Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  July 29, 2011                                                                      Robert P. Young, Jr.,
                                                                                               Chief Justice

  142324                                                                             Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
  LEE M. KHAN, a/k/a LEE M. KAHAN,                                                       Brian K. Zahra,
            Plaintiff-Appellee,                                                                     Justices

  v                                                       SC: 142324
                                                          COA: 293991
                                                          Genesee CC: 08-089357-CZ
  CITY OF FLINT,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the application for leave to appeal the December 7, 2010
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we REVERSE that part of the Court of Appeals
  judgment addressing plaintiff’s federal constitutional claim. The Genesee Circuit Court
  correctly granted summary disposition of this claim, and we agree with that court’s
  reasons for doing so, as stated on the record. Plaintiff’s complaint makes no mention of
  42 USC 1983, which is the exclusive remedy for alleged federal constitutional violations,
  including those pertaining to the deprivation of due process under the Fourteenth
  Amendment, Monell v New York City Dep’t of Social Serv, 436 US 658, 663 (1978), nor
  does it allege that the injury here was caused by the city’s “policy or custom.” Oklahoma
  City v Tuttle, 471 US 808, 823-824 (1985). Further, plaintiff’s complaint makes no
  mention of the federal and state “takings” clauses. Finally, plaintiff has admitted
  (possibly in error) that he had actual notice of the demolition, yet has undertaken no steps
  to set aside this admission. Therefore, we REMAND this case to the Genesee Circuit
  Court for reinstatement of the order granting summary disposition to the defendant.

         MARILYN KELLY, J. (dissenting).

         I would deny leave to appeal. I believe the Court of Appeals was correct that a
  jury question exists in this case concerning whether plaintiff’s constitutional rights were
  infringed.

         Plaintiff was entitled to due process of law before the city demolished his
  property. The city was required to give him notice of the planned demolition
  “‘reasonably calculated, under all the circumstances, to apprise [him] of the pendency of
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the action and afford [him] an opportunity to present [his] objections.’”1 Thus the two
due process requirements that the city had to meet were (1) notice and (2) an opportunity
to be heard. The city has acknowledged that it never gave plaintiff notice, and in fact it
disciplined the employee whose responsibility it was to give him notice for neglect of her
duty.

       A legal fiction has allowed the city to claim that plaintiff received the notice he
never had. It arose from plaintiff’s failure to answer a request for admissions. The
request asserted that plaintiff had timely notice of the demolition. In accordance with the
court rules, the court deemed the notice admitted.

       The city contends that plaintiff had actual notice.2 “Actual notice” is defined as
“[n]otice given directly to, or received personally by a party.”3 What occurred in this
case was at best constructive notice.4 It did not meet the requirements of due process. I
can find no caselaw, and the city identifies none, that treated constructive notice as
adequate to establish actual notice and avoid the need for the opportunity for a hearing.5

1
 Dusenbery v United States, 534 US 161, 168 (2002), quoting Mullane v Central
Hanover Bank & Trust Co, 339 US 306, 314 (1950).
2
  The “[f]undamental requirements of due process are satisfied if a party received actual
notice.” Gillie v Genesee Co Treasurer, 277 Mich App 333, 356 n 12 (2007); United
States v Boudreau, 564 F3d 431, 438 (CA 6, 2009).
3
    Black’s Law Dictionary (8th ed), p 1090.
4
 “Constructive notice” is defined as “notice presumed by law to have been acquired by a
person and thus imputed to that person.” Id.
5
  The city cites several inapposite cases. But in each, the party had authentic actual
notice. As a consequence, none of them sheds light on the type of notice that exists in
this case. The cases are: Gillie, 277 Mich App at 354-356 (The defendant continued to
send tax bills to a home owned by the plaintiff, although the plaintiff had asked the
defendant to use his new out-of-state mailing address. The house ended up in foreclosure
and the defendant posted a foreclosure notice on the home. The court made no finding
about whether this constituted adequate notice. It simply stated the requirements for due
process and that, if actual notice is found, that is sufficient for due process.); Boudreau,
564 F3d at 438 (The defendant was served notice in open court. Despite his assertion
that this was not in compliance with the applicable statute, the court found that he had
actual notice.); West Covina v Perkins, 525 US 234, 241 (1999) (The property owner
actually knew his property had been seized, thus this was actual notice.); Whiting v
United States, 231 F3d 70, 74 (CA 1, 2000) (Forfeiture proceedings had been discussed
in the owner’s presence, thus this was actual notice.); United States v Williams, 41 F
Supp 2d 745, 747 (ND Ohio, 1998) (This case dealt only with the statutory notice
requirements for federal tax liens.).
                                                                                          3

Because plaintiff was not given notice and he had no actual notice, he was never given a
hearing. He was never even informed how to request a hearing.6 If for no other reason
than that the city failed to satisfy the hearing requirement of due process, it was
inappropriate for the court to dispose of this case through summary disposition.

