Marden v. Midland, County of et al

Filing 82

ORDER Directing Supplemental Briefing on Settlement Approval and Distribution of Proceeds. (Response due by 10/2/2017.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SHARYL MARDEN, Personal Representative
of the Estate of JACK BRIAN MARDEN,
deceased,
Plaintiff,
v

No. 1:15-cv-14504-TLL-PTM
Hon. Thomas L. Ludington

COUNTY OF MIDLAND, et al,
Defendants.
_______________________________________________/
ORDER DIRECTING SUPPLEMENTAL BRIEFING ON SETTLEMENT APPROVAL
AND DISTRIBUTION OF PROCEEDS
On September 19, 2017, the Court entered an Indicative Order Accepting Limited
Remand to Conduct Hearing on Proposed Settlement Agreement and Distribution of Proceeds.
ECF No. 78. On September 20, 2017, Plaintiff submitted a Motion to Approve Settlement of a
Claim for Wrongful Death and Allow Distribution of Proceeds. ECF No. 79. On September 21,
2017, the U.S. Court of Appeals for the Sixth Circuit remanded the case to this Court to conduct
a hearing on the proposed settlement and distribution of proceeds. ECF No. 80.
The Motion requests the Court to approve the settlement agreement and order distribution
of the proceeds pursuant to MCLA 600.2922. Mot. at 4–5. The instant Motion and Brief do not
discuss Plaintiff’s compliance with the requirements of MCLA 600.2922. Among other things,
the statute delineates procedural requirements a personal representative must comply with, such
as serving notice on potentially interested persons within thirty days of the commencement of an
action, “in the manner and method provided in the rules applicable to probate court
proceedings.” MCLA 600.2922(2)-(4). Section 6(b) further directs notice of the hearing on

distribution of the proceeds “in the time, manner, and method provided in the rules applicable to
probate court proceedings.” MCLA 600.2922(6)(b). The Motion and Brief in Support do not
inform the Court of any pending probate court proceeding, the notice procedures established in
such proceeding, or the personal representative’s compliance therewith. The Motion only notes
that MCLA 600.2922 requires the Court to conduct a hearing on the reasonableness of the
settlement, and that Cherie Ann Kerns and Bradley Joseph Schank are interested persons but are
not expected to make a claim. Mot. at 3, Br. in Supp. at 2.
It appears from the record that the only notice provided to Ms. Kerns and Mr. Schank was
service of the Motion to Approve Settlement. See Br. in Supp. at 4 (Certificate of Service). It is
unclear if they were also served notice of the hearing on distribution of the proceeds. Assuming
they were, the Court still cannot determine whether these interested persons have received
adequate notice of the hearing on distribution of the proceeds “in the time, manner, and method
provided in the rules applicable to probate court proceedings.” MCLA 600.2922(6)(b). The
earliest the interested persons could have received notice of the hearing was September 19. It is
unclear if this provides them sufficient notice for an October 4 hearing.
MCLA 600.2922 also outlines the procedure for distribution of the proceeds. MCLA
600.2922(6)(d)-(e). The instant Motion and Brief in Support do not cite to applicable sections or
subsections of the statute that direct their proposed distribution. Section 6(d) directs the Court to
“distribute the proceeds to those persons designated under subsection (3) who suffered damages .
. . in the amount as the court or jury considers fair and equitable considering relative damages
sustained by each of the persons and the estate of the deceased.” MCLA 600.2922(6)(d);
Robinson v. Fiedler, 870 F. Supp. 193, 195 (W.D. Mich. 1994), aff'd, 91 F.3d 144 (6th Cir.
1996). The Court cannot adjudicate the interests of all potentially interested persons without

-2-

being apprised of the compliance with the notice procedures outlined above. Assuming no other
interested persons submit a claim and establish that they have suffered damages, it appears that
the balance of the proceeds, after costs are paid, would be distributed to Ms. Marden. However,
such interested persons must first have an opportunity to establish that they have suffered
damages, and it is not clear that they have had such an opportunity. Section 6(e) appears to
provide an alternative procedure whereby all of the persons entitled to proceeds stipulate to a
distribution thereof, and the Court enters an order pursuant to such stipulation. It is unclear
whether such a stipulation is forthcoming.
Finally, Plaintiff should support the proposed attorney fee award sought in the Motion.
See Flores v. Toadvine, 2009 WL 3621112, at *1 (E.D. Mich. Oct. 30, 2009) (analyzing fee
agreement attached as an exhibit to motion); Green v. Nevers, 111 F.3d 1295, 1303 (6th Cir.
1997) (outlining factors to be considered in awarding attorney fees generally). Plaintiff may do
so at the hearing or via supplemental briefing.
Accordingly, Plaintiff shall submit a supplemental brief advising the Court of compliance
with any applicable notice provisions, and shall advise the Court regarding the proposed
distribution in light of the statutory mandates.
It is ORDERED that Plaintiff shall file the supplemental brief by October 2, 2017.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 26, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 26, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

-3-