Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-1- Fax: 517.467.4044

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

FMIO, INC. a Michigan corporation and 

RICHARD A. GARST,

Plaintiffs,

v

TOWNSHIP OF SUMMERFIELD MICHIGAN, a

Michigan municipal corporation, KEVIN R. IOTT in

his official and individual capacities, TAMMY

BLEASKA in her official and individual capacities,

JOAN WIEDERHOLD, in her official and individual

capacities, DALE WAGENKNECHT in his official

and individual capacities JAMES V. SEEGER, in his

official and individual capacities, AMY REITER, in

her official and individual capacities, RICHARD

KORALESKI in his official and individual capacities,

DAVID GRUDE, in his official and individual

capacities, JOSEPH STRANGER in his official and

individual capacities, LINDA DIESING in her official

and individual capacities MICHAEL STRAHAN in his

official and individual capacities, jointly and

severally,

Defendants

File No: 2:09-cv-12561

Hon. BERNARD A. FRIEDMAN

AN SWER, AF FI R M AT IV E

DEFENSES AND RELIANCE ON

JURY DEMAND

Cindy Rhodes Victor (P33613)

The Victor Firm, PLLC

Attorney for Plaintiffs

35801 Mound Road

Sterling Heights, MI 48310

Telephone: 586-274-9600

Frederick Lucas (P29074)

Lucas Law, PC

Attorney for Defendants

7577 US 12, Ste A

Onsted, MI 49265 

Telephone: 517-467-4000

Fax: 517-467-4044

ANSWER

Defendants, by their attorneys, Lucas Law, PC, answer the complaint of plaintiffs,

FMIO, Inc and Richard A. Garst as follows:

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.63 Page 1 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-2- Fax: 517.467.4044

JURISDICTION

1. Deny the allegations in paragraph 1 through 1©.

2. Admit the allegations in paragraph 2.

3. Admit the allegations in paragraph 3.

THE PARTIES

4-6 Admit the allegations in paragraphs 4 through 6.

7 Admit that defendant Iott is the Supervisor of Summerfield Township and

a resident of Monroe County, Michigan but neither admit nor deny that he

is a policy making official.

8 Admit that defendant Bleashka is the Clerk of Summerfield Township and

a resident of Monroe County, Michigan but neither admit nor deny that

she is a policy making official.

9 Admit that defendant Wiederhold is the Treasurer of Summerfield

Township and a resident of Monroe County, Michigan but neither admit

nor deny that she is a policy making official.

10 Admit that defendant Seegert is Trustee of Summerfield Township and

a resident of Monroe County, Michigan but neither admit nor deny that he

is a policy making official.

11 Admit that defendant Reiter is the Chairperson of both the Summerfield

Township Planning Commission and the Zoning Board of Appeals and is

a resident of Monroe County, Michigan but neither admit nor deny that

she is a policy making official.

12 Admit that defendant Koraleski is a member of the Summerfield

Township Planning Commission and a resident of Monroe County,

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.64 Page 2 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-3- Fax: 517.467.4044

Michigan but neither admit nor deny that he is a policy making official.

13 Admit that defendant Grude is a member of the Summerfield Township

Planning Commission and a resident of Monroe County, Michigan but

neither admit nor deny that he is a policy making official.

14 Admit that defendant Stanger is a member of the Summerfield Township

Planning Commission and a resident of Monroe County, Michigan but

neither admit nor deny that he is a policy making official.

15 Admit that defendant Diesing is a member of the Summerfield Township

Zoning Board of Appeals and a resident of Monroe County, Michigan but

neither admit nor deny that she is a policy making official.

16 Deny that defendant Mark Strahan (misidentified as Michael Strahan) is

a member of the Summerfield Township Zoning Board of Appeals or that

he is a policy making official but admit he is a resident of Monroe County,

Michigan.

FACTUAL ALLEGATIONS

17 Admit the allegations in paragraph 17.

18 Admit the allegations in paragraph18 as the property is zoned C1 local

commercial.

19 Neither admit nor deny for the reason that defendant is without sufficient

information or belief as to the truth of the allegations contained in

paragraph 19.

20 Neither admit nor deny for the reason that defendant is without sufficient

information or belief as to the truth of the allegations contained in

paragraph 20.

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.65 Page 3 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-4- Fax: 517.467.4044

21 Neither admit nor deny for the reason that defendant is without sufficient

information or belief as to the truth of the allegations contained in

paragraph 21.

22-24 Admit the allegations in paragraphs 22 through 24.

25 Neither admit nor deny the allegations in paragraph 25 for the reason that

defendants are without knowledge of the date or specifics relating to the

confiscation of the computer.

