COMPLAINT AND DEMAND FOR TRIAL BY JURY

Transcription

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ROSS ENTERPRISES, INC., d/b/a THE PANTHEION CLUB, a Michigan Corporation, Case No cv Plaintiff, Hon. Sean Cox v. CITY OF DEARBORN, a Michigan Municipal Corporation; CORPORAL ANDREA DAMAK, individually, and in her official role and capacity as a City of Dearborn Police Officer; SERGEANT JEFFREY MROWKA, individually and in his official role and capacity as a City of Dearborn Police Officer; JANE DOE #1, an individual; JANE DOE #2, an individual; YESTOFFLO, LLC, d/b/a THE LANDING STRIP, a Michigan Limited Liability Company, JASON SAAD, individually, and as Member of THE LANDING STRIP, SUBI S CORP. d/b/a, SUBI S PLACE, a Michigan Corporation, SUBI SAAD, individually, SUBI SAAD, JR., individually, NAVADA SAAD, individually, ALI SAAD, individually, MARIAM SAAD, individually, and as officer, director, and or shareholder of SUBI S PLACE; MOHAMMED SABHI SAAD, individually, and as officer, director, and or shareholder of SUBI S PLACE; REVOCABLE TRUST OF THE MOHAMMED SABHI SAAD REVOCABLE LIVING TRUST, individually, and as officer, director, and or shareholder of SUBI S PLACE; jointly and severally, Defendants. / ALEXANDER V. LYZOHUB (P34422) Attorney for Plaintiff Farmington Road, Ste. 101 Livonia, Michigan Phone (734) Lyzohubsecretary@yahoo.com / COMPLAINT AND DEMAND FOR TRIAL BY JURY COMPLAINT AND DEMAND FOR TRIAL BY JURY

2 NOW COMES Plaintiff, ROSS ENTERPRISES, INC., d/b/a THE PANTHEION CLUB, by and through its attorney, ALEXANDER V. LYZOHUB, and for its Complaint against the above named Defendants states as follows: JURISDICTION AND VENUE 1. This is a civil action for money damages and declaratory relief brought pursuant to 42 U.S.C and 1988 and for violations of Plaintiff s protected rights under the United States and Michigan Constitutions, and under the laws of the United States and State of Michigan, against the CITY OF DEARBORN, Michigan, and CORPORAL DAMAK, and SERGEANT MROWKA in their individual and official capacities working for the Co-Defendant, CITY OF DEARBORN. 2. Plaintiff, ROSS ENTERPRISES, INC., d/b/a THE PANTHEION CLUB (hereinafter THE PANTHEION CLUB ) is duly and properly licensed to operate and is operating as an adult entertainment bar and is a resident of the City of Dearborn, County of Wayne, State of Michigan with its principal place of business at Michigan Avenue, Dearborn, Michigan Plaintiff has been a liquor licensee in the State of Michigan at least since Plaintiff s ability to continue to so operate is subject to compliance with the laws of the State of Michigan as enforced through the Michigan Liquor Control Commission. 3. THE PANTHEION CLUB is a private corporation and is a person within the meaning of the First Amendement, Due Process, and Equal Protection Clauses, Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936); Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869 (1985), 470 U.S. 869, 105 S.Ct. 2

3 1676, 1683 n. 9, 84 L.Ed.2d 751 (1985), and a person within the meaning of section 1983 to constitute a proper plaintiff. Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071, 1079 (7th Cir.1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979); Advocates for the Arts v. Thomson, 532 F.2d 792, 794 (1st Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976); Borreca v. Fasi, 369 F.Supp. 906, 911 (D.Hawaii 1974). 4. Defendant, CITY OF DEARBORN, is a Michigan Municipal Corporation, with its principal place of business in the City of Dearborn, Wayne County, Michigan, and has established a Police Department to enforce laws within its jurisdiction (hereinafter Dearborn Police Department ). 5. Defendant, CORPORAL ANDREA DAMAK (hereinafter CORPORAL DAMAK ), was at all relevant times a police officer working for the Dearborn Police Department and was at all times material to this cause of action performing her duties as a police officer within the County of Wayne in the State of Michigan. 6. Defendant, SERGEANT JEFFREY MROWKA (hereinafter SERGEANT MROWKA ), was at all relevant times a police officer working for the Dearborn Police Department, and was at all times material to this cause of action performing his duties as a police officer within the County of Wayne in the State of Michigan. 7. Upon information and belief, as yet unidentified JANE DOE #1 (hereinafter Girl #1 ) is a resident of the State of Michigan, and, on about October 23, 2010 was nineteen (19) years old. 3

