ProtoCam Lawsuit Is Dismissed

July 25, 2003
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GRAND RAPIDS — U.S. District Court Judge Robert Holmes Bell has likely landed the knockout punch in a three-year-old environmental fight that pitted the owners of Proto-Cam Inc., an automotive parts supplier, against the developers, builders and backers of the Boardwalk on Monroe Avenue.

Bell denied a motion late last month from William Tingley III and William Tingley of Proto-Cam and the Local Area Watch, a watchdog organization founded by the Tingleys, that asked for unspecified financial sanctions from the developers. At the same time, Bell granted a motion from the developers and dismissed the Tingley complaint.

900 Monroe LLC, 940 Monroe LLC, Pioneer Inc., Dykema Excavators, Fifth Third Bancorp, Superior Environmental Corp., Prein & Newhof Inc., Dickinson Wright PLLC, Frank D. Marshall, William J. Fischer III, Mayor John Logie and Thomas Beckering were named as defendants in the Tingley suit.

In his ruling, Bell said the Tingleys lacked the proper authority to bring a qui tam action on behalf of the United States.

A qui tam action occurs when a private citizen brings a lawsuit against someone that he or she feels has violated a government regulation and then files it on behalf of the government and him or herself. The judge said because the Tingleys were not licensed attorneys they couldn’t pursue a claim on another’s behalf, and they weren’t entitled to sanctions.

But Bell did award the defendants “reasonable attorney fees and expenses,” because he felt the Tingley suit was “clearly frivolous, clearly vexatious and brought primarily for the purposes of harassment.”

The judge also enjoined the Tingleys from taking any civil action against any defendant named in the suit until they have paid all the defendants’ fees and expenses stemming from his ruling and filed a cash bond of $25,000 to cover any costs, fees or sanctions that may be levied against them in any litigation.

In addition, Bell instructed the Tingleys that they must include this judgment and his opinion in any other legal action they may take against any of the defendants in the future.

The Tingleys said the Boardwalk developers illegally removed and transported 21,000 cubic yards of soil from construction sites at 900 and 940 Monroe Ave. NW to the former city-owned water filtration plant at 1430 Monroe Ave. NW in 2000.

They accused the developers of illegally using an easement that belonged to Proto-CAM at 1009 Ottawa Ave. NW to transfer the soil and sought damages from that alleged action. Some of the dirt, the Tingleys said, was also taken to a northeast side gravel pit.

According to a baseline environmental study that was done for the project, the soil reportedly contained more than a dozen contaminants, including arsenic. The project converted the former Berkey & Gay furniture factory into the Boardwalk, an office and residential building.

The developers admitted they hauled about six truckloads of the dirt to the filtration plant but brought the soil back to the work site once they realized what had occurred.

The Tingleys also accused city officials, largely Logie, of conspiring to help the developers move the soil, the bank of demanding that the soil be moved in order for the developers to receive financing for the project, and the defendants’ lawyers for committing fraud before the courts.

In July 2002, Kent County Circuit Judge H. David Soet dismissed a similar suit brought by the Tingleys on behalf of Proto-CAM, Bend Tooling Inc. and the Tennine Corp. against the defendants with a similar ruling.

Soet ruled that the plaintiffs were “engaged in the unauthorized practice of law.” He based his decision on a 1961 state statute that says unlicensed individuals can’t represent organizations, only themselves, in legal matters. A 1998 state appellate court ruling upheld that law.

The Office of Criminal Investigation within the Michigan Department of Environmental Quality concluded its investigation of the complaint last August and reported it found no evidence that contaminated materials were taken from the construction site to the gravel pit.

But OCI did not look into the water tanks at the filtration plant, where the Tingleys said most of the soil was stored. An OCI investigator told the Business Journal last August that his agency didn’t inspect the filtration plant because the Environmental Response Division of the MEDQ had examined it and cleared that site in 2001.

The attorney general’s office decided not to look into the matter after learning of the OCI report.

Another complaint filed by the Tingleys against the city of Grand Rapids was dismissed earlier. 

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