My File Copy
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF GENESEE,
WILLIAM SCOTT KINCAID
‘And ERAINA POOLE, JUDGE: Richard B. Yuille,
intheir individual eapacites, (CASE NUMBER: 12-98490-CZ,
and as class ropresenatives ofall other
similarly situated plaintiff class members.
PLAINTIFFS. FIRST AMENDED COMPLAINT
v. AND RELIANCE UPON JURY
DEMAND
‘THE CITY OF FLINT, MICHIGAN,
‘a municipal comporation.
DEFENDANT.
Valdemar. Washingion (27165) ‘MILLER, CANFIELD, PADI
Atiomey for Plaintiffs snd STONE, PLC.
718 Beach Steet, Christopher M, Trebileock (P62
P.O. Box 187 John H. Willems (P31861)
lini, MI 48501-0187 ‘Attomeys for Defendants
810.407.6868 130 West Jefferson, Suite 2500
Detroit, MI 48226
313.963.5420
David Roth (P77971)
Atorneys for Defendants
1101S. Saginaw St 3 Floor
nt, ML 48802
810.766.7146
NOW COME Plaintiffs, Wiliam Scott Kincaid, and Fraina Poole, individually,
and on behalf of all other similarly situated Plaintiffs, pursuant to MCR 3.501 and MCL §
486.301, et seq by and through their attorney of record, Valdemar L. Washington, and
{or their First Amended Complaint against Defendant complain as follows:PARTIES
1. William Seott Kincaid (hereinafter collectively referred to as Plaintifs)
‘was at all matrial times a resident ofthe Cty of Flint, located in Genesee County, State
of Michigan and was a eal Water and Sewer customer of the City of Flint’s Water
Supply System, also known a the Water and Sewer Department
2, etna Poole (eteinafer collectively referred to as Painif) was a al
‘material tines resident ofthe City of Fling, located in Genesee County, Stat of
Michigan and retail Water and Sewer customers ofthe City of Flin’ Water Supply
System, also known as the Water and Sewer Department
3, Members ofthe proposed Plaintiff Clas (hereinafter collectively referred
to as Pini) were a ll material mes residents or nonresidents of the City of lint,
located in Genesce Counly Michigan, who were customers of the City of Flint's Water
Supply System, also know as the Water and Sewer Department between July 3, 2006
and September 15,2011
4. Defendant, City of lint, Michigan, (herein ered to as FLINT) is
ongnnizcd under the las ofthe State of Michigan as @ Maniipal Coxpraton and
designates its as «Home Re City, whose powers are govemed by is ordinances, sate
statutes, nis ote in Genesee County Michigan
GENERAL ALLEGATIONS
Plaintiff estate and reallege each and every allegation set forth in all,
‘previous paragraphs and incorporate dhem by reference herein.6. FLINT operates a Water Supply System, also knovm asthe Water and
Sewer Department that provides water and sewer services to its customers, many, ifnot
all of whom, are residents of Flint
7. Water and sewer services provided by FLINT are provided to its
«customers in exchange for payment of money by its customers, and water is considered 8
commodity being sold under a contrat crested by Flint City Ordinance 46 ~ 16 which
provides that FLINT is the vendor of water services and its customers are the purchasers
‘ofthe water commodity
8, Pursuant to its ordinances FLINT’S water and sewer service rates and
service charges (also known as readiness-o-serve charges) were a all material times
mandatory for its water and sewer customers
9. ‘The payments of money made to FLINT by its customers for water and
sewer Services are administered and collected by its Department of Finance, which
includes FLINT'S Treasurer's office.
10, FLINT, acting through former city officials illegally, by Ultra Vires
‘misconduct, increased its water and sewer rates and service charges on or about January
15, 2011 by 22% in violation of Flint City Ordinances 46 ~ 52.1 and 46~57.1.
