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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

LAWRENCE WASHINGTON JR., individually and )

as next friend of five minor children, TAYLOR )

WASHINGTON, MORGAN WASHINGTON, ) Case No. 16-cv-11247

CHLOE

WASHINGTON,

MADISON )

WASHINGTON, LAWRENCE WASHINGTON; ) Hon. John Corbett O’Meara

CHRISTINA GODIN, individually and as next friend )

of three minor children, ANGEL ARRAND, )

AUSTON ARRAND, WILLIAM ZIETZ III; ) SECOND AMENDED

ROOSEVELT CAMERON; DEBORAH SMITH; )

CLASS ACTION

ABY NDOYE and ROBIN DAVIS, all on behalf of )

COMPLAINT

themselves and a class of all others similarly situated, )

)

Plaintiffs,

)

JURY TRIAL

)

DEMANDED

- against -

)

)

GOVERNOR RICHARD DALE SNYDER, DENNIS )

MUCHMORE, in their individual and official )

capacities, the STATE OF MICHIGAN, the )

MICHIGAN

DEPARTMENT

OF )

ENVIRONMENTAL QUALITY, the MICHIGAN )

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES, ANDREW “ANDY” DILLON, R. )

KEVIN CLINTON, DANIEL WYANT, NICK )

LYON, in their individual capacities, LIANE )

SHEKTER SMITH, STEPHEN BUSCH, PATRICK )

COOK, MICHAEL PRYSBY, BRADLEY )

WURFEL, MIKE BROWN, ED KURTZ, DARNELL )

EARLEY, GERALD AMBROSE, DAYNE )

WALLING, HOWARD CROFT, MICHAEL )

GLASGOW, LIANE SHEKTER SMITH, STEPHEN )

BUSCH, PATRICK COOK, MICHAEL PRYSBY, )

BRADLEY WURFEL, EDEN WELLS, LINDA )

DYKEMA, NANCY PEELER, ROBERT SCOTT, in )

their individual and official capacities, ROWE )

)

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PROFESSIONAL SERVICE COMPANY, a )

Michigan Corporation, LOCKWOOD, ANDREWS & )

NEWNAM, INC. a Texas Corporation, )

LOCKWOOD, ANDREWS, & NEWNAM P.C., a )

Michigan Corporation, LEO A DALY, a Nebraska )

Corporation, VEOLIA NORTH AMERICA, INC., a )

Delaware Corporation VEOLIA NORTH AMERICA, )

LLC., a Delaware limited liability company, VEOLIA )

NORTH AMERICA OPERATING SERVICES, LLC, )

a Delaware limited liability company, EACH, a )

wholly owned subsidiary of VEOLIA )

ENVIRONNEMENT S.A., a French transnational )

Company, and the CITY OF FLINT, a municipal )

corporation, jointly and severally.

)

)

Defendants.

)

)

)

