University of Michigan Law School
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Case Name Signature Sothbeys International Realty, Inc. v. Whitmer PR-MI-0003
Docket / Court 1:20-cv-00360 ( W.D. Mich. )
State/Territory Michigan
Case Type(s) Presidential/Gubernatorial Authority
Special Collection COVID-19 (novel coronavirus)
Case Summary
COVID-19 Summary: This is a suit brought by several Michigan businesses against the State of Michigan's executive orders requiring non-critical businesses to stop operating during the outbreak of COVID-19. The plaintiffs alleged that Michigan's orders arbitrarily discriminated against their ... read more >
COVID-19 Summary: This is a suit brought by several Michigan businesses against the State of Michigan's executive orders requiring non-critical businesses to stop operating during the outbreak of COVID-19. The plaintiffs alleged that Michigan's orders arbitrarily discriminated against their businesses, in violation of several constitutional clauses and state law. Defendants filed a motion to dismiss after Governor Whitmer lifted the restrictions on businesses.


The executive orders issued by Michigan Governor Gretchen Whitmer in response to the outbreak of COVID-19 prohibited activities and business "not necessary to sustain or protect life." Seven Michigan businesses that were required to stop operating alleged that the executive orders violated their constitutional rights and state law. Represented by private counsel, plaintiffs brought this Section 1983 suit in the United States District Court for the Western District of Michigan against Governor Whitmer and the Director of the Michigan Department of Health and Human Services on April 28, 2020. Specifically, plaintiffs alleged that the executive orders were arbitrary and discriminated against their businesses by treating them differently than other similarly situated businesses. Plaintiffs sought declaratory and injunctive relief, as well as attorneys' fees. The case was assigned to Judge Paul L. Maloney.

Plaintiffs asserted that the executive orders forced them to "close or significantly restrict their businesses, depriving them of their liberty and property interests without due process," while allowing other businesses deemed 'critical' to stay open, even though: 'critical' businesses must adhere to guidance from the U.S. Centers for Disease Control and Prevention on 'social distancing'; and Plaintiffs are fully capable of adhering to those same guide-lines if allowed to reopen." Moreover, plaintiffs argued that the measures taken by defendants to "flatten the curve" and stop the spread of COVID-19 in Michigan were unnecessary and excessive. Plaintiffs claimed that the executive orders requiring them to close their businesses violated the Dormant Commerce Clause, the Privileges and Immunities Clause, their Procedural and Substantive Due Process rights, the Equal Protection Clause, and that the orders were unconstitutionally vague. Plaintiffs also contended that executive orders violated the state's separation of powers clause and the Emergency Powers Act. 2020 WL 2079549.

On May 11, plaintiffs filed an amended complaint and removed their claims that the executive orders violated state law.

On May 29, the United States Department of Justice filed a statement of interest explaining that the alleged facts suggest that the executive orders violated the Equal Protection Clause and the Commerce Clause. The DOJ stated that "Plaintiffs have made an initial showing that the Orders arbitrarily and oppressively limit their business operations by prohibiting and restricting Plaintiffs’ business operations while permitting similarly situated businesses to continue to operate, or to operate with lesser restrictions, and permitting social gatherings of as many as ten people." The DOJ also concluded that plaintiffs were likely to establish that the executive orders unduly burdened interstate commerce, in violation of the Commerce Clause.

On June 8, defendants filed a motion to dismiss, arguing that the plaintiffs' claims were moot, that plaintiffs lacked standing, and that plaintiffs failed to adequately state a claim concerning their federal constitutional challenges. Defendants asserted that the restrictions challenged by plaintiffs had been lifted as the "curve of the virus's spread . . . flatten[ed]," rendering the plaintiffs' claims moot. Furthermore, defendants argued that plaintiffs' claims lacked merit because the executive orders were "a proper exercise of the authority given to the States to combat a public health crisis" and "necessary to meet the demands of these extraordinary times."

On June 12, the Michigan Epidemiologists sought to file an amicus brief in support of the defendants' motion to dismiss. The case is ongoing.

