If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH FINDLER IV, UNPUBLISHED
July 14, 2022
Plaintiff-Appellant,
v No. 358156
Court of Claims
DEPARTMENT OF TECHNOLOGY LC No. 20-000090-MZ
MANAGEMENT AND BUDGET,
Defendant-Appellee.
Before: SAWYER, P.J., and LETICA and PATEL, JJ.
PER CURIAM.
Plaintiff appeals from an order of the court of claims granting summary disposition to
defendant under MCR 2.116(C)(10) (no genuine issue of material fact). We affirm.
Plaintiff was an unsuccessful applicant for a position with defendant. Thereafter, plaintiff
made numerous requests under the Freedom of Information Act (FOIA), MCL 15.231 et seq., for
documents relating to the hiring process.1 Although many documents were produced, plaintiff was
not satisfied that defendant fully complied. Plaintiff filed the instant action, alleging in Count I
various violations of FOIA, and in Count II that defendant destroyed or failed to retain various
records in violation of FOIA, the Management and Budget Act (MBA), MCL 18.1101 et seq., and
the Michigan History Center Act (MHCA), MCL 399.801 et seq.
1
There were four separate requests. Generally speaking, the first requested documents relative to
his nonselection for the position, the second requested documents related to defendant’s document
retention and disposal schedules, the third request sought records related to the first two, such as
emails, notes, etc., and the fourth (and largest) request, which covered various documents,
including emails, social media, and other digital records.
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The trial court summarized the facts of this case as follows:
According to the allegations contained in plaintiff’s complaint, plaintiff
applied and interviewed for a job as the Chief Security Officer with defendant
Department of Technology, Management, and Budget. Plaintiff was ultimately
not chosen for the position. In the months that followed, plaintiff submitted
four, multi-faceted FOIA requests pertaining to himself, other candidates, and
the job-selection process. Defendant disclosed hundreds of pages of documents
in response to the requests. The primary dispute now at issue concern [sic]
defendant’s assertions that certain requested records do not exist, as well as
plaintiff’s allegations that defendant destroyed certain records.
The trial court initially granted summary disposition as to Count II of plaintiff’s complaint and
partial summary disposition on Count I, leaving only the remaining FOIA claims in Count I.
Thereafter, defendant moved for summary disposition on the remaining count, which the trial court
granted.2 Plaintiff now appeals and we affirm.
Plaintiff first argues that the trial court erred in granting summary disposition on the
remaining portions of Count I of plaintiff’s complaint, thus resolving the case. We disagree. The
standard of review applicable to this case was summarized in Bronson Methodist Hosp v Auto-
Owners Ins Co, 295 Mich App 431, 440-441; 814 NW2d 670 (2012):
We review de novo a trial court’s decision on a motion for summary
disposition, reviewing the record in the same manner as must the trial court to
determine whether the movant was entitled to judgment as a matter of law. Latham
v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). A motion for
summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004).
The moving party must specifically identify the matters that have no disputed
factual issues, and it has the initial burden of supporting its position by affidavits,
depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b);
MCR 2.116(G)(4); Coblentz v City of Novi, 475 Mich 558, 569; 719 NW2d 73
(2006). The party opposing the motion then has the burden of showing by
evidentiary materials that a genuine issue of disputed material fact exists. MCR
2.116(G)(4); Coblentz, 475 Mich at 569. The existence of a disputed fact must be
established by substantively admissible evidence, although the evidence need not
be in admissible form. MCR 2.116(G)(6); Maiden v Rozwood, 461 Mich 109, 121;
597 NW2d 817 (1999). A genuine issue of material fact exists when the record,
giving the benefit of reasonable doubt to the opposing party, leaves open an issue
upon which reasonable minds could differ. Allison v AEW Capital Mgt, LLP, 481
Mich 419, 425; 751 NW2d 8 (2008).
2
Defendant moved for summary disposition under MCR 2.116(C)(7), (8), and (10), but the trial
court only granted summary disposition under MCR 2.116(C)(10).
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In granting summary disposition, the trial court concluded that defendant had “established that it
has conducted an exhaustive search for any remaining records and none exist” and that “there is
no factual dispute that defendant has complied with its obligation under the FOIA, and summary
disposition under MCR 2.116(C)(10) is warranted.”
As the trial court pointed out, plaintiff failed to file a response to defendant’s motion for
summary disposition, leaving defendant’s motion unopposed. MCR 2.116(G)(4) addresses this
situation:
When a motion under subrule (C)(10) is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of his or
her pleading, but must, by affidavits or as otherwise provided in this rule, set forth
specific facts showing that there is a genuine issue for trial. If the adverse party
does not so respond, judgment, if appropriate, shall be entered against him or her.
Accordingly, we can only conclude that plaintiff failed to meet its burden of showing that a genuine
issue of material fact did exist, established by substantially admissible evidence. Bronson
Methodist Hosp, 295 Mich App at 441.
