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 UNITED STATES DISTRICT COURT

 EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEARBORN LODGING, INC., a Michigan

corporation, and JOSEF NOFAR,

Plaintiffs,

v.

THE CITY OF DEARBORN,

Defendant.

Case No. 08-14550

Honorable Julian Abele Cook, Jr.

ORDER

On October 23, 2008, the Plaintiffs, Dearborn Lodging, Inc., a Michigan corporation, and

Josef Nofar, filed a complaint in the Wayne County Circuit Court of Michigan, in which they

accused the Defendant, the City of Dearborn, of (1) an unconstitutional taking of their property

interests in violation of the Fifth and Fourteenth Amendments of the United States Constitution;

and (2) a wrongful “taking in exercise of police powers.” 

Four days later (October 27, 2008), the Defendant removed the action to this federal district

court. However, the parties subsequently agreed to enter into an uncontested order of dismissal,

after they determined that it was “in their best interests to dismiss this matter without prejudice to

facilitate a resolution [of their dispute].” Acting upon the parties’ joint agreement, the Court

entered an order of dismissal on February 13, 2009. One week later, on February 20th, the

Plaintiffs filed what they described as an “emergency motion,” seeking a reinstatement of the case.

On the same day, they also filed a motion for preliminary injunction and the appointment of “an

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independent qualified monitor.” The Defendant filed responses in opposition to both motions on

February 27th, to which the Plaintiffs replied on March 3rd. For the reasons that have been set

forth below, the Plaintiffs’ motion to reopen the case will be denied, which, in turn, renders a

judicial resolution of their motion for a preliminary injunction unnecessary for reasons of mootness.

I. 

Dearborn Lodging, Inc., is a Michigan corporation that owns and operates the Metro Inn

Motel (the “Motel”) in Dearborn, Michigan, and Josef Nofar is its sole shareholder. The City of

Dearborn is a municipal corporation that is an integral part of the governmental structure within

the State of Michigan. As such, it is entitled to exercise all of the police powers that have been

authorized by the Michigan Constitution. 

These parties have a long history of discussions and negotiations relating to the soundness

of the Motel’s structure, particularly its balconies. Underlying their ongoing discussions is the

position of the Plaintiffs who jointly contend that the Defendant’s allegations which describe the

Motel as being unsafe are unfounded and arbitrary. It is their collective position that its own

engineers have conducted structural engineering inspections, all of which have concluded that the

Motel’s balconies are “structurally sound and . . . safe.” 

On the other hand, the Defendant has maintained that the Plaintiffs’ proffered engineering

reports reveal that these inspections were superficial and did little to address the overall integrity

of the building structure. The Defendant, seeking to acquire support for its opinion, hired its own

engineering firm, URS Corporation (“URS”), to conduct an inspection and thereafter submit a

written report that would reflect its findings. Acting upon this authority, URS conducted an

evaluation of the Motel, and submitted a report which revealed, among other things, that (1) the

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balconies were unsafe, (2) the staircases in every building contained trip hazards, (3) electrical,

plumbing, and mechanical systems were in varying states of disrepair, and (4) the restaurant

building had mold, roof damage, and deficient mechanical systems that were not up to code. On

the basis of this report, the Defendant condemned the Motel on October 17, 2008. This lawsuit

followed. 

II.

In its now-pending motion, the Plaintiffs seek to have the Court set aside its dismissal order

of February 13th and reinstate this case, arguing that (1) there have been no negotiations between

the parties to resolve the case and (2) the Defendant has sought “further aggressive conduct to

destroy the Plaintiffs’ business” by instituting a “fallacious tax lien” on all of the personal

properties in the Motel. The Defendant opposes this motion, contending that the Plaintiffs have (1)

declined to submit a rehabilitation plan with a permit application and fee; (2) refused to pay

overdue taxes and water bills; and (3) failed to set forth any exceptional circumstances that would

warrant the relief that they seek to obtain.

Federal Rule of Civil Procedure 60(b) provides the following:

On motion and just terms, the court may relieve a party or its legal representative

from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence that, with reasonable diligence, could not have been

discovered in time to move for a new trial under Rule 59(b); 

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

misconduct by an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier

judgment that has been reversed or vacated; or applying it prospectively is no longer

equitable; or 

(6) any other reason that justifies relief.

