WITBECK INC V DENISE SIMPSON
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STATE OF MICHIGAN
COURT OF APPEALS
WITBECK, INC., and MERIDIAN MUTUAL
INSURANCE COMPANY,
UNPUBLISHED
May 26, 2000
Plaintiffs/Counterdefendants,
v
No. 212259
Oakland Circuit Court
LC No. 97-550177-NZ
DENISE SIMPSON,
Defendant/Counterplaintiff/Third-Party
Plaintiff-Appellant,
and
CITY OF FERNDALE and NORMAN
RAYMOND,
Third-Party Defendants-Appellees.
Before: Markey, P.J., and Gribbs and Griffin, JJ.
PER CURIAM.
Third-party plaintiff appeals as of right challenging the circuit court’s order granting summary
disposition in favor of third-party defendants, Norman Raymond and the City of Ferndale, and also
challenging the circuit court’s order denying her motion to amend her complaint. We affirm.
The circuit court properly granted third-party defendants’ motion for summary disposition. The
City of Ferndale is absolutely immune from third-party plaintiff’s malicious prosecution claim. MCL
691.1407(1); MSA 3.996(107)(1); Payton v City of Detroit, 211 Mich App 375, 392-393; 536
NW2d 233 (1995). Moreover, there is no question of fact that Raymond was acting in the scope of his
authority as a police officer while employed by the City of Ferndale, a governmental agency engaged in
the exercise or discharge of a governmental function. Neither the allegations in the complaint nor the
undisputed deposition testimony indicate that Raymond’s actions amounted to gross negligence as
defined by MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). Accordingly, third-party defendant
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Raymond is immune from tort liability under MCL 691.1407(2); MSA 3.996(107)(2). Summary
disposition was therefore proper under MCR 2.116(C)(7).
Next, the circuit court did not abuse its discretion in denying third-party plaintiff’s motion to
amend her complaint because of undue delay and prejudice to the defense. Third-party plaintiff’s failure
to timely raise her claim under 42 USC 1983 effectively prevented third-party defendants from
defending against that claim without significant additional discovery. Moreover the proposed
amendment would be futile. Regardless of the allegations in the complaint, there is no genuine issue of
material fact that third-party plaintiff’s malicious prosecution claims are barred by governmental
immunity. Third-party plaintiff has not alleged or shown “some independent violation of a right
protected by the constitution or federal law” and cannot base her § 1983 claim solely on an alleged
prosecution without probable cause. Payton, supra at 404.
Affirmed.
/s/ Jane E. Markey
/s/ Roman S. Gribbs
/s/ Richard Allen Griffin
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