11, FLINT Ondinances 46-52.1 and 46~ 57.1 required that water and sewer
zates be calculated and transmited on or before April 15 to the Mayor and City Council
for the purpose of calculating all bills forthe forthcoming 12 months beginning July 1 of
that year.12, FLINT Ordinances 46-52.1 and 46-57.1 do not, and did not authorize the
implementation of an increase in rates and readiness to serve charges effective on or
about January 15, 2011.
13, FLINT Ondinances 46-52.1 and 46-57.1 do not, and did not authorize the
‘increase of its readiness to serve charges on customers of is water and sewer services
department effective on or about January 15, 2011
14, Atal! imes material hereto In 2011 adjustments to FLINT’S readiness to
serve charges had to be enacted by Resolution of the Flint City Council.
15, The increase in FLINT'S readiness to serve charges implemented on or
about January 15, 2011 was not approved by a Resolution ofthe Flint City Council, and
‘was therefore Ultra Vires actions.
16, According to FLINT'S Ordinance 46-52 (b1), Flin’s water readiness to
serve charges forts retail residential, small commercial and industrial accounts
‘customers with and without remote water meters, must be established from time to time
by resolution ofthe City Couneil and that resolution kept on file by the City Clerk
contained in Appendix A of the City Code.
17, FLINT'S calelaton ofthe amount ofits water readiness to serve charge
and its collection ofthe water readiness o serve charge from its real water customers
tween January 15,2011 and September 15,2011 was not approved by a Resolution of
the Flint City Couel contained in Appendix A of the City Code and kept on file by the
City Clesk, and was therofore an Ultra Vires action,
18, FLINT'S ordinances do not now, and did not on or about January 15,
2011 authorize the calculation of, nor collection of, a water readiness to serve chargefrom its retail residential, small business and industrial water customers with and
‘without remote water meters without a resolution showing how it was calculated and
‘kept on file with the City Clerk in conformity with FLINT City Ordinance 46-52(bX1).
19, FLINTilgaly charged and collected, hrough vious city officals,
‘without legal authority based on #sondinances, rom its etal residential, small busines,
and industrial eustomers with and without remote water meters a water readines to serve
charge between January 15,2011 and September 15,2011, and as such was an Ultra
Vires action.
20. FLINT illegally charged and collected, through various city officials,
‘without legal authority based on its ordinances, from its retail residential, small business,
and industil eustomers with and without remote water meters a water readiness fo serve
charge between July 3, 2006 and June 30, 2012, and as such was an Ultra Vires action,
21, Atallsimes relevant herein FLINT'S City Code of Ordinanees in general
and section 46 ~ 16 jn particule, established contractual relationship between FLINT
and Plains which incuded but was not limited to FLINT providing of water and sower
servioes andthe water comm tis etal water and sewer costomes in exchange for
‘te payment of money in confomnity with FLINT City Ondinances.
22, The water ate implemented on or bout January 15,2011 constiuted a
‘olation of MCL § 486315 es the 22% water rate inereases andthe ilegathiautorized
‘water service charge was excessive charges for the supply of water to PlaintiffsCLASS ACTION ALLEGATIONS
23, Plaintifs sestate and reallege each and every allegation set forth in all,
previous paragraphs and incorporate them by reference herein,
24, ‘The members ofthe proposed class are belived to be customers of
FLINT’ water and sewer department from July 3, 2006 through September 15,2011,
numbering into the tens of thousands.
25, Customers of FLINT’s water and sewer department numbering into the
tens of thousands are too numerous to make Joinder of them practical in this ease.
