.00 CS NO 10% is posted for personal appearance before the Court at its next

session.” Doc. Ent. 1 at 46. If in fact plaintiff has paid the fee, it does not appear that the bench

warrant will result in further “harassment” to plaintiff. Finally, to the extent plaintiff seeks

“grade progress credit” in his Business Math Course at Henry Ford Community College (Doc.

Ent. 21 at 1 ¶ 4), the college is not a party to this case. 

In sum, plaintiff has not made the case that he would suffer “immediate and irreparable

injury, loss, or damage[.]” Fed. R. Civ. P. 65(b)(1)(A).

4. Defendant’s December 21, 2009 motion to dismiss amended statement of claim (Doc.

Ent. 25) should be deemed moot.
29See United States Federal Bureau of Investigation and Henry Ford Community College,

Case No. 2:09-cv-13449-MOB-MAR (Aug. 31, 2009), Doc. Ent. 18 (Transcript) at 7.

27

On December 10, 2009, plaintiff filed a one-page “amended statement of claim.” Doc.

Ent. 22. It appears that plaintiff seeks to amend his complaint to add (1) a statement of

jurisdiction, noting that his $950,949.48 request for damages exceeds the $75,000 amount in

controversy required by 28 U.S.C. § 1332 (“Diversity of citizenship; amount in controversy;

costs); (2) a claim of relief for receiving a grade of “C” in his Fall 2009 Business Math course at

Henry Ford Community College;29 and (3) a statement of venue based upon 28 U.S.C. § 1391

(“Venue generally”).

It also appears that plaintiff seeks to elaborate on the basis for his complaint. Plaintiff

claims that defendant State of Michigan “uses immunity within its jurisdiction that lacks

concurrence to prosecute operators in Michigan before and after the year of 1956.” Plaintiff

contends that “[a]ny motor-vehicle operator is not held responsible for auto-insurance

presumption of risk for personal property damages.” Plaintiff requests that this Court “not use

prejudice against a claim demanding from the State of Michigan that choose[s] not to amend

ratifying more economic statutory rights from [the Uniform Commercial Code (Mich. Comp.

Laws §§ 440.1101 et seq.)] and [Chapter 20 of the Insurance Code of 1956 (Mich. Comp. Laws

§§ 500.2001-500.2028)].” 

Defendant responded by filing a motion to dismiss plaintiff’s amended statement of

claim. Doc. Ent. 25. Relying upon its June 4, 2009 motion to dismiss or in the alternative

motion for more definite statement (Doc. Ent. 3), defendant claims that plaintiff has not stated a

claim upon which relief may be granted. Specifically, defendant State of Michgian claims it “is
30“[G]eneral personal jurisdiction . . . requires that the defendant have ‘continuous and

systematic’ contacts with the forum state and confers personal jurisdiction even when the cause of

action has no relationship with those contacts.” Silent Drive, Inc. v. Strong Industries, Inc., 326 F.3d

1194, 1200 (Fed. Cir. 2003) (citing cases). “Specific personal jurisdiction must be based on

activities that ‘arise[ ] out of’ or ‘relate [ ] to’ the cause of action and can exist even if the

defendant's contacts are ‘isolated and sporadic.’” Silent Drive, Inc., 326 F.3d at 1200 (citing cases).

A motion challenging the Court’s personal jurisdiction over a defendant may be filed under Fed. R.

Civ. P. 12(b)(2). 

28

not subject to federal jurisdiction resulting from a lawsuit by one of its own citizens.” Doc. Ent.

25 at 1-2. In support of its argument, defendant cites Fed. R. Civ. P. 12(b)(1) & (2), the Eleventh

Amendment and Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984). 

Also, defendant notes that plaintiff seeks money damages against defendant State of Michigan

and “[j]urisdictional immunity has not been waived.” Doc. Ent. 25 at 2. 

If the Court accepts my foregoing recommendation that the State of Michigan’s June 4,

2009 Rule 12(b) motion should be granted on the basis that defendant State of Michigan is

immune from suit, then the Court need not entertain whether plaintiff’s December 10, 2009

amended statement of claim (Doc. Ent. 22) against the same defendant should be dismissed. 