4 8. Upon information and belief, as yet unidentified JANE DOE #2 (hereinafter Girl #2) is a resident of the State of Michigan, and, on about October 23, 2010 was nineteen (19) years old. 9. Upon information and belief, Girl #1 and or Girl #2 are related by blood and or marriage to the aforestated individual non-police Defendants, whom are likewise related to each other by blood and or marriage. 10. YESTOFFLO, LLC, d/b/a THE LANDING STRIP, is duly and properly licensed as operating and or managing a bar serving intoxicating liquor to the public, having an entertainment permit for adult entertainment and is a resident of the City of Romulus, County of Wayne, State of Michigan. 11. JASON SAAD, individually, and as member of THE LANDING STRIP, is a resident of the City of Grosse Ile, County of Wayne, State of Michigan. 12. SUBI S CORP., d/b/a SUBI s PLACE is duly and properly licensed as operating a bar serving intoxicating liquor to the public, having an entertainment permit for adult entertainment and is a resident of the City of Southgate, County of Wayne, State of Michigan. 13. SUBI SAAD, is a resident of the City of Dearborn, County of Wayne, State of Michigan. 14. SUBI SAAD, JR., is a resident of the City of Northville, County of Wayne, State of Michigan. 4

5 15. NAVADA SAAD, is a resident of the City of Dearborn, County of Wayne, State of Michigan. 16. ALI SAAD, is a resident of the City of Dearborn Heights, County of Wayne, State of Michigan. 17. MARIAM SAAD, individually, and as officer, director, and or shareholder of SUBI S PLACE is a resident of the City of Dearborn, County of Wayne, State of Michigan. 18. MOHAMMED SABHI SAAD, individually and as member of SUBI S PLACE, is a resident of the City of Northville, County of Wayne, State of Michigan. 19. REVOCABLE TRUST OF THE MOHAMMED SABHI SAAD REVOCABLE LIVING TRUST, individually, and as member of SUBI s PLACE, 20. Venue lies in the United States District Court for the Eastern District of Michigan because all or a substantial part of the events or omissions giving rise to Plaintiff s claims occurred in Wayne County, Michigan. 21. Divisional venue is in the Southern Division because all or a substantial part of the events leading to the claim for relief arose in Wayne County, Michigan. 22. The amount in controversy is well in excess of $75, exclusive of costs, attorney fees, and interest, and Plaintiff also seeks declaratory and injunctive relief. 5

6 FACTUAL ALLEGATIONS 23. Plaintiff re-alleges paragraphs 1 through 22 as though fully set forth herein. 24. On about June 13, 2010, a woman (not a party to this litigation) claimed to the Dearborn Police Department, Corporal Damak and or Sergeant Mrowka that she, while underage at approximately seventeen (17) years and eleven (11) months of age, had been a dancer at THE PANTHEION CLUB. In truth, this woman had been refused entry to be a dancer at THE PANTHEION CLUB because she falsely used the identification of an adult known as Crystal Rice. This identification was seized by the Dearborn Police Department. 25. The 17-year-old girl that had allegedly been working underage at The Pantheion Club had not been prosecuted by the CITY OF DEARBORN for verbally claiming she did so, nor was she prosecuted for the use and or possession of false identification. 26. The CITY OF DEARBORN, CORPORAL DAMAK, and or SERGEANT MROWKA, got involved and issued a violation report of underage dancing with the Michigan Liquor Control Commission against Plaintiff. 27. Plaintiff denied all wrongdoing and never admitted to these allegations. 28. On about December 15, 2010 Plaintiff obtained a response to a Freedom of Information Act Request (hereinafter FOIA ) responding to a period of time from June 13, 2010 thru present for all documents concerning police reports, incident reports, supplemental reports, witness statements, dispatch notes, dispatch tapes, video records, photocopy of drivers license of Crystal Rice (DOB: 07/21/1986) (Front and Back), and all other 6

