Flagg v. Detroit, City of et al

Filing 615

ORDER DENYING PLAINTIFFS' 462 Motion for Entry of Default and Other Relief. Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ERNEST FLAGG, as Next Friend
of J. B., a minor; TARIS JACKSON,
as Next Friend of A. J., a minor; and
BRIAN GREENE, as Next Friend of
I. B., a minor,

Case No. 05-74253
Hon. Gerald E. Rosen

Plaintiffs,
v.
CITY OF DETROIT and KWAME M. KILPATRICK,
Defendants.
________________________________________/
ORDER DENYING PLAINTIFFS’ MOTION
FOR ENTRY OF DEFAULT AND OTHER RELIEF
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
October 31, 2011
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
In a motion brought on September 15, 2010, shortly after the close of the lengthy
discovery period in this case, Plaintiffs raise a variety of complaints about materials that
purportedly were withheld during discovery, and they seek the entry of a default
judgment and an award of sanctions arising from these alleged discovery violations. For
the reasons stated briefly below, the Court finds that Plaintiffs have failed to establish an
entitlement to any relief arising from the matters raised in their motion.
As the first of the three purported discovery violations identified in their motion,

Plaintiffs assert that the Defendant City of Detroit has failed to comply with an order
directing it to submit to the Court a complete copy of the Detroit Police Department
(“DPD”) investigative file regarding the murder of Tamara Greene. In support of this
contention, Plaintiffs cite the testimony of several DPD officers — including Sergeant
Marian Stevenson, Lieutenant Billy Jackson, and Sergeant Mike Russell — who have
stated at their depositions that certain materials appeared to be missing from the Greene
homicide file when they reviewed in this Court’s chambers. It follows, in Plaintiffs’
view, that the Defendant City failed to comply with the Court’s directive to produce a
complete copy of the Greene homicide file.
This complaint of missing materials, however, fails on two scores to provide a
basis for relief. First, Plaintiffs failed to bring this matter before the Court in a timely
fashion. Under the January 4, 2008 scheduling order that governs this action, a discovery
dispute must be raised with the Court within 14 days after a party has notice of this
dispute. In this instance, the depositions giving rise to Plaintiffs’ awareness of
purportedly missing materials were taken in March, June, and July of 2010, but Plaintiffs
did not file the present motion until September 15, 2010, roughly six weeks after the last
of these depositions. Under these circumstances, the Court declines to intervene in this
dispute.
Yet, even if Plaintiffs had timely raised this complaint, they have failed to suggest
an evidentiary basis upon which the Court could conclude that the City violated the April
15, 2008 order directing it to produce a complete copy of the Greene homicide file. Most
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notably, even assuming that the materials identified by Plaintiffs as “missing” from the
file are truly missing — a premise the City disputes in certain respects in its response to
Plaintiffs’ present motion — Plaintiffs have failed to explain the basis for their apparent
assumption that these materials were present in the original file used to generate the copy
produced to the Court back in April of 2008. Against this unfounded speculation, the
City states that it did, in fact, produce a copy of the entire homicide file as it existed in the
City’s possession at the time this copy was made and submitted to the Court.1 Indeed,
Plaintiffs have pointed to these very same “missing” materials as substantive proof of
their underlying claims that Defendants unlawfully interfered with the Greene homicide
investigation. Certainly, then, it is within the realm of possibility that some or all of these
materials went missing before the Court entered its April 15, 2008 order directing the
City to produce a complete copy of the Greene homicide file. Against this backdrop, the
Court declines Plaintiffs’ invitation to speculate that the City violated the April 15, 2008
order.
The two remaining discovery violations claimed in Plaintiffs’ motion warrant little
discussion. First, Plaintiffs suggest that Defendants “improperly withheld” an affidavit
evidently signed by an individual named Tommie Lee Hodges back in July of 2008. (See
Plaintiffs’ Motion, Br. in Support at 8.) Yet, Plaintiffs acknowledge that they were given
1

The City further observes that this file has not been in its sole possession during all
times of relevance to this suit, but instead was turned over to the Wayne County Prosecutor’s
Office for an extended period. It is possible, then, that materials could have been lost while the
file was outside the City’s possession and control. Nothing in the record sheds any light on this
question.
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a copy of this affidavit on April 21, 2010. Clearly, then, Plaintiffs did not timely bring
this matter to the Court’s attention, but instead waited nearly five months before raising
this issue in the present motion. In any event, and as Defendant Kilpatrick aptly observes
in his response to Plaintiffs’ motion, Plaintiffs have failed to identify any order, or even a
discovery request, that would have given rise to either Defendant’s obligation to disclose
the Hodges affidavit before Plaintiffs received it in connection with the deposition of
DPD Officer Mike Carlisle in April of 2010. There is no freestanding, affirmative duty
under the Federal Rules of Civil Procedure to turn over any and all materials that the
opposing party might find relevant, even absent a request to produce these materials, and
a party certainly does not violate any such Federal Rule by failing to anticipate the
opposing party’s desire for materials it has not requested.
Finally, Plaintiffs contend that the Defendant City has failed to comply with a
September 2, 2010 order in which the Magistrate Judge instructed the City to produce
certain materials within seven days. In its response to Plaintiffs’ motion, however, the
City states without contradiction that it sought a brief extension of the deadline for
providing these materials, that the Magistrate Judge granted this request, and that the
materials in question were timely produced prior to this extended deadline. Accordingly,
the Court agrees with the City that this issue is moot.
For these reasons,

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NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiffs’ September 15,
2010 motion for entry of default and other relief (docket #462) is DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: October 31, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record
on October 31, 2011, by electronic and/or ordinary mail.
s/Ruth A. Gunther
Case Manager

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