Frazier, et al v. Calille, et al
Filing
96
ORDER Granting in Part and Denying in Part Defendants' Motion to Deny and/or Limit Plaintiff's February 26, 2021 Notices of Deposition 84 ; Denying Plaintiffs' Motion for Order to Show Cause and to Compel Discovery 89 ; Granting Plaintiffs' Motion for Reconsideration 79 ; and Staying Motion to Enforce Settlement Agreement and for Permanent Injunction 9 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TYRONE FRAZIER, LAURENCE
HARWOOD, DANIEL THARP and
INTERNATIONAL UNION OF
UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA,
Plaintiffs,
Case No. 96-73419
v.
HON. DENISE PAGE HOOD
STATE OF MICHIGAN, DEPARTMENT
OF LICENSING & REGULATORY AFFAIRS,
UNEMPLOYMENT INSURANCE AGENCY and
SHARON MOFFETT-MASSEY,
Defendants.
____________________________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DENY AND/OR LIMIT PLAINTIFF’S FEBRUARY 26, 2021
NOTICES OF DEPOSITION (#84); DENYING PLAINTIFFS’ MOTION
FOR ORDER TO SHOW CAUSE AND TO COMPEL DISCOVERY (#89);
GRANTING PLAINTIFFS’ MOTION FOR RECONSIDERATION (#79);
and STAYING MOTION TO ENFORCE SETTLEMENT AGREEMENT
AND FOR PERMANENT INJUNCTION (#9)
I.
BACKGROUND/FACTS
This matter is before the Court on the following Motions: 1) Defendants’
Motion to Deny and/or Limit Plaintiffs’ February 26, 2021 Notices of Deposition
(ECF No. 84, filed 3/12/21); 2) Plaintiff UAW’s Motion for Order to Show Cause and
to Compel Discovery (ECF No. 89, filed 4/9/21); and, 3) Plaintiff UAW’s Motion for
Reconsideration as to the deposition of Steve Gray (ECF No. 79, filed 6/14/20).
Responses to the motions and replies have been filed and a hearing held.
On July 30, 1996, Plaintiffs United Automobile, Aerospace and Agricultural
Workers of America (“UAW”) and three individual plaintiffs filed a Complaint for
Injunctive and Declaratory Relief against what was then called the Michigan
Employment Security Commission, the State of Michigan’s body tasked with
administering the State’s Unemployment Insurance Program (the “Agency”).
Plaintiffs alleged three claims under the Social Security Act, 42 U.S.C. § 303 and one
claim under 42 U.S.C. § 1983 for violating the Due Process Clause of the Fourteenth
Amendment. Plaintiffs alleged that the Agency failed to properly handle situations
where claimants for unemployment were paid money, and a subsequent determination
was made that the claimants were not entitled to the unemployment benefits.
Plaintiffs asserted that even though appeals were pending and no final determination
had been made on the claimants’ eligibility to benefits, the Agency sent multiple
collection and delinquency notices were sent to the claimants. The parties thereafter
reached a Settlement Agreement and a Stipulated Judgment of Dismissal was entered
by the Court on April 29, 1997. (ECF No. 6).
Sixteen years later, on August 20, 2013, Plaintiffs filed a Motion to Enforce
2
Settlement Agreement and for a Permanent Injunction claiming that the Agency
breached the Settlement Agreement. The primary issue in the underlying case
involved the Agency’s procedures regarding the collection of overpaid unemployment
insurance. Plaintiffs argue that under the Settlement Agreement, once an overpayment
has been determined, no collection activity would be taken by the Agency until
appeals were concluded.
Plaintiffs assert the Agency violated the Settlement
Agreement since it has undertaken collection activities against claimants even though
the appeal process had not been completed. Plaintiffs claim that this Court should
issue a permanent injunction for the Agency to adhere to the terms of the Settlement
Agreement. Defendants respond that the motion should be denied because the
Settlement Agreement was executed more than 16 years ago and the permanent
injunction request is without merit as to today’s Unemployment Insurance Agency.
Defendants assert that no federal law has been breached as to the current claimants.
Defendants argue the Court should abstain from exercising any jurisdiction over the
claims by Plaintiffs.