26 Admit that Nick Lucas was the Fire Chief from 1996 to March 2002 and

that he is the son of Zelda Lucas. If the time period referred to in

paragraph 26 falls within these dates then it is admitted as true.

27 Admit the allegations in paragraph 27.

28 Neither admit nor deny for the reason that defendant is without sufficient

information or belief as to the truth of the allegations contained in

paragraph 28.

29 There are two paragraphs numbered as 29. Defendants neither admit nor

deny the allegations contained in both paragraphs numbered 29 for the

reason that defendant is without sufficient information or belief as to the

truth of the allegations.

30 Admit that the language of some of the recall petitions were approved but

neither admit nor deny the remaining allegations in paragraph 30 for the

reason that defendant is without sufficient information or belief as to the

truth of the remaining allegations.

31 Admit the allegations in paragraph 31.

32 Neither admit nor deny for the reason that defendant is without sufficient

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.66 Page 4 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-5- Fax: 517.467.4044

information or belief as to the truth of the allegations contained in

paragraph 32.

33 Deny for the reason that Garst did mention LaRocca by name.

34 Deny the allegations in paragraph 34.

35-39 Admit the allegations in paragraph 35 through 39.

40 Admit that a lease was entered into on May 7, 2008 not May 4, 2008 as

alleged in paragraph 40.

41-43 Deny the allegations in paragraphs 41 through 43.

44 Admit that Zelda Lucas got a personal protection order against Garst but

deny the remaining allegations

45-48 Neither admit nor deny for the reason that defendant is without sufficient

information or belief as to the truth of the allegations contained in

paragraphs 45 through 48.

49 Neither admit nor deny for the reason that defendant is without sufficient

information or belief as to the truth of the allegations contained in

paragraph 49 but for further answer deny that the minutes are incorrect

or that it has been an ongoing issue with the minutes.

50 Deny the allegations in paragraph 50.

51 Admit the allegations in paragraph 51.

52-53 Neither admit nor deny for the reason that defendant is without sufficient

information or belief as to the truth of the allegations contained in

paragraphs 52 and 53.

54 Deny the allegations in paragraph 54 for the reason that the Township

never received the packet.

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.67 Page 5 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-6- Fax: 517.467.4044

55 Neither admit nor deny for the reason that defendant is without sufficient

information or belief as to the truth of the allegations contained in

paragraph 55.

56 Deny the allegations in paragraph 56 for the reason that Reiter never

received an application from Garst and Reiter advised Garst of that fact

on at least one occasion.

57 Deny for the reason that the township never received his application.

58 Admit that a certified check was made payable to Summerfield Township

on November 13, 2006.

59 Deny for the reason that no application was ever submitted that could be

misplaced.

60 Deny the allegations in paragraph 60.

61 Deny the allegations in paragraph 61.

62 Admit that defendant Iott told Garst he had to submit the plans and check

but deny that Iott told Garst that this would be a re-submission since

Garst had never submitted the plans in the first instance. 

63 Deny the allegations in paragraph 63.

64 Neither admit nor deny for the reason that defendant is without sufficient

information or belief as to the truth of the allegations contained in

paragraph 64.

65-66 Deny the allegations in paragraphs 65 through 66.

67-69 Admit the allegations in paragraphs 67 through 69.

70 Admit that there was no written complaint and no notice was posted but

for further answer state that the ordinance does not require a written

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.68 Page 6 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-7- Fax: 517.467.4044

complaint. 

71 Admit the allegations in paragraph 71.

72 Admit the allegations in paragraph 72 but for further answer state that

Garst was given time to address the Township Board regarding the

dangerous building violation.

73 Admit that Garst asked about the FMIO site plan review application and

Garst was told that the issue of his purposed application was not on the

agenda.

74 Deny the allegations in paragraph 74.

75 Admit that Garst made comments about a trucking business but neither

admit nor deny the remaining allegations contained in paragraph 75.

76 Admit that Garst made such allegations at the meeting but deny the truth

of the allegations.

77 Deny the allegations in paragraph 77 as untrue.

78 Deny the allegations in paragraph 78.

79 Deny for the reason that not all the persons listed were present.

80 Deny the allegations in paragraph 80.

81-83 Admit the allegations in paragraphs 81 through 83.

84 Admit that those present left plaintiff’s property but deny the remaining

allegations.

85 Admit that Garst’s property is the first property that enforcement actions

have been taken against under the dangerous building ordinance for the

reason that the dangerous building ordinance has only recently been

adopted.

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.69 Page 7 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-8- Fax: 517.467.4044

86 Admit a meeting was held on April 29, 2009 to discuss various issues.

87 Admit the allegations in paragraph 87.

88 Admit that no notice of a special township meeting was posted for the

reason that there was no special meeting of the township board.