Although courts are allowed to revisit final orders under this rule of procedure, relief is

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The Plaintiffs acknowledge that this meeting took place, but contend that “no actual

negotiations were engaged in by the [Defendant].” The Defendant, on the other hand, alleges that

by the end of the meeting the parties agreed that the “Plaintiffs would present a comprehensive

proposal” to rehabilitate the building.

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“‘circumscribed by public policy favoring finality of judgments and termination of litigation.’” Ford

Motor Co. v. Mustangs Unlimited, Inc., 487 F.3d 465, 468 (6th Cir. 2007). This principal is

especially true where a litigant seeks to obtain relief under subsection (6) of Rule 60(b) which is

applicable only in those “exceptional or extraordinary circumstances” that have not been addressed

in the first five subsections of the rule. Id. (internal citations omitted). As such, subsection (6)

should only be applied in those “unusual and extreme situations” and “where principles of equity

mandate relief.” Id. (citing Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990)

(emphasis in original). The party who seeks to obtain relief under Rule 60(b), must establish the

grounds for relief by clear and convincing evidence. Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d

448, 454 (6th Cir. 2008) (citing Crehore v. United States, 253 F. App’x 547, 549 (6th Cir. 2007)).

 Here, the Plaintiffs argue that their case should be reopened because “the lack of any

progress or the lack of any offer demonstrates a ‘reason that justifies relief,’” thereby invoking

subsection (6) of Rule 60(b). However, the Court does not believe that they have met the burden

required to justify the relief sought by them. Although the Plaintiffs maintain that “there has been

no good faith and meaningful attempt to ‘facilitate a resolution’ of this matter by the Defendant,”

the evidence proffered by the Defendant appears to suggest the contrary. The Defendant has

presented the Court with various mail and e-mail correspondence between the parties, along with

a sign-in sheet from a meeting of January 9, 2009, in which the parties were in attendance.1

Although the parties continue to be in an apparent disagreement about whether the Motel should be

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Hazel-Atlas appears to benefit the Defendants in this case. The Supreme Court noted that

courts have only been willing to prevent the enforcement of a judgment where there was a “need for

correcting [an] injustice[]” or where the enforcement of the judgment was “manifestly

unconscionable.” Hazel-Atlas Glass Co., 322 U.S. at 244-45. The Plaintiffs here have not shown

either that (1) the Court needs to correct an injustice or (2) the enforcement of its order would be

“manifestly unconscionable.”

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condemned, this dispute - standing alone - does not mandate relief under Rule 60(b)(6).

Significantly, the affidavits and other documents in this action suggest that the interactions among

the parties have continued in the same manner as (1) prior to the commencement of this lawsuit and

(2) on or about the same time that they agreed to pursue an out-of-court resolution. As such, the

Plaintiffs have failed to submit clear and convincing evidence that the interests of justice require

relief from the order of dismissal. Furthermore, the cases that were cited by the Plaintiffs in

support of their request are inapposite to the issues in their motion. As an example, the Plaintiffs’

reliance on Dynes v. Army Air Force, 720 F.2d 1495 (11th Cir. 1983) is misplaced. In Dynes, the

Eleventh Circuit Court of Appeals held that the district court did not abuse its discretion in granting

a defendant’s motion to dismiss without prejudice because the plaintiff had failed to comply with

a court order. Dynes, 720 F.2d at 1499. Contrary to the Plaintiffs’ position, the case does not stand

for the proposition that a dismissal without prejudice allows reinstatement. Likewise, the Plaintiffs’

citation to Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944) does not lend

support for their position. The Supreme Court in Hazel-Atlas reaffirmed the power of federal courts

to alter or set aside judgments under certain circumstances, focusing on the issue of after-discovered

fraud. 322 U.S. at 244.2

 However, the Plaintiffs here have not alleged that the Defendant has

engaged in any fraudulent action. 

III.

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Therefore, for the reasons stated above, the Court must, and does, (1) deny the Plaintiffs’

motion to reinstate the case and (2) deny the Plaintiffs’ motion for preliminary injunction for reasons

of mootness.

IT IS SO ORDERED.

Dated: March 6, 2009 s/Julian Abele Cook, Jr. 

Detroit, Michigan JULIAN ABELE COOK, JR.

United States District Court Judge

Certificate of Service

I hereby certify that on March 6, 2009, I electronically filed the foregoing with the Clerk

of the Court using the ECF system, and I further certify that I mailed a copy to the non-ECF

participant(s).

s/ Kay Doaks 

Courtroom Deputy Clerk

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