This Court initially denied Plaintiffs’ Motion to Enforce the Settlement
Agreement and Permanent Injunction finding that the UAW lacked standing to
enforce the settlement agreement. (ECF No. 36, 3/31/14 Order) On appeal, the Sixth
Circuit Court of Appeals reversed and remanded the matter, finding that the UAW had
3
standing to enforce the settlement agreement. (ECF No. 40, Frazier v. Malek, Case
No. 1536 (6th Cir. Jan. 21, 2015))
On remand, the Court entered orders addressing various discovery motions filed
by the parties on February 6, 2019 and June 1, 2020. (ECF Nos. 61, 2/6/19 and 78,
6/1/20) The parties are currently in the midst of conducting discovery. Each of the
current motion is addressed below.
II.
ANALYSIS
A.
Defendants’ Motion to Deny and/or Limit Plaintiffs’ February 26,
2021 Notices of Deposition (ECF No. 84, filed 3/12/21)
On February 26, 2021, the UAW served Notices of Deposition on Acting
Director Liza Estlund Olson and former Director Sharon Moffett-Massey. Defendants
argue that Director Olson has no unique knowledge of the facts of the underlying case
and that any information from former Director Moffett-Massey can be obtained from
witnesses already subpoenaed. Defendants further argue that many of the information
sought by the UAW has been determined by the Court as irrelevant pursuant to its
February 6, 2019 and June 1, 2020 Opinions and Orders and that the repeated requests
by the UAW for the information is burdensome and harassing.
1.
Acting Agency Director Liza Estlund Olson and former
Director Sharon Moffett-Massey
Director Olson was appointed as the Agency’s Acting Director in November
4
2020. Prior to the appointment, Olson worked for the Michigan Office of State
Employer since 2008. Olson served as the Agency’s Acting Director from 2007 to
2008. Defendants argue that because Olson only took her position in November 2020,
she does not have first-hand knowledge of the Plaintiffs’ claims regarding the breach
of the Settlement Agreement dating back to 2010. Olson was at a different agency
prior to her appointment. The information and data ordered by the Court to be
produced has already been produced to Plaintiffs and any information Olson may have
could be obtained from more appropriate Agency witnesses according to Defendants.
In addition, Defendants argue that the Agency is navigating through
unprecedented times. The Agency is responding to increasing number of state
unemployment claims because of the nationwide COVID-19 epidemic, in addition to
implementing the CARES Act which was signed into law on March 27, 2020. The
CARES Act gave states the option of extending unemployment benefits (“Pandemic
Unemployment Assistance” or “PUA”) to individuals who ordinarily were ineligible
to receive unemployment benefits under the State’s existing law. Defendants claim
that processing state unemployment claims, as well as implementing and processing
PUA claims under the CARES Act, has put a tremendous stress on the Agency and
its staff, including Olson.
Former Director Moffett-Massey was the Agency’s director for approximately
5
three years and was one of a series of Directors from 2010 to the present. Defendant
claim that Moffett-Massey could provide little, if any, information regarding the
limited issues relevant to the pending motion to enforce the settlement agreement.
Defendants argue that the Agency has already provided the data regarding improper
collection activity and the data speaks for itself. There are other Agency personnel
who would be better sources of information and who would be able to explain the data
produced. The data produced was prepared and submitted when Moffett-Massey was
no longer the Director.
Plaintiffs respond that the Agency’s Directors, Olson and Moffett-Massey
carried an obligation to conduct the Agency in accordance with its legal
obligations–including ensuring that the Agency fulfilled its obligations under the
Settlement Agreement at issue. Plaintiffs argue that they are not seeking to depose
Olson and Moffett-Massey as to information regarding individual claimants but for
information regarding their knowledge and enforcement of the Settlement Agreement
in this matter while acting as the Agency’s Director. Plaintiffs seek to examine the
actions of their office in complying with or violating the terms of the settlement,
including policies and procedures adopted, and the Director’s interpretation of what
the Agreement requires.