SECOND AMENDED CLASS ACTION COMPLAINT

INTRODUCTION

Mass Poisoning and Destruction of Infrastructure of the City of Flint

1. This case arises from the now infamous poisoning and damage to the property of the Flint residents caused by the State of Michigan’ mandate that the City of Flint switch from being a purchaser of the safe Detroit Sewer and Water Department (“DSWD”) water, in order to bill for and collect money by becoming purveyors of corrosive and unsafe water which was sold to the Flint residents at a profit and at price gouging rates from the free Flint River. 2. This occurred because the City of Flint had a run of the mill municipal fiscal
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crisis, which resulted in the State of Michigan appointing an Emergency Manager under the Emergency Manager Statute, (“EM Statute”). 3. The mass poisoning and destruction of infrastructure was not caused by an environmental crisis. 4. Rather, this mass poisoning and destruction of infrastructure occurred as the result of an emergency fiscal plan (“Emergency Fiscal Plan”) conceived and executed by the below mentioned Michigan authorities to remedy the fiscal crisis in Flint by making Flint into a profit making purveyor of water and then, selling the dangerous and unsafe Flint River water to Flint residents with depraved indifference for their health, safety and welfare.1 5. As a result of this Emergency Fiscal Plan the Flint River unsafe water sales yielded to the EM and State controlled City of Flint roughly 50 million dollars and saved additional millions of dollars for safe water which had, for half a century, been purchased from DWSD by the City of Flint while under control of its City elected representatives. 6. In testimony before the United States of America House Oversight and Government Reform Committee hearing regarding the Flint water crisis Snyder, on
1 Governor Snyder (“Snyder”), State Treasurer Dillon (“Dillon”), State Treasurer Clinton (“Clinton”), State Treasurer Clinton (‘Clinton”), the State of Michigan, The Michigan Department of Environmental Quality (“MDEQ”), and The Michigan Department of Human Health and Services (“MDHHS”), their agents, servants and employees, the appointed Emergency Managers Mike Brown, Ed Kurtz, Darnell Earley, and Gerald Ambrose (“ Emergency Managers”), the City of Flint and it’s employees, Dayne Walling (“Walling”), Howard Croft (“Croft”), and Michael Glasgow.
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March 17, 2016 admitted under oath that “this was a failure of government at all levels, the State of Michigan and local, state and federal officials we all failed the families of Flint.” 7. On January 19, 2016 Snyder, in his State of the State address, admitted as to the residents of Flint, “the buck stops here with me, I take full responsibility, I give you my commitment that Michigan will not let you down.”
Racism Motivated the State’s Fiscal Emergency Plan including Price Gouging
8. The poisoning, exposure and re exposure of the predominately non-white residents of Flint, Michigan to unsafe Flint River water, which they were forced to purchase at highest rates in the United States, and more than previously paid for DWSD water, occurred because these Emergency Managers, with the approval and authority of the State of Michigan, Snyder, Dillon, Clinton, and the MDEQ, focused, in their Fiscal Emergency Plan, solely on their duty under the Emergency Manager statute to find a financial solution for the City of Flint financial crisis, while breaching, with depraved indifference, their additional duty to protect the public health, safety and welfare of the Flint residents, as mandated by the Emergency Manager Statute. (Local Financial Stability and Choice Act, Act 436 of 2012). 9. The Michigan Legislature never intended for an Emergency Manager to
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solve fiscal problems by means that endangered the public welfare, health, and safety, as was done in Flint by the sale of unsafe Flint River water at monthly rates that were the highest in the United States. 10. The Legislative intent made clear both in the Preamble and the body of the Emergency Manager bill, which the Legislature sent to the Governor for signature, that the protection of the public health, safety, and welfare was an express priority linked to any fiscal remedial steps. (Michigan Enrolled House Bill No. 4214, Effective Date March 16, 2011 By the Legislature, legislative bill precursor to 2012 Signed Emergency Manager Law Art. 436 of 2012). 11. This Emergency Manager/state authorized depraved indifference was fraught with racism since, of the 6 municipalities through which the Flint River flowed, all of which had heretofore purchased safe DWSD water, only one community, the primarily non-white City of Flint, was caused to disconnect from the safe DWSD water and connect to the unsafe Flint River. 12. The other 5 communities, all of which were primarily white, and through which the Flint River flowed, did not change their water source from DWSD to the Flint River, nor did any other community in Genesee County, and did not become for profit water purveyors, even though these sales would have also yielded these 5 communities additional revenues of millions of dollars, and savings of additional millions of dollars by foregoing the cost of purchases for their water from DWSD
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during this period of time. 13. The other 5 communities through which the Flint River flowed, had the following racial demographics:
a.) The City of Montrose Michigan was 98.7% white and remained on safe DWSD water.
b.) The City of Flushing Michigan was 94.8% white and remained on safe DWSD water.
c.) The Township of Flushing Michigan was 87.5% white and remained on safe DWSD water.
d.) The City of Columbiaville Michigan was 95.2% white and remained on safe DWSD water.
e.) The City of Lapeer Michigan was 88.6% white and remained on safe DWSD water.
14. In an overtly racist move, the City of Flint, which was 65.4% non-white, was forced to disconnect from safe DWSD water and to purchase the unsafe Flint River water at the unconscionably highest rates charged for water in the United States. 15. This overtly racist maneuver yielded roughly 50 million dollars by selling unsafe water at the highest rates in the United States to the predominately nonwhite population of the City of Flint.
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16. These high water rates were charged despite the fact that the City of Flint median household income was nearly the lowest level in Michigan. 17. Historically, and for approximately 50 years, the City of Flint, like its 5 primarily white neighbor communities, residents had paid for clean, safe and properly treated drinking water which it purchased from DSWD. 18. Snyder, Dillon, Clinton, the State of Michigan,andMDEQ, approved the Emergency Fiscal Plan conceived by the Emergency Managers and others in both 2012 and 2013 to force the primarily non-white City of Flint to disconnect from the safe DWSD water, and to connect to and sell to the primarily non-white Flint residents, the historically unsafe Flint River water. 19. The State of Michigan never intended to use the free water of the Flint River as a permanent solution, as it certainly would have, had the Flint River been safe to use as drinking water. 20. Before the Emergency Manager proposed this Emergency Fiscal Plan and it was approved by Snyder, Dillon, Clinton, and MDEQ, all the aforesaid had no data establishing that the water was potable and safe. 21. Rather, the only information, from prior studies, which the Emergency Managers, the State of Michigan, Snyder, Dillon, Clinton, and MDEQ had about the Flint River water, was that it was unsafe and dangerous to the Flint residents and to the City of Flint’s water delivery infrastructure.
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22. Nevertheless, the switch to this free Flint River water for sale as safe and potable was approved and forced upon the City of Flint and its primarily non-white residents, as part of the Emergency Fiscal Plan by State authorities with depraved indifference to the health, safety and welfare of the predominately non-white citizens of Flint, and with depraved indifference to the known endangerment of the structural integrity of the City of Flint’s water delivery infrastructure. 23. During the roughly 2 years that the City of Flint was connected to the Flint River pursuant to the Emergency Fiscal Plan, Snyder, Dillon, Clinton, MDEQ, MDHHS, and their named defendant employees, t Walling, Croft, and Glasgow,= of the City of Flint, Veolia North America Inc., Veolia North America LLC., Veolia North America Operating LLC., and Veolia Environnement S.A. (“Veolia”), Rowe Professional Service Company, (‘Rowe”), Lockwood Andrews & Newnam, Inc., and Lockwood, Andrews, & Newnam P.C. a subsidiary of Leo A Daly (“LAN”), made false and repeated statements and misrepresentations that the Flint River water being sold to the City of Flint was safe. 24. These misrepresentations were made despite the aforesaid Defendants’ own independent testing which established that water from the Flint River was unsafe for sale or consumption and that it endangered the structural integrity of the City of Flint’s water delivery infrastructure.
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25. The citizens of Flint justifiably relied on these representations and misrepresentations that the Flint River water was both safe and potable. 26. The citizens of Flint justifiably relied on the implied warranties in the written purchase/sales contracts and bills for water sold and delivered from the Flint River to the citizens, that the Flint River water was both safe and potable. 27. Through the Emergency Managers, Snyder, Dillon, and Clinton, the State of Michigan completely subsumed the authority of the local government of Flint under PA 436 and left the Flint local, elected municipal authorities powerless to stop this racially motivated price gouging, endangerment to the public health, safety, and welfare of the citizens of Flint, and the endangerment of the structural integrity of the Flint water delivery system infrastructure. 28. The State of Michigan, its Emergency Managers, MDEQ, MDHHS, and the Environmental Protection Agency (“EPA”) District 5, had knowledge and power to prevent this tragic occurrence. 29. Rowe, LAN, and Veolia had knowledge and power to prevent this tragic occurrence. 30. As a result of the coordinated, systematic, and continuous acts of Snyder, Dennis Muchmore (“Muchmore”), Dillon, Clinton, the Emergency Managers, the MDEQ, and the MDHHS and their employees, Rowe, LAN and Veolia, catastrophic harm has been inflicted and perpetuated on the residents of Flint and
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the City of Flint infrastructure. Destruction of Flint Infrastructure and Lead Poisoning
31. The Flint River water contained a highly concentrated corrosive agent. 32. The delivery of the corrosive agent in the Flint River into the Flint water delivery infrastructure destabilized the metallurgical integrity of the said infrastructure and thereby caused the Flint property values to plummet of the citizens of Flint. 33. The delivery of the corrosive agent in the Flint River into the Flint water delivery infrastructure destabilized the metallurgical integrity of the said infrastructure and thereby caused the Flint businesses’ value to plummet. 34. The delivery of the corrosive agent in the Flint River into the Flint water delivery infrastructure destabilized the metallurgical integrity of the said infrastructure by stripping the lead and iron from the previously stable metal pipes such that the element of lead contained therein was sent through the taps and to all the citizens of Flint. 35. The delivery of the corrosive agent in the Flint River into the water delivery infrastructure destabilized the metallurgical integrity of the said infrastructure by stripping from the previously stable metal pipesthe elements of lead and iron, causing lead and iron to be sent through the taps of all the homes, businesses and other facilities, causing exposure and re exposure to all Plaintiffs, and also causing
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dramatic increases in bursting pipes and progressively corroding, weakening and destroying the Flint water delivery system infrastructure. 36. The effects of exposure and re-exposure to lead of infant children and adults are long lasting and are devastating. 37. Lead is a powerful neurotoxin that has devastating, irreversible lifelong impacts on the development of children, exposes unborn infants in utero, and also causes irreparable injury to adults. 38. There is no safe level of lead as its effects are harmful even at low levels. 39. Lead exposure and re exposure in children and in utero, and heightened levels of lead in the blood and body, result in injuries not limited to decreased IQ, behavioral problems, cognitive impairment, attention deficit disorder, irreversible brain damage, learning disabilities, hearing impairment, lack of executive functioning, impaired balance and nerve function, infections, skin problems, digestive problems, loss of earnings, need for vigilant and lifelong medical monitoring and treatment, and psychological disorders. 40. Lead also causes serious health effects in adults, including digestive, cardiovascular, and reproductive problems, kidney damage, dizziness, fatigue, weakness, depression and mood disorders, diminished cognitive performance, nervousness, irritability, and lethargy.
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Rico Fraudulent Scheme
41. The Emergency Fiscal Plan constituted an intentional fraudulent scheme under the Racketeer Influenced and Corrupt Organizations Act pursuant to 18 U.S.C. Sec 1962 (c), and (d), (“Rico”) to force the City of Flint to contract with and eventually connect to the Karegnondi Water Authority (“KWA”), which was then, and now continues to be under construction and was not due to be completed for roughly two and one half years. 42. The Emergency Fiscal Plan constituted an intentional fraudulent scheme under Rico to exploit the roughly two and one half year known waiting period for completion of the KWA, by selling, at price gouging rates, the known unsafe, dangerous water from the free Flint River to the primarily non-white, poor residents of the City of Flint, until over roughly $50 million dollars could be generated. 43. Pursuant to the Emergency Fiscal Plan, individual Rico defendants coordinated a scheme with the Rico enterprise actors to profiteer from the Flint fiscal crisis by installing Emergency Managers, who reported to defendants Snyder, Dillon and Clinton, and who had the power to bypass and override the decisions of the duly elected Flint city government, thereby enabling them to execute the Emergency Fiscal Plan during this known roughly two and one half year waiting period until the KWA was completed. 44. The individual Rico defendants knew they could execute this fraudulent
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scheme because they had divested the city of Flint of all legal self-determination. 45. In other words, neither the Flint mayor nor Flint City Council had the power to override the Emergency Manager decision. 46. The Emergency Fiscal Plan of the Rico defendant Emergency Managers as approved by Rico defendants Snyder, Dillon and Clinton, caused Flint to switch from being a water purchaser of safe water from DWSD to a water purveyor and end user of unsafe, dangerous Flint River water, until the end game of this fraudulent scheme; the forced connection of the City of Flint to the under construction KWA. 47. On information and belief, based in part on the 2009 documents which initially incorporated the as yet unbuilt KWA, certain Defendants, including some of the named Rico defendants and Rico enterprise actors, stood to reap profits from building the KWA and then, years later, from compelling the City of Flint to enter a contract with the KWA to purchase water from this start up new water source. 48. The named Rico defendants along with the Rico enterprise actors, and employees of the MDEQ, the MDHHS, and the city of Flint water treatment plant employees, systematically and in a coordinated manner represented, despite having knowledge of facts to the contrary, that safe and potable water from the Flint River could be delivered throughout the Flint water delivery infrastructure, leaving the infrastructure intact.
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49. The Rico defendants and enterprise actors knew that their Rico Emergency Fiscal Scheme could never have been safely undertaken, as the delivery of known corrosive agents from the Flint River into the infrastructure would have destroyed the metallurgic structural integrity of the Flint water delivery infrastructure. 50. Despite this knowledge, with recklessness and depraved indifference to the consequences to the population and to the city infrastructure, the Rico defendants and Rico enterprise actors implemented this Rico Emergency Fiscal Scheme. 51. In order to keep this scheme continuing in excess of 2 years, thereby price gouging and collecting roughly $50 million as purveyors of the unsafe Flint River water, while waiting out the clock until the Rico Defendants and Rico enterprise actors could connect, as part of their Rico Emergency Fiscal Scheme, to the as yet uncompleted, under construction, KWA, the Rico defendants and Rico enterprise actors engaged in a coordinated and systematic effort of denials and misrepresentations, over the objections, complaints, civil uprisings, and demonstrations, by the citizens of Flint regarding the safety of the Flint River water. 52. The property and business owners in the city of Flint justifiably relied upon these intentional false representations and misrepresentations of the Rico defendants and Rico enterprise actors to their detriment causing the value to their property to plummet. 53. The Rico defendants’ and Rico enterprise actors’ actions were done with a
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depraved indifference to the health, safety, welfare and property of the predominately non-white citizens of Flint. 54. In furtherance of this Rico Emergency Fiscal Scheme, the City of Flint, under the State’s control, was forced to commit predicate acts of both mail and wire fraud. 55. Rico defendants used the Unites States Postal Service to send monthly bills for unsafe water, and used the Federal banking wire system to collect these water bills. 56. Pursuant to this Rico Emergency Fiscal scheme the City of Flint, under control of the Emergency Managers appointed by and controlled by the State of Michigan, Snyder, Dillon, and Clinton, collected roughly 50 million dollars under their predatory pricing and billing for unsafe water. 57. The citizens of Flint relied on the implied warranty of the merchantability and fitness for a particular purpose as contained in their contracts/bills for Flint water.
PARTIES
58. Plaintiffs have, and have at all times relevant herein been residents of Flint Michigan. 59. Defendants are named and described in the caption of this action. 60. Defendant the State of Michigan directs, controls, and operates defendant the Michigan Department of Environmental Quality (“MDEQ”).
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61. Defendant the State of Michigan directs, controls and operates defendant the Michigan Department of Health and Human Services (“MDHHS”). 62. Defendant Richard Dale Snyder (“Snyder”) is the Governor of the State of Michigan, and is sued in his individual and official capacity. 63. Snyder was at all times relevant herein acting within and outside of the scope of his employment and/or authority under color of law. 64. Defendant Andrew “Andy” Dillon (“Dillon”) was the former Treasurer of the State of Michigan from 2011 to 2013, after which he served in an advisory capacity to the subsequent Michigan State Treasurer, R. Kevin Clinton. He is sued in his individual capacity. 65. Dillon was at all times relevant herein acting within and outside of the scope of his employment and/or authority under color of law. 66. Defendant R. Kevin Clinton (“Clinton”) was the former Treasurer of the State of Michigan subsequent to Defendant Dillon, and is sued in his individual capacity. 67. Clinton was at all times relevant herein acting within and outside of the scope of his employment and/or authority under color of law.Defendant Dennis Muchmore (“Muchmore”) was Snyder’s Chief of Staff, and is sued in his individual and official capacity. 68. Defendants Mike Brown, Ed Kurtz, Darnell Earley, and Gerald Ambrose
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(“Emergency Managers”) at all times relevant herein were acting within and outside the scope of their employment and/or authority under color of law. 69. The Emergency Managers are sued in their individual and official capacities. 70. Defendant Emergency Managers continuously controlled all of the Flint governmental functions, decisions and fiscal decisions from December 2011 through April 30, 2015 pursuant to Statute and reported to Snyder, Dillon and Clinton. 71. Defendant City of Flint is a municipal corporation located in Genesee County, Michigan. 72. Defendant Dayne Walling (“Walling”) was the elected mayor of the City of Flint during all relevant herein periods. 73. Walling was at all relevant times herein acting within and outside the scope of his employment and/or authority under color of law. 74. Walling sued in his individual and official capacity. 75. Defendant Howard Croft (“Croft”) was at all relevant times herein Flint’s Department of Public Works Director acting within and outside the scope of his employment and/or authority under color of law. 76. Croft is sued in his individual and official capacities. 77. Defendant Michael Glasgow (“Glasgow”) was at all relevant times herein a water treatment plant operator for the City of Flint acting within and outside the
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scope of his employment and/or authority under color of law. 78. Glasgow is sued in his individual and official capacities. 79. Defendant Daniel Wyant (“Wyant”) was at all relevant times herein the Director of MDEQ until Snyder accepted his resignation on or about December 29, 2015. 80. Wyant was acting within and outside the scope of his employment and/or authority under color of law. 81. Wyant is sued in his individual capacity. 82. MDEQ is the State Agency responsible for monitoring water quality. 83. Defendant Liane Shekter Smith (“Shekter Smith”) was at all relevant times herein Chief of the Office of Drinking Water and Municipal Assistance for MDEQ. 84. At all relevant times Shekter Smith acted within and outside the scope of her employment, and/or authority under color of law. 85. Shekter Smith is sued in her individual and official capacity. 86. Shekter Smith was removed from her position on October 19, 2015. 87. Defendant Stephen Busch (“Busch”) was at all relevant times herein the District Supervisor assigned to the Lansing District Office of the MDEQ. 88. At all relevant times Busch was acting within and outside the scope of his employment and/or authority under color of law. 89. Busch is sued in his individual and official capacity.
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90. Defendant Patrick Cook (“Cook”) was at all relevant times herein Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of the MDEQ. 91. At all relevant times Cook was acting within and outside the scope of his employment and/or authority under color of law. 92. Cook is sued in his individual and official capacity. 93. Defendant Michael Prysby (“Prysby”) was at all relevant times herein the MDEQ Engineer assigned to District 11 (Genesee County). 94. Prysby was acting within and outside the scope of his employment and/or authority. 95. Prysby is sued in his individual and official capacity. 96. Defendant Bradley Wurfel (“Wurfel”) was at all relevant times herein the Director of Communications for MDEQ. 97. At all relevant times Wurfel was acting within and outside the scope of his employment and/or authority under color of law. 98. Wurfel resigned from his position on December 29, 2015. 99. Wurfel is sued in his individual and official capacity. 100. Defendant MDHHS is the state agency responsible for public health. 101. Defendant Eden Wells (“Wells”), was at all relevant times herein Chief Medical Executive within the Population Health and Community Services
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Department of the MDHHS. 102. At all relevant times Wells was acting within and outside the scope of her employment and/or authority under color of law. 103. Wells is sued in her individual and official capacity. 104. Defendant Nick Lyon was at all relevant times herein Director of MDHHS. 105. At all relevant times herein, Lyon was acting within and outside the scope of his employment and/or authority under color of law. 106. Lyon is sued in his individual capacity. 107. Defendant Linda Dykema (“Dykema”), was director of the MDHHS Division of Environmental Health. 108. At all times relevant herein Dykema was acting within and outside her scope of employment and color of authority. 109. Dykema is sued in her individual and official capacity. 110. Defendant Nancy Peeler (“Peeler”) was at all relevant times herein a MDHHS employee in charge of its childhood lead poisoning prevention program. 111. At all relevant times herein Peeler was acting within and outside the scope of her employment and/or authority under color of law. 112. Peller is sued in her individual and official capacity. 113. Defendant Robert Scott (“Scott”) was, at all relevant times herein, Data Manager for MDHHS’s Healthy Homes and Lead Prevention Program.
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114. At all relevant times herein Scott was acting within and outside the scope of his employment and/or authority under color of law. 115. Scott is sued in his individual and official capacity. 116. Susan Hedman, former EPA Region 5 Administrator, cannot yet be named as a Defendant pursuant to the Federal Tort Claims Act (“FTCA”). Plaintiffs note that if their FTCA claims to the EPA are rejected, they may seek to amend their complaint in order to add claims against Ms. Hedman. 117. Defendant Veolia North America, Inc. is a Delaware corporation with its principal place of business in Illinois. 118. Defendant Veolia North America LLC., is a Delaware limited liability company with its principal place of business in Illinois. 119. Defendant Veolia North America Operating Services LLC., is a Delaware is a limited liability company with its principal place of business in Indiana. 120. Defendant Veolia Environnement S.A., is a French transnational company with its principal place of business in Paris, France. 121. All the United States Veolia entities are wholly owned subsidiaries of Veolia Environnement S.A. (“Veolia”). 122. Veolia, at all relevant times herein based on testing, examinations, finding and reports as relates to the condition of the Flint River and the Flint water treatment plant, and rendered its professional expert opinion as to the safety of the continued
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use of and confirmed safe continuous use of untreated water, by declaring the water safe, despite no use of corrosion control, perpetuated the exposure and re exposure to lead, iron, and the destruction of the Flint water delivery infrastructure. 123. Veolia maintains an office in the city of Westland, Wayne County, Michigan, transacts business in the State of Michigan, including the business it performed for the City of Flint in 2015, and has committed a tort in the State of Michigan, among bases for personal jurisdiction under MCL 600.705. Each of these bases extends to this District specifically. 124. Defendant Rowe f/k/a Rowe Engineering, Inc. (“Rowe”) is a Michigan Corporation with its principal place of business located at 540 S. Saginaw Street, Suite 200, Flint, Genesee County, Michigan 48502. 125. Rowe at all relevant times herein based on its testing, examinations finding and reports as relates to the condition of the Flint River and the Flint water treatment plant, and rendering its professional expert opinion as to the safety of the continued use and confirmed safe continuous use of untreated water, by declaring the water safe, despite no use of corrosion control, perpetuated the exposure and re exposure to lead, iron, and the destruction of the Flint water delivery infrastructure. 126. Rowe maintains an office in Flint, Genesee County, Michigan; regularly conducts business in Flint, Michigan; and has committed torts in Flint, Michigan, which are among the basis for personal jurisdiction under MCL 600.705.
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127. Defendant Lockwood, Andrews, Newnam, Inc. and Lockwood, Andrews, Newnam, P.C. (“LAN”), is a wholly owned subsidiary of Leo A Daly (“Daly”). 128. LAN, Inc., is a Texas corporation with its principal place of business in Texas. 129. LAN, P.C., is a Michigan corporation with its principal place of business in Michigan.. 130. Daly is a Nebraska corporation. 131. LAN, at all relevant times herein based on its testing, examinations, finding and reports as relates to the condition of the Flint River and the Flint water treatment plant, and rendering its professional expert opinion as to the continued use of and confirmed safe continuous use of untreated water, by declaring the water safe, despite no use of corrosion control, perpetuated the exposure and re exposure to lead, iron, and the destruction of the Flint water delivery infrastructure. 132. LAN maintains an office in Flint, Genesee County, Michigan, regularly conducts business in the Eastern District of Michigan, and has committed a tort in the State of Michigan, among bases for personal jurisdiction under MCL 600.705, and each of these bases extends to this District specifically.
JURISDICTION AND VENUE
133. This Court has jurisdiction over Plaintiffs’ 42 U.S.C. § 1983 claims pursuant
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to 28 U.S.C. § 1331, 18 U.S.C. 1962 (c) and (d) as those claims arise under the Constitution and laws of the United States and the 14th Amendment of the Constitution of the United States. 134. This Court has jurisdiction over Plaintiffs’ remaining claims pursuant to 28 U.S.C. § 1367 because they are so related to claims in this action within the Court’s original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. 135. This Case does not present novel or complex issues of State law that predominate over claims for which this Court has original jurisdiction. 136. There are no compelling reasons for declining supplemental jurisdiction over those of Plaintiffs’ claims that do not arise under 42 U.S.C. § 1983, claims pursuant to 28 U.S.C. § 1331, 18 U.S.C. 1962 (c) and (d) and those claims arise under the Constitution and laws of the United States and the 14th Amendment of the Constitution of the United States. 137. All Defendants reside in this district within the meaning of 28 U.S.C. § 1391(c). 138. This Court has personal jurisdiction over all individual Defendants because a Michigan Court would have personal jurisdiction under MCL 600.701 and MCL 600.705. 139. Venue in this District is appropriate pursuant to 28 U.S.C. § 1391(b) (1) and
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(2). STATEMENT OF FACTS
140. This case arises from the catastrophic preventable failures, reckless representations and continued misrepresentations of the all the defendants including the EPA, that all time applicable herein, the water from the Flint River was safe, with a depraved indifference to the health, safety, and welfare of the citizens of Flint, resulting in personal injury to infant children and adults when attempting to solve the municipal budget crisis with an Emergency Fiscal Plan to balance the budget of Flint. 141. This case arises from the catastrophic preventable failures, reckless representations and continued misrepresentations of the all the defendants including the EPA, that at all times applicable herein the water from the Flint River was safe, diminishing the value of the property and businesses of the citizens of Flint, when attempting to solve the municipal budget crisis with an Emergency Fiscal Plan to balance the budget of Flint. 142. The concerted actions of the defendants herein has undermined all levels of trust in the Michigan government at the Federal, State and local levels. 143. The actions of Snyder, Dillon, Clinton, Muchmore, MDEQ and MDHHS and their employees, the Emergency Managers, city of Flint employees, by forcing
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them to sell unsafe water at price gouging rates, and then deliberately misrepresenting that this water was safe, caused Michigan’s seventh largest city to suffer a catastrophe one might expect to see in a third world country. 144. Rowe, LAN, and Veolia contributed to this disaster when they negligently and recklessly undertook to provide and rendered paid professional expert services regarding the feasibility and safety and continued safety of the Flint’s water system and the connection to the Flint River, which resulted in thousands of exposures and re-exposures to lead and other contaminants and other poisons and substantial property damage in the City of Flint. 145. A number of heroic outside experts collectively forced the Defendants to acknowledge their mistakes. 146. Without these outside experts the unmitigated poisoning of Flint’s residents would have continued indefinitely. 147. The intentional Rico Emergency Fiscal Scheme to balance the budget of Flint at any cost including the depraved indifference to the property and businesses of the citizens of Flint with depraved indifference to the structural integrity of the infrastructure began when Snyder,Dillon and Clinton replaced and subsumed the elected Flint leadership with Emergency Managers.
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The State of Michigan Completely Overtook and Replaced Flint’s Representative City Government and Divested the Citizens of Flint of Due
Process and Equal Protection 148. Since 1988, the State of Michigan has had some form of emergency management law for municipal financial crises. 149. Under Snyder’s business-like approach to government, Michigan’s emergency management regime has been aggressively strengthened and deployed. 150. In 2011, Governor Snyder signed Public Act 4 of 2011 (“PA 4”) into law, strengthening the power provided to Emergency Financial Managers and changing their title to “Emergency Managers.” 151. PA 4 allowed the State of Michigan to appoint an Emergency Manager to functionally replace the entirety of a municipal government where the state found a “Financial Emergency.” 152. PA 4 was temporarily suspended after more than 200,000 signatures were collected in an effort to conduct a statewide referendum. 153. PA 4 was taken off of the books after the statewide referendum decided in favor of repealing it. 154. PA 4 was quickly replaced when Snyder signed Public Act 436 of 2012 (“PA 436”) into law. 155. PA 436 provides local governments with a “choice” as to whether an Emergency Manager will be appointed.
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156. The local government may “choose” between a consent agreement, chapter 9 bankruptcy, mediation, or an Emergency Manager with similar broad powers Emergency Managers were given under PA 4, which was repealed. 157. PA 436 forced Emergency Managers on the local government of Flint under the illusion of Flint’s ability to determine their own governance. PA 436 is to “preserve the capacity of local units of government… to provide or cause to be provided necessary services essential to public health, safety, property and welfare[.]” 158. PA 436 specifies that “[u]pon appointment, an emergency manager shall act for and in the place and stead of the governing body and the office of chief administrative officer of the local government.” Emergency Manager Statute and MCL 141.1549(2). 159. The Emergency Manager’s mandate is to “assure . . . the local government’s capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare.” Emergency Manager Statute and MCL 141.1549(2). 160. A PA 436 Emergency Manager “serve[s] at the pleasure of the governor.” MCL 141.1549(3) (d). 161. At all times between December, 2011 and April 30, 2015, the City of Flint was under the control and authority of an Emergency Manager appointed by, and
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reported to Snyder, Dillon and Clinton. 162. Michael Brown served Governor Snyder and Treasurer Dillon as Flint’s Emergency Manager from December of 2011, until August of 2012. 163. Ed Kurtz served Governor Snyder and Treasurer Dillon as Flint’s Emergency Manager from August of 2012, until July of 2013. 164. Michael Brown again served Governor Snyder and Treasurer Dillon as Flint’s Emergency Manager from July of 2013, until October of 2013. 165. Darnell Earley served Governor Snyder, Dillon and Clinton as Flint’s Emergency Manager from October of 2013, until January of 2015. 166. Gerald Ambrose served Governor Snyder, and Clinton as Flint’s Emergency Manager from January of 2015, until April 30, 2015. 167. Therefore, at all relevant times prior to April 30, 2015, Flint’s local government was subsumed and under the complete control of the State of Michigan. 168. At all relevant times, all financial decision making and fiscal policy for the City of Flint was made by Flint’s Emergency Manager, who acted on behalf of, and with approval of, Snyder, Dillon, Clinton and the state of Michigan. 169. Any powers of government held by the City of Flint were entirely illusory. 170. The policy of Snyder, Dillon, Clinton, and the State in implementing Emergency Managers ensured that the public welfare, public services, public safety, public property, public health and other important government functions
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were subsumed to financial decisions made by unelected officials. 171. Through the appointment of an Emergency Manager, Snyder, Dillon, and Clinton turned a municipal fiscal problem in Flint into a humanitarian crisis through the coordinated and systematic effort of all of the Defendants. 172. At the mid-point of the Fiscal Year 2012 (“FY12”) the Flint budget was significantly out of balance. 173. During the fiscal years of 2014 and 2015, Flint’s budget was under the control of the Emergency Manager acting on behalf of, and with the approval of, Snyder, Clinton, Dillon, and the State of Michigan. 174. By June 30, 2015, the original financial deficit that existed as of FY 2013 of $12.9 million was eliminated and a positive fund balance in the amount of $3.3 million existed. 175. The positive budget surplus achieved by the City of Flint was accomplished by the Emergency Managers’ Emergency Fiscal Plan, with a depraved indifference for the health, safety, and welfare of the predominately non-white citizens of Flint. 176. Indeed the Emergency Managers disregarded their mandates to protect the public health, safety and welfare under the Emergency Manager statute, and employed unsavory tactics including racial discrimination, price gouging and a switch to a known dangerous, unsafe water source. 177. In 2010, the EPA commissioned a report that indicated problems with the
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MDEQ’s ability to ensure safe drinking water. 178. The report indicated a number of technical shortcomings with the way the MDEQ regulated the state’s drinking water, particularly as it related to lead contamination. 179. Specifically, the report noted that while federal regulations require water utilities to certify that the drinking water of 90% of homes in a given community contain no more than 15 parts per billion (“ppb”) of lead, MDEQ had a practice of not even calculating “90th percentiles” unless a potential exceedance had been identified. This “does not meet the requirements of Federal Regulations, since it is required that all 90th percentiles be calculated.” 180. The report also noted that MDEQ did not conduct the required number of water samples for lead. 181. Those failures were compounded when Snyder, Dillon, Clinton, and the state of Michigan approved the Emergency Manager’s decision to switch to and bill for the free Flint River in a scheme to balance the Flint budget while failing to implement proper safeguards prior to distributing and selling this water to Flint’s residents. 182. The EPA is responsible for setting and enforcing rules. 183. Enforcement and implementation of those rules is delegated to the state environmental agency, MDEQ.
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184. The EPA’s Lead and Copper Rule (“LCR”) has been enacted to establish protocols to ensure that public water systems do not allow unsafe levels of lead or copper to contaminate their infrastructure. 185. While failing to protect the residents of Flint, the MDEQ knowingly violated both the letter and spirit of the LCR, allowing corrosive water to destabilize the metallurgically intact Flint water delivery infrastructure and release the elements of lead and iron into the Flint system. 186. Specifically, the MDEQ violated the LCR in at least the following ways:
a. By failing to require corrosion control for Flint River water from the time Flint began drawing it;
b. By misinforming the EPA about whether corrosion control was being utilized; and
c. By improperly conducting sampling. 187. The MDEQ, through its former director Wyant, and employees has explicitly admitted that it did not follow the LCR. 188. Instead, MDEQ through their employees named as defendants herein, engaged in a pattern of repeated misrepresentations, and deceptions of federal and state law that existed to ensure established water quality standards were adhered to which were relied on by the citizens of Flint.
The Decision to Switch to the Unsafe Flint River
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189. For approximately 50 years prior to April 25, 2014, the City of Flint paid for and received safe, clean, treated drinking water from the DWSD. 190. If the Flint River had been a safe and viable primary water source, Flint would have used it prior to April 25, 2014, and would never have paid millions of dollars for water from DWSD. 191. In Februaryof 2012, Emergency Manager Brown wrote to KWA suggesting that Flint join the yet-to-be-operational KWA due to cost savings over DWSD. 192. In November of 2012, Emergency Manager Kurtz wrote to Treasurer Dillon suggesting that Flint join the KWA due to cost savings over DWSD. 193. In April, 2013, Dillon and Snyder gave Emergency Manager Kurtz permission to notify the DWSD that it would be terminating service and would be contracting with and switching to the KWA in the coming years. 194. At the time this decision was made, it was known by Snyder, Dillon, and Emergency Manager Kurtz that the KWA water supply would not be available for at least 2 ½ years or until late 2016 and therefore a significant time gap existed between the termination of DWSD and the connection to KWA. 195. While waiting for the KWA to come online, during this known 2 ½ year time gap, the Emergency Manager, Snyder, Dillon, and Clinton ordered that instead of temporarily remaining a water purchaser from DWSD, the City of Flint would switch to becoming for profit water purveyors of the unsafe but free Flint River.
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196. This allowed the State to bill for unsafe water, through the City of Flint, in furtherance of their fiscal scheme, with no say whatsoever on the part of Flint residents, in order to balance the Flint fiscal budget with a depraved indifference to the structural integrity of the infrastructure, and with no safeguards to protect them under the mandate of the Emergency Manager statute to maintain the public health, safety, and welfare of the non-white citizens of Flint. 197. The Flint River was studied for use as a primary water source in a 2011 Rowe feasibility study at the request of the government defendants named herein. 198. At that time, the River was rejected because the costs to prepare Flint’s water treatment plant to treat Flint River water to bring it to applicable safety standards were estimated to be in the tens of millions of dollars. 199. Moreover, the Flint River was unsuitable for use without significant improvements that were cited as necessary prior to use of the Flint River in Rowe’s feasibility study. 200. It was known by the defendants that to safely use the Flint River as a primary water source, the only option was to make costly upgrades to Flint’s water treatment plant. 201. On January 23, 2013, Prysby e-mails colleague Shekter Smith and others about feasibility of Flint switching to the Flint River, highlighting water quality concerns.
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202. On March 26, 2013, Busch e-mails Wyant with Shekter Smith and other MDEQ staff copied, with warnings about public health risks associated with Flint River water. 203. On November 7, 2013, Rowe was re-hired by Flint’s Emergency Manager for professional services for the 2014 fiscal year, where Rowe would serve as Acting City Engineer. 204. On March 7, 2014, Emergency Manager Earley sent a letter to the DWSD stating “[w]e expect that the Flint Water Treatment Plant will be fully operational and capable of treating Flint River water prior to the date of termination. In that case, there will be no need for Flint to continue purchasing water to serve its residents and businesses after April 17, 2014.” 205. The only thing that defendant Earley knew and cared about was whether Flint’s connection to the Flint River would occur as planned in furtherance of his, Snyder, Dillon, Clinton, and state of Michigan’s, racist and price gouging revenue profiteering scheme. 206. Emergency Manager Earley, Snyder, Dillon, and Clinton knew that Flint water treatment plant had not made the required multimillion dollar upgrades and was not ready to switch to and send through the Flint water delivery infrastructure, and was not safe and potable, but Earley nevertheless forced the transition through in order to meet an aggressive timeline to begin profiteering and price gouging
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billing immediately for free Flint River water. 207. Michael Glasgow, the City of Flint’s water treatment plant’s laboratory and water quality supervisor informed the MDEQ on April 16, 2014, that he was “expecting changes to our Water Quality Monitoring parameters, and possibly our Disinfection Byproduct monitoring on lead & copper monitoring plan… Any information would be appreciated, because it looks as if we will be starting the plant up tomorrow and are being pushed to start distributing water as soon as possible… I would like to make sure we are monitoring, reporting and meeting requirements before I give the OK to start distributing water.” 208. The next day, Glasgow wrote to MDEQ, including Prysby and Busch, noting that he “assumed there would be dramatic changes to our monitoring. I have people above me making plans to distribute water ASAP. I was reluctant before, but after looking at the monitoring schedule and our current staffing, I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction. I need time to adequately train additional staff and to update our monitoring plans before I will feel we are ready. I will reiterate this to management above me, but they seem to have their own agenda.” 209. On March 26, 2014, Busch e-mails Shekter Smith and Richard Benzie/MDEQ on clarifying what Flint will be required to do before beginning full-
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time Flint water treatment plant operation. 210. The rushed nature of the transition to Flint River water is also evident by a request made by Earley’s assistant to the treasurer for a contract to be expedited in order to meet the “aggressive timeline” of the switch. 211. On March 26, 2014, Busch e-mailed Shekter Smith and another colleague the following: “One of the things we didn’t get to today that I would like to make sure everyone is on the same page on is what Flint will be required to do in order to start using their plant full time. Because the plant is setup for emergency use, they could startup at any time, but starting up for continuous operation will carry significant changes in regulatory requirements so there is a very gray area as to what we consider for startup.” 212. An April 23, 2014 e-mail from Busch to Wurfel developed talking points for an upcoming Flint meeting that was scheduled to address the Flint River connection. Among the points made, Busch offered: “While the Department is satisfied with the City’s ability to treat water from the Flint River, the Department looks forward to the long term solution of continued operation of the City of Flint Water Treatment Plant using water from the KWA as a more consistent and higher quality source water.” 213. On April 25, 2014, Flint officially began purveying and using the Flint River as its primary water source, despite the fact that it was known that no proper
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preparations had been made. 214. The same day, Flint Mayor Dayne Walling publicly declared “It’s regular, good, pure drinking water, and it’s right in our backyard.” 215. Flint Department of Public Works, Director, Howard Croft also stated in a press release that “The test results have shown that our water is not only safe, but of the high quality that Flint customers have come to expect. We are proud of that end result.” 216. This transition put Flint in the business of water purveying and revenue collecting from the Flint River, a free water source. 217. LAN was hired to prepare Flint’s water treatment plant for the treatment of water sources, from both the Flint River, and later, the KWA. 218. Flint’s water treatment plant had not needed to treat the water received from DWSD, but only needed to distribute the DWSD water through the Flint water treatment infrastructure, because the DWSD provided the water in an already treated state. 219. LAN was hired to provide professional expert services to make Flint’s water treatment plant sufficient to treat water from the known unsafe Flint River and, roughly 2 ½ years later, from the KWA. 220. Both LAN and Rowe failed in this task. 221. Their actions further facilitated the reckless connection to the unsafe Flint
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River, without the proper treatment needed, and without the tens of millions of dollars of upgrades to the Flint water treatment plant, nor corrosion control, which Defendants knew or should have known was required to safely sell and distribute Flint River water to Flint’s residents. 222. An important consideration any time a water system changes sources is to account for differences in those sources. 223. According to the EPA, “it is critical that public water systems, in conjunction with their primary agencies and, if necessary, retain outside technical consultants, to evaluate and address potential impacts resulting from treatment and/or source water changes.” 224. In Rowe’s 2011 feasibility report, Rowe emphasized the need for treatment to the Flint River water and for improvements to Flint’s water treatment plant in the event that the river was to be used as a primary source. 225. LAN submitted a proposal to the city of Flint for “ Flint Water Treatment Rehabilitation Phase II (LAN’s 2013 Proposal). The proposal is to make “ improvements…intended to help the city operate the plant on a full time basis using the Flint River.” The proposal is signed by J. Warren Green, Professional Engineer ( Project Director ), and Samir F. Matta, Professional Engineer ( Senior Project Manager ). 226. The State of Michigan (on its own or through its control of the City of Flint),
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the MDEQ, the Emergency Manager, Rowe, LAN and Veolia disregarded their own findings regarding necessary water treatment, and necessary water distribution plant upgrades. 227. Furthermore, these defendants acted with depraved indifference by allowing Flint River water to be sent through the Flint water delivery infrastructure without corrosion control treatment that was required to safely maintain the metallurgical structural integrity of the Flint infrastructure to protect the public health, safety, welfare and property. 228. MDEQ, LAN, Rowe and Veolia were responsible for ensuring that Flint set water quality standards and properly treated its water. 229. Water becomes more corrosive when it contains greater quantities of chloride, which can enter the water from manmade and natural sources. 230. Flint River water is known to contain many times more chloride than DSDW water. 231. It is well known that corrosive water that is not properly treated results in the corrosion of metallurgically stable pipes, such that the metals in the pipes destabilize and leach into the system and infrastructure. 232. Phosphates are often added to corrosive water as a method of corrosion control, to prevent metals from leaching into the system. 233. At the time of the switch to Flint River water, no phosphates were being
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added to the system. 234. Nothing was being done to prevent the corrosive Flint River water to enter the infrastructure and to the taps of the citizens of the city of Flint, despite prior knowledge of the dangers of doing so, possessed by MDEQ, the Flint water treatment plant personnel, LAN, Rowe, and Veolia. 235. As a result of the failure to properly treat the Flint River, corrosive water was delivered into and throughout the Flint water delivery infrastructure. 236. As all Defendants were aware, the corrosive water predictably corroded and metallurgically destabilized the heretofore stable metal pipes of the Flint water delivery infrastructure, causing the elements of lead and iron to be leached from and released into the system. 237. The corrosive nature of the water was immediately apparent. 238. Soon after the switch to the Flint River, the residents of Flint began complaining about discolored water—clearly indicating that iron and lead were in the system. 239. This is particularly important where portions of the delivery system, included but not limited to service lines, are made of lead. 240. An estimated 15,000 of Flint’s 30,000 residential service lines are composed of lead. 241. The exact number is presently unknown given the city of Flint’s negligent,
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sloppy record keeping and lack of inquiry into this public safety matter. 242. Lead is a powerful neurotoxin with devastating, irreversible impacts on the development of children, in utero fetuses, and also causes injury to adults. 243. There is no safe level of lead as its effects are harmful even at low levels. 244. Lead exposure in children and heightened levels of lead in the blood and body, result in problems including but not limited to decreased IQ, behavioral problems, irreversible brain damage, hearing impairment, attention deficit disorder, learning disabilities, need for lifetime medical treatment and monitoring, loss of earnings, impaired balance and nerve function, infections, skin problems, digestive problems, and psychological disorders. 245. Lead also causes serious health effects in adults, including digestive, cardiovascular, and reproductive problems, kidney damage, dizziness, fatigue, weakness, depression and mood disorders, diminished cognitive performance, nervousness, irritability, and lethargy. 246. Lead contamination is not the only problem that is caused when corrosive water is distributed into a public water system. 247. When water corrodes iron pipes, the iron leaching into the water system can consume the chlorine therein, which is necessary to prevent the growth of microorganisms that can cause disease. 248. With chlorine consumed by iron, the risk of infection by organisms such as
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legionella increases. 249. Corrosion of iron water pipes is obvious when it occurs, as the water appears discolored. 250. The corrosion of iron pipes can also result in an increase in water main leaks and breaks. 251. The signs of iron corrosion are a warning sign that lead corrosion may also be present, since both are caused by the same phenomenon. 252. Almost immediately after the water source was approved and connected to the Flint River, signs of trouble with Flint’s water quality began to surface. 253. Within weeks, many residents began to complain about odorous, discolored water. 254. As complaints rolled in, Mayor Walling called the water a “safe, quality product,” and claimed that “people are wasting their precious money buying bottled water.” 255. In August and September, 2014, the City of Flint issued two boil water advisories after fecal coliform bacteria was discovered in the water. 256. On October 13, 2014, General Motors ceased the use of Flint River water at its engine plant because of fears that it would cause corrosion due to high levels of chloride. 257. Discussing General Motors’ decision, Prysby wrote to Busch, Shekter Smith
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and others that the Flint River water had elevated chloride levels. He stated that “although not optimal” the water was “satisfactory.” 258. Prysby noted that he had “stressed the importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing facility’s limit for production.” 259. On October 14, 2014, Valerie Brader, State Deputy Legal Counsel and Senior Policy Advisor, emails Muchmore and other top aides arguing for a return to DWSD because of water quality problems. Michael Gadola, then the Governor's Legal Counsel, responds by agreeing with Brader. Brader and Rich Baird, another senior aide to the Governor, then discuss the idea with Emergency Manager Darnell Earley, who maintains the water quality problems can be solved and it would be costprohibitive to return to DWSD. 260. In October of 2014, Muchmore briefed Snyder and blamed iron pipes, susceptible to corrosion and bacteria, for the two boil water advisories. 261. On November 26, 2014, LAN issued a 20-page Operation Evaluation Report intended to address the Flint River water’s compliance with EPA and MDEQ operations and regulations. 262. The LAN report entirely failed to address the hazard of lead associated with the corrosive water flowing through the pipes. 263. On January 2, 2015, the City of Flint mailed a notice to its water customers
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indicating that it was in violation of the Safe Drinking Water Act due to the presence of trihalomethanes, which was a product of attempting to disinfect the water. 264. It was claimed that the water was safe to drink for most people with healthy immune systems. 265. On January 9, 2015, the University of Michigan – Flint discovered lead in campus drinking fountains. 266. With the water quality’s problems now obvious, on January 12, 2015, DWSD offered to waive a 4 million dollar reconnection fee to allow the City of Flint to transition back to purchasing the safe DWSD water which Flint had been purchasing for roughly 50 years. 267. Ambrose declined the offer. 268. On January 21, 2015, enraged Flint residents attended a meeting at Flint City Hall, bringing jugs of discolored water and complaining about the water’s smell and taste. 269. As early as January of 2015, the State of Michigan secretly provided purified water coolers to the Flint State offices, in response to concerns by the state employees working therein, about the Flint River drinking water, while state employees continued to tell the public that the Flint River water was safe to drink. 270. On January 29, 2015, in an e-mail to MDEQ deputy director Jim Sygo, Shekter Smith made statements indicating her knowledge of the Flint River’s
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corrosivity. “I’m theorizing here, but most likely what they are seeing is a result of differing water chemistry. A change in water chemistry can sometimes cause more corrosive water to slough material off of pipes as opposed to depositing material or coating pipes in the distribution system. This may continue for a while until things stabilize. It would be unusual for water leaving the plant to have color like people are seeing at their taps. Generally this is a distribution system problem or a premise plumbing issues. Since it appears wide-spread, it’s most likely a distribution system problem.” 271. On February 6, 2015, an Emergency Manager staff member wrote to Prysby, described as the MDEQ’s “most knowledgeable staff member on the Flint and Genesee County water supply issues,” asking whether Prysby knew whether the MDEQ had ever conducted a “source water assessment” for the Flint River. 272. After an initial response stating that he did not know, Prysby later responded that a study on the Flint River as an emergency intake had been conducted in 2004. 273. The 2004 study noted that the Flint River was a highly sensitive drinking water source that was susceptible to contamination, yet apparently Prysby ignored the 2004 study, or recklessly and willfully closed his eyes to its findings, so that the Flint River could be approved for use as a water source. 274. On March 3, 2015, Ambrose sent a memorandum to the Michigan Department of Treasury claiming that reconnecting to DWSD would cost at least
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ten (10) million dollars per year, with bills as high as one (1) million dollars per
month.
275. Ambrose stated that “[i]f $12 million annually were available for
discretionary use, it would be far better spent reducing rates (which were the highest
in the nation) paid by Flint customers and/or modernizing the City’s system.”
276. According to Ambrose “[t]he oft-repeated suggestion that the City should
return to DWSD, even for a short period of time, would, in my judgment, have
extremely negative financial consequences to the water system.”
277. On March 10, 2015, a Genesee County Health Department employee named
James Henry wrote the following scathing message to Croft, Prysby, and others:
“The Genesee County Health Department has made several written and verbal requests for specific information since October 2014, including a Freedom of Information Act request on January 27, 2015. The information still has not been received and the city’s lack of cooperation continues to prevent my office from performing our responsibilities. The Genesee County Health Department has the responsibility to conduct illness investigation and consider all potential sources, this is not optional. In 2014, Genesee County experienced a significant increase of confirmed Legionella illnesses relative to previous years. Legionella can be a deadly, waterborne disease that typically affects the respiratory system. The increase in illnesses closely corresponds with the timeframe of the switch to Flint River water. The majority of the cases reside or have an association with the city. Also, McLaren Hospital identified and mitigated Legionella in their water. This is rather glaring information and it needs to be looked into now, prior to the warmer summer months when Legionella is at its peak and we are potentially faced with a crisis. This situation has been explicitly explained to MDEQ and many of the city’s officials. I want to make sure, in writing that there are no misunderstandings regarding this significant and urgent public health issues. The Trihalomethane issues
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‘pale in comparison’ to the potential public health risks of Legionella…. In the past, I have requested to meet with the water plant staff and MDEQ regarding Legionella concerns. I did not receive a response from the water plant staff and MDEQ declined. I think it is in the best interest for all stakeholders that we meet and discuss the issues.” 278. On February 26, 2015, Initial EPA-MDEQ correspondence regarding elevated lead in sample collected from LeeAnne Walters's house. Jennifer Crooks/EPA speculates Flint River water chemistry is leaching contaminants from pipes; this prompts the EPA's initial query of MDEQ about whether optimized corrosion control treatment (OCCT) is in place at the Flint WTP. 279. On February 27, 2015, in response to concerns about extremely high levels of lead in a resident’s water sample, Busch misrepresented to the EPA on behalf of MDEQ that the Flint Water Treatment Plant had an optimized corrosion control program in place. 280. Busch made the above statement to the EPA with actual knowledge that it was a misrepresentation and that no corrosion controls had been implemented. 281. Defendant employees of MDEQ were required to know whether Flint had an optimized corrosion control program, because ensuring the existence of that program was the express responsibility of MDEQ. 282. Defendant employees of MDEQ did in fact know that no optimized corrosion control had been implemented, since MDEQ was involved in the decision not to implement corrosion control.
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283. Also on February 27, 2015, the EPA’s regional drinking water regulations manager Miguel Del Toral began to voice his concerns about the likely cause of the high lead levels detected in Flint in an email to Defendant Prysby. 284. Del Toral attributed those levels to particulate lead, which would mean that the MDEQ’s testing methods of “pre-flushing” water from homes would bias samples low. He also inquired about optimized corrosion control, which he noted was required in this instance. 285. At another point in February, 2015, Snyder received a briefing on Flint’s water problems from MDEQ director Wyant, which included resident complaints about discolored, low quality tap water and a letter from a state representative indicating that his constituents were “on the verge of civil unrest.” 286. Snyder did not take any action in response to the residents’ direct pleas to him to address the unsafe water conditions in Flint. 287. Around the same time, MDEQ e-mails explained away “hiccups” in the transition to Flint’s water system, discounted the possibility of imminent threats to public health, and noted that the switch to the Flint River “put the city in the business of water production, where they had historically been in the business of water transmission.” It was claimed that “once the city connects to the new KWA system in 2016, this issue will fade into the rearview.” 288. The e-mail also noted that “MDEQ approved the use of river as a source[.]”
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289. Had the MDEQ properly studied the river and set water quality standards, it would have known what a disastrous idea this was. 290. In early 2015, Veolia was hired to conduct a review of the city’s water quality, largely in response to citizen complaints. 291. Veolia declared the water safe while the water poisoned tens of thousands of Flint residents and continuously damaged and weakened the structural integrity of the Flint water delivery infrastructure. 292. Veolia’s task was to review Flint’s public water system, including treatment processes, maintenance procedures, and actions taken. 293. As water treatment professionals, Veolia had an opportunity to catch what co-Defendant LAN and Rowe had missed or refused to warn about—that corrosive untreated water was being pumped throughout the Flint water delivery infrastructure and was destabilizing the metallugically intact pipes, stripping and releasing and the elements of lead and iron to be released in taps into the homes and businesses of Flint residents and throughout the infrastructure. 294. On January 29, 2015 Veolia, acting as Veolia Water North America Operating Services, LLC, through Mr. David Gadis, its Senior Vice President, Sales, Municipal and Commercial Development, submitted to the City of Flint its "Response to Invitation to Bid for Water Quality Consultant," Proposal No.: 15573 (Veolia's 2015 Bid4). Veolia proposes, "to address the immediate reliability
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and operational needs" of the City's water system. 295. On the 10th of February 2015, the City of Flint announced publicly that it would retain Veolia's water experts. Veolia Vice President David Gadis states: "We are honored to support your community with our technical expertise so that together we can ensure water quality for the people of the city of Flint." Mr. Gadis further states that Veolia has "extensive experience handling challenging river water sources, reducing leaks and contaminants and in managing discolored water." 296. On 12 February 2015 Veolia's Vice President Rob Nicholas states: "We're going to look at the numbers, we're going to look at the plant, we're going to decide how the equipment's functioning, look at the raw water, look at the finished water, decide how it's getting through the pipe to the house, and from that, decide how to fix each of those problems as we go forward." 297. Veolia issued an interim report on its findings, which it presented to a committee of Flint’s City Council on February 18, 2015. · 298. In its interim report, Veolia indicated that Flint’s water was “in compliance with drinking water standards.” It also noted that “[s]afe [equals] compliance with state and federal standards and required testing.” 299. In other words, Veolia publicly misrepresented that Flint’s unsafe water was safe. 300. Veolia’s interim report also noted that the discoloration in Flint’s water
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“raises questions,” but “[d]oesn’t mean the water is unsafe.” 301. The interim report noted that among Veolia’s “next steps” were to “carry out more detailed study of initial findings” and “[m]ake recommendations for improving water quality.” 302. In response to potential questions about “[m]edical problems,” Veolia’s interim report dismissively claimed that “[s]ome people may be sensitive to any water. “ 303. Veolia issued its final “Water Quality Report” dated March 12, 2015. 304. In the final report, Veolia noted that it had conducted a “160-hour assessment of the water treatment plant, distribution system, customer services and communication programs, and capital plans and annual budget.” 305. The final report claims that “a review of water quality records for the time period under our study indicates compliance with State and Federal water quality regulations.” 306. The final report states that “the public has also expressed its frustration of discolored and hard water. Those aesthetic issues have understandably increased the level of concern about the safety of the water. The review of the water quality records during the time of Veolia’s study shows the water to be in compliance with State and Federal regulations, and based on those standards, the water is considered to meet drinking water requirements.”
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307. Specifically addressing the lack of corrosion control, the final report notes that “[m]any people are frustrated and naturally concerned by the discoloration of the water with what primarily appears to be iron from the old unlined cast iron pipes. The water system could add a polyphosphate to the water as a way to minimize the amount of discolored water. Polyphosphate addition will not make discolored water issues go away. The system has been experiencing a tremendous number of water line breaks the last two winters. Just last week there were more than 14 in one day. Any break, work on broken valves or hydrant flushing will change the flow of water and potentially cause temporary discoloration.” 308. Therefore, in addition to failing to disclose the possible connection between the lack of corrosion control and both lead and iron leaching from the Flint water delivery infrastructure into the water, the resulting lead and iron contamination, as well as the ongoing and cumulative corrosion and weakening of the Flint water delivery infrastructure, Veolia made a permissive “could” suggestion aimed only at reducing aesthetic deficiencies while suggesting that Flint’s drinking water met all applicable requirements and was safe to drink. 309. As a result of Veolia’s depraved indifference, the residents of the city of Flint continued to be exposed to toxic lead throughout 2015 and continuing into 2016 without being warned of the dangers to public health, safety, welfare and property. 310. As evidence of problems mounted, Snyder, Dillon, Clinton, the state of
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Michigan, MDEQ and its employees, MDHHS and its employees, Emergency Managers, City of Flint and its employees LAN, Rowe, and Veolia, repeatedly denied the dangers facing Flint’s residents, insisting that their water was safe to drink, despite having knowledge and evidence to the contrary. 311. On March 23, 2015, Flint’s powerless City Council voted 7-1 to end Flint River service and return to DWSD. 312. EM Ambrose declared that vote “incomprehensible” and rejected the City Council proposal to end the sale and use of the Flint River as a water source. 313. EM Ambrose then publicly misrepresented that “Flint water today is safe by all Environmental Protection Agency and Michigan Department of Environmental Quality standards, and the city is working daily to improve its quality… water from Detroit is no safer than water from Flint.” 314. On April 24, 2015, the MDEQ finally admitted to the EPA that Flint did not have optimized corrosion control in place, thereby disclosing its prior misrepresentation from two months prior. 315. The flawed interpretation used by MDEQ and its Defendants employees amounted to another one year “free pass”, where the Flint River served as a free water source that generated significant revenue for Flint to balance the City budget, while it continued damaging the structural integrity of its infrastructure and damaging the health, safety and welfare of the predominately non-white city of
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Flint residents. 316. Shekter, Cook, Busch, and Prysby were expressly told by Mr. Del Toral that their sampling procedures skewed lead level results and did not properly account for the presence of lead in service lines. 317. In April of 2015, Mr. Del Toral issued a memorandum to the MDEQ, stating: “I wanted to follow up on this because Flint has essentially not been using any corrosion control treatment since April 30, 2014, and they have (lead service lines). Given the very high lead levels found at one home and the pre-flushing happening in Flint, I’m worried that the whole town may have much higher lead levels than the compliance results indicated, since they are using pre-flushing ahead of their compliance sampling.” 318. On April 27, 2015, Miguel Del Tora I/EPA e-mails Tom Poy/EPA and other colleagues stating that Pat Cook/MDEQ has confirmed the Flint WTP has no corrosion control treatment (CCT), which is "very concerning given the likelihood of lead service lines in the city." 319. Del Toral, EPA employee, and a national expert in the field, identified the problem, the cause of that problem, and the specific reason which the MDEQ, Rowe, LAN, and Veolia, each had failed to disclose. 320. The MDEQ ignored and dismissed his findings. 321. The MDEQ’s director, Wyant, was expressly aware of Del Toral’s comments
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and concerns. 322. On May 1, 2015, Cook sent an e-mail to Mr. Del Toral disagreeing with Del Toral’s interpretation of his own agency’s rules and vehemently resisting calls for a water quality study. 323. Cook noted that “[a]s Flint will be switching raw water sources in just over one year from now, raw water quality will be completely different than what they currently use. Requiring a study at the current time will be of little to no value in the long term control of these chronic contaminants.” 324. Cook, the MDEQ and all other Defendants named herein, believed they could simply run out the 2 ½ year clock on Flint’s water quality problem, despite its risks to public health, until the KWA water system neared completion. 325. Cook also claimed and misrepresented that “the City of Flint’s sampling protocols for lead and copper monitoring comply with all current state and federal requirements. Any required modifications will be implemented at a time when such future regulatory requirements take effect.” 326. On June 24, 2015, Mr. Del Toral authored an alarming memorandum more fully stating his concerns about the problems with MDEQ’s oversight of Flint. 327. The memorandum noted that the city was not providing corrosion control for mitigating lead and copper levels, “[a] major concern from a public health standpoint.”
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328. Further, “[r]ecent drinking water sample results indicate the presence of high lead results in the drinking water, which is to be expected in a public water system that is not providing corrosion control treatment. The lack of any mitigating treatment for lead is of serious concern for residents that live in homes with lead service lines or partial lead service lines, which are common throughout the City of Flint.” 329. Additionally, “[t]he lack of mitigating treatment is especially concerning as the high lead levels will likely not be reflected in the City of Flint’s compliance samples due to the sampling procedures used by the City of Flint for collecting compliance samples… . This is a serious concern as the compliance sampling results which are reported by the City of Flint to residents could provide a false sense of security to the residents of Flint regarding lead levels in their water and may result in residents not taking necessary precautions to protect their families from lead in the drinking water . . . [o]ur concern . . . has been raised with the [MDEQ].” 330. Del Toral’s memorandum also noted that a Flint resident, Ms. Lee-Anne Walters, who had directly contacted the EPA, had alarming results of 104 ug/L and 397 ug/L2, especially alarming given the flawed sampling procedures used by the MDEQ.
2 Ug/L is equivalent to parts per million or PPM
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331. The MDEQ had misrepresented to Walters that the lead was coming from the plumbing in her own home, but Del Toral’s inspection revealed that her plumbing was entirely plastic. 332. The memorandum also noted blood tests that showed Ms. Walters’s child had elevated blood lead levels, and that additional sample results from residentrequested samples showed high levels of lead. 333. Among those copied on Mr. Del Toral’s memorandum were Liane ShekterSmith, Pat Cook, Stephen Busch, and Michael Prysby. 334. On May 11, 2015, Jon Allan, director of the Michigan Office of the Great Lakes, e- mailed Shekter Smith for her reactions to the following language in a proposed report: “By 2020, 98 percent of population served by community water systems is provided drinking water that meets all health-based standards… By 2020, 90 percent of the non-community water systems provide drinking water that meets all health-based standards.” 335. Responding the same day, MDEQ Water Resources Division Chief William Creal replied: “I think you are nuts if you go with a goal less than 100 percent for (drinking water) compliance in the strategy. How many Flints do you intend to allow???” 336. Shekter Smith responded the next day: “The balance here is between what is realistic and what is ideal. Of course, everyone wants 100 percent compliance.
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The reality, however, is that it’s impossible. It’s not that we ‘allow’ a Flint to occur; circumstances happen. Water mains break, systems lose pressure, bacteria gets into the system, regulations change and systems that were in compliance no longer are, etc. Do we want to put a goal in black and white that cannot be met but sounds good? Or do we want to establish a goal that challenges us but can actually be accomplished? Perhaps there’s a middle ground?” 337. In July of 2015, Busch claimed that “almost all” homes in the pool sampled for lead in Flint had lead service lines. This was patently untrue and was made with no basis in fact, and the effect of this mistake made the lead testing results even more unreliable. Busch knew that it was not true, because Flint’s records were insufficient to allow him to make such a determination. 338. On July 9, ACLU-Michigan reporter Curt Guyette publicly broke the story about lead in Flint’s drinking water, citing Del Toral’s memorandum and exposing the lack of corrosion control in Flint’s water. 339. Four days later, Wurfel issued the following false public statement: “Let me start here- anyone who is concerned about lead in the drinking water in Flint can relax.” 340. On July 21, 2015, the EPA and MDEQ conducted a conference call regarding MDEQ’s implementation of the LCR. 341. EPA pushed for optimized corrosion control (which MDEQ had previously
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misrepresented to the EPA that Flint was already using), to which the MDEQ now responded that corrosion control was unnecessary and premature. 342. MDEQ could not have been more wrong. 343. Far from being premature, it was already too late to fully protect the predominately non-white people of Flint. 344. In an e-mail follow-up to that call, sent to an EPA employee, Shekter Smith stated “while we understand your concerns with the overall implementation of the lead and copper rule; we think it is appropriate for EPA to indicate in writing (an email would be sufficient) your concurrence that the city is in compliance with the lead and copper rule as implemented in Michigan… This would help distinguish between our goals to address important public health issues separately from the compliance requirements of the actual rule which we believe have been and continue to be met in the city of Flint.” 345. Shekter Smith’s statement indicates that she and the MDEQ were more concerned about proving technical compliance with the LCR than “address[ing] important public health issues.” 346. On July 22, 2015, Governor Snyder’s chief of staff, Muchmore, sent an email indicating his awareness of the problems with Flint’s water and the state’s inadequate response. He noted: “I’m frustrated by the water issue in Flint. I really don’t think people are getting the benefit of the doubt. Now they are concerned and
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rightfully so about the lead level studies they are receiving from DEQ samples. Can you take a moment out of your impossible schedule to personally take a look at this? These folks are scared and worried about the health impacts and they are basically getting blown off by us (as a state we’re just not sympathizing with their plight).” 347. Linda Dykema, director of the MDHHS Division of Environmental Health sent an email to a number of department employees attempting to discredit Mr. Del Toral, to this point the only government employee actively trying to protect Flint’s residents from lead poisoning 348. She claimed “[r]egarding the EPA drinking water official quoted in the press articles, the report that he issued was a result of his own research and was not reviewed or approved by EPA management. He has essentially acted outside his authority.” 349. On July 24, 2015, Wurfel wrote an e-mail to Busch, Prysby, Shekter Smith and Wyant, stating: “Guys, the Flint Ministers met with the Governor’s office again last week. They also brought along some folks from the community – a college prof and GM engineer – who imparted that 80 water tests in Flint have shown high lead levels. Could use an update on the January/June testing results, as well as recap of the December testing numbers, and any overview you can offer to edify this conversation?”
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350. Busch responded the same day in email to Wurfel copied to all others on the original e-mail, claiming that the second round of Flint drinking water testing showed a 90th percentile level of 11 parts per billion, almost double the prior round’s results. 351. Even with MDEQ’s terribly flawed sampling methods showing that lead levels had nearly doubled since the first six month testing, and even with outside evidence of even higher levels, Defendants showed no concern and took no immediate action to protect the health, safety and welfare of the predominately nonwhite people of Flint. 352. Busch also noted in his e-mail that Flint would be completing “a study (within 18 months) and are allowed a period of additional time (2 additional years) to install the selected treatment for fully optimized corrosion control.” 353. On July 24, 2015, Wurfel wrote the following to recipients including Muchmore and Wyant: “Guys, here’s an update and some clarification on the lead situation in Flint. Please limit this information to internal for now…By the tenants of the federal statute, the city is in compliance for lead and copper. That aside, they have not optimized their water treatment… Conceivably, by the time we’re halfway through the first timeline, the city will begin using a new water source with KWA… and conceivably, the whole process starts all over again. In terms of near-future issues, the bottom line is that residents of Flint do not need to worry
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about lead in their water supply, and DEQ’s recent sampling does not indicate an eminent health threat from lead or copper.” 354. In August, 2015, the EPA pressed MDEQ to move faster on implementing corrosion control in Flint. 355. On August 23, 2015, Virginia Tech Professor Marc Edwards wrote MDEQ to inform them that he would be conducting a study of Flint’s water quality. 356. On August 27, 2015, Professor Edwards’s preliminary analysis was released. More than half of the first 48 samples he tested came back above 5 ppb, and more than 30% of them came back over 15 ppb, which would be unacceptable even as a 90th percentile. He called the results “worrisome.” 357. In an e-mail response to a Governor’s office inquiry regarding the high lead levels in residents’ homes and the discrepancy between those numbers and the state’s test results, Wurfel misrepresented that “[d]on’t know what it is, but I know what it’s not. The key to lead and copper in drinking water is that it’s not the source water, or even the transmission lines (most of which are cast iron). It’s in the premise plumbing (people’s homes).” 358. This false statement was made despite the facts that about half of Flint’s homes are connected to lead service lines, and that it was clear by this point that Ms. Walters’s home had plastic plumbing. 359. Wurfel then blamed Mr. Del Toral, the ACLU, and others taking action to
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help Flint’s residents, stating: “This person is the one who had EPA lead specialist come to her home and do tests, then released an unvetted draft of his report (that EPA apologized to us profusely for) to the resident, who shared it with ACLU, who promptly used it to continue raising hell with the locals… [I]t’s been rough sledding with a steady parade of community groups keeping everyone hopped-up and misinformed.” 360. On August 28, 2015, an EPA employee notified Shekter Smith and other MDEQ employees that “Marc Edwards (Virginia Tech) is working with some of the citizens in Flint and they are finding lead at levels above five parts per billion and some above 15 parts per billion. There’s no indication of whether any of these homes were also sampled and analyzed by Flint and will now be part of their compliance calculations. Virginia Tech sent out 300 bottles and have gotten 48 back. We are not involved in this effort by Dr. Edwards.” 361. On September 2, 2015, Wurfel engaged in further efforts to discredit Edwards, this time in a press release. He misrepresented that: “[W]e want to be very clear that the lead levels being detected in Flint drinking water are not coming from the treatment plant or the city’s transmission lines… The issue is how, or whether, and to what extent the drinking water is interacting with lead plumbing in people’s homes….the results reported so far fail to track with any of the lead sampling conducted by the city. In addition, Virginia Tech results are not reflected by the
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blood lead level testing regularly conducted by the state department of community health that have not shown any change since Flint switched sources.” 362. On September 6, 2015, Wurfel’s continued attempt to discredit Edwards’s lead level results was published through Michigan Public Radio: “The samples don’t match the testing that we’ve been doing in the same kind of neighborhoods all over the city for the past year. With these kinds of numbers, we would have expected to be seeing a spike somewhere else in the other lead monitoring that goes on in the community.” 363. Had the MDEQ or MDHHS been doing their jobs, they would indeed have seen spikes in all other forms of lead monitoring. 364. MDEQ had been told exactly why its testing failed to reveal extremely high levels of lead. 365. Edwards published a report in early September, 2015, with startling findings. Among them: “FLINT HAS A VERY SERIOUS LEAD IN WATER PROBLEM”; “101 out of 252 water samples from Flint homes had first draw lead more than 5 ppb”; “Flint’s 90th percentile lead value is 25 parts per billion… over the EPA allowed level of 15ppb that is applied to high risk homes… How is it possible that Flint ‘passed’ the official EPA Lead and Copper Rule sampling overseen by MDEQ?”; “Several samples exceeded 100ppb and one sample collected after 45 seconds of flushing exceeded 1,000 ppb[.]”
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366. Additional Edwards’s findings included that “[o]n average, Detroit water is 19 times less corrosive than the Flint River water currently in use.” 367. The predominately non-white residents of Flint were used as guinea pigs in a “test then treat” scenario that ensured absolutely no protection from lead contamination, thereby facilitating continued profiteering and price gouging per the Emergency Fiscal Scheme to raise substantial revenue from water sales from free water paid for by Flint residents, with a depraved indifference to the residents’ health, safety, and property. 368. Edwards predicted that “in the weeks and months ahead MDEQ, MDHHS, and Flint will be forced to admit they failed to protect public health as required under the Federal Lead and Copper Rule.” 369. Another Wurfel hit job on Professor Edwards and his team occurred on September 9, 2015, when he falsely told a reporter: “[T]he state DEQ is just as perplexed by Edwards’s results as he seems to be by the city’s test results, which are done according to state and federal sampling guidelines and analyzed by certified labs.” 370. Wurfel also claimed that Edwards’s team “only just arrived in town and (have) quickly proven the theory they set out to prove, and while the state appreciates academic participation in this discussion, offering broad, dire public health advice based on some quick testing could be seen as fanning political flames
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irresponsibly.” 371. Wurfel and MDEQ publicly attempted to discredit the people working to protect the public health, by providing false assurances to Flint’s residents that the water was safe, while said water continued to lead poison them. 372. On September 10, 2015, Dr. Yanna Lambrinidou, a member of the EPA National Drinking Water Advisory Council Lead and Copper Rule workgroup wrote to Wurfel and Busch, requesting information on “optimal water quality parameter ranges” that MDEQ should have set for Flint’s water. 373. No such information existed, because MDEQ had never created it. 374. Busch responded “[a]ll previous water quality parameter ranges would have been established for the City of Flint’s wholesale finished water supplier, the Detroit Water and Sewerage Department, not the City of Flint itself. As the City of Flint has not yet established optimized corrosion control treatment, the MDEQ is not yet at the point of regulatory requirements where the range of water quality parameters would be set.” 375. Water quality parameter ranges ensure safe levels of things like PH, nitrates and phosphates. 376. Dr. Lambrinidou replied “do you mean that MDEQ never set optimal water quality parameter ranges specifically for Flint before Flint’s switch to Flint River water? It is my impression, please correct me if I’m wrong, that under the LCR, all
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large systems – whether they are consecutive or not – must have optimal water quality parameter ranges designated by states specifically for them (at the time when these systems are deemed to have optimized their treatment). Is there language in the LCR I am missing that allows a utility not to have optimal quality parameter ranges established specifically for it? My second question is this: If the City of Flint had no optimal water quality parameter ranges established specifically for it in the past, how did it achieve LCR compliance? Isn’t it the case that utilityspecific optimal water quality parameter ranges (and maintenance of these ranges) are required for all large systems to avoid an LCR violation?” 377. On September 25, 2015 Busch responded by reiterating that Flint was not required to implement corrosion control until unacceptably high levels of lead had already appeared in the water. 378. A September 10, 2015 e-mail from the EPA’s Jennifer Crooks to Shekter Smith, summarizing an apparent EPA-MDEQ conference call, acknowledged that Professor Edwards’s study “[was] putting added pressure on MDEQ, and EPA to ensure that Flint addresses their lack of optimized corrosion control treatment in an expedited manner in order to protect the residents from exposure to high lead levels.” Further, “EPA acknowledged that to delay installation of corrosion control treatment in Flint would likely cause even higher levels of lead over time as Flint’s many lead service lines are continuously in contact with corrosive water.”
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379. In a September 17, 2015 letter, Wyant wrote a letter in response to an inquiry from various legislators, disavowing any responsibility for reacting to Mr. Del Toral’s alarm- sounding memorandum: “With respect to the draft memo referenced in your letter, the MDEQ does not review or receive draft memos from the USEPA, nor would we expect to while it is a draft.” 380. Wyant’s statement was made despite the fact that he and the MDEQ were fully aware of Del Toral’s memorandum and the concerns it raised, and this apparent MDEQ policy served to justify ignoring Del Toral while the profiteering from sales of unsafe water to Flint residents continued. 381. On September 15, 2015, MLive published an article entitled “Virginia Tech professor says Flint’s tests for lead in water can’t be trusted.” Edwards is quoted as recommending a return to DWSD, stating “Flint is the only city in America that I’m aware of that does not have a corrosion control plan in place to stop this kind of problem.” 382. On September 23, 2015, an e-mail from Croft containing misrepresentations and omissions was sent to numerous officials, and included the following: “I am pleased to report that the City of Flint has officially returned to compliance with the Michigan Safe Drinking Water Act and we have received confirming documentation from the DEQ today…Recent testing has raised questions regarding the amount of lead that is being found in the water and I wanted to report to you
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our current status. At the onset of our plant design, optimization for lead was addressed and discussed with the engineering firm and with the DEQ. It was determined that having more data was advisable prior to the commitment of a specific optimization method. Most chemicals used in this process are phosphate based and phosphate can be a ‘food’ for bacteria. We have performed over one hundred and sixty lead tests throughout the city since switching over to the Flint River and remain within EPA standards.” 383. Croft’s statement was made with reckless disregard for the truth and the public health, since he knew that the samples the city had taken were insufficient to draw any conclusions from. 384. Croft’s widely disseminated message makes no mention of the flawed lead testing results. 385. On September 25, 2015, Muchmore sent an e-mail to Governor Snyder and others that treated the situation in Flint as a political inconvenience instead of a humanitarian crisis. He stated: “The DEQ and [MDHHS] feel that some in Flint are taking the very sensitive issue of children’s exposure to lead and trying to turn it into a political football claiming the departments are underestimating the impacts on the populations and are particularly trying to shift responsibility to the state…I can’t figure out why the state is responsible except that Dillon did make the ultimate decision so we’re not able to avoid the subject. The real responsibility
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rests with the County, city, and KWA[.]” (Emphasis added.) 386. In addition to ignoring the fact that the state had taken over Flint, Muchmore’s evasion of state responsibility ignores the role of Snyder, Dillon, Clinton, the Emergency Managers, MDEQ and MDHHS, Rowe, LAN, and Veolia in this crisis. 387. Where MDEQ caused, obscured, and lied about the lead problem, MDHHS should have disclosed it. 388. Instead, the MDHHS misrepresented, obfuscated, and intentionally withheld information and data which conclusively showed that there was an uptick in the number of children in Flint who were being exposed and re- exposed to lead. 389. It took the work of another outside expert, Dr. Mona Hanna-Attisha, to force MDHHS to acknowledge its failures. 390. Whereas MDEQ ignored and criticized the very people it should have been gratefully listening to in Mr. Del Toral and Dr. Edwards, the MDHHS extended the same treatment to Dr. Mona Hanna-Attisha, a pediatrician at Flint’s Hurley Hospital. 391. In a July 28, 2015, email from MDHHS epidemiologist Cristin Larder to MDHHS employees Nancy Peeler and Patricia McKane, Larder identifies an increase in blood lead levels in Flint just after the switch to river water, and concludes only that the issue “warrant[s] further investigation.”
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392. On the same day, Nancy Peeler sent an e-mail admitting an uptick in children with elevated blood lead levels in Flint in July, August, and September 2014, but, without factual basis, misrepresented and attributed it to seasonal variation. 393. MDHHS took no actions as outsiders began to discover and reveal Flint’s lead problem. 394. Instead, it withheld and obfuscated data and obstructed those researchers while actively attempting to refute their findings. 395. In a September 10, 2015, e-mail from MDHHS health educator Michelle Bruneau to colleague Kory Groestch, regarding a talking points memorandum, she states: “[M]ay be a good time to float the draft out to the others because if we’re going to take action it needs to be soon before the Virginia Tech University folks scandalize us all.” 396. In a September 11, 2015, e-mail to Linda Dykema and Kory Groestch of the MDHHS, Shekter Smith wrote: “Since we last spoke, there’s been an increase in the media regarding lead exposure. Any progress developing a proposal for a lead education campaign? We got a number of legislative inquiries that we are responding to. It would be helpful to have something more to say.” 397. MDHHS’s Bruneau responded to Groetsch: “Told ya,” and incredibly, includes a “smiley face” emoticon. 398. Groetsch then responds to Shekter Smith that Bruneau has written only “the
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bones” of a health education and outreach plan. 399. The same day, Robert Scott, the data manager for the MDHHS Healthy Homes and Lead Prevention program, was e-mailed a copy of a grant proposal for Professor Edwards’s study. Edwards’s grant proposal described a “perfect storm” of “out of control” corrosion of city water pipes leading to “severe chemical/biological health risks for Flint residents.” Scott forwarded the grant proposal to MDHHS employees Nancy Peeler, Karen Lishinski, and Wesley Priem, with the note“[w]hen you have a few minutes, you might want to take a look at it. Sounds like there might be more to this than what we learned previously. Yikes!” 400. On September 22, 2015, MDHHS Environmental Public Health Director and Lynda Dykema, emailed MDHHS’ Geralyn and Peeler, among others. She stated: “Here is a link to the VA Tech study re city of Flint drinking water… It appears that the researchers have completed testing of a lot of water samples and the results are significantly different than the city and DEQ data. It also appears that they’ve held public meetings in Flint, resulting in concerns about the safety of the water that have arisen in the last few days.” 401. On the same day, Dr. Mona Hanna-Attisha requests from Scott and others at MDHHS full state records on blood tests, likely to compare to her own data. She notes “[s]ince we have been unable to obtain recent MCIR blood lead data for Flint kids in response to the lead in water concerns, we looked at all the blood lead
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levels that were processed through Hurley Medical Center[.]” She tells the MDHHS that despite being denied data access from the state, she has found “striking results.” 402. Dr. Hanna-Attisha had heard complaints from Flint residents about their water and found out that no corrosion control was being used. 403. She developed a study using her hospital’s data, comparing lead levels in blood samples taken before and after the switch in the water supply. 404. On September 24, 2015, Dr. Hanna-Attisha released a study showing an uptick in post-water- transition elevated blood-lead levels in Flint children at a press conference. 405. Dr. Hanna-Attisha had revealed the truth regarding lead poisoning that the MDHHS had made previous misrepresentations about. 406. Earlier that day, MDHHS employee Angela Minicuci circulated a memorandum of “Flint Talking Points” in anticipation of Dr. Hanna-Attisha’s study. It noted that her results were “under review” by MDHHS, but that her methodology was different, implying that her methodology was unorthodox or improper. “Looking at the past five years as a whole provides a much more accurate look at the season trends of lead in the area,” MDHHS claimed. “MDHHS data provides a much more robust picture of the entire blood lead levels for the Flint area.”
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407. Also regarding Dr. Hanna-Attisha’s findings, Governor Snyder’s press secretary e-mailed a number of state employees the following: “Team, [h]ere’s the data that will be presented at the Hurley Hospital press conference at 3 p.m. As you’ll see, they are pointing to individual children, a very emotional approach. Our challenge will be to show how our state data is different from what the hospital and the coalition members are presenting today.” 408. Here again, the state was more concerned about protecting its own reputation, thereby allowing it to continue profiteering from sales of Flint River water than it was about the public health, welfare, safety and lives of Flint residents. It never addressed the most important question – what if Dr. Hanna- Attisha was right? 409. Defendants and employees of MDHHS were uniformly dismissive of Dr. Hanna-Attisha’s results. Wesley Priem, manager of the MDHHS Healthy Homes Section, wrote to MDHHS’ Kory Groetsch: “This is definitely being driven by a little science and a lot of politics.” 410. The same day the results were released, Scott emailed Peeler, noting that he had tried to “recreate Hurley’s numbers,” and says he sees “a difference between the two years, but not as much difference as they did.” 411. Despite the fact that this constitutes MDHHS’s first internal concession that their own methodology could have been wrong, and that Flint children had been poisoned, Scott continued to conceal and withhold this information from the Flint
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residents, adding “I’m sure this one is not for the public.” As this was going on, Professor Edwards forcefully requested blood lead data from Mr.Scott. In an email, the Professor notes that the state had failed to provide the records to Dr. Hanna-Attisha’s team, and accusing the MDHHS of “raising…obstacles to sharing it with everyone who asks.” Professor Edwards claims to have been requesting the data since August, and notes that he has sent Scott ten e-mails on the subject. 412. The next day, Scott drafts a remarkable response, but never sends it to Professor Edwards on the advice of Peeler. 413. Included in the would-be response: “I worked with you earlier this month to get data to you relatively quickly but did not manage to complete the process before I went on annual leave for several days. I neglected to inform you that I’d be away, and I apologize for not informing you.” Despite the fact that Scott admitted to going on vacation and leaving an important task unfinished as a public health crisis unfolded, Peeler tells him to “apologize less.” 414. The day after Dr. Hanna-Attisha releases her study, the City of Flint issues a health advisory, telling residents to flush pipes and install filters to prevent lead poisoning. 415. The same day, Scott responded to an email from colleagues about Detroit Free Press interest in doing a lead story.
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416. At 12:16 p.m., Free Press reporter Kristi Tanner sent an email to Angela Minicuci at MDHHS saying Tanner had looked at the lead increase in Flint as shown in DHS records between 2013-2014 and 2014-2015 and Tanner is concluding that the increase “is statistically significant.” 417. Scott writes to Minicuci: “The best I could say is something like this: ‘While the trend for Michigan as a whole has shown a steady decrease in lead poisoning year by year, smaller areas such as the city of Flint have their bumps from year to year while still trending downward overall.’” 418. Nancy Peeler, also a party to the conversation, continued the obfuscation of the truth when she writes back to Scott and Minicuci: “My secret hope is that we can work in the fact that this pattern is similar to the recent past.” 419. This conversation unfolded the very day after Scott told Peeler that his own review of the data showed increased post-switch lead levels, but that his findings were not to be made public. 420. Peeler and Scott intentionally concealed and withheld information about endangered public health, that they had a duty to disclose to the public, and actively sought to hide the lead poisoning epidemic that they had previously concealed and failed to disclose. 421. Also on September 25, MDHHS’s Lasher sent an email to Muchmore, Wyant, Wurfel, and others, repeating criticisms of Dr. Hanna-Attisha’s findings
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using quotation marks in reference to the “data” that she reviewed and calling her sample size into question. 422. Those MDHHS employees not actively engaged in the cover-up show no urgency whatsoever to this public health crisis. Cristin Larder sent an e-mail to a number of colleagues: “After looking at the data Kristi sent you and talking with Sarah, I realize I do not have access to the data I need to answer her specific question about significance. I won’t be able to get access before Monday. Sorry I wasn’t able to be helpful right now.” 423. Angela Minicuci responded: “Not a problem, let’s connect on Monday.” 424. The department apparently could not be troubled with a public health emergency on the weekend. 425. As this public health crisis unfolded, Snyder received briefings from Muchmore, which were more focused on political reputation preservation, thereby enabling the profiteering and price gouging to continue, than on the public health, safety and wellbeing of the people of Flint. Muchmore referred to the people raising concerns about Flint’s lead as the “anti-everything group,” and claimed that it was the responsibility of the City of Flint (which was under the exclusive control of the Emergency Manager which Snyder had installed, and who regularly reported to Snyder, Dillon, and Clinton regarding Flint) to “deal with it.” 426. On September 26, 2015, Muchmore told Snyder that finding funds “to buy
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local residents home filters is really a viable option,” and had identified service lines to homes as a likely cause of the problem. 427. Snyder still took no action to protect the health, welfare and safety of Flint’s predominately non-white residents while his subordinates continued to misrepresent that the water was safe, and to discredit those who presented evidence to the contrary. 428. On September 28, 2015, Wurfel publicly claims that the Flint situation is turning into “near hysteria,” and saying of Dr. Hanna-Attisha’s statements “I wouldn’t call them irresponsible. I would call them unfortunate.” He again falsely declares Flint’s water safe. 429. On September 28, 2015, State Senator Jim Ananich sent a letter to Snyder, noting “[i]t is completely unacceptable that respected scientific experts and our trusted local physicians have verified that the City of Flint’s drinking water is dangerous for our citizens, especially our most vulnerable young people.” He called for immediate action, but the Governor continued to wait out the 2 ½ year clock. 430. The same day, MDHHS Director Lyon continues MDHHS’s misrepresentations which discredited Dr. Hanna- Attisha’s study, despite his own department’s knowledge that it shows a real problem. In an e- mail, he stated: “I need an analysis of the Virginia Tech/Hurley data and their conclusions. I would like to make a strong statement with a demonstration of proof that the lead blood
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levels seen are not out of the ordinary and are attributable to seasonal fluctuations. Geralyn is working on this for me but she needs someone in public health who can work directly with her on immediate concerns/questions.” 431. In blatant violation of state law, at all relevant times the state’s “top doctor,” MDHHS chief medical executive Dr. Eden Wells was attending to her responsibilities part time while also working at the University of Michigan. 432. Dr. Wells did not become a full time state employee until February 1, 2016, and her mandatory responsibilities at the state prior to that time may have involved as little as eight (8) hours per week. 433. Dr. Wells was the sole medical doctor working as an executive for MDHHS.. 434. Dr. Wells’s predecessor, Dr. Gregory Holtzman, has noted that as a full time employee, he “kept quite busy.” 435. Other outsiders continued to put pressure on the MDHHS to be more transparent about the lead poisoning issue; Genesee County Health Officer Mark Valacak wrote an e-mail to department employees, demanding “to know whether you have confirmed with the lead program staff at MDHHS that the state results that purport that lead levels have not shown a significant increase since the changeover of the water supply for the city of Flint indeed represent Flint city zip codes only and not Flint mailing addresses. As I mentioned to you both this morning, Flint mailing addresses include outlying areas like Flint and Mundy
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Townships which obtain their water from the Detroit water authority.” 436. Valacak’s email pointed out further obvious, known flaws in MDHHS lead testing methodology. 437. In the face of continued state denials, a September 29, 2015, article in the Detroit Free Press publicly claimed “Data that the State of Michigan released last week to refute a hospital researcher’s claim that an increasing number of Flint children have been lead-poisoned since the city switched its water supply actually supports the hospital’s findings, a Free Press analysis has shown. Worse, prior to the water supply change, the number of lead-poisoned kids in Flint, and across the state, had been dropping; the reversal of that trend should prompt state public health officials to examine a brewing public health crisis.” 438. Dr. Hanna-Attisha could see the problem and the Free Press could see the problem with the state’s own data, and yet the MDHHS found signs of a lead problem but failed to disclose it and ignored it. 439. Finally, Snyder was forced to admit that there was an emergency he could no longer ignore. 440. His Executive Director sent an e-mail on September 29, 2015 to Muchmore, Lyon, and Wyant, among others, soliciting information for a meeting regarding emergency management and noting that Dr. Wells “should be speaking with Hurley.”
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441. A September 29, 2015, internal e-mail between MDHHS employees refers to the situation in Flint as sounding “like a third world country” and openly wondering when the federal government might be able to step in. 442. The same day, MDHHS employees discuss efforts made by Genesee County to obtain MDHHS data. Ms. Lasher writes “I understand that we are still reviewing the data – but the county has basically issued a ransom date that they want this information by tomorrow… Eden – please coordinate an answer so Nick can walk into the 1 p.m. (meeting with the governor) prepared on this.” 443. As demonstrated in Ms. Lasher’s email, the state continued to refuse to take even the simplest measure to protect public health until outsiders forced it to do so. 444. Also on September 29, 2015, Geralyn Lasher e-mailed Peeler and Wells, Scott, and several others at MDHHS: “Is it possible to get the same type of data for just children under the age of six? So basically, the city of Flint kids ages six and under with the same type of approach as the attached chart you gave us last week?” 445. Linda Dykema responds to fellow MDHHS employees including Wells: “[i]t’s bad enough to have a data war with outside entities, we absolutely cannot engage in competing data analyses within the Department, or, heaven forbid, in public releases.” 446. Wells’ only reply to that email was a single word: “Agree”, showing MDHHS continuing efforts to mislead the public, protect itself, run out the clock,
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and discredit Dr. Hanna-Attisha, while the profiteering and price gouging of the citizens of Flint continued. 447. The MDHHS and its employees were completely disinterested in the truth or finding out whether it may have made an error. 448. When Dr. Hanna-Attisha directly e-mailed Wells with updated findings that isolated certain high risk areas of the city and showed that blood lead levels have “more than tripled,” Defendant Wells responded that the state was working to replicate Hanna-Attisha’s analysis, and inquired about Dr. Hanna-Attisha’s plans to take the information public. 449. While discouraging her department to look further into Dr. Hanna-Attisha’s findings and misleading Dr. Hanna-Attisha, Wells remained focused on a single task; saving face at the expense of Flint’s residents with a depraved indifference to the health, safety, welfare and property of the predominately non-white citizens of Flint, while the profiteering and price gouging continued. 450. Also on September 29, 2015, Genesee County issued its own health advisory about Flint’s water. Two days later, the county warned Flint residents not to drink the water. 451. As the lead crisis unfolded, the state also obscured the cause of Flint’s Legionnaires’ disease outbreak. Because of the common cause, the lack of corrosion control, this effort further hindered outside efforts with respect to the lead
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problem. 452. The state actively prevented interested federal officials from becoming involved in the Legionnaires’ investigation. 453. A Centers for Disease Control and Prevention (“CDC”) employee wrote to Genesee County Health officials in April of 2015: “We are very concerned about this Legionnaires’ disease outbreak…It’s very large, one of the largest we know of in the past decade, and community-wide, and in our opinion and experience it needs a comprehensive investigation.” 454. That e-mail added “I know you’ve run into issues getting information you’ve requested from the city water authority and the MI Dept. of Environmental Quality. Again, not knowing the full extent of your investigation it’s difficult to make recommendations, and it may be difficult for us to provide the kind of detailed input needed for such an extensive outbreak from afar.” 455. On December 5, 2015, an employee of Genesee County Health Department accused state officials of covering up their mishandling of Flint’s Legionnaires’ disease outbreak. Tamara Brickey wrote to colleagues that “[t]he state is making clear they are not practicing ethical public health practice.” Further, “evidence is clearly pointing to a deliberate cover-up,” and “[i]n my opinion, if we don’t act soon, we are going to become guilty by association.” 456. On October 1, 2015, the MDHHS officially confirmed Dr. Hanna-Attisha’s
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results. Department employees developed a “talking points” memorandum that gently admitted that further analysis of their own data supported the doctor’s findings, but misleadingly cited lead paint as a greater concern than the water. 457. Finally, after months of denial, obstruction, and lies, during which the profiteering and price gouging of the residents of Flint continued, the state began to act on October 2015. Snyder received a proposal to reconnect Flint to DWSD and worked on plans for lead testing and water filters. 458. Still, Snyder’s “comprehensive action plan” misrepresented that “[t]he water leaving Flint’s drinking water system is safe to drink, but some families with lead plumbing in their homes or service connections could experience higher levels of lead in the water that comes out of their faucets.” 459. On October 15, 2015, Shekter Smith sent an email to Wurfel and others, stating that prior to the switch to Flint River water, “Staff believed that it was appropriate to monitor for two 6-month rounds of sampling to determine if additional measures were necessary. Based on the sampling performed, the city is required to install corrosion control treatment…A pilot test was not required or conducted. Staff believed that it was appropriate to monitor for two 6-month rounds to determine if additional measures would be necessary.” 460. It was not appropriate to continue to delay by monitoring for two 6 month rounds, during which the residents of Flint were being exposed and re exposed to
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lead, additional measures had been necessary from the beginning and prior to the switch to Flint River water. 461. The state’s staggering “drink first, test later” approach shows a conscious, willful disregard with depraved indifference to the health, safety, welfare and property to the predominately non-white citizens of Flint. 462. On October 16, 2015, Flint reconnected to DWSD. 463. However, the lead exposure and re exposure damage had been done, as was the damage to the Flint water delivery infrastructure, and lead has continued to leach from pipes into the water system. 464. Two days later, Wyant admitted the colossal failure that his department had made, many months after it was expressly brought to their attention. 465. Wyant informed Snyder that “ DEQ staff made a mistake while working with the city of Flint. Simply stated, staff employed a federal (corrosion control) treatment protocol they believed was appropriate, and it was not.” Also; “simply said, our staff believed they were constrained by two consecutive six- month tests. We followed and defended that protocol. I believe now we made a mistake. For communities with a population above 50,000, optimized corrosion control should have been required from the beginning. Because of what I have learned, I will be announcing a change in leadership in our drinking water program.” 466. Wyant admitted to the Detroit News that MDEQ’s “actions reflected
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inexperience, and our public response to the criticism was the wrong tone early in this conversation.” 467. Apparently, by “early in this conversation,” Wyant meant “until today.” 468. On October 21, 2015, roughly more than 16 months after Governor Snyder’s Emergency Manager had forced the City of Flint to switch from being purchasers of Detroit water, in favor of profiteering by becoming purveyors of Flint River water to the residents of Flint, Snyder appointed a five person task force to investigate the Flint water crisis. The task force included Ken Sikkema, senior policy fellow at Public Sector Consultants, Chris Kolb, president of the Michigan Environmental Council, Matthew Davis, a professor of pediatrics and internal medicine at the University of Michigan, Eric Rothstein, a private water consultant, and Lawrence Reynolds, a Flint pediatrician. 469. The day before the task force’s findings were released, Snyder’s new chief of staff wrote to him that “[i]f this is the path that the Task Force is on, it is best to make changes at DEQ sooner rather than later. That likely means accepting Dan’s resignation. It also means moving up the termination of the 3 DEQ personnel previously planned for Jan 4 to tomorrow.” 470. On December 29, 2015, the task force issued a letter detailing its findings. 471. In that letter, the task force stated that “[w]e believe the primary responsibility for what happened in Flint rests with the Michigan Department of
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Environmental Quality (MDEQ). Although many individuals and entities at state and local levels contributed to creating and prolonging the problem, MDEQ is the government agency that has responsibility to ensure safe drinking water in Michigan. It failed in that responsibility and must be held accountable for that failure.” 472. The role of the MDEQ is to ensure compliance as the primary agency having enforcement responsibility for the Flint water system.” 473. The letter indicated that the MDEQ had failed to properly interpret and apply the Lead and Copper Rule. 474. The letter pointed to a “minimalist approach to regulatory and oversight authority” at MDEQ’s Office of Drinking Water and Municipal Assistance (headed by Shekter Smith) which “is unacceptable and simply insufficient to the task of public protection. It led to MDEQ’s failure to recognize a number of indications that switching the water source in Flint would-and did- compromise both water safety and water quality.” 475. The letter also noted that “[t]hroughout 2015, as the public raised concerns and as independent studies and testing were conducted and brought to the attention of MDEQ, the agency’s response was often one of aggressive dismissal, belittlement, and attempts to discredit these efforts and the individuals involved.” 476. Further, that “the MDEQ seems to have been more determined to discredit
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the work of others—who ultimately proved to be right—than to pursue its own oversight responsibility.” 477. Regarding other failures of the state, the report noted that “we are particularly concerned by recent revelations of MDHHS’s apparent early knowledge of, yet silence about, elevated blood lead levels detected among Flint’s children.” 478. “The City of Flint’s water customers—fellow Michigan citizens—were needlessly and tragically exposed to toxic levels of lead through their drinking water supply.” The report also notes that the state government should be responsible for remedying the tragedy, “having failed to prevent it.” 479. On October 26, 2015, the Detroit News published a column from Earley entitled “Don’t blame EM for Flint water disaster.” He asserted that the tragedy was caused by local leaders, ignoring the MDEQ’s role and the fact that he and his fellow Emergency Managers had entirely usurped the authority of the local Flint elected officials, as approved and implemented by the approvals of Governor Snyder, Dillon, and Clinton. 480. In October 2015, Shekter Smith was reassigned so as to have no responsibility for Flint’s drinking water. 481. On December 14, 2015, the City of Flint declared a state of emergency. 482. In response to a blog post by Professor Edwards entitled “Michigan Health Department Hid Evidence of Health Harm Due to Lead Contaminated Water.
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Allowed False Public Assurances by MDEQ and Stonewalled Outside Researchers,” the Governor’s Communications Director wrote to Snyder and others “[i]t wasn’t until the Hurley report came out that our epidemiologists took a more in-depth look at the data by zip code, controlling for seasonal variation, and confirmed an increase outside of normal trends. As a result of this process, we have determined that the way we analyze data collected needs to be thoroughly reviewed.” 483. In other words, MDHHS’s failure to properly analyze its own data was a matter of practice, pattern, custom, and/or policy of depraved indifference to the health, safety,welfare and property of the citizens of Flint during the period of time that the City of Flint, under control of the Emergency Managers, as approved by Snyder, Dillon and Clinton, was used to facilitate unchecked profiteering of tens of millions of dollars by becoming a purveyor of Flint River water and selling it at price gouging rates to the residents of the City of Flint. 484. On December 23, 2015, the Michigan Auditor General provided an investigative report on the crisis, finding that corrosion control should have been maintained from the beginning and that improper sample sites had been selected by the MDEQ. 485. On December 30, 2015, Wyant and Wurfel resigned. 486. On January 4, 2016, Genesee County declared its own state of emergency. 487. On January 12, 2016, Snyder called the National Guard into Flint and
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requested assistance from FEMA. 488. On January 13, 2016, -Snyder announced the massive spike in Legionnaires’ disease in Genesee County. 489. The Governor’s January 13, 2016 announcement was made ten months after the State was made aware that the spike coincided with the switch to Flint water. 490. On January 16, 2016, President Barack Obama declared a Federal State of emergency in Flint. 491. In his January 19, 2016, State of the State address, Snyder admitted to the people of Flint that “Government failed you at the Federal, State and local level.” 492. On January 21, 2016, EPA’s Susan Hedman resigned over her involvement in the Flint Water crisis. Hedman had acted with deliberate indifference to the MDEQ’s failures to follow federal law and guidelines, and helped to silence Mr. Del Toral. 493. On January 21, 2016, the EPA issued an Emergency Order, based on its finding that “the City of Flint’s and the State of Michigan’s responses to the drinking water crisis in Flint have been inadequate to protect public health and that these failures continue.” 494. The Emergency Order included as Respondents the City of Flint, the MDEQ, and the state. 495. The Emergency Order provided for the EPA to conduct its own sampling of lead in Flint’s water and undertake other actions as part of a process “to abate the
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public health emergency in the City of Flint.” 496. The Emergency Order notes that “[t]he presence of lead in the City water supply is principally due to the lack of corrosion control treatment after the City’s switch to the Flint River as a source in April 2014. The river’s water was corrosive and removed protective coatings in the system. This allowed lead to leach into the drinking water, which can continue until the system’s treatment is optimized.” 497. The Emergency Order indicates that “water provided by the City to residents poses an imminent and substantial endangerment to the health of those persons. Those persons’ health is substantially endangered by their ingestion of lead in waters that persons legitimately assume are safe for human consumption.” 498. Further, the EPA states that “The City, MDEQ and the State have failed to take adequate measures to protect public health.” 499. According to the Emergency Order: “Based upon the information and evidence, EPA determines that Respondents’ actions that resulted in the introduction of contaminants, which entered a public water system and have been consumed and may continue to be consumed by those served by the public water system, present an imminent and substantial endangerment to the health of persons.” 500. In a public statement, EPA Administrator Gina McCarthy declared: “Let’s be really clear about why we are here today…We are here today because a state-
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appointed emergency manager made the decision that the city of Flint would stop purchasing treated water that had well served them for 50 years and instead purchase untreated — and not treat that water — and by law the state of Michigan approved that switch and did not require corrosion control. All to save money. Now that state decision resulted in lead leaching out of lead service pipes and plumbing, exposing kids to excess amounts of lead. That’s why we’re here.” 501. On January 22, 2016 Shekter Smith and Busch were suspended without pay. 502. Shekter Smith’s firing was announced on February 5, 2016. 503. At one of several congressional hearings on the subject, EPA Deputy Assistant Administrator Joel Beauvias testified "MDEQ incorrectly advised the City of Flint that corrosion- control treatment was not necessary, resulting in leaching of lead into the city's drinking water… EPA regional staff urged MDEQ to address the lack of corrosion control, but was met with resistance. The delays in implementing the actions needed to treat the drinking water and in informing the public of ongoing health risks raise very serious concerns." 504. Professor Edwards also testified before congress. He claimed that MDEQ “ignored warning sign after warning sign” before engaging in a cover-up. “Onehundred percent of responsibility lies with those employees at the Michigan Department of Environmental Quality. There’s no question,” he testified.
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505. The residents of the City of Flint continue to this day to drink bottled and/or tap water, some with the benefit of a filter. 506. As of the date of filing, the state and federal governments are still conducting investigations into the acts herein described.
CLASS ALLEGATIONS
507. Plaintiffs bring this action and seek to certify and maintain it as a class action under Rules 23(a); (b)(1) and/or (b)(2); and (b)(3) of the Federal Rules of Civil Procedure on behalf of themselves and similarly situated individuals in the City of Flint, Michigan, subject to amendment and additional discovery as follows:
a. All persons in the City of Flint who have been harmed by Defendants’ racially motivated emergency fiscal plan, with depraved indifference, destroyed the infrastructure, exposed and re exposed to lead, and damaged by reducing the value of the property and businesses of the residents of the city of Flint.
b. All persons in the City of Flint who have tested positive for the presence of lead in their blood, since April 25, 2014;
c. All persons in the City of Flint who have experienced personal injury as a result of their exposure to toxins in Flint’s drinking water supply, since
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April 25, 2014; and d. All persons in the City of Flint who have owned property or
businesses in Flint Michigan since April 25, 2014. Excluded from the Class is:
a. Defendants, including any entity or division in which Defendants have a controlling interest, along with their legal representative, employees, officers, directors, assigns, heirs, successors, and wholly or partly owned subsidiaries or affiliates;
b. The Judge to whom this case is assigned, the Judge’s staff, and the Judge’s immediate family; and
c. All governmental entities. 508. Plaintiffs reserve the right to amend the Class definition if discovery and further investigation reveal that any Class should be expanded, divided into additional subclasses, or modified in any other way.
Numerosity & Ascertainability 509. This action meets the numerosity requirement of Fed. R. Civ. P. 23(a)(1), given that the amount of affected Flint residents, property business owners, upon information and belief, has reached the tens of thousands, making individual joinder of class members’ respective claims impracticable. While the precise number of class members is not yet known, the precise number can be ascertained
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from U.S. Federal Census records, State of Michigan and City of Flint public records, and through other discovery. Finally, Class members can be notified of the pendency of this action by Court-approved notice methods.
Typicality 510. Pursuant to Federal Rules of Civil Procedure 23(a)(3), Plaintiffs’ claims are typical of the claims of class members, and arise from the same course of conduct by Defendants. Plaintiffs’ persons and real property, like all Class Members, has been damaged by Defendants’ misconduct in that they have incurred damages and losses related to the introduction of highly corrosive water from the Flint River into the public water supply, causing lead contamination and personal injury damages, destroying the infrastructure, and causing the ongoing water crisis in Flint. Furthermore, the factual bases of Defendants’ actions and misconduct are common to all Class Members and represent a common thread of misconduct resulting in common injury to all Class Members. The relief Plaintiffs seek is typical of the relief sought for absent Class Members.
Adequacy of Representation
511. Plaintiffs will serve as fair and adequate class representatives as their interests, as well as the interests of their counsel, do not conflict with the interest of other members of the class they seek to represent. Further, Plaintiffs have retained counsel competent and experienced in class action litigation.
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512. Plaintiffs and their counsel are committed to vigorously prosecuting this action on behalf of the Class.
Predominance of Common Issues of Law 513. There are numerous questions of law and fact common to Plaintiffs and Class Members that predominate over any question affecting only individual Class Members, the answers to which will advance resolution of the litigation as to all Class Members. These common legal and factual issues include the following:
a. Whether Defendants engaged in the conduct alleged herein Racketeer Influenced and Corrupt Organizations Act pursuant to 18 U.S.C. Sec 1962 (c) and (d).
b. Whether optimal corrosion control treatment was identified and implemented, as required by the Lead and Copper Rule, since April 25, 2014, when the switch to the Flint River was made;
c. Whether Defendants “continued to operate and maintain optimal corrosion control treatment”, as required by the Lead and Copper Rule, pursuant to 40 C.F.R. §141.82(g);
d. The extent to which Defendants know about, in a coordinated and systematic series of denials as to intentional representations and misrepresentations that the water was safe and which was justifiably relied upon by the residents of the city of Flint known before and after
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April 25, 2014 and said information was withheld as to Plaintiffs and Class Members; e. Whether Defendants’ conduct violated the 14th Amendment of the Constitution of the United States, and other statutes, laws and rules, as set forth herein; f. Whether Defendants made unlawful and misleading representations or material omissions with respect to the safety of Flint’s water supply; and g. Whether Plaintiff and Class Members are entitled to damages and other monetary relief, including punitive damages, and if so, in what amount.
Superiority 514. The class action mechanism is superior to any other available means of the fair and efficient adjudication of this case. Further, no unusual difficulties are likely to be encountered in the management of this class action. Given the great amount of Flint residents impacted by Defendants’ conduct, it is impracticable for Plaintiffs and the Class to individually litigate their respective claims for Defendants’ complained of conduct. To do so would risk inconsistent or contradictory judgments and increase delays and expense to both parties and the court system. Therefore, the class action mechanism presents considerably less management
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challenges and provides the efficiency of a single adjudication and comprehensive oversight by a single court.
COUNT I - 42 U.S.C § 1983 Violation of Constitution Article 14 Due Process and Equal Protection
Clause selling toxic Flint River water only to predominately Black Community of Flint.
All Plaintiffs against all Defendants except the State of Michigan, MDEQ, and MDHHS
515. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 516. The Flint River flows through the following 6 Michigan cities, townships and municipalities; Montrose, Flushing, Flint, Genesee, Columbiaville, and Lapeer, hereinafter known as Flint Municipalities.3 517. Until 2014, all 6 Flint municipalities received their water from DWSD. 518. In 2014 the city of Flint was required to switch from DWSD, to the unsafe Flint River water. 519. The remaining 5 Flint Municipalities were permitted to remain on the DWSD water. 520. The water from the Flint River was available for free and was sold to the residents of the City of Flint at the highest and price gouging rates in the United
3 https://en.m.wikipedia.org/wiki/Flint_River_(Michigan)
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States and averaging annually just under $900.00. 521. Over the 2 year period that the Flint River water was sold to the city of Flint residents approximately 30,000 households and businesses were billed for at price gouging rates and revenues were collected from residents yielding roughly 50 million dollar profit (gross of labor and services). 522. The population of the city of Flint was roughly 100,000 persons as compared to the total population of the remaining Genesee County communities of roughly 325,000 persons. 523. Had the Flint River water been sold to these other 5 municipalities the profits (gross of labor and services), were exponentially higher yielding millions of dollars of profit. 524. This created a substantial economic motivation to sell the Flint River water to all Genesee County communities. 525. Despite this massive economic opportunity and motivation to switch all Genesee County communities along the Flint River, said additional millions of dollars was forgone. 526. Instead the millions of dollar of gross profit, the remaining Genesee County communities not only failed to avail themselves of same, but in addition, continued to pay the DWSD millions of dollars to purchase the safe DWSD water. 527. When combined the 5 remaining Flint municipalities forewent both the
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millions of dollars of profit and paid out of pocket additional tens of millions of dollars to purchase the DWSD water. 528. The reason for this rejection of this multimillion dollar windfall was racism. 529. The city of Flint was predominately black and poor with impoverished residents. 530. The majority of the city of Flint population is non-white at 65.4%. 531. The remaining 5 municipalities along the Flint River and the other Genesee County communities had predominantly white residents, wealthier and with higher socioeconomic standing. 532. This racial discrimination had been an ongoing problem in the State of Michigan which motivated the legislature to enact laws prohibiting it- See ELCRA MCL 37.2302. 533. This racial discrimination constitutes a violation of the 14th Amendment right to “equal protections of the laws.” 534. The City of Montrose Michigan was 98.7% white. 535. The City of Flushing Michigan was 94.8% white. 536. The Township of Flushing Michigan was 87.5% white. 537. The City of Columbiaville Michigan was 95.2% white. 538. The City of Lapeer Michigan was 88.6% white. 539. In contrast the city of Flint was only 34.6% white and was 65.4% non-white.
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540. As a direct and proximate result of all of the above Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, post traumatic stress disorder, contract damages and property damages (including but not limited to damaged plumbing, replace of the infrastructure and lost real property and business value), and punitive damages.
COUNT II – 18 U.S.C. § 1962 (c) and (d) Civil RICO
All Plaintiffs against Defendants Snyder, Dillon, Clinton, Muchmore, Brown, Kurtz, Earley, Ambrose, Shekter Smith, Wyant, Wurfel, Busch, Cook, Prysby, Lyon, Wells, Peeler, Scott, Dykema, Croft, Glasgow, Rowe, LAN, and Veolia 541. Plaintiffs repeat and re-allege each and every allegation contained in this complaint with the same force and effect as if asserted herein. 542. Plaintiffs furthermore incorporate all the facts and allegations contained in
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plaintiffs’ RICO case statement attached with this complaint as required by Standing Order in Civil RICO cases. 543. These RICO claims arise from 18 U.S.C. Sec. 1962 (c) and (d). 544. The RICO defendants named herein conspired to, and for approximately two years did, intentionally and knowingly misrepresented the suitability and safety of the Flint River to Flint’s residents on a repeated basis, that permanently damaged the structural integrity of the Flint infrastructure, and reduced the value of the property and businesses of the residents of the city of Flint 545. Numerous other bad actors including The State of Michigan, MDEQ, MDHSS, and The City of Flint participated in the conspiracy and association in fact enterprise set forth herein. These government actors are referred to as “RICO enterprise actors” herein due to the fact they cannot be named as RICO defendants. 546. This conspiracy originated from Flint’s fiscal emergency budget crisis. 547. Flint’s fiscal emergency budget deficit could have been safely addressed by invoking time tested, well-honed federal bankruptcy protections under the supervision of a Federal bankruptcy Judge, for restructuring the debts of municipalities. 548. A Federal Bankruptcy Judge would never approve the Emergency Manager Fiscal scheme as it endangered the public health and the structural integrity of the Flint water delivery system.
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549. While municipal bankruptcy was one of the solutions RICO Defendants Snyder, Dillon, Clinton and Michigan Emergency Managers were authorized to pursue, bankruptcy petitions for Flint were not filed. 550. Instead, RICO defendant Snyder, through Emergency Managers and RICO defendants Earley, Brown, Kurtz, and Ambrose utilized their power and authority over the City of Flint to execute Flint’s switch to the free but unsafe Flint River in April 2014, for purposes of price gouging and balancing the Flint budget. 551. The switch to the unsafe free Flint River required coordinated efforts of the Rico enterprise actors named herein including The State of Michigan, MDEQ, MDHSS, and The City of Flint, to ensure that the citizens of Flint could trust and rely on the safety and suitability of the Flint River water distributed to their homes and businesses. 552. The switch to the unsafe Flint River required coordinated efforts of Rico defendants Rowe, LAN and Veolia herein with the Rico enterprise actors named herein, including the State of Michigan, MDEQ, MDHSS, and the City of Flint to ensure the citizens of Flint could trust and rely on the safety and suitability of the Flint River water distributed to their homes and businesses. 553. The RICO defendants named herein acted in concert with the Rico enterprise actors to carry out the Emergency Fiscal scheme and conspiracy to balance Flint’s
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budget through the fraudulent sale and profiteering of unsafe Flint River water, and actively attempted to conceal the unsafe conditions that they caused.
The RICO Defendants’ Conspiracy to balance Flint’s Budget Through the use of the Free Flint River
554. The essence of this conspiracy through the Rico defendants and the Rico enterprise actors was to balance the City budget, by switching to a free water source and charging Flint residents, the highest rates in the nation for unsafe water. 555. By using this fraudulent budget-balancing scheme, the Flint General Budget deficit of $12.9 million as of June 30, 2012 disappeared and by June 30, 2015 a positive General Fund Balance of $3.3 million was achieved. 556. The RICO defendants never intended to use the free water of the Flint River as a permanent solution because they knew that the Flint River had not been proven to be safe to use as drinking water. 557. Rather, the RICO defendants intended to discontinue buying safe water from Detroit in 2014 and to switch to buying the less expensive water from KWA in late 2016. 558. However, there was a time gap of at least two years until the infrastructure to bring the KWA water to Flint was in place. 559. From a government standpoint, this financial scheme and conspiracy started at the top with Snyder, Dillon, and Clinton.
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560. Snyder, Dillon, Clinton and their puppet Emergency Managers’ scheme to utilize the free Flint River as the primary water source, thereby enabling the city of Flint to balance its budget from the resultant revenue, required the use of the Rico enterprise actors and their employees to effectuate the scheme. 561. Snyder, Dillon and Clinton, through the Emergency Managers Brown, Kurtz, Earley, and Ambrose successfully forced Flint’s switch to the free Flint River as a primary water source. 562. Flint’s Emergency Manager Ambrose would even veto the City of Flint’s 7-1 City Council vote to disconnect from the unsafe Flint River on March 23, 2015. 563. All the individual Rico defendants named herein imposed their will on Flint to remain connected to the unsafe Flint River after the powerless City Council voted to return to DWSD because of the unsafe conditions created by the Flint River. 564. Despite Flint’s City Council’s vote to disconnect, which clearly demonstrated the city’s knowledge that the free Flint River was unsafe as a water source, The city of Flint continued to charge Flint residents the highest rates in the nation for water known to be unsafe for use, and which permanently damaged the structural integrity of the infrastructure and property and businesses of the residents in the city of Flint. 565. Snyder received actual knowledge and notice that there were very serious issues stemming from Flint’s use of the free Flint River as primary water source, because this information was communicated to him through his staff including
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Muchmore, detailing these very issues and unsafe conditions of the water beginning in October 2014. 566. Snyder (himself, and through his Emergency Managers) insistence that the free Flint River be used as a primary water source to balance the City budget required the use of the Rico enterprise actors and their employees to effectively carry out this scheme. 567. All the individual RICO defendants named herein, Snyder, Dillon, Clinton, Muchmore, Emergency Managers, Rico enterprise actors and their employees and agents, imposed their Emergency Fiscal Plan to profiteer by price gouging on free Flint River unsafe water to balance the City of Flint’s budget onto unsuspecting and reliant city of Flint residents business and property owners. 568. Pursuant to 18 U.S.C § 1962(c), the RICO defendants and the Rico enterprise actors committed culpable conduct giving rise to RICO liability. 569. The RICO defendants named herein have identities, jobs, and roles that are separate and distinct from the association in fact enterprise that they formed as set forth herein. 570. The RICO defendants, Shekter Smith, Wurfel, Wyant, Busch, Cook, Prysby, Croft and Glasgow, LAN, Rowe, and Veolia were responsible for monitoring the water and the water treatment plant and ensuring compliance with local state and Federal laws to ensure the Flint water treatment plant was not providing
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contaminated, poisoned and unsafe water for any use by city of Flint residents, business and property owners.
a. The following laws Federal and State laws and regulations govern safe drinking water, including but not limited to: i. Michigan Safe Drinking Water Act, 1976 Public Act 399, MCL § 325.1001 – 325.1023, Michigan Department of Environmental Quality Guidance on Michigan Safe Drinking Water Act of 1976, EQC2050 (01/29/2003). ii. Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251 – 1376, EPA Lead & Copper Rule, 40 C.F.R. § 141, EPA Safe Drinking Water Act, 42 U.S.C. § 300, Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 1906 et seq. (see through § 9675), Federal Water Pollutants Control Amendments of 1972, 33 U.S.C. § 1319(c)(2).
571. RICO defendants, Shekter Smith, Wurfel, Wyant, Busch, Cook, Prysby, Rowe, LAN, Veolia, Croft, and Glasgow and Rico enterprise actor MDEQ and city of Flint were required to perform various testing procedures and verification processes under the above Federal and State laws, rules and regulations, to assure that the Flint River water was safe. 572. RICO defendants, Shekter Smith, Wurfel, Wyant, Busch, Cook, Prysby,
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Rowe, LAN, Veolia, Croft and Glasgow knowingly failed to satisfy the above regulations that were required to verify that the water provided to the Flint residents, property and business owners was safe. 573. James Henry, of the Genesee County Health Department, made several written and verbal requests for specific information starting October 2014, regarding the safety of Flint’s water and potential health risks. Henry followed up these requests with a Freedom of Information Act request to the MDEQ on January 27, 2015 and requests for a meeting with MDEQ and Flint water plant staffers, Glasgow and Croft. The MDEQ, willfully denied the Genesee Health Department’s document requests and further denied Henry’s request for a meeting with the MDEQ and Flint water staffers. 574. Each of the individual RICO defendants and Rico enterprise actors knew, and acquired actual knowledge and information through the dissemination of emails, through phone conversations, memos, scientific reports, testing, studies and assessments of the water, samples of the water, news stories, and public response correspondence that the water was untreated, unsafe and unfit for any use, including ingestion, yet continued to misrepresent, assure and reassure the residents, property and business owners of the city of Flint that the water was safe for all uses, and which information,representations, and reports they justifiably relied upon as true and accurate.
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575. RICO defendants and Rico enterprise actors knew, and acquired actual knowledge and information through the dissemination of emails, testing, studies, assessments, water sampling, phone conversations, memos, scientific reports, news stories, and public response correspondence that the water was untreated, unsafe and unfit for any use, including ingestion, yet continued to misrepresent, assure and reassure the residents, property and business owners of the city of Flint that the water was safe for all uses and there was not an uptick in the number of children diagnosed in the city of Flint with elevated blood lead levels after the connection the the Flint River. 576. The RICO defendants and Rico enterprise actors set forth herein unjustifiably induced the reliance of Flint’s residents to reasonably believe the water they were paying for was safe for all uses and treated so as to prevent harm to their properties, businesses, and homes. 577. Reliance is clear under these circumstances as Plaintiffs and the putative class not only used the water, but paid and continued to pay bills for unsafe water in reliance on Rico Defendants and Rico enterprise actors, repeated, known representations and continued misrepresentations that Flint’s water was safe for use, despite Rico defendants and Rico enterprise actors evidence and knowledge to the contrary. 578. The RICO Defendants and Rico enterprise actors have committed and
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repeated numerous predicate acts of racketeering within the meaning of the RICO statute that constitute violations thereof including but not limited to 18 U.S.C. § 1961(1)(B), 18 U.S.C. 1341 and 1343 (both mail fraud and wire fraud), and 18 U.S.C. §1961(1)(D) (municipal bankruptcy). 579. Specifically relating to bankruptcy, the following predicate acts by the RICO Defendants and Rico enterprise actors constitute violations of 18 U.S.C. § 152 (8), which states that “after filing of a case under Title 11 or in contemplation thereof, knowingly makes a false entries in recorded information (including press releases, emails and correspondence to EPA, and others relating to the safety of the structural integrity of the infrastructure of the water delivery system, and the safety of the free Flint water, books, documents, records, and papers) relating to the property or financial affairs of the debtor……” which yielded in the illegal hazardous profiteering Emergency Fiscal scheme millions of dollars of revenue which were entered into the city of Flint books and records.
a. After Snyder’s signing of PA 436 in 2012, addressing the Flint budgetary crisis, Flint’s, state run government had a “choice” of four options to remedy the fiscal crisis: (i) a consent agreement, (ii) Chapter 9 municipal bankruptcy, (iii) mediation or (iv) the appointment of an Emergency Manager with similar broad powers to the prior statute’s Emergency Manager.
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b. Under PA 436, Flint had to contemplate filing a Chapter 9 municipal bankruptcy petition. Upon information and belief, the government contemplated filing a chapter 9 bankruptcy petition but rejected this option and opted to appoint an Emergency Manager in furtherance of the overarching fiscal scheme to balance the budget at all costs with a depraved indifference to the health, safety, welfare, property, infrastructure and businesses, of the citizens of Flint. This was the first of two predicate acts.
c. Once Snyder appointed an Emergency Manager, instead of filing a Chapter 9 municipal bankruptcy, the Emergency Manager committed the second predicate. Specifically, the Emergency Manager had to choose between the same three remaining options: (i) a consent agreement, (ii) a Chapter 9 municipal bankruptcy or (iii) mediation to remedy Flint’s fiscal crisis. The Emergency Manager contemplated and rejected these options and instead he and his enterprise chose to deal with Flint’s “Financial Emergency” by, inter alia, doing prohibited acts under bankruptcy Sec. 157(8), fraudulently misrepresenting assets. The Emergency Manager opted to conceal and mitigate the financial emergency by fraudulently switching to an unsafe and free water source for the two year interstice when they terminated the water contract with DWSD in March 2013. In so doing, the Emergency Manager allowed an estimated $50 million of toxic water to be sold to Flint
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residents, as part of his budget balancing scheme. This being done with a depraved indifference to the, health, safety, welfare and diminishing the value of the property and businesses of Flint residents. d. This was fraudulent in that all knew they were switching to the unsafe, contaminated but free water source from the Flint River in furtherance of the over-arching fiscal scheme to balance the budget at all costs with a depraved indifference destroying the infrastructure, and damaging the businesses and property of the residents of the city of Flint. e. These acts were done in order to prevent the irate citizens of the City of Flint from knowing that the money cost-cutting plan to balance the budget and alleviate the City’s Financial Emergency was to require them to buy and use unsafe water. 580. The predicate acts committed by the Enterprise Actor City of Flint, under the auspices of RICO Defendants Snyder, Dillon, Clinton, Muchmore, and Emergency Managers who subsumed the City of Flint government, and RICO defendants named herein constitute mail fraud in violation of 18 U.S.C. § 1341 which says “Whoever, having devised or intending to devise any scheme or artifice to defraud………..for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, any such matter or thing, shall
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be fined under this title or imprisoned not more than 20 years, or both” include the following predicate acts:
a. RICO Enterprise Actor City of Flint had continuously mailed water bills for unsafe and poisonous water to Flint property and business owners on a monthly basis which fraudulently misrepresented that the City was providing property and business owners with safe water in exchange for consideration. These bills, delivered by way of the U.S. mail through interstate commerce and mailed back by Flint property owners, some of them out of state, by placing postage upon envelopes deposited in mailboxes and sent back through interstate commerce, constitute mail fraud by the City of Flint. Flint continued to mail these water bills that property and business owners were required to pay beginning for the April 2014 water and continuing until March 9, 2016, when the Mayor of Flint announced that the City would suspend water bill collection but continues to mail theses water bills through the present time
b. The property and business owners of Flint were subject to the highest public water rates in the country. They were billed, on average, $864.32 annually for the toxic water they received which is well above the U.S. average of $316.20 for public water systems.
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c. RICO Defendant Michael Glasgow, the water treatment plant’s laboratory and water quality supervisor, informed the MDEQ by letter on April 16, 2014, that he was “expecting changes to our Water Quality Monitoring parameters, and possibly our Disinfection Byproduct monitoring on lead & copper monitoring plan… Any information would be appreciated, because it looks as if we will be starting the plant up tomorrow and are being pushed to start distributing water as soon as possible… I would like to make sure we are monitoring, reporting and meeting requirements before I give the OK to start distributing water.” The next day, Glasgow wrote to Rico enterprise actor MDEQ, including Rico Defendants Prysby and Busch, noting that he “assumed there would be dramatic changes to our monitoring. I have people above me making plans to distribute water ASAP. I was reluctant before, but after looking at the monitoring schedule and our current staffing, I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction. I need time to adequately train additional staff and to update our monitoring plans before I will feel we are ready. I will reiterate this to management above me, but they seem to have their own agenda.”
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d. On April 23, 2014 e-mail from RICO Defendant Busch to RICO Defendant Wurfel admits knowing that the Flint River drinking water it was selling Flint residents was an inconsistent low quality water source. In his email, Bush states that, “While the Department is satisfied with the City’s ability to treat water from the Flint River, the Department looks forward to the long term solution of continued operation of the City of Flint Water Treatment Plant using water from the KWA as a more consistent and higher quality source water.”
e. On April 25, 2014, The Flint Department of Public Works through Director and Rico Defendant Howard Croft issued a statement in a press release that was known to be false and therefore fraudulently represented to the public, “The test results have shown that our water is not only safe, but of the high quality that Flint customers have come to expect. We are proud of that end result.” This statement was made at a time that Rico enterprise actor City of Flint was aware no corrosion controls were in place and that the Flint water treatment plant was not upgraded and therefore not ready to distribute water to Flint residents, in furtherance of the over-arching fiscal scheme to balance the budget at all costs by selling the residents of Flint toxic drinking water with a depraved indifference to health, safety, welfare of the property and business owners of Flint.
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f. Discussing General Motors’ decision, Rico Defendant Prysby wrote to Rico Defendants Busch, Shekter Smith and others that the Flint River water had elevated chloride levels. He stated that “although not optimal” the water was “satisfactory.” He noted that he had “stressed the importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing facility’s limit for production.”
g. On January 2, 2015, the Rico enterprise actor City of Flint mailed a notice to its water customers indicating that it was in violation of the Safe Drinking Water Act due to the presence of trihalomethanes in the Flint River, which was a product of attempting to disinfect the water. It was nonetheless claimed that the water was safe to drink for most people with healthy immune systems.
h. Rico Defendant Bradley Wurfel, MDEQ Director of Communications, issued a press release on September 2, 2015 stating “[W]e want to be very clear that the lead levels being detected in Flint drinking water are not coming from the treatment plant or the city’s transmission lines… The issue is how, or whether, and to what extent the drinking water is interacting with lead plumbing in people’s homes….the results reported so far fail to track with any of the lead sampling conducted by the city. In
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addition, Virginia Tech results are not reflected by the blood lead level testing regularly conducted by the state department.” This false statement was made to direct blame for the untreated water from Rico Enterprise Actor MDEQ to the property owners’ aged plumbing infrastructure in furtherance of the over-arching fiscal scheme to balance the budget at all costs with a depraved indifference for the health, safety and welfare, of the property and business owners of Flint. i. On September 9, 2015, Rico Defendant Bradley Wurfel of MDEQ again fraudulently misrepresented the quality of Flint’s Water supply through publicly disseminated untrue statements in a local newspaper by stating, when he told a reporter: “[T]he state DEQ is just as perplexed by Edwards’s results as he seems to be by the city’s test results, which are done according to state and federal sampling guidelines and analyzed by certified labs.” This statement was made with full knowledge that at least one EPA employee had told MDEQ that its testing was not being conducted according to federal guidelines. j. In a September 17, 2015 letter, Rico Defendant Dan Wyant (Director of MDEQ) wrote a response to an inquiry from various legislators, disavowing any responsibility for reacting to Mr. Del Toral’s alarmsounding memorandum: “With respect to the draft memo referenced in
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your letter, the MDEQ does not review or receive draft memos from the USEPA, nor would we expect to while it is a draft.” This statement was untrue as MDEQ had undeniably reviewed Miguel Del Toral’s expert report that charged MDEQ with highly credible evidence of notice of the toxic threats facing Flint residents as a result of their failure to comply with the Lead & Copper Rule. k. On September 28, 2015, and after a significant uptick in infants showing elevated blood lead levels in Flint, Rico Defendant Bradley Wurfel issued another public statement again misrepresenting that Flint’s water was safe. 581. The predicate acts committed by the RICO defendants and Rico enterprise actors constituting wire fraud in violation of 18 U.S.C. § 1343 (Fraud by Wire, Radio or Television) which says, “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both” include: a. Plaintiff incorporates all items listed in the mail fraud section as these misrepresentations that fraudulently induced reliance of the Flint
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community that the water supply was safe for use, clean, and worthy of consumption these misrepresentations were also transmitted by way of radio and television based media sources. b. On April 25, 2014, RICO Defendant Mayor of Flint Dayne Walling, went on TV to alert the public of the switch to the Flint River as the City’s primary water source. In doing so, Dayne Walling said ““It’s regular, good, pure drinking water, and it’s right in our backyard”, and did so while knowing the City’s water treatment facility had not had any of the necessary corrosion controls implemented by RICO Defendants, and Rico enterprise actors. c. Furthermore, as property and business owners in Flint were receiving water bills that fraudulently induced reliance and payment for water that the RICO Defendants and Enterprise Actors each had independent and collective knowledge was contaminated; many of the Flint property and business owners paid their bills online through the City of Flint website with credit cards or ACH or by returning the bill by mail with an enclosed check that was processed by their banks. These water payments, which totaled an estimated $50 million were processed through the Federal banking system which included the use of wires. d. This continued from the date of the original switch from the DSWD to the
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Flint River on April 25, 2014 up and until Mayor Weaver suspended collection for water bills on March 9, 2016 all in furtherance of the overarching fiscal scheme to balance the budget at all costs with a depraved indifference and damage to the property and business owners of Flint. 582. Defendants utilized channels of interstate commerce through the use of U.S. Mail and wire based means for committing the RICO predicate acts set forth herein. 583. The actions and inactions of the RICO defendants and Rico enterprise actors go beyond general negligence or recklessness and were done with knowledge and intent, as the facts indicate that all were engaged in a coordinated enterprise pattern of disseminating false information, and by knowingly ignoring statutes, rules and laws.. 584. The actions, inactions, misrepresentations, denials, violations, and cover ups of the Rico Defendants and Rico Enterprise Actors satisfies the 18 U.S.C. § 1961(5) definition of “pattern of racketeering activity” of at least two acts of racketeering activity that are sufficiently related. 585. The RICO Defendants engaged in a “pattern of racketeering” because all the individual RICO Defendants and Rico Enterprise Actors, including but not limited to the city of Flint water treatment plant operators and staff, the MDEQ, and it’s employees, the MDHHS, and it’s employees, Rowe, LAN, and Veolia, and their employees continuously disseminated knowingly false information by way of mail,
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wire, TV and other media mediums in a coordinated effort by all the RICO Defendants and Rico Enterprise Actors stating that the Flint River drinking water had been treated, tested, that the water was safe for use and worthy of payment, and attempting to discredit experts proclaiming Flint’s water was unsafe, despite possessing both knowledge and evidence at all times that the Flint River water was unsafe and dangerous. 586. The closed end continuity element under 18 U.S.C. § 1961(5) is satisfied by the fact that water bills were mailed to Flint property and business owners on a monthly basis from the time of the April 2014 hookup to the free Flint River through the present time until March 2016, when the City of Flint’s Mayor suspended required payments for these water bills. 587. The close-ended element of 18 U.S.C. § 1961(5) is satisfied because each of the individual RICO Defendants and the Rico enterprise actors were aware, beginning in 2012, that the purpose and goal of switching to the Flint River for water supply purposes was to connect to a free source of water, and bill for and collect money from said water to balance the Flint budget. 588. The RICO Defendants’ and Rico Enterprise Actors actions for over a twoyear period amount to a continuous closed end pattern of racketeering within the meaning of the Civil RICO statute. 589. On June 29, 2013, RICO Defendant ROWE met with representatives of Flint,
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Genesee County Drain Commissioners Office and the MDEQ to discuss: a. Using the Flint River as a water source; b. The ability to perform the necessary upgrades to the Flint Water Treatment Plant; c. The ability to perform quality control d. The ability for Flint to provide water to Genesee County; e. The ability to meet an April or May 2014 timeline; and f. Developing a cost analysis.
590. According to incomplete meeting minutes, “the conversation was guided with focus on engineering, regulatory, and quality aspects…” of the items previously referenced, and the following determinations were made:
a. The Flint River would be more difficult to treat, but was viable as a source;
b. It was possible to engineer and construct the upgrades needed for the treatment process;
c. It was possible to perform quality control “with support from Rico defendant LAN engineering which works with several water system around the state, quality control count be addressed[;]”
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d. The Flint Water Treatment Plant did not have the capacity to treat and distribute sufficient water to meet the needs of Flint and Genesee County;
e. There were many obstacles to overcome, but completion by the April or May 2014 timeline was reachable;
f. The next steps were for LAN to present Flint with a proposal that would include engineering, procurement, and construction needs for the project along with cost estimates.
g. The ability to meet an April or May 2014 timeline; and h. Developing a cost analysis. 591. This 2013 meeting was actually a follow up analysis to a previously conducted Flint River viability study performed by Rico Defendant Rowe in 2011. The objectives and conclusions offered by Rowe and accepted by the RICO Defendants blatantly contradicted Rowe’s previous 2011 feasibility study that expressed major concerns and which MDEQ employees knew of and agreed with that refuted the proposition that the Flint River could be utilized as a viable primary water source. 592. It was therefore known by Rico enterprise Actors, The City Of Flint, MDEQ, MDHSS, Snyder, Dillon, Clinton, Muchmore, and the Emergency Managers, that at the time of the 2013 Rowe/LAN engineering meeting, and Rowe’s follow up report
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contradicted the original 2011 conclusions, and that at best, there were substantial steps that needed to be taken before distributing Flint River water to Flint residents before it could be done so safely and responsibly. 593. The 2013 Rowe report set forth an illusory plan for upgrading the Flint water treatment plant for purposes of treating the Flint River water that would be distributed. Rowe’s plan emphasized the need to implement corrosion controls and the continued involvement of the Rico defendants Rowe/LAN to maintain the system. 594. The follow up report and plan presented by Rowe, and adopted by RICO Defendants LAN, the Emergency Manager, and Rico Enterprise Actors MDEQ and The City of Flint, was nothing more than a paid for professional expert report controlled by the Emergency Manager to further legitimize and obfuscate the reckless and intentional switch to the Flint River and further the over-arching financial scheme of balancing Flint’s budget. 595. The necessary steps provided for in the Rowe report and adopted by Lan were knowingly never implemented prior to connecting to the Flint River on April 25, 2014 or at any time leading up the declared state of emergency in late 2015. 596. The necessary steps provided for in Rowe’s 2013 report were repeatedly said to have been implemented by Rico enterprise actor MDEQ, when it was known they were not.
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597. After public complaints began to apply pressure on the RICO defendants regarding Flint’s water quality, Rico Defendant Veolia was retained and controlled by the Emergency Manager and paid to address and render expert opinion and reports to perpetuate the falsehood that Flint’s water quality met acceptable standards and was safe for use. 598. RICO Defendant Veolia issued their report which was presented to a committee of Flint’s City Council on February 18, 2015. In the report, Veolia indicated that Flint’s water was “in compliance with drinking water standards.” It also noted that “[s]afe [equals] compliance with state and federal standards and required testing.” In other words, Veolia publically declared Flint’s poisonous water safe, while knowing full well that this was not the case. 599. By taking no steps to combat corrosion prior to connecting to the Flint River on April 25, 2014, RICO Defendants Rowe, LAN and Veolia, knew as a matter of fact that they were aiding the Rico enterprise and perpetuated the scheme and conspiracy of the RICO defendants to deliver and bill for untreated, unsafe, free but poisonous water. 600. The signs of the Flint River’s unsafe effects on the City’s water system and infrastructure began to surface almost immediately further confirming what the RICO defendants and Rico Enterprise Actors already knew, but chose to ignore and continued to misrepresent as safe.
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601. The fact that the City of Flint knowingly began distributing Flint River water without the necessary upgrades cited by the Rowe 2013 report is substantiated by Michael Glasgow’s (The Water Quality Supervisor for Flint’s water plant) correspondence to MDEQ dated April 16, 2014 directly notified MDEQ that the Flint Water Treatment Plant would not be ready to treat and/or distribute Flint River water “anytime soon”. 602. Michael Glasgow’s clear warning to MDEQ and others that the Flint Treatment plant was not anywhere near ready for the Flint River transition was ignored and the Flint River became Flint’s primary water source a mere 9 days after Glasgow issued the above correspondence. 603. Almost immediately after the Flint River was connected as Flint’s primary water source on April 25, 2014, the very issues of corrosive destabilization of prior metallurgically stable infrastructure that were cited in the expert reports of Rowe and LAN were realized when complaints began to pour in citing discolored and smelly water by the citizens of Flint. 604. While Rico defendant Veolia proclaimed the water was safe to perpetuate the financial scheme of the Rico enterprise, the health impacts of the Flint River were readily apparent through a substantial uptick in infant lead poisoning cases during the 2014 and 2015 years. 605. Rico enterprise Actor MDHHS not only failed to take action regarding the
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uptick in known elevated infant blood lead levels, but actively and intentionally concealed this information and data that Flint’s water supply was causing the City’s residents to be lead exposed and re exposed and infected with legionella and other bacteria. 606. RICO defendants Lyon, Wells, Peeler, Scott and Dykema entirely deviated from their roles as employees of MDHHS and through their various roles and authority conveyed through their respective positions, actively concealed data and information they possessed and misrepresented to the public the health impacts of lead exposure and re exposures that were known to exist and occurring in Flint. 607. As a direct and proximate cause of the Individual RICO Defendants’ and Rico enterprise actors actions pursuant to 18 U.S.C. 1962(c) and (d), the plaintiffs represented herein have suffered catastrophic losses to property value, the destruction of the infrastructure in the city of Flint, the loss of business, absorbed substantial costs to repair their corroded water systems, are forced to use and or purchase bottled water with no safe water supply available in Flint for consumption or any other type of suitable use, and been forced to pay the estimated $50 million for unsafe water thereby giving them sufficient standing to maintain this RICO cause of action.
COUNT III - BREACH OF CONTRACT AND IMPLIED WARRANTY OF MERCHANTABILITY AND IMPLIED WARRANTY OF FITNESS UNIFORM COMMERCIAL CODE CT
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174 OF 1962 440.2316 AND DUE PROCESS ART.14; DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW
All Plaintiffs Against Defendants Flint, State of Michigan, All Emergency Managers
608. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 609. Defendant City of Flint, as used by the State of Michigan and Emergency Managers reporting to Snyder, Dillon, and Clinton, billed for, by its statutes and by offering services to its residents, offered to sell by contract with the residents of the city of Flint, potable, as safe drinking water from the Flint River. 610. Plaintiffs accepted the offer by utilizing Flint River water, agreeing to pay for this water, and tendering payment for this water. 611. Plaintiffs and Defendant City of Flint, as used by the State of Michigan and its Emergency Manager who reported to Snyder, Dillon, and Clinton, entered into a contract for the purchase and sale of potable, safe drinking water. 612. Defendant State of Michigan, through the Emergency Managers who reported to Snyder, Dillon and Clinton, overtook the local government of Flint and assumed and/or shared its duties under the contract to sell potable, safe drinking water to Plaintiffs. 613. Defendants materially and irreparably breached the contract with Plaintiffs by failing to provide potable, safe drinking water, and instead providing harmful,
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foul, contaminated water unfit for human consumption. 614. The breach of contract includes, but is not limited to, the breach of the implied warranty of merchantability of the potable safe drinking water subject to the contract of sale, pursuant to the Uniform Commercial Code as adopted by the State of Michigan Act 174 of 1962 Section 440.2316. 615. The breach of contract also includes, but is not limited to, the breach of implied warranty of fitness for a particular purpose of the potable safe drinking water subject to the contract of sale, pursuant to the Uniform Commercial Code as adopted by the State of Michigan Act 174 of 1962 Section 440.2316. 616. The 14th Amendment of the U.S. Constitution was violated by the imposition of these contracts and the breaches of these contracts, because they constitute a taking of property without due process of law. 617. It is a violation of due process because these contracts were imposed on Plaintiff’s by the city of Flint, using the State of Michigan through the Emergency Managers who reported to Snyder, Dillon, and Clinton, and without the approval of the city of Flint duly elected officials, and without approval of Plaintiffs through their duly elected representatives of the city of Flint. 618. As a result of Defendants’ breach, Plaintiffs suffered damages in the amount of all debts and obligations for Flint water, whether tendered or not tendered, and as stated throughout this complaint.
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619. Furthermore, the actions of the City of Flint, State of Michigan, their respective executives, officers, agencies, and agents by disconnecting the City’s water supply from the safe DWSD and instead relying on the free but unsafe waters of the Flint River, did cause a city wide diminution of property values for residences and businesses leaving the individual properties either uninhabitable or, in the cases of business, economically unviable to the point that the prices for said properties have been reduced to mere throwaway values. 620. Defendants’ actions did not advance any legitimate state interest and, on the contrary, caused city wide harm. 621. Defendants’ actions have damaged, irreparably harmed or destroyed significant portions of the City of Flint’s water delivery infrastructure to such an extent that property owners, both residential and commercial, have suffered a severe diminution of their property values to such a point that they will either have to abandon the uninhabitable and/or unusable property or stay and be saddled with the unsustainable burden of paying for the rehabilitation of the City’s water delivery system. 622. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ damages. 623. As a direct and proximate result of the above Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered contract damages and
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property damages (including but not limited to damaged plumbing, destruction of the Flint infrastructure, payment for water which was not safe to drink in violation of the implied warranties, lost business and real property value, and exemplary damages. In total the amount paid for a contractually unfit product should be refunded, disgorged, and taken back in excess of 50 million dollars.
COUNT IV– 42 U.S.C. § 1983 SUBSTANTIVE DUE PROCESS – BODILY INTEGRITY All Plaintiffs Against Defendants City of Flint, Walling, Croft, Glasgow, Snyder, Dillon, Clinton, Brown, Kurtz, Earley, Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Peeler, Lyon, and Scott 624. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 625. Amendment XIV to the Constitution of the United States of America provides in relevant part, that: “…nor Shall any State deprive any person of life liberty or property without due process of law.” 626. This protected “liberty” interests include the fundamental right to bodily integrity. 627. Defendants knowingly and willfully violated the plaintiff’s Constitutional right to bodily integrity by sending corrosives directly into the antiquated yet functional Flint water delivery system infrastructure. 628. This State action, motivated by a plan to resolve a run of the mill fiscal crisis
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in Flint, is a deliberate violation of Plaintiffs 14th Amendment rights to liberty, particularly bodily integrity. 629. Like a great deal of American infrastructure, said Flint infrastructure was old and antiquated but metallurgically stable. 630. State officials had the option of removing the lead containing antiquated delivery system in Flint, and replacing it with one that did not contain lead, but chose not to do so, before they approved and released corrosives into the water delivery system. 631. Said infrastructure has always consisted of pipes which were comprised of metallic compounds which had remained metallurgically stable for over 50 years. 632. The delivery of said corrosives caused destabilization to the structural integrity of the infrastructure and allowed metallic compounds to leach into the water delivery system. 633. This destabilization and degradation stripped and separated the pipes’ component element of lead (Pb) and released it into the homes, businesses and facilities of Flint. 634. Plaintiffs ingested and otherwise were caused to be exposed and re exposed to this newly released element of lead. 635. Lead is a well known potent neurotoxin for which the State of Michigan, its agents servants and employees has officially recognized.
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636. Children under the age of 7 (seven), are particularly vulnerable and at risk to this neurotoxin as their brains are developing most rapidly at this time causing irreversible brain damage and developmental delays. 637. Lead causes and caused injuries to the plaintiffs including but not limited to irreversible brain damage, loss of IQ points, hyperactivity, mental retardation, learning disabilities, impaired executive functioning, kidney damage, elevated blood pressure, heart damage, loss of earnings potential, loss of impulse control resulting in violent and or criminal behavior, in utero exposure to unborn fetuses resulting in second generation lead exposed children, and premature death or other injuries. 638. Said exposure and re exposure requires immediate and life long medical and educational interventions, testing, evaluations, and painful chelation of blood. 639. In causing Plaintiffs to be exposed and re exposed to lead, Defendants maliciously, recklessly, wantonly, knowingly in bad faith, and/or in reckless disregard for Plaintiffs’ constitutional rights /or made with deliberate indifference to public safety and welfare, exposed and re exposed Plaintiffs to a known and foreseeable risk of harm. 640. As a result of Defendants’ actions and/or omissions, Plaintiffs suffered bodily harm and their Constitutional rights to bodily integrity were violated. 641. Defendants’ actions shock the conscience of Plaintiffs and of any reasonable
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person. 642. Defendants unlawful conduct was part of the overall fiscal scheme to fix a run of the mill Municipal budget problem. 643. Defendants deliberate actions were the proximate cause of the Plaintiffs’
injuries. 644. As a direct and proximate result of Defendants deliberate conduct, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation), cognitive deficits, lost earning capacity, aggravation of preexisting conditions, the need for a lifetime of medical monitoring, in utero exposure and re exposure to lead, and punitive damages.
COUNT V- BREACH OF IMPLIED WARRANTY AND DUE PROCESS ART.14; DEPRIVATION OF PROPERTY WITHOUT DUE
PROCESS OF LAW All Plaintiffs Against Defendants City of Flint and State of Michigan 645. Plaintiffs incorporate every allegation in this complaint as if fully restated
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herein. 646. The State of Michigan and the City of Flint directly promised to provide water that was fit for human consumption and/or impliedly promised that the water was fit for human consumption. 647. The State of Michigan and the City of Flint have both admitted that the water it supplied was contaminated, including being poisoned with lead, and therefore clearly not fit for its intended use of human consumption. 648. The provision of water unfit for its intended purpose and/or the admission that the water was not fit for its intended purpose constitute material breaches of an implied warranty and/or contract. 649. Defendants are liable to Plaintiffs and the putative class for all amounts billed and/or charged and/or collected, whether paid or unpaid, for water that was unfit for human consumption. 650. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 651. As a direct and proximate result of the individual Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability,
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denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and exemplary damages.
COUNT VI– 42 U.S.C. § 1983 SUBSTANTIVE DUE PROCESS – DEPRIVATION OF CONTRACTUALLY CREATED PROPERTY RIGHT All Plaintiffs Against Defendants City of Flint, Walling, Croft, Glasgow, State of Michigan, Snyder, Dillon, Clinton, Brown, Kurtz, Earley, Ambrose, Shekter
Smith, Wyant, Busch, Cook, Prysby, and Wurfel
652. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 653. Plaintiffs possessed and were deprived of a state contract law created property right to purchase and receive safe, potable drinking water. 654. Plaintiffs’ right was created by the actions of the parties as well as under Section § 46-16 et. seq. of the Flint City Ordinance. 655. Plaintiffs’ right is so rooted in the traditions and conscience of the American people as to be ranked as fundamental and protected by the Constitution. 656. Defendants violated Plaintiffs’ property right when, ceasing to provide
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Plaintiffs with safe, potable water, they provided Plaintiffs with poisonous, contaminated water. 657. The violation of Plaintiffs’ property right is not adequately redressed in a state breach of contract action. 658. The violation of Plaintiffs’ property right involved Defendants’ failure to adequately train, supervise, and/or hire employees. 659. Defendants’ outrageous, deliberate acts and/or inaction in violating Plaintiffs’ protected property right caused Plaintiffs to suffer injuries. 660. Defendants’ actions and/or omissions were the proximate cause of the
Plaintiffs’ injuries. 661. As a direct and proximate result of all of the above Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property
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value), and punitive damages. Count VII – 42 U.S.C. § 1983 – PROCEDURAL DUE PROCESS –
DEPRIVATION OF CONTRACTUALLY CREATED PROPERTY RIGHT All Plaintiffs Against Defendants City of Flint, Walling, Croft, Glasgow, State of Michigan, Snyder, Dillon, Clinton, Brown, Kurtz, Earley, Ambrose, MDEQ,
Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel 662. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 663. Defendants deprived Plaintiffs of their contractually based property right to purchase and receive safe, potable drinking water, without notice or hearing. 664. Defendants have not provided Plaintiffs with just compensation for their taking of Plaintiffs’ property interests. 665. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 666. As a direct and proximate result of all of the above Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including
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(without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive damages.
Count VIII- BREACH OF IMPLIED WARRANTY AND DUE PROCESS ART.14;
DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW
All Plaintiffs Against Defendants Flint & The State of Michigan 667. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 668. The City of Flint used by the State of Michigan through the Emergency Managers who reported to Snyder, Dillon and Clinton, directly promised to provide water that was fit for human consumption and/or impliedly promised that the water was fit for human consumption. 669. The City of Flint, the State of Michigan through its Emergency Managers who reported to Snyder, Dillon and Clinton, have admitted that the water it supplied was contaminated, including being poisoned with lead, and therefore clearly not fit for its intended use of human consumption. 670. The provision of water unfit for its intended purpose and/or the admission that the water was not fit for its intended purpose constitute material breaches of an
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implied warranty and/or contract. 671. The 14th Amendment of the U.S. Constitution was violated by the imposition of these contracts and the breaches of these contracts, because they constitute a taking of property without due process of law. 672. It is a violation of due process because these contracts were imposed on Plaintiff’s by the State of Michigan using the Emergency Managers who reported to Snyder, Dillon and Clinton and without the approval of the city of Flint duly elected officials, and without approval by Plaintiffs duly elected representatives of the city of Flint. 673. Defendants are liable to Plaintiffs and the putative class for all amounts billed and/or charged and/or collected, whether paid or unpaid, for water that was unfit for human consumption. 674. Defendants’ actions have damaged, irreparably harmed or destroyed significant portions of the City of Flint’s water delivery infrastructure to such an extent that property owners, both residential and commercial, have suffered a severe diminution of their property values to such a point that they will either have to abandon the uninhabitable and/or unusable property or stay and be saddled with the unsustainable burden of paying for the rehabilitation of the City’s water delivery system. 675. Defendants are liable to Plaintiffs and the putative class for the diminution
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of their property values and/or the costs associated with the rehabilitation and replacement of the City’s water delivery infrastructure. 676. Defendants’ actions and/or omissions were the proximate cause of the
Plaintiffs’ injuries. 677. As a direct and proximate result of the Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and damages to property (including but not limited to damaged plumbing, destruction of the infrastructure, and diminution of real property and businesses value), and exemplary damages.
Count IX- UNJUST ENRICHMENT All Plaintiffs Against Defendants State of Michigan and City of Flint
678. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 679. Defendants have received the benefits of the funds paid by Plaintiffs for
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contaminated water that was and is unfit for human consumption. 680. Defendants have utilized these funds for the operation of the government(s) of Flint and/or Michigan. 681. The retention of the benefit of the funds paid by Plaintiffs constitutes unjust enrichment in the amount of all funds paid for water that was unfit for human consumption. 682. It would be unjust to allow Defendants to retain the benefit they obtained from Plaintiffs. 683. Plaintiffs are entitled to exemplary damages.
Count X –NEGLIGENCE/PROFESSIONAL NEGLIGENCE/GROSS NEGLIGENCE
All Plaintiffs Against Defendant Veolia 684. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 685. Veolia undertook, for consideration, to render professional expert services for the City of Flint which it should have recognized as necessary for the protection of Plaintiffs, the putative class, and/or their property. 686. Veolia undertook to perform a duty owed to Plaintiffs and the putative class by the City of Flint and/or the State of Michigan. 687. Based on its undertaking, Veolia had a duty to Plaintiffs and the putative
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class to exercise reasonable care to protect that undertaking. 688. Plaintiffs and the putative class relied on the City, State, and/or Veolia to perform the duty to inspect, test, make recommendations for and report properly regarding the City’s water supply to make sure that it was safe. 689. Veolia failed to undertake reasonable care and conduct as a professional engineering firm. 690. Veolia failed to exercise reasonable care in testing the city’s water system and issuing its interim and final reports and recommendations. 691. Veolia failed to exercise reasonable care when it declared that Flint’s drinking water met federal and/or state and/or all applicable requirements. 692. Veolia failed to exercise reasonable care when it represented that Flint’s drinking water was safe. 693. Veolia failed to exercise reasonable care when it discounted the possibility that problems unique to Flint’s water supply were causing medical harms. 694. Veolia failed to exercise reasonable care when it failed to warn about the dangers of lead leaching into Flint’s water system.
695. Veolia failed to exercise reasonable care when it did not forcefully recommend the immediate implementation of corrosion control for purposes of preventing further lead contamination in Flint’s water supply. 696. Plaintiffs and the putative class suffered harm resulting from Veolia’s
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failures to exercise reasonable care to protect its undertaking. 697. Veolia’s failures to exercise reasonable care to protect its undertaking proximately caused the Plaintiffs’ injuries and were entirely foreseeable. 698. Veolia is liable to Plaintiffs and the putative class for all harms resulting to themselves and their property from Veolia’s failures to exercise reasonable care. 699. Veolia’s is responsible for damages including without limitation, personal injuries, illnesses, exposure to toxic substances, destruction of the infrastructure and damage to property and businesses of the residents of the city of Flint, suffered by Plaintiffs and the putative class as a result of Veolia’s failures to exercise reasonable care. 700. Veolia’s conduct and/or failure(s) to act constitute gross negligence that rises to the level of recklessness because it was so reckless that it demonstrates a substantial lack of concern for whether an injury would result. 701. Veolia’s actions and/or omissions were a and/or the proximate cause of the Plaintiffs’ injuries. 702. As a direct and proximate result of Veolia’s actions and/or omissions, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of
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social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre existing conditions, contract damages, destruction of the infrastructure and damage to the property and businesses of the residents of the city of Flint, (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
Count XI- NEGLIGENCE/PROFESSIONAL NEGLIGENCE/GROSS NEGLIGENCE
All Plaintiffs Against Defendant LAN and Rowe 703. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 704. LAN and Rowe undertook, for consideration, to render professional expert services for the City of Flint which it should have recognized as necessary for the protection of Plaintiffs, the putative class, and/or their property. 705. LAN and Rowe undertook to perform a duty owed to Plaintiffs and the putative class by the City of Flint and/or the State of Michigan. 706. Based on its undertaking, LAN and Rowe had a duty to Plaintiffs and the putative class to exercise reasonable care to protect that undertaking. 707. Plaintiffs and the putative class relied on LAN and/or Rowe to test,
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recommend, report and implement as to safety of the water in connecting to the Flint River and as to the Flint water treatment plant with the duty to ensure as to required upgraded and the proper treatment of the new water source(s). 708. LAN and Rowe failed to exercise reasonable care in preparing for and executing the transition from treated DWSD water to untreated Flint River water. 709. LAN and Rowe failed to undertake reasonable care and conduct as a professional expert firms. 710. LAN and Rowe failed to exercise reasonable care when they did not implement corrosion control in a system containing lead pipes where new highly corrosive water was being introduced into the antiquated infrastructure and water delivery system. 711. Plaintiffs and the putative class suffered harm resulting from LAN and Rowe’s failures to exercise reasonable care to protect their undertaking and make sure that safeguards were taken to upgrade the Flint water treatment plant. Plaintiffs and the putative class suffered harm resulting from LAN and Rowe’s failures to exercise reasonable care to protect their undertaking and make sure that anticorrosives were provided to combat corrosion of the antiquated infrastructure and water delivery system. 712. This failure and negligent acts caused the structural integrity of the previously metallurgically stable infrastructure to become unstable allowing the
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element of lead to leach from and into the infrastructure. 713. This failure and negligence in the failure to exercise reasonable care caused destruction of the infrastructure that cannot be repaired and must be replaced. 714. LAN and Rowe’s failures to exercise reasonable care to protect its undertaking proximately caused the Plaintiffs’ personal injuries and property and business owners damages and were entirely foreseeable.
715. LAN and Rowe are liable to Plaintiffs and the putative class for all harms resulting to themselves and their property from their failures to exercise reasonable care. 716. LAN and Rowe’s liability includes without limitation personal injuries, illnesses, exposure to toxic substances, destruction of the infrastructure and loss of value to property and businesses of the residents of the city of Flint suffered by Plaintiffs and the putative class as a result of LAN and Rowe’s failures to exercise reasonable care. 717. LAN and Rowe’s conduct and/or failure(s) to act constitute gross negligence that rises to the level of recklessness because it was so reckless that it demonstrates a substantial lack of concern for whether an injury would result. 718. LAN and Rowe’s actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 719. As a direct and proximate result of LAN and Rowe’s actions and/or
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omissions, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages, destruction of the infrastructure and loss of value to the businesses property of the residents of the city of Flint, (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
COUNT XII – GROSS NEGLIGENCE All Plaintiffs against Defendants Snyder, Muchmore, Walling, Croft, Glasgow, Kurtz, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook,
Prysby, Wurfel, Wells, Dykema, Peeler, Scott and The City of Flint 720. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 721. Defendants independently owed Plaintiffs and the putative class a duty to exercise reasonable care. 722. Defendants undertook, for consideration, to perform a duty owed to Plaintiffs and the putative class by the City of Flint and/or the State of Michigan.
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723. Based on their undertakings, Defendants had a duty to Plaintiffs and the putative class to exercise reasonable care to protect that undertaking. 724. Plaintiffs and the putative class relied on the City, State, and/or Defendants to perform the duty to ensure the proper treatment of Flint River Water. 725. Plaintiffs and the putative class relied on the City, State, and/or Defendants to perform the duty to disclose known hazards in their drinking water. 726. Defendants failed to exercise reasonable care. 727. Defendants breached their duties to Plaintiffs in ways including but not limited to the following:
a. Failing to require corrosion control treatment of Flint River water; b. Failing to conduct proper testing of Flint’s water; c. Failing to require proper testing of Flint’s water; d. Failing to respond to evidence that Flint’s water was improperly treated; e. Misrepresenting that corrosion control treatment had been implemented; f. Publicly declaring unsafe water to be safe to drink; g. Ignoring evidence that Flint’s water was unsafe to drink; h. Withholding information that showed that Flint’s water was unsafe to
drink; i. Publicly discrediting those who claimed that Flint’s water may not be safe
to drink;
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j. Failing to warn Plaintiffs the public that Flint’s water was not safe to drink.
728. Plaintiffs and the putative class suffered harm resulting from Defendants’ failures to exercise reasonable care. 729. Plaintiffs and the putative class suffered harm resulting from Defendants’ failures to exercise reasonable care to protect their undertakings. 730. Defendants’ failures to exercise reasonable care to protect their undertakings proximately caused the Plaintiffs’ injuries and were entirely foreseeable. 731. Defendants are liable to Plaintiffs and the putative class for all harms resulting to themselves and their property from Defendants’ failures to exercise reasonable care. 732. Defendants’ liability includes without limitation personal injuries, illnesses, exposure to toxic substances, and property damage suffered by Plaintiffs and the putative class as a result of Defendants’ failures to exercise reasonable care. 733. Defendants’ actions and/or omissions were the proximate cause of the
Plaintiffs’ injuries. 734. All of the above individual Defendants’ conduct and/or failure to act constitute gross that rises to the level of recklessness because it demonstrates a substantial lack of concern and wanton disregard for whether injury would result. 735. As a direct and proximate result of the above individual Defendants’ conduct
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and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages, destruction of the infrastructure and loss of value to the property and businesses of the residents of the city of Flint, (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
RELIEF REQUESTED WHEREFORE, Plaintiffs request that the Court grant them:
a. An order certifying one or more classes pursuant to Fed. R. Civ. P. 23;
b. An order declaring the conduct of Defendants unconstitutional; c. An order declaring the Defendants liable for each Cause of Action
as stated above; d. Compensatory damages, including for injuries to person and
property as outlined herein;
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e. Treble damages for property damage, destruction of the infrastructure and loss of business and financial loss under the Civil Rico Statute.
f. Legal Fees and Attorney’s fees under the Civil RICO Statute g. Compensatory damages for unjust enrichment h. Compensatory damages for future costs associated with necessary
medical monitoring, early diagnosis, and future medical care. i. Consequential damages; j. Punitive damages as appropriate; k. Any and all other damages as outlined above; l. Reasonable attorneys’ fees and litigation expenses; and
such other relief as this Court may deem fair and equitable, including but not limited to injunctive relief.

