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2:12-cv-15236-RAE-TPG Doc # 1 Filed 11/28/12 Pg 1 of 10 Pg ID 1

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION



KRISTY J. DOWNING,













Case No. 2:12-cv-15236

To be assigned

Jury Trial















v.









Plaintiff,








HON. PATRICK J. DUGGAN









Defendant.


















______________________________/









KRISTY J. DOWNING (P 67122)
172 Carson Dr.
Westland, Michigan 48185
(248) 982-3925

PATRICK J. DUGGAN
18917 Monica Dr.
Clinton Township, Michigan 48036-2168
P (506) 468-2183

______________________________/





COMPLAINT



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1.

Plaintiff, Kristy J. Downing, resides in Westland, Michigan in the County of

Parties

Wayne.

2.

Defendant, Patrick J. Duggan, hereinafter referred to as “Defendant,” resides in

Clinton Township, Michigan.



Jurisdiction and Venue

3.

Venue is proper in the federal courts for the State of Michigan because the

relevant events occurred within the State of Michigan. Jurisdiction is also proper in the federal

courts for the State of Michigan at least under U.S. CONST. ART. 3 and 28 U.S.C. § 1331.

Summary of Facts Nature of the Complaint

4.

Between March of 2010 and May of 2011, Defendant presided over a pending

litigation Downing v. Lifetime Fitness, 2:10-cv-11037. Downing v. Lifetime Fitness is a

litigation that began in small claims court for the State of Michigan. The original complaint was

filed on November 20, 2009. The original complaint was amended on January 07, 2010 to

include federal claims. Exhibit A (Amended Complaint in Downing v. Lifetime Fitness). Those

federal claims included but were not limited to claims of racial and sex harassment and

discrimination. Exhibit A, para 14-16.

5.

On January 18, 2010, Lifetime Fitness answered Plaintiff’s amended complaint.

Exhibit B (Answer to Amended Complaint in Downing v. Lifetime Fitness).

6.

Lifetime Fitness thereafter terminated Plaintiff’s membership in retaliation for

Plaintiff’s lawsuit on February 17, 2010. Exhibit C (Lifetime Fitness termination letter).

Lifetime’s termination letter coincided with Plaintiff’s attendance to a hearing for Plaintiff’s

 

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motion to amend the complaint. Exhibit D (hearing transcript for Downing v. Lifetime Fitness in

35th District Court for the State of Michigan).

7.

The same week Plaintiff moved for a preliminary injunction. Exhibit E, 35th

District Court Register of Actions. The case was then transferred to Third Circuit Court for the

State of Michigan. Id. Plaintiff re-filed a motion for preliminary injunction in circuit court. On

March 15, 2010, Lifetime Fitness filed a motion to remove the litigation to federal court before

Plaintiff’s motion for preliminary injunction could be decided in state court.

8.

Defendant was awarded the case when it was removed to federal court. Plaintiff,

noticing that the removal was untimely, filed a motion to remand the action back to state court.

Pursuant to 28 U.S.C. §1446(b) Defendant was without removal jurisdiction because Lifetime

had filed a notice to remove more than 30 days from receipt of Plaintiff’s Amended Complaint.

Still, Defendant denied Plaintiff’s motion to remand and continued to preside over the matter

without removal jurisdiction.

9.

On August 05, 2010, Plaintiff once again moved for a preliminary injunction to

restore the pre-litigation status quo in Downing v. Lifetime Fitness. D v. LTF Case Doc 22.

Defendant, however, denied Plaintiff full and fair consideration of the law and facts ultimately

denying Plaintiff a preliminary injunction. Exhibit G.

10.

Relying in-part on a misconstruction of laws and facts in his preliminary

injunction order, Defendant followed the same suit in granting Lifetime’s motion for summary

judgment with respect to every single claim Plaintiff filed. Exhibit H.

11.

Plaintiff was not prepared to argue summary judgment at least because Lifetime

had acted unfaithfully in producing its share of information during discovery. D v. LTF Case

Doc 115. Lifetime’s hide-the-ball tactics included fabricating a story that one of its employees

 

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was unavailable for deposition. Fifty four days before Defendant decided summary judgment,

Plaintiff objected to the magistrate’s order denying Plaintiff’s motion to compel with respect to

Lifetime’s employee Sandy Schmidt. Id. Plaintiff also filed a motion for stay of summary

judgment until the witness was produced. Id. Defendant abandoned equity, good reasoning and

all sense of fairness to deny Plaintiff’s motions in this regard as well, thus shielding Lifetime

from its discovery obligations in Downing v. Lifetime.

12.

In sum, because Plaintiff’s claims alleged race and sex discrimination Defendant

manufactured removal jurisdiction and ignored Plaintiff’s valid contest of the same thus

notifying Defendant that removal was improper, only to thwart Plaintiff’s ability to obtain a

preliminary injunction, decent discovery, unbiased interpretation of the facts and any sort of just

resolution of the matter.

13.