Aaron Gurley - 06/09/2020
Averyn Lee - 07/12/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Commerce Power
Due Process
Due Process: Procedural Due Process
Due Process: Substantive Due Process
Equal Protection
Defendant-type
Jurisdiction-wide
Plaintiff Type
Closely-held (for profit) corporation
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
State law
Defendant(s) Director of the State of Michigan Department of Health and Human Services
Governor of the State of Michigan
Plaintiff Description Seven Michigan businesses
Class action status sought No
Class action status granted Moot
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None yet
Source of Relief None yet
Filed 04/28/2020
Case Ongoing Yes
Additional Resources
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Docket(s)
1:20-cv-00360-PLM-PJG (W.D. Mich.)
PR-MI-0003-9000.pdf | Detail
Date: 07/08/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint for Declaratory and Injunctive Relief [ECF# 1] (2020 WL 2079549)
PR-MI-0003-0001.pdf | WESTLAW | Detail
Date: 04/28/2020
Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint for Declaratory and Injunctive Relief [ECF# 8]
PR-MI-0003-0002.pdf | Detail
Date: 05/11/2020
Source: PACER [Public Access to Court Electronic Records]
Statement of Interest on Behalf of the United States [ECF# 14]
PR-MI-0003-0003.pdf | Detail
Date: 05/29/2020
Source: PACER [Public Access to Court Electronic Records]
Defendants Whitmer and Gordon's Brief in Support of Motion to Dismiss (Part 1/2) [ECF# 18]
PR-MI-0003-0004.pdf | Detail
Date: 06/08/2020
Source: PACER [Public Access to Court Electronic Records]
Exhibits to Defendants Whitmer and Gordon's Brief in Support of Motion to Dismiss (Part 2/2) [ECF# 18-1 to 18-14]
PR-MI-0003-0005.pdf | Detail
Date: 06/08/2020
Source: PACER [Public Access to Court Electronic Records]
Motion for Leave to File Brief of Amici Curiae Michigan Epidemiologists in Support of Defendants' Motion to Dismiss [ECF# 19, 19-1]
PR-MI-0003-0006.pdf | Detail
Date: 06/12/2020
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Opposition to Amici's Motion for Leave to File Amicus Brief [ECF# 22, 22-1]
PR-MI-0003-0007.pdf | Detail
Date: 06/30/2020
Source: PACER [Public Access to Court Electronic Records]
Reply Brief in Support of Amici Curiae Michigan Epidemiologists' Motion for Leave to File Brief in Support of Defendants' Motion to Dismiss [ECF# 23]
PR-MI-0003-0008.pdf | Detail
Date: 07/02/2020
Source: PACER [Public Access to Court Electronic Records]
Plaintiffs' Opposition to Defendants' Motion to Dismiss [ECF# 26 (incl. 26-1 to 26-5)]
PR-MI-0003-0009.pdf | Detail
Date: 07/08/2020
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Green, Phillip J. Court not on record [Magistrate] show/hide docs
PR-MI-0003-9000
Maloney, Paul Lewis (W.D. Mich.) show/hide docs
PR-MI-0003-9000
Plaintiff's Lawyers McCarthy, Daniel J (Michigan) show/hide docs
PR-MI-0003-0001 | PR-MI-0003-0002 | PR-MI-0003-0007 | PR-MI-0003-0009 | PR-MI-0003-9000
Richotte, Joseph E. (Michigan) show/hide docs
PR-MI-0003-0001 | PR-MI-0003-0002 | PR-MI-0003-0007 | PR-MI-0003-0009 | PR-MI-0003-9000
Defendant's Lawyers Allen, Christopher M. (Michigan) show/hide docs
PR-MI-0003-0004 | PR-MI-0003-0005 | PR-MI-0003-9000
Booth, Joshua O. (Michigan) show/hide docs
PR-MI-0003-0004 | PR-MI-0003-0005 | PR-MI-0003-9000
Fedynsky, John G. (Michigan) show/hide docs
PR-MI-0003-0004 | PR-MI-0003-0005 | PR-MI-0003-9000
Fowler, Darrin F. (Michigan) show/hide docs
PR-MI-0003-0004 | PR-MI-0003-0005 | PR-MI-0003-9000
Froehlich, Joseph T. (Michigan) show/hide docs
PR-MI-0003-0004 | PR-MI-0003-0005 | PR-MI-0003-9000
Nessel, Dana M. (Michigan) show/hide docs
PR-MI-0003-0004 | PR-MI-0003-0005
Other Lawyers Birge, Andrew Byerly (Michigan) show/hide docs
PR-MI-0003-0003 | PR-MI-0003-9000
Dreiband, Eric S. (District of Columbia) show/hide docs
PR-MI-0003-0003
Kay, Jonathan R (New York) show/hide docs
PR-MI-0003-0006 | PR-MI-0003-0008 | PR-MI-0003-9000
Matz, Joshua A (New York) show/hide docs
PR-MI-0003-0006 | PR-MI-0003-0008 | PR-MI-0003-9000
Maugeri, Alexander Virgil (District of Columbia) show/hide docs
PR-MI-0003-0003
McManus, Jennifer L (Michigan) show/hide docs
PR-MI-0003-0006 | PR-MI-0003-0008
Pinion, Hilary (Virginia) show/hide docs
PR-MI-0003-0003
Schneider, Matthew (New York) show/hide docs
PR-MI-0003-0003
Taufique, Mahrah M (New York) show/hide docs
PR-MI-0003-0006 | PR-MI-0003-0008 | PR-MI-0003-9000
Tolentino, Raymond P (New York) show/hide docs
PR-MI-0003-0006 | PR-MI-0003-0008 | PR-MI-0003-9000

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