This Court has addressed motions for protective order regarding high-ranking
6
government officials in Greco v. Livingston Cty., No. 12-CV-12212, 2014 WL
349103, at *8 (E.D. Mich. Jan. 31, 2014)(Hood) noting,
Courts have interpreted Rule 26(c) to impose limits on when a
high-ranking government official may be subject to deposition. See
Boudreau v. Bouchard, 07–10529, 2008 WL 4386836, at *2 (E.D. Mich.
Sept. 25, 2008), opinion amended on reconsideration, 07–10529, 2009
WL 55912 (E.D. Mich. Jan. 8, 2009) (“This rule is based on the notion
that ‘high ranking government officials have greater duties and time
constraints than other witnesses’ and that, without appropriate
limitations, such officials will spend an inordinate amount of time
tending to pending litigation.”) (citation omitted). Because a high
ranking official has both substantial demands on his time and a duty to
serve the public, such an official should be subject to deposition only
after: (1) a litigant seeking his deposition has exhausted other sources
that might yield the information sought, and (2) a showing by the litigant
that the official has “first-hand knowledge related to the claim being
litigated.” See id. Without such a rule, high-ranking officials would be
constantly subject to the demands of pending litigation, inhibiting their
ability to execute their official duties.
Id.
The parties agree that as the Director of the Agency, that person is the highestranking official of the Agency. The issue before this Court is whether the Agency
breached the Settlement Agreement and, reviewing the language of the Settlement
Agreement, the Agency’s duties are set forth in Paragraph 7 which provides,
Whenever the first decision that unemployment benefits
have been improperly paid is made by a Referee, the Board
of Review or a court, the Defendant agrees to the following
policies and practices:
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(a) The Defendant agrees to issue a determination of
restitution which (1) establishes amount of overpayment,
(2) state the week(s) of benefits involved in the
overpayment in question and, (3) addresses all issues of
administrative waiver of the overpayment. The restitution
determination shall include a notice that failure to appeal
the restitution determination will render it final and may
require repayment of the overpayment if the claimant loses
the appeal on the merits.
(b) If a timely appeal of the restitution determination is
made, the Defendant shall hold the adjudication of the
restitution determination in abeyance until the appeal on the
underlying issue(s) on the merits becomes final. Upon
finality of the appeal on the merits, if the claimant does not
prevail, the Defendant shall issue a redetermination of
restitution. Upon finality of the restitution (re)determination, the Defendant may begin collection activity. If
a timely appeal of the restitution determination is not made,
the claimant wins on appeal of the merits, the Defendant
will not collect on the restitution determination, even
though it has become final.
(c) All notices to claimants concerning collection of the
overpayment shall notify the claimant that if they disagree
with the amount of the restitution, they may contact the
Agency to discuss the matter which may include a seated
interview.
(d) After discussion, if the Agency agrees with the claimant
that an error has been made, appropriate adjustments will
be made in the amount to be collected, even if the
restitution determination had become final. If the Agency
does not agree with the claimant, the Agency will collect
the amount stated in the final restitution determination.
Collection under these circumstances presumes a final
adverse decision to the claimant as to the merits of the case
as well as finality with respect to the restitution
determination.
(e) The claimant has a right to request an indigency waiver
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at any time during the collection process and the Agency
will advise the claimant of this right in every notice
regarding collection or recovery of non-fraud overpayment.
(Settlement Agreement, Doc. No. 9, Ex. A, ¶7)
Plaintiffs’ reason for seeking the depositions of Olson and Moffett-Massey is
to examine the actions of their office in complying with or violating the terms of the
settlement, including policies and procedures adopted, and the Director’s
interpretation of what the Agreement requires. This reason appears overbroad in that
it does not seek information as to “how” the Agency breached the Settlement
Agreement, but rather “policies and procedures” adopted and the Director’s
“interpretation” of what the Agreement requires. The parties are bound by the fourcorners of the Settlement Agreement. The “policies and procedures” are not at issue,
nor the Director’s “interpretation” of what the Agreement requires. The limited
discovery in this matter relates to “how” the Agency breached the specific provisions
of the Settlement Agreement.