JURY DEMAND Plaintiffs hereby demand a trial by jury.

Dated: August 12, 2016
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Respectfully submitted,
BERN RIPKA, LLP By: /s/ Chet Kern

5:16-cv-11247-JCO-MKM Doc # 33 Filed 08/12/16 Pg 154 of 154 Pg ID 637
Chet Kern, Esq. Marc J. Bern, Esq. 60 East 42nd Street, Suite 950 New York, NY 10165 (212) 702-5000 ckern@bernripka.com mbern@bernripka.com
1-800-LAW-FIRM, PLLC By: /s/ Ari Kresch
Ari Kresch (P29593) 26700 Lahser Rd, Suite 400 Southfield, MI 48033 (248) 565-2099 akresh@1800lawfirm.com
EXCOLO LAW, PLLC By: /s/ Solomon M. Radner Solomon M. Radner (P73653) 26700 Lahser Rd, Suite 401 Southfield, MI 48033 (248) 291-9712 sradner@excololaw.com
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 </s> 2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 1 of 118 Pg ID 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

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LAWRENCE WASHINGTON JR., individually and as next friend of five minor children, TAYLOR WASHINGTON, MORGAN WASHINGTON, CHLOE WASHINGTON, MADISON WASHINGTON, LAWRENCE WASHINGTON; CHRISTA GODIN, individually and as next friend of three minor children, ANGEL ARRAND, AUSTON ARRAND, WILLIAM ZIETZ III; ROOSEVELT CAMERON; DEBORAH SMITH; ABY NDOYE, SHANIKA MIXON and ROBIN DAVIS, all on behalf of themselves and a class of all others similarly situated,

JURY TRIAL DEMANDED

Plaintiffs,

Case No.

- against -

GOVERNOR RICHARD DALE SNYDER, in his individual capacity, DENNIS MUCHMORE, in his individual capacity, and the STATE OF MICHIGAN for prospective relief only; the MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY (“MDEQ”), the MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES (“MDHHS”), ED KURTZ, DARNELL EARLEY, GERALD AMBROSE, HOWARD CROFT, MICHAEL GLASGOW, DANIEL WYANT, LIANE SHEKTER SMITH, STEPHEN BUSCH, PATRICK COOK, MICHAEL PRYSBY, BRADLEY WURFEL, EDEN WELLS, NICK LYON, LINDA DYKEMA, NANCY PEELER, ROBERT SCOTT, in their individual and official capacities, ROWE PROFESSIONAL SERVICE COMPANY, a Michigan Corporation, LOCKWOOD, ANDREWS & NEWMAN, INC. a Texas Corporation, VEOLIA NORTH AMERICA, LLC, a Delaware Corporation, DAYNE WALLING, and the CITY OF FLINT, a municipal corporation, jointly and severally.

CLASS ACTION COMPLAINT

Defendants.
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2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 2 of 118 Pg ID 2
CLASS ACTION COMPLAINT AND JURY DEMAND
INTRODUCTION 1. This case arises from the now infamous poisoning and damage to the property of Flint’s residents with lead from water from Flint’s pipes and service lines. 2. Plaintiffs bring this action for prospective relief only as against the State of Michigan, the Michigan Department of Environmental Quality, hereinafter known as MDEQ, and the Michigan Department of Health and Human Services, hereinafter known as MDHHS.
3. The poisoning of the residents of Flint, Michigan with toxic drinking water did not originate from a toxic water problem. Rather, the poisoning of the residents of Flint originated from a run of the mill city fiscal problem, which could have been safely addressed by invoking time tested, well-honed federal bankruptcy protections for restructuring the debts of municipalities. 4. However, the State of Michigan and Governor Snyder through their Emergency Managers, did not file bankruptcy petitions for Flint. 5. Instead, they conceived and enacted a wrongful scheme to solve Flint’s fiscal problem by selling Flint residents poisoned drinking water from a new, free water source. 6. Historically, and for approximately 50 years, the Flint residents had paid for clean, safe and properly treated drinking water which it purchased from Detroit. 7. To save money, the State of Michigan stopped buying the clean safe Detroit water, and instead began to procure free drinking water from the toxic Flint River. 8. Over a period of approximately 2 years, the Flint residents were forced by the Emergency Managers- Ed Kurtz, Darnell Earley, and Gerald Ambrose, who reported directly to Governor Snyder and the State of Michigan to pay an estimated $50 million for toxic Flint

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 3 of 118 Pg ID 3
River drinking water in order to balance the Flint books. 9. The State of Michigan never intended to use the free water of the Flint River as a permanent solution, as it certainly would have, had the Flint River been safe to use as drinking water. 10. Rather, the State of Michigan intended, from the outset, to discontinue buying safe water from Detroit in 2014 and to switch to buying the less expensive safe water from Lake Huron in late 2016.
11. However, there was a time gap of at least two years until the infrastructure to bring the Lake Huron water to Flint was in place. The free Flint River water source was intended to be used only during the two-year interstitial period of time between disconnecting from the Detroit water and hooking up to the Lake Huron water. 12. During this two-year interstitial period, the State of Michigan, who seized control and managed all the financial and governmental affairs of the City of Flint and the MDEQ and private Defendants Veolia North America LLC., hereinafter known as Veolia, Rowe Professional Service Company, hereinafter known as Rowe, and Lockwood Andrews and Newnam, Inc., hereinafter known as LAN, made false continued representations as to the safety of the Flint River water, despite independent testing indicating its toxicity.
13. Governor Snyder and the State of Michigan, through the Emergency Managers in 2013 made the decision to switch from the Detroit Water and Sewer Department (“DWSD”) to the Flint River as the water source for the City of Flint.
14. Through the Emergency Managers, Snyder and the State of Michigan completely subsumed the authority of the local government of Flint under PA 436 and left the municipal

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 4 of 118 Pg ID 4
authorities powerless.
15. The State of Michigan, its Emergency Managers, the MDEQ, MDHHS, and the Environmental Protection Agency District 5, hereinafter known as EPA had knowledge and power to prevent this tragic occurrence which violated the Federal Lead & Copper Rule. 16. As a result of the acts of Governor Snyder and his staff, the Emergency Managers, MDEQ, and MDHHS, unthinkable harm has been inflicted on the residents of Flint. 17. The effects of exposure and re-exposure to lead to infant children and adults are as long lasting as they are devastating, as well as the effect upon the value of the property of the citizens of Flint, and in the unlawful billing for toxic water from the Flint River and inflicted immeasurable harm and property damage to the Plaintiffs. 18. The State provided a mantle of authority for the Defendants acting outside the scope of their authority that enhanced their power as harm-causing individual actors who acted in concert with requisite intent and scienter that caused immeasurable damage to the health and property of the residents of Flint.
PARTIES 19. Plaintiffs have, and have at all times relevant hereto been residents of Flint, Michigan. 20. Defendants forced the decision to connect to the Flint River onto the residents of the City of Flint, thereby exposing Plaintiffs to the unsafe and untreated Flint River water. 21. These plaintiffs include lead poisoned plaintiffs, as well as property owners and business owners who paid monthly for toxic water from the free Flint River source beginning in April 2014. 22. Plaintiffs have been exposed and re-exposed to extremely high levels of lead due to the actions of the Defendants.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 5 of 118 Pg ID 5
23. As a result of Defendants’ actions, Plaintiff have suffered injuries and health problems relating to their hair, skin, digestive and other organ problems, increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of preexisting conditions, requiring vigilant medical monitoring, contract damages, property damages (including but not limited to damaged plumbing, diminution of real property values and return of monies paid for toxic water). 24. The State of Michigan directs, controls, and operates MDEQ. 25. The State of Michigan directs, controls and operates MDHHS. 26. The State of Michigan through the Emergency Managers stood in the shoes and completely subsumed the City of Flint, reporting to Governor Snyder at all times relevant hereto, having entirely absorbed the authority of all governmental functions and fiscal decisions regarding the City of Flint beginning in December 2011. 27. Defendant Richard Snyder is the Governor of Michigan, sued in his individual capacity. 28. Snyder was at all times acting within and outside of the scope of his employment and/or authority under color of law. 29. Snyder formulated an intentional overarching RICO scheme based on Flint’s run of the mill fiscal problems in order to balance the books of the City of Flint by collecting $50 million dollars for water bills for toxic water from the free Flint River water source. 30. Snyder understood that if the free water from the Flint River was fit for use and could be properly treated, there would have been no reason for Flint to switch to the new KWA water supply in 2016.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 6 of 118 Pg ID 6
31. Governor Snyder was an integral actor in the scheme that intentionally defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry, by planning, directing, coordinating and facilitating the State’s insufficient response to the free but toxic Flint River water and failing to warn and protect the residents of the City of Flint of the consequences of the toxic water as effects their health and property values, despite having knowledge and evidence to the contrary at all times. 32. The citizens of Flint justifiably relied on representations from Governor Snyder. 33. The citizens of Flint justifiably relied on representations from the State of Michigan. 34. The citizens of Flint justifiably relied on representations from the Emergency Managers. 35. The citizens of Flint justifiably relied on representations from the MDEQ. 36. The citizens of Flint justifiably relied on representations from the MDEQ employees. 37. The citizens of Flint justifiably relied on representations from the MDHHS. 38. The citizens of Flint justifiably relied on representations from the MDHHS employees. 39. The citizens of Flint justifiably relied on representations from The City of Flint. 40. The citizens of Flint justifiably relied on representations from The City of Flint employees. 41. The citizens of Flint justifiably relied on representations from The City of Flint agents. 42. Defendant Dennis Muchmore (“Muchmore”) was Governor Snyder’s Chief of Staff, and all times relevant hereto was acting within and outside the scope of his employment and/or authority under color of law. 43. Muchmore as the Governor’s Chief of Staff had numerous and continuous correspondences with Snyder and others that provided Snyder ongoing and actual notice of the

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 7 of 118 Pg ID 7
continuing problems in Flint regarding the toxic water, that resulted in lead poisoning and property damage to the residents caused by the fiscal deficit in Flint. 44. Defendant Muchmore was an integral actor in the fiscal scheme that directed, intentionally defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry, by planning, directing, coordinating and facilitating the State’s insufficient response to the free but toxic Flint River water and failing to warn and protect the residents of the City of Flint of the consequences of the toxic water as effects their health and property values.
45. Defendant Emergency Managers continuously controlled all the Flint governmental functions, decisions and fiscal decisions from December 2011 through April 30, 2015 pursuant to Statute and reported to Governor Snyder.
46. The Emergency Managers at all times relevant hereto were acting within and outside the scope of their employment and/or authority under color of law.
47. The Emergency Managers named herein are sued in their individual and official capacities.
48. The Defendants Emergency Managers acting in concert with Snyder, MDEQ, and MDHHS made the decision to switch to the free Flint River water system and enabled Flint’s water treatment plant from not properly analyzing and treating this water with an anti-corrosive, nor making it safe in any way.
49. The Defendant Emergency Managers were integral actors in the scheme that directed, defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 8 of 118 Pg ID 8
50. The Defendant Emergency Managers made false and/or misleading statements representing that the water fromt= the Flint River was safe to drink as it poisoned, exposed and re-exposed thousands of residents of Flint and damaged their property.
51. Defendant City of Flint is a municipal corporation located in Genesee County, Michigan.
52. Defendant Dayne walling was at all times relevant here in the Mayor of the City of Flint. Mayor Walling misrepresented the quality and suitability of the Flint River water to Flint’s residents and property owners. 53. Flint, through its Department of Public Works, distributes water to its nearly 100,000 residents. 54. Emergency Manager Darnell Earley, as the City’s final policy making authority, made the decision, in coordination with the Governor, MDEQ, MDHHS, and the City, to rush the distribution of water from the Flint River without proper treatment, including corrosion control, resulting in thousands of people being poisoned.
55. The actions of lower level Flint employees in delivering residents unsafe water were constrained by policies not of their own making. 56. Flint’s water treatment employees were inadequately trained, in light of the duties assigned to them the need for more training was obvious, and the inadequacy was so likely to result in the violation of constitutional rights that Flint’s policy makers can reasonably said to have been deliberately indifferent to the need for additional training.
57. The City of Flint is liable because through its policy makers it violated the constitutional

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rights of the Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. 58. Defendant Howard Croft was at all relevant times Flint’s Department of Public Works Director acting within and outside the scope of his employment and/or authority under color of law. 59. Croft is sued in his individual and official capacities. 60. Croft knew that the City’s water treatment plant was unprepared to adequately provide safe drinking water to Flint’s residents. 61. Croft caused and allowed toxic unsafe and untreated water to be delivered to Flint’s residents and did not disclose that Flint’s water was unsafe. 62. Defendant Croft also made numerous false statements about the safety and quality of Flint’s water that he knew to be untrue. 63. Defendant Croft violated clearly established constitutional rights of Plaintiffs and the Putative class, including but not limited to the rights to bodily integrity and to be free from state created danger. 64. Defendant Croft’s actions constitute gross negligence that rises to the level of recklessness, as he had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs or the putative class. 65. Defendant Michael Glasgow was at all relevant times a water treatment plant operator for the City of Flint acting within and outside the scope of his employment and/or authority under color of law.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 10 of 118 Pg ID 10
66. Glasgow is sued in his individual and official capacities. 67. Glasgow knew that the City’s water treatment plant was unprepared to adequately provide safe drinking water to Flint’s residents. 68. Glasgow nonetheless allowed toxic, unsafe, and untreated water to be delivered to Flint’s residents and did not disclose that Flint’s water was unsafe. 69. Defendant Glasgow had an opportunity to be a hero and save thousands of people from lead contamination. Instead, he violated clearly established constitutional rights of the Plaintiffs and the Putative class, including but not limited to the rights to bodily integrity and to be free from state created danger. 70. Defendant Glasgow’s actions constitute gross negligence that rises to the level of recklessness. 71. Glasgow had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs or the putative class. 72. Defendant Daniel Wyant (“Wyant”) was at all relevant times the Director of MDEQ until the Governor accepted his resignation on or about December 29, 2015, acting within and outside the scope of his employment and/or authority under color of law. 73. Wyant participated in, directed, and oversaw Defendant Snyder scheme to deny repeated violations of Federal and State water quality laws, failure to properly study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders. 74. Wyant directed MDEQ personnel to deny repeated violations of Federal and State water

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 11 of 118 Pg ID 11
quality laws, failure to properly study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders. 75. Wyant was an integral actor in the scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry. 76. Wyant disseminated false statements to the public that led to the continued exposure and re-exposure to lead and consumption of toxic and dangerous water despite knowing or having reason to know that the water was never safe. 77. Defendant MDEQ is the State Agency responsible for implementing safe drinking Federal and State water laws, rules, and regulations in Michigan, including the City of Flint Michigan. 78. MDEQ failed to require corrosion control for Flint River water in violation of the Federal Lead and Copper Rule. 79. MDEQ misled the EPA who on numerous occasions attempted to sample the water quality in Flint Michigan. 80. MDEQ conducted illegal and improper sampling of Flint’s water and lied to the public about the safety of Flint’s water. 81. MDEQ publicly discredited outside experts Miguel Del Toral of the EPA and Dr. Mark Edwards, who offered indisputable evidence to them of Flint’s water contamination. 82. MDEQ was consistently more concerned with satisfying their own distorted perceptions of technical rules than carrying out their duties to protect the residents of Flint from exposure

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 12 of 118 Pg ID 12
and re-exposure to toxic lead and water, ignoring voluminous evidence and knowledge of the crisis it had created until its denial could no longer withstand outside scrutiny. 83. Defendant Liane Shekter Smith (“Shekter Smith”) was at all relevant times Chief of the Office of Drinking Water and Municipal Assistance for MDEQ, acting within and outside the scope of her employment and/or authority under color of law, until she was removed from her position on October 19, 2015.
84. Shekter Smith knowingly participated in, approved of, and played an integral part in the decision to transition to the Flint River. 85. Shekter Smith disseminated false statements to the public that led to the continued exposure and re-exposure and consumption of toxic and dangerous water. 86. Shekter Smith made false statements regarding Flint’s water quality despite knowing that the water was toxic and untreated. 87. Defendant Stephen Busch (“Busch”) was at all relevant times the District Supervisor assigned to the Lansing District Office of the MDEQ and was acting within and outside the scope of his employment and/or authority under color of law. 88. Busch participated in concert with the MDEQ Defendants’ that resulted in repeated violations of federal and state water quality laws, failure to properly study and treat Flint River water, and the MDEQ’s program of systemic denial, lies, and attempts to discredit honest outsiders. 89. Busch falsely reported to the EPA that Flint had enacted an optimized corrosion control plan and provided repeated assurances to Flint’s residents that the water was safe.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 13 of 118 Pg ID 13
90. Busch knew or should have known that these assurances were false, or were no more likely to be true than false.
91. Busch was an integral part of the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry.
92. Busch violated clearly established constitutional rights of Plaintiffs and the Putative class, including but not limited to the rights to bodily integrity and to be free from state created danger. 93. Defendant Patrick Cook (“Cook”) was at all relevant times Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of the MDEQ and was acting within and outside the scope of his employment and/or authority under color of law. 94. Cook is individually liable because he, as the Lansing Community Drinking Unit Manager, acted in a grossly negligent manner that rises to the level of recklessness.
95. Cook participated in, approved, and/or assented to the decision to allow Flint River water to be delivered to residents without corrosion control or proper study and/or testing.
96. Cook was an integral actor in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry. 97. Cook violated clearly established constitutional rights of the City of Flint’s residents, including but not limited to the rights to bodily integrity and to be free from state created danger.

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98. Defendant Michael Prysby (“Prysby”) was at all relevant times the MDEQ Engineer assigned to District 11 (Genesee County) and was acting within and outside the scope of his employment and/or authority.
99. Prysby is individually liable because he, as the Engineer assigned to District 11, participated in, approved, and/or assented to the decision to switch the water source, failed to properly monitor and/or test the Flint River water, and provided assurances to Flint’s residents that the Flint River water was safe despite having knowledge and evidence to the contrary.
100. Prysby knew or should have known those statements to be untrue, or no more likely to be true than false.
101. Prysby was an integral actor in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry.
102. Prysby violated clearly established constitutional rights of The City of Flint’s residents, including but not limited to the rights to bodily integrity and to be free from state created danger.
103. Prysby’s actions constitute gross negligence that rises to the level of recklessness, as he had a substantial lack of concern and/or willful disregard as to whether plaintiffs’ would be injured or their property damaged.
104. Defendant Bradley Wurfel (“Wurfel”) was at all relevant times the Director of Communications for MDEQ and was acting within and outside the scope of his employment and/or authority under color of law.

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105. Wurfel resigned from his position on December 29, 2015. 106. Wurfel, serving as the MDEQ Director of Communication, was the MDEQ’s principal means of public deception, repeatedly denying the increasingly obvious disaster as it unfolded and attempting to discredit the only reliable people reporting that the Flint River water was untreated, contaminated and toxic. 107. Wurfel would eventually be relieved of his duties for his “persistent [negative] tone and derision” and his “aggressive dismissal, belittlement and attempts to discredit the credible individuals involved in [conducting independent studies and tests].” 108. Defendant Wurfel repeatedly made public statements that created, increased, and prolonged the risks and harms facing Plaintiffs and the putative class, despite knowledge and evindence he possessed to the contrary. 109. Defendant Wurfel was an integral actor in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry.
110. Defendant Wurfel violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger.
111. Wurfel made such statements knowing that they were false or that they were no more likely to be true than false. 112. Defendant Wurfel’s actions constitute gross negligence that rises to the level of recklessness, as he had a substantial lack of concern and/or willful disregard as to whether

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Plaintiffs would be injured or their property damaged. 113. Defendant MDHHS is the state agency responsible for public health. 114. Instead of protecting public health, MDHHS deliberately hid information that would have revealed the public health crisis in Flint, which MDHHS had earlier failed to disclose despite knowledge and information to the contrary.
115. The individual defendant employees of MDHHS, were integral actors in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry.
116. The individual Defendant employees of MDHHS’s failure to properly disclose and conceal data that proved there was an increase in lead contamination and exposure and reexposure in Flint’s children and adults, all while they resisted and obstructed the efforts of outside researchers and the Genesee County Health Department.
117. Individual Defendant Eden Wells (“Wells”), was at all relevant times Chief Medical Executive within the Population Health and Community Services Department of the MDHHS and was acting within and outside the scope of her employment and/or authority under color of law.
118. Defendant Wells participated in, directed, and/or oversaw the MDHHS’ efforts to hide information to save face, and to obstruct the efforts of outside credible researchers.
119. Further, Wells knew as early as 2014 of problems with lead and legionella contamination in Flint’s water and instead of fulfilling her duty to protect and notify the public, she participated in hiding this information.

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120. Wells violated state law by working only part time in her position as Chief Medical Executive. 121. Defendant Wells was an integral actor in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry. 122. Defendant Wells violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. 123. Defendant Wells actions constitute gross negligence that rises to the level of recklessness, as she had a substantial lack of concern and/or willful disregard as to whether Plaintiffs would be injured or their property damaged. 124. Individual Defendant Nick Lyon was at all relevant times Director of MDHHS and was acting within and outside the scope of his employment and/or authority under color of law. 125. Lyon participated in, directed, and/or oversaw the department’s efforts to hide and conceal information to save face, and to obstruct and discredit the efforts of outside researchers. 126. Lyon knew as early as 2014 of problems with lead and legionella contamination in Flint’s water and instead of fulfilling his duty to protect and notify the public, he participated in hiding this information. 127. Defendant Lyon violated state law by hiring and supervising a part time employee as Chief Medical Executive. 128. Defendant Lyon was an integral actor in the scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as

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it affected its citizenry despite possessing knowledge and inforamtion to the contrary. 129. Defendant Lyon violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. 130. Defendant Lyon’s actions constitute gross negligence that rises to the level of recklessness, as he had a substantial lack of concern and/or willful disregard as to whether Plaintiffs or the putative class would be injured or their property damaged. 131. Defendant Linda Dykema, was director of the MDHHS Division of Environmental Health, acting within and outside her scope of employment and color of authority. 132. Dykema continuously refused to turn over the blood lead levels regarding seasonal blood lead levels as compared to Flint and other cities in Michigan. 133. Dykema continuously refused to respond to FOIA requests and ignored the studies of Dr. Hanna-Attisha’s and Miguel Del Toral. 134. Dykema was an integral actor in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry. 135. Dykema violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. 136. Dykema actions constituted gross negligence that rises to the level of recklessness, as she had a substantial lack of concern and/or willful disregard as to whether Plaintiffs would be injured or their property damaged.

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137. Defendant Nancy Peeler (“Peeler”) was at all relevant times a MDHHS employee in charge of its childhood lead poisoning prevention program, acting within and outside the scope of her employment and/or authority under color of law. 138. Peeler oversaw the MDHHS’s efforts to hide information to save face, and actively sought to obstruct and discredit the efforts of outside researchers. 139. Even when Peeler’s own department had data that verified outside evidence of a lead contamination and increase of blood lead levels in Flint, she continued to generate evidence to the contrary. 140. Defendant Peeler was an integral actor in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry. 141. Defendant Peeler violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. 142. Defendant Peeler’s actions constituted gross negligence that rises to the level of recklessness, as she had a substantial lack of concern and/or willful disregard as to whether Plaintiffs would be injured or their property damaged. 143. Defendant Robert Scott (“Scott”) was at all relevant times Data Manager for MDHHS’s Healthy Homes and Lead Prevention Program, acting within and outside the scope of his employment and/or authority under color of law. 144. Scott participated in, directed, and/or oversaw the department’s efforts to hide

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information to save face, and actively sought to obstruct and discredit the efforts of outside researchers. 145. Even when Scott’s own department had data that verified outside evidence of a lead contamination problem and increase in blood lead levels in Flint, he continued to generate evidence to the contrary.
146. Scott also served a key role in withholding and/or delaying disclosure of data that outside researchers discovered that the Flint water was unsafe toxic and poisoning the people of Flint. 147. Scott was an integral actor of the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry. 148. Defendant Scott violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. 149. Defendant Scott’s actions constitute gross negligence that rises to the level of recklessness, as he had a substantial lack of concern and/or willful disregard as to whether Plaintiffs would be injured or their property damaged.
150. Susan Hedman, former EPA Region 5 Administrator, cannot yet be named as a Defendant pursuant to the Federal Tort Claims Act (“FTCA”). Plaintiffs note that if their FTCA claims to the EPA are rejected, they may seek to amend their complaint in order to add claims against Ms. Hedman.
151. Defendant Veolia is a Delaware corporation with its principal place of business in

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Illinois.
152. Defendant Veolia is a private Defendant in this action based on its examinations finding and reports as relates to the condition of the Flint River and the Flint water treatment plant by giving its professional engineering opinion as to the safe condition and requirements and feasibility to safely hookup the Flint water treatment plant to the Flint River and declaring the water safe to drink and the connection having been done properly and safely.
153. Defendant Veolia, was an integral actor in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry.
154. Veolia maintains an office in Westland, Wayne County, Michigan, transacts business in the State of Michigan, including the business it performed for the City of Flint in 2015, and has committed a tort in the State of Michigan, among bases for personal jurisdiction under MCL 600.705. Each of these bases extends to this District specifically.
155. Defendant Rowe f/k/a Rowe Engineering, Inc. (“Rowe”) is a Michigan Corporation with its principal place of business located at 540 S. Saginaw Street, Suite 200, Flint, Genesee County, Michigan 48502.
156. Rowe is a private individual Defendant in this action based on its examinations finding and reports as relates to the condition of the Flint River and the Flint water treatment plant by giving its professional engineering opinion as to the safe condition and requirements and feasibility to safely hookup the Flint water treatment plant to the Flint River and declaring the water safe to drink and the connection having been done properly and safely.

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157. Rowe was an integral actor in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry. 158. Rowe maintains an office in Flint, Genesee County, Michigan; regularly conducts business in Flint, Michigan; and has committed torts in Flint, Michigan, which are among the basis for personal jurisdiction under MCL 600.705. 159. Defendant LAN is a Texas corporation with its principal place of business in Texas. 160. LAN is a defendant in this action based on its role of providing negligent professional engineering services in preparing Flint’s water treatment facility to treat water from the Flint River. 161. LAN maintains an office in Flint, Genesee County, Michigan, regularly conducts business in the Eastern District of Michigan, and has committed a tort in the State of Michigan, among bases for personal jurisdiction under MCL 600.705, and each of these bases extends to this District specifically. 162. LAN, through its agents, servants and employees, was an integral actor in the government scheme that defrauded, misrepresented and falsified information and warning signs relating to the property and financial affairs of Flint as it affected its citizenry.
JURISDICTION AND VENUE 163. This Court has jurisdiction over Plaintiffs’ 42 U.S.C. § 1983 claims pursuant to 28 U.S.C. § 1331, as those claims arise under the Constitution and laws of the United States. 164. This Court has jurisdiction over Plaintiffs’ remaining claims pursuant to 28 U.S.C. §

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1367 because they are so related to claims in this action within the Court’s original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
165. This Case does not present novel or complex issues of State law that predominate over claims for which this Court has original jurisdiction.
166. There are no compelling reasons for declining supplemental jurisdiction over those of Plaintiffs’ claims that do not arise under 42 U.S.C. § 1983.
167. All Defendants reside in this district within the meaning of 28 U.S.C. § 1391(c). 168. This Court has personal jurisdiction over all individual Defendants because a Michigan Court would have personal jurisdiction under MCL 600.701 and MCL 600.705.
169. Venue in this District is appropriate pursuant to 28 U.S.C. § 1391(b) (1) and (2).
STATEMENT OF FACTS (Applicable to All Counts) 170. This case arises from the catastrophic result of a government enterprise acting in concert causing personal injury to infant children and adults, and immeasurable property damage to the citizens of Flint, each of which were preventable had any of the individual defendants named herein given the public’s health and property more importance than the business of balancing the municipal budget.
171. The full extent of the damage in Flint cannot be measured in money, as no amount of money can restore the City of Flint or reverse the tragic consequences of the shameful disregard of the health and well-being of the citizens of Flint.

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172. The concerted actions the defendants herein has undermined all levels of trust in the Michigan government at the Federal, State and local levels.
173. The actions of the State, Governor Snyder, and the Emergency Managers in taking over the City of Flint, failing to enforce safe drinking water standards, and deliberately hiding the effects of its egregious mistakes, caused Michigan’s seventh largest city to suffer a catastrophe one might expect to see in a third world country..
174. Three private companies contributed to this disaster when they negligently undertook to provide various engineering and or consulting services for Flint’s water system, which resulted in thousands of toxic exposures and re- exposures to lead and substantial property damage in the City of Flint.
175. A number of heroic outsiders collectively forced the Defendants to acknowledge their mistakes. Without them, the unmitigated poisoning of Flint’s residents would have continued indefinitely.
176. The intentional scheme to balance the budget of Flint at any cost including the indifference to the safety and health and property of the good citizens of Flint began when Governor Snyder replaced and subsumed the elected Flint leadership with Emergency Managers.
The State of Michigan Completely Overtook and Replaced Flint’s Representative City Government
177. Since 1988, the State of Michigan has had some form of emergency management law for municipal financial crises.
178. Under Governor Snyder’s business-like approach to government, Michigan’s

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emergency management regime has been aggressively strengthened and deployed. 179. In 2011, Governor Snyder signed Public Act 4 of 2011 (“PA 4”) into law, strengthening the power provided to Emergency Financial Managers and changing their title to “Emergency Managers.” 180. PA 4 allowed the State of Michigan to appoint an Emergency Manager to functionally replace the entirety of a municipal government where the state found a “Financial Emergency.” 181. PA 4 was temporarily suspended after more than 200,000 signatures were collected in an effort to conduct a statewide referendum. 182. PA 4 was taken off of the books after the statewide referendum decided in favor of repealing it. 183. PA 4 was quickly replaced when Governor Snyder signed Public Act 436 of 2012 (“PA 436”) into law. PA 436 provides local governments with a “choice” as to whether an Emergency Manager will be appointed. The local government may “choose” between a consent agreement, chapter 9 bankruptcy, mediation, or an Emergency Manager with similar broad powers Emergency Managers were given under PA 4, which was repealed. 184. PA 436 amounts to a false choice which often forces Emergency Managers on the local government of Flint under the illusion of Flint’s ability to determine their own governance. 185. In a tragic irony, the stated purpose of PA 436 is to “preserve the capacity of local units of government… to provide or cause to be provided necessary services essential to public health, safety, property and welfare[.]” 186. PA 436 specifies that “[u]pon appointment, an emergency manager shall act for and in

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the place and stead of the governing body and the office of chief administrative officer of the local government.” MCL 141.1549(2). 187. The Emergency Manager’s mandate is to “assure . . . the local government’s capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare.” MCL 141.1549(2). 188. A PA 436 Emergency Manager “serve[s] at the pleasure of the governor.” MCL 141.1549(3) (d). 189. At all times between December, 2011 and April 30, 2015, the City of Flint was under the control and authority of an Emergency Manager appointed by, and serving at the pleasure of, Governor Snyder. 190. The purpose of PA 436 was to give the Governor’s office complete control of all financial decision making in Flint by and through the appointed Emergency Manager in furtherance of the over-arching fiscal scheme to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint. 191. Michael Brown served Governor Snyder as Flint’s Emergency Manager from December of 2011, until August of 2012. 192. Defendant Ed Kurtz served Governor Snyder as Flint’s Emergency Manager from August of 2012, until July of 2013. 193. Michael Brown again served Governor Snyder as Flint’s Emergency Manager from July of 2013, until October of 2013. 194. Defendant Earley served Governor Snyder as Flint’s Emergency Manager from October

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of 2013, until January of 2015. 195. Defendant Ambrose served Governor Snyder as Flint’s Emergency Manager from January of 2015, until April 30, 2015.
196. Therefore, at all relevant times prior to April 30, 2015, Flint’s local government was subsumed and under the complete control of the State of Michigan.
197. At all relevant times, all financial decision making and fiscal policy for the City of Flint was made by Flint’s Emergency Manager, who acted on behalf of Governor Snyder.
198. Any powers of government held by the City of Flint were entirely illusory. 199. The policy of the Governor and the State in implementing emergency managers ensured that the public welfare, public services, public property, public health and other important government functions would take a back seat to financial decisions made by unelected officials.
200. Through his appointment of an Emergency Manager, Governor Snyder helped turn a routine fiscal issue in Flint into an actual humanitarian crisis through the coordinated effort of all of the Defendants named herein. 201. At the mid-point of the Fiscal Year 2012 (“FY12”) the Flint budget, was significantly out of balance 202. Due to the suspension and subsequent repeal of Public Act 4, Emergency Manager Law, the
Governor of the State of Michigan subsequently appointed an Emergency Financial Manager for the City of Flint, effective August 9, 2012.
203. During the fiscal years of 2014 and 2015, Flint’s budget was under the control of the Emergency Manager acting on behalf of the Governor. .

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204. By June 30, 2015, the original deficit that existed as of FY 2013 of $12.9 million was eliminated and a positive fund balance in the amount of $3.3 million existed. 205. The positive budget surplus achieved by the City of Flint was accomplished on the backs of Flint’s residents, who were charged and paid the highest water rates in the nation from the free water source that was obtained from the Flint River and known by the defendants to be toxic. 206. Flint’s deficit budget was mostly resolved by switching from the Detroit Water and Sewer Department to the free Flint River source in furtherance of the over-arching fiscal scheme to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint.
MDEQ, along with All Other Individual Defendants Ignored and Concealed Warning Signs, Spread False Information and Chose not to Enforce Both State
and Federal Rules Regarding Safe Drinking Water. 207. It has been a known and undisputed fact for many years prior to this tragedy that the Flint River was an unsuitable primary water source for the City of Flint. 208. In 2010, the EPA commissioned a report that indicated problems with the MDEQ’s ability to ensure safe drinking water.
209. The report indicated a number of technical shortcomings with the way the MDEQ regulated the state’s drinking water, particularly as it related to lead contamination. 210. Specifically, the report noted that while federal regulations require water utilities to certify that the drinking water of 90% of homes in a given community contain no more than 15 parts per billion (“ppb”) of lead, MDEQ had a practice of not even calculating “90th percentiles” unless a potential exceedance had been identified. This “does not meet the requirements of Federal Regulations, since it is required that all 90th percentiles be calculated.” 211. The report also noted that MDEQ did not conduct the required number of water samples

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for lead, apparently in an effort to conserve agency resources and promote the Governor’s overall goal to balance the budget at any cost. 212. Organizational and individual concerted actions and failures of the MDEQ, such as those illustrated in the report, directly resulted in the Flint catastrophe. 213. Those failures were compounded when the State and Governor Snyder switched the free toxic Flint River to balance the Flint budget and failed to implement any safeguards prior to distributing this water to Flint’s residents. 214. The EPA is responsible for setting rules under the Safe Drinking Water Act. 215. Enforcement and implementation of those rules is delegated to state environmental agencies. In the case of Michigan, that agency is the MDEQ. 216. The EPA’s Lead and Copper Rule (“LCR”) has been enacted to establish protocols to ensure that public water systems do not allow unsafe levels of lead or copper to contaminate their water supply. 217. While failing to protect the residents of Flint, the MDEQ knowingly violated both the letter and spirit of the LCR.
218. Specifically, the MDEQ violated the LCR in at least the following ways: a. by failing to require corrosion control for Flint River water from the time Flint began drawing it; b. by misinforming the EPA about whether corrosion control was being utilized; and c. by improperly conducting sampling.
219. The MDEQ, through its former director, has explicitly admitted that it did not follow the LCR. 220. Instead, MDEQ through their employees named as defendants herein, engaged in a

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organized pattern of defiance of federal and state law that existed to ensure established water quality standards were satisfied.
The Decision to Switch to the Known to be Toxic Flint River 221. For approximately 50 years prior to April 25, 2014, the City of Flint received safe, clean, treated drinking water from the Detroit Water and Sewer Department (“DWSD”). 222. If the Flint River was a safe and viable primary water source, Flint would have never paid for water from DWSD. 223. In November of 2012, Emergency Manager Ed Kurtz wrote to Snyder appointed State Treasurer Andy Dillon suggesting that Flint join the yet-to-be-formed Karegnondi Water Authority (KWA) due to cost savings over DWSD. 224. This decision to disconnect from long time supplier DWSD emphasized the Emergency Manager’s intent to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint. 225. In April, 2013, Treasurer Dillon under Governor Snyder’s watchful eye gave Kurtz permission to notify the DWSD that it would be terminating service and switching to the KWA in the coming years. 226. At the time this decision was made, it was known by Emergency Manager Kurtz that the KWA water supply would not be available until 2016 and therefore a significant gap existed between the termination of DWSD and the connection to KWA. 227. On April 16, 2013, Emergency Manager effectively authorized the switch from Flint’s long term water supplier from the DWSD to the KWA. 228. While waiting for the KWA to come online, the Emergency Manager ordered that instead of temporarily remaining with DWSD, Flint would switch to the Flint River as a temporary free

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source for the City’s water to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint. 229. The Flint River was studied for use as a primary water source in a 2011 Rowe feasibility report at the request of the government defendants named herein. 230. At that time, the River was rejected because the costs to prepare Flint’s water treatment plant to treat Flint River water to applicable standards were estimated to be in the tens of millions of dollars. 231. Moreover, the Flint River was unsuitable for use without significant improvements that were cited as necessary prior to use of the Flint River in Rowe’s feasibility study. 232. It was known by the defendants that to safely use the Flint River as a primary water source, the only options were costly upgrades to Flint’s water treatment plant or remain with DWSD. 233. On November 7, 2013, Defendant Rowe was re-hired by Flint’s Emergency Manager for professional services for the 2014 fiscal year, where Defendant Rowe would serve as Acting City Engineer. 234. On March 7, 2014, Defendant Earley, sent a letter to the DWSD stating “[w]e expect that the Flint Water Treatment Plant will be fully operational and capable of treating Flint River water prior to the date of termination. In that case, there will be no need for Flint to continue purchasing water to serve its residents and businesses after April 17, 2014.” 235. The only thing that Defendant Earley knew and cared about was Flint’s connection to the Flint River would occur as planned in furtherance of the Governor’s revenue raising scheme to rebalance the budget. 236. It was known that the water treatment plant was not ready, but Earley forced the

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transition through in order to meet the aggressive deadline. 237. Defendant Michael Glasgow, the City of Flint’s water treatment plant’s laboratory and water quality supervisor informed the MDEQ on April 16, 2014, that he was “expecting changes to our Water Quality Monitoring parameters, and possibly our Disinfection Byproduct monitoring on lead & copper monitoring plan… Any information would be appreciated, because it looks as if we will be starting the plant up tomorrow and are being pushed to start distributing water as soon as possible… I would like to make sure we are monitoring, reporting and meeting requirements before I give the OK to start distributing water.”
238. The next day, Glasgow wrote to MDEQ, including Defendants Prysby and Busch, noting that he “assumed there would be dramatic changes to our monitoring. I have people above me making plans to distribute water ASAP. I was reluctant before, but after looking at the monitoring schedule and our current staffing, I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction. I need time to adequately train additional staff and to update our monitoring plans before I will feel we are ready. I will reiterate this to management above me, but they seem to have their own agenda.” 239. The rushed nature of the transition to Flint River water is also evident by a request made by Individual Defendant Earley’s assistant to the treasurer for a contract to be expedited in order to meet the “aggressive timeline” of the switch. 240. On March 26, 2014, Defendant Busch e-mailed Defendant Shekter Smith and another colleague the following: “One of the things we didn’t get to today that I would like to make sure everyone is on the same page on is what Flint will be required to do in order to start using their plant full time. Because the plant is setup for emergency use, they could startup at any

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time, but starting up for continuous operation will carry significant changes in regulatory requirements so there is a very gray area as to what we consider for startup.” 241. An April 23, 2014 e-mail from Defendant Busch to Defendant Wurfel developed talking points for an upcoming Flint meeting that was scheduled to address the Flint River connection. Among the points made, Busch offered: “While the Department is satisfied with the City’s ability to treat water from the Flint River, the Department looks forward to the long term solution of continued operation of the City of Flint Water Treatment Plant using water from the KWA as a more consistent and higher quality source water.” 242. These “talking points” are consistent with the coordinated government scheme set forth herein that intended to raise government revenue by way of deceiving the people of Flint and convincing them that their health and property were safe and that the water was being treated and monitored pursuant to State and Federal laws and regulations. 243. On April 25, 2014, Flint officially began using the Flint River as its primary water source, despite the fact that it was known the proper preparations had not been made. 244. The same day, then-current Flint Mayor Dayne Walling publically declared “It’s regular, good, pure drinking water, and it’s right in our backyard.” 245. Flint DPW Director Defendant Howard Croft also stated in a press release that “The test results have shown that our water is not only safe, but of the high quality that Flint customers have come to expect. We are proud of that end result.” 246. Croft’s statement was made despite Glasgow’s known concerns regarding the facility’s inadequate preparation and monitoring. 247. This transition put Flint in the business of water treatment, distribution, and revenue collection from a free water source.

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248. Defendant LAN, an engineering firm, was hired to prepare Flint’s water treatment plant for the treatment of new water sources, including both the KWA and the Flint River.
249. Flint’s water treatment plant had not needed to treat the water received from DWSD, as DWSD provided the water in an already treated state. 250. Defendant LAN was responsible for providing engineering services to make Flint’s inactive water treatment plant sufficient to treat water from each of its new sources. 251. Individual Defendants LAN and Rowe failed miserably in their task. 252. Their actions facilitated the transfer of Flint’s water source to Flint River water without the proper treatment they knew was required to safely distribute the water to Flint’s residents. 253. Treating the water as necessary to protect against the poisoning of thousands of Flint residents would have cost a relatively small amount of money. 254. An important consideration any time a water system changes sources is to account for differences in those sources. 255. According to the EPA, “it is critical that public water systems, in conjunction with their primacy agencies and, if necessary, outside technical consultants, evaluate and address potential impacts resulting from treatment and/or source water changes.” 256. In Rowe’s 2011 feasibility report, Rowe emphasized the need for treatment to the Flint River water and for improvements to Flint’s water treatment plant in the event that the river was to be used as a source. 257. Neither the State of Michigan (on its own or through its absolute control over the City of Flint), the MDEQ, Rowe, nor LAN required water quality standards to be set for the Flint River water that would be delivered to Flint’s residents. 258. Furthermore, these defendants knowingly allowed distribution of toxic Flint River water

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without the needed corrosion control that was required to safely distribute Flint River water to the City’s residents. 259. MDEQ, LAN and Rowe were responsible for ensuring that Flint set water quality standards and properly treated its water.
260. The water obtained from the Flint River was substantially more corrosive than the treated water Flint had been receiving from DWSD. 261. Water becomes more corrosive when it contains greater quantities of chloride, which can enter the water from manmade and natural sources. 262. Flint River water is known to contain about 8 times more chloride than Detroit water. 263. It is well known that corrosive water that is not properly treated results in the corrosion of pipes, such that the metals in the pipes will leach into drinking water. 264. Phosphates are often added to corrosive water as a method of corrosion control, to prevent metals from leaching into the water. 265. At the time of the switch to Flint River water, no phosphates were being added to the water supply. 266. Nothing was being done to account for the corrosive nature of the Flint River water, despite the clear duties of the Defendants MDEQ, MDHHS, Snyder, Emergency Managers, and LAN and Rowe as the consultants. 267. As a result of the failure to properly treat water from the Flint River, corrosive water was delivered throughout the Flint Water System. 268. As all Defendants were aware, the corrosive water predictably corroded metal pipes, causing them to leach toxins into water. 269. The corrosive nature of the water was almost immediately apparent.

