Footing Drain Lawsuit Moves to Federal Court

The city of Ann Arbor has moved into federal court a lawsuit filed over its footing drain disconnection ordinance. The case was originally filed in the 22nd circuit court in Washtenaw County.

The ordinance that’s being challenged was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the city’s sanitary sewer system. Its intent is to diminish the risk of sanitary overflows into the Huron River and of sanitary sewage backups in homeowners’ basements.

The lawsuit claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth the requirements for a government to take private property for public use; (2) the Michigan state constitutional prohibition against taking private property for public use without just compensation; (3) the corresponding U.S. constitutional prohibition against taking private property, which is a Fifth Amendment claim; and (4) the prohibition against violating the federally protected rights of others, which is a claim under 42 U.S.C. Section 1983.

In moving the case to the federal court’s Eastern District of Michigan, the city is exercising its right under 28 USC §1441, which states in part:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

The procedure for removing a case to the federal district court requires that the defendant, the city of Ann Arbor, file with the district court within 30 days of being served the lawsuit and to include a “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” Among the statements covering the city’s grounds for removing the case to federal court is the following:

Plaintiffs’ state law claims arise from the same common nucleus of operative facts and are so intertwined with and related to Plaintiffs’ federal claims that they form part of the same case or controversy as those federal claims, over which this Court has original jurisdiction.

The city filed with the federal court on March 17, 2014, which was 10 days after being served the lawsuit, on March 7. [.pdf of March 17, 2014 federal court filing]

The circuit court case had been assigned to judge Donald Shelton. The federal case is assigned to judge Avern Cohn.