In the concluding paragraph, the UAW indicates that Plaintiffs “seek
information related to premature collection and to the policies and practices
surrounding hardship waivers.” This statement is also overbroad in that Plaintiffs do
not specifically identify under which specific provision Olson and Moffett-Massey
may have information relevant to whether the Agency breached the Settlement
9
Agreement. The Settlement Agreement specifically sets forth the Agency’s duties
once a “first decision that unemployment benefits have been improperly paid is made
by a Referee, the Board of Review or a court.” This matter is not before the Court on
the Agency’s overall policies and procedures and how these may have changed
through the years. It may be that there are policies and procedures relating to the
implementation of the Settlement Agreement, but until such a breach is shown, any
policy or procedure is not relevant–only whether the Settlement Agreement is
breached. The issue before the Court is not what the current policies and procedures
are and whether those policies and procedures are appropriate or not. It may be that
Plaintiffs seek what they believe should be different policies and procedures, but that
is not relevant to the issue before the Court, which is whether the Agency actually
breached its duties under the express language of the Settlement Agreement entered
into by the parties. Unless Plaintiffs specifically identify which provisions of the
Settlement Agreement they seek information on from Olson and Moffett-Massey,
whether Plaintiffs can show they exhausted other sources for this information and
whether Plaintiffs can show how Olson and Moffett-Massey may have first-hand
information as to the specific information sought, they need not be deposed.
2.
Rule 30(b)(6) Notice of Deposition Duces Tecum
Defendants seek limitations of the Rule 30(b)(6) Notice of Deposition Duces
10
Tecum because the topics are written very broadly and fail to take into account the
very specific provisions of the Settlement Agreement–the improper collection where
the first decision to institute restitution was made at the referee level or a later court
decision. Defendants also claim that the topics ignore the Court’s warning that
“whether the determination of the amount sought to be collected was proper is not
before the Court” as noted in the Court’s June 1, 2020 Opinion and Order.
Defendants noted that the following information sought by Plaintiffs are not relevant
to whether the Settlement Agreement was breached:
•
•
•
•
General policies and procedures regarding the Agency’s practices
and procedures; the names of staff who work in the collections or
hardship waiver units (topics 4, 7, 8, 10, 12, 13, 14);
Information regarding the disposition of hardship waivers (topics
5, 6, 11);
Amounts of all restitution collection by the Agency and collection
methods (topic 15);
Fraud reversal information (topic 16).
(ECF No. 84, PageID.1357-1358)
Plaintiffs respond that Defendants have not complied (and are not complying)
with the Settlement Agreement by engaging in non-conforming collection practices,
including by initiating tax intercepts and wage garnishment (or other forms of
collection) (1) against people that were eligible for hardship waivers but were denied
for baseless reasons; (2) against claimants before any judgment became final; and/or
11
(3) without providing a final notice of restitution due and time to appeal. Plaintiffs
claim they need information regarding the Agency’s policies related to collections and
hardship waivers and how those policies play out in practice. Plaintiffs argue that
based on the Sixth Circuit opinion, they are allowed the information sought.
In its Opinion, the Sixth Circuit noted,
[T]he settlement agreement does more than clarify existing policies—it
unambiguously requires policy changes. In paragraph 7, the Agency
‘agree[d] to . . . policies and practices,’ including issuing ‘a
determination of restitution’ and, upon the filing of a timely appeal,
‘hold[ing] the adjudication of the restitution determination in abeyance
until the appeal on the underlying issue(s) . . . becomes final.’ We
discern no obstacle to the district court determining whether the Agency
systematically has ignored these conditions and, if it has, ordering the
appropriate remedy.[fn1] To the extent the parties dispute the
underlying facts, the court may hold an evidentiary hearing.
Frazier, Case No. 14-1536, Opn at p. 4.
As to the information sought by Plaintiffs in topics 4, 7, 8, 10, 12, 13, 14
relating to general policies and procedures regarding the Agency’s practices and
procedures and the names of staff who work in the collections or hardship waiver
units, Plaintiffs have not shown how this information establishes that the Agency
breached a specific provision in the Settlement Agreement, nor the identity of specific
staff is relevant. As noted by the Sixth Circuit, the Settlement Agreement “changed”
the then-existing policies and procedures. This means that the policies and procedures
12
at issue are the ones expressly written in the Settlement Agreement. Any current
policies and procedures are not relevant. The issue is whether a specific policies and
procedures written into the Settlement Agreement has been breached–not what the
current policies and procedures are.