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270. Soon after the switch, residents began complaining about discolored water—clearly indicating that iron and other metals were leaching into the water. 271. It is important that a new source of water be properly studied and treated to ensure that its use will not result in the corrosion of pipes in the delivery system. 272. This is particularly important where portions of the delivery system, included but not limited to service lines, are made of lead.
273. An estimated 15,000 of Flint’s 30,000 residential service lines are composed at least partially of lead.
274. The exact number is presently unknown given Flint’s negligent, sloppy record keeping. 275. Setting standards and optimal ranges for water quality is necessary to prevent widespread impacts from substandard or dangerous water. 276. Lead is a powerful neurotoxin that can have devastating, irreversible impacts on the development of children, and also causes injury to adults. 277. There is no safe level of lead as its effects are harmful even at low levels. 278. Lead exposure in children causes heightened levels of lead in the blood and body, resulting in problems including decreased IQ, behavioral problems, hearing impairment, impaired balance and nerve function, infections, skin problems, digestive problems, and psychological disorders. 279. Lead also causes serious health effects in adults, including digestive, cardiovascular, and reproductive problems, kidney damage, dizziness, fatigue, weakness, depression and mood disorders, diminished cognitive performance, nervousness, irritability, and lethargy. 280. Lead contamination is not the only problem that is caused when corrosive water is distributed in a public water system.

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281. When water corrodes iron pipes, the iron leaching into the water system can consume chlorine. This can eliminate the chlorine necessary to prevent the growth of microorganisms that can cause disease. 282. With chlorine consumed by iron, the risk of infection by organisms such as legionella increases. 283. Corrosion of iron water pipes is obvious when it occurs, as the water appears discolored. 284. The corrosion of iron pipes can also result in an increase in water main leaks and breaks. 285. The signs of iron corrosion are a warning sign that lead corrosion may also be present, since both are caused by the same phenomenon. 286. Almost immediately after the water source was changed to the Flint River, signs of trouble with Flint’s water quality began to surface. 287. Within weeks, many residents began to complain about odorous, discolored water. 288. As complaints rolled in, Mayor Walling called the water a “safe, quality product,” and claimed that “people are wasting their precious money buying bottled water.” 289. In August and September, 2014, the City of Flint issued two boil water advisories after fecal coliform bacteria was discovered in the water. 290. On October 13, 2014, General Motors ceased the use of Flint River water at its engine plant because of fears that it would cause corrosion due to high levels of chloride. 291. Discussing General Motors’ decision, Defendant Prysby wrote to Defendants Busch, Shekter Smith and others that the Flint River water had elevated chloride levels. He stated that “although not optimal” the water was “satisfactory.” 292. Prysby noted that he had “stressed the importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing

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facility’s limit for production.” 293. In October of 2014, Defendant Muchmore briefed Defendant Snyder and blamed iron pipes, susceptible to corrosion and bacteria, for the two boil water advisories. 294. On November 26, 2014, Defendant LAN issued a 20-page Operation Evaluation Report intended to address compliance with EPA and MDEQ operations and regulations. 295. The LAN report entirely failed to address the hazard of lead associated with the corrosive water flowing through the pipes, at least half of which were made with lead in Flint. 296. On January 2, 2015, the City of Flint mailed a notice to its water customers indicating that it was in violation of the Safe Drinking Water Act due to the presence of trihalomethanes, which was a product of attempting to disinfect the water. It was claimed that the water was safe to drink for most people with healthy immune systems.
297. The fact that the Flint River water contained such high levels of bacteria may be a factor in the horrific decision not to implement corrosion control. 298. On January 9, 2015, the University of Michigan – Flint discovered lead in campus drinking fountains. 299. With the water quality’s problems now obvious, on January 12, 2015, DWSD offered to waive a 4 million dollar reconnection fee to transition back to DWSD water. 300. Defendant Ambrose, as Emergency Manager, declined the offer. 301. On January 21, 2015, enraged Flint residents attended a meeting at Flint City hall, bringing jugs of discolored water and complaining about the water’s smell and taste. 302. As early as January of 2015, the State of Michigan provided purified water coolers at Flint offices in response to concerns about the drinking water, while state employees continued to tell the public that the water was safe to drink for many months.

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303. In a January 29, 2015, in an e-mail to MDEQ deputy director Jim Sygo, Defendant Shekter Smith made statements indicating her knowledge of the Flint River’s corrosivity. “I’m theorizing here, but most likely what they are seeing is a result of differing water chemistry. A change in water chemistry can sometimes cause more corrosive water to slough material off of pipes as opposed to depositing material or coating pipes in the distribution system. This may continue for a while until things stabilize. It would be unusual for water leaving the plant to have color like people are seeing at their taps. Generally this is a distribution system problem or a premise plumbing issues. Since it appears wide-spread, it’s most likely a distribution system problem.”
304. On February 6, 2015, an Emergency Manager staff member wrote to Defendant Prysby, described as the MDEQ’s “most knowledgeable staff member on the Flint and Genesee County water supply issues,” asking whether he knew if MDEQ had ever conducted a “source water assessment” for the Flint River.
305. After an initial response stating that he did not know, Defendant Prysby later responded that a study on the Flint River as an emergency intake had been conducted in 2004. 306. The 2004 study noted that the Flint River was a highly sensitive drinking water source that was susceptible to contamination, yet apparently even Defendant Prysby did not consult it before approving the river as a source. 307. On March 3, 2015, Emergency Manager and Defendant Ambrose sent a memorandum to the Michigan Department of Treasury claiming that reconnecting to DWSD would cost at least ten (10) million dollars per year, with bills as high as one (1) million dollars per month. 308. Defendant Ambrose stated that “[i]f $12 million annually were available for discretionary use, it would be far better spent reducing rates (which were the highest in the

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nation) paid by Flint customers and/or modernizing the City’s system.” 309. According to Defendant and Emergency Manager Ambrose “[t]he oft-repeated suggestion that the City should return to DWSD, even for a short period of time, would, in my judgment, have extremely negative financial consequences to the water system.” 310. On March 10, 2015, a Genesee County Health Department employee named James Henry wrote the following scathing message to Croft, Prysby, and others: “The Genesee County Health Department has made several written and verbal requests for specific information since October 2014, including a Freedom of Information Act request on January 27, 2015. The information still has not been received and the city’s lack of cooperation continues to prevent my office from performing our responsibilities. The Genesee County Health Department has the responsibility to conduct illness investigation and consider all potential sources, this is not optional. In 2014, Genesee County experienced a significant increase of confirmed Legionella illnesses relative to previous years. Legionella can be a deadly, waterborne disease that typically affects the respiratory system. The increase in illnesses closely corresponds with the timeframe of the switch to Flint River water. The majority of the cases reside or have an association with the city. Also, McLaren Hospital identified and mitigated Legionella in their water. This is rather glaring information and it needs to be looked into now, prior to the warmer summer months when Legionella is at its peak and we are potentially faced with a crisis. This situation has been explicitly explained to MDEQ and many of the city’s officials. I want to make sure, in writing that there are no misunderstandings regarding this significant and urgent public health issues. The Trihalomethane issues ‘pale in comparison’ to the potential public health risks of Legionella…. In the past, I have requested to meet with the water plant staff and MDEQ regarding Legionella concerns. I did not receive a

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response from the water plant staff and MDEQ declined. I think it is in the best interest for all stakeholders that we meet and discuss the issues.” 311. On February 27, 2015, in response to concerns about extremely high levels of lead in a resident’s water sample, Defendant Busch told the EPA on behalf of MDEQ that the Flint Water Treatment Plant had an optimized corrosion control program. 312. Defendant Busch made the above statement to the EPA with actual knowledge that no corrosion controls had been implemented. 313. Defendant employees of MDEQ were required to know whether Flint had an optimized corrosion control program, because ensuring the existence of that program was the express responsibility of MDEQ. 314. Defendant employees of MDEQ did in fact know that no optimized corrosion control had been implemented, since MDEQ was involved in the decision not to implement corrosion control. 315. Also on February 27, 2015, the EPA’s regional drinking water regulations manager Miguel Del Toral began to voice his concerns about the likely cause of the high lead levels detected in Flint in an email to Defendant Prysby. 316. Del Toral attributed those levels to particulate lead, which would mean that the MDEQ’s testing methods of “pre-flushing” water from homes would bias samples low. He also inquired about optimized corrosion control, which he noted was required in this instance. 317. At another point in February, 2015, Governor Snyder received a briefing on Flint’s water problems from Defendant MDEQ director Dan Wyant, which included resident complaints about discolored, low quality tap water and a letter from a state representative indicating that his constituents were “on the verge of civil unrest.”

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318. Defendant Snyder did not take any action in response to the residents’ pleas to address the toxic water conditions in Flint. 319. Around the same time, MDEQ e-mails explained away “hiccups” in the transition to Flint’s water system, discounting the possibility of imminent threats to public health, and noting that the switch to the Flint River “put the city in the business of water production, where they had historically been in the business of water transmission.” It was claimed that “once the city connects to the new KWA system in 2016, this issue will fade into the rearview.”
320. The e-mail also noted that “MDEQ approved the use of river as a source[.]” Had the MDEQ properly studied the river and set water quality standards, it would have known what a disastrous idea this was. 321. In early 2015, Defendant Veolia was hired to conduct a review of the city’s water quality, largely in response to citizen complaints. 322. Veolia was grossly negligent and recklessly declared the water safe while the water poisoned tens of thousands. 323. Defendant Veolia’s task was to review Flint’s public water system, including treatment processes, maintenance procedures, and actions taken. 324. As water treatment professionals, Veolia had an opportunity to catch what Defendant LAN and Rowe had missed or refused to warn about—that corrosive water was being pumped through lead pipes into the homes of Flint residents without any corrosion control. 325. Defendant Veolia issued an interim report on its findings, which it presented to a committee of Flint’s City Council on February 18, 2015. 326. In its interim report, Veolia indicated that Flint’s water was “in compliance with drinking water standards.” It also noted that “[s]afe [equals] compliance with state and federal

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standards and required testing.” 327. In other words, Defendant Veolia publically declared Flint’s poisonous water safe.
328. Defendant Veolia’s interim report also noted that the discoloration in Flint’s water “raises questions,” but “[d]oesn’t mean the water is unsafe.” 329. The interim report noted that among Veolia’s “next steps” were to “carry out more detailed study of initial findings” and “[m]ake recommendations for improving water quality.” 330. In response to potential questions about “[m]edical problems,” Veolia’s interim report dismissively claimed that “[s]ome people may be sensitive to any water. “
331. Defendant Veolia issued its final “Water Quality Report” dated March 12, 2015.
332. In the final report, Defendant Veolia noted that it had conducted a “160-hour assessment of the water treatment plant, distribution system, customer services and communication programs, and capital plans and annual budget.” 333. The final report claims that “a review of water quality records for the time period under our study indicates compliance with State and Federal water quality regulations.” 334. The final report states that “the public has also expressed its frustration of discolored and hard water. Those aesthetic issues have understandably increased the level of concern about the safety of the water. The review of the water quality records during the time of Veolia’s study shows the water to be in compliance with State and Federal regulations, and based on those standards, the water is considered to meet drinking water requirements.” 335. Specifically addressing the lack of corrosion control, the final report notes that “[m]any people are frustrated and naturally concerned by the discoloration of the water with what primarily appears to be iron from the old unlined cast iron pipes. The water system could add a

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polyphosphate to the water as a way to minimize the amount of discolored water. Polyphosphate addition will not make discolored water issues go away. The system has been experiencing a tremendous number of water line breaks the last two winters. Just last week there were more than 14 in one day. Any break, work on broken valves or hydrant flushing will change the flow of water and potentially cause temporary discoloration.” 336. Therefore, in addition to missing the connection between the lack of corrosion control and lead contamination, Defendant Veolia made a permissive “could” suggestion aimed only at reducing aesthetic deficiencies while suggesting that Flint’s drinking water met all applicable requirements and was safe to drink.
337. As a result of Defendant Veolia’s actions, the residents of Flint continued to be exposed to poisonous water beyond February and March of 2015. 338. As evidence of problems mounted, the Defendants Snyder, MDEQ and its employees, MDHHS and its employees, Emergency Managers, City of Flint and its employees repeatedly denied the dangers facing Flint’s residents, insisting that their water was safe to drink, despite having knowledge ad evidence to the contrary. 339. On March 23-24, 2015, Flint’s powerless City Council voted 7-1 to end Flint River service and return to DWSD. 340. Defendant and Emergency Manager Ambrose declared that vote “incomprehensible” and rejected the proposal. 341. Defendant and Emergency Manager Ambrose then publically declared that “Flint water today is safe by all Environmental Protection Agency and Michigan Department of Environmental Quality standards, and the city is working daily to improve its quality… water from Detroit is no safer than water from Flint.”

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342. On April 24, 2015, the MDEQ finally told the EPA that Flint did not have optimized corrosion control in place, contradicting its statement from two months prior. 343. The flawed interpretation used by MDEQ and its Defendants employees amounted to a one year “free pass”, where the Flint River served as a free water source that generated significant revenue for Flint to balance the City budget on the backs of Flint’s residents.
344. Defendants Shekter, Cook, Busch, and Prysby were expressly told by Mr. Del Toral that their sampling procedures skewed lead level results and did not properly account for the presence of lead service lines. 345. In April of 2015, Mr. Del Toral issued a memorandum to the MDEQ, stating: “I wanted to follow up on this because Flint has essentially not been using any corrosion control treatment since April 30, 2014, and they have (lead service lines). Given the very high lead levels found at one home and the pre-flushing happening in Flint, I’m worried that the whole town may have much higher lead levels than the compliance results indicated, since they are using pre-flushing ahead of their compliance sampling.” 346. Del Toral, a national expert in the field, identified the problem, the cause of that problem, and the specific reason the state had missed it. The Defendants ignored and dismissed him. 347. The MDEQ’s director, Defendant Wyant, was expressly aware of Mr. Del Toral’s comments and concerns. 348. On May 1, 2015, Defendant Cook sent an e-mail to Mr. Del Toral disagreeing with Del Toral’s interpretation of his own agency’s rules and vehemently resisting calls for a water quality study. 349. Cook noted that “[a]s Flint will be switching raw water sources in just over one year

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from now, raw water quality will be completely different than what they currently use. Requiring a study at the current time will be of little to no value in the long term control of these chronic contaminants.” 350. Defendant Cook, the MDEQ and all other Defendants named herein, believed they could simply run out the clock on Flint’s water quality problem while the KWA water system was nearing completion.
351. Cook also claimed that “the City of Flint’s sampling protocols for lead and copper monitoring comply with all current state and federal requirements. Any required modifications will be implemented at a time when such future regulatory requirements take effect.” 352. On June 24, 2015, Mr. Del Toral authored an alarming memorandum more fully stating his concerns about the problems with MDEQ’s oversight of Flint. 353. The memorandum noted that the city was not providing corrosion control for mitigating lead and copper levels, “[a] major concern from a public health standpoint.” 354. Further, “[r]ecent drinking water sample results indicate the presence of high lead results in the drinking water, which is to be expected in a public water system that is not providing corrosion control treatment. The lack of any mitigating treatment for lead is of serious concern for residents that live in homes with lead service lines or partial lead service lines, which are common throughout the City of Flint.” 355. Additionally, “[t]he lack of mitigating treatment is especially concerning as the high lead levels will likely not be reflected in the City of Flint’s compliance samples due to the sampling procedures used by the City of Flint for collecting compliance samples… . This is a serious concern as the compliance sampling results which are reported by the City of Flint to residents could provide a false sense of security to the residents of Flint regarding lead levels in

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their water and may result in residents not taking necessary precautions to protect their families from lead in the drinking water . . . [o]ur concern . . . has been raised with the [MDEQ].”
356. Del Toral’s memorandum also noted that a Flint resident, Ms. Lee-Anne Walters, who had directly contacted the EPA had alarming results of 104 ug/L and 397 ug/L1, especially alarming given the flawed sampling procedures used by the MDEQ.
357. The MDEQ had told the resident that the lead was coming from the plumbing in her own home, but Del Toral’s inspection revealed that her plumbing was entirely plastic. 358. The memorandum also noted blood tests that showed Ms. Walters’s child had elevated blood lead levels, and that additional sample results from resident-requested samples showed high levels of lead. 359. Among those cc’d on Mr. Del Toral’s memorandum were MDEQ Defendants Liane Shekter-Smith, Pat Cook, Stephen Busch, and Michael Prysby. 360. On May 11, 2015, Jon Allan, director of the Michigan Office of the Great Lakes, emailed Defendant Shekter Smith for her reactions to the following language in a proposed report: “By 2020, 98 percent of population served by community water systems is provided drinking water that meets all health-based standards… By 2020, 90 percent of the noncommunity water systems provide drinking water that meets all health-based standards.” 361. Responding the same day, MDEQ Water Resources Division Chief William Creal replied: “I think you are nuts if you go with a goal less than 100 percent for (drinking water) compliance in the strategy. How many Flints do you intend to allow???” 362. Defendant Shekter Smith responded the next day: “The balance here is between what is realistic and what is ideal. Of course, everyone wants 100 percent compliance. The reality,
1 Ug/L is equivalent to parts per million or PPM

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however, is that it’s impossible. It’s not that we ‘allow’ a Flint to occur; circumstances happen. Water mains break, systems lose pressure, bacteria gets into the system, regulations change and systems that were in compliance no longer are, etc. Do we want to put a goal in black and white that cannot be met but sounds good? Or do we want to establish a goal that challenges us but can actually be accomplished? Perhaps there’s a middle ground?” 363. Defendant Shekter Smith’s comments reflect her obvious awareness that Flint’s water did not meet health based standards, and her callous “circumstances happen” indifference to the results is indicative of top down policy of cutting costs and balancing the budget at the expense of health, safety and property of the good citizens of Flint. 364. In approximately July of 2015, Defendant Busch claimed that “almost all” homes in the pool sampled for lead in Flint had lead service lines. This was patently untrue and was made with no basis in fact, and the effect of this mistake made the lead testing results even more unreliable. Busch knew that it was not true, because Flint’s records were insufficient to allow him to make such a determination. 365. On July 9, ACLU-Michigan reporter Curt Guyette publically broke the story about lead in Flint’s drinking water, citing Del Toral’s memorandum and exposing the lack of corrosion control in Flint’s water. 366. Four days later, Defendant Wurfel issued the following public statement: “Let me start here- anyone who is concerned about lead in the drinking water in Flint can relax.” 367. On July 21, 2015, the EPA and MDEQ conducted a conference call regarding MDEQ’s implementation of the LCR. EPA pushed for optimized corrosion control (which MDEQ had previously told EPA Flint was using), while MDEQ claimed it was unnecessary and premature. 368. MDEQ could not have been more wrong. Far from being premature, it was already too

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late to fully protect the people of Flint. 369. In an e-mail follow-up to that call, sent to an EPA employee, Defendant Shekter Smith stated “while we understand your concerns with the overall implementation of the lead and copper rule; we think it is appropriate for EPA to indicate in writing (an email would be sufficient) your concurrence that the city is in compliance with the lead and copper rule as implemented in Michigan… This would help distinguish between our goals to address important public health issues separately from the compliance requirements of the actual rule which we believe have been and continue to be met in the city of Flint.” 370. Defendant Shekter Smith’s statement indicates that she and the MDEQ were more concerned about proving technical compliance with the LCR than “address[ing] important public health issues.” 371. On July 22, 2015, Defendant Snyder’s chief of staff, Defendant Dennis Muchmore sent an e-mail indicating his awareness of the problems with Flint’s water and the state’s inadequate response. He noted: “I’m frustrated by the water issue in Flint. I really don’t think people are getting the benefit of the doubt. Now they are concerned and rightfully so about the lead level studies they are receiving from DEQ samples. Can you take a moment out of your impossible schedule to personally take a look at this? These folks are scared and worried about the health impacts and they are basically getting blown off by us (as a state we’re just not sympathizing with their plight).” 372. Defendant Linda Dykema, director of the MDHHS Division of Environmental Health sent an email to a number of department employees attempting to discredit Mr. Del Toral, to this point the only government employee actively trying to protect Flint’s residents from lead poisoning. She claimed “[r]egarding the EPA drinking water official quoted in the press

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articles, the report that he issued was a result of his own research and was not reviewed or approved by EPA management. He has essentially acted outside his authority.” 373. On July 24, 2015, Defendant Wurfel wrote an e-mail to Defendants Busch, Prysby, Shekter Smith and Wyant, stating: “Guys, the Flint Ministers met with the Governor’s office again last week. They also brought along some folks from the community – a college prof and GM engineer – who imparted that 80 water tests in Flint have shown high lead levels. Could use an update on the January/June testing results, as well as recap of the December testing numbers, and any overview you can offer to edify this conversation?” 374. Defendant Busch responded the same day in email to Defendant Wurfel copied to all others on the original e-mail, claiming that the second round of Flint drinking water testing showed a 90th percentile level of 11 parts per billion, almost double the prior round’s results. 375. Even with MDEQ’s terribly flawed sampling methods showing that lead levels had nearly doubled since the first six month testing, and even with outside evidence of even higher levels, Defendants showed no concern and took no immediate action to protect the people of Flint. 376. Defendant Busch also noted in his e-mail that Flint would be completing “a study (within 18 months) and are allowed a period of additional time (2 additional years) to install the selected treatment for fully optimized corrosion control.” 377. On July 24, 2015, Defendant Wurfel wrote the following to recipients including Defendant Muchmore and Defendant Wyant: “Guys, here’s an update and some clarification on the lead situation in Flint. Please limit this information to internal for now…By the tenants of the federal statute, the city is in compliance for lead and copper. That aside, they have not optimized their water treatment… Conceivably, by the time we’re halfway through the first

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timeline, the city will begin using a new water source with KWA… and conceivably, the whole process starts all over again. In terms of near-future issues, the bottom line is that residents of Flint do not need to worry about lead in their water supply, and DEQ’s recent sampling does not indicate an eminent health threat from lead or copper.” 378. In August, 2015, the EPA pressed MDEQ to move faster on implementing corrosion control in Flint. 379. On August 23, 2015, Virginia Tech Professor Marc Edwards wrote MDEQ to inform them that he would be conducting a study of Flint’s water quality. 380. On August 27, 2015, Professor Edwards’s preliminary analysis was released. More than half of the first 48 samples he tested came back above 5 ppb, and more than 30% of them came back over 15ppb, which would be unacceptable even as a 90th percentile. He called the results “worrisome.” 381. In an e-mail response to a Governor’s office inquiry regarding the high lead levels in residents’ homes and the discrepancy between those numbers and the state’s test results, Defendant Wurfel stated “[d]on’t know what it is, but I know what it’s not. The key to lead and copper in drinking water is that it’s not the source water, or even the transmission lines (most of which are cast iron). It’s in the premise plumbing (people’s homes).” 382. This statement was made despite the facts that about half of Flint’s homes are connected to lead service lines, and that it was clear by this point that Ms. Walters’s home had plastic plumbing. 383. Wurfel then blamed Mr. Del Toral, the ACLU, and others taking action to help Flint’s residents, stating: “This person is the one who had EPA lead specialist come to her home and do tests, then released an unvetted draft of his report (that EPA apologized to us profusely for)

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to the resident, who shared it with ACLU, who promptly used it to continue raising hell with the locals… [I]t’s been rough sledding with a steady parade of community groups keeping everyone hopped-up and misinformed.” 384. On August 28, 2015, an EPA employee notified Defendant Shekter Smith and other MDEQ employees that “Marc Edwards (Virginia Tech) is working with some of the citizens in Flint and they are finding lead at levels above five parts per billion and some above 15 parts per billion. There’s no indication of whether any of these homes were also sampled and analyzed by Flint and will now be part of their compliance calculations. Virginia Tech sent out 300 bottles and have gotten 48 back. We are not involved in this effort by Dr. Edwards.” 385. On September 2, 2015, Defendant Wurfel engaged in further efforts to discredit Marc Edwards, this time in a press release. He stated: “[W]e want to be very clear that the lead levels being detected in Flint drinking water are not coming from the treatment plant or the city’s transmission lines… The issue is how, or whether, and to what extent the drinking water is interacting with lead plumbing in people’s homes….the results reported so far fail to track with any of the lead sampling conducted by the city. In addition, Virginia Tech results are not reflected by the blood lead level testing regularly conducted by the state department of community health that have not shown any change since Flint switched sources.” 386. Defendant Wurfel knew this statement to be false, or had no reason to believe that it was true. For example, it was obvious by this point that Ms. Walters’s home had plastic plumbing.
387. On September 6, 2015, another Wurfel attempt to discredit Edwards’s results was published through Michigan Public Radio: “The samples don’t match the testing that we’ve been doing in the same kind of neighborhoods all over the city for the past year. With these kinds of numbers, we would have expected to be seeing a spike somewhere else in the other

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lead monitoring that goes on in the community.” 388. Tragically, had the MDEQ or MDHHS been doing their jobs, they would indeed have seen spikes in all other forms of lead monitoring. Even worse, the MDEQ had been told exactly why its testing failed to reveal extremely high levels of lead. 389. Edwards published a report in early September, 2015, with startling findings. Among them: “FLINT HAS A VERY SERIOUS LEAD IN WATER PROBLEM”; “101 out of 252 water samples from Flint homes had first draw lead more than 5 ppb”; “Flint’s 90th percentile lead value is 25 parts per billion… over the EPA allowed level of 15ppb that is applied to high risk homes… How is it possible that Flint ‘passed’ the official EPA Lead and Copper Rule sampling overseen by MDEQ?”; “Several samples exceeded 100ppb and one sample collected after 45 seconds of flushing exceeded 1,000 ppb[.]” 390. Additional Edwards’s findings included that “[o]n average, Detroit water is 19 times less corrosive than the Flint River water currently in use”; “even with phosphate, Flint River water has 16 times more lead compared to the same condition using Detroit water.” 391. Therefore, the Flint River water was so corrosive that even the obvious, necessary measure of adding corrosion control may not have been enough to make it totally safe. 392. This would have been known if the water were properly treated or studied before the switch. Instead, the residents of Flint were used as guinea pigs in a “test then treat” scenario that ensured at least one year of absolutely no protection from lead contamination, a balanced budget, and substantial revenue from free water paid for by Flint residents.
393. Edwards predicted that “in the weeks and months ahead MDEQ and Flint will be forced to admit they failed to protect public health as required under the Federal Lead and Copper Rule.” He was entirely correct.

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394. Another Wurfel hit job on Professor Edwards and his team occurred on September 9, 2015, when he told a reporter: “[T]he state DEQ is just as perplexed by Edwards’s results as he seems to be by the city’s test results, which are done according to state and federal sampling guidelines and analyzed by certified labs.” 395. This statement was made with full knowledge that at least one EPA employee had told MDEQ that its testing was not being conducted according to federal guidelines. 396. Defendant Wurfel also claimed that Edwards’s team “only just arrived in town and (have) quickly proven the theory they set out to prove, and while the state appreciates academic participation in this discussion, offering broad, dire public health advice based on some quick testing could be seen as fanning political flames irresponsibly.” 397. Again, Wurfel and MDEQ publically attempt to discredit the people working to protect the public, while providing false assurances to Flint’s residents about the water that continues to poison them. 398. On September 10, 2015, Dr. Yanna Lambrinidou, a member of the EPA National Drinking Water Advisory Council Lead and Copper Rule workgroup wrote to Defendants Wurfel and Busch, requesting information on “optimal water quality parameter ranges” that MDEQ should have set for Flint’s water. 399. No such information existed, because MDEQ had never created it. 400. Busch responded “[a]ll previous water quality parameter ranges would have been established for the City of Flint’s wholesale finished water supplier, the Detroit Water and Sewerage Department, not the City of Flint itself. As the City of Flint has not yet established
optimized corrosion control treatment, the MDEQ is not yet at the point of regulatory requirements where the range of water quality parameters would be set.”
401. Water quality parameter ranges ensure safe levels of things like PH, nitrates and phosphates.

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402. Dr. Lambrinidou replied “do you mean that MDEQ never set optimal water quality parameter ranges specifically for Flint before Flint’s switch to Flint River water? It is my impression, please correct me if I’m wrong, that under the LCR, all large systems – whether they are consecutive or not – must have optimal water quality parameter ranges designated by states specifically for them (at the time when these systems are deemed to have optimized their treatment). Is there language in the LCR I am missing that allows a utility not to have optimal quality parameter ranges established specifically for it? My second question is this: If the City of Flint had no optimal water quality parameter ranges established specifically for it in the past, how did it achieve LCR compliance? Isn’t it the case that utility-specific optimal water quality parameter ranges (and maintenance of these ranges) are required for all large systems to avoid an LCR violation?” 403. Defendant Busch’s response reiterated his belief that Flint was not required to implement corrosion control until unacceptably high levels of lead had already appeared in the water. This callous response, on September 25, 2015, indicated Busch’s complete indifference to the health, property and welfare of Flint’s residents. 404. A September 10 e-mail from the EPA’s Jennifer Crooks to Defendant Shekter Smith, summarizing an apparent EPA-MDEQ conference call, acknowledged that Professor Edwards’s study “[was] putting added pressure on MDEQ, and EPA to ensure that Flint addresses their lack of optimized corrosion control treatment in an expedited manner in order to protect the residents from exposure to high lead levels.” Further, “EPA acknowledged that to delay installation of corrosion control treatment in Flint would likely cause even higher levels of lead over time as Flint’s many lead service lines are continuously in contact with corrosive water.” 405. In a September 17, 2015 letter, Defendant Wyant wrote a letter in response to an inquiry

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from various legislators, disavowing any responsibility for reacting to Mr. Del Toral’s alarmsounding memorandum: “With respect to the draft memo referenced in your letter, the MDEQ does not review or receive draft memos from the USEPA, nor would we expect to while it is a draft.” 406. Defendant Wyant’s statement was made despite the fact that he and the MDEQ were fully aware of Del Toral’s memorandum and the concerns it raised, and as though this apparent MDEQ policy justified ignoring Del Toral. 407. On September 15, 2015, MLive published an article entitled “Virginia Tech professor says Flint’s tests for lead in water can’t be trusted.” Edwards is quoted as recommending a return to DWSD, stating “Flint is the only city in America that I’m aware of that does not have a corrosion control plan in place to stop this kind of problem.” 408. On September 23, 2015, an e-mail from Croft to numerous officials included the following: “I am pleased to report that the City of Flint has officially returned to compliance with the Michigan Safe Drinking Water Act and we have received confirming documentation from the DEQ today…Recent testing has raised questions regarding the amount of lead that is being found in the water and I wanted to report to you our current status. At the onset of our plant design, optimization for lead was addressed and discussed with the engineering firm and with the DEQ. It was determined that having more data was advisable prior to the commitment of a specific optimization method. Most chemicals used in this process are phosphate based and phosphate can be a ‘food’ for bacteria. We have performed over one hundred and sixty lead tests throughout the city since switching over to the Flint River and remain within EPA standards.” 409. Croft’s statement was made despite his knowledge that the samples the city had taken

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were insufficient to draw any conclusions. 410. Croft’s widely disseminated message makes no mention of the flawed lead testing results. 411. On September 25, 2015, Snyder’s Chief of Staff Dennis Muchmore sends an e-mail to Governor Snyder and others that treated the situation in Flint as a political inconvenience instead of a humanitarian crisis. He stated: “The DEQ and [MDHHS] feel that some in Flint are taking the very sensitive issue of children’s exposure to lead and trying to turn it into a political football claiming the departments are underestimating the impacts on the populations and are particularly trying to shift responsibility to the state…I can’t figure out why the state is responsible except that Dillon did make the ultimate decision so we’re not able to avoid the subject. The real responsibility rests with the County, city, and KWA[.]” 412. In addition to ignoring the fact that the state had taken over Flint, Muchmore’s evasion of state responsibility ignores the role of the MDEQ and MDHHS in this crisis. 413. Where MDEQ caused, obscured, and lied about the lead problem, MDHHS should have discovered and revealed it. 414. Instead, the MDHHS obscured, obfuscated, and intentionally withheld information which conclusively showed that the children of Flint were being exposed and re- exposed to lead. It took the work of an outside doctor to force MDHHS to acknowledge its failures.
415. Whereas MDEQ ignored and criticized the very people it should have been gratefully listening to in Mr. Del Toral and Dr. Edwards, the MDHHS extended the same treatment to Dr. Mona Hanna-Attisha, a pediatrician at Flint’s Hurley Hospital. 416. In a July 28, 2015, email from MDHHS epidemiologist Cristin Larder to MDHHS employees Nancy Peeler and Patricia McKane, Larder identifies an increase in blood lead levels

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in Flint just after the switch to river water, and concludes only that the issue “warrant[s] further investigation.” 417. On the same day, Defendant Nancy Peeler sent an e-mail admitting an uptick in children with elevated blood lead levels in Flint in July, August, and September 2014, but attributing it to seasonal variation. 418. MDHHS took no actions as outsiders began to discover and reveal Flint’s lead problem. Instead, it withheld data and obstructed those researchers while actively attempting to refute their findings. 419. In a September 10, 2015, e-mail from MDHHS health educator Michelle Bruneau to colleague Kory Groestch, regarding a talking points memorandum, she states: “[M]ay be a good time to float the draft out to the others because if we’re going to take action it needs to be soon before the Virginia Tech University folks scandalize us all.” 420. Again, instead of acting to help the people of Flint, the state and its employees were concerned with protecting themselves. 421. In a September 11, 2015, e-mail to Defendant Linda Dykema and Kory Groestch of the MDHHS, Defendant Shekter Smith wrote: “Since we last spoke, there’s been an increase in the media regarding lead exposure. Any progress developing a proposal for a lead education campaign? We got a number of legislative inquiries that we are responding to. It would be helpful to have something more to say.” 422. MDHHS’s Bruneau responded to Groetsch: “Told ya,” and incredibly, includes a “smiley face” emoticon. 423. Groetsch then responds to Shekter Smith that Bruneau has written only “the bones” of a health education and outreach plan.

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424. The same day, Defendant Robert Scott, the data manager for the MDHHS Healthy Homes and Lead Prevention program, was e-mailed a copy of a grant proposal for Professor Edwards’s study. Edwards’s grant proposal described a “perfect storm” of “out of control” corrosion of city water pipes leading to “severe chemical/biological health risks for Flint residents.” Scott forwarded the grant proposal to MDHHS employees Nancy Peeler, Karen Lishinski, and Wesley Priem, with the note“[w]hen you have a few minutes, you might want to take a look at it. Sounds like there might be more to this than what we learned previously. Yikes!” 425. On September 22, 2015, MDHHS Environmental Public Health Director and Defendant Lynda Dykema, emailed MDHHS’ Geralyn and Defendant Peeler, among others. She stated: “Here is a link to the VA Tech study re city of Flint drinking water… It appears that the researchers have completed testing of a lot of water samples and the results are significantly different than the city and DEQ data. It also appears that they’ve held public meetings in Flint, resulting in concerns about the safety of the water that have arisen in the last few days.” 426. On the same day, Dr. Mona Hanna-Attisha requests from Defendant Robert Scott and others at MDHHS full state records on blood tests, likely to compare to her own data. She notes “[s]ince we have been unable to obtain recent MCIR blood lead data for Flint kids in response to the lead in water concerns, we looked at all the blood lead levels that were processed through Hurley Medical Center[.]” She tells the MDHHS that despite being denied data access from the state, she has found “striking results.” 427. Dr. Hanna-Attisha had heard complaints from Flint residents about their water and found out that no corrosion control was being used. She developed a study using her hospital’s data, comparing lead levels in blood samples taken before and after the switch in the water

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supply. 428. On September 24, 2015, Dr. Hanna-Attisha released a study showing post-watertransition elevated blood-lead levels in Flint children at a press conference. 429. Dr. Hanna-Attisha had done the job that the MDHHS should have done. 430. Earlier that day, MDHHS employee Angela Minicuci circulated a memorandum of “Flint Talking Points” in anticipation of Dr. Hanna-Attisha’s study. It noted that her results were “under review” by MDHHS, but that her methodology was different, implying that her methodology was unorthodox or improper. “Looking at the past five years as a whole provides a much more accurate look at the season trends of lead in the area,” MDHHS claimed. “MDHHS data provides a much more robust picture of the entire blood lead levels for the Flint area.” 431. Also regarding Dr. Hanna-Attisha’s findings, Governor Snyder’s press secretary emailed a number of state employees the following: “Team, [h]ere’s the data that will be presented at the Hurley Hospital press conference at 3 p.m. As you’ll see, they are pointing to individual children, a very emotional approach. Our challenge will be to show how our state data is different from what the hospital and the coalition members are presenting today.” 432. Here again, the state was more concerned about protecting its own reputation than the lives of Flint residents. It never addressed the most important question – what if Dr. HannaAttisha was right.
433. Defendants and employees of MDHHS were uniformly dismissive of Dr. HannaAttisha’s results. Wesley Priem, manager of the MDHHS Healthy Homes Section, wrote to MDHHS’ Kory Groetsch: “This is definitely being driven by a little science and a lot of politics.”

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434. The same day the results were released, Defendant Robert Scott emailed Defendant Nancy Peeler, noting that he had tried to “recreate Hurley’s numbers,” and says he sees “a difference between the two years, but not as much difference as they did.” 435. Despite the fact that this constitutes MDHHS’s first internal recognition that their own methodology could have been wrong and that Flint children had been poisoned, Scott added “I’m sure this one is not for the public.” 436. As this was going on, Professor Edwards forcefully requested blood lead data from Mr.
Scott. In an email, the Professor notes that the state had failed to provide the records to Dr. Hanna-Attisha’s team, and accusing the MDHHS of “raising…obstacles to sharing it with everyone who asks.” Professor Edwards claims to have been requesting the data since August, and notes that he has sent Scott ten e-mails on the subject. 437. The next day, Defendant Scott drafts a remarkable response, but never sends it to Professor Edwards on the advice of Defendant Peeler. Included in the would-be response: “I worked with you earlier this month to get data to you relatively quickly but did not manage to complete the process before I went on annual leave for several days. I neglected to inform you that I’d be away, and I apologize for not informing you.” Despite the fact that Scott admitted to going on vacation and leaving an important task unfinished as a public health crisis unfolded, Peeler tells him to “apologize less.” 438. The day after Dr. Hanna-Attisha releases her study, the City of Flint issues a health advisory, telling residents to flush pipes and install filters to prevent lead poisoning.
439. The same day, Defendant Robert Scott responded to an email from colleagues about Detroit Free Press interest in doing a lead story. At 12:16 p.m., Free Press reporter Kristi Tanner sent an email to Angela Minicuci at MDHHS saying Tanner had looked at the lead

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increase in Flint as shown in DHS records between 2013-2014 and 2-14-2015 and Tanner is concluding that the increase “is statistically significant.” 440. Scott writes to Minicuci: “The best I could say is something like this: ‘While the trend for Michigan as a whole has shown a steady decrease in lead poisoning year by year, smaller areas such as the city of Flint have their bumps from year to year while still trending downward overall.’” 441. Defendant Nancy Peeler, also a party to the conversation, writes back to Scott and Minicuci: “My secret hope is that we can work in the fact that this pattern is similar to the recent past.” 442. This conversation unfolded the very day after Scott told Peeler that his own review of the data showed increased post-switch lead levels, but that his findings were not to be made public. 443. Defendants Peeler and Scott intentionally withheld information that they had a duty to disclose to the public, and actively sought to hide the lead poisoning epidemic that they had previously failed to discover. 444. Also on September 25, MDHHS’s Lasher sent an email to Defendant Muchmore, Defendant Wyant, Defendant Wufel, and others, repeating criticisms of Dr. Hanna-Attisha’s findings using quotation marks in reference to the “data” that she reviewed and calling her sample size into question. 445. Those MDHHS employees not actively engaged in the cover-up show no urgency whatsoever to this public health crisis. Cristin Larder sent an e-mail to a number of colleagues: “After looking at the data Kristi send you and talking with Sarah, I realize I do not have access to the data I need to answer her specific question about significance. I won’t be able to get

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access before Monday. Sorry I wasn’t able to be helpful right now.” 446. Angela Minicuci responded: “Not a problem, let’s connect on Monday.” The department apparently could not be troubled with a public health emergency on the weekend. 447. As this crisis unfolded, Defendant Snyder received briefings from Defendant Muchmore, which were more focused on political reputation preservation than helping the people of Flint. Muchmore referred to the people raising concerns about Flint’s lead as the “anti-everything group,” and claimed that it was the responsibility of the City of Flint (overtaken by Snyder’s Emergency Manager) to “deal with it.” 448. Still, by September 26, 2015, Defendant Muchmore had told the governor that finding funds “to buy local residents home filters is really a viable option,” and had identified service lines to homes as a likely cause of the problem. 449. The Governor took no immediate action to protect the rights, health, and safety of Flint’s residents while his subordinates continued to insist that the water was safe and discredit those who presented evidence to the contrary. 450. On September 28, 2015, Defendant Wurfel publically claims that the Flint situation is turning into “near hysteria,” and saying of Dr. Hanna-Attisha’s statements “I wouldn’t call them irresponsible. I would call them unfortunate.” He again declares Flint’s water safe. 451. On September 28, 2015, State Senator Jim Ananich sent a letter to Governor Snyder, noting “[i]t is completely unacceptable that respected scientific experts and our trusted local physicians have verified that the City of Flint’s drinking water is dangerous for our citizens, especially our most vulnerable young people.” He called for immediate action, but the Governor continues to wait.
452. The same day, MDHHS Director and Defendant Nick Lyon continues trying to discredit

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Dr. Hanna- Attisha’s study despite his own department’s knowledge that it shows a real problem. In an e- mail, he stated: “I need an analysis of the Virginia Tech/Hurley data and their conclusions. I would like to make a strong statement with a demonstration of proof that the lead blood levels seen are not out of the ordinary and are attributable to seasonal fluctuations. Geralyn is working on this for me but she needs someone in public health who can work directly with her on immediate concerns/questions.” 453. In blatant violation of state law, at all relevant times the state’s “top doctor,” MDHHS chief medical executive Defendant Dr. Eden Wells was attending to her responsibilities part time while also working at the University of Michigan. 454. Dr. Wells did not become a full time state employee until February 1, 2016, and her mandatory responsibilities at the state prior to that time may have involved as little as eight (8) hours per week. 455. Dr. Wells was the sole medical doctor working as an executive for the department. 456. Dr. Wells’s predecessor, Dr. Gregory Holtzman, has noted that as a full time employee, he “kept quite busy.” 457. Other outsiders continued to put pressure on the MDHHS to be more transparent. Genesee County Health Officer Mark Valacak wrote an e-mail to department employees, demanding “to know whether you have confirmed with the lead program staff at MDHHS that the state results that purport that lead levels have not shown a significant increase since the changeover of the water supply for the city of Flint indeed represent Flint city zip codes only and not Flint mailing addresses. As I mentioned to you both this morning, Flint mailing addresses include outlying areas like Flint and Mundy Townships which obtain their water from the Detroit water authority.”

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458. Valacak’s email pointed out further flaws in MDHHS methodology. 459. In the face of continued state denials, a September 29, 2015, article in the Detroit Free Press publically claimed “Data that the State of Michigan released last week to refute a hospital researcher’s claim that an increasing number of Flint children have been lead-poisoned since the city switched its water supply actually supports the hospital’s findings, a Free Press analysis has shown. Worse, prior to the water supply change, the number of lead-poisoned kids in Flint, and across the state, had been dropping; the reversal of that trend should prompt state public health officials to examine a brewing public health crisis.” 460. Dr. Hanna-Attisha could see the problem and the Free Press could see the problem with the state’s own data, and yet the MDHHS found signs of a lead problem but ignored it. 461. Finally, Defendant Snyder was forced to admit that there was an emergency he could no longer ignore. 462. His Executive Director sent an e-mail on September 29, 2015 to Defendant Muchmore, Nick Lyon, and Defendant Wyant, among others, soliciting information for a meeting regarding emergency management and noting that Dr. Wells “should be speaking with Hurley.” 463. A September 29, 2015, internal e-mail between MDHHS employees refers to the situation in Flint as sounding “like a third world country” and openly wondering when the federal government might be able to step in. 464. The same day, MDHHS employees discuss efforts made by Genesee County to obtain MDHHS data. Ms. Lasher writes “I understand that we are still reviewing the data – but the county has basically issued a ransom date that they want this information by tomorrow… Eden – please coordinate an answer so Nick can walk into the 1 p.m. (meeting with the governor) prepared on this.”

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465. As demonstrated in Ms. Lasher’s email, the state continued to refuse to take even the simplest measure to protect public health until outsiders forced it to do so. 466. Also on September 29, 2015, Geralyn Lasher e-mailed Defendants Peeler and Wells, Scott, and several others at MDHHS: “Is it possible to get the same type of data for just children under the age of six? So basically, the city of Flint kids ages six and under with the same type of approach as the attached chart you gave us last week?” 467. Defendant Linda Dykema responds to fellow MDHHS employees including Defendant Wells: “[i]t’s bad enough to have a data war with outside entities, we absolutely cannot engage in competing data analyses within the Department, or, heaven forbid, in public releases.” 468. Defendant Wells’s only reply to that email was a single word: “Agree,” showing MDHHS continuing efforts to mislead the public, protect itself, and discredit Dr. HannaAttisha. 469. The MDHHS and its employees were completely disinterested in the truth or finding out whether it may have made an error. 470. When Dr. Hanna-Attisha directly e-mailed Defendant Wells with updated findings that isolated certain high risk areas of the city and showed that blood lead levels have “more than tripled,” Defendant Wells responded that the state was working to replicate Hanna-Attisha’s analysis, and inquired about Dr. Hanna-Attisha’s plans to take the information public. 471. While discouraging her department to look further into Dr. Hanna-Attisha’s findings and misleading Dr. Hanna-Attisha, Defendant Wells remained focused on a single task; saving face at the expense of Flint’s residents in furtherance of the over-arching fiscal scheme to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint.

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472. Also on September 29, 2015, Genesee County issued its own health advisory about Flint’s water. Two days later, the county warned Flint residents not to drink the water.
473. As the lead crisis unfolded, the state also obscured the cause of Flint’s Legionnaires’ disease outbreak. Because of the common cause, the lack of corrosion control, this effort further hindered outside efforts with respect to the lead problem. 474. The state actively prevented interested federal officials from becoming involved in the Legionnaires’ investigation. 475. A Centers for Disease Control and Prevention (“CDC”) employee wrote to Genesee County Health officials in April of 2015: “We are very concerned about this Legionnaires’ disease outbreak…It’s very large, one of the largest we know of in the past decade, and community-wide, and in our opinion and experience it needs a comprehensive investigation.” 476. That e-mail added “I know you’ve run into issues getting information you’ve requested from the city water authority and the MI Dept. of Environmental Quality. Again, not knowing the full extent of your investigation it’s difficult to make recommendations, and it may be difficult for us to provide the kind of detailed input needed for such an extensive outbreak from afar.” 477. On December 5, 2015, an employee of Genesee County Health Department accused state officials of covering up their mishandling of Flint’s Legionnaires’ disease outbreak. Tamara Brickey wrote to colleagues that “[t]he state is making clear they are not practicing ethical public health practice.” Further, “evidence is clearly pointing to a deliberate cover-up,” and “[i]n my opinion, if we don’t act soon, we are going to become guilty by association.” 478. On October 1, 2015, the MDHHS officially confirmed Dr. Hanna-Attisha’s results. Department employees developed a “talking points” memorandum that gently admitted that

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further analysis of their own data supported the doctor’s findings, but cited lead paint as a greater concern than the water. 479. Finally, after months of denial, obstruction, and lies, the state began to act on October 1 2. The Governor received a proposal to reconnect Flint to DWSD and worked on plans for lead testing and water filters. 480. Still, Defendant Snyder’s “comprehensive action plan” stated that “[t]he water leaving Flint’s drinking water system is safe to drink, but some families with lead plumbing in their homes or service connections could experience higher levels of lead in the water that comes out of their faucets.” 481. Subsequent tests have shown that lead levels in Flint’s water have been so high that filters could not remove all lead, meaning that the state’s recommendation and distribution of filters as a solution continued to inflict harm. 482. On October 15, 2015, Defendant Shekter Smith sent an email to Defendant Wurfel and others, stating that prior to the Flint River switch, before the switch to Flint River water, “Staff believed that it was appropriate to monitor for two 6-month rounds of sampling to determine if additional measures were necessary. Based on the sampling performed, the city is required to install corrosion control treatment…A pilot test was not required or conducted. Staff believed that it was appropriate to monitor for two 6-month rounds to determine if additional measures would be necessary.” 483. It was not appropriate to monitor for two 6 month rounds, and additional measures were necessary from the beginning.
484. The state’s staggering “drink first, test later” approach shows a conscious, willful disregard and/or indifference for whether an injury resulted to Plaintiffs.

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485. On October 16, 2015, Flint reconnected to DWSD. 486. However, the damage had been done and lead has continued to leach from pipes into the water. 487. Two days later, Defendant Wyant admitted the colossal failure that his department had made, many months after it was expressly brought to their attention. 488. Defendant Wyant informed Governor Snyder that “staff made a mistake while working with the city of Flint. Simply stated, staff employed a federal (corrosion control) treatment protocol they believed was appropriate, and it was not.” Also; “simply said, our staff believed they were constrained by two consecutive six- month tests. We followed and defended that protocol. I believe now we made a mistake. For communities with a population above 50,000, optimized corrosion control should have been required from the beginning. Because of what I have learned, I will be announcing a change in leadership in our drinking water program.” 489. Defendant Wyant admitted to the Detroit News that MDEQ’s “actions reflected inexperience, and our public response to the criticism was the wrong tone early in this conversation.” 490. Apparently, by “early in this conversation,” Wyant meant “until today.” 491. On October 21, 2015, Governor Snyder appointed a five person task force to investigate the Flint water crisis. The task force included Ken Sikkema, senior policy fellow at Public Sector Consultants, Chris Kolb, president of the Michigan Environmental Council, Matthew Davis, a professor of pediatrics and internal medicine at the University of Michigan, Eric Rothstein, a private water consultant, and Lawrence Reynolds, a Flint pediatrician. 492. The day before the task force’s findings were released, Snyder’s new chief of staff wrote to him that “[i]f this is the path that the Task Force is on, it is best to make changes

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at DEQ sooner rather than later. That likely means accepting Dan’s resignation. It also means moving up the termination of the 3 DEQ personnel previously planned for Jan 4 to tomorrow.” 493. On December 29, 2015, the task force issued a letter detailing its findings. 494. In that letter, the task force stated that “[w]e believe the primary responsibility for what happened in Flint rests with the Michigan Department of Environmental Quality (MDEQ). Although many individuals and entities at state and local levels contributed to creating and prolonging the problem, MDEQ is the government agency that has responsibility to ensure safe drinking water in Michigan. It failed in that responsibility and must be held accountable for that failure.” 495. The letter continued: “The Safe Drinking Water Act (SDWA) places responsibility for compliance with its requirements on the public water system. In this instance, the City of Flint had the responsibility to operate its water system within SDWA requirements, under the jurisdiction of the MDEQ. The role of the MDEQ is to ensure compliance with the SDWA through its regulatory oversight as the primary agency having enforcement responsibility for the Flint water system.” 496. The letter indicated that the MDEQ had failed to properly interpret and apply the Lead and Copper Rule. 497. The letter pointed to a “minimalist approach to regulatory and oversight authority” at MDEQ’s Office of Drinking Water and Municipal Assistance (headed by Defendant Shekter Smith) which “is unacceptable and simply insufficient to the task of public protection. It led to MDEQ’s failure to recognize a number of indications that switching the water source in Flint would-and did- compromise both water safety and water quality.”
498. The letter also noted that “[t]hroughout 2015, as the public raised concerns and as

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independent studies and testing were conducted and brought to the attention of MDEQ, the agency’s response was often one of aggressive dismissal, belittlement, and attempts to discredit these efforts and the individuals involved.” 499. Further, that “the MDEQ seems to have been more determined to discredit the work of others—who ultimately proved to be right—than to pursue its own oversight responsibility.” 500. Regarding other failures of the state, the report noted that “we are particularly concerned by recent revelations of MDHHS’s apparent early knowledge of, yet silence about, elevated blood lead levels detected among Flint’s children.” 501. “The City of Flint’s water customers—fellow Michigan citizens—were needlessly and tragically exposed to toxic levels of lead through their drinking water supply.” The report also notes that the state government should be responsible for remedying the tragedy, “having failed to prevent it.” 502. On October 26, 2015, the Detroit News published an audacious column from Defendant Earley entitled “Don’t blame EM for Flint water disaster.” He asserted that the tragedy was caused by local leaders, ignoring the MDEQ’s role and the fact that he and his fellow Emergency Managers had entirely usurped local authority at Governor Snyder’s direction. 503. In October 2015, Defendant Shekter Smith was reassigned so as to have no responsibility for Flint’s drinking water. 504. On December 5, 2015, the City of Flint declared a state of emergency. 505. In response to a blog post by professor Edwards entitled “Michigan Health Department Hid Evidence of Health Harm Due to Lead Contaminated Water. Allowed False Public Assurances by MDEQ and Stonewalled Outside Researchers,” the Governor’s Communications Director wrote to Governor Snyder and others “[i]t wasn’t until the Hurley report came out that

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our epidemiologists took a more in-depth look at the data by zip code, controlling for seasonal variation, and confirmed an increase outside of normal trends. As a result of this process, we have determined that the way we analyze data collected needs to be thoroughly reviewed.” 506. In other words, MDHHS’s failure to properly analyze its own data was a matter of practice, pattern, custom, and/or policy contributing to the over-arching fiscal scheme to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint. 507. On December 23, 2015, the Michigan Auditor General provided an investigative report on the crisis, finding that corrosion control should have been maintained from the beginning and that improper sample sites had been selected by the MDEQ. 508. On December 30, 2015, Defendants Wyant and Wurfel resigned. 509. On January 4, 2016, Genesee County declared its own state of emergency. 510. On January 12, 2016, the Governor called the National Guard into Flint and requested assistance from FEMA. 511. On January 13, 2016, the Governor announced the massive spike in Legionnaires’ disease in Genesee County. 512. The Governor’s January 13, 2016 announcement was made ten months after the State was made aware that the spike coincided with the switch to Flint water. 513. On January 16, 2016, President Barack Obama declared a Federal State of emergency in Flint. 514. In his January 19, 2016, State of the State address, Governor Snyder admitted to the people of Flint that “Government failed you at the Federal, State and local level.” 515. On January 21, 2016, EPA’s Susan Hedman resigned over her involvement in the Flint

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Water crisis. Hedman had acted with deliberate indifference to the MDEQ’s failures to follow federal law and guidelines, and helped to silence Mr. Del Toral.
516. On January 21, 2016, the EPA issued an Emergency Order, based on its finding that “the City of Flint’s and the State of Michigan’s responses to the drinking water crisis in Flint have been inadequate to protect public health and that these failures continue.” 517. The Emergency Order included as Respondents the City of Flint, the MDEQ, and the state. 518. The Emergency Order provided for the EPA to conduct its own sampling of lead in Flint’s water and undertake other actions as part of a process “to abate the public health emergency in the City of Flint.” 519. The Emergency Order notes that “[t]he presence of lead in the City water supply is principally due to the lack of corrosion control treatment after the City’s switch to the Flint River as a source in April 2014. The river’s water was corrosive and removed protective coatings in the system. This allowed lead to leach into the drinking water, which can continue until the system’s treatment is optimized.” 520. The Emergency Order indicates that “water provided by the City to residents poses an imminent and substantial endangerment to the health of those persons. Those persons’ health is substantially endangered by their ingestion of lead in waters that persons legitimately assume are safe for human consumption.” 521. Further, the EPA states that “The City, MDEQ and the State have failed to take adequate measures to protect public health.” 522. According to the Emergency Order: “Based upon the information and evidence, EPA determines that Respondents’ actions that resulted in the introduction of contaminants, which

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entered a public water system and have been consumed and may continue to be consumed by those served by the public water system, present an imminent and substantial endangerment to the health of persons.” 523. In a public statement, EPA Administrator Gina McCarthy declared: “Let’s be really clear about why we are here today…We are here today because a state-appointed emergency manager made the decision that the city of Flint would stop purchasing treated water that had well served them for 50 years and instead purchase untreated — and not treat that water — and by law the state of Michigan approved that switch and did not require corrosion control. All to save money. Now that state decision resulted in lead leaching out of lead service pipes and plumbing, exposing kids to excess amounts of lead. That’s why we’re here.” 524. On January 22, 2016 Defendants Shekter Smith and Busch were suspended without pay. 525. Defendant Shekter Smith’s firing was announced on February 5, 2016. 526. At one of several congressional hearings on the subject, EPA Deputy Assistant Administrator Joel Beauvias testified "MDEQ incorrectly advised the City of Flint that corrosion- control treatment was not necessary, resulting in leaching of lead into the city's drinking water… EPA regional staff urged MDEQ to address the lack of corrosion control, but was met with resistance. The delays in implementing the actions needed to treat the drinking water and in informing the public of ongoing health risks raise very serious concerns." 527. Professor Edwards also testified before congress. He claimed that MDEQ “ignored warning sign after warning sign” before engaging in a cover-up. “One-hundred percent of responsibility lies with those employees at the Michigan Department of Environmental Quality. There’s no question,” he testified.

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528. The residents of the City of Flint continue to this day to drink bottled and/or tap water, some with the benefit of a filter.
529. As of the date of filing, the state and federal governments are conducting criminal investigations into the acts herein described.
CLASS ALLEGATIONS
530. Plaintiffs bring this action and seek to certify and maintain it as a class action under Rules 23(a); (b)(1) and/or (b)(2); and (b)(3) of the Federal Rules of Civil Procedure on behalf of themselves and similarly situated individuals in the City of Flint, Michigan, subject to amendment and additional discovery asfollows:
a. all persons in the City of Flint who have been harmed by Defendants’ continuing violation of the Safe Drinking Water Act’s requirement to operate and maintain optimal corrosion control treatment, 40 C.F.R. §§ 141.81-.82;
b. all persons in the City of Flint who have been harmed by Defendants’ continuing violation of the Safe Drinking Water Act’s requirement to notify customers of the individual results of tap water samples tested for lead within 30 days after receiving the results, 40 C.F.R. § 141.85(d)(1), (d)(2);
c. all persons in the City of Flint who have tested positive for the presence of lead in their blood, since April 25, 2014;
d. all persons in the City of Flint who have experienced personal injury as a result of their exposure to elevated lead levels in Flint’s drinking water supply, since April 25, 2014; and
e. all persons in the City of Flint who have owned or rented property in Flint Michigan since April 25, 2014.
531. Excluded from the Class is:
a. Defendants, including any entity or division in which Defendants have a controlling interest, along with their legal representative, employees, officers, directors, assigns, heirs, successors, and wholly or partly owned subsidiaries or affiliates;

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b. the Judge to whom this case is assigned, the Judge’s staff, and the Judge’s immediate family; and
c. all governmental entities. 532. Plaintiffs reserve the right to amend the Class definition if discovery and further investigation reveal that any Class should be expanded, divided into additional subclasses, or modified in any other way.
Numerosity & Ascertainability 533. This action meets the numerosity requirement of Fed. R. Civ. P. 23(a)(1), given that the amount of affected Flint residents and property owners, upon information and belief, has reached the tens of thousands, making individual joinder of class members’ respective claims impracticable. While the precise number of class members is not yet known, the precise number can be ascertained from U.S. Federal Census records, State of Michigan and City of Flint public records, and through other discovery. Finally, Class members can be notified of the pendency of this action by Court-approved notice methods.
Typicality 534. Pursuant to Federal Rules of Civil Procedure 23(a)(3), Plaintiffs’ claims are typical of the claims of class members, and arise from the same course of conduct by Defendants. Plaintiffs’ persons and real property, like all Class Members, has been damaged by Defendants’ misconduct in that they have incurred damages and losses related to the introduction of highly corrosive water from the Flint River into the public water supply, causing lead contamination and personal injury damages, destroying the lead supply pipes, and causing the ongoing water crisis in Flint. Furthermore, the factual bases of Defendants’ actions and misconduct are common to all Class Members and represent a common thread of misconduct resulting in common injury to all Class Members. The relief Plaintiffs seek is typical of the relief sought

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for absent Class Members.
Adequacy of Representation
535. Plaintiffs will serve as fair and adequate class representatives as their interests, as well
as the interests of their counsel, do not conflict with the interest of other members of the class
they seek to represent. Further, Plaintiffs have retained counsel competent and experienced in
class action litigation.
536. Plaintiffs and their counsel are committed to vigorously prosecuting this action on behalf
of the Class.
Predominance of Common Issues of Law
537. There are numerous questions of law and fact common to Plaintiffs and Class Members
that predominate over any question affecting only individual Class Members, the answers to
which will advance resolution of the litigation as to all Class Members. These common legal
and factual issues include the following:
a. whether Defendants engaged in the conduct alleged herein; b. whether optimal corrosion control treatment was identified and implemented, as
required by the Safe Drinking Water Act and the Lead and Copper Rule, pursuant to 40 C.F.R. § 141.81(d)(4), since April 25, 2014, when the switch to the Flint River was made; c. whether Defendants “continued to operate and maintain optimal corrosion control treatment”, as required by the Safe Drinking Water Act and the Lead and Copper Rule, pursuant to 40 C.F.R. §141.82(g); d. the extent to which Defendants know about the lead contamination of the Flint water supply after April 2014 and before notifying Plaintiffs and Class Members; e. whether Defendants’ conduct violates the Safe Drinking Water Act, the Constitution of the United States, and other laws as set forth herein; f. whether Defendants made unlawful and misleading representations or material omissions with respect to the safety of Flint’s water supply; and g. whether Plaintiff and Class Members are entitled to damages and other monetary relief, including punitive damages, and if so, in what amount.

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Superiority
538. The class action mechanism is superior to any other available means of the fair and efficient adjudication of this case. Further, no unusual difficulties are likely to be encountered in the management of this class action. Given the great amount of Flint residents impacted by Defendants’ conduct, it is impracticable for Plaintiffs and the Class to individually litigate their respective claims for Defendants’ complained of conduct. To do so would risk inconsistent or contradictory judgments and increase delays and expense to both parties and the court system. Therefore, the class action mechanism presents considerably less management challenges and provides the efficiency of a single adjudication and comprehensive oversight by a single court.
Count I– 42 U.S.C. § 1983 – SUBSTANTIVE DUE PROCESS – DEPRIVATION OF CONTRACTUALLY CREATED PROPERTY RIGHT
All Plaintiffs Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, Shekter Smith, Wyant, Busch, Cook, Prysby, and Wurfel
539. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 540. Plaintiffs possessed and were deprived of a state contract law created property right to purchase and receive safe, potable drinking water. 541. Plaintiffs’ right was created by the actions of the parties as well as under Section § 4616 et. seq. of the Flint City Ordinance.
542. Plaintiffs’ right is so rooted in the traditions and conscience of the American people as to be ranked as fundamental and protected by the Constitution. 543. Defendants violated Plaintiffs’ property right when, ceasing to provide Plaintiffs with safe, potable water, they provided Plaintiffs with poisonous, contaminated water. 544. The violation of Plaintiffs’ property right is not adequately redressed in a state breach of contract action.

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545. The violation of Plaintiffs’ property right involved Defendants’ failure to adequately train, supervise, and/or hire employees. 546. Defendants’ outrageous, deliberate acts and/or inaction in violating Plaintiffs’ protected property right caused Plaintiffs to suffer injuries. 547. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 548. As a direct and proximate result of all of the above Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and punitive damages.
Count II – 42 U.S.C. § 1983 – PROCEDURAL DUE PROCESS – DEPRIVATION OF CONTRACTUALLY CREATED PROPERTY RIGHT
All Plaintiffs Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, Shekter Smith, Wyant, Busch, Cook, Prysby, and
Wurfel
549. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 550. Defendants deprived Plaintiffs of their contractually based property right to purchase and receive safe, potable drinking water. Without notice or hearing. 551. Defendants have not provided Plaintiffs with just compensation for their taking of Plaintiffs’ property interests.

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552. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 553. As a direct and proximate result of all of the above Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive damages.
Count III– 42 U.S.C. § 1983 –SUBSTANTIVE DUE PROCESS– STATE CREATED DANGER
All Plaintiffs Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Kurtz, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook,
Prysby, Wurfel, Wells, Peeler, Lyon, and Scott 554. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 555. All Defendants, at all times relevant hereto, were acting under the color of law in their individual and official capacities as State and City officials, and their acts and/or omissions were conducted within the scope of their official duties and employment.
556. Plaintiffs herein, at all times relevant hereto, have a clearly established Constitutional right under the Fourteenth Amendment.
557. Under the Due Process Claus of the Fourteenth Amendment, state officials may not deprive an individual of life, liberty or property without due process of law. The Due Process

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Clause does not require the state and its officials to protect individuals from harms, but the Due Process Clause does prohibit state officials from engaging in conduct that renders an individual more vulnerable to such harms.
558. Plaintiffs claim that they were injured and their property was damaged as a result of all of the named Defendants’ decisions to connect to the Flint River as the primary water source, with knowledge and intent, and under the false pretenses that the water was safe despite knowing to the contrary and continuously denying that fact until they no longer could. As a result the Plaintiffs and the putative class were exposed and re-exposed to toxic levels of lead. 559. Defendants’ actions and omissions with regard to the switch to the Flint River, as described herein, were objectively unreasonable in light of the facts, c ircumstances and information readily available to them, and therefore violated the Fourteenth Amendment rights of Plaintiffs. 560. Defendants engaged in the conduct described herein, willfully, maliciously, in bad faith, and in reckless disregard to Plaintiffs’ protected constitutional rights. 561. They did so with shocking and willful indifference to Plaintiffs’ rights and their conscious awareness that they would cause Plaintiffs severe physical and emotional injuries. 562. Plaintiffs and the putative class claim that all of the individual defendants rendered them more vulnerable to harm by connection to the Flint River as the primary water source with the aim of balancing the municipal budget. 563. The State’s decision and its overt act, through its agents, servants and employees, to discontinue receiving water from the DWSD and actually switching to the Flint River water supply as the primary source of water with the express knowledge and intent to do so while knowing that it could not be safely done for all Plaintiffs and the putative act constitutes an

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affirmative act by the State. Furthermore, the City under the direction of the State and all of the individual defendants named herein, with knowledge and intent, disseminated information that they knew to be false that resulted in the Plaintiffs’ use of the Flint River water for all purposes. The state created the all but certain risk that Plaintiffs and their property would be exposed and re-exposed to high levels of lead in the toxic water. 564. Plaintiffs and the putative class were all residents and property owners in Flint, ascertainable by both name and address, when the Flint River water source went online. 565. The State and City knew that water would distributed to all of the Plaintiffs, and those Plaintiffs specifically, based on their records, billing information, home addresses that were all identifiable from Flint’s City water bills. 566. The private engineering Defendants made clear that the Flint Water Treatment plant was not adequately suited to treat the Flint River water when the Flint River went online in April 2014 and the State agencies reported that it was an unsuitable source of water. 567. After the Flint River went online, the individual Defendants continued to assure the residents and property owners of Flint that the water was safe for all uses, causing them to be continuously exposed and re-exposed to the toxic water from the Flint River. 568. Defendants knowingly made the above misrepresentations with full knowledge that their misrepresentations would fraudulently induce both reliance and use of the Flint River as a toxic water source for the foreseeable future. 569. Defendants’ special and exclusive knowledge of the toxic conditions that existed in Flint’s water supply knowingly exposed and re-exposed the Plaintiffs to the harmful conditions substantially likely to cause harm. 570. In addition to compensatory, economic, consequential and special damages, Plaintiffs

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are entitled to punitive damages against each of the individually named Defendants under 42 U.S.C. § 1983, in that actions of each of these Defendants have been taken maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of Plaintiffs.
Count IV– 42 U.S.C. § 1983 – SUBSTANTIVE DUE PROCESS - BODILY INTEGRITY
All Plaintiffs Against Defendants City of Flint, Croft, Glasgow, State of Michigan, Snyder, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook,
Prysby, Wurfel, Wells, Peeler, Lyon, and Scott 571. Plaintiffs incorporate every allegation in this complaint as if fully restated herein.
572. Plaintiffs and the putative class have a right to bodily integrity under the Fourteenth Amendment. 573. At all times relevant hereto, that right is and has been well established. 574. In providing Plaintiffs with contaminated water, and/or causing Plaintiffs to consume that water, Defendants exposed and/or failed to protect Plaintiffs from a foreseeable risk of harm. 575. As a result of Defendants’ actions and/or omissions, Plaintiffs suffered bodily harm and their rights to bodily integrity were violated. 576. Defendants’ actions were malicious, reckless, and/or were made with deliberate indifference to Plaintiffs’ constitutional rights. Defendants engaged in these acts willfully, maliciously, in bad faith, and/or in reckless disregard for Plaintiffs’ constitutional rights. 577. Defendants’ actions shock the conscience of Plaintiffs and of any reasonable person. 578. As a direct and proximate result of Defendants’ unlawful conduct, Plaintiffs have suffered injuries and seek relief as described in this complaint. 579. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.