This does lead to a second part of plaintiff’s argument, that the trial court abused its
discretion in denying plaintiff’s motion for an extension of time to file a response. We disagree.
As the trial court explained, it had, in fact, granted a motion to extend time to file a response
on June 24, 2021,3 which provided that plaintiff’s response was due by July 6. That order also
indicated that no further extensions would be granted. The trial court further observed that
“Despite this, plaintiff sought another extension of time to file a response, which unsurprisingly
was denied. This leaves defendant’s motion unopposed.” A motion to grant a continuance to
allow more time to respond is based upon good cause shown and is reviewed for an abuse of
discretion. See Soumis v Soumis, 218 Mich App 27, 32; 553 NW2d 619 (1996). We are not
persuaded that the trial court abused its discretion in determining that yet another extension of time
should be granted.
Plaintiff next argues that the trial court erred in granting partial summary disposition in its
August 4, 2020, and November 4, 2020, orders. We disagree. Those orders4 denied summary
disposition on Count I of plaintiff’s complaint in part, but granted partial summary disposition
with regard to the allegations concerning social media postings. The trial court granted summary
disposition to defendant on Count II of the complaint. The trial court concluded that plaintiff failed
to state a claim that destruction of documents violated FOIA because FOIA does not contain a
record retention requirement and that there were no allegations that defendant destroyed
documents in order to thwart FOIA. As for the claims under the MHCA and the MBA, the trial
3
This was, by plaintiff’s own admission in his brief on appeal, the second extension of time granted
by the trial court for plaintiff to file his response.
4
As described in plaintiff’s brief, the November 4 order “is practically identical” to the August 4
order.
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court concluded that plaintiff failed to state a claim because neither statute creates a private cause
of action for damages and that plaintiff was not entitled to declaratory relief because such relief
would not guide plaintiff’s future conduct.
As for the partial summary disposition on Count I with respect to social media postings,
plaintiff offers nothing more than mere speculation that such documents exist. Plaintiff did append
to his complaint two social media postings regarding the announcement of the appointment of the
successful candidate, which were publicly available and were not disclosed to plaintiff in the
defendant’s FOIA response. In its brief on appeal, defendant acknowledges that it had failed to
locate those two documents while conducting its searches and did not provide them to plaintiff.5
But ultimately plaintiff’s argument is little more than “there must be more” based on the two pages
of documents that defendant had failed to locate and plaintiff’s parsing of words in the affidavits
of defendant’s employees filed in this case that plaintiff argues is “implicitly indicating there may
be more to the story.” Yet plaintiff does not supply the rest of that story.
As this Court observed in Easley v Univ of Mich, 178 Mich App 723, 726; 444 NW2d 820
(1989):
The motion to dismiss brought here under MCR 2.116(C)(10) tested the
factual sufficiency of plaintiff’s claims. While courts are liberal in finding that a
genuine issue of fact exists to withstand the motion, plaintiff had an obligation to
set forth specific facts showing that there was a genuine dispute. A statement of
conclusions, unsupported by allegation of facts, will not suffice to establish a
genuine issue of material fact. The test is whether the kind of record which might
be developed, giving the benefit of reasonable doubt to plaintiff, would leave open
an issue of fact upon which reasonable minds might differ. Bowerman v Malloy
Lithographing, Inc, 171 Mich App 110, 115–116; 430 NW2d 742 (1988).
Allegations unsupported by some basis in fact may be viewed as sheer speculation
and conjecture and, therefore, ripe for summary disposition. Ransburg v Wayne
Co, 170 Mich App 358, 360; 427 NW2d 906 (1988).
Plaintiff argues that the defendants are lying; they must have a copy of the
memo because they admit that Sandalow wrote such a memo and that he consulted
with an associate dean in writing it. On the other hand, that admission is equally
consistent with the view that defendants have tried to locate the memo, including
contacting the individuals involved in its creation. Defense counsel does not deny
that the memo ever existed, but maintains that defendants cannot locate a copy. If
we follow plaintiff’s logic, then the fact that he quotes from the memo would
indicate he already has a copy and this FOIA request would be moot.
Ultimately, it is a similar situation in this case. Plaintiff only points to two documents that he now
possesses and uses that to argue that there must be more. But, as in Easely, without some actual
5
In its brief, defendant states that in response to plaintiff’s four FOIA requests, defendant supplied
over 400 pages of documents.
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facts to support the contention that there must be more, the trial court was justified in granting
summary disposition on that portion of Count I of the complaint.
Next, we turn to the trial court’s granting of summary disposition on Count II. This count
is premised upon defendant’s alleged destruction of or failure to retain documents; in particular,
interview notes of candidates not chosen for the position. The trial court concluded that plaintiff
had failed to state a claim. We agree.