As to information regarding the disposition of hardship waivers requested in
topics 5, 6, 11, this information is not relevant as to whether the Settlement Agreement
was breached.
The amounts of all restitution collection by the Agency and collection methods
as requested in topic 15 is also not relevant to show whether the Agency breached a
specific provision of the Settlement Agreement. The Settlement Agreement does not
provide for an “overall” damages for any breach. As noted by the Sixth Circuit in a
footnote, Plaintiffs sought enforcement of the Settlement Agreement on the appeal.
The Sixth Circuit also noted that “the absence of express remedies in the settlement
agreement does not foreclose the fashioning of appropriate remedies in the event of
a breach. Retained jurisdiction vests the court with inherent authority to enforce its
orders by granting injunctive relief.” Frazier, id. at pp. 3-4.
Regarding fraud reversal information sought in topic 16, such information also
does not show that the Agency breached a specific provision of the Settlement
Agreement.
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3.
Deposition Notice to Teresa Burns
Defendants seek limitations to the topics to be covered at the deposition of
Teresa Burns, the Agency’s State Division Administrator. Plaintiffs respond that
Burns signed the interrogatory responses and is not a Rule 30(b)(6) deposition and so
Plaintiffs are not required to list deposition topics prior to the deposition. Plaintiffs
note that Defendants will have the opportunity to object on the record as to any
questions.
Because Burns is not a Rule 30(b)(6) deposition, deposition topics are not
required to be listed prior to the deposition. Defendants may place any objections on
the record at the deposition.
B.
Plaintiff UAW’s Motion for Order to Show Cause and to
Compel Discovery (ECF No. 89, filed 4/9/21)
1.
Underlying Data and Records of All Collection Activity While
Timely Appeals are Pending
Plaintiffs claim that the Agency initiates collections activity prior to a hearing
is contrary to the Settlement Agreement and to Michigan Employment Security Act
(“MESA”), MCL 421.1 et seq. Plaintiffs assert that the Court ordered Defendants to
produce data on collection activities.
Yet, Plaintiffs argue that Defendants
intentionally limited their search, affirmatively excluding any cases in which
collection activity occurred pre-hearing. Plaintiffs claim the language and intent of
14
the Agreement, the law, and Orders from this Court and the Sixth Circuit are clear:
the Agency may not initiate collections activity until there has been a final decision
on the merits. Because of Defendants’ failure to follow the Court’s order, Plaintiffs
request an Order to Show Cause why Defendants failed to follow the Order.
Plaintiffs also request that the Court compel Defendants to conduct a search for
cases on which collection activity took place prior to a hearing and produce data
related to any cases in which the Agency finds a possible or probable violation.
In response, Defendants are unclear as to when Plaintiffs made this specific
discovery request. They assume it was made as part of its pending 30(b)(6) deposition
notice, but the demand fails to consider the very specific provisions of the Settlement
Agreement–only after the first decision to institute restitution is made at the Referee
level or above. Defendants assert the parties and the Court are bound by the language
of the Settlement Agreement. Defendants argue that the Settlement Agreement only
applies after the ALJ determines restitution is owed and that nothing in the Settlement
Agreement provides anything about collection practices prior to an ALJ hearing.
As set forth in the Settlement Agreement as set forth above and again, here,
Paragraph 7 first expressly provides, “[w]henever the first decision that unemployment
benefits have been improperly paid is made by a Referee, the Board of Review or a
court, the Defendant agrees to the following policies and practices ...” The issue
15
before the Court is whether Defendants breached the Settlement Agreement and, if so,
Plaintiffs seek enforcement of the Settlement Agreement. The discovery provided by
Plaintiffs conformed to the language of the Settlement Agreement–that information
only after the ALJ or any higher authority, have found that benefits were improperly
paid. This matter is not before the Court as to whether the Agency violated any
Michigan law–specifically under MESA.
2.