26, There are questions of law or fact common tothe members ofthe
proposed class that predominate over questions affecting only individual members and
they are, whether or not FLINT's rate increases and inereased readiness to serve charges
‘were legally permitted under Flint’ City Ordinances
27, ‘The claims of the proposed class members wil all be typical to the claims
othe representative partis, a they have al been required to pay lint’s Ultra Vies
water an sewer rt increases between Jamsty 15,201 and September 15,2011 and
increased water raness o serve charges between June 30,2012 and July 3, 2006
28, Plants will inl and adequately assert and protect the interests ofthe
proposed clas as their interests of seeking refunds for having had o pay FLINT's Ultra
‘Vite legally charged and collected water and sewer rae incenses between January 15,
2011 and September 15,201 and increased water readines to serve charges between
June 30,2012 and Sly 3, 2006 are all he same which proximately caused all proposed
class members, including Piss to make overpayments of water and sewer ils f0
FLINT and which should be ordered refunded to Plaintifs and the class by FLINT29, Permitting the maintenance ofthis action asa classaction willbe superior
to other avilable methods of adjudication in promoting the convenient administration of
justice.
COUNT. BREACH OF CONTRACT — VIOLATION OF FLINT CITY
‘ORDINANCE 46-52 — ILLEGAL WATER SERVICE CHARGE,
30. Plaintiffs restate and reallege each and every allegation set forth in all,
previous paragraphs and incorporate them by reference herein,
31, FLINT charged and collected, through various former city officials, from
Plaintiffs and all similarly situated water and sewer customers an illegal water
readiness to serve charge, also known as a water service charpe between January 15,
2011 and September 15, 2011 in violation of FLINT City Code Ordinance 46-52, and
as such was an Ulter Vir action,
former city officials from
32, FLINT charged and collected through
Plants and ll similarly situated water and sewer customers an illogal water
readiness to serve charge, also known as a water service charge betwesa June 30,
2012 and July 3, 2006 in volton of FLINT City Code Ordinance 46-52 and as uch
was an Ula Vires action
33, FLINT recived the benefit of charging and collecting said
_unaathoriedillegal, Ultra Vies, water service charge payments from Plants and
roposed class members between January 15,2011 and September 15,2011.
34, FLINT received the benefit of charging and collecting said
unautorizedillgs, Ultra Vires, water service charge paytens from Pits and
‘proposed class members between June 30, 2012 and July 3, 2006.35. FLINT’S charging, collecting, and retaining, its unauthorizedillegal water
servic charge fiom Paints and proposed clas members breached is contract with
Plants and proposed class members and has resulted in overpayment of
contractually obligated expenses by Plants and proposed class members, and as
such was an Ulta Vite action
36, FLINT’s actions described herein constitute breach ofits contact with
Plaintits and proposed class members, by Ultra Vires actions, to provide them with
the water commodity and to recive payment as desorbed in FLINT's City
‘Ozinances and for having violated the same, FLINT that proximately caused
Plans to make overpayments fo FLINT which shouldbe ordered refunded by
FLINT to Pins and proposed class members forthe period of time between
January 15,2011 and September 15,2011 and Jane 30,2072 and uly 3, 2006
COUNT I= UNJUST ENRICHMENT = VIOLATION OF = IMPLIED
CONTRACT IN BREACH OF FLINT CITY ORDINANCES - ILLEGAL,
WATER SERVICE CHARGE.
37, Plaintfs restate and reallege each and every allegation set forth in all
previous paragraphs and incorporate them by reference herein
38, Inthe alternative, FLINT charged and collected an illegal water readiness
to ere charge also nov as the water service charge between January 15,2011
and September 15, 201 i violation of the implied contact between FLINT and its
water and sewer customer rete by FLINT City Ordinanoes
39. Inthe altratve, FLINT chargot and collected an illegal water readiness
to serve charge, also known as the water service charge between June 30, 2012 andJuly 3, 2006 in violation ofthe implied contract between FLINT and its water and
sewer customers erated by FLINT City Ordinances.
40, FLINThas unjustly reocived the benefit of ssid unauthorized/llegal water
service charge payments from Plaintiffs between January 15,2011 and September
15,2011
41, FLINT has unjustly received the benefit of said unauthorized/tlegal water
service charge payments from Plaintiffs between June 30, 2012 and July 3, 2006,
42, FLINT’S charging, collecting, and retaining ofits unauthorized/llegal
‘water sevice charge from Plaintiffs has resulted in an inequity to Plaintiffs in the
{orm of forced payments that were not authorized by FLINT"S City Ordinances.