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580. As a direct and proximate result of all of the above Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and punitive damages.
Count V- BREACH OF CONTRACT All Plaintiffs Against Defendants Flint and State of Michigan
581. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 582. Defendant City of Flint, by its statutes and by offering services to its residents, offers to sell potable, safe drinking water to its residents. 583. Plaintiffs accepted the offer by utilizing Flint’s water, agreeing to pay for the water, and tendering payment for the water. 584. Plaintiffs and Defendant City of Flint entered into a contract for the purchase and sale of potable, safe drinking water. 585. Defendant State of Michigan overtook the local government of Flint and assumed and/or shared its duties under the contract to sell potable, safe drinking water to Plaintiffs. 586. Defendants materially and irreparably breached the contract with Plaintiffs by failing to provide potable, safe drinking water, and instead providing harmful, foul, contaminated water unfit for human consumption.

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587. As a result of Defendants’ breach, Plaintiffs suffered damages in the amount of all debts and obligations for Flint water, whether tendered or untendered, and as stated throughout this complaint. 588. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 589. As a direct and proximate result of the above Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and exemplary damages.
Count VI- BREACH OF IMPLIED WARRANTY All Plaintiffs Against Defendants Flint and State of Michigan
590. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 591. The State of Michigan and the City of Flint directly promised to provide water that was fit for human consumption and/or impliedly promised that the water was fit for human consumption. 592. The State of Michigan and the City of Flint have both admitted that the water it supplied was contamination, including being poisoned with lead, and therefore clearly not fit for its intended use of human consumption. 593. The provision of water unfit for its intended purpose and/or the admission that the water

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was not fit for its intended purpose constitute material breaches of an implied warranty and/or contract. 594. Defendants are liable to Plaintiffs and the putative class for all amounts billed and/or charged and/or collected, whether paid or unpaid, for water that was unfit for human consumption. 595. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 596. As a direct and proximate result of the individual Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of cancer, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and exemplary damages.
Count VII– NUISANCE All Plaintiffs Against All Defendants
597. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 598. Defendants’ actions in causing foul, poisonous, lead contaminated water to be delivered to the homes of Plaintiffs resulted in the presence of contaminants in Plaintiffs’ properties and/or persons. 599. Defendants’ actions substantially and unreasonably interfered with Plaintiffs’ comfortable living and ability to use and enjoy their homes, constituting a nuisance.

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600. Plaintiffs did not consent for foul, poisonous, lead contaminated water to physically invade their persons or property. 601. Plaintiffs suffered injuries and damage to their persons and/or properties as a direct and proximate result of Defendants’ actions in causing lead contaminated water to be delivered to their homes. 602. Defendants’ actions in causing a substantial and unreasonable interference with Plaintiffs’ ability to use and enjoy their properties constitutes a nuisance and Defendants are liable for all damages arising from such nuisance, including compensatory and exemplary relief. 603. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries.
604. As a direct and proximate result of the Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as exemplary damages.
Count VIII –TRESPASS All Plaintiffs Against All Defendants
605. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 606. Defendants’ negligent, grossly negligent, willful, and/or wanton conduct and/or failures to act caused contaminants to enter upon Plaintiffs’ property and into Plaintiffs’ persons.

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607. Defendants, knowingly or in circumstances under which they should have known, engaged in deliberate actions that released contaminants which were substantially certain to invade the properties of Plaintiffs and the putative class. 608. Defendants knew or should have known of the likelihood that corrosive water would cause lead to drink into Plaintiffs’ drinking water. 609. Defendants’ actions resulted in contaminants entering into Plaintiffs’ persons and properties, causing injury and damage to person and property. 610. Defendants’ actions were done with actual malice or wanton, reckless or willful disregard for Plaintiffs’ safety, rights, and/or property.
611. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 612. As a direct and proximate result of the Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), and exemplary damages.
Count IX- UNJUST ENRICHMENT All Plaintiffs Against Defendants State of Michigan and City of Flint
613. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 614. Defendants have received the benefits of the funds paid by Plaintiffs for contaminated

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water that was and is unfit for human consumption. 615. Defendants have utilized these funds for the operation of the government(s) of Flint and/or Michigan. 616. The retention of the benefit of the funds paid by Plaintiffs constitutes unjust enrichment in the amount of all funds paid for water that was unfit for human consumption. 617. It would be unjust to allow Defendants to retain the benefit they obtained from Plaintiffs. 618. Plaintiffs are entitled to exemplary damages.
Count X –NEGLIGENCE/PROFESSIONAL NEGLIGENCE/GROSSNEGLIGENCE All Plaintiffs Against Defendant Veolia North America, LLC
619. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 620. Veolia undertook, for consideration, to render services for the City of Flint which it should have recognized as necessary for the protection of Plaintiffs, the putative class, and/or their property. 621. Veolia undertook to perform a duty owed to Plaintiffs and the putative class by the City of Flint and/or the State of Michigan. 622. Based on its undertaking, Veolia had a duty to Plaintiffs and the putative class to exercise reasonable care to protect that undertaking. 623. Plaintiffs and the putative class relied on the City, State, and/or Veolia to perform the duty to inspect the City’s water supply to make sure that it was safe. 624. Veolia failed to undertake reasonable care and conduct as a professional engineering firm. 625. Veolia failed to exercise reasonable care in inspecting the city’s water system and

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issuing its interim and final reports. 626. Veolia failed to exercise reasonable care when it declared that Flint’s drinking water met federal and/or state and/or all applicable requirements. 627. Veolia failed to exercise reasonable care when it represented that Flint’s drinking water was safe. 628. Veolia failed to exercise reasonable care when it discounted the possibility that problems unique to Flint’s water supply were causing medical harms. 629. Veolia failed to exercise reasonable care when it failed to warn about the dangers of lead leaching into Flint’s water system.
630. Veolia failed to exercise reasonable care when it did not forcefully recommend the immediate implementation of corrosion control for purposes of preventing lead contamination in Flint’s water supply. 631. Plaintiffs and the putative class suffered harm resulting from Veolia’s failures to exercise reasonable care to protect its undertaking. 632. Veolia’s failures to exercise reasonable care to protect its undertaking proximately caused the Plaintiffs’ injuries and were entirely foreseeable. 633. Veolia is liable to Plaintiffs and the putative class for all harms resulting to themselves and their property from Veolia’s failures to exercise reasonable care. 634. Veolia’s liability includes without limitation personal injuries, illnesses, exposure to toxic substances, and property damage suffered by Plaintiffs and the putative class as a result of Veolia’s failures to exercise reasonable care. 635. Veolia’s conduct and/or failure(s) to act constitute gross negligence that rises to the level of recklessness because it was so reckless that it demonstrates a substantial lack of

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concern for whether an injury would result. 636. Veolia’s actions and/or omissions were a and/or the proximate cause of the Plaintiffs’ injuries. 637. As a direct and proximate result of Veolia’s actions and/or omissions, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pree xisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
Count XI- NEGLIGENCE/PROFESSIONAL NEGLIGENCE/GROSSNEGLIGENCE All Plaintiffs Against Defendant LAN and Rowe
638. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 639. LAN and Rowe undertook, for consideration, to render services for the City of Flint which it should have recognized as necessary for the protection of Plaintiffs, the putative class, and/or their property. 640. LAN and Rowe undertook to perform a duty owed to Plaintiffs and the putative class by the City of Flint and/or the State of Michigan. 641. Based on its undertaking, LAN and Rowe had a duty to Plaintiffs and the putative class to exercise reasonable care to protect that undertaking. 642. Plaintiffs and the putative class relied on the City, State, LAN and/or Rowe to perform

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the duty to ensure the proper treatment of the new water source(s). 643. LAN and Rowe failed to exercise reasonable care in preparing for and executing the transition from treated DWSD water to untreated Flint River water. 644. LAN and Rowe failed to undertake reasonable care and conduct as a professional engineering firm. 645. LAN and Rowe failed to exercise reasonable care when they did not implement corrosion control in a system containing lead pipes that was being transitioned onto a highly corrosive water source. 646. Plaintiffs and the putative class suffered harm resulting from LAN and Rowe’s failures to exercise reasonable care to protect their undertaking. 647. LAN and Rowe’s failures to exercise reasonable care to protect its undertaking proximately caused the Plaintiffs’ injuries and were entirely foreseeable.
648. LAN and Rowe are liable to Plaintiffs and the putative class for all harms resulting to themselves and their property from their failures to exercise reasonable care. 649. LAN and Rowe’s liability includes without limitation personal injuries, illnesses, exposure to toxic substances, and property damage suffered by Plaintiffs and the putative class as a result of LAN and Rowe’s failures to exercise reasonable care. 650. LAN and Rowe’s conduct and/or failure(s) to act constitute gross negligence that rises to the level of recklessness because it was so reckless that it demonstrates a substantial lack of concern for whether an injury would result. 651. LAN and Rowe’s actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 652. As a direct and proximate result of LAN and Rowe’s actions and/or omissions, Plaintiffs

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and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
COUNT XII – GROSS NEGLIGENCE All Plaintiffs against Defendants Snyder, Muchmore, Croft, Glasgow, Kurtz, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells,
Dykema, Peeler, Scott and The City of Flint 653. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 654. Defendants independently owed Plaintiffs and the putative class a duty to exercise reasonable care. 655. Defendants undertook, for consideration, to perform a duty owed to Plaintiffs and the putative class by the City of Flint and/or the State of Michigan. 656. Based on their undertakings, Defendants had a duty to Plaintiffs and the putative class to exercise reasonable care to protect that undertaking. 657. Plaintiffs and the putative class relied on the City, State, and/or Defendants to perform the duty to ensure the proper treatment of Flint River Water. 658. Plaintiffs and the putative class relied on the City, State, and/or Defendants to perform the duty to disclose known hazards in their drinking water. 659. Defendants failed to exercise reasonable care. 660. Defendants breached their duties to Plaintiffs in ways including but not limited to the

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following: a. Failing to require corrosion control treatment of Flint River water; b. Failing to conduct proper testing of Flint’s water; c. Failing to require proper testing of Flint’s water; d. Failing to respond to evidence that Flint’s water was improperly treated; e. Misrepresenting that corrosion control treatment had been implemented; f. Publically declaring unsafe water to be safe to drink; g. Ignoring evidence that Flint’s water was unsafe to drink; h. Withholding information that showed that Flint’s water was unsafe to drink; i. Publically discrediting those who claimed that Flint’s water may not be safe to drink; j. Failing to warn Plaintiffs the public that Flint’s water was not safe to drink.
661. Plaintiffs and the putative class suffered harm resulting from Defendants’ failures to exercise reasonable care. 662. Plaintiffs and the putative class suffered harm resulting from Defendants’ failures to exercise reasonable care to protect their undertakings. 663. Defendants’ failures to exercise reasonable care to protect their undertakings proximately caused the Plaintiffs’ injuries and were entirely foreseeable. 664. Defendants are liable to Plaintiffs and the putative class for all harms resulting to themselves and their property from Defendants’ failures to exercise reasonable care. 665. Defendants’ liability includes without limitation personal injuries, illnesses, exposure to

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toxic substances, and property damage suffered by Plaintiffs and the putative class as a result of Defendants’ failures to exercise reasonable care. 666. Defendants’ actions and/or omissions were the proximate cause of the Plaintiffs’ injuries. 667. All of the above individual Defendants’ conduct and/or failure to act constitute gross that rises to the level of recklessness because it demonstrates a substantial lack of concern and wanton disregard for whether injury would result. 668. As a direct and proximate result of the above individual Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre-existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
COUNT XIII- INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS All Plaintiffs against Defendants Snyder, Muchmore, Croft, Glasgow, Kurtz, Earley, Ambrose, MDEQ, MDHHS, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells,
Dykema, Peeler, Scott and The City of Flint 669. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 670. Defendants’ outrageous conduct in causing, prolonging, and obscuring Plaintiffs’ exposure to toxic, lead contaminated water exceeds all bounds of decency in a civilized society. 671. Defendants’ outrageous conduct was intentional and/or reckless and made with a conscious disregard for the rights and safety of Plaintiffs and the putative class.

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672. Defendants’ outrageous conduct caused severe distress to Plaintiffs and the putative class. 673. Defendants’ outrageous conduct was the proximate cause of Plaintiffs’ injuries. 674. As a direct and proximate result of the above individual Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) increased risk of harm, cognitive deficits, lost earning capacity, aggravation of preexisting conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
COUNT XIV – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS All Plaintiffs against Defendants Snyder, Muchmore, Croft, Glasgow, Kurtz, Earley,
Ambrose, Shekter Smith, Wyant, Busch, Cook, Prysby, Wurfel, Wells, Dykema, Peeler, Scott
675. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 676. Defendants’ negligent acts complained of in this Complaint
677. Defendants were in a special relationship to Plaintiffs and the putative class, being persons entrusted with the protection of their most basic needs – water, health, and safety. 678. The distress caused to Plaintiffs and the putative class by Defendants was highly foreseeable. 679. Defendants placed Plaintiffs and the putative class in a zone of physical danger, causing them severe emotional distress. 680. Plaintiffs and the putative class have contemporaneously perceived the exposure of their

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immediate family members to lead contaminated water. 681. Defendants’ grossly negligent acts were the proximate cause of Plaintiffs’ contemporaneous perception of their loved ones exposure to lead contaminated water. 682. Defendants’ grossly negligent acts were the proximate cause of Plaintiffs being placed into a zone of physical danger and resulting severe emotional distress. 683. Defendants’ grossly negligent acts were the proximate cause any and all severe emotional distress related to their own exposure and their families’ exposure to lead contaminated water. 684. As a direct and proximate result of the above individual Defendants’ conduct and/or failures to act, Plaintiffs and the putative class have suffered past, present and future personal injuries, including but not limited to: various health problems (including without limitation hair, skin, digestive and other organ problems), increased risk of cancer, physical pain and suffering, mental anguish, fright and shock, disability, denial of social pleasures and enjoyments, embarrassment, humiliation, and mortification, medical expenses, wage loss, brain and/or developmental injuries including (without limitation) cognitive deficits, lost earning capacity, aggravation of pre-existing conditions, contract damages and property damages (including but not limited to damaged plumbing and lost real property value), as well as punitive and/or exemplary damages.
COUNT XV – CIVIL RICO All Plaintiffs against Defendants Snyder, Muchmore, Kurtz, Earley, Ambrose, Shekter Smith, Wyant, Wurfel, Busch, Cook, Prysby, Lyon, Wells, Peeler, Scott, Dykema, Croft,
Glasgow, Walling, Rowe, LAN and Veolia 685. Plaintiffs repeat and re-allege each and every allegation contained in this complaint with the same force and effect as if asserted herein.

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686. Plaintiffs furthermore incorporate all the facts and allegations contained in plaintiffs’ RICO case statement attached with this complaint as required by Standing Order in Civil RICO cases. 687. These RICO claims arise from 18 U.S.C. Sec. 1962 (c) and (d). 688. The RICO defendants named herein conspired to, and for approximately two years did, intentionally and knowingly misrepresent the suitability and safety of the Flint River to Flint’s residents on a repeated basis. 689. Numerous other bad actors including The State of Michigan, MDEQ, MDHSS, and The City of Flint participated in the conspiracy and association in fact enterprise set forth herein. These government actors are referred to as “RICO enterprise actors” herein due to the fact they cannot be named as RICO defendants. 690. This conspiracy originated from Flint’s budget deficit. 691. Flint’s budget deficit could have been safely addressed by invoking time tested, wellhoned federal bankruptcy protections under the supervision of a Federal bankruptcy Judge, for restructuring the debts of municipalities. 692. While municipal bankruptcy was one of the solutions RICO Defendants Snyder and Michigan Emergency Managers were authorized to pursue, bankruptcy petitions for Flint were not filed.
693. Instead, RICO defendant Snyder, through Emergency Managers and RICO defendants Earley, Kurtz, and Ambrose utilized their power and authority over the City of Flint to execute Flint’s switch to the free but toxic Flint River in April , 2014, for purposes of generating revenue and balancing the Flint budget.

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694. The switch to the toxic but free Flint River required coordinated efforts of the Enterprise actors named herein including The State of Michigan, MDEQ, MDHSS, and The City of Flint to ensure the public trusted and relied on the safety and suitability of the Flint River water distributed to their homes and made available for use.
695. The RICO defendants named herein acted in concert with the Enterprise actors to carry out the fiscal scheme and conspiracy to balance Flint’s budget through the fraudulent sale of toxic Flint River, and actively attempted to conceal the toxic conditions that they caused for a two-year period.
The RICO Defendant’s Conspiracy to balance Flint’s Budget Through the use of the Free Flint River
696. The essence of this conspiracy through the Rico defendants and the Enterprise Actors was to balance the City budget, by switching to a free water source and charging Flint residents the highest rates in the nation for toxic water.
697. By using this fraudulent budget-balancing scheme, the Flint General Budget deficit of $12.9 million as of June 30, 2012 disappeared and by June 30, 2015 a positive General Fund Balance of $3.3 million was achieved.
698. The RICO defendants never intended to use the free water of the Flint River as a permanent solution because they knew that the Flint River had not been proven to be safe to use as drinking water.
699. Rather, the RICO defendants intended to discontinue buying safe water from Detroit in 2014 and to switch to buying the less expensive safe water from Lake Huron in late 2016.

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700. However, there was a time gap of at least two years until the infrastructure to bring the Lake Huron to Flint was in place.
701. From a government standpoint, this financial scheme and conspiracy started at the top with Governor Snyder. 702. Governor Snyder delegated authority, specifically financial authority, to Emergency Managers, Kurtz, Earley and Ambrose, who took complete fiscal control of Flint Michigan starting in 2011. 703. Governor Snyder, through his Emergency Managers Kurtz, Early, and Ambrose successfully forced Flint’s switch to the free Flint River as a primary free water source. 704. Flint’s Emergency Manager would even veto the City of Flint’s 7-1 City Council vote to disconnect from the toxic Flint River on March 23, 2015. 705. Therefore, The Governor, through Emergency Manager Ambrose forced Flint to remain connected to the toxic Flint River after the powerless City Council voted to return to DWSD because of the toxic conditions created by the Flint River. 706. Despite Flint’s City Council’s vote to disconnect, which clearly demonstrated the City’s knowledge that the free Flint River was unsafe as a water source, The City of Flint continued to charge Flint residents the highest rates in the nation for water known to be unsafe for use. 707. The Governor knew there were very serious issues stemming from Flint’s use of the free Flint River as primary water source, because his chief of staff Muchmore communicated these very issues of toxic conditions to the Governor on July 22, 2015. 708. The Governor’s (himself, and through his Emergency Managers) insistence that the free Flint River be used as a primary water source to balance the City budget required the use of the Enterprise Actors and their employees to effectively carry out this scheme.

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709. Through all the individual RICO defendants named herein, the Governor, Muchmore, Emergency Managers, Enterprise Actors and their employees and agents, imposed their financial agenda of raising revenue on free Flint River water to re-balance the City of Flint’s budget onto unsuspecting and uninformed Flint residents and business and property owners. 710. Pursuant to 18 U.S.C § 1962(c), the RICO defendants and resulting enterprise committed culpable conduct giving rise to RICO liability. 711. The RICO defendants named herein have identities, jobs, and roles that are separate and distinct from the association in fact enterprise that they formed as set forth herein. 712. The RICO Defendants, Shekter Smith, Lyon, Wurfel, Wyant, Busch, Cook, Prysby, Croft and Glasgow, LAN, Rowe, and Veolia were responsible for monitoring the water treatment plant and ensuring compliance with local state and Federal laws to ensure the Flint water treatment plant was not providing contaminated, poisoned or otherwise unsafe water for any use by Flint residents and property owners.
a. The following laws Federal and State laws and regulations govern safe drinking, including but not limited to: i. Michigan Safe Drinking Water Act, 1976 Public Act 399, MCL § 325.1001 – 325.1023, Michigan Department of Environmental Quality Guidance on Michigan Safe Drinking Water Act of 1976, EQC2050 (01/29/2003). ii. Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251 – 1376, EPA Lead & Copper Rule, 40 C.F.R. § 141, EPA Safe Drinking Water Act, 42 U.S.C. § 300, Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 1906 et seq. (see through § 9675), Federal Water Pollutants Control Amendments of 1972, 33 U.S.C. § 1319(c)(2).

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713. RICO Defendants, Shekter Smith, Wurfel, Wyant, Busch, Cook, Prysby, Croft, and Glasgow were required to perform various testing procedures and verification processes under the above Federal and State laws, rules and regulations, to assure that the allegations of toxicity were false and that the Flint River water was safe. 714. RICO Defendants, Shekter Smith, Wurfel, Wyant, Busch, Cook, Prysby, Croft and Glasgow knowingly failed to satisfy the above regulations that were required to verify that the water provided to the Flint property owners and residents was safe. 715. James Henry of the Genesee County Health Department made several written and verbal requests for specific information starting October 2014 to investigate the safety of Flint’s water and potential health risks, including a Freedom of Information Act request on January 27, 2015. MDEQ denied Henry’s request to meet with MDEQ, Flint water plant staff, and willfully refused to comply with The Genesee Health Department’s document requests to conceal the known toxic hazards that existed in Flint’s water supply. 716. Each of the individual RICO Defendants knew, and acquired actual knowledge and information through the dissemination of emails, through phone conversations, memos, scientific reports, news stories, and public response correspondence that the water was untreated, toxic and unfit for any use, including ingestion, yet continued to misrepresent, assure and reassure that the citizens and property owners of Flint relied upon, that the water was safe for all uses. 717. RICO Defendants knew, and acquired actual knowledge and information through the dissemination of emails, through phone conversations, memos, scientific reports, news stories, and public response correspondence that the water was untreated, toxic and unfit for any use, including ingestion, yet continued to misrepresent, assure and reassure the citizens and property owners of Flint that the water was safe for all uses and there was not an increase to the amount of

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children diagnosed in Flint with elevated blood lead levels. 718. The RICO defendants set forth herein justifiably induced the reliance of Flint’s residents to reasonably believe the water they were paying for was safe for all uses and treated so as to prevent harm to their properties, businesses, and homes.
719. Reliance is clear under these circumstances as Plaintiffs and the putative class not only used the water, but paid and continued to pay bills for toxic water in reliance on Rico Defendants repeated, known misrepresentations and denials as to whether Flint’s water was safe for use, despite Rico Defendants evidence and knowledge to the contrary.
720. The RICO Defendants have committed and repeated numerous predicate acts of racketeering within the meaning of the RICO statute that constitute violations thereof. 18 U.S.C.
§ 1961(1)(B) (both mail fraud and wire fraud), and 18 U.S.C. §1961(1)(D) (municipal bankruptcy).
721. Specifically relating to bankruptcy, the following predicate acts by the RICO Defendants constitute violations of 11 U.S.C. § 152 (8), which states that “after filing of a case under Title 11 or in contemplation thereof, knowingly makes a false entry in any recorded information
(including books, documents, records, and papers) relating to the property or financial affairs of the debtor……”
a. After Governor Snyder’s signing of PA 436 in 2012, addressing the Flint budgetary crisis, Flint’s, state run government had a “choice” of four options to remedy the fiscal crisis: (i) a consent agreement, (ii) Chapter 9 municipal bankruptcy, (iii) mediation or (iv) the appointment of an Emergency Manager with similar broad powers to the prior statute’s Emergency Manager.
b. Under PA 436, Flint had to contemplate filing a Chapter 9 municipal bankruptcy petition. Upon information and belief, the government contemplated filing a chapter 9 bankruptcy petition but rejected this option and opted to appoint an Emergency Manager in furtherance of the over-arching fiscal scheme to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint. This was the first of two predicate acts.

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c. Once the Governor appointed an Emergency Manager, instead of filing a Chapter 9 municipal bankruptcy, The Emergency Manager committed the second predicate. Specifically, the Emergency Manager had to choose between the same three remaining options: (i) a consent agreement, (ii) a Chapter 9 municipal bankruptcy or (iii) mediation to remedy Flint’s fiscal crisis. The Emergency Manager contemplated and rejected these options and instead he and his enterprise chose to deal with Flint’s “Financial Emergency” by, inter alia, doing prohibited acts under bankruptcy Sec. 157(8), fraudulently misrepresenting assets Emergency Manager opted to conceal and mitigate the financial emergency by fraudulently switching to an unsafe and free water source for the two year interstice when they terminated the water contract with DWSD in March 2013. In so doing, by selling an estimated $50 million of toxic water to Flint residents, as part of his budget balancing scheme.
d. This was fraudulent in that all knew they were switching to the unsafe, contaminated and toxic but free water source from the Flint River in furtherance of the over-arching fiscal scheme to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint.
e. These acts were done in order to prevent the irate citizens of the City of Flint from knowing that the money cost-cutting plan to balance the budget and alleviate the City’s Financial Emergency was to give them toxic water for two years.
f. If the City and citizens of Flint had known the truth about the toxicity of the Flint River water, they could have joined together and filed an involuntary petition for protections under a Chapter 9 bankruptcy proceeding and the supervision of a bankruptcy judge would have forced the City of Flint, the municipal debtor, to stop balancing the Flint books by selling them poisoned drinking water. Involuntary bankruptcy petitions may be filed against a municipality.
722. The predicate acts committed by the Enterprise Actor City of Flint, under the auspices of
RICO Defendants Snyder, Muchmore, and Emergency Managers who subsumed the City of Flint
government, and RICO defendants named herein constitute mail fraud in violation of 18 U.S.C. §
1341 which says “Whoever, having devised or intending to devise any scheme or artifice to
defraud………..for the purpose of executing such scheme or artifice or attempting so to do,
places in any post office or authorized depository for mail matter, any matter or thing whatever
to be sent or delivered by the Postal Service, any such matter or thing, shall be fined under this

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title or imprisoned not more than 20 years, or both” include the following predicate acts:
a. Enterprise Actor City of Flint had continuously mailed water bills for toxic water to Flint property owners on a monthly basis which fraudulently misrepresented that the City was providing property and business owners with safe, clean water in exchange for consideration. These bills, delivered by way of the U.S. mail through interstate commerce and mailed back by Flint property owners, some of them out of state, by placing postage upon envelopes deposited in mailboxes and sent back through interstate commerce, constitute mail fraud by the City of Flint. Flint continued to mail these water bills that property owners were required to pay beginning for the April 2014 water and continuing until March 9, 2016, when the Mayor of Flint announced that the City would suspend billing.
b. The property owners of Flint were subject to the highest public water rates in the country. They were billed, on average, $864.32 annually for the toxic water they received which is well above the U.S. average of $316.20 for public water systems.
c. RICO individual Defendant Michael Glasgow, the water treatment plant’s laboratory and water quality supervisor, informed the MDEQ by letter on April 16, 2014, that he was “expecting changes to our Water Quality Monitoring parameters, and possibly our Disinfection Byproduct monitoring on lead & copper monitoring plan… Any information would be appreciated, because it looks as if we will be starting the plant up tomorrow and are being pushed to start distributing water as soon as possible… I would like to make sure we are monitoring, reporting and meeting requirements before I give the OK to start distributing water.” The next day, Glasgow wrote to MDEQ, including Individual Rico Defendants Prysby and Busch, noting that he “assumed there would be dramatic changes to our monitoring. I have people above me making plans to distribute water ASAP. I was reluctant before, but after looking at the monitoring schedule and our current staffing, I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction. I need time to adequately train additional staff and to update our monitoring plans before I will feel we are ready. I will reiterate this to management above me, but they seem to have their own agenda.”
d. On April 23, 2014 e-mail from RICO individual Defendant Busch to RICO individual Defendant Wurful admits knowing that the Flint River drinking water it was selling Flint residents was an inconsistent low quality water source. In his email, Bush states that, “While the Department is satisfied with the City’s ability to treat water from the Flint River, the Department looks forward to the long term solution of continued operation of the City of Flint Water Treatment Plant using water from the KWA as a more consistent and higher quality source water.”
e. On April 25, 2014, The Flint Department of Public Works through Director and Rico individual Defendant Howard Croft issued a statement in a press release that was known to be false and therefore fraudulently represented to the public, “ The test

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results have shown that our water is not only safe, but of the high quality that Flint customers have come to expect. We are proud of that end result.” This statement was made at a time that the City of Flint was aware no corrosion controls were in place and that the Flint water treatment plant was not upgraded and therefore not ready to distribute water to Flint residents, in furtherance of the over-arching fiscal scheme to balance the budget at all costs by selling the residents of Flint toxic drinking water in conscious disregard of the health, property, and prosperity of the citizens of Flint.
f. Discussing General Motors’ decision, Rico individual Defendant Prysby wrote to Rico individual Defendants Busch, Shekter Smith and others that the Flint River water had elevated chloride levels. He stated that “although not optimal” the water was “satisfactory.” He noted that he had “stressed the importance of not branding Flint’s water as ‘corrosive’ from a public health standpoint simply because it does not meet a manufacturing facility’s limit for production.”
g. On January 2, 2015, the City of Flint mailed a notice to its water customers indicating that it was in violation of the Safe Drinking Water Act due to the presence of trihalomethanes in the Flint River, which was a product of attempting to disinfect the water. It was nonetheless claimed that the water was safe to drink for most people with healthy immune systems.
h. Individual Rico Defendant Bradley Wurfel, MDEQ Director of Communications, issued a press release on September 2, 2015 stating “[W]e want to be very clear that the lead levels being detected in Flint drinking water are not coming from the treatment plant or the city’s transmission lines… The issue is how, or whether, and to what extent the drinking water is interacting with lead plumbing in people’s homes….the results reported so far fail to track with any of the lead sampling conducted by the city. In addition, Virginia Tech results are not reflected by the blood lead level testing regularly conducted by the state department.” This false statement was made to direct blame for the untreated water from Enterprise Actor MDEQ to the property owners’ aged plumbing infrastructure in furtherance of the over-arching fiscal scheme to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint.
i. On September 9, 2015, individual Rico Defendant Bradley Wurfel of MDEQ again fraudulently misrepresented the quality of Flint’s Water supply through publically disseminated untrue statements in a local newspaper by stating, when he told a reporter: “[T]he state DEQ is just as perplexed by Edwards’s results as he seems to be by the city’s test results, which are done according to state and federal sampling guidelines and analyzed by certified labs.” This statement was made with full knowledge that at least one EPA employee had told MDEQ that its testing was not being conducted according to federal guidelines.

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j. In a September 17, 2015 letter, individual Rico Defendant Dan Wyant (Director of MDEQ) wrote a response to an inquiry from various legislators, disavowing any responsibility for reacting to Mr. Del Toral’s alarm- sounding memorandum: “With respect to the draft memo referenced in your letter, the MDEQ does not review or receive draft memos from the USEPA, nor would we expect to while it is a draft.” This statement was untrue as MDEQ had undeniably reviewed Miguel Del Toral’s expert report that charged MDEQ with highly credible evidence of notice of the toxic threats facing Flint residents as a result of their failure to comply with the Lead & Copper Rule.
k. On September 28, 2015, and after a significant uptick in infants showing elevated blood lead levels in Flint, individual Rico Defendant Bradley Wurfel issued another public statement again misrepresenting that Flint’s water safe.
723. The predicate acts committed by the RICO defendants constituting wire fraud in violation
of 18 U.S.C. § 1343 (Fraud by Wire, Radio or Television) which says, “Whoever, having
devised or intending to devise any scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses, representations, or promises, transmits or
causes to be transmitted by means of wire, radio, or television communication in interstate or
foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing
such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or
both” include:
a. Plaintiff incorporates all items listed in the mail fraud section as these misrepresentations that fraudulently induced reliance of the Flint community that the water supply was safe for use, clean, and worthy of consumption these misrepresentations were also transmitted by way of radio and television based media sources.
b. On April 25, 2014, RICO Defendant Mayor of Flint Dayne Walling, went on TV to alert the public of the switch to the Flint River as the City’s primary water source. In doing so, Dayne Walling said ““It’s regular, good, pure drinking water, and it’s right in our backyard”, and did so while knowing the City’s water treatment facility had not had any of the necessary corrosion controls implemented by RICO Defendants.
c. Furthermore, as property and business owners in Flint were receiving water bills that fraudulently induced reliance and payment for water that the City, State and private

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RICO Defendants and Enterprise Actors and individual Rico Defendants each had knowledge was contaminated; many of the Flint property and business owners paid their bills online through the City of Flint website with credit cards or ACH or by returning the bill by mail with an enclosed check that was processed by their banks. These water payments, which totaled an estimated $50 million were processed through the Federal banking system which included the use of wires.
d. This continued from the date of the original switch from the Detroit Water and Sewer Department to the Flint River on April 25, 2014 up and until Mayor Weaver suspended billing on March 9, 2016 all in furtherance of the over-arching fiscal scheme to balance the budget at all costs in conscious disregard of the health, property, and prosperity of the citizens of Flint.
724. Defendants utilized channels of interstate commerce through the use of U.S. Mail and wire based means for committing the RICO predicate acts set forth herein.
725. The actions and inactions of the RICO defendants go beyond general negligence or recklessness and were done with knowledge and intent, as the facts indicate that all were engaged in a coordinated enterprise pattern of disseminating false information, knowingly ignored Federal and State statutes governing water quality standards.
726. The actions, inactions, misrepresentations, denials, and cover ups of the Rico Defendants and Enterprise Actors satisfies the 18 U.S.C. § 1961(5) definition of “pattern of racketeering activity” of at least two acts of racketeering activity that are sufficiently related.
727. The RICO Defendants engaged in a “pattern of racketeering” because all the individual RICO Defendants and Enterprise Actors, including but not limited to the water treatment plant operators and staff, the MDEQ, and it’s employees, the MDHHS, and it’s employees, the private RICO Defendants, and their employees continuously disseminated knowingly false information by way of mail, wire, TV and other media mediums in a coordinated effort by all the RICO Defendants and Enterprise Actors stating that the Flint River drinking water had been tested, that the water was safe for use and worthy of payment, and attempting to discredit experts proclaiming Flint’s water was toxic, despite possessing both knowledge and evidence at all times

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that the Flint River water was toxic. 728. The closed end continuity element under 18 U.S.C. § 1961(5) is satisfied by the fact that water bills were mailed to Flint property owners on a monthly basis from the time of the April 2014 hookup to the free Flint River and until March 2016, when the City of Flint’s Mayor suspended the water bills. 729. The close-ended element of 18 U.S.C. § 1961(5) is satisfied because each of the individual RICO Defendants and the enterprise actors were aware, beginning in 2013, that the purpose and goal of switching to the Flint River for water supply purposes was to connect to a free source of water, bill for said water to balance the Flint budget. 730. The RICO Defendants’ and Enterprise Actors actions for over a two-year period amount to a continuous closed end pattern of racketeering within the meaning of the Civil RICO statute. 731. On June 29, 2013, Engineer private RICO Defendant ROWE met with representatives of Flint, Genesee County Drain Commissioners Office and the MDEQ to discuss:
a. using the Flint River as a water source; b. the ability to perform the necessary upgrades to the Flint Water Treatment
Plant;
c. the ability to perform quality control d. the ability for Flint to provide water to Genesee County; e. the ability to meet an April or May 2014 timeline; and f. Developing a cost analysis.
732. According to incomplete meeting minutes, “the conversation was guided with focus on engineering, regulatory, and quality aspects…” of the items previously referenced, and the following determinations were made:
a. The Flint River would be more difficult to treat, but was viable as a source; b. It was possible to engineer and construct the upgrades needed for the

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 110 of 118 Pg ID 110
treatment process; c. It was possible to perform quality control “with support from LAN
engineering which works with several water system around the state, quality control count be addressed[;]” d. The Flint Water Treatment Plant did not have the capacity to treat and distribute sufficient water to meet the needs of Flint and Genesee County; e. There were many obstacles to overcome, but completion by the April or May 2014 timeline was reachable; f. The next steps were for LAN to present Flint with a proposal that would include engineering, procurement, and construction needs for the project along with cost estimates. g. The ability to meet an April or May 2014 timeline; and h. Developing a cost analysis.
733. This 2013 meeting was actually a follow up analysis to a previously conducted Flint
River viability study performed by private Rico Defendant Rowe in 2011. The objectives and
conclusions offered by Rowe and accepted by the RICO Defendants blatantly contradicted
Rowe’s previous 2011 feasibility study that expressed major concerns that refuted the
proposition that the Flint River could be utilized as a viable primary water source.
734. It was therefore known by Enterprise Actors, The City Of Flint, MDEQ, MDHSS, and
individual Rico Defendants Emergency Managers, the Governor through the Emergency
Managers, that at the time of the 2013 Rowe/LAN engineering meeting, and Rowe’s follow up
report contradicted the original 2011 conclusions, and that at best, there were substantial steps
that needed to be taken before distributing Flint River water to Flint residents before it could be
done so safely and responsibly.
735. The 2013 Rowe report set forth an illusory plan for upgrading the Flint water treatment plant for purposes of treating the Flint River water that would be distributed. Rowe’s plan
emphasized the need to implement corrosion controls and the continued involvement of the
engineering defendants Rowe/LAN to maintain the system.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 111 of 118 Pg ID 111
736. The follow up report and plan presented by Rowe, and adopted by RICO Defendants LAN, the Emergency Manager, and Enterprise Actors MDEQ and The City of Flint, was nothing more than manufactured support from a paid and bought expert controlled and hired by the Emergency Manager and to further legitimize and bolster the switch to the Flint River and further the over-arching financial scheme of balancing Flint’s budget. 737. The necessary steps provided for in the Rowe report were never implemented prior to connecting to the Flint River on April 25, 2014 or at any time leading up the declared state of emergency in late 2015. 738. The necessary steps provided for in Rowe’s 2013 report were repeatedly said to have been implemented by MDEQ, when it was known they were not. 739. After public complaints began to apply pressure on the RICO defendants regarding Flint’s water quality, Rico Defendant Veolia was retained and controlled by the Emergency Manager and paid to once again manufacture illegitimate and unsupported findings to misrepresent Flint’s water quality met acceptable standards and was safe for use. 740. RICO Defendant Veolia issued their report which was presented to a committee of Flint’s City Council on February 18, 2015. In the report, Veolia indicated that Flint’s water was “in compliance with drinking water standards.” It also noted that “[s]afe [equals] compliance with state and federal standards and required testing.” In other words, Veolia publically declared Flint’s poisonous water safe, while knowing full well that this was not the case. 741. By taking no steps to combat corrosion prior to connecting to the Flint River on April 25, 2014, the private engineering RICO Defendants knew as a matter of fact that they were aiding the enterprise and became associated in the scheme and conspiracy of the RICO defendants to deliver and bill for untreated, toxic free water to the entire City of Flint.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 112 of 118 Pg ID 112
742. The signs of the Flint River’s toxic effects on the City’s water system began to surface almost immediately further confirming what the RICO defendants and Enterprise Actors already knew, but chose to ignore and continued to misrepresent as safe. 743. The fact that the City of Flint knowingly began distributing Flint River water without the necessary upgrades cited by the Rowe 2013 report is substantiated by Michael Glasgow’s (The Water Quality Supervisor for Flint’s water plant) correspondence to MDEQ dated April 16, 2014 directly notified MDEQ that the Flint Water Treatment Plant would not be ready to treat and/or distribute Flint River water “anytime soon”. 744. Michael Glasgow’s (who supervised the Flint Water Treatment Plant) clear warning to MDEQ and others that the Flint Treatment plant was not anywhere near ready for the Flint River transition was ignored and the Flint River became Flint’s primary water source a mere 9 days after Glasgow issued the above correspondence. 745. Almost immediately after the Flint River was connected as Flint’s primary water source on April 25, 2014, the very issues of corrosive pipe decay that were cited in the engineering reports produced by Rowe were realized when complaints began to pour in citing discolored and smelly water. 746. While Veolia proclaimed the water was safe to further the financial scheme of the enterprise, the health impacts of the Flint River were readily apparent through a substantial uptick in infant lead poisoning cases during the 2014 and 2015 years. 747. Enterprise Actor MDHHS not only failed to take action regarding the uptick in lead poisonings, but actively and intentionally tried to conceal the fact that Flint’s water supply was causing the City’s residents to become lead poisoned and infected with legionella. The wrongful and intentional acts committed by MDHHS that attempted to conceal the toxicity of Flint’s water

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 113 of 118 Pg ID 113
and the health impacts it was having on Flint’s residents are specifically set forth in paragraphs 384 to 458 of this complaint. 748. RICO defendants Wells, Peeler, Scott and Dykema entirely deviated from their roles as employees of MDHHS and through their various roles and authority conveyed through their respective positions, actively concealed and misrepresented to the public the health impacts that were known to exist in Flint Michigan. 749. As a direct and proximate cause of the Individual RICO Defendants’ actions pursuant to 18 U.S.C. 1962(c) and (d), the plaintiffs represented herein have suffered catastrophic losses to property value, the loss of business, absorbed substantial costs to repair their corroded water systems, are forced to use and or purchase bottled water with no safe water supply available in Flint for consumption or any other type of suitable use, and been forced to pay the estimated $50 million for toxic water thereby giving them sufficient standing to maintain this RICO cause of action.
COUNT XV – CONSPIRACY All Plaintiffs against All Defendants
750. Plaintiff repeats and re-alleges each and every allegation contained in this complaint herein with the same force and effect as if asserted herein. 751. The cumulative actions of the defendants set forth in great detail herein demonstrates a concerted effort was made to balance the Flint budget through the sale of toxic water from the Flint River . 752. The sale of this toxic water for a two year period produced an estimated $50 million in revenue and balanced the City’s budget at the expense of the health and safety of Flint’s residents.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 114 of 118 Pg ID 114
753. This concerted effort and repeated unlawful and wrongful acts carried out by the defendants caused Flint’s residents to be unlawfully exposed to toxic conditions for a two year period, and was followed by a relentless effort to conceal the toxic conditions from both Flint’s residents, experts, and governing authorities who were capable of, but unable to prevent the occurrence. 754. The defendants’ concerted actions were in unlawful and in violation of numerous laws and regulations including but not limited to MCLS Section 750.505 and gives rise to the numerous claims asserted herein. 755. As a direct result of these concerted actions of the defendants, the plaintiffs and entire City of Flint have suffered severe personal injuries, property damage, and other substantial financial loss which will undoubtedly worsen as the effects from this prolonged toxic lead exposure become known over the foreseeable future.
Count XVI-RELIEF FOR MEDICAL MONITORING As against all named Defendants
756. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 757. The devastating impacts of prolonged toxic lead exposure and re-exposure are well known in the scientific and medical community, and are far reaching. 758. The most obvious and visible damages are to both the infants and adults who were exposed and re-exposed to lead and the putative class who have suffered irreversible brain damage or damages to bodily organs as a direct result of being continually exposed to Flint’s water toxic water supply for over for an extended period of nearly 2 years. 759. The less obvious, but equally devastating, damages that will be caused as a direct result of the exposure and re-exposure to lead have yet to rear their ugly head.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 115 of 118 Pg ID 115
760. It is well established both medically and scientifically, that a person with an elevated blood lead level will never fully rid them self of this toxic substance. 761. The body will store lead in the bones, and also expose unborn children in utero as stated by The State of Michigan in their MDEQ Office of Drinking Water manual supplementing the State’s Safe Water Act. 762. Accordingly, it is critical that the relief obtained in this cause of action encompass the full extent of the costs and damages that will be realized as a result of this prolonged toxic exposure. This will include costs associated with medical monitoring, early diagnosis, and educational programs to apprise the plaintiffs and adults of the risks and treatment available for the medical conditions they are currently or will suffer from in the future as a result of being exposed to lead for an extended period. 763. The devastating impacts of prolonged toxic lead exposure are well known in the scientific and medical community, and are far reaching 764. Furthermore, as a result of lead being stored in the body of the infant females of the putative class and plaintiffs named herein, their unborn children will be exposed peri-natally to lead, and will be harmed as a result. 765. These damages will include irreversible brain damage, loss in IQ, and social and developmental issues including ADHD which has been undisputedly linked to infants who have been exposed to lead. 766. The Plaintiffs therefore seek damages for their unborn children, who will unfairly begin their life with less potential than they would have had absent the numerous bad acts that were carried out by the defendants named herein.

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 116 of 118 Pg ID 116
COUNT XVII- IN UTERO EXPOSURE TO UNBORN CHILDREN As against all named Defendants
767. Plaintiffs incorporate every allegation in this complaint as if fully restated herein. 768. The devastating impacts of prolonged toxic lead exposure are well known in the scientific and medical community, and in this case will be far reaching. 769. Female infants who were exposed and re-exposed to lead and members of the putative class who have suffered irreversible brain damage or damages to bodily organs as a direct result of being continually exposed to Flint’s water toxic water supply for over for an extended period of nearly 2 years, will expose their unborn children to lead. 770. It is well established both medically and scientifically, that a child or adult of child rearing age with an elevated blood lead level will never fully rid them self of this toxic substance. 771. The body will store lead in the bones, and expose children in utero as stated by The State of Michigan in their MDEQ Office of Drinking Water manual supplementing the State’s Safe Water Act. 772. Accordingly, it is critical that the relief obtained in this cause of action encompass the full extent of the costs and damages that will be realized as a result of this prolonged toxic exposure. This will include costs associated with medical monitoring, early diagnosis, and educational programs to apprise the plaintiffs of the risks and treatment available for the medical conditions they are currently or will suffer from in the future as a result of being exposed to lead for an extended period. 773. Furthermore, as a result of lead being stored in the body of the victims and plaintiffs named herein, their unborn children will be exposed peri-natally to lead, and will be harmed as

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 117 of 118 Pg ID 117
a result. 774. These damages to the unborn putative class members will include irreversible brain damage, loss in IQ, and social and developmental issues including ADHD which has been undisputedly linked to infants who have been exposed to lead. 775. The Plaintiffs therefore seek damages for their unborn children, who will unfairly begin their life with less potential than they would have had absent the numerous bad acts that were carried out by the defendants named herein.
RELIEF REQUESTED
WHEREFORE, Plaintiffs request that the Court grant them:
a. An order certifying one or more classes pursuant to Fed. R. Civ. P. 23;
b. An order declaring the conduct of Defendants unconstitutional; c. An order declaring the Defendants liable for each Cause of Action as stated
above; d. Compensatory damages, including for injuries to person and property as
outlined herein; e. Treble damages for property damage, loss of business, and financial loss
under the Civil Rico Statute. f. Legal Fees and Attorney’s fees under the Civil RICO Statute g. Compensatory damages for unjust enrichment h. Compensatory damages for future costs associated with necessary medical
monitoring, early diagnosis, and future medical care. i. Consequential damages;

2:16-cv-11247-AC-APP Doc # 1 Filed 04/06/16 Pg 118 of 118 Pg ID 118

j. Punitive damages as appropriate; k. Any and all other damages as outlined above; l. Reasonable attorneys’ fees and litigation expenses; and
Such other relief as this Court may deem fair and equitable, including but not limited to injunctive relief.
JURY DEMAND
Plaintiffs hereby demand a trial by jury.

Dated: April 6, 2016

Respectfully submitted,

BERN RIPKA LLP
By: /s/ Chet Kern Chet W. Kern (Pro Hac Vice Admission Pending) Marc J. Bern, (Pro Hac Vice Admission Pending( 60 East 42nd Street, Suite 950 New York, NY 10165 (212) 702-5000 ckern@bernripka.com mbern@bernripka.com

1-800-LAW-FIRM
Ari Kresch, P-29593 26700 Lahser Road Southfield, MI 48033 (248) 565-2099 akresh@1800lawfirm.com
EXCOLO LAW PLLC
Solomon M. Radner - P73653 Excolo Law PLLC 26700 Lahser Rd. Ste 401 Southfield, MI 48033 248-291-9712 SRadner@ExcoloLaw.com

 </s> 5:16-cv-11247-JCO-MKM Doc # 67 Filed 10/06/16 Pg 1 of 67 Pg ID 1229
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LAWRENCE WASHINGTON, JR.,
individually and as next friend of five minor children, T.W., M.W.1,
C.W., M.W.2, and L.W.; et al.,

No. 5:16-cv-11247-JCO-MKM
HON. JOHN CORBETT O’MEARA

Plaintiffs,

MAG. MONA K. MAJZOUB

v

GOVERNOR RICHARD DALE SNYDER, in his individual capacity,
et al.,

Defendants.

STATE DEFENDANTS’ MOTION TO DISMISS UNDER FED. R. CIV. PROC. 12(b)(1) & (6)
ORAL ARGUMENT REQUESTED Defendants State of Michigan, Governor Rick Snyder, Dennis Muchmore, Andy Dillon, R. Kevin Clinton, Michigan Department of Environmental Quality (MDEQ), Michigan Department of Health & Human Services (MDHHS), Nick Lyon, Eden Wells, and Linda Dykema (State Defendants) move this Court to dismiss Plaintiffs’ complaint

5:16-cv-11247-JCO-MKM Doc # 67 Filed 10/06/16 Pg 2 of 67 Pg ID 1230

under Fed. R. Civ. P. 12(b)(1) and (6) for the reasons more fully

explained in the attached brief.

Respectfully submitted,

Eugene Driker (P12959) Morley Witus (P30895)
Todd R. Mendel (P55447) Special Assistant Attorneys
General for Governor Rick Snyder
Barris, Sott, Denn & Driker, PLLC.
333 W. Fort Street, Ste 1200 Detroit, Michigan 48226
Phone: (313) 965-9725 EDriker@bsdd.com
MWitus@bsdd.com TMendel@bsdd.com

/s/ Zachary C. Larsen
Richard S. Kuhl (P42042) Margaret A. Bettenhausen (P75046)
Nate Gambill (P75506) Zachary Larsen (P72189)
Assistant Attorneys General Attorneys for State Defendants
Environment, Natural Resources, and Agriculture Division
P.O. Box 30755 Lansing, MI 48909
(517) 373-7540 kuhlr@michigan.gov
bettenhausenm@michigan.gov gambilln@michigan.gov
larsenz@michigan.gov

Dated: October 6, 2016

2

5:16-cv-11247-JCO-MKM Doc # 67 Filed 10/06/16 Pg 3 of 67 Pg ID 1231

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

LAWRENCE WASHINGTON, JR., individually and as next friend of five minor children, T.W., M.W.1, C.W., M.W.2, and L.W.; et al.,
Plaintiffs,
v

No. 5:16-cv-11247-JCO-MKM
HON. JOHN CORBETT O’MEARA
MAG. MONA K. MAJZOUB

GOVERNOR RICHARD DALE SNYDER, in his individual
capacity, et al.,

Defendants.
__________________________________________________________________________________________________________________/
BRIEF IN SUPPORT OF STATE DEFENDANTS’ MOTION TO DISMISS
UNDER FED. R. CIV. P. 12(b)(1) & (b)(6)

Eugene Driker (P12959) Morley Witus (P30895) Todd R. Mendel (P55447) Special Assistant Attorneys General for Governor Rick Snyder Barris, Sott, Denn & Driker, PLLC 333 W. Fort Street, Suite 1200 Detroit, Michigan 48226 Phone: (313) 965-9725 EDriker@bsdd.com MWitus@bsdd.com TMendel@bsdd.com
Dated: October 6, 2016

Richard S. Kuhl (P42042) Margaret A. Bettenhausen (P75046)
Nathan A. Gambill (P75506) Zachary C. Larsen (P72189)
Assistant Attorneys General Environment, Natural Resources,
and Agriculture Division Attorneys for State Defendants
525 W. Ottawa Street P.O. Box 30755
Lansing, MI 48909 Phone: (517) 373-7540
Fax: (517) 373-1610 kuhlr@michigan.gov
bettenhausenm@michigan.gov gambilln@michigan.gov
larsenz@michigan.gov

1

5:16-cv-11247-JCO-MKM Doc # 67 Filed 10/06/16 Pg 4 of 67 Pg ID 1232
TABLE OF CONTENTS
Page Table of Contents.........................................................................................i
Concise Statement of Issues Presented .................................................... iv
Table of Authorities ................................................................................... vi
Introduction ................................................................................................ 1
Statement of Facts......................................................................................2
Argument .................................................................................................... 7
I. This Court lacks jurisdiction over the federal claims and should decline to exercise supplemental jurisdiction over the state-law claims. ................................................................................ 7
A. Plaintiffs’ federal claims are precluded by the Safe Drinking Water Act..................................................................8
1. This Court has already determined that the Safe Drinking Water Act is the sole federal remedy for grievances about the failure to provide safe drinking water. ............................................................... 9
2. Plaintiffs’ claims here should be treated the same as those in Boler. ........................................................... 11
B. State Defendants are entitled to Eleventh Amendment immunity from suit. ............................................................... 14
1. The Eleventh Amendment bars the claims against the State, MDEQ and MDHHS.......................14
2. The Eleventh Amendment also bars the claims against individual State Defendants. .......................... 15
C. The Court should decline supplemental jurisdiction because the state-law claims raise complex issues of state-law. ................................................................................ 18
i

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II. Plaintiffs have failed to state a claim for which relief may be granted. ............................................................................................ 20
A. The individual State Defendants are entitled to federal qualified immunity.................................................................20
1. Qualified immunity requires Plaintiffs to plead facts showing that the individual State Defendants violated clearly established rights. .......... 21
2. Plaintiffs have not identified any violation of clearly established rights. ............................................ 22
B. State Defendants are entitled to immunity on the state-law claims......................................................................25
1. The State and its agencies are immune.......................26
2. Individual State Defendants are also immune. .......... 27
C. Plaintiffs have failed to state a claim under civil RICO. ..... 30
1. Plaintiffs have not plausibly alleged that the individual State Defendants engaged in the “conduct” of the alleged enterprise...............................32
2. Plaintiffs also cannot show a “pattern” of racketeering activity. .................................................... 34
3. Plaintiffs fail to plead sufficient “racketeering activity.” ........................................................................ 39
4. The State cannot be held liable for a RICO violation. ........................................................................ 41
D. Plaintiffs have not stated a claim for race-based discrimination under the Equal Protection Clause. ............. 43
1. Plaintiffs have not established that any individual State Defendant had authority to require the Genesee County municipalities to switch their water source. ............................................ 44
ii

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2. Because none of the Genesee County municipalities were under emergency management, they are not similarly situated. ............ 46
Conclusion and Relief Requested.............................................................48
iii

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CONCISE STATEMENT OF ISSUES PRESENTED
1. Does this Court have jurisdiction over the federal claims and should it exercise supplemental jurisdiction over the state-law claims?
a. When Congress provides remedies under a comprehensive regulatory scheme, the courts presume that Congress intended for those remedies to preclude other causes of action based on the same core grievance. Both this Court in Boler v. Earley and the First Circuit have held that the Safe Drinking Water Act has such a preclusive effect. Are Plaintiffs’ federal claims precluded by the existence of a remedy under the SDWA?
b. The State, its agencies, and its officials acting in an official capacity are entitled by the Eleventh Amendment to assert immunity from suit in federal court unless such immunity is waived or abrogated by Congress. The State has not waived immunity and Congress has not abrogated it by either § 1983 or RICO. Is the State entitled to immunity from suit on all claims brought in this case?
c. This Court should decline supplemental jurisdiction over state claims when they raise complex issues of state-law. This suit raises complex questions regarding governmental immunity. Should this Court exercise supplemental jurisdiction?
2. Do Plaintiffs’ claims fail to state a claim on which relief may be granted?
iv

5:16-cv-11247-JCO-MKM Doc # 67 Filed 10/06/16 Pg 8 of 67 Pg ID 1236
a. State officials are entitled to qualified immunity, which protects them from suit for money damages so long as they do not violate any clearly established constitutional or statutory right. Here, Plaintiffs have not identified any recognized right, let alone shown that it was violated and clearly established at the time of the violation. Are the individual State Defendants entitled to qualified immunity?
b. To state a claim under § 1962(c) of RICO, a plaintiff must allege facts to show that each defendant engaged in a pattern of racketeering activity. Plaintiffs have not alleged any facts supporting individual State Defendants’ participation in the alleged scheme, that they committed any predicate acts, nor that the alleged scheme lasted sufficiently long to constitute a “pattern” of racketeering activity. Have Plaintiffs failed to state a claim against the individual State Defendants under civil RICO?
c. The Equal Protection Clause of the 14th Amendment forbids the State from treating similarly situated persons differently without a rational basis for doing so. Plaintiffs have not alleged that the State treated similar persons differently but only that the distinct municipal governments utilized different water sources—and incorrectly compare Flint to municipalities that were not under emergency management. Have Plaintiffs failed to state a claim for a violation of Equal Protection?
v

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TABLE OF AUTHORITIES
Cases
American Transm. v. Attorney Gen., 560 N.W.2d 50 (Mich. 1997)..................................................................28
Anderson v. Creighton, 483 U.S. 635 (1987) ......................................................................... 21, 22
Ashcroft v. al-Kidd, 63 U.S. 731 (2011) ........................................................................... 21, 22
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................... 33, 34
BEG Invs., LLC v. Alberti, 34 F. Supp. 3d 68 (D.D.C. 2014) ..................................................... 24, 25
Bellant v. Snyder, __ F.3d __, 2016 WL4728026 *8. (6th Cir. 2016) ................................. 45
Brown v. Nationsbank Corp., 188 F.3d 579 (5th Cir. 1999) ................................................................. 24
Buckhannon Bd. & Care Home v. W. Va. Dep't. of Health & Human Res., 532 U.S. 598 (2001) ............................................................................... 15
Burnside-Ott Aviation Training Ctr., 941 F.2d 1220 (D.C. Cir. 1991) ............................................................. 12
Cartwright v. Marine City, 336 F.3d 487 (6th Cir. 2003) ................................................................. 21
Caudill v. Hollan, 431 F.3d 900 (6th Cir. 2005) ................................................................. 43
Coshow v. City of Escondido, 34 Cal. Rptr. 3d 19 (Cal. App. 4th 2005) .............................................. 23
vi

5:16-cv-11247-JCO-MKM Doc # 67 Filed 10/06/16 Pg 10 of 67 Pg ID 1238
County of Oakland v. City of Detroit, 784 F. Supp. 1275 (E.D. Mich. 1992) .............................................. 42, 43
Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365 (6th Cir. 2011) ................................................................. 47
Cullinan v. Abramson, 128 F.3d 301 (6th Cir. 1997) ................................................................. 24
DeFalco v. Bernas, 244 F.3d 286 (2d Cir. 2001)...................................................................31
DeSilva v. N. Shore-Long Island Jewish Health Sys., 770 F. Supp. 2d 497 (E.D.N.Y., 2011)...................................................12
Diaz v. Michigan Dep’t of Corrections, 703 F.3d 956 (6th Cir. 2013) ................................................................. 13
Doe v. Mich. Dep’t of State Police, 490 F.3d 491 (6th Cir. 2007) ................................................................. 44
Edelman v. Jordan, 415 U.S. 651 (1974) ............................................................................... 16
Ex parte Young, 209 U.S. 123 (1908) ....................................................................... passim
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ............................................................................... 44
First Capital Asset Mgmt. v. Satinwood, Inc., 385 F.3d 159 (2d Cir. 2004).............................................................38, 41
Ford Motor Co v. Dep't. of Treasury, 323 U.S. 459 (1945) ............................................................................... 16
Gil Ramirez Group, L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d 400 (5th Cir. 2015) ................................................................. 42
Golden v. City of Columbus, 404 F.3d 950 (6th Cir. 2005) ................................................................. 23
vii

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Grubbs v. Sheakley Group, Inc., 807 F.3d 785 (6th Cir. 2015) ................................................................. 31
H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989) ............................................................................... 36
In Re Estate of Beals, 871 N.W.2d 5 (2015) ........................................................................ 19, 30
Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406 (3d Cir. 1991).................................................................38
Kerrigan v. ViSalus, Inc., 112 F. Supp. 3d 580 (E.D. Mich. 2015) ............................... 31, 33, 35, 37
Kincaid v. City of Flint, 874 N.W.2d 193 (Mich. App. 2015) ....................................................... 45
Lancaster Community Hospital v. Antelope Valley Hospital District, 940 F.2d 397 (9th Cir. 1991) ................................................................. 42
Malley v. Briggs, 475 U.S. 335 (1986) ............................................................................... 22
Mansfield Apartment Owners Ass’n v. City of Mansfield, 988 F.2d 1469 (6th Cir. 1993) .............................................................. 23
Masterson v. Meade Co. Fiscal Court, 489 F. Supp. 2d 740 (W.D. Ky., 2007)...................................................16
Mattoon v. Pittsfield, 980 F.2d 1 (1st Cir. 1992)...................................................... 9, 10, 12, 13
Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981) ..................................................................................... 9
Moore v. PaineWebber, Inc., 189 F.3d 165 (2d Cir. 1999)...................................................................41
viii