Coherent Data Regarding the Limited Scope of Production
that the Agency has Provided
Plaintiffs claim that the data provided is largely indecipherable and does not
reflect whether any identified violations were the result of systemic non-compliant
policies. Plaintiffs further claim that Defendants have acknowledged that the data
provided is impossible to interpret and that a Rule 30(b)(6) deposition is necessary to
understand the data produced. Plaintiffs acknowledge that Defendants agreed to such
a deposition, but Plaintiffs claim this is insufficient because Defendants have an
obligation to produce readable data and the sources of the violations are critical in
determining whether there are systemic violations, or if any violations are de minimis
as Defendants argue.
Plaintiffs request that this Court compel Defendants produce a single
spreadsheet with (1) an adequate key, including a key to explain any abbreviations
16
or color coding; (2) information regarding how the Agency discovered the identified
alleged violation; (3) search terms used to discover the alleged violation; and (4)
explanations in plain English to describe the alleged violation, including any protests
or appeals and all collection activity.
Defendants respond that they agreed to complete a Rule 30(b)(6) deposition
regarding how the spreadsheet was produced and how to interpret the data in the
spreadsheet.
Defendants claimed that Plaintiffs did not seek any additional
information regarding the contents of the spreadsheet before Defendants sought an
order show cause/or to compel it. Defendants assert Plaintiffs never sought a single
spreadsheet. Defendants claimed it produced two additional spreadsheets on February
9 and 24, 2021 and advised Plaintiffs that the production would be rolling. Plaintiffs
did not object to the multiple disclosures. Defendants assert any information
regarding the contents of the spreadsheet should first be attempted to be resolved at
the Rule 30(b)(6) deposition, which the parties have agreed to.
Before the Rule 30(b)(6) deposition, Plaintiffs must send a letter request to
Defendants as to which abbreviations they seek definitions and then Plaintiffs will
respond accordingly. As to how the spreadsheets were produced and any additional
information regarding the contents of the spreadsheet can be addressed by the Rule
30(b)(6) witness. If Plaintiffs are not satisfied, they can place their objections on the
17
record and file a motion if necessary.
3.
Underlying Files
Plaintiffs assert that Defendants acknowledged that there were at least 156
“possible” violations and 67 “probable” violations of the Settlement Agreement based
on the discovery provided. Plaintiffs claim that it must review the underlying
claimant files in order to meet its burden that there may be actual and/or systemic
violations of the Settlement Agreement by the Agency.
Defendants respond that only after the Rule 30(b)(6) deposition is complete as
to the data that was provided on these violations should the Court consider any
production of claimant files. The Court previously denied production of claimant files
noting that only if production of the data in those files could not be produced, then
claimant files may be required.
The parties should first hold the Rule 30(b)(6) depositions on the possible and
probable violations data provided. If Defendants thereafter believes the information
is insufficient, Defendants may then file their objections on the record and file the
appropriate and specific motion.
4.
Depositions of Agency Directors and Officials
Plaintiffs seek to depose the Agency Directors and Officials. The Court has
18
ruled on the depositions of Olson, Moffett-Massey and Burns noted above.
5.
Information Regarding Claimants Whose Hardship Waivers
are Automatically Denied Due to Pending Appeal While
Collection Activity is Ongoing
Plaintiffs claim that the right to request an indigency waiver “at any time” under
the Settlement Agreement is illusory in practice. Plaintiffs assert that the Agency is
engaging in collection activity against claimants while appeals are pending, yet
automatically deny them financial hardship waivers because of the pending appeal.
Plaintiffs further assert that Defendants repeatedly refused to produce any information
regarding hardship waiver in practice and only produced the forms. Plaintiffs argue
that in order to understand whether Defendants provide a meaningful right to seek
hardship waivers, Plaintiffs need information regarding the policies under which
Defendants automatically deny hardship waivers due to the stage of the case and other
noncompliant policies and procedures. Plaintiffs seek that Defendants produce data
regarding denied hardship waivers and reasons for such denial including applications
for hardship waivers denied during a timely appeal, procedures regarding how often
or in what manner each form was sent, to what category of claimant each form was
sent, and whether Defendants actually provided a hardship waiver form upon request
from a claimant.
Defendants respond that the Court has previously denied the Plaintiffs’ request
19
to produce records regarding hardship waivers because the Court found that under the
Settlement Agreement, the Agency was only required to produce Notices sent to
claimants. Plaintiffs have produced the required Notices sent to the claimants.
