UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

COMMODITIES EXPORT COMPANY,

Plaintiff/Counter-Defendant,

v.

CITY OF DETROIT,

Defendant,

and

UNITED STATES OF AMERICA, 

Defendant/Cross-Claimant,

and

DETROIT INTERNATIONAL BRIDGE

COMPANY,

Defendant/Counter-Plaintiff/CrossDefendant

 /

Case No. 09-CV-11060-DT

ORDER GRANTING IN PART AND DENYING IN PART DIBC’S MOTION TO

DISMISS

AND DENYING DIBC’S MOTION TO VACATE

On July 9, 2010, the Detroit International Bridge Company (“DIBC”) filed a

“Motion to Dismiss Plaintiff’s Complaint . . . and to Vacate Opinion and Order Dated

June 29, 2010.” Responses were filed by Plaintiff Commodities Export Company and

the United States of America. Having reviewed the briefs, the court concludes that a

hearing is unnecessary. See E.D. Mich. 7.1(f)(2). The court will deny the motion in

large part, but grant it in one respect, dismissing Plaintiff’s Bivens claim.

I. STANDARD

2:09-cv-11060-RHC-RSW Doc # 125 Filed 03/18/11 Pg 1 of 9 Pg ID 2428
2

When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff

and accept all the factual allegations as true. Tackett v. M&G Polymers, USA, LLC, 561

F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.

2009)). In doing so, “the court must draw all reasonable inferences in favor of the

plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Yet, the court

“need not accept as true legal conclusions or unwarranted factual inferences.” Id.

(quoting Gregory v. Shelby Cnty., 220 F.3d 433, 466 (6th Cir. 2000)). Although a

heightened fact pleading of specifics is not required, “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for

relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

Though decidedly generous, this standard of review does require more than the

bare assertion of legal conclusions.

[A] plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to

relief” requires more than labels and conclusions, and a formulaic

recitation of a cause of action’s elements will not do. Factual allegations

must be enough to raise a right to relief above the speculative level on the

assumption that all the complaint’s allegations are true.

Twombly, 550 U.S. at 555 (citing Fed. R. Civ. P. 8(a)). Further, the complaint must

“give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which

it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) abrogated on other grounds by

Twombly, 550 U.S. 544. In application, a “complaint must contain either direct or

inferential allegations respecting all material elements to sustain a recovery under some

viable legal theory.” Eidson v. State of Tenn. Dep’t of Children’s Servs., 510 F.3d 631,

2:09-cv-11060-RHC-RSW Doc # 125 Filed 03/18/11 Pg 2 of 9 Pg ID 2429
3

634 (6th Cir. 2007) (citation omitted). Therefore, “to survive a motion to dismiss, the

plaintiff must allege facts that, if accepted as true, are sufficient to raise a right to relief

above the speculative level and to state a claim to relief that is plausible on its face.” 

Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (citations and internal

quotation omitted). Despite these requirements, a court cannot grant a motion to

dismiss under Rule 12(b)(6) based upon its disbelief of a complaint’s well-pled factual

allegations. Twombly, 550 U.S. at 556.

“In determining whether to grant a Rule 12(b)(6) motion, the court primarily

considers the allegations in the complaint, although matters of public record, orders,

items appearing in the record of the case, and exhibits attached to the complaint, also

may be taken into account.” Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001)

(emphasis omitted) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)).

II. DISCUSSION

In the court’s June 29, 2010, Order, the court denied DIBC’s motion for summary

judgment and granted the United States’s motion for summary judgment on the federal

instrumentality issue. Specifically, the court rejected DIBC’s various attempts to

persuade the court that it lacked jurisdiction over this action, or should otherwise abstain

from exercising jurisdiction, and instead found that the United States had shown as a

matter of law that DIBC is not a federal instrumentality of the United States. 

On July 16, 2010, the City of Detroit filed a “Notice of Correction,” in which it

corrected a factual misstatement made in earlier proceedings. Specifically, the City

stated that 23rd Street did not actually abut Plaintiff’s property but was separated from

the property by a twelve-foot public alley. On July 27, 2010, DIBC then filed the instant

2:09-cv-11060-RHC-RSW Doc # 125 Filed 03/18/11 Pg 3 of 9 Pg ID 2430
4

motion to dismiss, in which it argues that, based on the City’s factual correction, the

court lacks jurisdiction, and the court’s June 29, 2010 order must therefore be vacated

and Plaintiff’s complaint dismissed. DIBC’s motion is yet another attempt to dismiss this

action based on fundamentally the same arguments it has presented in various motions

to the court. (See July 9, 2010, “Motion for Reconsideration,” February 26, 2010,

“Motion for Summary Judgment.”) Included within its motion, however, are a few new

arguments directed at various counts of Plaintiff’s complaint. The court will address

each argument in turn. 