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Norman v. Niagara Mohawk Power Corp., 873 F.2d 634 (2d Cir. 1989)...................................................................12
Odom v. Wayne Cty., 760 N.W.2d 217 (Mich. 2008) ................................................................ 28
Ouwinga v. Benistar419 Plan Services, 694 F.3d 783 (6th Cir. 2012) ................................................................. 31
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ........................................................................... 15, 17
Petipren v. Jaskowski, 833 N.W.2d 247 (Mich. 2013) ................................................................ 28
Quern v. Jordan, 440 U.S. 332 (1979) ............................................................................... 16
Radvansky v. City of Olmsted Falls, 395 F.3d 291 (6th Cir. 2005) ................................................................. 44
Rainieri Construction, LLC v. Taylor, 63 F. Supp. 3d 1017 (E.D. Mo. 2014) .................................................... 35
Reichle v. Howards, 132 S. Ct. 2088 (2012) ........................................................................... 21
Reves v. Ernst & Young, 507 U.S. 170 (1993) ............................................................................... 32
Richardson v. Jackson County, 443 N.W.2d 105 (Mich. 1989) ................................................................ 27
Robinson v. Detroit, 613 N.W.2d 307 (2000) .................................................................... 19, 30
Robinson v. Kidder, Peabody & Co., 674 F. Supp. 243 (E.D. Mich. 1987) ...................................................... 33
Rogers v. City of New York, 359 Fed. Appx. 201 (2d Cir. 2009) ........................................................ 42
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San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ................................................................................... 44
Saucier v. Katz, 533 U.S. 194 (2001) ......................................................................... 21, 22
Schmidt v. Fleet Bank, 16 F. Supp. 2d 340 (S.D.N.Y. 1998) ...................................................... 33
Schmuck v. United States, 489 U.S. 705 (1989) ............................................................................... 38
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) ................................................................................. 14
Smith v. Dept. of Public Health, 410 N.W.2d 749 (Mich. 1987) .......................................................... 26, 27
Smith v. Robinson, 468 U.S. 992 (1984) ......................................................................... 11, 13
Taylor v. Barkes, 135 S. Ct. 2042 (2015) ........................................................................... 21
Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834 (6th Cir. 2002) ................................................................. 22
TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783 (6th Cir. 2005) ........................................................... 47, 48
United States v. Fowler, 535 F.3d 408 (6th Cir. 2008) ................................................................. 32
United States v. Goodstein, 883 F.2d 1362 (7th Cir. 1989) ............................................................... 40
Vacco v. Quill, 521 U.S. 793 (1997) ............................................................................... 47
Vajk v. City of Iron River, Case No. 2:10-cv-114, opinion dated January 12, 2011 (E.D. Mich. 2011) ............................................................................................ 25
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Vemco, Inc. v. Camardella, 23 F.3d 129 (6th Cir., 1994) ............................................................ 37, 39
Verizon Md., Inc. v. P.S.C., 535 U.S. 635 (2002) ............................................................................... 17
Virginia Office for Protection & Advocacy v. Stewart, 563 U.S. 247 (2011) ......................................................................... 15, 17
Will v. Mich. Dep't. of State Police, 491 U.S. 58 (1989) ................................................................................. 16
Statutes 2011 P.A. 4 ................................................................................................ 45 2012 P.A. 436 ............................................................................................ 45 8 U.S.C. § 1961(5) ................................................................... 34, 35, 36, 38 11 U.S.C. § 152(8) ..................................................................................... 39 18 U.S.C. § 151.......................................................................................... 40 18 U.S.C. § 152(8) ..................................................................................... 40 18 U.S.C. § 1961(1) ............................................................................. 40, 41 18 U.S.C. § 1961(1)(D) .............................................................................. 40 18 U.S.C. § 1962(c)........................................................................ 30, 35, 39 18 U.S.C. § 1962 (d) .................................................................................. 30 18 U.S.C. § 1964(c)............................................................................ 1, 8, 18 18 U.S.C. § 1964................................................................................ passim 28 U.S.C. § 1367(c)....................................................................................19 42 U.S.C. § 300f ......................................................................................... 1 42 U.S.C. § 300g-1(b) .................................................................................. 3
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42 U.S.C. § 300g-2 ...................................................................................... 3 42 U.S.C. § 1983................................................................................ passim Mich. Comp. Laws § 117.1 ....................................................................... 46 Mich. Comp. Laws § 124.251 ................................................................... 46 Mich. Comp. Laws § 141.1444.................................................................. 47 Mich. Comp. Laws § 141.1445.................................................................. 47 Mich. Comp. Laws § 141.1552(2) ............................................................. 45 Mich. Comp. Laws § 325.1007(1) ............................................................... 3 Mich. Comp. Laws § 325.1007(4) ............................................................... 3 Mich. Comp. Laws § 333.2202(1) ............................................................. 28 Mich. Comp. Laws § 333.2202(2) ..................................................... 6, 7, 28 Mich. Comp. Laws § 333.547c ........................................................ 6, 28, 29 Mich. Comp. Laws § 333.5474c(1)......................................................26, 29 Mich. Comp. Laws § 333.5474c (3)...........................................................26 Mich. Comp. Laws § 691.1401(1)(b).........................................................29 Mich. Comp. Laws § 691.1401(b) ............................................................. 26 Mich. Comp. Laws § 691.1402.................................................................. 27 Mich. Comp. Laws § 691.1405.................................................................. 27 Mich. Comp. Laws § 691.1406.................................................................. 27 Mich. Comp. Laws § 691.1407(2) ....................................................... 26, 29 Mich. Comp. Laws § 691.1407(4) ............................................................. 27 Mich. Comp. Laws § 691.1407(5) ............................................................. 28
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Mich. Comp. Laws § 691.1407(8)(a).........................................................29 Mich. Comp. Laws § 691.1413.................................................................. 27 Mich. Comp. Laws § 691.1417.................................................................. 27 Mich. Comp. Laws § 691.1407(1) ....................................................... 26, 27 Michigan Safe Drinking Water Act, Act 399 of 1976...................... passim Rules Fed. R. Civ. P. 12(b)(1) ............................................................................. 48 Fed. R. Civ. P. 12(b)(6) ............................................................................. 48 Regulations 40 C.F.R. § 141.80.......................................................................................4 40 C.F.R. § 141.81...................................................................................4, 5 40 C.F.R. § 141.81(b) .................................................................................. 4 40 C.F.R. § 141.81(d) .............................................................................. 5, 6 Mich. Admin. Code R. 325.10410 ............................................................... 4 Mich. Admin. Code R. 325.10604f..........................................................4, 5 Mich. Admin. Code R. 325.10604f(d) ......................................................... 4 Mich. Admin. Code R. 325.10604f(2)(b) ..................................................... 4 Mich. Admin. Code R. 325.10604f(3)(c) ..................................................... 6 Mich. Admin. Code R. 325.10710a–0710d.................................................4
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Constitutional Provisions Mich. Const. art. V, § 1.............................................................................28 U.S. Const. amend. XIV, § 1.....................................................................44
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INTRODUCTION Plaintiffs’ 153-page Second Amended Complaint asserts 12 claims, including seven counts under 42 U.S.C. § 1983 (§ 1983), one count under the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1964(c), and several state tort or contract claims. But this latest attempt to repackage their allegations is not viable because this Court lacks jurisdiction and the claims fail to state a claim on which relief may be granted. Importantly, the new complaint runs afoul of this Court’s recent decision in Boler, et al. v. Earley, et al., Case No. 16-cv-10323, which instructed the plaintiffs—who, like the Plaintiffs here, had as their core grievance that they were harmed by contaminated water—that their only federal claim was under the Safe Drinking Water Act (SDWA). 42 U.S.C. § 300f et seq. Accordingly, all of Plaintiffs’ federal claims are precluded by the SDWA. Additionally, the State and its officials are immune from suit under the Eleventh Amendment. Plaintiffs also do not plead any claim for prospective injunctive relief based on an ongoing violation of federal law, so Ex parte Young is inapplicable.
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Plaintiffs also fail to state a claim because (1) State Defendants are entitled to qualified immunity since Plaintiffs cannot show that State Defendants violated any “clearly established” right under any of their asserted theories; (2) State Defendants are immune from Plaintiffs’ state-law tort claims; (3) their civil RICO claim fails to sufficiently plead as to each individual defendant, does not allege any predicate acts for these individual Defendants, or show that the alleged enterprise lasted for a sufficient duration to establish a “pattern”; and (4) their equal-protection claim fails because other municipalities were not similarly situated since they were not under emergency management and because it is premised on the inaccurate assumption that these State Defendants had authority to order other municipalities to switch their water sources.1 For all of these reasons, this Court should grant State Defendants’ motion to dismiss.
STATEMENT OF FACTS MDEQ’s regulatory role under the SDWA
1 Due to space limitations, State Defendants address only the most salient of their individual federal claims.
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The SDWA sets national standards that must be met by drinking water suppliers, such as the City of Flint. 42 U.S.C. § 300g-1(b). States may obtain primary enforcement responsibility under the SDWA (known as “primacy”) by adopting regulations that are no less stringent than the federal standards. 42 U.S.C. § 300g-2. Michigan gained primacy by enacting the Michigan Safe Drinking Water Act, Act 399 of 1976 (Act 399). The Michigan Department of Environmental Quality’s (MDEQ) Office of Drinking Water and Municipal Assistance has regulatory oversight under the SDWA for all public water supplies, including approximately 1,400 community water supplies, and 10,000 non-community water supplies.
As the owner of the public water supply, Flint is responsible under the SDWA for knowing and following all Act 399’s requirements, such as ensuring proper design, construction, operations, and maintenance, so that contaminants in tap water do not exceed the standards established by law. See, e.g., Mich. Comp. Laws § 325.1007(1). So although Michigan has some enforcement responsibilities, the City is ultimately responsible for compliance. Mich. Comp. Laws § 325.1007(4).
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In 2013, the City decided to join a new water supplier, Karegnondi Water Authority (KWA). (Second Am. Compl. ¶ 193, Pg. ID #516.) It next decided to leave the Detroit Water and Sewerage Department (DWSD) and temporarily take its water from Flint River until the KWA began operations. (Id., at ¶ 196, Pg. ID #516.) The switch necessitated decisions such as how to achieve compliance with the SDWA “Lead and Copper Rule” (LCR). See 40 C.F.R. § 141.80 et seq., and Mich. Admin. Code R. 325.10410, 325.10710a–0710d, & 325.10604f. The purpose of the LCR is to protect public health by minimizing lead and copper levels in drinking water. 40 C.F.R. § 141.81; Mich. Admin. Code R. 325.10604f(d). Once a supply has “optimized,” it is required to “continue to operate and maintain optimal corrosion control treatment. . . .” 40 C.F.R. § 141.81(b); Mich. Admin. Code R. 325.10604f(2)(b).
Because the Flint River was a new supply with chemical characteristics distinct from the water previously provided by DWSD, MDEQ believed Flint could not be required to “maintain” the previous corrosion control treatment under the LCR. Instead, MDEQ required Flint to conduct “initial monitoring” over two, six-month periods to
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determine if treatment was required, and if so, to provide information to determine the required treatment consistent with the standard SDWA imposed on every other large water system in the State and enforced through Act 399, prior to achieving corrosion control optimization. 40 C.F.R. § 141.81(d); Mich. Admin. Code R. 325.10604f(2)(d). The results of Flint’s decision to switch drinking water sources
On April 25, 2014, Flint implemented the switch to the Flint River as the City’s water source. (Second Am. Compl. ¶ 213, Pg. ID #520– 521.) The City’s residents soon began experiencing issues with the taste, smell, and odor of the water, as well as other issues. (Id. ¶¶ 252– 253, Pg. ID #526.) In the year following the switch, the City issued boil water advisories, added activated carbon to plant filters, repaired infrastructure, and flushed system components—all in consultation with MDEQ. (Id. ¶ 263, Pg. ID #527–528.)
The City also conducted the required two rounds of initial sampling to determine lead levels. 40 C.F.R. § 141.81(d); Mich. Admin. Code R. 325.10604f(2)(d). These sample results submitted by the City did not exceed the LCR’s ninetieth percentile action level of 0.015 mg/L for lead. But MDEQ advised Flint on August 17, 2015 that the City
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needed to implement corrosion control treatment measures as lead levels had risen since switching to the Flint River. Although the LCR allows a water supply to perform a corrosion control study to determine the appropriate treatment prior to implementation, 40 C.F.R. § 141.81(d); Mich. Admin. Code R. 325.10604f(3)(c), MDEQ advised Flint to forego the study and accelerate the schedule to begin treatment. (Id.) MDHHS monitored blood lead levels in Flint
While the Michigan Department of Health and Human Services (MDHHS) (formerly Department of Community Health, see Ex. 1, Executive Order) has no regulatory authority over lead levels in water, it does have responsibility to monitor blood lead levels in Michigan’s children. Mich. Comp. Laws §§ 333.567a and 333.547c. In addition, if MDHHS’s Director is not a physician, “the director shall designate a physician as chief medical executive for the department.” Mich. Comp. Laws § 333.2202(2). The Chief Medical Executive (CME) “shall be responsible to the director for the medical content of policies and programs.” Id.
MDHHS’s Director Defendant Lyon and Dr. Eden Wells, as the CME, administer the Childhood Lead Poisoning and Prevention
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Program. Defendant Lyon was acting within the scope of his employment and executive authority at all relevant times. (Second Am. Compl. ¶¶ 104–105, Pg. ID #503.) Defendant Dr. Eden Wells was appointed to the position of CME effective May 1, 2015. As the CME, she was effectively the medical “alter ego” of MDHHS Director Lyon and was responsible for the Department’s medical policies and programs. Mich. Comp. Laws § 333.2202(2). She was acting within the scope of this employment and executive authority at all relevant times. (Second Am. Compl. ¶¶ 102–103, Pg. ID #503.) Defendant Linda Dykema was director of the MDHHS Division of Environmental Health. (Id. at ¶¶ 108–109, Pg. ID #503.) She was acting within the scope of this employment and authority at all relevant times. (Id.)
ARGUMENT I. This Court lacks jurisdiction over the federal claims and
should decline to exercise supplemental jurisdiction over the state-law claims. This Court lacks jurisdiction over this case for several reasons. First, Plaintiffs’ § 1983 claims are precluded by the Safe Drinking Water Act. Additionally, the Eleventh Amendment is a jurisdictional bar to suit against State Defendants. Finally, this Court should decline
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to exercise supplemental jurisdiction over the remaining state tort and contract claims.
A. Plaintiffs’ federal claims are precluded by the Safe Drinking Water Act.
Plaintiffs’ Second Amended Complaint includes, among other claims, seven counts under § 1983, a civil RICO count under 18 U.S.C. § 1964(c), and several state tort or contract claims. But however Plaintiffs dress up their claims, the gravamen of each is the allegation that defendants failed to provide safe drinking water. As such, this Court should reach the same conclusion it did in a related action, Boler, et al. v. Earley, et al., Case No. 16-cv-10323 (E.D. Mich. 2016): “Plaintiffs’ federal remedy is under the [Safe Drinking Water Act], regardless of how their legal theories are framed in the complaint.” (Ex. 2, Order of Dismissal, Boler v. Early, pp 7–8) (emphasis in original). Accordingly, this Court should rule that all Plaintiffs’ federal claims are precluded by the SDWA, decline supplemental jurisdiction, and dismiss all claims against State Defendants. (Id. at 3 and 8.)
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1. This Court has already determined that the Safe Drinking Water Act is the sole federal remedy for grievances about the failure to provide safe drinking water.
The plaintiffs in Boler made § 1983 claims similar to those made by Plaintiffs here—various constitutionally based § 1983 claims against the State, its agencies, and the governor including (1) claiming the state impaired substantive and procedural due process rights to contract for potable water; and (2) alleging a violation of a right to be free from state-created danger. (Ex. 3, Complaint in Boler, Counts II & III.) And this Court rejected those claims, reasoning that the SDWA provided the plaintiffs’ exclusive remedy and precluded other federal claims based on alleged unsafe public drinking water.
This Court noted that in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981), the U.S. Supreme Court held that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate the congressional intent to preclude the remedy of suits under § 1983.” (Ex. 2 at *3) (quoting National Sea Clammers, 453 U.S. at 20.) Further, this Court relied on Mattoon v. Pittsfield, 980 F.2d 1 (1st Cir. 1992), where the First Circuit specifically addressed the
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interaction between the SDWA’s private cause of action and § 1983 and federal common law remedies, holding that the SDWA precluded both. (Ex. 2 at *4) (citing Mattoon, 980 F.2d at 4.)
Based on these and other cited authorities, this Court concluded that Congress occupied the field by the SDWA such that it precluded the plaintiffs’ claims. (Id. at 6–7.) The Court rejected the Boler plaintiffs’ argument that their claims should survive because they did not seek to enforce the SDWA through § 1983. (Id. at 6–7.) In doing so, the Court remarked that “[t]he label does not change the substance of plaintiffs’ claims” as “the crux of each . . . is that they have been deprived of ‘safe and potable water.’” (Id. at 7.) Because “the safety of public water systems is a field occupied by the SDWA,” this Court concluded that “Plaintiffs’ federal remedy is under the SDWA, regardless of how their legal theories are framed in the complaint.” (Id. at 7–8.) Therefore, as all federal claims were precluded by the SDWA, the Court lacked federal question jurisdiction. (Id. at 8.)
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2. Plaintiffs’ claims here should be treated the same as those in Boler.
This Court’s holding in Boler applies with equal force in this case. Several of the § 1983 claims raised in this matter are nearly identical to those in Boler. (Second Am. Compl. ¶¶ 608–623, 645–677, Pg. ID ## 612–615, 618–623.) And those that are not identical are also based on the same core assertion that the Plaintiffs have been injured because they did not receive safe and potable water. (Id. at ¶¶ 627, 637, Pg. ID ## 615, 617.) Thus, regardless of the legal theory, the claims are “virtually identical” to an SDWA claim and are therefore precluded. Smith v. Robinson, 468 U.S. 992, 1009 (1984).
Nor does Plaintiffs’ civil RICO claim change the analysis. Like all of Plaintiffs’ claims, the RICO claim is based on the allegation that defendants failed to supply safe drinking water—with the added assertion that Defendants conspired to lie about the water quality to balance the City of Flint’s budget. (Second Am. Compl. ¶¶ 550–553, 570a.i–ii, 571–574, Pg. ID 587–588, 590–592). But this nuance does not alter the core grievance, and an SDWA claim by another name must still be brought under the SDWA. (Ex. 2 at *7.)
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Indeed, both the D.C. Circuit and the Second Circuit have recognized that claims addressed by comprehensive statutory schemes providing exclusive remedies—although clothed in RICO pleadings— are precluded by the exclusive remedy Congress provided. Danielson v. Burnside-Ott Aviation Training Ctr., 941 F.2d 1220, 1226 (D.C. Cir. 1991) (“We agree . . . that the statutory scheme for administrative relief set forth by Congress in the SCA leaves no room for a RICO action . . . .”); Norman v. Niagara Mohawk Power Corp., 873 F.2d 634, 637 (2d Cir. 1989). As the Second Circuit remarked, the “[a]rtful invocation of controversial civil RICO . . . cannot conceal the reality that the gravamen of the complaint” is a claim for administrative relief under a regulatory scheme that provides an exclusive remedy. Id.; see also DeSilva v. N. Shore-Long Island Jewish Health Sys., 770 F. Supp. 2d 497, 516 (E.D.N.Y., 2011) (“[O]ther courts . . . have found civil RICO claims to be precluded where another federal statute has set forth a broad remedial scheme and where the RICO claims are based on the same facts that would allow recovery under that alternative scheme.”).
Second, as this Court explained in Boler, the First Circuit’s decision in Mattoon “found that the Safe Drinking Water Act (SDWA)
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precluded other federal remedies for unsafe public drinking water.” (Ex. 2 at *4.) That conclusion was not limited to § 1983 claims. (Id.); Mattoon, 980 F.2d at *4 (“The federal common law nuisance claims cannot escape preemption . . . .”).
Indeed, the test for preclusion, as stated by the Sixth Circuit, is whether the regulatory act’s “remedial provisions are comprehensive, which would indicate that Congress intended to exclude other remedies.” Diaz v. Michigan Dep’t of Corrections, 703 F.3d 956 (6th Cir. 2013) (emphasis added). If it appears that “Congress intended the [regulatory act] to be the exclusive avenue through which a plaintiff may assert” a claim, then “virtually identical” external claims are precluded. Smith, 468 U.S. at 1009 (addressing constitutional claims similar to the grievance under the regulatory act) (emphasis added). Therefore, the legal theory of the external claims is less significant than the determination that a regulatory scheme provides the exclusive remedy.
Both this Court and the First Circuit in Mattoon have already recognized that the SDWA is “the exclusive avenue” for asserting a claim based on the alleged failure to provide safe drinking water.
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Inventive pleading will not save Plaintiffs’ claims. Their civil RICO claim is precluded as much as their § 1983 claims.
This Court should dismiss all federal claims and dismiss all claims against State Defendants for lack of jurisdiction consistent with Boler.
B. State Defendants are entitled to Eleventh Amendment immunity from suit.
This Court must also dismiss all claims against State Defendants because State Defendants are immune from suit under the Eleventh Amendment. With few exceptions, none of which apply here, the State of Michigan, its agencies, and officials acting in their official capacity may not be sued in federal court. Therefore, this Court should dismiss all claims against State Defendants.
1. The Eleventh Amendment bars the claims against the State, MDEQ and MDHHS.
The Eleventh Amendment to the U.S. Constitution bars litigants from bringing claims in federal court against a state or its agencies with few exceptions. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). The amendment “confirm[s] the structural understanding that States entered the Union with their sovereign immunity intact,
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unlimited by Article III’s jurisdictional grant . . . .” Virginia Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 253 (2011). As a result, the states’ sovereign immunity “is a constitutional limitation on the federal judicial power established in Art[icle] III . . . .” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984). In the absence of a state’s consent or Congress abrogating that immunity, neither of which apply here, this Court lacks jurisdiction over claims made against the State and its agencies whatever the nature of the relief requested. Id. at 99–100. Jurisdiction over Plaintiffs’ claims against the State, MDEQ, and MDHHS is therefore barred.
2. The Eleventh Amendment also bars the claims against individual State Defendants.
The Eleventh Amendment’s immunity from suit is not limited solely to the State as a body politic. In addition to that core aspect of sovereign immunity, “state officers acting in their official capacity are [also] immune from suits for damages in federal court.” Buckhannon Bd. & Care Home v. W. Va. Dep't. of Health & Human Res., 532 U.S. 598, 609 n. 10 (2001). That is so because “[a] suit against a state official in his or her official capacity is not a suit against the official but rather
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is a suit against the official’s office.” Will v. Mich. Dep't. of State Police, 491 U.S. 58, 71 (1989). Moreover, “when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and [it] is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Ford Motor Co v. Dep't. of Treasury, 323 U.S. 459, 464 (1945).
In this case, the Eleventh Amendment bars jurisdiction over Plaintiffs’ “official capacity” claims against individual State Defendants (none of which seek the type of relief permitted under Ex parte Young) in the same manner as claims against the State. Neither 42 U.S.C. § 1983 nor 18 U.S.C. §1964 (RICO) abrogate state sovereign immunity. Quern v. Jordan, 440 U.S. 332, 345 (1979) (§ 1983 did not abrogate sovereign immunity); Masterson v. Meade Co. Fiscal Court, 489 F. Supp. 2d 740, 753 (W.D. Ky., 2007) (RICO claims brought against individual State Defendants in their official capacity were barred by the Eleventh Amendment). Nor has the State waived its immunity, which can occur “only where stated ‘by the most express language.’” Edelman v. Jordan, 415 U.S. 651, 671 (1974). Therefore, the Court lacks jurisdiction over
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the money damages claims against the individual State Defendants in their official capacity.
Further, Plaintiffs generically request injunctive relief in an apparent attempt to avoid the State’s immunity via Ex parte Young. (Second Am. Compl., ¶ l, Pg. ID 635). But that doctrine is inapplicable. Because Plaintiffs seek remedial damages and not prospective injunctive relief for an “ongoing violation of federal law,” this exception to State immunity does not apply.
Under Ex parte Young, 209 U.S. 123 (1908), a suit may avoid Eleventh Amendment immunity if it is one to enjoin a state official’s “ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. P.S.C., 535 U.S. 635, 645 (2002). But “Ex parte Young cannot be used to obtain an injunction requiring the payment of funds from the State’s treasury.” Virginia Office for Protection and Advocacy, 563 U.S. at 256–257. Nor is Ex parte Young applicable “when ‘the state is the real, substantial party in interest.’” Pennhurst, 465 U.S. at 101.
None of Plaintiffs’ federal claims in this matter assert an “ongoing violation of federal law” by any of the individual State Defendants; each
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requests damages based on past actions related to the City of Flint’s switching its water source in April 2014. (Second Am. Compl. ¶¶ 540, 623, 640, 651, 661, 666 & 677 Pg. ID ## 615, 618–623 & 625.) And their RICO claim permits only the recovery of damages based on an injury to “business or property” alleged to have occurred through a scheme to balance the books of the City and relating to past statements about the quality of Flint River water. 18 U.S.C. § 1964(c); (Second Am. Compl. ¶ 607, Pg. ID # 611.) While they nominally seek injunctive relief, they make no effort to support that claim nor do they tie it to any ongoing violation of federal law—or even to a specific count of the complaint. (Id., Pg. ID # 636.)
Accordingly, because Plaintiffs seek remedial damages and have not alleged any ongoing violation of federal law, Ex parte Young is inapplicable. Thus, this Court lacks jurisdiction over all of the “official capacity” claims against individual State Defendants.
C. The Court should decline supplemental jurisdiction because the state-law claims raise complex issues of state-law.
Finally, this court should decline supplemental jurisdiction over any surviving state-law claims. This Court may decline to exercise
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supplemental jurisdiction over state-law claims based on four different grounds set out in 28 U.S.C. § 1367(c): whether the claim raises a novel or complex issue of state-law, whether the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, whether the district court has dismissed all claims over which it has original jurisdiction, or whether there are other compelling reasons for declining jurisdiction.
Particularly persuasive here, these claims raise complex issues of state-law related to the viability of the claims asserted and the application of governmental immunity. Such issues include: (1) whether a gross-negligence claim may be maintained against State employees for regulatory decisions; (2) whether Plaintiffs can demonstrate that conduct by the individual State Defendants was ‘“the one most immediate, efficient, and direct cause of the injury or damage,”’ In Re Estate of Beals, 871 N.W.2d 5, 8 (2015) (emphasis added) (quoting Robinson v. Detroit, 613 N.W.2d 307, 319 (2000)), when they allege a variety of aggregating and confounding actions; and (3) the application of governmental immunity to the State, MDEQ, Governor Snyder, Director Lyons, Dr. Wells, and the other individual State
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Defendants. Accordingly, this Court should decline to exercise supplemental jurisdiction.
II. Plaintiffs have failed to state a claim for which relief may be granted. This Court should further dismiss Plaintiffs’ claims against State
Defendants because they have failed to state a claim for various reasons: first, the individual State Defendants are entitled to federal qualified immunity; second, State Defendants are immune under statelaw; third, Plaintiffs have failed to state a claim under civil RICO; and finally, they have failed to plead facts to show discrimination under the Equal Protection Clause.
A. The individual State Defendants are entitled to federal qualified immunity.
None of Plaintiffs’ allegations would allow this Court to conclude that the individual State Defendants violated a clearly established right. Therefore, they are entitled to qualified immunity.
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1. Qualified immunity requires Plaintiffs to plead facts showing that the individual State Defendants violated clearly established rights.
“When properly applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly violate the law.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015). Further, a plaintiff has the burden of establishing that a defendant is not entitled to qualified immunity. Cartwright v. Marine City, 336 F.3d 487, 490–491 (6th Cir. 2003). “[U]nless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct,” state and federal officials are shielded by immunity. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
To be “clearly established,” Plaintiffs bear the burden of showing that the right was “sufficiently clear ‘that every reasonable official would [have understood] that what he is doing violates that right.’” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (emphasis added). Moreover, “[t]his inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition . . . .” Saucier v. Katz, 533 U.S.
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194, 201 (2001). While there need not be a case directly on point, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at 741 (citing Anderson, 483 U.S. at 640 & Malley v. Briggs, 475 U.S. 335, 341 (1986)).
2. Plaintiffs have not identified any violation of clearly established rights.
Plaintiffs have not met their burden on any of their claims. First, they fail to “allege facts that show the existence of the asserted constitutional rights violation recited in the complaint and what each defendant did to violate the asserted right,” as the Sixth Circuit requires for pleading alleged violations of constitutional rights against governmental officials. Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002). Second, they cannot show that any of the rights they assert are legally recognized, let alone that the rights were both violated and “clearly” established at the time of the violation.
a. The courts have not recognized a right to safe drinking water.
The heart of each of Plaintiffs’ § 1983 claims is an asserted “right to purchase and receive safe, potable drinking water.” (Second Am.
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Compl. ¶¶ 653, 663, Pg. ID ## 620, 622.) But no courts have recognized a constitutional right to contaminant-free water. Just the opposite is true: courts have rejected claims to such a right. See, e.g., Coshow v. City of Escondido, 34 Cal. Rptr. 3d 19, 30 (Cal. App. 4th 2005) (concluding there is no fundamental right to uncontaminated drinking water). Nor is there a due-process right to continued water service based upon a contract with the utility, as Plaintiffs appear to claim. (Second Am. Compl. ¶¶ 653, 663, Pg. ID ## 620, 622). See Mansfield Apartment Owners Ass’n v. City of Mansfield, 988 F.2d 1469, 1476–1477 (6th Cir. 1993); Golden v. City of Columbus, 404 F.3d 950, 961 (6th Cir. 2005) (“there is no fundamental right to water service . . . .”).
Because courts have rejected the asserted rights on which their claims hinge, Plaintiffs can neither show a violation of such a claimed right nor that the right was “clearly established.” Consequently, the individual State Defendants are entitled to qualified immunity.
b. Plaintiffs’ RICO claim does not plausibly allege any violation of a clearly established right.
Similarly, Plaintiffs’ RICO claim does not sufficiently allege that individual State Defendants violated any clearly established right.
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As a preliminary matter, there is nothing about a civil RICO suit that alters the qualified immunity analysis. Rather, the Sixth Circuit has said in the absolute immunity context that “[i]t would be anomalous . . . if officials who are immune from suit for alleged violations of the Constitution itself should be denied immunity from suit for alleged violations of a statute that does not incorporate the Constitution—particularly a statute as amorphous as RICO.” Cullinan v. Abramson, 128 F.3d 301, 308 (6th Cir. 1997). Likewise, other circuits apply qualified immunity to RICO. See, e.g., Brown v. Nationsbank Corp., 188 F.3d 579, 587 (5th Cir. 1999). Consequently, the same standard applies to a RICO claim.
Plaintiffs fail to meet that standard. The core of Plaintiffs’ RICO allegations is their assertion that various city and state officials implicitly or expressly misrepresented the quality of Flint River water in order to continue charging high service rates so they could balance the City’s books. (Second Am. Compl. ¶ 585, Pg. ID ## 693–694.) If any right can be derived from their allegations, Plaintiffs appear to assert a right not to be charged for contaminated water. BEG Invs., LLC v.
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Alberti, 34 F. Supp. 3d 68, 81 (D.D.C. 2014) (defining the right with reference to allegedly unlawful conduct of purported RICO scheme).
But just as the courts have not recognized a right to have the government provide safe drinking water, see Argument II.A.2.a, supra, Plaintiffs have not shown that it was “clearly established” that they had a right not to be charged for allegedly unsafe water that they used. Cf. Ex. 4, Vajk v. City of Iron River, Case No. 2:10-cv-114, opinion dated January 12, 2011 (E.D. Mich. 2011) (due process rights were not violated by “readiness to serve charge” for water). Moreover, to the extent that Plaintiffs assert that the alleged RICO predicate acts constitute a violation of clearly established rights, those claims lack merit as further explained below. See Argument II.B.
Accordingly, the individual State Defendants are entitled to qualified immunity.
B. State Defendants are entitled to immunity on the state-law claims.
In addition to federal qualified immunity, the State, its agencies, and individual State Defendants are entitled to immunity as provided under Michigan law.
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1. The State and its agencies are immune. First, Plaintiffs assert a gross negligence claim against the State and its agencies. (Second Am. Compl, ¶¶ 720–735, Pg. ID ## 632–635.) But these claims are barred by immunity accorded under Mich. Comp. Laws, §§ 691.1407(1), (2) and (5). The State, MDEQ, and MDHHS are immune from tort liability when performing a governmental function. Mich. Comp. Laws § 691.1407(1). A governmental function is defined as any activity expressly or impliedly authorized by constitution, statute or other law. Mich. Comp. Laws § 691.1401(b). Significantly, a governmental function is not defined by the specific conduct of individual employees, but rather by the general activity being performed by the government agency. Smith v. Dept. of Public Health, 410 N.W.2d 749, 779 (Mich. 1987). The agencies here were performing regulatory oversight of the Flint Water System and children’s blood levels under both the federal SDWA and Michigan’s SDWA, Act 399 of 1976 and Mich. Comp. Laws §§ 333.5474c(1), (3). This general activity is authorized by both federal and state-law and is therefore a governmental function. The wrongful
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performance of an activity authorized by law is still “authorized” within the meaning of the governmental function test and does not render the activity nongovernmental or ultra vires, whether the result of negligent or intentional conduct. Richardson v. Jackson County, 443 N.W.2d 105, 108 (Mich. 1989); Smith, 410 N.W.2d at 777.
This immunity applies with few statutory exceptions—defective public highway; Mich. Comp. Laws § 691.1402; negligent operation of a motor vehicle, Mich. Comp. Laws § 691.1405; defective public building, Mich. Comp. Laws § 691.1406; operations of a government hospital, Mich. Comp. Laws § 691.1407(4); Mich. Comp. Laws § 691.1413; and a sewage disposal system event, Mich. Comp. Laws § 691.1417—which do not apply here. Further, gross negligence is not an exception to the agencies’ immunity but applies only to lower level employees. Thus, the State and its agencies are immune. Mich. Comp. Laws § 691.1407(1).
2. Individual State Defendants are also immune. The individual State Defendants are also immune. Governor Snyder, his Chief of Staff Muchmore2 and Dr. Wells, are accorded
2 Defendant Muchmore, as Chief of Staff (Second Am. Compl. ¶ 67), is the highest appointed official in the Governor’s Office.
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absolute immunity from liability as the highest elective and appointive executive officials of state government acting in the scope of their executive authority. Mich. Comp. Laws § 691.1407(5); Mich. Const. art. V, § 1; Mich. Comp. Laws, §§ 333.2202(2) and 333.547c. Moreover, although not named with respect to Count XII, MDHHS Director Lyon, as the highest appointed official, is similarly immune. Mich. Comp. Laws § 333.2202(1).
The acts complained of here fall within Governor Snyder’s, Dennis Muchmore’s and Dr. Well’s respective executive authority. (Second Am. Compl. ¶¶ 62–63, 67, 101–102.) Michigan defines executive authority as “all authority vested in the highest executive official by virtue of his or her position in the executive branch.” Petipren v. Jaskowski, 833 N.W.2d 247, 257 (Mich. 2013). And this immunity extends to all tort claims whether based on negligence or intentional conduct. Id.; American Transm. v. Attorney Gen., 560 N.W.2d 50, 53 (Mich. 1997); Odom v. Wayne Cty., 760 N.W.2d 217, 228 (Mich. 2008). Governor Snyder, his Chief of Staff Defendant Muchmore, and the State’s Chief Medical Executive Dr. Wells are therefore absolutely immune from liability on the state-law tort claims.
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Further, Defendant Linda Dykema has qualified immunity. Lower level government employees are accorded immunity under Mich. Comp. Laws § 691.1407(2) when acting on behalf of a governmental agency and when: (1) the employee believes he or she is acting within the scope of his or her authority; (2) the governmental agency is engaged in the exercise or discharge of a governmental function; and (3) the employee’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage.
Here, all three elements are met. Defendant Dykema was acting within the authority granted by virtue of her employment and the law. Mich. Comp. Laws §§ 333.5474c(1), (3). MDHSS was engaged in the discharge of a governmental function—an activity authorized by constitution, statute, or other law. Mich. Comp. Laws § 691.1401(1)(b); Mich. Comp. Laws §§ 333.547c(1), (3). Further, the conduct alleged does not rise to the level of gross negligence, which is defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Mich. Comp. Laws § 691.1407(8)(a). No facts pled here support the conclusion that Defendant Dykema, an employee of the MDHSS, had any role in the regulation of the Flint
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water system, deciding the source of the water for that system, or the treatment of the water system that resulted in corrosion within the water system and its alleged lead or bacterial contamination at various locations.
Finally, Plaintiffs cannot establish that Defendant Dykema is “the proximate cause” of the alleged injuries. For purposes of this analysis, “the proximate cause” means “the one most immediate, efficient, and direct cause preceding an injury.” Robinson v. City of Detroit, 613 N.W.2d 307, 317 (Mich. 2000). Applied here, Plaintiffs allege multiple confounding factors contributing to their claimed injuries and, at best, Defendant Dykema is in a position similar to the defendant in Beals, who the Michigan Supreme Court held did not meet this standard. Beals, 871 N.W.2d at 12–13. This claim must be dismissed.
C. Plaintiffs have failed to state a claim under civil RICO.
This Court should also dismiss Count II because Plaintiffs have failed to state a claim for “civil RICO” violations under either 18 U.S.C. §§ 1962(c) or (d).
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To state a claim under § 1962(c) of RICO, a plaintiff must plead the “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Ouwinga v. Benistar, 419 Plan Services, 694 F.3d 783, 791 (6th Cir. 2012). Importantly, these requirements must be established with respect to each individual defendant. Kerrigan v. ViSalus, Inc., 112 F. Supp. 3d 580 (E.D. Mich. 2015); see also DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001). A claim under § 1962(d) requires all of these same elements with added proof of a conspiracy, or “an illicit agreement to violate the substantive RICO provision.” Grubbs v. Sheakley Group, Inc., 807 F.3d 785 (6th Cir. 2015).
Plaintiffs have not sufficiently pled any of these elements concerning the individual State Defendants. Most notably, they have not alleged any predicate acts committed by the individual State Defendants, and those predicate acts claimed to be committed by the enterprise generally are legally insufficient. Therefore, their civil RICO claims must fail.
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1. Plaintiffs have not plausibly alleged that the individual State Defendants engaged in the “conduct” of the alleged enterprise.
Plaintiffs generically allege that the individual State Defendants participated in the alleged RICO enterprise. But their vague assertions do not “plausibly” demonstrate that State Defendants conducted or participated in the alleged enterprise.
To meet the “conduct” element, Plaintiffs must plead facts to show that “defendants conducted or participated in the conduct of the ‘enterprise's affairs,’ not just their own affairs.” Reves v. Ernst & Young, 507 U.S. 170, 185 (1993) (emphasis in original). This can be done with facts that indicate that the defendant “had some part in directing the enterprise’s affairs,” id. at 179, “either by making decisions on behalf of the enterprise or by knowingly carrying them out.” United States v. Fowler, 535 F.3d 408, 418 (6th Cir. 2008).
Plaintiffs here make the conclusory allegations that Governor “Snyder conceived, directed, controlled, facilitated, and participated in the fiscal Rico [sic] scheme,” but provide no specific facts to support this conclusion. (Pls.’ RICO Case State., Pg. ID # 641.) Plaintiffs’ factual allegations regarding Governor Snyder are limited to alleging that he
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was occasionally briefed regarding the situation in Flint and that he appointed the emergency managers. (Second Am. Compl., ¶¶ 260, 285, 346.) But the Governor’s mere appointment of the emergency managers or awareness of water quality concerns in Flint does not support the Plaintiffs’ allegations that he participated in fraudulent activity. Moreover, RICO liability generally cannot be established simply by respondeat superior. Schmidt v. Fleet Bank, 16 F. Supp. 2d 340, 351 (S.D.N.Y. 1998); Robinson v. Kidder, Peabody & Co., 674 F. Supp. 243 (E.D. Mich. 1987).
Plaintiffs make similar generic assertions in their allegations against Defendants Dillon, Clinton, and Muchmore. Because these offer “nothing more than a ‘formulaic recitation of the elements’” or are otherwise of a “conclusory nature,” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009), they do not satisfy Plaintiffs’ burden to plead facts making out a plausible claim that individual State Defendants engaged in the alleged RICO enterprise. See Kerrigan, 112 F. Supp. 3d at 603.
Nor are Plaintiffs’ allegations against MDHHS personnel— Director Nick Lyons, Dr. Eden Wells, and Linda Dykema—any less conclusory. Each of the allegations against these State Defendants
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contains similar conclusory assertions, with the added statement that the employees “perpetuated this scheme . . . by recklessly coordinating, participating, and facilitating MDHHS’ policy to intentionally coverup [sic] information and data in their possession, to withhold this, and failed to warn that after the connection to the Flint River there was a significant uptick in the number of children in Flint with elevated blood levels in Flint [sic].” (Pls.’ RICO Case State., Pg. ID ## 667–668.)
Plaintiffs again make merely conclusory assertions of misconduct while lacking any “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Accordingly, Plaintiffs have not sufficiently pled factual content to show that each of the individual State Defendants “conducted or participated in” the alleged RICO scheme.
2. Plaintiffs also cannot show a “pattern” of racketeering activity.
Plaintiffs also have not adequately pled that the individual State Defendants engaged in a “pattern of racketeering activity.” 18 U.S.C. § 1961(5). Section 1961(5) explains that a “‘pattern of racketeering
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activity’ requires at least two acts of racketeering activity . . . .” (Emphasis added.) Plaintiffs’ complaint neither meets this minimal threshold nor pleads a “pattern” of sufficient duration under case law.
a. Plaintiffs fail to allege that individual State Defendants committed any predicate acts.
This Court recently held that “in order to sufficiently allege that a defendant violated § 1962(c), a plaintiff must allege that that particular defendant committed a pattern of predicate acts.” Kerrigan, 112 F. Supp. 3d at 605 (emphasis in original). In reliance on the plain text of 18 U.S.C. § 1962(c) and other court decisions, the Court explained that it is not enough for Plaintiffs to establish a “pattern of racketeering” by the enterprise; the “pattern” also must be established for each defendant. Id. at n. 16 (citing various cases including Rainieri Construction, LLC v. Taylor, 63 F. Supp. 3d 1017 (E.D. Mo. 2014)).
This is problematic for Plaintiffs because they do not assert that any of the individual State Defendants committed a single predicate act—let alone a “pattern of racketeering activity.” 18 U.S.C. § 1962(c); 18 U.S.C. § 1961(5). Instead, the predicate acts they allege ultimately relate to the City of Flint’s mailing of water bills or purportedly false
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statements by other individual Defendants—but not the individual State Defendants. Therefore, Plaintiffs have not stated a claim as to individual State Defendants because they have not alleged a sufficient number of predicate acts as to each defendant.
b. The alleged racketeering activity was not of sufficient duration to support a “pattern.”
Additionally, even if Plaintiffs could plausibly allege the minimum number of predicate acts, their complaint fails to establish a “pattern of racketeering activity” because of the affidavit’s insufficient duration.
The U.S. Supreme Court has explained that proving a “pattern of racketeering activity” under 18 U.S.C. § 1961(5) requires more than merely alleging the minimum of two predicate acts. Instead, “to prove a pattern of racketeering activity a plaintiff . . . must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989). The “relationship” standard requires the acts to “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise [be] interrelated by distinguishing characteristics and [not be] isolated events.” Id. at 240.
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The “continuity” element refers “either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” Id. at 241.
Here, Plaintiffs cannot demonstrate adequate “continuity.” Plaintiffs assert a “closed-ended” scheme, allegedly running from April 25, 2014 (the date of the switch to Flint River water) to March 9, 2016 (when customers were no longer charged for their water). (Compl., ¶ 586.) This, again, incorrectly assumes that the Court should look at the “pattern” of the enterprise and not the individual defendants, an approach this Court has rejected. See Kerrigan, 112 F. Supp. 3d at 605.
But even if this Court accepted Plaintiffs’ logic, this period of just over 22 months is not substantial enough to establish “continuity” and support the kind of “pattern” of “long-term criminal conduct” that RICO addresses. See Vemco, Inc. v. Camardella, 23 F.3d 129, 133–134 (6th Cir., 1994) (explaining “[t]he requirement of ‘continuity,’ or a threat of continuing criminal activity, ensures that RICO is limited to addressing Congress’s primary concern in enacting the statute, i.e. long-term criminal conduct.”). For example, the Sixth Circuit in Vemco rejected a scheme lasting 17 months, determining that it failed the continuity
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requirement. Id. at 135. And elsewhere, courts have routinely rejected cases where the distance between alleged predicate acts is less than two years. See, e.g., First Capital Asset Mgmt. v. Satinwood, Inc., 385 F.3d 159, 181 (2d Cir. 2004) (noting “this Court has never found a closedended pattern where the predicate acts spanned fewer than two years”). Consequently, Plaintiffs allegations cannot establish a “pattern of racketeering activity.” 18 U.S.C. § 1961(5).
Moreover, assuming a 22-month duration of the alleged scheme is too generous. Plaintiffs base the asserted duration of the scheme using the date of the switch to Flint water as the beginning date and the date the City stopped billing residents as the end date. (Second Am. Compl. ¶ 586, Pg. ID # 605.) But Plaintiffs make no claim that the billings themselves contained fraudulent statements. Thus, while “innocent mailings” can support mail fraud, Schmuck v. United States, 489 U.S. 705, 715 (1989), the courts have held that “in determining the duration of a scheme involving mail fraud, the relevant criminal conduct is the defendant’s deceptive or fraudulent activity, rather than otherwise innocent mailings that may continue for a long period of time.” Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1418 (3d Cir. 1991).
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Applying that case law here, Plaintiffs only allege deceptive or fraudulent statements by various members of the enterprise occurring from April 25, 2014 through September 28, 2015—a period of 17 months. (Second Am. Compl. ¶¶580.e–k.) But the Sixth Circuit rejected an identical period for insufficient “continuity.” Vemco, 23 F.3d at 133–134. Thus, no matter how the Court looks at Plaintiffs’ claims, they do not establish a “pattern of racketeering activity.” 18 U.S.C. § 1962(c).
3. Plaintiffs fail to plead sufficient “racketeering activity.”
Lastly, Plaintiffs cannot demonstrate any predicate acts of racketeering activity. As noted above, Plaintiffs must plead a “pattern of racketeering activity” against each of the individual State Defendants, and they have not done so for these defendants. More generally, the predicate acts they have alleged fail in their own right.
First, Plaintiffs’ assertion that the RICO defendants committed fraud “in contemplation” of a bankruptcy under 11 U.S.C. § 152(8) cannot establish a predicate act. Such an act is only “racketeering
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activity” if “connected with a case under title 11 . . . .” 18 U.S.C. § 1961(1)(D). But Flint had no related bankruptcy case.
Further, 18 U.S.C. § 152(8) proscribes “knowingly and fraudulently . . . mak[ing] a false entry in any recorded information (including books, documents, records, and papers) relating to the property or financial affairs of a debtor.” (Emphasis added.) That act defines a “debtor” as “a debtor concerning whom a petition has been filed under title 11.” 18 U.S.C. § 151. So there can be no bankruptcy fraud in the absence of a case under title 11. Moreover, Plaintiffs’ divorce of 18 U.S.C. § 152(8) from any actual case also ignores the purpose of the law, which is “to cover all of the possible methods by which a debtor or any other person may attempt to defeat the intent and effect of the bankruptcy law through any type of effort to keep assets from being equitably distributed among creditors.” United States v. Goodstein, 883 F.2d 1362, 1369 (7th Cir. 1989). No similar concerns are raised in the absence of a bankruptcy filing.
Additionally, Plaintiffs’ mail fraud and wire fraud allegations are insufficient as they fail to plead fraud with the requisite factual specificity. These types of allegations must follow the heightened-
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pleading standards for fraud under Fed. R. Civ. P. 9(b); Moore v. PaineWebber, Inc., 189 F.3d 165, 172 (2d Cir. 1999). Particularly, a plaintiff must “allege facts that give rise to a strong inference of fraudulent intent.” First Capital Asset Mgmt., 385 F.3d at 178 (emphasis in original). But Plaintiffs have not done so here.
Plaintiffs cite no statements by the individual State Defendants alleged to be fraudulent nor facts that would give rise to “a strong inference” of intent to commit fraud. Moreover, more broadly, to the extent that the Court considers the predicate acts on an enterprise level, Plaintiffs’ allegations against the other Defendants do not meet this standard. Therefore, Plaintiffs’ mail and wire fraud claims fail, and they have not adequately pled the existence of at least two predicate acts of “racketeering activity” under 18 U.S.C. § 1961(1).
4. The State cannot be held liable for a RICO violation.
Beyond the elements of a RICO claim, case law is clear that Plaintiffs cannot maintain a suit against the State under RICO—either directly or indirectly.
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Plaintiffs inconsistently recognize that a governmental entity cannot be held liable under RICO. Because RICO is premised on the allegation of criminal activity, numerous courts have held that governmental entities are immune from RICO liability generally because the government cannot form the required criminal intent. See, e.g., County of Oakland v. City of Detroit, 784 F. Supp. 1275, 1283 (E.D. Mich. 1992) (municipal government cannot be held liable under RICO); Gil Ramirez Group, L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d 400, 412 (5th Cir. 2015) (same); Rogers v. City of New York, 359 Fed. Appx. 201, 204 (2d Cir. 2009) (same); Lancaster Community Hospital v. Antelope Valley Hospital District, 940 F.2d 397, 404 (9th Cir. 1991) (holding that a state entity was “incapable of forming a malicious intent” for RICO purposes).
Plaintiffs appear to acknowledge this by excluding the State, MDHHS, MDEQ, and the City of Flint from the list of defendants under Count II, instead calling them “RICO enterprise actors.” (Second Am. Compl, ¶ 545, Pg. ID # 586.) At the same time, Plaintiffs allege that several of the individual defendants that are current or former employees of the State are sued both in their “individual and official
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capacities.” (Second Am. Compl. ¶¶ 62, 67, 85, 89, 92, 95, 99, 103, 109, 112, 115, Pg. ID ## 499, 501–504.)
Plaintiffs ostensibly fail to understand that suing individual State Defendants in their “official” capacities is the same as suing the State itself. Caudill v. Hollan, 431 F.3d 900 (6th Cir. 2005). Because the State cannot be held liable under RICO, County of Oakland, 784 F. Supp. at 1283, neither can Plaintiffs maintain a suit against its employees in their “official capacity” as a back-door means of suing of the State. Therefore, any RICO claims against the State—however styled—must fail.
D. Plaintiffs have not stated a claim for race-based discrimination under the Equal Protection Clause.
Plaintiffs also assert that Defendants (except the State of Michigan, MDEQ, and MDHHS) violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Plaintiffs claim Defendants did so by requiring Flint to switch its water source to the Flint River while other Genesee County municipalities were permitted to remain on DWSD water. This claim lacks merit.
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The Equal Protection Clause prevents States from making distinctions that (1) burden a fundamental right; (2) target a suspect class; or (3) intentionally treat one individual differently from others similarly situated without any rational basis. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005); U.S. Const. amend. XIV, § 1. A law that neither implicates a fundamental right nor targets a suspect class is accorded rational basis review. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973). Thus, the law need only be “rationally related to legitimate government interests,” Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 501 (6th Cir. 2007), and “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
1. Plaintiffs have not established that any individual State Defendant had authority to require the Genesee County municipalities to switch their water source.
A fundamental problem with Plaintiffs’ claim is that they have not alleged any facts to support their assertion that individual State Defendants had authority to change the water source of the Genesee
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County municipalities they identify. Because they did not, the individual State Defendants cannot be held to have discriminated based on a choice that was not theirs to make.
Indeed, Plaintiffs allege no facts supporting a claim that any individual State Defendant effectuated the change in Flint from DWSD water to the Flint River. Rather, Plaintiffs rely on Governor Snyder’s appointment of an emergency manager under the authority of P.A. 436 as creating an extension of State government. But federal law disagrees. As the Sixth Circuit recently held, emergency management under 2011 P.A. 4 or 2012 P.A. 436 is another form of local government the State is authorized to create, not an extension of State governance. Bellant v. Snyder, __ F.3d __, 2016 WL4728026 *8. (6th Cir. 2016).
Michigan law likewise rejects the claim that an act of an emergency manager is an act of the Governor. Kincaid v. City of Flint, 874 N.W.2d 193, 201 (Mich. App. 2015) (noting that “we also reject [the City of Flint’s] argument that an act of the EM is an act of the governor . . . .”). By law, an emergency manager “exercise[s] power for and on behalf of the local government”—not on behalf of individual State Defendants. Mich. Comp. Laws § 141.1552(2) (emphasis added).
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But even assuming arguendo that the individual State Defendants could make a decision for Flint, there is no basis for Plaintiffs’ claim that individual State Defendants either did make or could make a choice for the remaining municipalities. Generally, Michigan municipalities are permitted home rule, enabling them to govern their own local affairs. See Mich. Comp. Laws § 117.1, et seq. And the provision of drinking water to residents is among the issues local governments are authorized to address. See, e.g., Mich. Comp. Laws § 124.251, et seq. Thus, the Genesee municipalities provided water under a separate management structure and for separate water systems than the one at issue in Flint. Therefore, Plaintiffs’ incorrect assumption that the individual State Defendants possessed power to make a choice for these municipalities is fatal to their claim.
2. Because none of the Genesee County municipalities were under emergency management, they are not similarly situated.
Plaintiffs’ equal protection claim also fails because the allegedly “similarly situated” municipalities were not under emergency management and not similar in all material respects.
46

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The Equal Protection Clause “embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793, 799 (1997). Thus, a successful equalprotection claim requires that “the government treated the plaintiff disparately as compared to similarly situated persons.” Ctr. for BioEthical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011). “To satisfy this threshold inquiry, [a plaintiff] must allege that it and other individuals who were treated differently were similarly situated in all material respects.” TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 790 (6th Cir. 2005).
Here, Plaintiffs are residents of the City of Flint, a local unit of government that was under the administration of an emergency manager during the relevant time period. Plaintiffs allege they were disparately treated compared to the other residents of Genesee County municipalities that were not under emergency management and were not part of the Flint water system. The two are not similarly situated.
Flint underwent a rigorous evaluation to determine whether it was in a state of financial emergency. Mich. Comp. Laws § 141.1444; 1445. None of the other Genesee County municipalities did. Further,
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Flint’s financial condition is relevant to the City’s decision to switch water sources. Therefore, cities without such an emergency are not an adequate point of comparison.
Accordingly, Plaintiffs fail to make the threshold showing that they were treated differently than individuals similarly situated in all material respects—that is all citizens of the City of Flint whatever their race or ethnic background. TriHealth, Inc., 430 F.3d at 790.
CONCLUSION AND RELIEF REQUESTED For the foregoing reasons, Defendants State of Michigan, Governor Snyder, Dennis Muchmore, Andy Dillon, R. Kevin Clinton, MDEQ, MDHHS, Nick Lyon, Eden Wills, and Linda Dykema respectfully request that this Court dismiss Plaintiffs’ claims against them for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a claim under Rule 12(b)(6).

Eugene Driker (P12959)
Morley Witus (P30895) Todd R. Mendel (P55447)

Respectfully submitted,
/s/ Zachary C. Larsen Richard S. Kuhl (P42042) Margaret A. Bettenhausen (P75046) Nathan A. Gambill (P75506) Zachary C. Larsen (P72189)
48

5:16-cv-11247-JCO-MKM Doc # 67 Filed 10/06/16 Pg 66 of 67 Pg ID 1294

Special Assistant Attorneys General for Governor Rick Snyder Barris, Sott, Denn & Driker, PLLC 333 W. Fort Street, Suite 1200 Detroit, Michigan 48226 Phone: (313) 965-9725 EDriker@bsdd.com MWitus@bsdd.com TMendel@bsdd.com
Dated: October 6, 2016

Assistant Attorneys General
Environment, Natural Resources, and Agriculture Division
Attorneys for State Defendants 525 W. Ottawa Street
P.O. Box 30755 Lansing, MI 48909
Phone: (517) 373-7540 Fax: (517) 373-1610
kuhlr@michigan.gov bettenhausenm@michigan.gov
gambilln@michigan.gov larsenz@michigan.gov

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5:16-cv-11247-JCO-MKM Doc # 67 Filed 10/06/16 Pg 67 of 67 Pg ID 1295

CERTIFICATE OF SERVICE I hereby certify that on October 6, 2016 I electronically filed the

above document(s) with the Clerk of the Court using the ECF System,

which will provide electronic copies to counsel of record.

Respectfully submitted,

Eugene Driker (P12959) Morley Witus (P30895) Todd R. Mendel (P55447) Special Assistant Attorneys General for Governor Rick Snyder Barris, Sott, Denn & Driker, PLLC 333 W. Fort Street, Suite 1200 Detroit, Michigan 48226 Phone: (313) 965-9725 EDriker@bsdd.com MWitus@bsdd.com TMendel@bsdd.com
Dated:

/s/ Zachary C. Larsen Richard S. Kuhl (P42042)
Margaret A. Bettenhausen (P75046) Nathan A. Gambill (P75506)
Zachary C. Larsen (P72189) Assistant Attorneys General
Environment, Natural Resources, and Agriculture Division
Attorneys for State Defendants 525 W. Ottawa Street
P.O. Box 30755 Lansing, MI 48909
Phone: (517) 373-7540 Fax: (517) 373-1610
kuhlr@michigan.gov bettenhausenm@michigan.gov
gambilln@michigan.gov larsenz@michigan.gov

S:\CEPB3\ENRA_FlintWater\USDC-Washington (AG# 2016-0135908-A)\Pleadings\Drafts (Word Versions)\Motion and Brief in Support to Dismiss 2016-10-06

1

 </s> 5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 1 of 65 Pg ID 1593

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Lawrence Washington, Jr., et al,

Case No 5:16-cv-11247-JCO-MKM

Plaintiffs,

Hon. John Corbett O’Meara

v.

INDIVIDUAL CITY

Governor Richard Dale Snyder, et al.,

DEFENDANTS’ MOTION TO

Defendants.

DISMISS PLAINTIFFS’ SECOND

AMENDED COMPLAINT

_________________________________________________________________/

INDIVIDUAL CITY DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT

ORAL ARGUMENT REQUESTED Defendants Mike Brown, Darnell Earley, and Gerald Ambrose (“EMs”), and

Dayne Walling, Howard Croft, and Michael Glasgow (“City Officials” of the City

of Flint (“City”)) respectfully move to dismiss Plaintiffs’ Second Amended Class

Action Complaint (“Complaint”). Under Fed. R. Civ. P. 12(b)(1), the Court should

dismiss the Complaint for lack of subject-matter jurisdiction because:

1. Plaintiffs’ official-capacity claims are barred by sovereign immunity under the

Eleventh Amendment because EMs are State officers and City Officials were

employees of the City, which served as an “arm of the State.”

2. Alternatively, the federal Safe Water Drinking Act provides a comprehensive

remedial scheme, which precludes all claims under §1983. This would require

dismissal of Counts 1, 3-4, and 6-7 against the EMs and City Officials;

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5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 2 of 65 Pg ID 1594
3. Alternatively, adequate State-law remedies exist for breach of contract, which precludes any § 1983 claims alleging contract-based infringements on constitutionally protected interests. This would require dismissal of Counts 3, 6 and 7;
4. Alternatively, to the extent that Count 3 asserts a takings claim, the claim should be dismissed as unripe because Plaintiffs have failed to avail themselves of Michigan’s inverse condemnation procedure or allege why that procedure is inadequate. Alternatively, under Fed. R. Civ. P. 12(b)(6), the Court should dismiss all of
Plaintiffs’ claims as improperly and implausibly pleaded because: 1. Plaintiffs fail to plausibly plead a race-based equal protection claim, a bodily-
integrity due process claim, and substantive and procedural due process claims for deprivation of property interests for the reasons stated in the City’s Memorandum in support of the City’s Motion to Dismiss (City Mem. at 19-24); 2. Alternatively, the EMs and City Officials are otherwise entitled to qualified immunity on all § 1983 claims; 3. Plaintiffs fail to allege that they have standing to pursue a RICO claim, and the fail to allege facts establishing each element of a RICO claim against the EMs and City Officials;
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4. Plaintiffs fail to allege a viable contract claim against the EMs because there is
no privity of contract;
5. Plaintiffs negligence claim is preempted under the Michigan Safe Drinking
Water Act.
6. Alternatively, the EMs, Walling, and Croft are entitled to absolute immunity
under State law as to Plaintiffs’ State-law negligence claim; and
7. Glasgow is entitled to qualified immunity under State law as to Plaintiffs’ State-
law negligence claim.
Under E.D. Mich. L. Civ. R. 7.1(a), the Movants sought concurrence in the
relief requested, at which time they explained the nature of the Motion and its legal
bases. Plaintiff declined to concur.
Respectfully submitted,
Attorneys for Mike Brown, Darnell Earley, Gerald Ambrose, Dayne Walling, Howard Croft, and Michael Glasgow /s/ William Y. Kim WILLIAM Y. KIM (P76411) REED E. ERIKSSON (P77085) City of Flint Dept. of Law 1101 S. Saginaw, 3rd Floor Flint, MI 48502 (810)766-7146 wkim@cityofflint.com reriksson@cityofflint.com Dated: October 13, 2016
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5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 4 of 65 Pg ID 1596

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Lawrence Washington, Jr., et al,

Case No 5:16-cv-11247-JCO-MKM

Plaintiffs,

Hon. John Corbett O’Meara

v.

INDIVIDUAL CITY

Governor Richard Dale Snyder, et al.,

DEFENDANTS’ MOTION TO

Defendants.

DISMISS PLAINTIFFS’ SECOND

AMENDED COMPLAINT

_________________________________________________________________/

BRIEF IN SUPPORT OF INDIVIDUAL CITY DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT

ORAL ARGUMENT REQUESTED

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5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 5 of 65 Pg ID 1597

TABLE OF CONTENTS

Table of Contents

ii

Statement of the Issues Presented

iv

Controlling Authority Supporting Motion

vi

Index of Authorities

vii

I. Introduction

1

II. Summary of Argument

1

III. Argument

3

1. Rule 12(b)(1): The Court lacks subject-matter jurisdiction over Plaintiffs’ §

1983 claims.

3

A. Sovereign Immunity: The Eleventh Amendment bars official-capacity

claims against the EMs and City Officials.

3

B. Other Bars to Jurisdiction: Plaintiffs’ § 1983 claims are preempted by the

SDWA’s remedial scheme, Plaintiffs’ contract-based § 1983 claims are

precluded by the availability of a State-law breach-of-contract action, and their

“takings” claim is not ripe.

5

2. Rule 12(b)(6): Plaintiffs’ federal claims fail to property state a claim upon

which relief can be granted.

5

A. Count 2: Plaintiffs do not plausibly allege a RICO claim.

6

(1). Official Capacity: Plaintiffs cannot sue the EMs and the City Officials in

their official capacity.

6

(2). Plaintiffs fail to plausibly allege a RICO claim under § 1962(c).

7

(a) No Standing: Plaintiffs have failed to adequately plead statutory

standing to bring a RICO claim.

8

(i) No Injuries to Business or Property: Plaintiffs have not individually

pleaded cognizable injuries to business or property plausibly.

9

(ii) Not “By Reason Of”: Plaintiffs do not allege proximate cause. 13

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5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 6 of 65 Pg ID 1598

(b) Elements: Plaintiffs have not adequately pleaded each element of a §

1962(c) claim against each defendant.

17

(i) No Enterprise: Plaintiffs fail to plead a plausible association-in-fact

enterprise distinct from the named defendants.

18

(ii) No Racketeering Activity: Plaintiffs do not adequately allege

predicate acts of racketeering activity.

21

(A) No Bankruptcy Fraud

22

(B) No Mail and Wire Fraud

25

(1). Inadequately pleaded conduct.

27

(2). Inadequate mens rea.

29

(iii) No Pattern: Plaintiffs do not allege a sufficient pattern, even if they

adequately allege predicate acts.

32

(iv) No Conduct: Plaintiffs do allege that the EMs or the City

Defendants “conducted” the affairs of the alleged enterprise.

34

(3). Plaintiffs fail to plausibly allege a RICO claim under § 1962(d). 36

B. Count 3: Plaintiffs fail to allege a contract claim against the EMs.

38

C. Count 12: Plaintiffs’ State-law negligence claims against the EMs and the City Officials are either preempted or barred by State-law tort immunity. 39

(1). The Michigan Safe Drinking Water Act preempts common-law tort

claims under Michigan law.

39

(2). Alternatively, the EMs and City Officials are immune under the

Michigan Governmental Tort Liability Act.

41

D. Counts 1, 3-4, 6-7: The EMs and City Officials are entitled to qualified

immunity on all § 1983 claims.

44

IV. CONCLUSION

49

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5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 7 of 65 Pg ID 1599
STATEMENT OF THE ISSUES PRESENTED QUESTION NO. 1: Does the Eleventh Amendment preclude the exercise of subject-matter jurisdiction over official-capacity claims against the EMs and City Officials under § 1983?
QUESTION NO. 2: Does the comprehensive remedial scheme under the SDWA preempt the Court’s jurisdiction over the personal-capacity claims against the EMs and City Officials under § 1983?
QUESTION NO. 3: Alternatively, does the availability of State-law contract and tort claims preclude Plaintiffs’ contract-based § 1983 claims against the EMs and City Officials?
QUESTION NO. 4: Alternatively, is Plaintiffs’ “takings” claim against the EMs and City Officials unripe because State-law inverse condemnation proceedings are available?
QUESTION NO. 5: Does Count 2 fail to state a RICO claim because Plaintiffs have not adequately pleaded RICO standing, the existence of each element of a § 1962(c) claim, or the existence of a conspiratorial agreement for a § 1962(d) claim?
iv