The terms of the Settlement Agreement, as set forth above and here, expressly
states that the Agency had to notify claimants of the availability of hardship waivers
on “every notice regarding collection or recovery of a non-fraud overpayment.”
(Agreement, ¶7(e)) As this Court previously held, the Settlement Agreement only
required Defendants to notify claimants of the availability of hardship waivers.
Nothing in the Settlement Agreement provides that Plaintiffs are entitled to any
further information, such as whether such requests are denied and the reasons for any
denial.
C.
Plaintiff UAW’s Motion for Reconsideration as to Steve Gray
Plaintiff seeks to depose Steve Gray in his official capacity as the Director of
the Unemployment Insurance Agency arguing that the Court committed palpable error
in its previous order denying the request.
The Local Rules of the Eastern District of Michigan provide that any motion
for reconsideration of non-final orders must be filed within 14 days after entry of the
order. E.D. Mich. LR 7.1(h)(2). No response to the motion and no oral argument
thereon shall be allowed unless the Court orders otherwise. E.D. Mich. LR 7.1(h)(3).
20
Motions for reconsideration of non-final orders are disfavored and may be brought
only upon the following grounds:
(A)
(B)
©
The court made a mistake, correcting the mistake
changes the outcome of the prior decision, and the
mistake was based on the record and law before the
court at the time of its prior decision;
An intervening change in controlling law warrants a
different outcome; or
New facts warrant a different outcome and the new
facts could not have been discovered with reasonable
diligence before the prior decision.
E.D. Mich. LR 7.2(h)(2). A motion for reconsideration is not a vehicle to re-hash old
arguments, or to proffer new arguments or evidence that the movant could have
brought up earlier. Sault Ste. Marie Tribe v. Engler, 146 F.3d 367, 374 (6th Cir.
1998)(motions under Fed.R.Civ.P. 59(e) “are aimed at re consideration, not initial
consideration”)(citing FDIC v. World Universal Inc., 978 F.2d 10, 16 (1st Cir.1992)).
The Court indicated that if Gray is able to assert he has not gained relevant
information to the two issues before the Court as the Director since June 3, 2019, he
not be deposed. (ECF No. 78, PageID.1304) There has been no indication that Gray
has so asserted and Plaintiff’s motion has not so indicated. To move this forward, the
Court will allow Gray to either be deposed in his official capacity or respond to an
interrogatory to such a question, to determine whether he has relevant information
since he became the Director on June 3, 2019 as to the two issues before the Court.
21
As noted by Plaintiff, Gray will not divulge any attorney-client information if deposed
or in any response to an interrogatory. The Court grants Plaintiff’s Motion for
Reconsideration as noted above.
III.
CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendants’ Motion to Deny and/or Limit Plaintiffs’
February 26, 2021 Notices of Deposition (ECF No. 84, filed 3/12/21) is GRANTED
as to Acting Director Olsen and Former Director Moffett-Massey; GRANTED
IN PART AND DENIED IN PART as to the Rule 30(b)(6) Depositions; and
DENIED as to Teresa Burns.
IT IS FURTHER ORDERED that Plaintiff UAW’s Motion for Order to Show
Cause and to Compel Discovery (ECF No. 89, filed 4/9/21) is DENIED as to the
Order to Show Cause; DENIED as to Agency Acting and Former Directors;
DENIED without prejudice subject to Rule 30(b)(6) depositions; and DENIED
as to hardship waiver files.
IT IS FURTHER ORDERED that Plaintiff UAW’s Motion for Reconsideration
(ECF No. 79,filed 6/15/20) is GRANTED as set forth above.
IT IS FURTHER ORDERED that the Motion to Enforce Settlement Agreement
and for Permanent Injunction (ECF No. 9, filed 8/20/13) is STAYED and to be
22
REOPENED upon completion of discovery and further briefing.
IT IS FURTHER ORDERED that the parties submit a joint status report of the
discovery issues with proposed dates governing this matter, within thirty (30) days
from the date of this Order.
s/Denise Page Hood
DENISE PAGE HOOD
United States District Judge
DATED: September 29, 2023
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