89 Admit that a memo was drafted to Garst to determine whether there was

any interest in negotiating a settlement of the various claims of the parties

including the site plan and dangerous building matters. This was nothing

more than an effort to determine if a negotiated settlement would be

possible and was not an official act of the Township nor were terms

contained therein binding on the Township.

90-99 Admit the allegations in paragraphs 90 through 99.

100-104 Deny the allegations in paragraphs 100 through 104.

105 Neither admit nor deny as paragraph 105 is not an allegation of fact but

a statement of law.

106-109 Deny the allegations in paragraphs 106-109.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

COUNT I

Claims Under 42 U.S.C. §1983

110 Incorporate by reference paragraphs 1 through 109.

111-120 Deny the allegations in paragraphs 111 through 120.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.70 Page 8 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-9- Fax: 517.467.4044

COUNT II

Violation of 42 U.S.C. §1985(3)

121 Incorporate by reference paragraphs 1 through 121.

122-126 Deny the allegations in paragraphs 122 through 126.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

COUNT III

Violation of 42 U.S.C. §1986

127 Incorporate by reference paragraphs 1 through 126.

128-131 Deny the allegations in paragraphs 128 through 131.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

COUNT IV

Superintending Control

132 Incorporate by reference paragraphs 1 through 131.

133-136 Deny the allegations in paragraphs 133 through 136.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

COUNT V

Violation of Michigan Freedom of Information Act

MCL 15.231 et seq.

137 Incorporate by reference paragraphs 1 through 136.

138-142 Deny the allegations in paragraphs 138 through 142.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.71 Page 9 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-10- Fax: 517.467.4044

COUNT VI

Violation of the Michigan Open Meetings Act

MCL 15.261 et seq.

143 Incorporate by reference paragraphs 1 through 142.

144-147 Deny the allegations in paragraphs 144 through 147.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

COUNT VII

Violation of Michigan Right To Farm Act

MCL 286.741 et seq.

148 Incorporate by reference paragraphs 1 through 147.

149-155 Deny the allegations in paragraphs 149 through 155 as miss numbered

allegations 150 through 155.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

COUNT VIII

Defamation

156 Incorporate by reference paragraphs 1 through 155.

157-162 Deny the allegations in paragraphs 157 through 162.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

AFFIRMATIVE DEFENSES 

Defendants by their attorneys, Lucas Law, PC, state the following affirmative

defenses to the complaint: 

1. The complaint in the above captioned cause fails to state a claim upon

which relief can be granted.

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.72 Page 10 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-11- Fax: 517.467.4044

2. The claims of plaintiffs are barred by the applicable statute of limitations,

by the equitable doctrine of laches and unclean hands.

3. The claims of plaintiffs against defendants, are barred by the doctrine of

governmental immunity. MCL 691.1401 et seq., MSA 3.996 (101) et seq.

4. Plaintiffs have failed to exhaust all administrative remedies and hence the

claims set forth in the complaint are not ripe.

5. Some or all of the damages claimed by plaintiffs are not recoverable

under applicable law.

6. Plaintiffs failed to mitigate damages.

WHEREFORE, defendants, pray this court dismiss the complaint and award them

costs and attorney fees.

RELIANCE ON JURY DEMAND

Defendants, demand a trial by jury in the above captioned matter and rely upon the

jury fee previously paid by plaintiffs

Dated: July 30, 2009 s/Frederick Lucas 

Frederick Lucas (P29074)

Lucas Law, PC

7577 US Highway 12, Suite A

Onsted, MI 49265

Telephone: 517-467-4000

Primary E-mail: lucas@lucaslawpc.com

Secondary E-mail: donna@lucaslawpc.com

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.73 Page 11 of 12
Lucas Law, PC

Attorney at Law

7577 US Highway 12, Suite A

Onsted, Michigan 49265

Telephone: 517.467.4000

-12- Fax: 517.467.4044

CERTIFICATE OF SERVICE

I hereby certify that on July 30, 2009, I electronically filed the foregoing paper with

the Clerk of the Court using the ECF system which will send notification of such filing to the

following: Cindy Victor.

s/Frederick Lucas 

Frederick Lucas (P29074)

Lucas Law, PC

7577 US Highway 12, Suite A

Onsted, MI 49265

Telephone: 517-467-4000

Primary E-mail: lucas@lucaslawpc.com

Secondary E-mail: donna@lucaslawpc.com

Case 2:09-cv-12561-BAF-MKM ECF No. 5 filed 07/30/09 PageID.74 Page 12 of 12