5. Plaintiff’s December 28, 2009 motion for a more definite statement for nature of suit

& temporary restraining order (Doc. Ent. 26) should be denied.

a. Plaintiff’s December 28, 2009 filing seeks “a relevant answer[,]” citing Fed. R. Civ. P.

12(e). Plaintiff appears to take issue with defendant’s December 21, 2009 motion to dismiss

(Doc. Ent. 25) plaintiff’s December 10, 2009 amended statement of claim (Doc. Ent. 22). 

For example, plaintiff contends that defendant seeks immunity from personal

jurisdiction.30 Also, plaintiff contends that defendant’s reliance on Pennhurst (Doc. Ent. 25 at 2)

is an insufficient defense. In so doing, he mentions Chapter 20, “Unfair and Prohibited Trade

Practices and Frauds,” (Mich. Comp. Laws §§ 500.2001-500.2093) of the Insurance Code of
31It appears that plaintiff makes this allegation, because the “subject matter” at issue in

Pennhurst State School & Hospital (Pennsylvania’s Mental Health and Mental Retardation Act of

1966 ) is not the subject matter at issue in the instant case (challenging the constitutionality of

Chapter 20 of Michigan’s Insurance Code of 1956). Doc. Ent. 26 at 1 ¶ 1a. 

However, “[s]ubject-matter jurisdiction means adjudicatory competence over a category of

disputes.” Wisconsin Valley Imp. Co. v. United States, 569 F.3d 331, 333 (7th Cir. 2009). See also

Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 160 n.5 (1st Cir. 2007) (“Subject matter

jurisdiction means that the court has the power to hear and adjudicate the case.”); Gould, Inc. v.

United States, 67 F.3d 925, 929 (Fed. Cir. 1995) (“A dismissal for lack of jurisdiction means that

the subject-matter of the dispute is one that the court is not empowered to hear and decide.”). “[A]

lack of subject-matter jurisdiction means that the entire complaint must be dismissed[.]” Beazer

East, Inc. v. Mead Corp., 525 F.3d 255, 260 n.7 (3d Cir. 2008). A motion challenging the Court’s

subject matter jurisdiction may be filed under Fed. R. Civ. P. 12(b)(1).

29

1956, apparently challenging its constitutionality.31 He also argues that states are not immune to

28 U.S.C. § 535 (“Investigation of crimes involving Government officers and employees;

limitations”) and 42 U.S.C. § 14141 (“Cause of action”) and “are responsible for damages for

other circumstances.” Furthermore, plaintiff notes, his complaint states, “[s]ince April 01, 1977,

the State of Michigan refused to protect any Michgian resident for ‘any’ unlawful practice under

[Insurance Code of 1956 (Mich. Comp. Laws §§ 500.2001-500.2028)].” Doc. Ent. 1 at 5 ¶ 8. 

Plaintiff argues that “[t]he word any is interpreted to describe an auto-insurance commercial

enterprise seeking other excuses to increase auto-rates for other circumstances.” Doc. Ent. 26 at

1. 

Plaintiff refers to his recent endurance of “incarceration from failure of proof for autoinsurance matters within the State of Michigan.” According to plaintiff, defendant State of

Michigan “still allows its Municipal Corporations to use immunity against fruit-of-thepoisonous-tree-doctrine [U.S. national exclusionary rule].” In the end, plaintiff “prays that this

court sustain the merits of [his] claims and motions.” Doc. Ent. 26 at 2. 
32Both the June 4, 2009 motion to dismiss (Doc. Ent. 3 at 2, 5, 9) and the December 21, 2009

motion (Doc. Ent. 25 at 2) mention “jurisdictional immunity.” Also, both of these motions cite the

Eleventh Amendment and Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100

(1984). In its January 11, 2010 response, defendant explains that “[t]he immunity defense contained

within the Defendant’s pleadings is solely that relating to the State of Michigan, not any of the

additional entities referenced in plaintiff’s subsequent pleadings.” Doc. Ent. 27 at 2 n.3. 