A. Jurisdiction

DIBC first argues that the court lacks subject matter jurisdiction. The court has

previously addressed DIBC’s arguments regarding subject jurisdiction, and there is

nothing presented in DIBC’s motion which persuades the court that its previous rulings

are in error. DIBC primarily argues that Plaintiff lacks standing to assert any claim in the

Second Amended Complaint because its property does not abut 23rd Street. For the

reasons stated in the court’s order denying DIBC’s motion for reconsideration, this

argument is rejected. Plaintiff’s ability to challenge DIBC’s actions does not depend

upon whether its property abuts 23rd Street, but only upon whether Plaintiff’s property

was entirely or materially cut off. See Phelps v. Stott Realty Co., 207 N.W. 2, 5 (Mich.

1926) (“It is a well-settled rule that a lot owner’s right to object to the vacation of a part

of a street depends upon whether his lot abuts upon or comes in actual contact with the

vacated portion, or access to his lot is entirely or materially cut off by reason of the

vacation.” (quotation omitted)). 

2:09-cv-11060-RHC-RSW Doc # 125 Filed 03/18/11 Pg 4 of 9 Pg ID 2431
1After DIBC filed its motion, the court sua sponte dismissed the state law claims

in this action. (9/30/10 Order.) Thus, the court will not address DIBC’s arguments to

dismiss any claims that have been dismissed.

5

Additionally, for the reasons stated in previous orders, and despite the admitted

possible implication this court’s order may have with respect to the relevant Michigan

Supreme Court decision, there is no abstention doctrine which requires or suggests that

the court should decline to maintain jurisdiction over this action. 

Finally, contrary to DIBC’s arguments, the court finds that Plaintiff’s takings claim,

seeking a return of its property rights in City streets and damages against the United

States for less than $10,000, was properly filed in this court, rather than in state court or

in the Court of Claims. See Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081,

1088 (6th Cir. 1978) (“We conclude that 28 U.S.C. s 1346(a)(2) expressly limits the

district court’s jurisdiction over these types of claims against the government to those

not exceeding $10,000 in amount.”). 

B. Individual Claims

DIBC next argues that the remaining claims in Plaintiff’s Second Amended

Complaint should be dismissed for failure to state a claim upon which relief can be

granted.1

 As will be discussed below, only one of DIBC’s arguments has merit.

1. Count III (Injunction and Declaratory Relief)

In the court’s September 30, 2010, order, the court dismissed any portion of

Count III seeking an injunction or declaratory relief based on state law. DIBC

apparently seeks to dismiss the entirety of Count III based on its argument that the court

lacks jurisdiction over this action, and Plaintiff has therefore failed to identify a

2:09-cv-11060-RHC-RSW Doc # 125 Filed 03/18/11 Pg 5 of 9 Pg ID 2432
6

substantive claim underlying its declaratory relief claim. Because the court has rejected

DIBC’s jurisdictional challenges, the court also rejects this argument.

2. Count V (42 U.S.C. § 1983); and the Cross Claim

In Plaintiff’s § 1983 claim against DIBC, it asserts that DIBC violated Plaintiff’s

constitutional rights in various ways. (2nd Am. Compl. at ¶ 48.) DIBC argues that 

Plaintiff has failed to state a claim because the State of Michigan has not compelled any

action of DIBC. DIBC seems to assert that Plaintiff’s § 1983 relies solely on the

Michigan Supreme Court’s decision that DIBC operated as a limited federal

instrumentality and that the decision itself cannot form the basis of state authority. 

DIBC is, however, reading Plaintiff’s complaint too narrowly. DIBC also argues that if

the § 1983 claim is dismissed, so too must the Cross Claim be dismissed.

To state a claim under § 1983, Plaintiff must allege that DIBC, acting under the

color of state law, deprived it of its “rights, privileges, or immunities secured by the

Constitution.” 42 U.S.C. § 1983; Lindsey v. Detroit Entm't, LLC, 484 F.3d 824, 827 (6th

Cir. 2007); Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 176 (6th Cir.

2008) (“Section 1983 makes liable only those who, while acting under color of state law,

deprive another of a right secured by the Constitution or federal law.” (citing Romanski

v. Detroit Entm't, L.L.C., 428 F.3d 629, 636 (6th Cir. 2005)). “As a general rule,

‘[s]ection 1983 does not ... prohibit the conduct of private parties acting in their

individual capacities.’” Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776,

783 (6th Cir. 2007) (citing Lindsey, 484 F.3d at 827). However, “[a] private actor acts

under color of state law when its conduct is fairly attributable to the state.” Hughes, 542

F.3d at 176 (quoting Romanski, 428 F.3d at 636 (internal quotation omitted)).

