Cacevic v. City of Hazel Park

226 F.3d 483
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 1, 2000
DocketNo. 99-1030
StatusPublished
Cited by225 cases

This text of 226 F.3d 483 (Cacevic v. City of Hazel Park) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cacevic v. City of Hazel Park, 226 F.3d 483 (6th Cir. 2000).

Opinion

GILMAN, Circuit Judge.

The owners of a bar brought suit under 42 U.S.C. § 1983, alleging that frequent “bar checks” by the local police constituted harassment that deprived the owners of their constitutional rights under the First, Fourth, and Fourteenth Amendments. In replying to the defendants’ motion for summary judgment, the owners filed a non-substantive response that requested the district court to deny the motion for reasons that they asserted would be set forth in a subsequent filing. Although it did not grant the owners’ request, the district court permitted the owners additional time to respond to the defendants’ motion. A timely response, however, was never filed.

After the district court granted summary judgment in favor of the defendants, the owners filed a motion for relief pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure. They asserted that their failure to file a timely response to the summary judgment motion was due to mistake, inadvertence, or excusable neglect. The district court denied relief. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. The Cacevics’ complaint and the taking of Chief Sadow’s deposition

George and Deda Cacevic are the owners of Checkers Bar & Grill, Inc., doing business as Derby’s Bar in Hazel Park, Michigan. On May 1, 1998, the Cacevics and Checkers (collectively, the Cacevics) brought suit under 42 U.S.C. § 1988 against the -City of Hazel Park, the Hazel Park Police Department, Hazel Park Chief of Police Albert Sadow, and other unidentified Hazel Park police officers. In their complaint, the Cacevics allege a pattern of harassment by Chief Sadow and his officers. Specifically, they contend that the Hazel Park police performed an “inordinate” amount of bar checks, which the Cacevics assert were intended to “intimidate and harass both the patrons and the owners” of Derby’s Bar. The Cacevics also maintain that Chief Sadow unduly delayed the renewal of their business license. In addition to the § 1983 claims, the Cacevics alleged violations of the Michigan Consti[486]*486tution. The defendants denied engaging in any acts of intimidation or harassment, and asserted that their actions were justified because of an increased level of criminal activity occurring in or around Derby’s Bar.

On June 6,1998, the district court issued a routine scheduling order, which provided that all discovery was to be completed by October 31, 1998. The Cacevics originally scheduled Chief Sadow’s deposition for June 23, 1998, but were informed by defense counsel that he was out of state until late August of that year. They then rescheduled his deposition, first for September 10, 1998 and later for September 23, 1998. Both dates were subsequently can-celled by the Cacevics. Chief Sadow’s deposition was finally taken in part on October 5, 1998 and completed on October 21, 1998.

B. Motion for summary judgment

In the meantime, the defendants moved for summary judgment on September 3, Í998, arguing that the bar checks to which the Cacevics objected were undertaken because Derby’s Bar “ha[d] been the source of complaints of rowdy and malicious behavior,” and not “in retaliation for the exercise of any constitutional right.” On September 21, 1998, the Cacevics filed what they described as a “preliminary non-substantive response” to the defendants’ summary judgment motion. (In the United States District Court for the Eastern District of Michigan, “[a] .response to a dispositive motion must be filed within 21 days after service of that motion.” E.D. Mich. L.R. 7.1(d)(1)(B).) The three-page filing, however, mainly consisted of various denials of the allegations and arguments made in the defendants’ brief. It also included the following statements:

[The Cacevics] further state that if given the opportunity to conduct discovery and factual development they will easily satisfy the requirements for a cause of action for a violation of the Michigan Constitution.
WHEREFORE, and for the reasons to be set forth in [the Cacevics]’ Brief in Opposition to Motion for Summary Judgment to be filed at a future date, [the Cacevics] respectfully request that this Honorable Court deny Defendants [sic] Motion for Summary Judgment and award [the Cacevics] their attorneys fees so wrongfully sustained in defense of this Motion.

The district court declined the Cacevics’ request for an immediate denial of the defendants’ summary judgment motion and denied an award of attorneys’ fees. Instead, it extended the deadline for filing a responsive brief to October 18, 1998 and rescheduled the motion hearing for November 16, 1998. The Cacevics, however, did not meet the October 18, 1998 deadline. Having received no response from the Cacevics even two weeks later, the district court cancelled the impending hearing on November 3, 1998 and granted the defendants’ motion the following day.

In its November 4, 1998 memorandum opinion, the district court first noted that the Cacevics “have not responded to Defendants’ Motion, despite this Court’s Order extending their response time to October 18, 1998.” Then, citing Carver v. Bunch, 946 F.2d 451, 455 (6th Cir.1991) (explaining that when a non-movant fails to respond to a motion for summary judgment, the district court must still “examine the movant’s motion ... to ensure that he has discharged [his] burden”), it proceeded to evaluate the merits of the Cacevics’ claims and the defendants’ arguments in response.

First, the district court rejected the Ca-cevics’ First Amendment claim, reasoning that they “have not produced evidence of any connection — much less retaliation — between the exercise of their allegedly protected First Amendment speech and Defendants’ actions.” Second, it ruled that the Cacevics’ Fourth Amendment cause of action was without merit because “Derby’s Bar is a commercial property held open to [487]*487the public, with little expectation of privacy,” and because the Cacevics “failed to produce evidence of any actual searches or seizures, instead relying on their claim of ‘unjustified presence.’ ” Third, the district court rejected both the Cacevics’ procedural and substantive due process claims under the Fourteenth Amendment, holding that they could not demonstrate a protected property interest, could not show a deprivation of any liberty interest, and that their claims could not fit within either of the two types of substantive due process claims available under Sixth Circuit precedent. Fourth, it ruled that their Fourteenth Amendment equal protection cause of action fails, in part because they “have not shown that they belong to any class receiving heightened protection, nor can they demonstrate a violation of a fundamental right.” Finally, the district court concluded that, for the reasons set forth in discussing the Cacevics’ federal claims, their Michigan Constitution causes of action were likewise without merit.

C. Motion for relief

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Bluebook (online)
226 F.3d 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cacevic-v-city-of-hazel-park-ca6-2000.