30

In response, defendant argues that “[p]laintiff’s pleading entitled motion for more

definite statement for nature of suit and for TRO should be denied[,]” noting that the “[r]elief

sought by [p]laintiff’s motion is confusing and ambiguous but appears to relate to alleged actions

by local units of government and officials, not the state.” Doc. Ent. 27 at 5-6. Defendant also

argues that its “previously filed motions to dismiss [Doc. Entries 3 (June 4, 2009) and 25 (Dec.

21, 2009)] should be granted.” Doc. Ent. 27 at 6-7.

b. The Court should deny plaintiff’s December 28, 2009 motion for a more definite

statement and temporary restraining order. This is so, because if the Court agrees with my

foregoing recommendation that defendant State of Michigan is immune from suit by a citizen,

then the Court need not entertain whether plaintiff is entitled to a more definite statement from or

a temporary restraining order against that same defendant. Likewise, if the Court accepts my

recommendation and deems moot defendant’s December 21, 2009 motion to dismiss (Doc. Ent.

25) plaintiff’s December 10, 2009 amended statement of claim (Doc. Ent. 22), then the Court

need not address plaintiff’s challenges to defendant’s December 21, 2009 motion.32

Also, to the extent plaintiff seeks entry of a Fed. R. Civ. P. 65(b) temporary restraining

order, the bases for plaintiff’s request are not clear. Furthermore, to the extent plaintiff’s

December 28, 2009 filing (Doc. Ent. 26) sought to respond to defendant’s motion to dismiss
31

plaintiff’s amended statement of claim (Doc. Ent. 25), plaintiff’s “motion” should have been

filed as a response. 

Finally, to the extent plaintiff’s December 28, 2009 filing seeks a more definite answer,

plaintiff’s motion should be denied. Fed. R. Civ. P. 12 provides in part that “[a] party may move

for a more definite statement of a pleading to which a responsive pleading is allowed but which

is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must

be made before filing a responsive pleading and must point out the defects complained of and the

details desired. If the court orders a more definite statement and the order is not obeyed within

10 days after notice of the order or within the time the court sets, the court may strike the

pleading or issue any other appropriate order.” Fed. R. Civ. P. 12(e) (emphasis added).

However, Fed. R. Civ. P. 7 provides, “[o]nly these pleadings are allowed: (1) a

complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a

counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a

third-party complaint; and (7) if the court orders one, a reply to an answer.” Fed. R. Civ. P. 7(a)

(emphasis added). If plaintiff’s motion takes issue with defendant’s answer, or, in this case the

absence thereof, and because no order has been entered requiring a reply to such an answer, the

instant motion cannot be brought. Fed. R. Civ. P. 12(e); Fed. R. Civ. P. 7(a)(7); 5C Fed. Prac. &

Proc. Civ.3d § 1376 (“a Rule 12(e) motion is appropriate only when directed to an answer to

which a reply is mandatory or already has been ordered by the court.”) (citing, inter alia, Reid v.

Doubleday and Co., 109 F.Supp. 354, 356 (N.D. Ohio 1952) (“under Rule 12(e) a motion for a

more definite statement may be made only to a pleading to which a responsive pleading is

permitted, and under Rule 7(a) a responsive pleading is not permitted to the answer unless
32

ordered by the Court.”) and Citizens Trust Co. v. New England Dredge & Dock Co., 260 F.Supp.

800, 801 (D. Conn. 1966)).

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

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

Recommendation, but are required to act within ten (10) days of service of a copy hereof as

provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 147-

48 (1985), Howard v. Secretary of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir.

1991); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). Filing of 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. Miller v. Currie, 50 F.3d 373, 380 (6th

Cir. 1995); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of

Teachers Local 231, American Federation of Teachers, AFL-CIO, 829 F.2d 1370, 1373 (6th Cir.

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this

Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed objections, the

opposing party may file a response. The response shall not be more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

2/23/10 s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE
33

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record by

electronic means or U.S. Mail on February 23, 2010.

s/Eddrey Butts 

Case Manager