Throughout the course of the litigation Defendant knowingly made incorrect

factual statements regarding Downing v. Lifetime. Those factual inaccuracies favored Lifetime

and disfavored Plaintiff. Said inaccuracies, for example, include whether or not Plaintiff was

arrested for trespass for the second time on February 27, 2010, which never occurred. On

February 27, 2010, Canton Police refused to pursue Lifetime’s trespass request based on a false

advertisement one of Lifetime’s employees sent Plaintiff via e-mail and an appointment he’d

made with Plaintiff over the phone the day before to discuss membership promotions Lifetime

was having. On March 12, 2010, in response to another one of Lifetime’s false advertisements,

Plaintiff was arrested for trespass for a second time after flagging down the police while leaving

the building and, of course, Plaintiff had never been asked to leave by that police officer.

Defendant did so, in-part, to conceal the abusive behavior of Lifetime and its agents. Exhibit G,

page 6; Exhibit H, page 6.

 

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14.

Defendant also refused to consider facts in his decision on summary judgment.

Plaintiff submitted Plaintiff’s Memorandum on Defendant’ Fitness Exams in opposition to

Lifetime’s motion for summary judgment. Instead of considering the contents of Plaintiff’s

Memorandum, Defendant refused to consider it citing FRE 701. Plaintiff’s Memorandum

indicated the availability of admissible evidence and Lifetime never made a Fed. R. Civ. P. 56(c)

objection to its consideration. Exhibit H, pgs. 14-15.

15.

Throughout the course of the litigation Defendant also knowingly and

condescendingly made incorrect legal statements regarding Downing v. Lifetime. Those legal

inaccuracies favored Lifetime and disfavored Plaintiff. Said inaccuracies, for example, include

Defendant’s fabrication of removal jurisdiction in Downing v. Lifetime Fitness. Ex. F.

? Removal Jurisdiction Did Not Exist in Downing v. Lifetime Fitness

16.

Insanely enough, section 1446 of the 28th Code provides procedures for removal:

Procedure for removal

(b) The notice of removal of a civil action or proceeding shall be
filed within thirty days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or
proceeding is based, ...

(3) []if the case stated by the initial pleading is not removable, a
notice of removal may be filed within 30 days after receipt by
defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it
may first be ascertained that the case is one which is or has
become removable.

(2002)(emphasis added).

17.

The central purpose of the 30-day time constraint is so that a defendant has

adequate access to a removable complaint so as to have an opportunity to ascertain whether the

case is of the nature that can be heard in federal court. See e.g., Murphy Bros., Inc. v. Michetti

Pipe Stringing, Inc., 526 U.S. 344, 351 (1999). It is without reasonable question that Lifetime

 

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Fitness had an opportunity to appreciate this characteristic in Downing v. Lifetime Fitness after it

received Plaintiff’s Amended Complaint at least because Lifetime answered the Amended

Complaint on January 18, 2010. Exhibit B. Thus, at least at that time Lifetime had performed its

due diligence on the Amended Complaint assessing each new claim and its implications on

federal question jurisdiction. Moreover, Lifetime’s counsel indicated that it was of the

impression that the Amended Complaint had already been filed weeks prior to the date of the

hearing on Plaintiff’s motion to amend. Exhibit D.

18.

During the February 17, 2010, hearing on Plaintiff’s Motion to Amend her

Complaint, Defendant literally characterized said motion to amend as being “ultimately…

futile.” Exhibit D – Transcript from 35th District Court, pp3-4.

The Court:

So, Counsel, do you got an objection in allowing

the Plaintiff to amend her complaint?

Mr. Kostello: Uh, no, Your Honor, frankly, we were, it was
our understanding the amended complaint had already been filed. And,
it looks like it has. So, based –

The Court:

I’ve read it today, um, before I figured out that
there was a hearing on whether we were going to allow an amended
complaint. So, I have – it makes sense just to allow the amended
complaint, and I will.

Mr. Kostello: That’s fine. My only objection would be that
it’s ultimately going to be futile, but, for the purpose of today, that’s fine,
Your Honor.

On February 17, 2010, 31 days after it answered Plaintiff’s amended Complaint, Lifetime stated

that it was of the understanding that “the amended complaint had already been filed,” yet it had

not removed the action.

19.

Defendant in his removal order made it appear that Lifetime had been waiting for

grant of Plaintiff’s motion to amend to remove the case to federal court. Ex. F, p 2. However,

this is untrue and irrelevant. First Lifetime’s counsel’s statements clearly indicate that Lifetime

 

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was of the impression that the Amended Complaint was filed as it was on January 07, 2010.

Exhibit D. Even if the Amended Complaint was not filed, which it had been, it constituted an

“other paper” that would have indicated the removability of the case to federal court on the date

of its receipt by Lifetime – January 08, 2010. 28 U.S.C. § 1446(b)(3). Thus receipt of the

Amended Complaint tolled removal. This was also discussed during oral arguments for

Plaintiff’s motion to remand but ignored by Defendant.

20.

