FDD Federal Class Action Progress

Class Action Complaint Filed and Case Moving Forward

On October 20, 2017, Attorneys Irvin Mermelstein of Ann Arbor and Dan O’Brien of Rochester, N.Y. filed a federal class action arising out of the City of Ann Arbor’s Footing Drain Disconnection Program. The case was filed in United States District Court for the Eastern District of Michigan in Detroit.

The case name is Lynn Lumbard, et al., on behalf of themselves and all residents others similarly situated, vs City of Ann Arbor.

This a link to the Complaint with Exhibits:

https://www.dropbox.com/s/308dgplue34pg37/Lumbard%20v%20City%20of%20Ann%20Arbor–Complaint%2BExhibits.pdf?dl=0

The City was served on November 27, 2017. The case is before US District Court Judge Hon. Stephen J. Murphy III.

The members of the “putative” class (that is, before certification of the the class by the District Court) are owners of one or two family homes in the City of Ann Arbor where footing drain disconnections were completed under the City’s FDD program. Certification of the Class by the District Court is requested in the Complaint.

The Complaint is, for the most part, not written in legalese. It states that FDD homeowners have Constitutional rights that have been violated for years. The Complaint alleges that FDDs were mandatory and destructive. It alleges that the City authorized permanent physical installations on private property for a public use, the operation of the City’s public sewers.

It alleges that the City’s failure to pay for the use and occupation of private homes for such a public purpose, without “Just Compensation,” violated and violates the rights of the owners under the Fifth Amendment to the United States Constitution. This prohibition is known as the Takings Clause (“nor shall private property be taken for public use, without just compensation.”)

It also alleges that, in late 1973, the City Council passed Ordinance 8-73, which grandfathered all or most of the homes where FDDs have been completed against later disconnection requirements. If your home was built with connected footing drains before November 1973, the Complaint alleges that you had vested rights going back 45 years to be left alone by the City.

The Complaint’ s allegations state that the City’s requirement imposed on owners to operate and maintain FDD installations solely for the benefit of the public, without pay or reimbursement for their costs, violates federal law.

It also alleges that the City deprived homeowners of their Constitutionally guaranteed rights under the 14th Amendment without due process of law or the equal protection of law.

City of Ann Arbor Motion to Dismiss

On December 15, 2017, the City filed its Motion to Dismiss all of the Plaintiffs’ claims. Here’s a link:

https://www.dropbox.com/s/38k5xsrs72rid0n/City%20Motion%20to%20Dismiss.pdf?dl=0

The City’s principal argument is that Class Plaintiffs “chose” to have their footing drains disconnected voluntarily, that they “chose” to “participate” in the FDD Program and then somehow came to “own” the physical installations in their homes, rather than their being an occupation of private real estate, without payment for it, authorized by the City. The City argues that, as a result, FDDs belong to the homeowner, not the City, and it is the owners’ “responsibility” to care for their “own” FDD installation.

The Homeowners Respond to the City

On January 5, 2018, the homeowner plaintiffs opposed the City’s Motion to Dismiss by filing their Memorandum of Law with the Court. Here is a link to the Brief without exhibits:

https://www.dropbox.com/s/314kdkriqdf65vp/Brief%20in%20Opposition%20to%20City%27s%2012%28b%29%286%29%20Motion%20–Filed–Brief%20Only.pdf?dl=0

This document explains the City’s arguments, analyzes them and rejects them. The homeowners reject any notion that they chose footing drain disconnection or ever became “owners” of installations they did not want or need.

The hearing on the City’s Motion to Dismiss is scheduled for March 14, 2018, at the Federal Courthouse in Detroit. We will provide further details and encourage homeowners to attend.

In the meantime, please share this post with others and leave us any comments you have.



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