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QUESTION NO. 6: Does Count 3 fail to state a State-law contract claim against the EMs because Plaintiffs fail to allege privity of contract between Plaintiffs and the EMs? QUESTION NO. 7: Does Count 12 fail to state a State-law negligence claim against the EMs and City Officials because they are entitled to immunity against tort claims under State law? QUESTION NO. 8: Do Counts 1, 4, and 6-7 also fail to state claims against the EMs and City Officials for the reasons argued in the City’s Memorandum in support of the City’s Motion to Dismiss?
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5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 9 of 65 Pg ID 1601
CONTROLLING AUTHORITY SUPPORTING MOTION
Immunity Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) People v. Freedland, 308 Mich. 449 (1944)
RICO Beck v. Prupis, 529 U.S. 494 (2000) Boyle v. United States, 556 U.S. 938 (2009) Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393 (6th Cir. 2012) In re ClassicStar Mare Lease Litig., 727 F.3d 473 (6th Cir. 2013); Kerrigan v. ViSalus, Inc., 112 F. Supp. 3d 580 (E.D. Mich. 2015) McCullough v. Suter, 757 F.2d 142 (7th Cir. 1985) Reves v. Ernst & Young, 507 U.S. 170 (1993)
Contract National Sand, Inc. v. Nagel Const., Inc., 182 Mich. App. 327 (1990).
Tort Preemption Millross v. Plum Hollow Golf Club, 429 Mich. 178 (1987)
Tort Immunity Kendricks v. Rehfield, 270 Mich. App. 679 (2006) M.C.L. §141.1560 M.C.L. § 691.1407
Qualified Immunity Ashcroft v. al-Kidd, 563 U.S. 731 (2011) Daily Servs., LLC v. Valentino, 756 F.3d 893 (6th Cir. 2014) Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996) Harlow v. Fitzgerald, 457 U.S. 800 (1982) Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189 (2001); Mansfield Apt. Owners Ass'n v. City of Mansfield, 988 F.2d 1469 (6th Cir. 1993) Pearson v. Callahan, 555 U.S. 223 (2009) Ramsey v. Board of Educ. of Whitley County, 844 F.3d 1268 (6th Cir. 1988) Reeners v. Bandy, Civil No. 16-01868, 2016 U.S. Dist. LEXIS 100991 (M.D.
Tenn. Aug. 2, 2016) Reichle v. Howards, 132 S. Ct. 2088 (2012)
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5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 10 of 65 Pg ID 1602
INDEX OF AUTHORITIES
Cases Alexander v. Norton Shores, 106 Mich. App. 287 (1981) .......................................11 American Biocare, Inc. v. Howard & Howard Attys, PLC, Civil No. 14-14464;
2016 U.S. Dist. LEXIS 135879 (E.D. Mich., Sept. 30, 2016) .............................16 Anderson v. Creighton, 483 U.S. 635 (1987) ..........................................................46 Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006)...........................................10 Anzaldua v. Neogen Corp., 292 Mich. App. 626 (2011) .........................................39 Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ................................................................46 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................6 BancOklahoma Mortg. Corp. v. Capital Title Co., 194 F.3d 1089 (10th Cir. 1999)
..............................................................................................................................35 Beck v. Prupis, 529 U.S. 494 (2000) .......................................................................37 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)......................................................6 Bennett v. Detroit Police Chief, 274 Mich. App. 307 (2006) ..................................43 Berg v. First Interstate Ins. Co., 915 F.2d 460 (9th Cir. 1990).................................9 Bondali v. YumA Brands, Inc., 620 F. App’x 483 (6th Cir. 2015) ..........................16 Boyle v. United States, 556 U.S. 938 (2009) ...........................................................18 Brandon v. Holt, 469 U.S. 464 (1985).......................................................................6 Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008)........................... 13, 14 Call v. Watts, 142 F.3d 432 (Table); 1998 U.S. App. LEXIS 6875 (6th Cir. Apr. 2,
1998) .......................................................................................................................7 Carter v. Berger, 777 F.2d 1173 (7th Cir. 1985).....................................................10 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001) ............................20 Coshow v. City of Escondido, 132 Cal. App. 4th 687 (2005)..................................47 County Road Ass'n of Mich. v. Governor, 287 Mich. App. 95 (2010) ....................42 Cullin v. Paine Webber Group, Inc., 689 F. Supp. 269 (S.D.N.Y. 1988) ...............20 Daily Servs., LLC v. Valentino, 756 F.3d 893 (6th Cir. 2014) ................................46 Davis v. City of Detroit, 269 Mich. App. 376 (2005) ..............................................43 Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996) .........................................47 Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68, (1993) .........................................39 Dunn v. Bennett, 303 Mich. App. 767 (2013)..........................................................38 Evans v. City of Chicago, 434 F.3d 916 (7th Cir. 2006) .........................................11 Fine v. United States, 55 F.2d 9 (7th Cir. 1932)......................................................24 First Nationwide Bank v. Gelt Funding, 27 F.3d 763 (2d Cir. 1994)......................12 Frank v. Dana Corp., 547 F.3d 564 (6th Cir. 2008)......................................... 25, 26 Greenstone v. Cambex Corp., 975 F.2d 22 (1st Cir. 1992) .....................................26 Gross v. Waywell, 628 F. Supp. 2d 475 (S.D.N.Y. 2009) ................................ 16, 28 Grubbs v. Sheakley Group, Inc., 807 F.3d 785 (6th Cir. 2015)...............................36
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5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 11 of 65 Pg ID 1603
Guaranteed Rate, Inc. v. Barr, 912 F. Supp. 2d 671 (N.D. Ill. 2012) .....................36 H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989) ................................32 Harlow v. Fitzgerald, 457 U.S. 800 (1982) .............................................................45 Harrington v. Grayson, 764 F. Supp. 464 (E.D. Mich. 1991)...................................7 Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393 (6th Cir. 2012)
...................................................................................................................... passim Hendrix v. Akin, Civil No. 15-12364; 2015 U.S. Dist. LEXIS 157031 (E.D. Mich.
Nov. 20, 2105) ......................................................................................................35 Hoerstman Gen. Contr., Inc. v. Hahn, 474 Mich. 67 (2006)...................................39 Holmes v. Securities Investor Protection Corp., 503 U.S. 258 (1992) ...................37 Imagineering, Inc. v. Kiweit Pac. Co., 976 F.2d 1303 (9th Cir. 1992) ...................11 In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 155 F. Supp. 2d 1069
(S.D. Ind. 2001) ....................................................................................................12 In re ClassicStar Mare Lease Litig., 727 F.3d 473 (6th Cir. 2013) ................. 20, 26 Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 731 F.3d 556 (6th Cir. 2013)..9, 10 Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406 (3rd Cir. 1991) ............................34 Kendricks v. Rehfield, 270 Mich. App. 679 (2006) .................................................41 Kerrigan v. ViSalus, Inc., 112 F. Supp. 3d 580 (E.D. Mich. 2015)................. passim Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128
L.Ed.2d 391 (1994).................................................................................................3 Kotteakos v. United States, 328 U.S. 750 (1946) ....................................................20 Kraft v. Detroit Entm’t, LLC, 261 Mich. App. 534 (2004)......................................39 Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397 (9th Cir.
1991) .......................................................................................................................7 Lilard v. Shelby County Bd. of Educ., 76 F.3d 716 (6th Cir. 1996) ........................48 Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189 (2001) ....................................48 Mack v. City of Detroit, 467 Mich. 186 (2002) .......................................................44 Maiden v. Rozwood, 461 Mich. 109 (1999).............................................................44 Mansfield Apt. Owners Ass'n v. City of Mansfield, 988 F.2d 1469 (6th Cir. 1993) 47 Marcilis v. Township of Redford, 693 F.3d 589 (6th Cir. 2012) .............................28 McCullough v. Suter, 757 F.2d 142 (7th Cir. 1985) ................................................20 Meadows v. City of Detroit, 164 Mich. App. 418 (1987) ........................................43 Millross v. Plum Hollow Golf Club, 429 Mich. 178 (1987) ....................... 39, 40, 41 Monell v. New York Dep’t of Soc. Servs., 436 U.S. 658 (1978) ................................6 Moon v. Harrison Piping Supply, 465 F.3d 719 (6th Cir. 2006).............................16 National Sand, Inc. v. Nagel Const., Inc., 182 Mich. App. 327 (1990) ...................38 New York Auto. Ins. Plan v. All Purpose Agency & Brokerage, Inc., Civil No. 97-
3164; 1998 U.S. Dist. LEXIS 15645 (S.D.N.Y. Oct. 6, 1998) ............................20 North Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8 (1st
Cir. 2009)..............................................................................................................26
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5:16-cv-11247-JCO-MKM Doc # 73 Filed 10/13/16 Pg 12 of 65 Pg ID 1604
Odom v. Wayne County, 482 Mich. 459 (2008) ............................................... 43, 44 Oscar v. University Students Coop. Ass’n, 965 F.2d 783 (9th Cir. 1992) (en banc)
....................................................................................................................... 11, 12 Ouwinga v. Benistar, 694 F.3d 783 (6th Cir. 2012) ............................. 16, 17, 28, 32 Payton v. City of Detroit, 211 Mich. App. 375 (1995) ............................................43 Pearson v. Callahan, 555 U.S. 223 (2009)..............................................................45 Pelfresne v. Village of Rosemont, 22 F. Supp. 2d 756 (N.D. Ill. 1998) ..................12 People v. Freedland, 308 Mich. 449 (1944)..........................................................3, 4 Petripen v. Jaskowski, 494 Mich. 190 (2013)..........................................................43 Planned Parenthood Southwest Ohio Region v. Dewine, 696 F.3d 490 (6th Cir.
2012) .....................................................................................................................47 Ramsey v. Board of Educ. of Whitley County, 844 F.3d 1268 (6th Cir. 1988). 48, 49 Reeners v. Bandy, Civil No. 16-01868, 2016 U.S. Dist. LEXIS 100991 (M.D.
Tenn. Aug. 2, 2016)..............................................................................................47 Reichle v. Howards, 132 S. Ct. 2088 (2012) ...........................................................46 Reves v. Ernst & Young, 507 U.S. 170 (1993) ........................................................34 Roberts v. Hamer, 655 F.3d 578 (6th Cir. 2011) .......................................................8 Rochin v. California, 342 U.S. 165 (1952) ..............................................................47 Roth v. Guzman, 650 F.3d 603 (6th Cir. 2011)........................................................45 Sanderson v. HCA-The Healthcare Co., 447 F.3d 873 (6th Cir. 2006) ..................16 Saro v. Brown, 11 F. App’x 387 (6th Cir. 2001) .....................................................11 Schmuck v. United States, 489 U.S. 705 (1989) ......................................................34 Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985)...................... 8, 21, 32, 33 Taffet v. Southern Co., 967 F.2d 1483 (11th Cir. 1992) ..........................................10 Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004) ........................ 14, 17 United States ex rel. Bledsoe v. Community Health Sys., Inc., 342 F.3d 634 (6th
Cir. 2003)..............................................................................................................22 United States v. Booker, 728 F.3d 535 (6th Cir. 2004) ...........................................47 United States v. Brown, 943 F.2d 1246 (10th Cir. 1991) ........................................24 United States v. Center, 853 F.2d 568 (7th Cir. 1998) ............................................24 United States v. Daniel, 329 F.3d 480 (6th Cir. 2003) ............................................26 United States v. Fowler, 535 F.3d 408 (6th Cir. 2008) ...........................................34 United States v. Haynes, 582 F.3d 686 (7th Cir. 2009) ...........................................20 United States v. Jamieson, 427 F.3d 394 (6th Cir. 2005)........................................25 United States v. McDaniel, Civil No. 05-171 ; 2006 U.S. Dist. LEXIS 21434 (W.D.
Mich. Mar. 28, 2006)............................................................................................24 United States v. Tashjian, 660 F.2d 829 (1st Cir. 1981) .........................................23 United States v. Willey, 57 F.3d 1374 (5th Cir. 1995).............................................23 VanDenBroeck v. CommonPoint Mortg. Co., 210 F.3d 696 (6th Cir. 2000) ..........19 Vemco, Inc. v. Camardella, 23 F.3d 129 (6th Cir. 1994) ........................................34
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Warren v. Manufacturers Nat’l Bank of Det., 759 F.2d 542 (6th Cir. 1985) ..........11 Washington v. Harper, 494 U.S. 210 (1990) ...........................................................47 Washington v. Starke, 173 Mich. App. 230 (1988) .................................................43 Wegoland Ltd. v. NYNEX Corp., 27 F.3d 27 (2d Cir. 1994) ..................................10 Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) .....................................3 Wilson v. Beebe, 770 F.2d 578 (6th Cir. 1985)........................................................48
Statutes 18 U.S.C. § 151 ........................................................................................................22 18 U.S.C. § 1961 ............................................................................................... 22, 32 28 U.S.C. §1367(c) ....................................................................................................3 42 U.S.C. §1983.........................................................................................................1 M.C.L § 141.1543 ......................................................................................................4 M.C.L § 141.1549 ......................................................................................................3 M.C.L § 141.1552 ......................................................................................................4 M.C.L. § 117.3 ...........................................................................................................4 M.C.L. § 141.1523 (2011) .......................................................................................24 M.C.L. § 141.1549 .................................................................................................3, 4 M.C.L. § 141.1550 .....................................................................................................4 M.C.L. § 141.1552 .....................................................................................................4 M.C.L. § 141.1571 ...................................................................................................23 M.C.L. § 325.1001, et seq........................................................................................40 M.C.L. § 325.1021 ...................................................................................................40 M.C.L. § 325.1022 ...................................................................................................40 M.C.L. § 691.1407 ...................................................................................... 41, 42, 43 M.C.L. §141.1549 ....................................................................................................42 M.C.L. §141.1560 ....................................................................................................42 M.C.L. §691.1407 ............................................................................................. 43, 44
Rules FED. R. EVID. 201 .....................................................................................................12 MICH. ADMIN. CODE R. 325.10101 et seq................................................................40 MICH. ADMIN. CODE R. 325.10401 et seq................................................................41 MICH. ADMIN. CODE R. 325.10604f.........................................................................41 MICH. ADMIN. CODE R. 325.10710a ........................................................................41 MICH. ADMIN. CODE R. 325.10710d ........................................................................41 MICH. ADMIN. CODE R. 325.11001 et seq................................................................41 MICH. ADMIN. CODE R. 325.11101 et seq................................................................41
Treatises 2A SANDS, SUTHERLAND STATUTORY CONSTRUCTION §50.05, 440-41(4th ed.).....39 Collier on Bankruptcy ¶ 7.02[8], at 7-83 (15th ed. 2005) .......................................24
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GREGORY P. JOSEPH, CIVIL RICO: A DEFINITIVE GUIDE § 10, 86 (3d ed. 2010) ......37 Wright & Miller, 5A FED. PRAC. & PROC. CIV. § 1324 (3d ed.) .............................38 Municipal Authorities FLINT, MICH. CHARTER § 4-101 .................................................................................5 FLINT, MICH. CHARTER § 4-203 .................................................................................5 FLINT, MICH., CHARTER §4-203........................................................................ 42, 43 FLINT, MICH., ORDINANCES §2-110 .........................................................................43 FLINT, MICH., ORDINANCES §2-113 .........................................................................43
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Under E.D. Mich. L. Civ. R. 7.1(d)(1)(A), Defendants Mike Brown, Darnell Earley, and Gerald Ambrose (“EMs”), and Dayne Walling, Howard Croft, and Michael Glasgow (“City Officials”) submit this Memorandum in support of their Motion to Dismiss the Complaint.
I. INTRODUCTION This is another in a series of Flint Water Crisis class actions. Beyond asserting claims under Section 1983 and claims for breach-of-contract and negligence, this case uniquely and implausibly casts the Flint Water Crisis as the intentional objective of a vast RICO conspiracy. The Court should dismiss this case, as it has the others. The Court lacks subject-matter jurisdiction over the Section 1983 claims, none of the federal claims are properly or plausibly pleaded, and the EMs and City Officials are entitled to qualified immunity. In addition, the State-law claims should also be dismissed for failure to state a claim.
II. SUMMARY OF ARGUMENT Plaintiffs assert § 1983 claims against the EMs and City Officials in their official and personal capacities. The Court lacks subject-matter jurisdiction over both kinds of claims. For official-capacity claims, EMs are State officers who enjoy sovereign immunity from official-capacity claims. The City is an “arm of the State” under the Eleventh Amendment for purposes of Flint Water Crisis litigation, such that City Officials also enjoy immunity from official-capacity claims.
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For personal-capacity claims, the federal Safe Drinking Water Act’s comprehensive remedial scheme preempts Plaintiffs’ § 1983 claims. Also, Plaintiffs’ contract-based § 1983 claims are precluded by the availability of a State-law breachof-contract action. In addition, their “takings” claim is not ripe for adjudication.
Even if the Court could exercise jurisdiction, Plaintiffs fail to plausibly state claims upon which relief can be granted.
In Count 2, Plaintiffs not only fail to allege fact sufficient to establish standing to pursue a RICO claim, but they also fail to allege any of the elements of a violation of § 1962(c) claim as to any of the EMs or City Officials. By extension, they fail to adequately allege the existence of a § 1962(d) conspiracy for want of a § 1962(c) violation and for want of a conspiratorial agreement.
In Count 3, Plaintiffs assert a contract claim against the EMs, but fail to plead privity of contract between Plaintiffs and the EMs. This is fatal to any contract claim.
In Count 12, Plaintiffs assert negligence claims against the EMs and City Officials. The claims are preempted under the Michigan Safe Drinking Water Act. Alternatively, the EMs, Walling, and Croft enjoy absolute executive governmental immunity, and Glasgow enjoys qualified executive governmental immunity. Plaintiffs have failed to plead facts in avoidance of such immunity. Accordingly, they have failed to state a negligence claim upon which relief can be granted.
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The EMs and City Officials adopt as their own the City’s arguments for Counts 1, 4, and 6-7, which explain why Plaintiffs fail to plausibly state claims for violations of substantive and procedural due process.
III. ARGUMENT 1. RULE 12(B)(1): THE COURT LACKS SUBJECT-MATTER JURISDICTION OVER
PLAINTIFFS’ § 1983 CLAIMS. Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction.” Id. The burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. Thus, Plaintiffs, not the EMs or City Officials, carry the burden of proving that the Court has jurisdiction over its claims.
A. Sovereign Immunity: The Eleventh Amendment bars official-capacity claims against the EMs and City Officials. Sovereign immunity bars § 1983 actions against State officers in their official
capacity. Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989). EMs are State officers. Under PA 436, EMs are public servants and public
officers. M.C.L. § 141.1549(9)(a)-(b). They are also held to the same standard as State officers, including constitutional officeholders. M.C.L § 141.1549(9)(c). In addition, EMs fit the definition of public official in People v. Freedland, 308 Mich. 449, 455 (1944):
A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, [a person] is invested with some portion of the sovereign functions of the government, to be exercised
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by him for the benefit of the public. The individual so invested is a public officer.1 The office of EM is created by law, M.C.L. § 141.1549, is invested with
powers and duties defined by the Legislature, M.C.L § 141.1552, which represent a
portion of the sovereign functions of government, M.C.L. § 141.1549, M.C.L. §
141.1550, M.C.L. § 141.1552, and are to be exercised for the benefit of the public
health, safety, and welfare, M.C.L § 141.1543; M.C.L. § 141.1549(2), at the pleasure
of the Governor or until impeachment and conviction by the Legislature, M.C.L. § 141.1549(3). EMs are, therefore, State public officials.2
The same is true for City Officials for purposes of this lawsuit. The City
explains why it is an arm of the State for purposes of the Eleventh Amendment in its
Memorandum supporting the City’s Motion to Dismiss. The City Officials agree
with and join the City’s arguments. (City Mem. at 9-15.) From 2011-2015, Walling
was the City’s mayor and therefore its chief executive officer. M.C.L. § 117.3(a);
1 The Freedland Court restates this test later in its opinion. Freedland, 308 Mich at 457-58. As restated, the temporal element is phrased as having “some permanency and continuity, and not [being] only temporary or occasional.” Id. at 458. Because the two formulae express the same “correct” and “accurate” test, compare id. at 455 (“correct rule”) with id. at 457 (“accurately stated” rule), the two must be read in harmony. Thus, a position has sufficient permanency and continuity, and is not temporary or occasional, if it is for a fixed time or if endures at the pleasure of the creating power. 2 If they are not State public officials, then EMs are at least officials of the municipality over which they govern and would be immune from official-capacity suits for the same reason as the City Officials.
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FLINT, MICH. CHARTER § 4-101. Similarly, Croft was the former director of the City’s Department of Public Works (“DPW”) and therefore a City officer or employee. See FLINT, MICH. CHARTER § 4-203. Glasgow was the City’s water treatment plant operator. (Compl. ¶ 77.) Because the City is an arm of the State, the City Officials are entitled to the City’s immunity in their official capacities.
B. Other Bars to Jurisdiction: Plaintiffs’ § 1983 claims are preempted by the SDWA’s remedial scheme, Plaintiffs’ contract-based § 1983 claims are precluded by the availability of a State-law breach-of-contract action, and their “takings” claim is not ripe. In its Memorandum supporting its Motion to Dismiss, the City raises four
additional bars to jurisdiction to this action, in whole or in part: (1) Plaintiffs’ § 1983 claims are preempted by the comprehensive remedial scheme provided in the federal Safe Drinking Water Act; (2) Plaintiffs’ contract-based § 1983 claims are precluded by the availability of a State-law action for breach of contract; and (3) Plaintiffs’ takings claim is not ripe for adjudication because Plaintiffs have not used Michigan’s inverse-condemnation procedure and have not alleged that the procedure is inadequate. (City Mem. at 15-17.) For judicial economy, the EM and City Officials will not restate those arguments here. Instead, they expressly agree with and adopt those arguments as their own. 2. RULE 12(B)(6): PLAINTIFFS’ FEDERAL CLAIMS FAIL TO PROPERTY STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED. A Rule 12(b)(6) motion to dismiss tests whether the well-pleaded allegations
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assert a plausible right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the non-conclusory facts allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility requires more than the sheer possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotations omitted).
A. Count 2: Plaintiffs do not plausibly allege a RICO claim. Plaintiffs have failed to plead sufficient facts to establish that they have
standing to bring a RICO claim under §§ 1962(c) or (d). They have also failed to plead sufficient facts to plausibly establish each element of these claims against each defendant. Accordingly, the Court should dismiss Count 2 under Rule 12(b)(6).
(1). Official Capacity: Plaintiffs cannot sue the EMs and the City Officials in their official capacity.
Plaintiffs have sued the EMs and City Officials in their official and personal capacities. (Compl. ¶¶ 69, 74, 76, 78.) Official-capacity lawsuits are really actions against the governmental entity of which an officer is an agent. Brandon v. Holt, 469 U.S. 464, 469-70 (1985) (quoting Monell v. New York Dep’t of Soc. Servs., 436 U.S. 658, 690, n.55 (1978)). At any level—from municipalities to the federal government—governmental agencies are not proper RICO defendants. Call v. Watts,
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142 F.3d 432 (6th Cir. 1998) (Table); 1998 U.S. App. LEXIS 6875, *5 (6th Cir. Apr. 2, 1998) (counties are not proper RICO defendants) (citing Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir. 1991) (collecting cases and holding that government agencies, including municipal corporations, cannot form criminal intent)). For the reasons argued in Part 1(A), EMs are State officers and the City Officials are officers and agents of the City. Accordingly, the officialcapacity RICO claim against the EMs is really a claim against the State, and the official-capacity RICO claims against the City Officials are really claims against the City. Such actions are impermissible and must be dismissed under Call. The EMs and the City Officials can only be sued for RICO violations in their personal capacities, which means that Plaintiffs must prove personal involvement. Harrington v. Grayson, 764 F. Supp. 464, 476 (E.D. Mich. 1991) (Cook, J.)
(2). Plaintiffs fail to plausibly allege a RICO claim under § 1962(c). Plaintiffs lack standing to sue the EMs or the City Officials under § 1962(c) because they have not plausibly pleaded an injury to their business or property proximately caused by a defendant’s pattern of racketeering activity. They have also failed to plead the elements of a RICO claim.
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(a) No Standing: Plaintiffs have failed to adequately plead statutory standing to bring a RICO claim.3
Statutory standing is analytically distinct from the question of Article III standing. Roberts v. Hamer, 655 F.3d 578, 580 (6th Cir. 2011). RICO sets a higher bar for standing than Article III. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). A RICO “plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” Id. Thus, to establish RICO standing, a plaintiff must plausibly plead four elements: (1) that the plaintiff is a “person” within the meaning of the statute; (2) that the plaintiff suffered an injury; (3) to his business or property; (4) “by reason of” a defendant’s violation of § 1962. Kerrigan v. ViSalus, Inc., 112 F. Supp. 3d 580, 602 (E.D. Mich. 2015) (Leitman, J.) A plaintiff must plausibly plead these elements with respect to each defendant. Id. Plaintiffs satisfy the person element, but the Complaint otherwise fails to plausibly plead the statutory standing elements as to each defendant.
3 In analyzing standing, the Movants assume arguendo that Plaintiffs have adequately pleaded a plausible claim under § 1962(c), including the alleged predicate acts of bankruptcy, mail, and wire fraud. The assumption is made only to underscore that standing is a separate analysis; one can properly plead the elements of RICO claim but still lack standing to bring one. Thus, the assumption is not a concession. Indeed, Plaintiffs have not adequately pleaded a claim under § 1962(c) for the reasons argued in Part 2(B)(2)(b), infra.
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(i) No Injuries to Business or Property: Plaintiffs have not individually pleaded cognizable injuries to business or property plausibly.
Absent damage to business or property, a RICO claim cannot be maintained. Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 731 F.3d 556, 562, n.2 (6th Cir. 2013); Berg v. First Interstate Ins. Co., 915 F.2d 460 (9th Cir. 1990). The Complaint alleges five kinds of injury: (1) the cost to repair the City’s water distribution system; (2) $50 million paid by property owners for water utility bills; (3); lost business; (4) lost property value; and (5) being “forced” to use or purchase bottled water because there is no safe water supply. (Compl. ¶ 607.) None of these are cognizable injuries. And, even if they were, Plaintiffs fail to plausibly plead that each of them suffered one or more of these injuries.
The Complaint does not plausibly plead that any minor-child plaintiff owned real property within the City, paid utility bills, paid property or municipal income taxes in their own name, owned a business dependent upon the supply of potable water, or used money they earned to pay for bottled water. Without these allegations, the minor-child plaintiffs lack standing and are not proper parties to the RICO claim. Even if one or more minor-child plaintiffs could make such rare allegations, their RICO claim would fail for the same reasons that the adults’ RICO claim fails.
The adults’ RICO claim fails because the Complaint does not plausibly plead cognizable injuries to any of their business or property interests.
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First, adult Plaintiffs do not allege that they hold business interests or interests in real property located within Flint. They allege only that they reside in Flint. (Compl. ¶ 58.) Without a business or property interest, Plaintiffs lack standing. Jackson, 731 F.3d at 562, n.2.
Second, adult Plaintiffs lack standing to seek recovery for the cost of repairing the City’s water distribution system. Even if such costs qualify as injury to property, the property belongs to the City from the treatment plant through the curbstop, not to the Plaintiffs. Indirect injuries are not cognizable. Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 458-461 (2006). This includes taxpayer actions alleging an injury to the property of a governmental authority to which a plaintiff pays taxes. Carter v. Berger, 777 F.2d 1173, 1174 (7th Cir. 1985).
Third, adult Plaintiffs lack standing to seek recovery of the $50 million that they and other putative class members allegedly paid for water service. Absent a right to be charged a lower rate for utilities, utility payments are not a compensable injury to business or property under RICO. See Taffet v. Southern Co., 967 F.2d 1483 (11th Cir.) (en banc), cert. denied, 506 U.S. 1021 (1992); Wegoland Ltd. v. NYNEX Corp., 27 F.3d 27 (2d Cir. 1994). The Complaint fails to allege any right to a lower rate for utilities. Moreover, Plaintiffs’ allegations amount to a public wrong, which cannot be pursued as a personal cause of action unless they can show they were hurt in a manner differently than the citizenry at large. Alexander v. Norton Shores, 106
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Mich. App. 287 (1981). This would stand in direct conflict with their class allegations that all Flint residents suffered the same injury. (Compl. ¶¶ 507-10.)
Fourth, adult Plaintiffs lack standing to allege injury from loss of business. Each is a person, not a business. As to their identity, Plaintiffs allege only that they were Flint residents during the period in question. (Compl. ¶ 58.) They do not allege that they are sole proprietors conducting business within the City and that their business lost revenue because of non-potable water. But, even if each Plaintiff owned an interest in one or more corporate entities that allegedly suffered loss to business or property, Plaintiffs would still lack standing to sue for those losses. RICO requires a plaintiff to have suffered a direct injury, Plaintiffs could not bring a shareholder derivative action for injury to businesses in which they hold an ownership interest; the claim would belong to the corporate entity. Warren v. Manufacturers Nat’l Bank of Det., 759 F.2d 542, 544 (6th Cir. 1985) (dismissing shareholder derivative RICO action because injury was to a corporate asset).
Fifth, adult Plaintiffs’ alleged loss in property value has not ripened into a RICO injury for purposes of standing. RICO injuries must be concrete financial losses, not speculative losses. Saro v. Brown, 11 F. App’x 387, 398 (6th Cir. 2001) (citing Imagineering, Inc. v. Kiweit Pac. Co., 976 F.2d 1303, 1310 (9th Cir. 1992), and Oscar v. University Students Coop. Ass’n, 965 F.2d 783, 785-87 (9th Cir. 1992) (en banc)). See also Evans v. City of Chicago, 434 F.3d 916, 932 (7th Cir. 2006) (“every court that has addressed this issue has held that injuries proffered by
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plaintiffs in order to confer RICO standing must be ‘concrete and actual,’ as opposed to speculative and amorphous”). A reduction in the value of property is “purely speculative” unless actually realized. Oscar, 965 F.2d at 787 (renter did not allege RICO injury by alleging a reduction in the value of the leased premises); First Nationwide Bank v. Gelt Funding, 27 F.3d 763, 766-68 (2d Cir. 1994) (bank that made non-recourse loans could not allege RICO injury unless and until the loans went into default or the bank had to foreclose on insufficient collateral); In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 155 F. Supp. 2d 1069, 109096 (S.D. Ind. 2001) (replacement cost for recalled tires was not a RICO injury because the plaintiffs’ tires had not yet manifested the defect giving rise to the recall); Pelfresne v. Village of Rosemont, 22 F. Supp. 2d 756, 765 (N.D. Ill. 1998) (real property owner’s future loss of fair market value is insufficient to allege a RICO injury until a decreased value is suffered in a sale). None of the Plaintiffs allege that they have sold or attempted to sell their property. Their generalized claim of diminished property values is not an injury ripe for RICO standing.
Sixth, adult Plaintiffs lack standing to seek recovery for being “forced” to “use” bottled water. If “use” differs from “purchase” and means “free,” the free use of bottled water does not state a compensable injury.4
4 The Court can and should take judicial notice that City residents have received free bottled water and filters. FED. R. EVID. 201(b)(1), (c)(2), (d).
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Finally, adult Plaintiffs have not plausibly pleaded an injury from being “forced” to “purchase” bottled water. Plaintiffs fail to allege that they paid more for bottled water than they would have paid using tap water. While one might assume bottled water costs more than tap water, the Complaint is devoid of any allegations regarding Plaintiffs’ historical water usage, or their historical patterns of purchasing of bottled water when tap water was potable, vis-à-vis the actual costs incurred with purchasing bottled water when tap water was not potable. How many units of water did Plaintiffs historically use in an average billing cycle? What were the principle uses of such water? Did they purchase water for a day, a week, a month, or longer? In what quantities did they purchase water, and what was the cost per unit of purchase? Did they receive free bottled water from the City’s relief efforts? Such allegations are necessary for the Court to determine whether this alleged injury plausibly asserts real damages to establish RICO standing, or whether Plaintiffs conserved water to such an extent that the cost of bottled water actually represented a cost savings for any one or more of these Plaintiffs.
(ii) Not “By Reason Of”: Plaintiffs do not allege proximate cause.
A plaintiff must also plead that the injury to his business or property was by reason of a defendant’s violation of the Act’s criminal prohibitions to adequately plead RICO standing. Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 641 (2008). This is another way of saying that the alleged criminal violation forming the
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basis for the action must be the proximate cause of the plaintiff’s injury. Id. at 654; Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 612-15 (6th Cir. 2004). This requires a plaintiff to show a direct injury (not a derivative one), and a causal link between the injury and the defendant’s conduct must be substantial, foreseeable, concrete, and logical, without any intervening causes. Trollinger, 370 F.3d at 614.
The alleged criminal violations are bankruptcy, mail, and wire fraud. (Compl. ¶¶ 579-81.) Plaintiffs fail to adequately plead proximate causation between their alleged injuries and the fraudulent activity alleged.
The purported bankruptcy fraud is predicated upon allege false entries knowingly made in recorded information in contemplation of bankruptcy. (Id. at ¶ 579.) The allegedly false information was “recorded” in press releases, emails and correspondence to EPA and others, and in “books, records, and papers,” relating to the structural integrity of the City’s water delivery system and the safety of water drawn from the Flint River. (Id.) Notably, the allegedly false information was purportedly “recorded” in 2014-2015 after the Governor and EM Brown allegedly contemplated bankruptcy in 2012 and decided to switch to the Flint River in 2013.5
5 (Compare Compl. ¶¶ 154, 161-166 (dating the 2012 enactment of PA 436 and the terms of office for EMs) with ¶579a (dating the first alleged predicate act of bankruptcy fraud in 2012 when the Governor allegedly “contemplated” bankruptcy), ¶ 579c (dating the second alleged predicate act in 2012 when EM Brown allegedly “contemplated” bankruptcy; no other predicate acts of contemplation are alleged), ¶¶ 193-95 (dating the decision to switch to the Flint
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Plaintiffs therefore fail to plead a causal link between the earlier contemplation of bankruptcy, the earlier injury-causing decision to switch to the Flint River, and the later false statements made after the decision and after the switch pleaded in the Complaint. And, in any event, the nature and timing of the alleged bankruptcy fraud precludes it from being a RICO violation for purposes of the RICO claims against EMs Kurtz, Earley, and Ambrose or the City Officials. None of them are alleged to have made a false statement in contemplation of bankruptcy. Indeed, under PA 436, Croft and Walling would never have contemplated bankruptcy for the City.6
The purported mail and wire fraud allegedly occurred over a series of 12 acts. (Compl. ¶¶ 580a, 580c-k, 581a-c.) Of these, Plaintiffs allege predicate acts only as to Walling, Croft, and Glasgow. (Id. at ¶¶ 580c, 580e, and 581b.) They do not allege any mail or wire fraud activity by the EMs, and therefore the activity alleged does not plead proximate cause between Plaintiffs and the EMs. (See id. at ¶¶ 580-581.)
River in April 2013), and ¶¶ 207-09, 211-15, 252-54, 257-59, 261, 270-71, 274-76, 279, 297-98, 339, 353, 361, 369, and 382 (providing examples of allegedly false statements from 2014-2015). 6 As in Note 4, supra, it is similarly assumed for argument’s sake that Plaintiffs’ factual averments about actions taken or contemplated under PA 436 are true. This is not a concession. As discussed more fully in Part 2(B)(2)(b)(iii), infra, PA 436’s “contemplation of bankruptcy” requirement does not apply in this case because PA 436 grandfathered existing EMs and previous declarations of financial emergency under PA 4 without needing to employ the new procedures in PA 436. Thus, Defendant Walling also never had occasion to contemplate bankruptcy for the City under PA 436.
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Although Plaintiff allege predicate mail and wire fraud acts against Walling,
Croft, and Glasgow, they only allege one predicate act each against Walling and Croft.7 (Id. at ¶¶ 580c and 580e.) To plead a RICO violation under § 1962(c),
Plaintiffs must prove two predicate acts per defendant. Kerrigan, 112 F. Supp. 3d at
602 (citing Gross v. Waywell, 628 F. Supp. 2d 475, 495 (S.D.N.Y. 2009) (collecting
cases requiring individualized proof of a RICO violation per defendant), Ouwinga
v. Benistar, 694 F.3d 783, 791 (6th Cir. 2012) (a § 1962(c) violation requires proof
that a defendant engaged in a pattern of racketeering activity), and Moon v. Harrison
Piping Supply, 465 F.3d 719, 723 (6th Cir. 2006) (a pattern of racketeering activity
requires two or more predicate acts)). Thus, because Plaintiffs do not plead a pattern
of racketeering activity against Walling and Croft, they have failed to plead that the
proximate cause of their injuries was a violation of § 1962(c).
7 Undoubtedly, Plaintiffs will argue that they allege more than one predicate act because they allege that the false statements constituting mail fraud were also transmitted by wire by way of radio and television. (Compl. ¶ 581a.) This generic accusation, however, fails to meet the Rule 9(b) particularity requirements, which are “rigorously enforced” in RICO cases predicated upon mail and wire fraud. American Biocare, Inc. v. Howard & Howard Attys, PLC, Civil No. 14-14464; 2016 U.S. Dist. LEXIS 135879, *25 (E.D. Mich., Sept. 30, 2016) (Rosen, J.). Rule 9(b) requires plaintiffs to plead the “who, what, when, where, and how” when alleging fraud. Bondali v. YumA Brands, Inc., 620 F. App’x 483, 488-89 (6th Cir. 2015) (citing Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006)). To have the same statements pull double duty as both mail and wire fraud, Rule 9(b) requires that Plaintiffs plead the who, what, when, where, and how of the radio or television broadcast.
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Finally, while Plaintiffs purport to allege two predicate acts of mail fraud against Glasgow, (Compl. ¶ 580c),8 they do not plead how Glasgow’s request for monitoring standards and his follow-up expression of concern about operating the City’s waterworks after receiving them are a proximate cause of their alleged injuries—i.e., that his emails were a substantial, foreseeable, concrete, and logical cause of their alleged loss of property, loss of business, cost to repair infrastructure, cost of purchasing bottled water, etc.—without any intervening causes. Trollinger, 370 F.3d at 614.
(b) Elements: Plaintiffs have not adequately pleaded each element of a § 1962(c) claim against each defendant.
In addition to adequately pleading RICO standing, a plaintiff must plead the following elements to state a RICO claim under § 1962(c): (1) that the defendant conducted; (2) an enterprise; (3) through a pattern; (4) of racketeering activity. Ouwinga, 694 F.3d at 791. As noted earlier, these elements must be pleaded as to each defendant. Kerrigan, 112 F. Supp. 3d at 602. Plaintiffs fail to plausibly plead the existence of an association-in-fact enterprise. They also fail to plausibly plead that each EM and each City Official engaged in a pattern of racketeering activity, much less that they each conducted the alleged enterprise through such a pattern.

8 See, Note 6, supra.

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(i) No Enterprise: Plaintiffs fail to plead a plausible association-in-fact enterprise distinct from the named defendants.
Plaintiffs allege an association-in-fact enterprise consisting of the governmental entities (the State, MDEQ, MDHHS, and the City) and elected and appointed officials and employees of those entities. (Compl. ¶ 545; R. 33-1, RICO Case Stmt. ¶ 6a, PageID# 684.) Such enterprises must have three structural features: (1) a common purpose; (2) relationships among those associated with the enterprise; and (3) longevity to permit those associates to pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009). The Complaint fails to plausibly allege any of these requirements.
First, Plaintiffs fail to adequately allege a common purpose. The Complaint alleges that the purpose was to carry out the “emergency fiscal scheme” to balance the City’s budget by fraudulently selling and profiteering from unsafe Flint River water and concealing unsafe conditions. (Compl. ¶ 553.) Yet, Plaintiffs allege that Glasgow opposed using the City’s water. (Id. at ¶ 580c.) They also allege that the City Officials lacked power to act on behalf of the City. (Id. at ¶¶ 27, 169.) There are no allegations that any of the City Officials knew of, or played a role in, the City’s budget. Nor are there any allegations that they knew of, or played a role in, how water rates were set or billed. Yet, without any plausible factual allegations, Plaintiffs aver that Walling’s television interview and Croft’s press release was for the purpose of implementing the fiscal scheme.
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The pleadings are similarly deficient with respect to the EMs. Plainly, the EMs acted to rectify the City’s financial emergency, as they were required to do under PA 436. Despite all of the noise around them in the Complaint, there are no allegations that any of the EMs knew the water was unsafe.
Second, the Complaint fails to plausibly plead relationships among those alleged to be associated with the enterprise. There must be some mechanism by which the group conducted its affairs or made decisions. VanDenBroeck v. CommonPoint Mortg. Co., 210 F.3d 696, 700 (6th Cir. 2000), abrogated on other grounds, Bridge, 553 U.S. at 646. None is alleged in the Complaint. Plaintiffs allege that municipal authorities were powerless to act. (Compl. ¶¶ 44-45, 169.) They also allege that the EMs were puppets of the Governor and the Treasurer. (Id. at ¶¶ 5456.) At the same time, however, they do not allege that the EMs knew about water quality concerns. And they allege that the Governor and the Treasurer were briefed only occasionally about the situation in Flint. (Id. at ¶¶ 260, 285, 346.)
Even if the Complaint is a clumsy attempt to plead a hub-and-spoke kind of enterprise, there is no concretely pleaded hub, especially if the EMs are part of the hub, since four EMs held the job five times during the period alleged in Complaint. Likewise, the Complaint does not identify the spokes, other than to conclusorily assert that the City Officials “knew” about the falsity of their alleged statements. And, in any event, there is no factual basis from which to reasonably infer that any of putative spokes knew that there were other spokes. “Rimless wheel” conspiracies
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lack the relationships necessary to satisfy this relational component of the structure requirement. New York Auto. Ins. Plan v. All Purpose Agency & Brokerage, Inc., Civil No. 97-3164; 1998 U.S. Dist. LEXIS 15645, *15 (S.D.N.Y. Oct. 6, 1998); Cullin v. Paine Webber Group, Inc., 689 F. Supp. 269, 273 (S.D.N.Y. 1988). See also, cf., Kotteakos v. United States, 328 U.S. 750, 755 (1946) (“without the rim of the wheel to enclose the spokes, a single, wheel conspiracy cannot exist but instead is a series of multiple conspiracies between the common defendant and each of the other defendants” (internal quotation omitted)); United States v. Haynes, 582 F.3d 686, 698-99 (7th Cir. 2009) (The “rim is an agreement to further a single design or purpose. For a single conspiracy to exist, the conspirators who form the wheel’s spokes must have been aware of each other and must do something in furtherance of some single, illegal enterprise.”)
Third, the Complaint violates the distinctiveness requirement. A RICO defendants and the RICO enterprise cannot be the same person simply referred to by a different name; they must be distinct. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161-164 (2001). While a corporation can serve as a RICO enterprise that a RICO defendant operates, a RICO enterprise cannot be an association of both the corporation and its employees. In re ClassicStar Mare Lease Litig., 727 F.3d 473, 490 (6th Cir. 2013); McCullough v. Suter, 757 F.2d 142, 144 (7th Cir. 1985) (Posner, J.) (a corporation acts through its employees; “you cannot associate with yourself”). Plaintiffs allege an association-in-fact enterprise consisting of
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governmental units and their elected and appointed officials. Although they acknowledge that governments cannot be sued as RICO defendants, Plaintiffs still name the State, MDEQ, MDHHS, and the City as members of the association-infact enterprise, calling them “enterprise actors.” (Compl. ¶ 545.) Stated differently, Plaintiffs do not allege that the State, MDEQ, MDHHS, or the City constitutes an enterprise run by government officials, as might be permissible under Cedric Kushner. Instead, they allege that the governmental agencies and their officials are jointly the association-in-fact enterprise, which is prohibited under ClassicStar. (Id.) This is confirmed in Plaintiffs’ RICO case statement, under a heading calling for a detailed description of the alleged enterprise: “See Section 2, setting forth the individual [] defendants and [S]ection 3 [] naming the Enterprise Actors . . . that jointly formed an association in fact enterprise . . . .” (R. 33-1, RICO Case Stmt. ¶ 6a, PageID# 684.)
(ii) No Racketeering Activity: Plaintiffs do not adequately allege predicate acts of racketeering activity.
Plaintiffs allege three types of predicate acts: (1) bankruptcy fraud, 18 U.S.C. § 152(8); (2) mail fraud, 18 U.S.C. § 1341; and (3) wire fraud, 18 U.S.C. § 1343. Because these predicates sound in fraud, Plaintiffs must satisfy the heightened particularity requirements of Rule 9(b). Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th Cir. 2012) (quoting Sedima, 473 U.S. at 496). Rule 9(b) requires “at a minimum, the ‘time, place, and content’ of the fraudulent acts, the
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existence of a fraudulent scheme, the intent of the participants in the scheme, and ‘the injury resulting from the fraud.’” Heinrich, 668 F.3d at 403 (quoting United States ex rel. Bledsoe v. Community Health Sys., Inc., 342 F.3d 634, 643 (6th Cir. 2003)). The Complaint fails to plausibly plead the elements of the alleged predicate acts with the requisite particularity.
(A) No Bankruptcy Fraud Any offense involving fraud connected with a case under Title 11 can serve as a predicate act. 18 U.S.C. § 1961(1)(D). Plaintiffs allege bankruptcy fraud under 18 U.S.C. § 152(8), which prohibits a person from knowingly and fraudulently concealing, destroying, mutilating, falsifying, or making a false entry in any recorded information relating to the property or financial affairs of a debtor after filing for bankruptcy or in contemplation of doing so. This predicate act is inadequately pleaded for four reasons. First, there is no “debtor” as required under the terms of § 152(8). The term “debtor” means “a debtor concerning whom a petition has been filed under Title 11.” 18 U.S.C. § 151. Plaintiffs acknowledge that “bankruptcy petitions for Flint were not filed.” (Compl. ¶ 549). Plaintiffs also fail to aver that any other person or entity ever filed a petition under title 11. Without an alleged “debtor,” there can be no violation of § 152(8). Plaintiffs’ emphasis on the “in contemplation” clause of § 152(8) does not save this predicate act. The clause only applies after a bankruptcy filing has been
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filed. It increases the period in which bankruptcy fraud can be committed, so long as a bankruptcy petition is ultimately filed. See e.g., United States v. Tashjian, 660 F.2d 829, 842 (1st Cir. 1981) (certain transfers of property outside the scope of “contemplation of bankruptcy” in case that included a bankruptcy filing); United States v. Willey, 57 F.3d 1374, 1380 (5th Cir. 1995) (statement in divorce affidavit that defendant considered bankruptcy years before actually filing for bankruptcy showed that his acts in the interim were in contemplation of bankruptcy). Since the City never filed for bankruptcy, § 152(8) cannot serve as a predicate act.
Second, even if § 152(8) could theoretically serve as a predicate act, it is factually impossible for it apply in this case. Plaintiffs allege “on information and belief” that PA 436 required the Governor and the EMs to contemplate bankruptcy. (Compl. ¶ 579b.) In this context, “on information and belief” really means “on Plaintiffs’ interpretation of PA 436.” They overlook, however, that the Governor first appointed an EM for Flint in 2011 under PA 4, not under PA 436, which was enacted in 2012. (See Compl. ¶¶ 150, 162). PA 436 explicitly grandfathers EMs who were appointed and serving under PA 4, without having to start the receivership process over again. M.C.L. § 141.1571. While PA 436 requires consideration of multiple choices—consent agreements, neutral evaluation, emergency management, and bankruptcy—PA 4 did not. It allowed EMs to recommend bankruptcy if “no reasonable alternative to rectifying the financial emergency of the local government . . . exists,” but it did not require EMs to contemplate bankruptcy until that point.
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M.C.L. § 141.1523 (2011). The Complaint is devoid of any allegation that there was no reasonable alternative to fixing the City’s financial emergency than bankruptcy. Instead, Plaintiffs only allege that bankruptcy was a viable alternative. (Compl. ¶¶ 547, 549.) Because existing EMs were not required to start over under PA 436, and because they were not required to contemplate bankruptcy under PA 4, Plaintiffs’ conclusory allegation “on information and belief” that the Governor and EM Brown contemplated and rejected bankruptcy is implausible.
Third, Plaintiffs fail to adequately allege that any defendant made an entry in recorded information relating to the property or financial affairs of the City (the alleged putative debtor). (Compl. ¶ 579(b).) The statute was enacted “to ensure the integrity of financial recordkeeping related to debtors.” United States v. McDaniel, Civil No. 05-171 ; 2006 U.S. Dist. LEXIS 21434, *18 (W.D. Mich. Mar. 28, 2006) (quoting COLLIER ON BANKRUPTCY ¶ 7.02[8], at 7-83 (15th ed. 2005)). “Recorded information” must include documents about a debtor’s financial condition. Id.9 Yet, Plaintiffs allege that the recorded information—“press releases, emails and
9 See also, e.g., United States v. Brown, 943 F.2d 1246, 1252-53 (10th Cir. 1991) (defendant convicted under § 152(8) for destroying financial records relating to the debtor); United States v. Center, 853 F.2d 568, 571 (7th Cir. 1998) (defendant convicted under § 152(8) for fraudulently executing documents and book entries that concealed the asset of a debtor in bankruptcy); Fine v. United States, 55 F.2d 9 (7th Cir. 1932) (defendant convicted under § 152(8) for executing false corporate minutes and a fictitious bill of sale, thereby concealing, destroying, mutilating, and falsifying books of account relating to the property of a bankrupt).
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correspondence”—was about “the structural integrity of the infrastructure of the water delivery system, and the safety of the free Flint water,” (Compl. ¶ 579(b)), not the City’s financial condition or even the value of the City’s assets.
Finally, Plaintiffs fail to adequately allege a knowingly false and fraudulent entry. Rule 9(b) requires plaintiffs to “(1) specify the statements that the plaintiff[s] contend[] were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Frank v. Dana Corp., 547 F.3d 564, 570 (6th Cir. 2008). While the Complaint specifies the Governor and EM Brown, it does not identify the statements, when they made the statements, in what recorded information the statements were entered, how the statements were false, or how the statements relate to the City’s property or financial affairs. (Compl. ¶ 579a-e.) Thus, even if this kind of bankruptcy fraud could apply in the absence of an actual bankruptcy, the Complaint lack sufficient information to plausibly plead that it occurred.
(B) No Mail and Wire Fraud Mail fraud is proven by showing “(1) a scheme to defraud, and (2) use of the mails in furtherance of the scheme.” Heinrich, 668 F.3d at 404 (quoting United States v. Jamieson, 427 F.3d 394, 402 (6th Cir. 2005)). Wire fraud is proven by the same elements, except one must use wire, radio, or television instead of the mails,
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to further the fraud. Heinrich, 668 F.3d at 404.10 A scheme to defraud “includes any plan or course of action by which someone uses false, deceptive, or fraudulent pretenses, representations, or promises to deprive someone else of money.” Id. Rule 9(b) requires a plaintiff to plead, at a minimum: (1) the false statement; (2) the identity of the speaker: (3) the time and place of the statements; and (4) the reason why the statement is false. Frank, 547 F.3d at 569-70.
“A plaintiff must also demonstrate scienter to establish a scheme to defraud, which is satisfied by showing the defendant acted either with a specific intent to defraud or with recklessness with respect to potentially misleading information.” In re ClassicStar, 727 F.3d at 484 (quoting Heinrich, 668 F.3d at 404). Plaintiffs must “not only specify[] the false statements and by whom they were made but also identify[] the basis for inferring scienter.” Heinrich, 668 F.3d at 406 (quoting North Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 13 (1st Cir. 2009)). It is not enough to generally aver knowledge of a material falsity; the complaint must “set[] forth specific facts that make it reasonable to believe that defendant knew that a statement was materially false or misleading.” Heinrich, 668 F.3d at 406 (quoting Greenstone v. Cambex Corp., 975 F.2d 22, 25 (1st Cir. 1992)).
10 Because the two statutes are so similar, cases construing one can be used to analyze the other. United States v. Daniel, 329 F.3d 480, 486, n. 1 (6th Cir. 2003).
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(1). Inadequately pleaded conduct. The Complaint generally identifies speakers, their statements, and the reasons why those statements are allegedly false. The Complaint fails, however, to allege the existence of mailings or the dates and locations of wire transmissions, and some of the “speakers” are not RICO defendants. For example, the primary predicate acts of mail fraud are the City’s posting of quarterly of water bills and a trihalomethane notice to residents through the U.S. Postal Service, which are alleged to contain false statements. (Compl. ¶¶ 580a, 580g.) The City is not, however, a RICO defendant. There is no allegation that an EM or a City Official caused the bills or the notice to be mailed to residents. Accordingly, these mailings cannot serve as predicate acts against the EMs or the City Officials. Likewise, the Complaint alleges that Glasgow wrote to MDEQ on two occasions in April 2014 seeking advice regarding monitoring requirements and expressly concern about the City’s readiness to proceed. (Compl. ¶ 580c.) Notably absent is any allegation that these writings were mailed. Thus, these writings cannot serve as a predicate act against Glasgow. And, since Plaintiffs do not implicate the EMs or the other City Officials as parties to these writings or any mailings of them, these writings cannot serve as a predicate act against them, either. Similarly, the Complaint alleges that Croft issued a false press release. (Compl. ¶ 580e.) It does not allege that the press release was mailed. Thus, it cannot
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serve as a predicate act against Croft. And, since Plaintiffs do not implicate the EMs or the other City Officials as parties to the press release or any mailing of it, the press release cannot serve as a predicate act against them, either.
These same acts are alleged as predicate acts for wire fraud because they were “also transmitted by way of [wire,] radio and television-based media sources.” (Compl. ¶¶ 581a, 581c.) This fails to meet the requirements of Rule 9(b). No factual allegations about these radio and television-based transmissions are offered. It also fails to meet the requirements of Rule 8(a). Plaintiffs do not allege which defendant transmitted or, alternatively, how they caused to be transmitted the allegedly false statements. This is impermissible group pleading. Marcilis v. Township of Redford, 693 F.3d 589, 596-97 (6th Cir. 2012).
The only wire fraud where the actus reus is specifically alleged is that Walling was interviewed on television about the switch from DWSD to the Flint River. (Compl. ¶ 581b.) But, for the reasons argued, infra, Plaintiffs fail to adequately allege the mens rea element for this predicate act.11
11 And, as explained supra at 15-18, this single act of wire fraud alleged against Walling is inadequate to establish a pattern of racketeering activity as to him As noted earlier, each RICO element must be satisfactorily pleaded as to each defendant to state a claim under § 1962(c). Kerrigan, 112 F. Supp. 3d at 602 (citing Gross, 628 F. Supp. 2d at 495 (collecting cases that individualize proof per defendant is required), and Ouwinga, 694 F.3d at 791 (requiring proof that a defendant engaged in a pattern of racketeering activity)).
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(2). Inadequate mens rea. The Complaint does not aver specific facts from which the Court can infer that the City Officials knew their statements were materially false or misleading. Indeed, the Complaint does just the opposite, alleging that the City (and therefore its officials) lacked decision-making power and control. In describing the fraudulent scheme, Plaintiffs allege that “the City of Flint, under the State’s control, was forced to commit predicate acts of both mail and wire fraud.” (Compl. ¶ 54 (emphasis supplied).) “Any powers of government held by the City of Flint were entirely illusory.” (Id. at ¶ 169.) Consistent with these allegations, Plaintiffs do not aver that the City Officials were made aware of water-quality concerns; instead, they aver that others were made aware of such concerns through studies, email, or other communications. (See, e.g., Compl. ¶¶ 177-80, 197, 201-02, 205, 224, 261-262, 27172, 297-99, 307-08 .) For example, the only predicate act alleged against Mr. Walling is a television interview at the time of the switch. (Id. at ¶ 581(b).) Other than the conclusory allegation that he knew his on-air statement that the Flint River provided pure drinking water was false, there are no factual allegations from which one could infer that Mr. Walling disbelieved what he said. Somewhat similarly, the Complaint alleges that Mr. Glasgow, “made false and repeated statements and misrepresentations that the Flint River water being sold to the City of Flint was safe,” (id. at ¶ 23), and “knowingly failed to satisfy the
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[Federal and State] regulations that were required to verify that the water provided to the Flint residents, property and business owners was safe,” (id. at ¶ 572). Yet, the only alleged statements Plaintiffs offer in support of these accusations contradict their assertions. They allege that Glasgow provided “clear warning” to MDEQ and other named defendants that there may be issues with Flint’s water and the Flint Treatment Plant prior to transition. (Id. at ¶¶ 207-08, 580c, 602.) Stated differently, not only does the Complaint fail to offer a basis for inferring Glasgow’s intent to defraud or misrepresent, it actually pleads a basis from which to infer that he did not intend to defraud anyone and tried to prevent use of the Flint River as a water source. Accordingly, Plaintiffs fail to sufficiently plead that Glasgow knowingly made a false statement.
Plaintiffs allege that Croft made false statements to the press and other public officials about the safety and testing of the City’s water. (Id. at ¶¶ 215, 382-384, 580(e)). As with Walling and Glasgow, Plaintiffs fail to aver any facts to establish a basis for inferring that Croft intended to defraud and misrepresent. They allege, in general terms, that Croft “knew” or “was aware” that the water was not safe or ready for distribution, but this does not satisfy the requirement to provide “the basis for inferring scienter.” Heinrich, 668 F.3d at 406. Unlike other RICO defendants, who allegedly received emails or studies informing them about the perils of Flint’s water, no such allegations are made against Croft. Without more than general claims of
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knowledge, Plaintiffs fail to meet Rule 9(b)’s specificity requirements. Accordingly, they fail to sufficiently plead that Croft knowingly made a false statement.
Finally, Plaintiffs likewise fail to plead with specificity that EMs Brown, Earley, and Ambrose had the intent to deceive.12 The Complaint alleges that the EMs acted purely on financial considerations to cure the City’s financial crisis; it does not allege that they actually knew the water was unsafe and acted with the intent to defraud. Plaintiffs make many allegations about the interaction of the MDEQ with the EPA, about the MDEQ’s approval of the Flint River as a viable, treatable water source, and the MDEQ’s failure to properly study the river to set quality standards. (Compl. ¶¶ 278-82, 289). None of these allegations involve the EMs. Plaintiffs also allege that third parties studied water safety and misrepresented that the water complied with federal and State regulations. (Id. at 306.) They do not allege that the EMs knew that these third parties misrepresented the City’s regulatory compliance or any facts from which the Court could infer that the EMs knew that they did. Plaintiffs’ conclusory allegations about the EMs’ purportedly fraudulent intent do not meet Rule 9(b)’s specificity requirements. Accordingly, they fail to sufficiently plead that the EMs knowingly made a false statement.
12 It is respectfully submitted that the Complaint also fails to plead that EM Kurtz acted with an intent to deceive. EM Kurtz is, however, separately represented in this action. Therefore, this Memorandum does not address the allegations against him.
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(iii) No Pattern: Plaintiffs do not allege a sufficient pattern, even if they adequately allege predicate acts.
As noted earlier, each RICO element must be pleaded as to each defendant. Kerrigan, 112 F. Supp. 3d at 602. Thus, Plaintiffs must allege that each defendant individually committed a pattern of racketeering activity. Ouwinga, 694 F.3d at 791 (establishing elements). A pattern of racketeering activity requires at least two predicate acts within 10 years of each other. 18 U.S.C. § 1961(5). While two acts are required, they are rarely sufficient; “in common parlance two of anything do not generally form a ‘pattern.’” Sedima, 473 U.S. at 496. The distinguishing characteristic of pattern “is th[e] factor of continuity plus relationship.” Id. at 496, n.14 (original emphasis). Continuity can be open or closed-ended. H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 241 (1989). Closed-ended continuity, alleged here (Compl. ¶ 586), is demonstrated with proof of “a series of related predicates extending over a substantial period of time.” Id. at 242. Plaintiffs do not allege a pattern of racketeering as to the EMs or the City Officials.
Plaintiffs have not alleged to a pattern of bankruptcy fraud against the EMs or the City Officials. They allege that the Governor committed one of those acts and that EM Brown committed the other. (Compl. ¶¶ 579a, 579c.) One act by EM Brown simply is not a pattern of racketeering activity.
Likewise, Plaintiffs have not alleged a pattern of mail or wire fraud against the EMs or the City Officials. As noted earlier, the Complaint does not allege
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any acts of mail or wire fraud against the EMs. (See Part 2(A)(2)(b)(ii)(B)(1), supra at 28-30.) The mailings of water bills and the notice of exceeding trihalomethane limits are not alleged to have been performed or caused by any of the EMs or the City Defendants. (Compl. ¶¶ 580a, 580g.) Plaintiffs do not allege any acts of mail or wire fraud against the EMs. They allege only one act each by Walling (a single television appearance) and Croft (a single press release). (Id. at ¶¶ 580e, 581b.) Although they do allege two predicate acts against Glasgow, (id. at ¶ 580c), two acts alone do not create a pattern. Sedima, 473 U.S. at 496. Plaintiffs allege a closedended pattern of 23 months, but base it upon the mailing of water bills, not Glasgow’s letters to MDEQ. (Compl. ¶ 586.)
These failings notwithstanding, Plaintiffs also fail to adequately plead “continuity.” The Complaint alleges a closed-ended scheme running from April 25, 2014 (the date of the switch to the Flint River) through March 9, 2016 (when the City no longer required payment for water service), a period of 22 months. (Compl. ¶ 586.) This incorrectly assumes, however, that the Court should look at the “pattern” of the enterprise and not the individual defendants. As Kerrigan confirms, Plaintiffs must prove a pattern at the level of the individual defendant, not the enterprise. Kerrigan, 112 F. Supp. 3d at 605.
But, even if the Court looked to the pattern of the enterprise, the duration of the scheme is inadequate for closed-ended continuity. As an initial matter, Plaintiffs’ 22-month period is the wrong measurement because they do not
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allege that the water billings during that period actually contained false statements. While “innocent mailings” can support mail fraud, Schmuck v. United States, 489 U.S. 705, 715 (1989), courts have held that “the relevant criminal conduct is the defendant’s deceptive or fraudulent activity, rather than otherwise innocent mailings that may continue for a long period of time,” when determining the duration of a mail-fraud scheme. Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1418 (3rd Cir. 1991). Applying Kehr, Plaintiffs only allege deceptive or fraudulent statements by various members of the enterprise from April 25, 2014 through September 25, 2015—a period of 17 months. (Compl. ¶¶ 580e-k.) The Sixth Circuit rejected an identical period of time for insufficient continuity. Vemco, Inc. v. Camardella, 23 F.3d 129, 133-134 (6th Cir. 1994).
(iv) No Conduct: Plaintiffs do allege that the EMs or the City Defendants “conducted” the affairs of the alleged enterprise.
To be liable under § 1962(c), a defendant must “participate in the operation or management of the enterprise itself.” Reves v. Ernst & Young, 507 U.S. 170, 185 (1993). This requires the defendant to have “some part in directing” the enterprise’s affairs. Id. at 179. A defendant plays “some part” in directing an enterprise’s affairs if he “mak[es] decisions on behalf of the enterprise” or “knowing carr[ies] them out.” Kerrigan, 112 F. Supp. 3d at 602-03 (quoting United States v. Fowler, 535 F.3d 408, 418 (6th Cir. 2008)). This must be distinct from carrying on the defendant’s own affairs. Reves, 507 U.S. at 185. Thus, a defendant must do more than simply provide,
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through its regular course of business, goods, and services that benefit the enterprise. BancOklahoma Mortg. Corp. v. Capital Title Co., 194 F.3d 1089, 1101-02 (10th Cir. 1999); Hendrix v. Akin, Civil No. 15-12364; 2015 U.S. Dist. LEXIS 157031, *1213 (E.D. Mich. Nov. 20, 2105).
The Complaint is devoid of any allegations that the City Officials made any decisions on behalf of the enterprise or knowingly carried them out. Plaintiffs allege that City Officials lacked power under PA 436, which logically eliminates the possibility that they made any decisions. (Compl. ¶¶ 54, 169.) Even so, the sole allegation against Walling is that he made statements on television announcing the switch to the Flint River and commenting on its quality. (Id. at ¶ 581b.) Likewise, the sole allegation against Croft is that he issued a press release announcing the switch to the Flint River and commenting on its quality. (Id. at ¶ 580e.) Neither of these allegations ties Walling and Croft’s interactions with the media to decisions made for the alleged enterprise. Nor do they explain how those interactions knowingly implemented a decision made on behalf of the enterprise by others. Similarly, the sole allegation against Glasgow is that he warned against using the Flint River. Plaintiffs make no effort to tie his warning to a decision Glasgow made for the alleged enterprise or explain how it knowingly implemented a decision made on behalf of the enterprise.
In addition, the Complaint fails to allege that the City Officials had “any financial interest in the success of the alleged RICO enterprise other than their
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compensation for performing the discrete tasks for which they were hired.” Kerrigan, 112 F. Supp. 3d at 603–04 (citing Guaranteed Rate, Inc. v. Barr, 912 F. Supp. 2d 671, 687 (N.D. Ill. 2012) (allegations of participation in a RICO scheme are insufficient where plaintiff fails to plead that defendants had a financial stake in the ultimate outcome of the enterprise—i.e., “shar[ing] in the profits of the alleged enterprise as opposed to merely taking their own respective profits from their respective actions related to the scheme”)).
The Complaint is equally deficient for the EMs. All of the allegations against the EMs relate to their financial decisions for the City—something they were hired to do. Plaintiffs have failed to allege how these actions constitute conducting or participating in the conduct of the enterprise’s affairs, as opposed to conducting their own affairs. Kerrigan, 112 F. Supp. 3d at 603–04.
(3). Plaintiffs fail to plausibly allege a RICO claim under § 1962(d). To plausibly state a claim under 18 U.S.C. § 1962(d), a plaintiff must successfully allege all the elements of a RICO violation, as well as “the existence of an illicit agreement to violate the substantive RICO provision.” Grubbs v. Sheakley Group, Inc., 807 F.3d 785, 805-06 (6th Cir. 2015). “An agreement can be shown if the defendant objectively manifested an agreement to participate directly or indirectly in the affairs of an enterprise through the commission of two or more predicate crimes.” Heinrich, 668 F.3d at 411.
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Because the Complaint fails to state a violation of § 1962(c), it necessarily fails to state a violation of § 1962(d). Yet, even if Plaintiffs had successfully pleaded a claim under § 1962(c), their § 1962(d) claim would still fail because there are no allegations that the City Officials or any EM, other than EM Kurtz (who is not a party to this Motion), entered into an agreement to participate in the affairs of the enterprise. (See Compl. ¶¶ 193-195.)
Even if such had been pleaded, a proper § 1962(d) claim requires the plaintiff to claim an injury from a tortious overt act, that is also a predicate act, in furtherance of the conspiracy. Beck v. Prupis, 529 U.S. 494 (2000). An innocent overt act—such as an innocent mailing that may qualify for mail fraud but does not actually cause injury—is insufficient to plead a RICO conspiracy claim. See Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268-69 (1992) 13 Here, Plaintiffs do not allege that they were injured by a tortious overt act. While Plaintiffs may point to the City’s mailings of water bills, they make no claim that the billings themselves contained fraudulent statements. Thus, they are “innocent mailings,” not tortious conduct.
13 This is because an innocent overt act would not satisfy the proximate cause standing requirement articulated in Holmes, which prohibits plaintiffs from recovering for indirect injuries. GREGORY P. JOSEPH, CIVIL RICO: A DEFINITIVE GUIDE § 10, Section 1962(d) Standing, 86 (3d ed. 2010).
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B. Count 3: Plaintiffs fail to allege a contract claim against the EMs.14
The Complaint fails to properly state a contract claim against the EMs for lack
of privity because Plaintiffs do not allege a contract with the EMs.15 (See Compl. ¶¶
608-23.) A necessary element of a breach of contract claim is the existence of
a contract between the plaintiff and defendant. Dunn v. Bennett, 303 Mich.
App. 767, 774 (2013). A claim cannot be maintained against non-parties;
privity remains an essential element of a breach of contract claim. National
Sand, Inc. v. Nagel Const., Inc., 182 Mich. App. 327, 331 (1990). Thus, Count
14 Count 3 oddly combine substantive contract claims with substantive due process claims for a deprivation of Plaintiffs contractual interests. Contract and due-process claims are analytically distinct. The contract claims are analyzed in this Part. The due-process claims are analyzed in the City’s Memorandum. (City Mem. at 28-29.) The combination of contract and constitutional claims into a single count is in tension with Rule 10(b)’s admonition to avoid combining claims when necessary to avoid confusion. The EMs and City Officials do not seek relief on this ground, but urge the Court to consider exercising its inherent authority to require Plaintiffs to separate their distinct theories into separate counts. See Wright & Miller, 5A FED. PRAC. & PROC. CIV. § 1324 (3d ed.). 15 As noted in the City’s Memorandum, the contract claim in Count 3 fails because: (a) the action is against the City as an agent of the State and is not responsible for breaches by its principal, the State; (2) Plaintiffs do not allege mutuality or consideration, essential elements of any contract; (3) Plaintiffs allege that the City provides a service, not goods, and the parties’ relationship is therefore not subject to the Uniform Commercial Code; and (4) alternatively, Plaintiffs did not allege that they provided notice of the alleged breach, which is a statutory predicate to bring an action under the UCC. For judicial economy, the EMs and City Officials will not restate those arguments here. Instead, they expressly agree with and adopt those arguments as their own, and substantively address here only the unique argument regarding lack of privity. (City Mem. 29-37.)
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3 against the EMs must be dismissed for failure to state a State-law claim upon which relief can be granted.
C. Count 12: Plaintiffs’ State-law negligence claims against the EMs and the City Officials are either preempted or barred by State-law tort immunity. (1). The Michigan Safe Drinking Water Act preempts common-law tort claims under Michigan law. State statutes can preempt common-law claims. See, e.g., Hoerstman Gen.
Contr., Inc. v. Hahn, 474 Mich. 67, 75-76 (2006); Kraft v. Detroit Entm’t, LLC, 261 Mich. App. 534 (2004); Millross v. Plum Hollow Golf Club, 429 Mich. 178, 183 (1987); Anzaldua v. Neogen Corp., 292 Mich. App. 626, 631 (2011) (citing Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68, 70, 78-79 (1993)). Determining preemption of common-law claims is a question of legislative intent. See Millross, 429 Mich. at 183. As a general rule, “where comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have intended that the statute supersede and replace the common law dealing with the subject matter.” Id. (citing 2A SANDS, SUTHERLAND STATUTORY CONSTRUCTION §50.05, 440-41(4th ed.)). If legislative intent for exclusivity existed, courts have then examined the scope of that exclusivity. The question of whether state statute preempts common-law claims will thus be determined by whether (1) the Legislature intended the statute to be the exclusive remedy, and (2) whether the common-law
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claims are within the exclusion’s scope. See Millross, 429 Mich. at 187. Both elements are satisfied here.
First, the Michigan Safe Drinking Water Act (“MSDWA”) evinces a legislative intent to exclude private rights of action. The Act appoints the MDEQ as the primary regulatory agency responsible for implementing the federal SDWA. The MSDWA charges MDEQ to “provide for supervision and control over public water supplies . . . to provide for continuous, adequate operation of privately owned, public water supplies; to authorize the promulgation of rules to carry out the intent of the act, and to provide penalties.” M.C.L. §§ 325.1001-325.1023, pmbl. MDEQ has promulgated numerous detailed and specific MSDWA regulations pursuant to this directive. See MICH. ADMIN. CODE R. 325.10101 et seq. The Legislature has deemed violations of the statute or the MDEQ’s rules to be misdemeanor offenses. M.C.L. § 325.1021. In addition to criminal enforcement actions, the Michigan Attorney General can also bring civil injunctive actions to enforce the MSDWA and the MDEQ’s rules. M.C.L. § 325.1022. While the MSDWA is silent as to parallel common-law claims, it facially constitutes “comprehensive legislation” that “prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions.” See Millross, 429 Mich. at 183. Further, the maxim expressio unius est exclusius alterius supports the conclusion that
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the Legislature’s choice not to include a private right of action implies the exclusion of such actions. Id.
Second, Plaintiffs’ negligence claims are within the scope of the MSDWA. The MDEQ has promulgated comprehensive regulations, including but not limited to regulations covering public notification requirements, MICH. ADMIN. CODE R. 325.10401 et seq., treatment techniques, MICH. ADMIN. CODE R. 325.10604f, monitoring requirements for lead, MICH. ADMIN. CODE R. 325.10710a, reporting requirements for corrosion control, MICH. ADMIN. CODE R. 325.10710d, treatment systems and pumping facilities, MICH. ADMIN. CODE R. 325.11001 et seq., and distribution systems, MICH. ADMIN. CODE R. 325.11101 et seq. Plaintiffs negligence claims are based on the same conduct. (Compl. ¶ 727a-j.) Thus, their negligence claim is really a private right of action brought to enforce the MSDWA. Since the factual bases for the claims fall within the regulatory scope of the MSDWA, they are preempted under the Millross line of cases and should be dismissed for failure to state a claim upon which relief can be granted.
(2). Alternatively, the EMs and City Officials are immune under the Michigan Governmental Tort Liability Act.
The Michigan Governmental Tort Liability Act (“GTLA”) confers absolute immunity upon the EMs, Walling, and Croft, and qualified immunity upon Glasgow. M.C.L. § 691.1407(2), (5). Plaintiffs have the burden of pleading facts to avoid governmental immunity. Kendricks v. Rehfield, 270 Mich. App. 679, 681 (2006).
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The applicability of governmental immunity on the pleaded facts is a question of law. County Road Ass'n of Mich. v. Governor, 287 Mich. App. 95, 117-118 (2010).
EMs are appointed under PA 436. See M.C.L. §141.1549(1). Under PA 436, EMs are immune entitled to absolute executive immunity under M.C.L. § 691.1407(5) from tort liability for injuries to persons or damages to property if he is acting within the scope of his executive authority. M.C.L. §141.1560. The Complaint alleges that the EM made financial decisions to correct the City’s fiscal crisis: “[The Flint Water Crisis] occurred because these [EMs], with the approval and authority of the State[, the Govenor, the Treasurer,] and the MDEQ focused, in their Fiscal Emergency Plan, solely on their duty under [PA 436] to find a financial solution for the City[’s] financial crisis.” (Compl. ¶ 8 (emphasis supplied).) Accordingly, the Complaint alleges that the EMs were acting within the scope of their duties under PA 436. They therefore enjoy absolute immunity from Plaintiffs’ negligence claim under the GTLA.
Similarly, mayors enjoy absolute executive immunity as the highest elected executive official of a municipality. M.C.L. § 691.1407(5). Thus, Walling is immunity from Plaintiffs’ negligence claim under the GTLA.
The same is true for Croft. As the director of Flint’s Department of Public Works (“DPW”), he was the highest appointed executive official of a municipal department. (Compl. ¶ 75.) DPW is an executive department, created under the City’s Charter and Code of Ordinances. FLINT, MICH., CHARTER §4-203(A); FLINT,
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MICH., ORDINANCES §2-110 et seq. DPW directors are appointed by the mayor. FLINT, MICH., CHARTER §4-203(C). The DPW director is authorized to reorganize the divisions within the DPW and to promulgate rules and regulations. FLINT, MICH., ORDINANCES §§ 2-112, 2-114. Furthermore, he has the authority to appoint all subordinates and employees within DPW. FLINT, MICH., ORDINANCES §2-113. Such “department heads” are entitled to absolute immunity as a highest appointed official of a level of government. See, e.g., Petripen v. Jaskowski, 494 Mich. 190, 218-19 (2013) (police chief entitled to absolute immunity); Davis v. City of Detroit, 269 Mich. App. 376, 381 (2005) (fire chief entitled to absolute immunity); Bennett v. Detroit Police Chief, 274 Mich. App. 307 (2006); Payton v. City of Detroit, 211 Mich. App. 375 (1995); Washington v. Starke, 173 Mich. App. 230 (1988); Meadows v. City of Detroit, 164 Mich. App. 418 (1987).
Glasgow is entitled to qualified governmental immunity for lower-level municipal employees under the GTLA, which applies if: “(a) the individual was acting or reasonably believed that he was acting within the scope of his authority, (b) the governmental agency was engaged in the exercise or discharge of a governmental function, and (c) the individual's conduct amounted to gross negligence that was the proximate cause of the injury or damage.” Odom v. Wayne County, 482 Mich. 459, 479-80 (2008); M.C.L. § 691.1407(2). Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” M.C.L. §691.1407(8)(a). Plaintiffs fail to plead particularized
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allegations to avoid Glasgow’s immunity. The only non-conclusory allegation that they plead regarding Glasgow is that he sought guidance and support from MDEQ about how to operate the water plant in conformance with applicable laws and regulations. This is not negligence, let alone gross negligence. Cf. Maiden v. Rozwood, 461 Mich. 109, 122 (1999) (evidence of ordinary negligence does not reasonably imply gross negligence). Further, even if it was gross negligence, Plaintiffs have not and cannot allege that Glasgow’s conduct was “the proximate cause of the injury or damage,” as required to negate immunity. M.C.L. §691.1407(2) (emphasis supplied). Plaintiffs’ negligence claims as to Glasgow must therefore be dismissed as well.
It is acknowledged that governmental immunity does not apply if the official was not “acting, or reasonably believed that he was acting, within the scope of his authority.” Odom, 482 Mich. at 480. Plaintiffs allege that each of the EMs and City Officials were acting outside their authority, (Compl. ¶¶ 68, 73, 75, and 77), but they allege no facts supporting these conclusory allegations. Plaintiffs must plead facts to establish that defendants were acting outside the scope of their authority. Mack v. City of Detroit, 467 Mich. 186, 197-203 (2002). Thus, Plaintiffs have failed to plead in avoidance of immunity and governmental immunity applies.
D. Counts 1, 3-4, 6-7: The EMs and City Officials are entitled to qualified immunity on all § 1983 claims.
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For Counts 1, 4, and 6-7, the EM and City Officials respectfully submit that Plaintiffs have failed to adequately plead claims under § 1983 for reasons identical to those raised by the City in its Memorandum supporting its Motion to Dismiss. For judicial economy, the EMs and City Officials will not regurgitate those arguments here. Instead, they expressly agree with and adopt those arguments as their own. (City Mem. at 17-28.) If the Court concludes, however, that Plaintiffs have stated the required elements for one or more § 1983 claims, the EMs and City Officials are still protected by qualified immunity.
Section 1983 qualified immunity shields government officials sued in their personal capacities from “liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine applies even when a government official is mistaken, “regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted).
Plaintiffs bear the burden of showing that the qualified-immunity defense does not apply. Roth v. Guzman, 650 F.3d 603, 609 (6th Cir. 2011). To discharge this burden, a plaintiff must allege facts sufficient to state a constitutional claim that was “clearly established at the time of the harm giving rise to the action.” Id. The alleged claim “must be established, not as a broad general proposition, but in a
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particularized sense so that the contours of the right are clear to a reasonable official,” Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012) (internal quotations omitted), so that he “would have understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In other words, the unlawfulness “must be apparent in light of pre-existing law.” Daily Servs., LLC v. Valentino, 756 F.3d 893, 900 (6th Cir. 2014).
When distilled to its essence, the Complaint alleges a violation of three interests purportedly protected by procedural and substantive due process: (1) a substantive property interest in water (Count 1);16 (2) a liberty interest in bodily integrity (Count 4); and (3) substantive and procedural property interests against deprivations of contractual interests (Counts 3, 5-7). The first is not a protected interest. Although the other two are protected, the Complaint fails to allege a violation of those interests.
First, there is no due process right to water, including contaminant-free water. Mansfield Apt. Owners Ass'n v. City of Mansfield, 988 F.2d 1469, 1476 (6th Cir.
16 As argued in the City’s Memorandum, Count 1 is labeled as asserting this kind of property interest in the context of an equal protection claim. For the reasons argued by the City, which the EMs and City Officials adopt here, Count 1 necessarily fails. (City Mem. at 19-24.) If the Court disagrees, however, Count 1 alternatively fails for the reasons argued in this Part 2(D), as well.
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1993) (“There is no fundamental right to water service.”); Coshow v. City of Escondido, 132 Cal. App. 4th 687, 708 (2005) (No due process right to “public drinking water of a certain quality”). Thus, the EMs and City Officials enjoy qualified immunity for all water-based property claims under § 1983.
Second, while there is a protected liberty interest in bodily integrity, it is not infringed unless there has been a forcible physical intrusion into the person’s body against his will, absent a compelling state interest. See Washington v. Harper, 494 U.S. 210, 229 (1990) (forced injection of medication); Rochin v. California, 342 U.S. 165, 172-73 (1952) (forced stomach pumping); Planned Parenthood Southwest Ohio Region v. Dewine, 696 F.3d 490, 506-07 (6th Cir. 2012) (abortion); United States v. Booker, 728 F.3d 535, 546 (6th Cir. 2004) (anal cavity search); Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996) (statutory rape). Plaintiffs’ bodily-integrity claim does not allege forcible physical intrusion analogous to these cases. (Compl. ¶¶ 624-44.) A similar claim premised upon consumption of allegedly toxic water was recently rejected because government officials did not physically force the plaintiff to consume the water. Reeners v. Bandy, Civil No. 16-01868, 2016 U.S. Dist. LEXIS 100991, *12-13 (M.D. Tenn. Aug. 2, 2016):
To the extent that the complaint alleges a violation of the plaintiff's substantive due process right to refuse medical treatment, while the complaint alleges that all residents of City of Gallatin . . . are forced to drink the City's water, there is no allegation that any defendant is physically forcing the plaintiff or anyone else to ingest or use the water the plaintiff believes is toxic. . . . The court therefore
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finds that the complaint fails to state Fourteenth Amendment claims . . . . In this case, Plaintiffs’ bodily-integrity claim does not allege forcible physical intrusion analogous to these cases. (Compl. ¶¶ 624-44.) Accordingly, the EMs and City Officials are entitled to qualified immunity against this claim.17 Third, while procedural due process protects against deprivations of property interests without a notice and opportunity to be heard, it is well established that postdeprivation State-law contract and tort claims are adequate procedural safeguards to protect property interests, except for breaches that deprive a plaintiff of his ability “exercise ownership dominion over real or personal property, or to pursue a gainful occupation.” Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 195-97 (2001); Ramsey v. Board of Educ. of Whitley County, 844 F.3d 1268, 1273 (6th Cir. 1988) (no procedural due process claim for simple breach when State contract action is available); Wilson v. Beebe, 770 F.2d 578, 583 (6th Cir. 1985) (State tort actions satisfy due process if a meaningful opportunity for post-deprivation hearing exists.)
17 Even if this liberty interest was properly at issue here, Plaintiffs could only state a claim if they pleaded facts to show that the EMs and City Officials were motivated by malice or sadism, “rather than a merely careless or unwise excess of zeal.” Lilard v. Shelby County Bd. of Educ., 76 F.3d 716, 725 (6th Cir. 1996) (internal quotation and citation omitted). Plaintiffs allege, however, that financial considerations motivated the switch to Flint River water. (Compl. ¶ 8.) At worst, Plaintiffs might claim that the decision-makers pursued financial goals with “careless or unwise” zeal, but that would not give rise to a substantive due process claim.
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This is because “it is neither workable nor within the intent of Section 1983 to convert every breach of contract claim against a state into a federal claim.” Ramsey, 844 F.3d at 1273. Here, none of Plaintiffs’ claims allege that the EMs or City Officials have prevented them Plaintiffs from exercising dominion over their property or from pursuing a gainful occupation. At the same time, Plaintiffs’ Statelaw breach-of-contract and tort claims demonstrate that there are adequate procedural remedies for the alleged deprivation of their remaining property interests.
IV. CONCLUSION The Court lacks subject-matter jurisdiction over official-capacity claims against EMs and City Officials under § 1983. EMs are State officers. And, because the City is an “arm of the State” under the Eleventh Amendment for purposes of the Flint Water Crisis, the City Officials also enjoy immunity from official-capacity claims. Plaintiffs’ personal-capacity claims are preempted by the SDWA’s comprehensive remedial scheme. Also, Plaintiffs’ contract-based § 1983 claims are precluded by the availability of a State-law breach-of-contract action. In addition, their “takings” claim is not ripe for adjudication. Even if the Court could exercise jurisdiction, Plaintiffs fail to plausibly state claims upon which relief can be granted. In Count 2, Plaintiffs not only fail to allege fact sufficient to establish standing to pursue a RICO claim, but they also fail to allege any of the elements of a violation of § 1962(c) claim as to any of the EMs or City Officials. By extension, they fail to
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adequately allege the existence of a § 1962(d) conspiracy for want of a § 1962(c) violation and for want of a conspiratorial agreement. In Count 3, Plaintiffs assert a contract claim against the EMs, but fail to plead privity of contract between Plaintiffs and the EMs. This is fatal to any contract claim. In Count 12, Plaintiffs assert negligence claims against the EMs and City Officials, but the EMs, Walling, and Croft enjoy absolute executive governmental immunity, and Glasgow enjoys qualified executive governmental immunity. Plaintiffs have failed to plead facts in avoidance of such immunity. Accordingly, they have failed to state a negligence claim upon which relief can be granted.
The EMs and City Officials adopt as their own the City’s arguments for Counts 1, 4, and 6-7, which explain why Plaintiffs fail to plausibly state claims for violations of substantive and procedural due process.
The EMs and City Officials pray that the Court will DISMISS them from the Complaint with prejudice.
Respectfully submitted, Attorney for Mike Brown, Darnell Earley, Gerald Ambrose, Dayne Walling, Howard Croft, and Michael Glasgow /s/ William Y. Kim WILLIAM Y. KIM (P76411) Dated: October 13, 2016
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Lawrence Washington, Jr., et al,

Case No 5:16-cv-11247-JCO-MKM

Plaintiffs,

Hon. John Corbett O’Meara

v.