7 documents concerning Dearborn Police Department s Police Run to [Plaintiff s place of business located at] Michigan Avenue, Dearborn, MI from June 13, 2010 through present. 29. The said FOIA response covered the entire month of October 2010, and there was no report of any alleged serving of alcohol to under aged persons. 30. Ultimately, on February 11, 2011, as the alleged underage dancing matter was postured to go to Trial at the Michigan Liquor Control Commission hearing offices; the parties (The Pantheion Club and City of Dearborn) settled the controversy by The Pantheion Club pleading No Contest to the charge and the bar paying $300 in fines, to perform a three (3) day suspension based on what days Plaintiff decided to pick to satisfy the suspension, and to pay some witness fees. 31. On about the next business day, two (2) as yet unidentified JANE DOE #1 and JANE DOE #2, allegedly, went to the Dearborn Police Department and filed a report that they were served alcohol while underage at The Pantheion Club on about October 23, Plaintiff denies all wrongdoing and disputes as untrue that JANE DOE #1 and JANE DOE #2 were ever served alcohol by Plaintiff. 33. There was almost a four (4) month gap between the date JANE DOE #1 and JANE DOE #2 allegedly drank underage at The Pantheion Club and the date they made a Complaint with the Dearborn Police Department, with the Complaint made by the girls on about February 14, 2011, on about the very next business day after the aforementioned hearing at the Liquor Control Commission that occurred on February 11,

8 34. Upon information and belief, the City of Dearborn, Corporal Damak, and or Sergeant Mrowka issued Liquor Violation Reports against Plaintiff with the Michigan Liquor Control Commission for the aforementioned alleged underage drinking. 35. Defendants, City of Dearborn, Corporal Damak, and Sergeant Mrowka have concealed the identified of JANE DOE Girl #1, and JANE DOE #2 from Plaintiff and have refused to identify them to Plaintiff. 36. Upon information and belief, Girl #1 or Girl #2 are not going to be prosecuted for the alleged underage drinking. 37. The City of Dearborn and its police officers have been out to get Plaintiff and have been on a mission to close down its business operations because said Defendants believe that Plaintiff, as an adult entertainment club, is a blight upon the City of Dearborn and negatively impacts the City s reputation. 38. There is an indicia of a conspiracy in that with these liquor violations pending Plaintiff cannot transfer its license., and or Plaintiff s ability to conduct continued business operations will be ultimately and adversely affected. 39. There is an unjust threat to Plaintiff s liquor license permits because another underage offense could cause the Michigan Liquor Control Commission to order a suspension and or revocation and therefore cause Plaintiff to lose its license/permits and Plaintiff would lose its property rights and the licensures/permits. 8

9 40. Defendants YESTOFFLO, LLC, a Limited Liability Company, (hereinafter LANDING STRIP BAR ) and SUBI S CORP, d/b/a SUBI S PLACE (hereinafter SUBI S BAR ), are direct local business competitors with Plaintiff. 41. Defendants, JASON SAAD, SUBI SAAD, SUBI SAAD, JR., NAVADA SAAD, ALI SAAD, MARIAM SAAD, MOHAMMED SABHI SAAD, and REVOCABLE TRUST OF THE MOHAMMED SABHI SAAD REVOCABLE LIVING TRUST, derive, either directly or indirectly, an economic benefit from improved business at LANDING STRIP and or SUBI S BAR. 42. Defendants, either directly or indirectly, caused, promoted, incited, compensated, and or otherwise influenced JANE DOE #1 and JANE DOE #2 to file false reports with the Dearborn Police Department. 9

10 COUNT I AS AGAINST DEFENDANTS CITY OF DEARBORN/CORPORAL DAMAK/SERGREANT MROWKA FOR VIOLATION OF PLAINTIFF S CIVIL RIGHTS PURSUANT TO 42 U.S.C FOR DEPRIVATION OF PLAINTIFF S RIGHTS OF FREEDOM OF SPEECH, DUE PROCESS RIGHTS, AND EQUAL PROTECTION TO MAINTAIN NECESSARY LICENSURES AND DO LAWFUL BUSINESS AND ALL OTHER DEPRIVATION OF PLAINTIFF S RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS 43. Plaintiff re-alleges paragraphs 1 through 36 as though fully set forth herein. 44. At all relevant times the conduct of Defendants CITY OF DEARBORN, CORPORAL DAKMAK, and SERGEANT MROWKA, occurred while they were acting under color of state law. 45. Defendants CITY OF DEARBORN, CORPORAL DAMAK, and SERGEANT MROWKA made it known to Plaintiff and others by their words, conduct, and other actions that they have an interest in getting Plaintiff s necessary licensures/permits required for the operation of its business suspended and or revoked in an effort to put Plaintiff out of business because said Defendants believe Plaintiff, as an adult entertainment establishment, to be a blight upon the City of Dearborn which results in a negative impact on the City of Dearborn s reputation. 46. The timing of the new charges made on about February 14, 2011 (the next business day after the conclusion of the February 11, 2011 Michigan Liquor Control Commission Hearing), the failure to conduct a due and proper investigation, the nature of the new charges, the failure to conduct adequate background checks on the complainants JANE DOE #1, and JANE DOE #2, the failure and refusal to issue criminal charges against all underage criminals, the failure and refusal to identify the accusers to Plaintiff, and the 10