2:09-cv-11060-RHC-RSW Doc # 125 Filed 03/18/11 Pg 6 of 9 Pg ID 2433
7

The “ultimate issue” in determining whether a private party is subject to

suit under § 1983 is whether “the alleged infringement of federal rights [is]

fairly attributable to the State.” Rendell-Baker v. Kohn, 457 U.S. 830, 838,

102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (quotation marks omitted). This

court applies the three tests articulated by the Supreme Court for

determining the existence of state action under § 1983: “(1) the public

function test, (2) the state compulsion test, and (3) the symbiotic

relationship or nexus test.” Chapman v. Higbee Co., 319 F.3d 825, 833

(6th Cir. 2003).

Campbell, 509 F.3d at 783-84. Here, the court finds that the Second Amended

Complaint presents sufficient facts to state a claim that alleged infringement of federal

rights is “fairly attributable” to the State of Michigan. 

Plaintiff alleges, among other things, that DIBC had a partnership with the State

of Michigan through its contacts for road improvements to serve the Ambassador Bridge

and that DIBC has claimed that the destruction of roads and access are authorized by

the MDOT-DIBC “Gateway Project.” (2nd Am. Compl. ¶ 46.) While Plaintiff does allege

that the Michigan Courts have provided DIBC with a “mantle of

authority” that “enhances its powers to do harm,” Plaintiff also alleges that MDOT has

provided DIBC with that same “mantle of authority.” (Id. ¶ 47.) The court finds these

facts sufficient to state a claim, at least to survive a motion to dismiss, that DIBC acted

under color of state law, through the implementation of the MDOT “Gateway Project.”

3. Count VI (Bivens Claim)

DIBC next argues that Plaintiff’s Bivens claim must be dismissed. When “‘a

federal agent acting under color of his authority’ violates the Constitution, the agent's

victim may recover damages against the agent. Such claims are the counterpart to suits

under 42 U.S.C. § 1983 against state officials who infringe plaintiffs' federal

constitutional or statutory rights.” Vector Research, Inc. v. Howard & Howard Attorneys

2:09-cv-11060-RHC-RSW Doc # 125 Filed 03/18/11 Pg 7 of 9 Pg ID 2434
8

P.C., 76 F.3d 692, 698 (6th Cir. 1996) (quoting Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388, 390-97 (1971)). DIBC argues that this claim

must be dismissed because DIBC is not “an appendage, agent, constituent, or servant

of the federal government.” (DIBC’s Mot. at 18.) While the court observes that, based

on previous rulings in this case, DIBC’s argument is well-taken that Plaintiff cannot

possibly succeed on this claim, such an argument is better founded in a motion for

summary judgment than in a motion to dismiss. 

However, Plaintiff’s Bivens claim is subject to dismissal for another reason. “The

purpose of Bivens is to deter individual federal officers from committing constitutional

violations.” Correctional Services Corp. v. Malesko, 534 U.S. 61, 70 (2001) (emphasis

added). Thus, the Supreme Court has held that a Bivens claim cannot be maintained

against private entities acting under color of federal law. Id. As DIBC argues, “[a]

Bivens claim requires that the plaintiff sue directly the individual federal actor allegedly

responsible for the constitutional rights violation.” (DIBC Mot. at 18.) Because Plaintiff

has sued a private entity, rather than an individual acting under color of federal law, its

Bivens claim fails to state a claim upon which relief can be granted and DIBC’s motion

to dismiss this claim will be granted.

III. CONCLUSION

IT IS ORDERED that DIBC’s motion to dismiss [Dkt. # 112] is GRANTED IN

PART AND DENIED IN PART. It is GRANTED with respect to Plaintiff’s Bivens claim,

2:09-cv-11060-RHC-RSW Doc # 125 Filed 03/18/11 Pg 8 of 9 Pg ID 2435
9

and thus Count VI of the Second Amended Complaint is DISMISSED. It is DENIED in

all other respects.

IT IS FURTHER ORDERED that DIBC’s motion to vacate [Dkt. # 112] is

DENIED.

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: March 18, 2011

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, March 18, 2011, by electronic and/or ordinary mail.

 S/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

S:\Cleland\JUDGE'S DESK\C3 ORDERS\09-11060.COMMODITIES.DismissVacateSMJ.2.wpd

2:09-cv-11060-RHC-RSW Doc # 125 Filed 03/18/11 Pg 9 of 9 Pg ID 2436