Defendant’s Order on remand condescendingly cites inapplicable/distinguishable

cases. Ex. F (Opinion) at 2. Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405, 409-

410 (6th Cir. 2008)(separate complaints were filed to avoid federal question jurisdiction not give

notice of the same; the court explicitly states that the opinion is limited to circumstances where

complaints are separately filed to avoid damages amounts that in the aggregate would create

federal question jurisdiction); Stuart v. Vill. Of New Haven, 2009 U.S. Dist. LEXIS 109499 (E.D.

Mich 2009)(where the state law claims were remanded thus remand was supported and an

amended complaint that was not filed or served until after the motion to amend was granted);

and May v. J.D. Candler Roofing Company, Inc., 2005 U.S. Dist. LEXIS 43128 (E.D. Mich.

2005)(Plaintiff’s motion to remand was actually granted, thus remand was supported, based on

deposition testimony and complaint filings that gave Defendant sufficient notice of the

removability of the claims before the contested order granting Plaintiff’s motion to amend).

Claim 1 – Plaintiff’s Due Process and Free Speech Entitlements under the U.S.

Constitution Were Offended by Judge Duggan’s Orders in Downing v. Lifetime Fitness

Plaintiff repeats and realleges the allegations in Paragraphs 1 through 20 of this

21.

Complaint.

 



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22.

Defendant did violate Plaintiff’s rights to Due Process under the Fourteenth

Amendment of the U.S. Constitution in Downing v. Lifetime Fitness at least in violation of 42

U.S.C. §1983 (1871).

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.

Also, in considering the content of Plaintiff’s claims in Downing v. Lifetime and

23.

allowing the type of claim to govern the manner with which he adjudicated the case Defendant

did violate Plaintiff’s rights to Free Speech under the First Amendment of the U.S. Constitution

in violation of 42 U.S.C. §1983 (1871)(“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances”).

Claim 2 – Plaintiff’s Due Process and Free Speech Entitlements under the Michigan
Constitution Were Offended by Judge Duggan’s Orders in Downing v. Lifetime Fitness

Plaintiff repeats and realleges the allegations in Paragraphs 1 through 23 of this



24.

Complaint.

25.

Defendant did violate Plaintiff’s rights to Due Process under Article I, § 17 of the

Michigan Constitution in Downing v. Lifetime Fitness. Mich. Const. Art. I, § 17 (1963)

No person shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty or property, without due process
of law. The right of all individuals, firms, corporations and voluntary
associations to fair and just treatment in the course of legislative and
executive investigations and hearings shall not be infringed.

Also, in considering the content of Plaintiff’s claims in Downing v. Lifetime and

26.

allowing the type of claim to govern the manner with which he adjudicated the case Defendant

 

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did violate Plaintiff’s rights to Free Speech under Article I, § 5 of the Michigan Constitution.

Mich. Const. Art. I, § 5 (1963)(“Every person may freely speak, write, express and publish his

views on all subjects, being responsible for the abuse of such right; and no law shall be enacted

to restrain or abridge the liberty of speech or of the press.”).

Claim 3 – Intentional and Reckless Infliction of Emotional Distress

27.

Plaintiff repeats and realleges the allegations in Paragraphs 1 through 26 of this

Complaint.

28.

By manufacturing removal jurisdiction and ignoring Plaintiff’s valid contest of

the same, thwarting Plaintiff’s ability to obtain a preliminary injunction, decent discovery,

unbiased interpretation of the facts and any sort of just resolution of the matter Defendant

engaged in extreme and outrageous conduct that was intended to cause Plaintiff severe emotional

distress. Atkinson v. Farely, 171 MichApp 784, 788, 431 NW2d 95 (1988); See also Dickerson

v. Nichols, 161 MichApp 103, 409 NW2d 741 (1987)(incorporating Restatement (Second) of

Torts §46).



Jury Demand

29.

Plaintiff respectfully demands a trial by jury on all issues so triable.

Prayer for Relief

WHEREFORE, Plaintiff requests that this court grant the following relief:

1.

Re-open Downing v. Lifetime for trial on the merits with respect to all of

Plaintiff’s claims in Downing v. Lifetime.

2.

Order Defendant to order the deposition of Lifetime Fitness’ employee Sandy

Schmidt in Downing v. Lifetime.

 

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3.

Order Defendant to consider at-trial opinion evidence as expressed in Plaintiff’s

Memorandum on Defendant’ Fitness Exams.

4.

Award Plaintiff with actual and enhanced damages for injuries caused by

Defendant’s actions pursuant to the above-stated state and federal laws.

5.

Award reasonable attorneys’ fees and costs, pursuant to the above-stated state and

federal laws.

6.

Award Plaintiff such additional relief as the interest of justice requires.



Dated this Thursday, November 29, 2012

Respectfully submitted,


/s/Kristy Joi Downing__________
Kristy J. Downing, Esq. (P 67,122)
172 Carson Dr.
Westland, Michigan 48185
P 248.982.3925
F 248.348.5760
[email protected]



 

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