43, FLINT’S actions alleged herein, through the Ultra Vires actions and
‘misconduct of various former city officals constitute unjust enrichment to FLINT
‘hat proximately caused Plaintiffs to make overpayments to FLINT which should be
ordered refunded by FLINT to Plaintiffs
COUNT IIL’ BREACH OF CONTRACT — VIOLATION OF RLINT CITY
ORDINANCES 46-82.1 AND 46 57.1 - MCL § 486.315 EXCESSIVE 22% %
RATE SETTING JANUARY 15, 2011 — SEPTEMBER 15, 2011
44, Plaintiffs restate and reallege each and every allegation set forth in all
previous paragraphs and incorporate them by reference herein
45. FLINT charged and collected, through vatious formes city officals from
Plains onal smiley stated water and sewer customers illegal water and sewer
rales ston January 15,2011 and continuing to September 15,2011 which were in
violation of FLINT City Code Oninancss 46-521 and 46-57. and as such were
Ultra Vires ations46, FLINT received the benefit of those unuthorizedillegally set 22% water
and sewer rate payments from, Plaintiffs, between January 15, 2011 and September
15, 2011 and thereby breached its contract with, Plaintiffs, by causing them to make
overpayments forthe unreasonable overcharges that FLINT Ultra Vires actions
caused tobe submited to Plait for payment.
47, BLINT's UleaVires ations described herein constitute beach ofits
contract for water and services and FLINT tht proximately caused Plaintiffs to make
overpayments to FLINT which shouldbe olered funded by FLINT to Plants
COUNT IV - UNJUST ENRICHMENT — VIOLATION OF FLINT CITY.
ORDINANCES 46-52.1 AND 46~57.1 = MCL § 486.315 EXCESSIVE 22% %
RATE SETTING JANUARY 15, 2011 — SEPTEMBER 15, 2011
48, Plaintiffs restato and relloge each and every allegation set forth in all
srevious paragraphs and incorporate them by reference herein.
49. Inthe alternative, FLINT charged and collected an illegal and
‘unreasonable 29% water and sewer rte from Plaintiffs through Ultra Viresaetions of
its former city officials betwoon January 15, 2011 and September 15,2011 in
violation of the implied contrat between FLINT and Plaintiff created by FLINT
ty Ordinances
50, FLINT has unjustly resved the benefit of sid unsuthorizedillegal and
unreasonable water and sewer payments fom Plaintiffs between January 15,2011
and September 15,2011
51. FLINTS charging, oletng, and rotsining of ts nauthorizeditlegal
‘and unreasonable water and sewer payments from Plaintiffs between January 15,
102011 and September 15, 2011 has ested in an net to Panis inthe form of|
forced payments hat were not authorized by FLINT'S City Ordinances
52, FLINTS actions allege herein, trough he Uta Virs actions and
misconduct of varios former city ffi constitute unjust esicmentto FLINT
that proximately caused Plaintiffs to make overpayments to FLINT which should be
oered refunded by FLINT to Pitt
(COUNT V- EQUITABLE REMEDY — RECOUPMENT BY REFUNDS OF
‘THE 22% WATER AND SEWER RATES OF JANUARY 15,201 AND THE
WATER SERVICE, CHARGES FROM JULY 3, 2006 ~ SEPTEMBER 15,2011
53. Pints restate and reallge cach and every allegation st forth nll
previous paragraphs and incorporate them by reference herein.
54, FLINT’sexcessvelilegal/Ultr Vies water and sewer rte, and water
service charges, charged and collected betwoen January 15,2011 and September 15,
2011 wer illegal charges that were collected fr an improper purpose in violation of|
law, incding but not Finite to using resteted water and sewer revenues ofan
the general fund or other funds o general operations of FLINT.