        The majority believes that the case was properly dismissed because plaintiff failed
to cite 42 USC 1983 in his complaint or to allege that the injury had been caused by the
city’s “policy or custom.” But neither of these was required.7 Moreover, plaintiff’s
decision not to seek to have the admissions set aside is not grounds for refusing appellate
relief. Plaintiff did not admit, even constructively, that he was provided the opportunity
for a hearing.

        At page 3 of the complaint, plaintiff alleged a Fifth Amendment constitutional
violation. He recited the language of the amendment and asserted that defendant had
“wrongfully and intentionally deprived [him] of his property without notice or a hearing.”
Our court rules require that a complaint set forth “allegations necessary reasonably to
inform the adverse party of the nature of the claims the adverse party is called on to
defend[.]”8 While MCR requires that certain claims be pleaded with particularity, a
§ 1983 claim is not among them. And Michigan has no rule that requires a plaintiff to
cite a specific statutory provision in order to state a claim.9

        While I acknowledge that plaintiff’s complaint in this case was not drafted in the
most masterful fashion, it contained the minimum required information. Obviously the
city was not confused about what it had to defend against. Given that it responded to
plaintiff’s claim with a motion to dismiss the § 1983 claim, we know that it understood
what statute plaintiff relied on. In the event the city had found the complaint to be



6
 Khan v City of Flint, unpublished opinion per curiam of the Court of Appeals, issued
December 7, 2010 (Docket No. 293991), p 3.
7
    MCR 2.111(B) requires only that
                [a] complaint . . . contain . . . :
                (1) [a] statement of facts . . . on which the pleader relies in stating
         the cause of action, with the specific allegations necessary reasonably to
         inform the adverse party of the nature of the claims the adverse party is
         called on the defend; and
                (2) [a] demand for judgment . . . .
8
    MCR 2.111(B)(1).
9
    See Rymal v Baergen, 262 Mich App 274, 301 n 6 (2004).
                                                                                         4

ambiguous or too vague, it could have moved under MCR 2.115(A) for a “more definite
statement . . . .”10

       In addition, it is well established that our courts look beyond mere procedural
labels and read the allegations in a complaint as a whole to ascertain the nature of a
claim.11 That plaintiff stated a § 1983 claim is apparent from the fact that both lower
courts analyzed it as such.

       Moreover, under our court rules, a complaint is not required to assert that the city
violated its “policy or custom.” The complaint is not designed to narrow the issues.12
The narrowing is accomplished through “discovery, pretrial conference, and summary
judgment, combined with liberal amendments to pleadings, [which] are designed to carry
the burden of framing the particular issues to be tried.”13 In this case, there was an
outstanding issue of fact as to whether the city violated its policy.14

       If necessary, the trial court could have allowed plaintiff to amend the complaint.
MCR 2.118(A)(2) provides that leave to amend pleadings should be freely given when
justice requires it. In fact, it should be denied only for particularized reasons.15 This
Court has justified the denial of amendments for reasons such as undue delay, bad faith,
repeated failure to cure deficiencies by amendment, undue prejudice, or where
amendment would be futile.16 Otherwise amendment should be freely allowed.



10
   MCR 2.115(A) states: “If a pleading is so vague or ambiguous that it fails to comply
with the requirements of these rules, an opposing party may move for a more definite
statement before filing a responsive pleading.” See also Iron Co v Sundberg, Carlson &
Assoc, Inc, 222 Mich App 120, 124-125 (1997).
11
  Tipton v William Beaumont Hosp, 266 Mich App 27, 33 (2005); see also MacDonald v
Barbarotto, 161 Mich App 542, 547 (1987); Smith v Holmes, 54 Mich 104, 112 (1884).
12
  Simonson v Mich Life Ins Co, 37 Mich App 79, 83 (1971); Goins v Ford Motor Co,
131 Mich App 185, 195 (1983).
13
     Simonson, 37 Mich App at 83; see also Goins, 131 Mich App at 195.
14
   The city based its motion for summary disposition in part on its claim that it had not
violated its policy about giving notice. In response, plaintiff submitted an affidavit of
Councilwoman Jacqueline Poplar, which asserted that the mayor typically violated the
city’s policy in matters of this sort.
15
  See Miller v Chapman Contracting, 477 Mich 102, 105 (2007), citing Ben P Fyke &
Sons v Gunter Co, 390 Mich 649 (1973); see also MCR 2.118(A).
16
     Miller, 477 Mich at 105, citing Ben P Fyke, 390 Mich 649.
                                                                                                              5


       Summary disposition was inappropriate in this case, and the reasons the majority
has given for refusing to reverse it and rejecting the Court of Appeals’ decision are
inconsistent with the law. For these reasons, I respectfully dissent.

      HATHAWAY, J., would grant leave to appeal.




                        I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        July 29, 2011                       _________________________________________
       y0726                                                                Clerk
