                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0195n.06

                                Case Nos. 17-1564/17-2498/18-1085

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Apr 13, 2018
DAVID RAUB; WILLIAM RAUB,                           )                   DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiffs-Appellants,                       )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
MOON LAKE PROPERTY OWNERS’                          )       MICHIGAN
ASSOCIATION; GREENWOOD                              )
TOWNSHIP; THOMAS MCCAULEY;                          )
LINDA ARGUE; JAMES HAVRILLA;                        )
FRED LINDSEY; LARRY MATHIAS,                        )
                                                    )
       Defendants-Appellees.                        )

       BEFORE: SUHRHEINRICH, GRIFFIN, and THAPAR, Circuit Judges.

       THAPAR, Circuit Judge. David and William Raub own two plots of land in Moon Lake

Resort, a private subdivision in northern Michigan. Over ten years ago, they accused the

property owners’ association of building a pool that does not comply with the Americans with

Disabilities Act. Now they claim that the property owners’ association, the town, and the county

are engaged in a conspiracy to retaliate against them. The problem for the Raubs, however, is

that they already litigated their claims in state court or could have raised them at that time. The

district court thus summarily dismissed their case and ordered them to pay attorneys’ fees. We

now affirm.
Case Nos. 17-1564/17-2498/18-1085
David Raub, et al. v. Moon Lake Prop. Owners’ Ass’n, et al.

        Res Judicata. The Raubs did not contest the merits of the defendants’ res judicata

argument in the district court and have thus forfeited their right to do so on appeal. Scottsdale

Ins. Co. v. Flowers, 513 F.3d 546, 552–53 (6th Cir. 2008). So instead, they argue that the

defendants should have raised res judicata through Rule 12(b)(6) or Rule 12(c) when the Raubs

filed suit rather than waiting until summary judgment.

        We disagree.    Defendants are allowed to raise res judicata at summary judgment,

especially when the defense would not have been effective at the time the plaintiff filed suit. See

Westwood Chem. Co. v. Kulick, 656 F.2d 1224, 1227–28 (6th Cir. 1981). Such was the case

here, since two of the cases that precluded the Raubs’ claims did not reach a final decision until

months after the Raubs filed their complaint. See Richards v. Tibaldi, 726 N.W.2d 770, 776

(Mich. Ct. App. 2006) (res judicata defense is not effective until preclusive lawsuit becomes

final); see also Heyliger v. State Univ. & Cmty. Coll. Sys. of Tenn., 126 F.3d 849, 851–52 (6th

Cir. 1997) (holding that federal court should apply state law to determine preclusive effect of

prior state-court judgment). It was thus entirely permissible for the defendants to raise res

judicata when they moved for summary judgment. Westwood, 656 F.2d at 1227–28. And the

defendants’ motions for summary judgment should not have come as a surprise to the Raubs,

since each defendant listed res judicata as an affirmative defense and referenced the pending

state cases in their answers. Accordingly, the district court did not err in dismissing the Raubs’

suit.

        Discovery. The Raubs also argue that the district court improperly limited discovery

when it granted the defendants’ motions for protective orders. The Raubs point out that the

defendants filed these motions late, and that the protective orders prevented the Raubs from

accessing almost all of the electronically stored information they requested. Courts of appeals do


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Case Nos. 17-1564/17-2498/18-1085
David Raub, et al. v. Moon Lake Prop. Owners’ Ass’n, et al.

not second guess discovery decisions like these lightly. So to succeed on this argument, the

Raubs have to show that the district court abused its discretion and that they suffered substantial

prejudice as a result. Scales v. J.C. Bradford & Co., 925 F.2d 901, 906 (6th Cir. 1991). The

Raubs make no attempt to explain how the district court’s decisions prejudiced their ability to

ward off a motion for summary judgment based on res judicata. Indeed, every discovery request

the Raubs point to on appeal was aimed at uncovering evidence of the defendants’ alleged

wrongdoing—which, of course, is irrelevant to the question of whether the parties had already

adjudicated the Raubs’ claims in state court. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar

Ass’n, 142 F.3d 26, 44–45 (1st Cir. 1998). We therefore decline to reverse the district court on

this ground.

       In addition, the Raubs claim that the district court’s decision to limit discovery violated

their constitutional right to due process. But they do not point to a single case supporting the

proposition that denying a litigant’s discovery request in this context violates the Fifth

Amendment. Since it is not enough to mention an argument in passing and leave the court to

“put flesh on its bones,” the Raubs have forfeited this claim. Brenay v. Schartow, 709 F. App’x

331, 336–37 (6th Cir. 2017) (citation omitted).

       Attorneys’ Fees.     The Raubs also appeal the district court’s decision to award the

defendants attorneys’ fees. First, they argue that the defendants filed their fee requests after the

fourteen-day deadline set out in the Federal Rules of Civil Procedure and thereby waived their

right to collect. See Fed. R. Civ. P. 54(d)(2)(B). The Eastern District of Michigan, however,

allows litigants double that amount of time. E.D. Mich. R. 54.1.2. And all of the defendants

filed their requests within twenty-eight days of the district court’s final judgment.




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Case Nos. 17-1564/17-2498/18-1085
David Raub, et al. v. Moon Lake Prop. Owners’ Ass’n, et al.

         The Raubs urge us to set the local rule aside because it “impermissibly” conflicts with the

federal one. But district courts are allowed to establish their own timeliness standards for fee

requests regardless of the federal rule’s fourteen-day deadline. Stallworth v. Greater Cleveland

Reg’l Transit Auth., 105 F.3d 252, 257 (6th Cir. 1997); see also Planned Parenthood of Cent.

N.J. v. Att’y Gen. of N.J., 297 F.3d 253, 260–61 (3d Cir. 2002) (holding that district courts can

extend the deadline by local rule, and noting that the Fifth, Seventh, Ninth, and Eleventh Circuits

have held the same). So the local rule is valid and the defendants’ requests were timely.

         Next, the Raubs claim that the defendants are not entitled to fees because they multiplied

the litigation for strategic purposes and are not prevailing parties under the relevant fee-shifting

statutes. See 42 U.S.C. §§ 1988(b), 12205. The Raubs did not raise either of these arguments in

their objections to the magistrate judge’s report and recommendation. As such, they have

forfeited their right to do so on appeal. United States v. Sullivan, 431 F.3d 976, 984 (6th Cir.

2005).

         Finally, the Raubs argue that the district court abused its discretion when it denied their

Rule 59 motion to amend the attorneys’ fee order. Curiously, the Raubs dedicate their briefing

on this point to challenging the district court’s decision to grant summary judgment. Since none

of the Raubs’ summary-judgment arguments are relevant to the question of attorneys’ fees, the

Raubs’ Rule 59 challenge fails.

         For these reasons, we AFFIRM the district court’s orders.




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