Estate of Tukoyo Moore v. City of Warren

• Court: District Court, E.D. Michigan
• Decided: January 16, 2024
• Docket: 4:21-cv-12267
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

ESTATE OF TUKOYO MOORE, et al, Case No. 21-12267 Plaintiffs, F. Kay Behm V. United States District Judge CITY OF WARREN, et al, Defendants. a ORDER FOR SUPPLEMENTAL BRIEFING The court has reviewed the parties’ submissions regarding their cross-

motions for summary judgment and Plaintiffs’ motion to dismiss the counterclaim

(ECF Nos. 53, 60, 63) and ORDERS the parties to submit supplemental briefs on

the following issues.

A. As to Plaintiffs’ Fifth Amendment Takings Clause claim, Defendants

move under Rule 12(b)(6) but rely on evidence outside the amended complaint. Should the court convert this aspect of Defendants’ motion to a motion for summary judgment under Rule 56? See Wershe v. City of Detroit, 2023 WL

6096558, at *3 (E.D. Mich. Sept. 18, 2023) (“Generally, if a court considers matters

outside of the pleadings, the motion must be converted into one for summary judgment under Rule 56.”) (citing Ashh, Inc. v. All About It, LLC, 475 F. Supp. 3d

676, 679 (E.D. Mich. 2020)). Do Defendants contend that the documents cited fall

into an exception such that the motion need not be converted? Do Plaintiffs feel

they need to provide any supplemental response if the motion is converted?

B. Defendants claim have followed the procedure under Mich. Comp. Laws § 333.7523, which on its face, only applies to properly valued under $50,000. The value of the property here exceeds $50,000. If the procedure set forth in

Mich. Comp. Laws § 333.7523 is not the applicable process to be followed in

forfeiture cases where the value of the property exceeds $50,000, what is the

appropriate procedure, was it followed here, and has it been completed? C. “Tit is well settled that only admissible evidence may be considered

by a trial court in ruling on a motion for summary judgment.” See Wiley v. United

States, 20 F.3d 222, 226 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)); see also Daily Press, Inc. v. United Press

Int'l, 412 F.2d 126, 133 (6th Cir. 1969) (stating that hearsay evidence cannot be

considered on a motion for summary judgment). Evans testified that Moore

regularly counted the money in front of her and the last time he counted it in

front of her was about a week before his murder. (ECF No. 60-6, pp. 19-20). At

that time, Moore said it totaled $200,000. (ECF No. 60-6, p. 55). Is Moore’s

statement inadmissible hearsay? See e.g., Madison America, Inc. v. Preferred

Med. Sys., LLC, 548 F. Supp. 2d 567, 577 (W.D. Tenn. 2007) (finding that a witness’

deposition testimony regarding statements from his conversations with

prospective customers were inadmissible hearsay and could not be considered in

ruling on a motion for summary judgment); Kouider on behalf of Y.C. v. Parma City Sch. Dist. Bd. of Educ., 480 F. Supp. 3d 772, 782 (N.D. Ohio Aug. 19, 2020) (holding that a witness’ deposition testimony regarding a specific statement from a

conversation with her sister was inadmissible hearsay and could not be considered

in ruling on a motion for summary judgment). Additionally, the court ORDERS Defendants to provide record citations or

supporting evidence for the following factual assertions:

1. Having received no written claims, this currency was removed from

the Warren Police Department Property Room and delivered to the City of Warren

Treasurer where it was again counted and placed into the custody of the Treasurer

pursuant to Mich. Comp. Laws § 333.7523(d) and § 333.7524(b). 2. The Estate of Tukoyo Moore was not filed until December 8, 2020, which was after completion of the forfeiture publication. 3. All property listed in 4 11 of the amended complaint is classified as

“Evidence” pursuant to Procedure 20-47.

4. There has been no determination by the Prosecuting Attorney that

the property has no evidentiary value, a determination by a court of competent jurisdiction, or the Officer in Charge with approval of the Commissioner.

The supplemental briefs are due by Friday January 19, 2024 and may not

exceed 15 pages in length. SO ORDERED.

Date: January 16, 2024 s/F. Kay Behm F. Kay Behm United States District Judge