11 lack of verifiable corroboratory evidence; reasonably leads to the inference that the charges are false. 47. Defendants CITY OF DEARBORN, CORPORAL DAMAK, and SERGEANT MROWKA knew or reasonably should have known that the allegations made by JANE DOE #1 and JANE DOE #2 were false. Despite this fact, said Defendants have subjected Plaintiff and or caused Plaintiff to be subjected to be cited twice for underage alcohol drinking with the Michigan Liquor Control Commission which puts Plaintiff s liquor license and ability to function as a viable business operation in jeopardy. 48. Because the aforesaid hearing held on February 11, 2011 at the Liquor Control Commission did not result in a significant suspension or revocation of Plaintiff s Liquor License; as retaliation the CITY OF DEARBORN, CORPORAL DAMAK, and SERGEANT MROWKA conspired with JANE DOE #1 and JANE DOE #2 to fraudulently and unjustly cite Plaintiff with two violations with the Michigan Liquor Control Commission for allowing alleged underage alcohol drinking at its establishment which could and will likely result in a loss and or impairment of Plaintiff s liquor license/permits which could ultimately result in Plaintiff having to cease its business operations. 49. Plaintiff is entitled to its rights to Freedom of Speech, Due Process and Equal Protection, pursuant to the United States and Michigan Constitutions in regards to operating an adult entertainment business bar establishment. 50. Plaintiff has valuable property rights in its business, business operations, and necessary licensures/permits. 11

12 51. Defendants CITY OF DEARBORN, CORPORAL DAMAK, and SERGEANT MROWKA, were acting under color of state law at all relevant times as stated herein and the conduct of the Defendants deprived and or could further deprive Plaintiff of its rights, privileges, or immunities secured by the United States and Michigan Constitutions. WHEREFORE, Plaintiff demands judgment for deprivation of its rights in violation of 42 U.S.C. Section 1983 against The CITY OF DEARBORN, CORPORAL DAMAK, and SERGEANT MROWKA for wrongfully citing Plaintiff for underage drinking; and judgment against as yet JANE DOE #1 and JANE DOE #2 for fraudulently conspiring to have Plaintiff cited for underage drinking; and Plaintiff further demands judgment against each of said Defendants jointly and severally, for punitive damages of $25,000,000.00, or whatever amount as determined by the trier of fact, as a result of the Defendants evil motives and intent toward Plaintiff and for their reckless and callous indifference to Plaintiff s federally protected rights pursuant to Smith v. Wade, 461 U.S (1983); Clark v. Taylor, 710 F.2d 4, 14 (1 st Cir. 1983); and Miga v. Holyoke, 398 Mass. 343, 355 (1986); plus the costs of this action, including attorney s fees, and such other relief to be deemed to be just and equitable. 42 U.S.C. Section Plaintiff further demands injunctive relief against the CITY OF DEARBORN to prevent any further deprivation of its rights in violation of 42 U.S.C. Section

13 COUNT II TORTIOUS INTERFERENCE WITH AN ADVANTAGEOUS BUSINESS RELATIONSHIP 49. Plaintiff re-alleges paragraphs 1 through 48 as though fully set forth herein. 50. Plaintiff has a validly existing business relationship between itself and the State of Michigan with its business operations in the licensure for sale of alcoholic beverages to the public, and the permit to allow adult entertainment at its business location ( business relationship ). 51. Defendants knew of such business relationship. 52. Defendants actions and or inactions as hereinbefore set forth and described, constituted an intentional and tortious interference of a threat and or termination of Plaintiff s business relationship ( tortious interference of Plaintiff s business relationship ). 53. As a direct and proximate result of Defendants tortious interference of Plaintiff s business relationship, Plaintiff has suffered a loss and been damaged as hereinbefore set forth. WHEREFORE, Plaintiff claims Judgment against Defendants, jointly and severally, of $25,000, or an amount as determined by the trier of fact, together with costs, interest, and reasonable attorneys fees. 13