55, FLINT’sexcessvefilegal/Uta Vites water service charges, charged and
collected between July 3,2006 and September 15,2011 were illegal charges that
were collected for an improper purpose in violation of aw, ineloding but not limited
to using restuicted water sevice charge revenues o fund the general fund o other
funds or general operations of FLINT.
56. FLINT'S actions alleged herein, through the Ulta Vire ations and
‘misconduct of various former ety officials constitute illegal charges and collections
n‘ror plaintiffs that proximately caused Plaintiffs to make overpayments to FLINT
which should be ordered refunded by FLINT to Plaintiffs.
COUNT VI- CLAIMS FOR DELCARATROY RELIEF,
57, Plaintiffs restate and reallege each and every allegation set forth in all
previous paragraphs and incorporate them by reference herein,
58. Many members of he proposed clas have boen unable to pay the illegal
2% water and sewer rue increases implemented on o about January 15,2011 and
which extended up to September 15,2011 and as a consequence had liens placed
gins th tes oftheir eal property an ad ther water sevice disconnected by
PUNT.
59. Many members ofthe proposed class have been unable to pay he illegal
water service charge implemented on or out July 3,2006 and which extended up to
September 15,2011, and asa consequence had liens placed against the tiles oftheir
real property and had ther water service disconnected by FLINT:
60, FLINT shouldbe temporaity and permanently enjoined from placing any
further ins agsins the tiles of Plinsffs and disconnecting the water sevice of
Plainstfs where the dtingueney prompting sid ations included the ilegal water
servic charges between Jay 3, 2006 and September 15,2011 and the filegl 2%
‘ator and sewer mt increases between January 15,2011 and Septembor 18,2011
61. Inaddition, FLINshoold be permanently ejoned from using water and
sewerrevenes to supplement the general fand or any oter Fund orto in any way
contbute tthe general operations of FLINT not pemited by ils own FLINT City
‘Ordinances or Sate Statutes.
2REQUEST FOR RELIEF
WHEREFORE, Plaintiffs pray that this Honorable Court will grant them
individually, and on behalf ofall others similarly situated, the following requested relief
A
Enter an Onler that temporatly and permanently enjoins FLINT from
collecting water and sewer payments and depositing them into its pooled
‘cash investment account
‘inter an Order that temporarily and permanently enjoins FLINT from.
using collected water and sewer payments to pay its general obligations,
Enter an Order certifying that there is a clas of people defined as,
‘customers of FLINT's water and sewer services department between July
43, 2006 and September 15, 2011 who are subject to elit in this cause,
and that Plaintifs are fair and adequate representatives of said class.
"Enter an Order that declares that FLINT's 22% rate increases and
increased readiness to serve charges to its water and sewer customers
‘charged and collected ftom its customers between January 15,2011 and
September 15,2011 were illegal rates and orders FLINT to account for
said increase in rates and charges and to refund the same to Pla
Enter and Order that declares that FLINT’S charging and collecting ofits
‘water eadiness to serve charpe hetwern July 3, 2006 and Senternher 15,
2011 from Plaintiffs was ilega, brought about by the Ultra Vir actions
of various former ity officials, without authority and onder the same
plus interest, costs, and attomey fees soF,— Enteran Onder awarding Plaintiffs reasonable atomey fees and costs.
G, Enter an Onder granting such further relief as is warranted in equity and
‘p00d conscience,
Respectflly Submitted,
‘VALDEMAR L. WASHINGTON, PLLC
Attomey for Plaintfls
718 Beach Street
P.O. Box 187
Flint, MI-48501-0187
810.407.6868
RELIANCE UPON JURY DEMAND
eins herewith state ther reliance upon the demand for wal by jury previously
sade herein.
Respectfully Submited,
\VALDEMAR L, WASHINGTON, PLLC
Dated: July 6, 2016
ByWaldermL. Washingion P7163)
Attorney for Plsintifts
‘718 Bosch Streev/P 0, Box 187
lint, MI 48501-0187
810.407.6868