INDIVIDUAL CITY

Governor Richard Dale Snyder, et al.,

DEFENDANTS’ MOTION TO

Defendants.

DISMISS PLAINTIFFS’ SECOND

AMENDED COMPLAINT

_________________________________________________________________/

CERTIFICATE OF SERVICE I hereby certify that on October 13, 2016, I electronically filed the foregoing

pleadings using the ECF system which will send notification of such filing to the

counsels of record.

Dated: October 13, 2016

/s William Y. Kim__________ William Y. Kim (P76411) Attorneys for Mike Brown, Darnell Earley, Gerald Ambrose, Dayne Walling, Howard Croft, and Michael Glasgow

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 </s> 5:16-cv-11247-JEL-MKM Doc # 131 Filed 04/18/17 Pg 1 of 2 Pg ID 5433

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Lawrence Washington, Jr., et al.,

Case No 5:16-cv-11247-JCO-MKM

Plaintiffs,

Hon. John Corbett O’Meara

v.

Governor Richard Snyder, et al.,

Defendants. _________________________________/

STIPULATED ORDER GRANTING A SUSPENSION OF TIME TO FILE RESPONSIVE PLEADINGS UNTIL PLAINTIFFS’ MOTION TO COMPEL
IS RESOLVED
Pursuant to Fed. R. Civ. P. 6(b)(1)(A), and the stipulation of the parties, the

deadline for Plaintiffs to file opposition papers to defendant Robert Scott’s

Concurrence of Defendant’s Liane Shekter-Smith, Stephen Busch, Patrick Cook,

Michael Prysby, Daniel Wyant, and Bradley Wurfel’s Motion to Change Venue is

suspended pending the resolution of the Plaintiff’s Motion to Compel [Dkt. # 128]

(filed March 8, 2017). The Plaintiffs withdraw the request for a 90-day extension

on those opposition papers contained within the Plaintiffs’ Motion to Compel

Discovery. A revised briefing schedule regarding Plaintiffs’ opposition to MDEQ

Defendants’ Motion to Change Venue due date and Defendant’s Reply to Plaintiffs’

Opposition due date will be addressed after the resolution of the Plaintiffs’ Motion

to Compel.

Date: April 18, 2017

s/John Corbett O’Meara United States District Judge
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Counsel for the Parties hereby stipulate to the entry of this Order:

/s/Chet W. Kern Chet W. Kern Attorney for Plaintiffs

/s/ Mary Chartier Mary Chartier Attorney for Defendant Robert Scott

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 </s> 5:16-cv-11247-JEL-MKM Doc # 142 Filed 07/27/17 Pg 1 of 5 Pg ID 5651

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

In re Flint Water Cases

Judith E. Levy United States District Judge

________________________________/

ORDER GRANTING IN PART THE WAID MOTION FOR CONSOLIDATION OF THE CLASS ACTIONS, APPOINTMENT OF INTERIM CO-LEAD CLASS COUNSEL, AND APPOINTMENT
OF LIAISON COUNSEL FOR THE INDIVIDUAL ACTIONS [CASE NO. 16-cv-10444, DKT. 136], DENYING THE GUERTIN MOTION TO CONSOLIDATE CASES [CASE NO. 16-cv-12412, DKT. 165], HOLDING IN ABEYANCE BRIEFING IN ALL NONCLASS ACTION FLINT WATER CASES, AND SETTING DATES

On July 26, 2017, the Court held a status conference regarding all

pending Flint Water litigation before the Court.

A. Motions to Consolidate

At that hearing, the Court discussed pending motions to consolidate in Waid v. Snyder, Case No. 16-cv-10444, Dkt. 136, and Guertin v. State of Michigan, Case No. 16-cv-12412, Dkt. 165. For the reasons set forth on the record, the Waid motion is granted in part, and the Guertin motion is denied.
The Waid motion is granted as to Case Nos. 16-cv-10444, 16-cv-

10796, 16-cv-11173, 16-cv-11247, 16-cv-12875, 16-cv-14498, 17-cv-

5:16-cv-11247-JEL-MKM Doc # 142 Filed 07/27/17 Pg 2 of 5 Pg ID 5652
10343, 17-cv-10360, and 17-cv-10799. The motion is held in abeyance regarding Case No. 17-cv-10996, in which a motion to remand to Michigan state court is pending. Once that motion to remand is decided, and if the Court retains jurisdiction over that case, an order will be issued consolidating that case with Case No. 16-cv-10444.
Newly-appointed interim co-lead counsel are ordered to file a master class action complaint in Case No. 16-cv-10444 on or before September 29, 2017. Defendants are ordered to file answers or responsive motions on or before December 1, 2017.
Pursuant to the grant of the motion to consolidate, Theodore Leopold of Cohen Milstein Sellers & Toll PLLC and Michael Pitt of Pitt McGehee Palmer & Rivers PC, are appointed interim co-lead counsel for the combined class, Corey Stern of Levey Konigsberg LLP and Hunter Shkolnik of Napoli Shkolnik PLLC are appointed as liaison counsel for all individual personal injury and property damage cases pending before the Court. Further, the Court orders the creation of an Executive Committee for the combined class action, whose membership will be recommended to the Court by interim co-lead counsel no later than September 29, 2017.
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The above-named counsel will meet and confer with other plaintiffs’ counsel and defense counsel regarding the specific duties of the co-lead counsel and liaison counsel so that a proposed statement of duties for these positions can be filed with the Court by September 29, 2017. Also by this same date, co-lead counsel will confer with all named defendants and file either a joint statement regarding agreed-upon preliminary discovery or separate statements addressing whether preliminary discovery is appropriate at this juncture in the combined class action, and statements regarding the appointment of a Special Master under Fed. R. Civ. P. 53 in Case No. 16-cv-10444.
B. Motion for Master Individual Complaint Liaison counsel informed the Court during the status conference that they wish to file a motion permitting the filing of a master complaint in all individual personal injury and property damage cases pending in this Court. Liaison counsel are directed to file a motion to permit the filing of the master complaint in all individual cases within ten days of this order. The motion should be filed in Case No. 17-cv10164, the earliest-filed active individual Flint Water case in which the liaison counsel have appeared.
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5:16-cv-11247-JEL-MKM Doc # 142 Filed 07/27/17 Pg 4 of 5 Pg ID 5654
Defendants are ordered to respond within fourteen days of the filing of the motion. All other plaintiffs’ counsel in individual personal injury and property damage cases may also file responses to the motion within fourteen days. All dispositive motion briefing in all individual cases is held in abeyance pending a determination of the motion to file a master complaint.
C. Master Case Number The Court will not establish a master case number at this time because all of the pending Flint Water cases are not consolidated. D. Order of Consolidation For the reasons set forth above, it is hereby ordered that: Case Nos. 16-cv-10796, 16-cv-11173, 16-cv-11247, 16-cv-12875, 16cv-14498, 17-cv-10343, 17-cv-10360, and 17-cv-10799 are consolidated with Case No. 16-cv-10444 for all purposes, including trial; All subsequent papers filed after the date of this order regarding those cases shall be entered in Case No. 16-cv-10444; and Case Nos. 16-cv-10796, 16-cv-11173, 16-cv-11247, 16-cv-12875, 16cv-14498, 17-cv-10343, 17-cv-10360, and 17-cv-10799 are closed in light of the consolidation order.
4

5:16-cv-11247-JEL-MKM Doc # 142 Filed 07/27/17 Pg 5 of 5 Pg ID 5655

It is further ordered that all pending dispositive motions in Case

No. 16-cv-10444 (Dkts. 122, 124, 125, 131, 132, 135) are denied without

prejudice.

IT IS SO ORDERED.

Dated: July 27, 2017 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on July 27, 2017.

s/Shawna Burns SHAWNA BURNS Case Manager

5

 </s> Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 1 of 26
CLOSED,STAYED,reassigned
U.S. District Court Eastern District of Michigan (Ann Arbor) CIVIL DOCKET FOR CASE #: 5:16−cv−11247−JEL−MKM

Washington, Jr. et al v. Snyder et al **CASE CLOSED − ALL ENTRIES MUST BE MADE IN 16−10444.** Assigned to: District Judge Judith E. Levy Referred to: Magistrate Judge Mona K. Majzoub Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/05/2016 Date Terminated: 07/28/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Lawrence Washington, Jr.

represented by Chet W. Kern Katz & Kern, LLP 61 Broadway Suite 2220 New York, NY 10006 212−693−1330 Fax: 212−693−1329 Email: ckern@bernripka.com ATTORNEY TO BE NOTICED

Marc J. Bern Bern Ripka LLP 60 East 42nd Street Suite 950 New York, NY 10165 212−702−5000 Fax: 212−818−0164 Email: mbern@bernllp.com ATTORNEY TO BE NOTICED

Ari Kresch 1−800−LAW−FIRM 26700 Lahser Road Suite 400 Southfield, MI 48033 248.565.2099 Email: akresch@1800lawfirm.com ATTORNEY TO BE NOTICED

Solomon M. Radner EXCOLO LAW, PLLC 26700 Lahser Rd Suite 401 Southfield, MI 48033 866−939−2656 Fax: 866−571−1020 Email: sradner@excololaw.com ATTORNEY TO BE NOTICED

Plaintiff Taylor Washington

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 2 of 26

Plaintiff Morgan Washington
Plaintiff Chloe Washington
Plaintiff Madison Washington
Plaintiff Lawrence Washington

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED
represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED
Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED
Ari Kresch (See above for address) ATTORNEY TO BE NOTICED
Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED
represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED
Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED
Ari Kresch (See above for address) ATTORNEY TO BE NOTICED
Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED
represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED
Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED
Ari Kresch (See above for address) ATTORNEY TO BE NOTICED
Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED
represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED
Marc J. Bern

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 3 of 26

(See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Christa Godin

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Angel Arrand

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Auston Arrand

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 4 of 26

William Zietz, III

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Roosevelt Cameron

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Deborah Smith

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Aby Ndoye

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 5 of 26

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Shanika Mixon

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robin Davis

represented by Chet W. Kern (See above for address) ATTORNEY TO BE NOTICED

Marc J. Bern (See above for address) ATTORNEY TO BE NOTICED

Ari Kresch (See above for address) ATTORNEY TO BE NOTICED

Solomon M. Radner (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Richard Dale Snyder

represented by Eugene Driker Barris, Sott, 333 W. Fort Street Suite 1200 Detroit, MI 48226−3281 313−965−9725 Email: edriker@bsdd.com ATTORNEY TO BE NOTICED
Margaret A. Bettenhausen Michigan Department of Attorney General 525 West Ottawa St. P. O. Box 30755 Lansing, MI 48909 517−373−7540 Fax: 517−373−1610 Email: bettenhausenm@michigan.gov ATTORNEY TO BE NOTICED
Morley Witus Barris, Sott, Denn & Driker, PLLC

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 6 of 26

333 W. Fort Street Suite 1200 Detroit, MI 48226−3281 313−965−9725 Email: mwitus@bsdd.com ATTORNEY TO BE NOTICED

Nathan A. Gambill Michigan Department of Attorney General ENRA Division P.O. Box 30755 Lansing, MI 48909 517−373−7540 Fax: 517−373−1610 Email: GambillN@michigan.gov ATTORNEY TO BE NOTICED

Richard S. Kuhl Assistant Attorney General Environment, Natural Resources, and Agricultural Division 525 West Ottawa Street 6th FLoor, G. Mennen Williams Building P.O. Box 30755 Lansing, MI 48909 517−335−0696 Fax: 517−373−1610 Email: kuhlr@michigan.gov ATTORNEY TO BE NOTICED

Todd R. Mendel Barris, Sott, 333 W. Fort Street Suite 1200 Detroit, MI 48226−3281 313−965−9725 Email: tmendel@bsdd.com ATTORNEY TO BE NOTICED

Zachary C. Larsen Michigan Department of Attorney General P.O. Box 30755 Lansing, MI 48909 517−373−7540 Fax: 517−373−1610 Email: larsenz@michigan.gov ATTORNEY TO BE NOTICED

Defendant Dennis Muchmore

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 7 of 26

Defendant State of Michigan
Defendant Michigan Department of Environmental Quality
Defendant Michigan Department of Health and Human Services
Defendant Ed Kurtz
Defendant

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED
represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED
represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Gildner Simen, Figura, 5206 Gateway Centre Suite 200 Flint, MI 48507 810−235−9000 Email: mgildner@sfplaw.com ATTORNEY TO BE NOTICED

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 8 of 26

Darnell Earley

represented by Todd Russell Perkins 615 Griswold Suite 400 Detroit, MI 48226 313−964−1702 Fax: 313−964−1980 Email: tperkins@perkinslawgroup.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nikkiya Branch Perkins Law Group, PLLC 615 Griswold Suite 400 Detroit, MI 48226 313−964−1702 Fax: 313−964−1980 Email: nbranch@perkinslawgroup.net ATTORNEY TO BE NOTICED

William Young Kim City of Flint 1101 S. Saginaw Street Third Floor Flint, MI 48502 810−766−7146 Fax: 810−232−2114 Email: wkim@cityofflint.com TERMINATED: 02/23/2017 ATTORNEY TO BE NOTICED

Defendant Gerald Ambrose

represented by Barry A. Wolf Barry A. Wolf, Attorney at Law, PLLC 503 S. Saginaw Street, Suite 1410 Flint, MI 48502 810−762−1084 Fax: 810−244−1650 Email: bwolf718@msn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Young Kim (See above for address) TERMINATED: 02/23/2017 ATTORNEY TO BE NOTICED

Defendant Howard Croft

represented by Alexander S. Rusek White Law PLLC 2549 Jolly Road Suite 340 Okemos, MI 48864 517−316−1195 Fax: 517−316−1197 Email: alexrusek@whitelawpllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Young Kim (See above for address) TERMINATED: 02/23/2017 ATTORNEY TO BE NOTICED

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 9 of 26

Defendant Michael Glasgow
Defendant Daniel Wyant
Defendant Liane Shekter Smith

represented by Brett T. Meyer O'Neill, Wallace & Doyle, P.C. Four Flags Office Center 300 St. Andrews Road, Ste. 302 P.O. Box 1966 Saginaw, MI 48605 989−790−0960 Fax: 989−790−6902 Email: bmeyer@owdpc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Young Kim (See above for address) TERMINATED: 02/23/2017 ATTORNEY TO BE NOTICED
represented by Jay M. Berger Clark Hill (Detroit) 500 Woodward Avenue Suite 3500 Detroit, MI 48226−3435 313−965−8300 Email: jberger@clarkhill.com ATTORNEY TO BE NOTICED
Jordan S. Bolton Clark Hill 500 Woodward Avenue Suite 3500 Detroit, MI 48226−3435 313−965−8300 Fax: 313−965−8252 Email: jbolton@clarkhill.com ATTORNEY TO BE NOTICED
Michael J. Pattwell Clark Hill, PLC 212 E. Cesar E. Chavez Avenue Lansing, MI 48906 517−318−3043 Fax: 517−318−3082 Email: mpattwell@clarkhill.com ATTORNEY TO BE NOTICED
represented by Michael J. Pattwell (See above for address) ATTORNEY TO BE NOTICED
Michael H. Perry Fraser, Trebilcock, 124 W. Allegan Street Suite 1000 Lansing, MI 48933−1716 517−482−5800 Fax: 517−482−0887 Email: mperry@fraserlawfirm.com ATTORNEY TO BE NOTICED

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 10 of 26

Thaddeus E. Morgan Fraser, Trebilcock, 124 W. Allegan Street Suite 1000 Lansing, MI 48933 517−482−5800 Email: tmorgan@fraserlawfirm.com ATTORNEY TO BE NOTICED

Defendant Stephen Busch

represented by Courtney B. Ciullo Kotz Sangster Wysocki P.C. 400 Renaissance Center Suite 3400 Detroit, MI 48243 313−259−8300 Fax: 313−259−1451 Email: cciullo@kotzsangster.com ATTORNEY TO BE NOTICED

Dennis K. Egan Kotz, Sangster, Wysocki & Berg, P.C. 400 Renaissance Center, Suite 3400 Detroit, MI 48234 313−259−8300 Fax: 313−259−1451 Email: degan@kotzsangster.com ATTORNEY TO BE NOTICED

Krista A. Jackson Kotz Sangster Wysocki P.C. 40 Pearl Street NW Suite 400 Grand Rapids, MI 49503 616−552−6385 Fax: 616−734−6125 Email: kjackson@kotzsangster.com ATTORNEY TO BE NOTICED

Michael J. Pattwell (See above for address) ATTORNEY TO BE NOTICED

Philip A. Grashoff , Jr. Kotz Sangster Wysocki P.C. 36700 Woodward Avenue Suite 202 Bloomfield Hills, MI 48304 248−646−1050 Fax: 248−646−1054 Email: pgrashoff@kotzsangster.com ATTORNEY TO BE NOTICED

Defendant Patrick Cook

represented by Charles E. Barbieri Foster, Swift, 313 S. Washington Square Lansing, MI 48933−2193 517−371−8100 Fax: 517−371−8200 Email: cbarbieri@fosterswift.com ATTORNEY TO BE NOTICED

Michael J. Pattwell

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 11 of 26

(See above for address) ATTORNEY TO BE NOTICED

Defendant Michael Prysby

represented by Charles E. Barbieri (See above for address) ATTORNEY TO BE NOTICED

Michael J. Pattwell (See above for address) ATTORNEY TO BE NOTICED

Defendant Bradley Wurfel

represented by Jay M. Berger (See above for address) ATTORNEY TO BE NOTICED

Jordan S. Bolton (See above for address) ATTORNEY TO BE NOTICED

Michael J. Pattwell (See above for address) ATTORNEY TO BE NOTICED

Defendant Eden Wells

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED

Defendant Nick Lyon

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED

Defendant Linda Dykema

represented by Margaret A. Bettenhausen (See above for address)

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 12 of 26

ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED

Defendant Nancy Peeler

represented by Margaret A. Bettenhausen (See above for address) TERMINATED: 09/22/2016 ATTORNEY TO BE NOTICED

Michael S. Cafferty Michael S. Cafferty & Assoc. 333 W. Fort Street Suite 1400 Detroit, MI 48226 313−964−3070 Email: mcaffe@aol.com ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) TERMINATED: 09/22/2016 ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) TERMINATED: 09/22/2016 ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) TERMINATED: 09/22/2016 ATTORNEY TO BE NOTICED

Defendant Robert Scott

represented by Mary Chartier−Mittendorf 1905 Abbot Road, Suite 1 East Lansing, MI 48823 517−885−3305 Fax: 517−885−3363 Email: mary@cndefenders.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret A. Bettenhausen (See above for address) TERMINATED: 09/22/2016 ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) TERMINATED: 09/22/2016 ATTORNEY TO BE NOTICED

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 13 of 26

Richard S. Kuhl (See above for address) TERMINATED: 09/22/2016 ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) TERMINATED: 09/22/2016 ATTORNEY TO BE NOTICED

Defendant Rowe Professional Service Company

represented by Craig S. Thompson Sullivan, Ward, 25800 Northwestern Highway Suite 1000 Southfield, MI 48075−1000 248−746−0700 Email: cthompson@swappc.com ATTORNEY TO BE NOTICED

Defendant Lockwood, Andrews & Newman, Inc.

represented by David C. Kent Drinker Biddle Reath LLP 1717 Main St. Suite 5400 Dallas, TX 75201 469−356−2535 Fax: 469−357−0860 Email: david.kent@dbr.com ATTORNEY TO BE NOTICED

Philip A. Erickson Plunkett & Cooney 325 E. Grand River Avenue Suite 250 East Lansing, MI 48823 517−324−5608 Email: perickson@plunkettcooney.com ATTORNEY TO BE NOTICED

Robert G. Kamenec Plunkett & Cooney 38505 Woodward Avenue Suite 2000 Bloomfield Hills, MI 48304−5097 248−901−4000 Email: rkamenec@plunkettcooney.com ATTORNEY TO BE NOTICED

Defendant Veolia North America, LLC

represented by Cheryl A. Bush Bush, Seyferth & Paige, PLLC 3001 W. Big Beaver Road Suite 600 Troy, MI 48084 248−822−7800 Fax: 248−822−7001 Email: bush@bsplaw.com ATTORNEY TO BE NOTICED

James M. Campbell Campbell, Campbell, One Constitution Plaza

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 14 of 26

Third Floor Boston, MA 02129−2025 617−241−3000 Fax: 617−241−3060 Email: jmcampbell@campbell−trial−lawyers.com ATTORNEY TO BE NOTICED

John A.K. Grunert Campbell, Campbell, One Constitution Center Suite 300 Boston, MA 02129 617−241−3000 Fax: 617−241−5115 Email: jgrunert@campbell−trial−lawyers.com ATTORNEY TO BE NOTICED

Michael R. Williams Bush Seyferth & Paige PLLC 3001 W. Big Beaver Suite 600 Troy, MI 48084 248−822−7804 Fax: 248−822−7804 Email: williams@bsplaw.com ATTORNEY TO BE NOTICED

Defendant Dayne Walling

represented by William Young Kim (See above for address) ATTORNEY TO BE NOTICED

Defendant Flint, City of

represented by Frederick A. Berg Butzel Long 150 West Jefferson, Suite 100 Detroit, MI 48226 313−225−7000 Fax: 313−225−7080 Email: bergf@butzel.com ATTORNEY TO BE NOTICED

Joseph E. Richotte BUTZEL LONG, P.C. Stoneridge West 41000 Woodward Avenue Bloomfield Hills, MI 48304 (248) 258−1407 Fax: (248) 258−1349 Email: richotte@butzel.com ATTORNEY TO BE NOTICED

Sheldon H. Klein Butzel Long 41000 Woodward Avenue Stoneridge West Bloomfield Hills, MI 48304 248−258−1414 Fax: 248−258−1439 Email: klein@butzel.com ATTORNEY TO BE NOTICED

Stacy Erwin Oakes City of Flint

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 15 of 26

Department of Law 1101 S. Saginaw St., Room 307 Flint, MI 48502 810−766−7146 Fax: 810−232−2114 Email: stacyleoakes@cityofflint.com ATTORNEY TO BE NOTICED

William Young Kim (See above for address) ATTORNEY TO BE NOTICED

Defendant Andrew Dillon

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED

Defendant Leo A Daly Corp.

represented by David C. Kent (See above for address) ATTORNEY TO BE NOTICED

Philip A. Erickson (See above for address) ATTORNEY TO BE NOTICED

Robert G. Kamenec (See above for address) ATTORNEY TO BE NOTICED

Defendant Lockwood, Andrews & Newnam, P.C.

represented by David C. Kent (See above for address) ATTORNEY TO BE NOTICED

Philip A. Erickson (See above for address) ATTORNEY TO BE NOTICED

Robert G. Kamenec (See above for address) ATTORNEY TO BE NOTICED

Defendant Veolia North America, Inc.

represented by Cheryl A. Bush (See above for address) ATTORNEY TO BE NOTICED

James M. Campbell (See above for address) ATTORNEY TO BE NOTICED

John A.K. Grunert (See above for address) ATTORNEY TO BE NOTICED

Michael R. Williams (See above for address)

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 16 of 26

ATTORNEY TO BE NOTICED

Defendant
Veolia North America Operating Services, LLC

represented by Cheryl A. Bush (See above for address) ATTORNEY TO BE NOTICED

James M. Campbell (See above for address) ATTORNEY TO BE NOTICED

John A.K. Grunert (See above for address) ATTORNEY TO BE NOTICED

Michael R. Williams (See above for address) ATTORNEY TO BE NOTICED

Defendant Veolia Environment S.A.

Defendant R. Kevin Clinton

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED

Defendant Mike Brown

represented by William Young Kim (See above for address) ATTORNEY TO BE NOTICED

Defendant Each

V. Movant Village Shores LLC

represented by Emmy L Levens Cohen Milstein Sellers and Toll PLLC 1100 New York Avenue, N W Suite 500, West Tower Washington, DC 20005 202−408−4600 Fax: 202−408−4699 Email: elevens@cohenmilstein.com ATTORNEY TO BE NOTICED

Date Filed 04/06/2016

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645−5632729 − Fee: &#036 400. County of 1st Plaintiff: Genesee − County Where Action Arose: Genesee − County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Document Continuation RICO Statement) (Kresch, Ari) (Entered: 04/06/2016)

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 17 of 26

04/06/2016 04/07/2016 04/07/2016
04/20/2016 04/26/2016 04/26/2016 04/26/2016 04/28/2016 05/02/2016 05/03/2016 05/10/2016
05/10/2016
05/10/2016
05/10/2016
05/10/2016
05/11/2016 05/11/2016 05/17/2016

2 ORDER of DISQUALIFICATION and REASSIGNING CASE from District Judge Paul D. Borman to District Judge Avern Cohn. (SSch) (Entered: 04/06/2016)
3 SUMMONS Issued for * All Defendants * (DAll) (Entered: 04/07/2016)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DAll) (Entered: 04/07/2016)
4 ORDER REASSIGNING CASE from District Judge Avern Cohn and Magistrate Judge Anthony P. Patti in Detroit to District Judge John Corbett O'Meara and Magistrate Judge Mona K. Majzoub in Ann Arbor. (SSch) (Entered: 04/20/2016)
5 ATTORNEY APPEARANCE: Krista A. Jackson appearing on behalf of Stephen Busch w/Certificate of Service (Jackson, Krista) (Entered: 04/26/2016)
6 ATTORNEY APPEARANCE: Dennis K. Egan appearing on behalf of Stephen Busch w/Certificate of Service (Egan, Dennis) (Entered: 04/26/2016)
7 ATTORNEY APPEARANCE: Courtney B. Ciullo appearing on behalf of Stephen Busch w/Certificate of Service (Ciullo, Courtney) (Entered: 04/26/2016)
8 NOTICE of Appearance by Thaddeus E. Morgan on behalf of Liane Shekter Smith. (Morgan, Thaddeus) (Entered: 04/28/2016)
9 NOTICE of Appearance by Michael J. Pattwell on behalf of Bradley Wurfel, Daniel Wyant. (Pattwell, Michael) (Entered: 05/02/2016)
10 NOTICE of Appearance by Philip A. Grashoff, Jr on behalf of Stephen Busch. (Grashoff, Philip) (Entered: 05/03/2016)
11 ATTORNEY APPEARANCE: Margaret A. Bettenhausen appearing on behalf of Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Nancy Peeler, Robert Scott, Richard Dale Snyder, State of Michigan, Eden Wells (Bettenhausen, Margaret) (Entered: 05/10/2016)
12 ATTORNEY APPEARANCE: Nathan A. Gambill appearing on behalf of Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Nancy Peeler, Robert Scott, Richard Dale Snyder, State of Michigan, Eden Wells (Gambill, Nathan) (Entered: 05/10/2016)
13 ATTORNEY APPEARANCE: Richard S. Kuhl appearing on behalf of Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Nancy Peeler, Robert Scott, Richard Dale Snyder, State of Michigan, Eden Wells (Kuhl, Richard) (Entered: 05/10/2016)
14 ATTORNEY APPEARANCE: Zachary C. Larsen appearing on behalf of Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Nancy Peeler, Robert Scott, Richard Dale Snyder, State of Michigan, Eden Wells (Larsen, Zachary) (Entered: 05/10/2016)
15 NOTICE by Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Nancy Peeler, Robert Scott, Richard Dale Snyder, State of Michigan, Eden Wells of Screening Device (Larsen, Zachary) (Entered: 05/10/2016)
16 NOTICE of Appearance by Jay M. Berger on behalf of Bradley Wurfel, Daniel Wyant. (Berger, Jay) (Entered: 05/11/2016)
17 NOTICE of Appearance by Craig S. Thompson on behalf of Rowe Professional Service Company. (Thompson, Craig) (Entered: 05/11/2016)
18 NOTICE of Appearance by Marc J. Bern on behalf of All Plaintiffs. (Bern, Marc) (Entered: 05/17/2016)

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 18 of 26

05/17/2016 05/17/2016 05/24/2016 05/25/2016
05/26/2016 06/02/2016 06/03/2016
06/07/2016 06/07/2016 06/08/2016 06/30/2016
06/30/2016
07/01/2016
07/26/2016
08/12/2016 08/12/2016
08/12/2016 08/12/2016 08/12/2016 08/12/2016 08/12/2016

19 NOTICE of Appearance by Chet W. Kern on behalf of All Plaintiffs. (Kern, Chet) (Entered: 05/17/2016)
20 NOTICE of Appearance by William Young Kim on behalf of City of Flint, Howard Croft, Dayne Walling. (Kim, William) (Entered: 05/17/2016)
21 NOTICE of Appearance by Jordan S. Bolton on behalf of Bradley Wurfel, Daniel Wyant. (Bolton, Jordan) (Entered: 05/24/2016)
22 STIPULATION AND ORDER Extending Time for Defendants Bradley, Wurfel, Wyant, Busch, Shekter−Smith, Cook, Prysby, and Rosenthal to Respond to Amended Complaint; Responsive Pleading due by 8/12/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 05/25/2016)
23 NOTICE of Appearance by Stacy Erwin Oakes on behalf of City of Flint. (Erwin Oakes, Stacy) (Entered: 05/26/2016)
24 ATTORNEY APPEARANCE: Charles E. Barbieri appearing on behalf of Patrick Cook, Michael Prysby (Barbieri, Charles) (Entered: 06/02/2016)
25 STIPULATION AND ORDER Extending Time for Plaintiffs to Amend 1 Complaint; Amended Complaint due on or before July 1, 2016; Defendants' Responsive Pleading due on or before August 12, 2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/03/2016)
26 NOTICE of Appearance by Sheldon H. Klein on behalf of City of Flint. (Klein, Sheldon) (Entered: 06/07/2016)
27 NOTICE of Appearance by Frederick A. Berg on behalf of City of Flint. (Berg, Frederick) (Entered: 06/07/2016)
28 NOTICE of Appearance by Joseph E. Richotte on behalf of City of Flint. (Richotte, Joseph) (Entered: 06/08/2016)
29 AMENDED COMPLAINT with Jury Demand filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Attachments: # 1 Exhibit RICO Statement) (Kresch, Ari) (Entered: 06/30/2016)
REQUEST for SUMMONS for Andrew Dillon, Leo A Daly Corp., Lockwood, Andrews & Newnam, P.C., Veolia Environment S.A., Veolia North America Operating Services, LLC, Veolia North America, Inc.. (Kresch, Ari) (Entered: 06/30/2016)
30 SUMMONS Issued for *Andrew Dillon, Leo A Daly Corp., Lockwood, Andrews & Newnam, P.C., Veolia Environment S.A., Veolia North America Operating Services, LLC, Veolia North America, Inc.* (DPer) (Entered: 07/01/2016)
31 NOTICE of Appearance by David C. Kent on behalf of Leo A Daly Corp., Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newnam, P.C.. (Kent, David) (Entered: 07/26/2016)
32 STIPULATION AND ORDER Regarding Second Amended Complaint and Response, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/12/2016)
33 AMENDED COMPLAINT with Jury Demand filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Attachments: # 1 Exhibit Second Amended RICO Statement) (Radner, Solomon) (Entered: 08/12/2016)
REQUEST for SUMMONS for R. Kevin Clinton, Each. (Radner, Solomon) (Entered: 08/12/2016)
34 SUMMONS Issued for *R. Kevin Clinton* (Ahmed, N) (Entered: 08/12/2016)
35 SUMMONS Issued for *Each* (Ahmed, N) (Entered: 08/12/2016)
36 ANSWER to Complaint with Affirmative Defenses by Ed Kurtz. (Gildner, Michael) (Entered: 08/12/2016)
37 CERTIFICATE OF SERVICE re 36 Answer to Complaint by Ed Kurtz (Gildner, Michael) (Entered: 08/12/2016)

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 19 of 26

08/25/2016 09/09/2016 09/09/2016 09/16/2016 09/19/2016 09/19/2016
09/19/2016 09/19/2016 09/20/2016
09/21/2016
09/21/2016
09/21/2016 09/22/2016 09/22/2016 09/22/2016 09/22/2016

38 NOTICE of Appearance by Philip A. Erickson on behalf of Leo A Daly Corp., Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newnam, P.C.. (Erickson, Philip) (Entered: 08/25/2016)
39 MOTION for Leave to File Excess Pages by R. Kevin Clinton, Andrew Dillon, Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Richard Dale Snyder, State of Michigan, Eden Wells. (Larsen, Zachary) (Entered: 09/09/2016)
TEXT−ONLY ORDER Granting 39 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/09/2016)
40 Ex Parte MOTION for Leave to File Excess Pages w/Brief and Certificate of Service by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith. (Attachments: # 1 Exhibit A) (Ciullo, Courtney) (Entered: 09/16/2016)
41 NOTICE of Appearance by Michael H. Perry on behalf of Liane Shekter Smith. (Perry, Michael) (Entered: 09/19/2016)
42 STIPULATED ORDER Extending Time To Respond to 33 Amended Complaint, ( Responsive Pleading due by 10/6/2016 for Defendants City of Flint, Dayne Walling, Howard Croft, Michael Glasgow, Mike Brown, Darnell Earley, Gerald Ambrose, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/19/2016)
43 STIPULATED ORDER Granting Leave for Defendants Daniel Wyant and Bradley Wurfel to File Excess Pages, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/19/2016)
TEXT−ONLY ORDER Granting 40 Ex Parte MOTION for Leave to File Excess Pages filed by Stephen Busch, Michael Prysby, Patrick Cook, Liane Shekter Smith. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/19/2016)
44 STIPULATION for Extension of Time to File Responsive Pleadings by R. Kevin Clinton, Andrew Dillon, Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Nancy Peeler, Robert Scott, Richard Dale Snyder, State of Michigan, Eden Wells (Larsen, Zachary) (Entered: 09/20/2016)
45 STIPULATION to Substitute Counsel for Robert Scott by R. Kevin Clinton, Andrew Dillon, Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Nancy Peeler, Robert Scott, Richard Dale Snyder, State of Michigan, Eden Wells (Larsen, Zachary) (Entered: 09/21/2016)
46 STIPULATION to Substitute Counsel for Nancy Peeler by R. Kevin Clinton, Andrew Dillon, Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Nancy Peeler, Robert Scott, Richard Dale Snyder, State of Michigan, Eden Wells (Larsen, Zachary) (Entered: 09/21/2016)
47 STIPULATION to Extend Time to File Responsive Pleadings by Leo A Daly Corp., Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newnam, P.C. (Erickson, Philip) (Entered: 09/21/2016)
48 STIPULATION For Extension of Time to File Responsive Pleadings by Rowe Professional Service Company (Thompson, Craig) (Entered: 09/22/2016)
49 ATTORNEY APPEARANCE: Michael S. Cafferty appearing on behalf of Nancy Peeler (Cafferty, Michael) (Entered: 09/22/2016)
50 ORDER Granting 44 Stipulation for Extension of Time to Respond to 33 Amended Complaint; Responsive Pleading due by 10/6/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/22/2016)
51 ORDER re 45 Stipulation to Substitute Counsel for Robert Scott. Attorney Mary Chartier. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/22/2016)

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 20 of 26

09/22/2016 09/22/2016
09/22/2016
09/22/2016
09/23/2016 09/30/2016 09/30/2016 09/30/2016
09/30/2016
10/05/2016 10/05/2016 10/05/2016 10/05/2016
10/06/2016 10/06/2016 10/06/2016 10/06/2016

52 ORDER re 46 Stipulation to Substitute Counsel for Nancy Peeler. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/22/2016)
53 ORDER re 47 Stipulation filed by Lockwood, Andrews & Newman, Inc., Leo A Daly Corp., Lockwood, Andrews & Newnam, P.C., for Extension of Time to Respond to 33 Amended Complaint; Responsive Pleading due by 10/22/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/22/2016)
54 ORDER re 48 Stipulation filed by Rowe Professional Service Company for an Extension of Time to Respond to 33 Amended Complaint; Responsive Pleading due by 10/13/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/22/2016)
55 MOTION to Dismiss , Brief in Support and Certificate of Service by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H) (Jackson, Krista) (Entered: 09/22/2016)
56 STIPULATION AND ORDER Extending Time for Defendants Wyant and Wurfel to Respond to 33 Amended Complaint; Responsive Pleading due by 9/30/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/23/2016)
57 ATTORNEY APPEARANCE: Robert G. Kamenec appearing on behalf of Leo A Daly Corp., Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newnam, P.C. (Kamenec, Robert) (Entered: 09/30/2016)
58 STIPULATED ORDER Extending Time to File Responsive Pleading to 33 Amended Complaint, Responsive Pleading due by 10/13/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/30/2016)
59 MOTION to Dismiss by Daniel Wyant. (Attachments: # 1 Index of Exhibits Index of Unpublished Cases, # 2 Exhibit Boler v Early (unpublished case), # 3 Exhibit Rouse v Caruso (unpublished case), # 4 Exhibit Schreiber v Cnty. of Crawford (unpublished case)) (Bolton, Jordan) (Entered: 09/30/2016)
60 MOTION to Dismiss by Bradley Wurfel. (Attachments: # 1 Exhibit A, # 2 Index of Exhibits Index of Unpublished Cases, # 3 Exhibit Bolder v Early (unpublished case), # 4 Exhibit Rouse v Caruso (unpublished case), # 5 Exhibit Schreiber v Cnty. of Crawford (unpublished case)) (Bolton, Jordan) (Entered: 09/30/2016)
61 STIPULATION to extend time to respond by Robert Scott (Attachments: # 1 Exhibit Proposed Order (also submitted as Word document)) (Chartier−Mittendorf, Mary) (Entered: 10/05/2016)
62 STIPULATION re 33 Amended Complaint for Extension of Time to File Responsive Pleadings by Nancy Peeler (Cafferty, Michael) (Entered: 10/05/2016)
63 ORDER Granting 61 Stipulation for Extension of time for Defendant Robert Scott to Answer 29 Amended Complaint; Responsive Pleading due by 10/31/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/05/2016)
TEXT−ONLY ORDER Granting 62 Stipulation to Extend Time for Defendant Nancy Peeler to File Responsive Pleading to 29 Amended Complaint; Responsive Pleading due by 10/28/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/05/2016)
64 NOTICE of Appearance by Morley Witus on behalf of Richard Dale Snyder. (Witus, Morley) (Entered: 10/06/2016)
65 NOTICE of Appearance by Todd R. Mendel on behalf of Richard Dale Snyder. (Mendel, Todd) (Entered: 10/06/2016)
66 NOTICE of Appearance by Eugene Driker on behalf of Richard Dale Snyder. (Driker, Eugene) (Entered: 10/06/2016)
67 MOTION to Dismiss Under Fed. R. Civ. Proc. 12(b)(1) & (6) by R. Kevin Clinton, Andrew Dillon, Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Richard Dale Snyder, State of Michigan, Eden Wells. (Attachments: # 1 Index of

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 21 of 26

10/11/2016 10/12/2016 10/12/2016 10/13/2016 10/13/2016 10/13/2016 10/13/2016
10/13/2016 10/14/2016 10/21/2016 10/21/2016 10/21/2016
10/24/2016 10/27/2016

Exhibits, # 2 Exhibit Ex. 1, # 3 Exhibit Ex. 2, # 4 Exhibit Ex. 3, # 5 Exhibit Ex. 4) (Larsen, Zachary) (Entered: 10/06/2016)
68 MOTION for Leave to File Excess Pages Of Its Brief In Support Of Its Motion To Dismiss Second Amended Class Action Complaint by City of Flint. (Berg, Frederick) (Entered: 10/11/2016)
69 NOTICE of Appearance by William Young Kim on behalf of Gerald Ambrose, Mike Brown, Darnell Earley, Michael Glasgow. (Kim, William) (Entered: 10/12/2016)
70 Ex Parte MOTION for Leave to File Excess Pages by Gerald Ambrose, Mike Brown, Howard Croft, Darnell Earley, Michael Glasgow, Dayne Walling. (Kim, William) (Entered: 10/12/2016)
TEXT−ONLY ORDER Granting in Part 68 MOTION for Leave to File Excess Pages; Brief shall not exceed forty (40) pages, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/13/2016)
TEXT−ONLY ORDER Granting 70 Ex Parte MOTION for Leave to File Excess Pages, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/13/2016)
71 ANSWER to Amended Complaint with Affirmative Defenses by Rowe Professional Service Company. (Thompson, Craig) (Entered: 10/13/2016)
72 MOTION to Dismiss by City of Flint. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−City of Flint Water System Questions and Answers, # 3 Exhibit 2−Termination Letter, # 4 Exhibit 3−Flint Charter, # 5 Exhibit 4−Flint Ordinances, # 6 Exhibit 5−Unpublished Cases, # 7 Exhibit 6−Opinions in Collins v. Snyder and Vale v. City of Flint) (Klein, Sheldon) (Entered: 10/13/2016)
73 MOTION to Dismiss Plaintiffs' Second Amended Complaint by Gerald Ambrose, Mike Brown, Howard Croft, Darnell Earley, Michael Glasgow, Dayne Walling. (Attachments: # 1 Exhibit Unpublished Cases and City Charter/Code Provisions) (Kim, William) (Entered: 10/13/2016)
74 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Rowe Professional Service Company (Thompson, Craig) (Entered: 10/14/2016)
75 MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Cause of Action by Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newnam, P.C.. (Attachments: # 1 Exhibit A − Unpublished Cases) (Erickson, Philip) (Entered: 10/21/2016)
76 Ex Parte MOTION for Leave to File Excess Pages by Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newnam, P.C.. (Erickson, Philip) (Entered: 10/21/2016)
77 MOTION to Dismiss Plaintiffs' Second Amended Class Action Complaint for Lack of Personal Jurisdiction, Rule 12(b)(2), and for Failure to State a Claim Upon Which Relief Can Be Granted, Rule 12(b)(6) by Leo A Daly Corp.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Unpublished Case, # 3 Exhibit B − Affidavit of Edward Benes) (Kamenec, Robert) (Entered: 10/21/2016)
TEXT−ONLY ORDER Granting 76 Ex Parte MOTION for Leave to File Excess Pages filed by Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newnam, P.C. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/24/2016)
78 MOTION to Change Venue by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G1, # 9 Exhibit G2, # 10 Exhibit G3, # 11 Exhibit G4, # 12 Exhibit G5, # 13 Exhibit G6, # 14 Exhibit H, # 15 Exhibit I, # 16 Exhibit J, # 17 Exhibit K, # 18 Exhibit L, # 19 Exhibit M, # 20 Exhibit N, # 21 Exhibit O, # 22 Exhibit P, # 23 Exhibit Q, # 24 Exhibit R) (Grashoff, Philip) (Entered: 10/27/2016)

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 22 of 26

10/28/2016 10/31/2016 10/31/2016 10/31/2016 11/03/2016
11/03/2016
11/03/2016
11/03/2016 11/08/2016 11/08/2016 11/09/2016 11/10/2016
11/11/2016 11/17/2016

79 MOTION to Dismiss and Joinder in Motions to Dismiss of Co−Defendants, Memorandum in Support, Certificate of Service by Nancy Peeler. (Attachments: # 1 Index of Exhibits INDEX OF EXHIBITS, # 2 Exhibit EXHIBIT 1 − UNPUBLISHED OPINION − BOLER V EARLY) (Cafferty, Michael) (Entered: 10/28/2016)
80 STIPULATED ORDER Extending Time for Response/Reply to 55 MOTION to Dismiss; Response due by 12/27/2016, Reply due by 2/10/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/31/2016)
81 MOTION to Dismiss by Robert Scott. (Attachments: # 1 Exhibit Certificate of Compliance) (Chartier−Mittendorf, Mary) (Entered: 10/31/2016)
82 MOTION for Leave to File Excess Pages by Robert Scott. (Attachments: # 1 Exhibit Proposed Order) (Chartier−Mittendorf, Mary) (Entered: 10/31/2016)
83 RESPONSE to 72 MOTION to Dismiss by State Defendants filed by R. Kevin Clinton, Andrew Dillon, Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Richard Dale Snyder, State of Michigan, Eden Wells. (Larsen, Zachary) Modified on 11/3/2016 (SOso). [DOCUMENT TITLED STATE DEFENDANT'S RESPONSE TO THE INDIVIDUAL CITY DEFENDANT'S MOTION TO DISMISS]. (Entered: 11/03/2016)
84 RESPONSE to 72 MOTION to Dismiss by State Defendants filed by R. Kevin Clinton, Andrew Dillon, Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Richard Dale Snyder, State of Michigan, Eden Wells. (Larsen, Zachary) Modified on 11/3/2016 (SOso). [DOCUMENT TITLED STATE DEFENDANT'S RESPONSE TO THE CITY OF FLINT'S MOTION TO DISMISS]. (Entered: 11/03/2016)
85 RESPONSE to 73 MOTION to Dismiss Plaintiffs' Second Amended Complaint (Amended Filing) filed by R. Kevin Clinton, Andrew Dillon, Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Richard Dale Snyder, State of Michigan, Eden Wells. (Larsen, Zachary) Modified on 11/3/2016 (SOso). [DOCUMENT TITLED STATE DEFENDANT'S RESPONSE TO THE INDIVIDUAL CITY DEFENDANT'S MOTION TO DISMISS]. (Entered: 11/03/2016)
TEXT−ONLY ORDER Granting 82 MOTION for Leave to File Excess Pages filed by Robert Scott. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/03/2016)
86 RESPONSE to 78 MOTION to Change Venue (Concurrence) by the MDEQ Defendants filed by Veolia North America Operating Services, LLC, Veolia North America, Inc., Veolia North America, LLC. (Bush, Cheryl) (Entered: 11/08/2016)
87 STIPULATED ORDER Extending Time to File Response/Reply to 78 MOTION to Change Venue, Response due by 12/1/2016, Reply due by 12/31/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/08/2016)
88 NOTICE of Appearance by Michael R. Williams on behalf of Veolia North America Operating Services, LLC, Veolia North America, Inc., Veolia North America, LLC. (Williams, Michael) (Entered: 11/09/2016)
89 RESPONSE to 78 MOTION to Change Venue filed by R. Kevin Clinton, Andrew Dillon, Linda Dykema, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Dennis Muchmore, Richard Dale Snyder, State of Michigan, Eden Wells. (Bettenhausen, Margaret) (Entered: 11/10/2016)
90 RESPONSE to 78 MOTION to Change Venue filed by City of Flint. (Berg, Frederick) (Entered: 11/11/2016)
91 MOTION for Leave to File Excess Pages by Veolia North America Operating Services, LLC, Veolia North America, Inc., Veolia North America, LLC. (Bush, Cheryl) (Entered: 11/17/2016)

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 23 of 26

11/21/2016 11/21/2016 11/22/2016 11/22/2016 11/22/2016 11/22/2016 11/22/2016 11/23/2016
11/30/2016 11/30/2016 11/30/2016 12/01/2016 12/01/2016 12/01/2016 12/09/2016 12/14/2016

TEXT−ONLY ORDER Granting 91 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/21/2016)
92 REPLY to Response re 78 MOTION to Change Venue filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit A) (Pattwell, Michael) (Entered: 11/21/2016)
93 STIPULATION AND ORDER Extending Time to File Reply re 78 MOTION to Change Venue; Reply due by 12/31/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/22/2016)
94 STIPULATED ORDER Extending Time to File Response/Reply re 55 MOTION to Dismiss, 59 MOTION to Dismiss, 60 MOTION to Dismiss; Response due by 12/27/2016, Reply due by 2/10/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/22/2016)
95 STIPULATED ORDER Extending Time to File Response/Reply re 67 MOTION to Dismiss; Response due by 12/21/2016, Reply due by 1/11/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/22/2016)
96 STIPULATED ORDER Extending Time to Respond/Reply to 79 MOTION to Dismiss; Response due by 1/3/2017, Reply due by 2/10/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/22/2016)
97 STIPULATED ORDER Extending Time to Respond/Reply to 81 MOTION to Dismiss; Response due by 1/14/2017, Reply due by 2/14/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/22/2016)
98 MOTION to Dismiss or, In the Alternative, Motion for More Definite Statement by Veolia North America Operating Services, LLC, Veolia North America, Inc., Veolia North America, LLC. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Unpublished Authorities, # 3 Exhibit 2 − Contract Between City of Flint and VWNAOS) (Williams, Michael) (Entered: 11/23/2016)
99 NOTICE of Appearance by James M. Campbell on behalf of Veolia North America Operating Services, LLC, Veolia North America, Inc., Veolia North America, LLC. (Campbell, James) (Entered: 11/30/2016)
100 STIPULATED ORDER Extending Time to Respond/Reply to 78 MOTION to Change Venue; Response due by 12/15/2016, Reply due by 1/13/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/30/2016)
101 NOTICE of Appearance by John A.K. Grunert on behalf of Veolia North America Operating Services, LLC, Veolia North America, Inc., Veolia North America, LLC. (Grunert, John) (Entered: 11/30/2016)
102 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Veolia North America, LLC identifying Corporate Parent Veolia Environnement S.A. for Veolia North America, LLC. (Bush, Cheryl) (Entered: 12/01/2016)
103 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Veolia North America, Inc. identifying Corporate Parent Veolia Environnement S.A. for Veolia North America, Inc.. (Bush, Cheryl) (Entered: 12/01/2016)
104 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Veolia North America Operating Services, LLC identifying Corporate Parent Veolia Environnement S.A. for Veolia North America Operating Services, LLC. (Bush, Cheryl) (Entered: 12/01/2016)
105 STIPULATED ORDER Extending Time to Respond/Reply to 98 MOTION to Dismiss; Response due by 2/10/2017, Reply due by 3/24/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/09/2016)
106 STIPULATED ORDER Extending Time to Respond/Reply to 67 MOTION to Dismiss; Response due by 1/20/2017, Reply due by 2/3/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/14/2016)

Case: 5:16-cv-11247 As of: 04/02/2018 12:00 AM EDT 24 of 26

12/14/2016 12/14/2016 12/14/2016 12/22/2016 12/22/2016 12/22/2016 01/07/2017 01/23/2017 01/25/2017 02/02/2017 02/09/2017 02/09/2017 02/10/2017 02/10/2017 02/10/2017 02/17/2017

107 STIPULATED ORDER Extending Time to Respond/Reply to 77 MOTION to Dismiss, and 75 MOTION to Dismiss; Response due by 2/10/2017, Reply due by 3/24/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/14/2016)
108 STIPULATED ORDER Extending Time to Respond/Reply to 78 MOTION to Change Venue; Response due by 2/1/2017, Reply due by 2/15/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/14/2016)
109 STIPULATED ORDER Extending Time to Respond/Reply to 55 MOTION to Dismiss; Response due by 2/15/2017, Reply due by 3/1/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/14/2016)
110 STIPULATED ORDER Extending Time to Respond/Reply to 81 MOTION to Dismiss; Response due by 2/17/2017, Reply due by 3/3/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/22/2016)
111 STIPULATED ORDER Extending Time to Respond/Reply to 79 MOTION to Dismiss; Response due by 2/17/2017, Reply due by 3/3/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/22/2016)
112 STIPULATED ORDER Extending Time to Respond/Reply to 73 MOTION to Dismiss Plaintiffs' Second Amended Complaint; Response due by 2/17/2017, Reply due by 3/3/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 12/22/2016)
113 NOTICE of Joinder/Concurrence in 78 MOTION to Change Venue filed by Bradley Wurfel, Stephen Busch, Michael Prysby, Patrick Cook, Daniel Wyant, Liane Shekter Smith by Robert Scott (Chartier−Mittendorf, Mary) (Entered: 01/07/2017)
114 STIPULATED ORDER Extending Time to Respond/Reply to 67 MOTION to Dismiss; Response due by 2/20/2017, Reply due by 3/6/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 01/23/2017)
115 NOTICE of Non−Party Fault by Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newnam, P.C. (Erickson, Philip) (Entered: 01/25/2017)
116 STIPULATION AND ORDER Extending Time to Respond/Reply to 78 MOTION to Change Venue; Response due by 3/10/2017, Reply due by 4/3/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/02/2017)
117 STIPULATED ORDER Extending Time to Respond/Reply to 77 MOTION to Dismiss, 75 MOTION to Dismiss; Response due by 4/7/2017, Reply due by 4/28/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/09/2017)
118 STIPULATED ORDER Extending Time to Respond/Reply to 98 MOTION to Dismiss; Response due by 4/7/2017, Reply due by 4/28/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/09/2017)
119 STIPULATED ORDER Extending Time to Respond/Reply to 55 MOTION to Dismiss, 59 MOTION to Dismiss, 60 MOTION to Dismiss; Response due by 4/15/2017, Reply due by 5/20/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/10/2017)
120 STIPULATED ORDER Extending Time to Respond/Reply to 72 MOTION to Dismiss , 73 MOTION to Dismiss Plaintiffs' Second Amended Complaint; Response due by 4/15/2017, Reply due by 5/20/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/10/2017)
121 STIPULATED ORDER Extending Time to Respond/Reply to 81 MOTION to Dismiss; Response due by 4/15/2017, Reply due by 5/20/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/10/2017)
122 STIPULATED ORDER Extending Time to Respond/Reply re 79 MOTION to Dismiss; Response due by 4/15/2017, Reply due by 5/20/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/17/2017)

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02/21/2017 02/23/2017 02/23/2017 02/23/2017 02/23/2017 03/08/2017
03/22/2017
04/17/2017 04/18/2017 04/18/2017 04/18/2017 04/26/2017
04/28/2017 05/12/2017 05/15/2017 05/19/2017 05/24/2017

123 STIPULATED ORDER Extending Time to Respond/Reply to 67 MOTION to Dismiss; Response due by 4/15/2017, Reply due by 5/20/2017, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/21/2017)
124 ORDER of Attorney Substitution with stipulation. Attorney Barry A. Wolf for Gerald Ambrose added. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/23/2017)
125 ORDER of Attorney Substitution with stipulation. Attorney Alexander S. Rusek for Howard Croft added. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/23/2017)
126 ORDER of Attorney Substitution with stipulation. Attorney Todd Russell Perkins for Darnell Earley added. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/23/2017)
127 ORDER of Attorney Substitution with stipulation. Attorney Brett T. Meyer for Michael Glasgow added. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/23/2017)
128 MOTION to Compel Discovery from Defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter−Smith, Bradley Wurfel, and Daniel Wyant by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Defendants Motion to Change Venue (Doc. 78), # 3 Exhibit B − Declaration of Dr. Bryan Edelman. Ph.D., # 4 Exhibit C − Plaintiffs Request for Production of Documents, # 5 Exhibit D − Documents produced) (Kern, Chet) (Entered: 03/08/2017)
129 RESPONSE to 128 MOTION to Compel Discovery from Defendants Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter−Smith, Bradley Wurfel, and Daniel Wyant filed by Stephen Busch, Patrick Cook, Michael Prysby, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Pattwell, Michael) (Entered: 03/22/2017)
130 NOTICE of Appearance by Nikkiya Branch on behalf of Darnell Earley. (Branch, Nikkiya) (Entered: 04/17/2017)
131 STIPULATED ORDER Granting a Suspension of Time to File Responsive Pleading until Plaintiffs' Motion to Compel is Resolved, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 04/18/2017)
132 STIPULATED ORDER Granting a Suspension of Time to file Responses to Motion to Change Venue. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 04/18/2017)
133 STIPULATED ORDER STAYING CASE Pending Appeals, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 04/18/2017)
134 MOTION Correct Plaintiff's mistaken Stipulation and Strike VE's name re 133 Order Staying Case by Veolia North America Operating Services, LLC, Veolia North America, Inc., Veolia North America, LLC. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit 1, # 3 Exhibit 1) (Bush, Cheryl) (Entered: 04/26/2017)
135 Notice of Determination of Motion Without Oral Argument re 134 MOTION Correct Plaintiff's mistaken Stipulation and Strike VE's name re 133 Order Staying Case (WBar) (Entered: 04/28/2017)
136 ORDER of DISQUALIFICATION and REASSIGNING CASE from District Judge John Corbett O'Meara in Ann Arbor to District Judge Paul D. Borman in Detroit. (SSch) (Entered: 05/12/2017)
137 ORDERS of RECUSAL. Case Reassigned to District Judge Judith E. Levy (SSch) (Entered: 05/16/2017)
138 STIPULATION to Extend Time for Defendants to File Their Responsive Pleadings by Leo A Daly Corp., Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newnam, P.C. (Erickson, Philip) (Entered: 05/19/2017)
TEXT−ONLY ORDER Granting 138 Stipulation to Extend Time for Defendants Lockwood, Andrews and Newman, Inc., Lockwood, Andrews and Newnam, P.C., and Leo A. Daly Company to File Their Responsive Pleadings within 30 days following

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06/08/2017
06/09/2017 06/29/2017 07/26/2017 07/27/2017 07/28/2017

the Lifting of the Stay − Issued by District Judge Judith E. Levy. (FMos) (Entered: 05/24/2017)
139 ORDER Regarding Status Conference in All Flint Water Cases: ( In−Person Status Conference set for 7/26/2017 at 1:00 PM in Courtroom 1 before District Judge Judith E. Levy) − Signed by District Judge Judith E. Levy. (FMos) (Entered: 06/08/2017)
140 NOTICE by Village Shores LLC Notice of Motion to Consolidate (Attachments: # 1 Exhibit 1) (Levens, Emmy) (Entered: 06/09/2017)
141 NOTICE by Robert Scott NOTICE OF SUBSTITUTION OF COUNSEL (Chartier−Mittendorf, Mary) (Entered: 06/29/2017)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 7/26/2017. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 07/26/2017)
142 ORDER consolidating cases. (See order for details.) Signed by District Judge Judith E. Levy. (DPer) (Entered: 07/28/2017)
143 Notice to Parties Regarding Consolidated Case: Order of consolidation entered on *07/27/17*. Designated lead case number is *16−10444*. (DPer) (Entered: 07/28/2017)


[CONTENT] Flint | Flint | Michigan ||| April 6, 2016 | fifteen | Flint | Michigan | the U.S. District Court | the Eastern District | Michigan ||| Michigan | the Michigan Department of Environmental Quality | the City of Flint | three | under 42 | 1983 | Racketeer Influenced and Corrupt Organizations Act | RICO | 18 | U.S.C | 1964 ||| RICO ||| Detroit Water and Sewerage Department | DWSD | roughly half a century ||| 2014 | Flint | the Flint River ||| the Flint River | the Karegnondi Water Authority | the Flint River ||| Flint | RICO |||  ||| Fourteenth Amendment | Equal Protection | DWSD | the Flint River ||| six | DWSD | the Flint River | Black City of Flint | Flint River ||| 15-14002 | April 20, 2016 | John Corbertt | Magistrate | Mona K. Majzoub | Ann Arbor ||| June 30, 2016 | the Michigan Department of Health and Human Services | MDHHS | the State of Michigan | four | Flint | the City of Flint ||| August 12, 2016 ||| October 6, 2016 | the State of Michigan | MDHHS ||| the City of Flint | second ||| October 21st, 28th ||| Eleventh Amendment | Court | the Safe Drinking Water Act ||| two | the U.S. Court of Appeals | 15-14002 ||| 16-10323 ||| April 18, 2017 | John Corbett | two ||| July 27, 2017 | seven | the Flint Water Crisis | PB-MI-0014 | Clearinghouse |||  ||| Clearinghouse [SUMMARY] This case arose from the Flint water crisis, a public health emergency in which the city of Flint, Michigan supplied water that contained elevated levels of lead to the public. On April 6, 2016, fifteen residents of Flint, Michigan filed this class action lawsuit in the U.S. District Court for the Eastern District of Michigan. The plaintiffs sued the Governor of Michigan, his chief of staff, the Michigan Department of Environmental Quality (MDEQ), several other government agencies, the City of Flint, and three corporations under 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C § 1964), and state law. The plaintiffs, represented by private counsel, alleged that defendants’ involvement in the supply of lead-contaminated drinking water violated their Fourteenth Amendment Due Process and Equal Protection rights, RICO, and state law.

Flint had purchased water from the high quality Detroit Water and Sewerage Department (DWSD) for roughly half a century before the crisis. But in 2014, led by an Emergency Manager, Flint switched its water source to the Flint River as a way to address the city’s financial problems. The plaintiffs alleged that, because the Flint River was only a temporary solution until the City could be connected to the Karegnondi Water Authority, the state knew that the Flint River was low quality even before connecting the City to the source. The plaintiffs claimed that by continuing to charge the residents of Flint the same amount for water despite the significantly lower quality, the defendants were fraudulently engaged in a RICO scheme by selling unsafe water. Specifically, the plaintiffs claimed that this deprived them of both contractually guaranteed property and bodily integrity rights protected under a substantive due process framework.

Further, the plaintiffs alleged that their Fourteenth Amendment right to Equal Protection was violated because the switch from the DWSD to the Flint River was motivated by racism. The plaintiffs’ evidence of racial discrimination was the fact that, of the six municipalities that bought water from DWSD through which the Flint River flowed, only the predominantly Black City of Flint was switched to the Flint River source.

Because this case appeared to be a companion case to <i>Mays v. Snyder</i> (Case No. 15-14002), on April 20, 2016, this case was reassigned to District Judge John Corbertt O’Meara and Magistrate Judge Mona K. Majzoub in Ann Arbor.

On June 30, 2016, the plaintiffs filed an amended complaint, adding a jury demand and several additional defendants in their official capacities at all times relevant to the complaint, some of which included the Michigan Department of Health and Human Services (MDHHS), the former treasurer of the State of Michigan, all four emergency managers assigned to the city of Flint, the elected mayor of the City of Flint, and the directors and managers of several city and state health programs and water treatment plants. Another amended complaint was filed by the plaintiffs on August 12, 2016.

On October 6, 2016, the State of Michigan, the Governor, MDEQ, MDHHS, and several individual government employees being sued in their official capacity filed a motion to dismiss. Another group of defendants—the Emergency Managers and City Officials of the City of Flint named in their official capacity as defendants in the suit—also filed a motion to dismiss the plaintiffs’ second amended complaint for similar reasoning as the other defendants. Additional motions to dismiss were filed on October 21st, 28th, and 31st. Although filed separately, all of the motions argued primarily the same reasons for dismissing the plaintiffs’ suit: the state defendants were entitled to Eleventh Amendment immunity and the Court had already declared that the only federal remedy available for the plaintiffs’ grievances is the Safe Drinking Water Act.

Meanwhile, two cases with similar claims had recently been decided and were consolidated on appeal in the U.S. Court of Appeals for the Sixth Circuit: <a href=https://clearinghouse.net/detail.php?id=17168><i>Mays v. Snyder</i></a> (Case No. 15-14002) and <i>Boler v. Earley</i> (Case No. 16-10323). On April 18, 2017, the parties in this case stipulated, and Judge John Corbett O’Meara granted, a stay on all aspects of this case, pending the consolidated appeals of these two cases. 

On July 27, 2017, this case, along with seven other cases litigating the Flint Water Crisis, were consolidated with <a href="https://www.clearinghouse.net/detail.php?id=16508"><i>Waid v. Snyder</i></a>, PB-MI-0014 in this Clearinghouse. All motions pending in this case were denied without prejudice. See the Clearinghouse record for <i>Waid</i> for all subsequent litigation.  