14 COUNT III INJURIOUS FALSEHOOD 54. Plaintiff re-alleges paragraphs 1 through 53 as though fully set forth herein. 55. Defendants caused to be published to the Michigan Liquor Control Commission false reports of underage drinking as hereinbefore set forth. 56. Defendants wrongfully intended the publication to result in harm to Plaintiff s business interests, or recognized or should have recognized that harm was likely to befall Plaintiff by such publication. 57. Defendants knew that the publication as false or acted in reckless disregard of its truth or falsity, constituting injurious falsehood. 58. As a direct and proximate result of Defendants injurious falsehood, Plaintiff suffered a loss and was damaged as hereinbefore set forth. WHEREFORE, Plaintiff claims Judgment against Defendants as hereinbefore set forth and described. 14

15 COUNT IV LIBEL OF FEBRUARY 15, Plaintiff re-alleges paragraphs 1 through 58 as though fully set forth herein. 60. On about February 15, 2011, Defendants caused liquor violation reports to be issued against Plaintiff with the Michigan Liquor Control Commission, constituting a publication. 61. The publication was libelous of Plaintiff because it was false. 62. Defendants publication was made with the intent to adversely and prejudicially affect Plaintiff s business. 63. Defendants publication was negligent or made with actual malice. 64. The actions of Defendants in libeling the Plaintiff is part of a long-term continuous course of wrongful conduct which is indicia of Defendants bad faith motives and evil intent. 65. Defendants publication had a tendency to, and could prejudice Plaintiff with its business. 66. Defendants publication was not privileged. 67. Plaintiff had demanded, and Defendants had failed, to issue a retraction. 68. As a direct and proximate result of Defendants wrongful conduct of the libelous publication; Plaintiff has suffered a loss and been damaged as hereinbefore set forth and described. 15

16 69. Pursuant to MCL (2)(b), Plaintiff is entitled to pursue exemplary and punitive damages against Defendants. Court: WHEREFORE, Plaintiff, being without an adequate remedy at law, prays that this Honorable A. ORDER Defendants, CITY OF DEARBORN, CORPORAL DAMAK, and SERGEANT MROWKA, to publish a retraction to the Michigan Liquor Control Commission in the same manner as the libelous statements. B. AWARD Judgment in favor of Plaintiff as against all Defendants whom contributed to the libelous publication an amount as determined by the trier of fact in excess of $25,000, or whatever amount as determined by the trier of fact, together with exemplary and punitive damages. C. AWARD costs, interest, and reasonable attorney fees so wrongfully denied. D. GRANT such other and further relief as is agreeable to equity and good conscience. 16

17 COUNT V CIVIL CONSPIRACY 70. Plaintiff re-alleges paragraphs 1 through 69 as though fully set forth herein. 71. Defendants actions/inactions as hereinabefore set forth, by concerted action and agreement, accomplished an unlawful end, or a lawful ending by unlawful means, constituting a civil conspiracy. 72. As a direct and proximate result of Defendants civil conspiracy, Plaintiffs have suffered a loss and have damaged as hereinbefore set forth. WHEREFORE, Plaintiffs claim Judgment as hereinbefore set forth. 17

18 COUNT VI MALICIOUS PROSECUTION 73. Plaintiff re-alleges paragraphs 1 through 72 as though fully set forth herein. 74. The aforementioned charges filed with the Michigan Liquor Control Commission are false and should result in dismissal. 75. The DEARBORN POLICE DEPARTMENT, CORPORAL DAMAK, and SERGEANT MROWKA did not have probable cause to initiate the aforementioned charges. 76. Defendants had malice in the initiation of the aforementioned charges, constituting malicious prosecution. 77. As a direct and proximate result of Defendants malicious prosecution, Plaintiff has suffered a loss and been damaged as hereinbefore set forth. WHEREFORE, Plaintiff claims Judgment as hereinbefore set forth. Respectfully submitted, Dated: March 18, 2010 /S/ ALEXANDER V. LYZOHUB ALEXANDER V. LYZOHUB (P34422) Attorney for Plaintiff Farmington Road, Ste. 101 Livonia, Michigan Phone: (734) Fax: (734) lyzohubsecretary@yahoo.com 18

19 JURY DEMAND Plaintiff, ROSS ENTERPRISES, INC. d/b/a THE PANTHEION CLUB, by and through its attorney, ALEXANDER V. LYZOHUB, hereby requests a trial by jury. Respectfully submitted, Dated: March 18, 2010 /S/ ALEXANDER V. LYZOHUB ALEXANDER V. LYZOHUB (P34422) Attorney for Plaintiff Farmington Road, Ste. 101 Livonia, Michigan Phone: (734) Fax: (734) lyzohubsecretary@yahoo.com 19