First, with respect to FOIA, as the trial court observed that “FOIA generally does not
impose a duty upon a government official to prepare or maintain a public record or writing
independent from requirements imposed by other statutes.” Walloon Lake Water Sys v Melrose
Twp, 163 Mich App 726, 731-732; 415 NW2d 292 (1987). See also House Speaker v Governor,
443 Mich 560, 594 n 40; 506 NW2d 190 (1993). The trial court also observed that there was no
evidence to show that the notes were destroyed to thwart the FOIA request.
Second, the trial court dispatched the MCHA and MBA arguments by noting that neither
statute authorizes a private cause of action for money damages. See Lash v Traverse City, 479
Mich 180, 194; 735 NW2d 628 (2007); Myers v Portage, 304 Mich App 637, 643; 848 NW2d 200
(2014) (“Michigan caselaw holds that no cause of action can be inferred against a governmental
defendant.”). Plaintiff provides no authority that either statute provides for money damages.
Plaintiff does, however, argue that he requested declaratory relief that was denied. The
trial court denied declaratory relief because plaintiff failed to show that an actual controversy
existed as required by MCR 2.605(A)(1) (“In a case of actual controversy within its jurisdiction, a
Michigan court of record may declare the rights and other legal relations of an interested party
seeking a declaratory judgment, whether or not other relief is or could be sought or granted.”) This
Court explained that rule in Int’l Union, United Automobile, Aerospace & Agricultural Implement
Workers of America v Central Mich Univ Trustees, 295 Mich App 486, 495; 815 NW2d 132
(2012):
MCR 2.605 does not limit or expand the subject-matter jurisdiction of the courts,
but instead incorporates the doctrines of standing, ripeness, and mootness. An
“actual controversy” under MCR 2.605(A)(1) exists when a declaratory judgment
is necessary to guide a plaintiff’s future conduct in order to preserve legal rights.
The requirement prevents a court from deciding hypothetical issues. However, by
granting declaratory relief in order to guide or direct future conduct, courts are not
precluded from reaching issues before actual injuries or losses have occurred. The
essential requirement of an “actual controversy” under the rule is that the plaintiff
pleads and proves facts that demonstrate an “ ‘adverse interest necessitating the
sharpening of the issues raised.’ ” [Footnotes omitted.]
The trial court in this case concluded that plaintiff failed to meet this burden and that the
“only injuries plaintiff alleges concern (alleged) past violations of record-retention schedules and
statutes.” The trial court further noted that the “requested relief would not guide plaintiff’s future
conduct or preserve plaintiff’s legal rights.” In short, the trial court concluded that declaratory
relief would not serve any of the recognized purposes that constitute an actual controversy.
Plaintiff does no better on appeal in establishing the existence of an actual controversy meriting
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declaratory relief. Plaintiff does not establish how such relief would guide his future conduct or
preserve his legal rights. At best, plaintiff is requesting a declaration that defendant must follow
the law and, at worse, that the trial court and by extension this Court, should write a treatise on
what the law requires.
Plaintiff next argues that the trial court erred in denying plaintiff’s motion for
reconsideration. Given that we have concluded that the trial court did not err in granting summary
disposition, we are not persuaded that the trial court committed palpable error and should have
granted reconsideration.
Next, plaintiff argues that the trial court erred when issuing its November 4, 2020 order
that was verbatim to its August 4, 2020 order. We disagree. The August order disposed of
defendant’s summary disposition motion from June of that year. In September, defendant
submitted a second motion which renewed its earlier motion and addressed similar issues as the
prior motion as well as additional records disclosed by defendant after the August order. The trial
court disposed of the second motion with an order and opinion nearly identical to its earlier order
and opinion. This is perhaps unusual, and while the trial court did not offer a reason why it was
essentially reissuing its earlier opinion, we can only assume that the trial court concluded that
nothing had materially changed and its original reasoning applied just as strongly to the second
motion for summary disposition. Ultimately, it is not our concern why the trial court took this
approach; rather, it is our concern whether the trial court reached the correct conclusions. And, as
discussed above, we are satisfied that the trial court did reach the correct resolution of this case.
Plaintiff’s final argument is the trial court erred when it failed to strike an affidavit
submitted by defendant in support of the motion for summary disposition even though the trial
court identified the affidavit as containing hearsay statements. In its August and November
opinions, the trial court did acknowledge that there were “hearsay issues” with one of the
affidavits. It also acknowledged that inadmissible hearsay could not be considered in resolving
the summary disposition motion. But the trial court also concluded that the affidavit, even with
the hearsay, was inadequate to support a grant of summary disposition on Count I. Because the
trial court did not consider the affidavit in granting summary disposition, it is irrelevant whether it
formally struck the affidavit.
For these reasons, we conclude the trial court did not err in granting summary disposition
to defendant.
Affirmed. Defendant may tax costs.
/s/ David H. Sawyer
/s/ Anica Letica
/s/ Sima G. Patel
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