Freeman v. Detroit, City of et al

Filing 52

OPINION AND ORDER DENYING PLAINTIFF'S 49 MOTION for Reconsideration re 46 Memorandum Opinion & Order. Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DWUAN FREEMAN,
Plaintiff,

No. 09-CV-13184

vs.

Hon. Gerald E. Rosen

CITY OF DETROIT AND DETROIT
POLICE OFFICER JAMES NAPIER,
Defendants.
_______________________________/
OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
June 24, 2011
PRESENT:

Honorable Gerald E. Rosen
United States District Chief Judge

This matter is presently before the Court on Plaintiff’s June 1, 2011 Motion for
Reconsideration of the Court’s May 16, 2011 Opinion and Order granting Defendant City
of Detroit’s Motion for Partial Summary Judgment. Plaintiff makes no new substantive
arguments in seeking reconsideration of the Court’s ruling that Defendant was entitled to
summary judgment on Plaintiff’s Monell-based policy and practice/ failure to train claim.
Rather, his Motion for Reconsideration is based entirely upon his argument that the Court
acted prematurely in entering its Opinion and Order on May 16.
As indicated in the Court’s May 16, 2011 Opinion, Defendant’s Motion for Partial
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Summary Judgment was filed on August 30, 2010. Plaintiff did not timely file a
response to Defendant’s Motion. It was only after being ordered to respond to the
Motion [see Dkt. # 36] that Plaintiff finally filed his Response on December 17, 2010.
In that Response, Plaintiff requested that the Court hold in abeyance its ruling on
Defendant’s Motion to allow for the Magistrate Judge to render her decision on
Plaintiff’s then pending Motion to Compel Depositions. The Court complied with
Plaintiff’s request.
The Magistrate Judge issued her ruling on the Motion to Compel on April 5, 2011.
In her Order, the Magistrate Judge granted Plaintiff’s Motion to Compel the depositions
of Defendant Napier and Officer McGinnis, but denied the Motion as to the 7 other
depositions Plaintiff sought -- the depositions of six other non-party Detroit Police
Officers and one Rule 30(b)(6) deponent -- because Plaintiff did not properly notice these
deponents for discovery before the close of the discovery period.1 The Magistrate
Judge’s Order was explicit:
IT IS THEREFORE ORDERED that Plaintiffs [sic] Motion to Compel
Depositions (docket no. 26) is GRANTED in part as follows:
1

With respect to the depositions of Officers Napier and McGinnis, noting that
counsel for the parties were in agreement that Napier’s deposition was timely noticed,
and that, even though he had not received a timely notice for McGinnis, defense counsel
had agreed in September 2010 to produce both Defendant Napier and McGinnis for their
depositions, the Magistrate Judge stated, “It therefore strains the imagination to
contemplate why these two depositions have not gone forward. [Therefore,] the Court
will grant Plaintiff’s motion as to Defendant Napier and Officer McGinnis and order that
the depositions be completed immediately.” [4/5/11 Order, Dkt. # 44 (emphasis added).]
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a.

The depositions of Defendant Officer James Ivan Napier and Officer
Michael McGinnis will go forward and be completed on two dates
within 14 days of entry of this order, with each deposition not to
exceed one day of seven hours and to be completed in accordance
with Fed. R. Civ. P. 30(d)(1) and the parameters set forth in the
Court’s Scheduling Order (docket no. 13);

b.

Plaintiff may file an Amended Response To Defendant’s Motion for
Summary Judgment within fourteen (14) days of the completion of
the latter of Defendant Officer Napier’s and Officer McGinnis’s
depositions.

IT IS FURTHER ORDERED that the remainder of Plaintiff’s Motion to
Compel depositions, including the request for sanctions is DENIED.
[4/5/11 Order, Dkt. # 44 (emphasis added).]
Notwithstanding that the parties were explicitly and unequivocally ordered to
complete the depositions of Napier and McGinnis within 14 days of April 5, 2011 -- i.e.,
by April 19, 2011 -- without requesting relief from the Magistrate Judge or this Court or
otherwise seeking an amendment of the April 5th Order, the parties simply decided
themselves to deviate from the deadline set by the Magistrate Judge and did not even
commence the depositions until April 27, 2011. Defendant Napier was deposed on that
date (April 27). McGinnis was deposed a week later, on May 5, 2011.
Plaintiff now argues that because they did not complete McGinnis’s deposition
until May 5, 2011, he had until May 19, 2011 to file an Amended Response, and the
Court, therefore, erred when it entered its Opinion and Order three days earlier, on May

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16, 2011.2
Plaintiff ignores the fact that he was given only until April 19 to complete
Napier’s and McGinnis’s deposition and that, pursuant to Magistrate Judge Majzoub’s
Order, he, therefore, had only until May 3, 2011 to file an Amended Response. When no
Amended Response was filed by that date, the Court properly proceeded with deciding
Defendant’s Motion for Partial Summary Judgment based on the record before the Court
at that time.
The grounds for granting a Motion for Reconsideration are set forth in Eastern
District of Michigan Local Rule Rule 7.1(h), which provides in relevant part:
Generally, and without restricting the court's discretion, the court will not
grant motions for rehearing or reconsideration that merely present the same
issues ruled upon by the court, either expressly or by reasonable
implication. The movant must not only demonstrate a palpable defect by
which the court and the parties and other persons entitled to be heard on the
motion have been misled but also show that correcting the defect will result
in a different disposition of the case.
Local Rule 7.1(h)(3), U.S. District Court, Eastern District of Michigan. A “palpable
defect” is “a defect that is obvious, clear, unmistakable, manifest or plain.” United States
v. Lockette, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004). As indicated above, there was
no “obvious, clear, unmistakable, manifest or plain” defect with regard to the Court
deciding Defendant’s Motion for Partial Summary Judgment on May 16, 2011.

2

Though Plaintiff’s counsel states he was in the process of drafting an Amended
Response when the Court’s Opinion was issued on May 16, no such Amended Response
was ever filed. Indeed, even as of this date, he has made no effort to submit any such
Amended Response for the Court’s consideration.
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The unilateral decision of counsel to postpone the depositions until April 27 and
May 5 does not entitle Plaintiff to the relief he requests. A court order “is not a frivolous
piece of paper, idly entered, which can be cavalierly disregarded by counsel without
peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992) (citing
Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D.Me.1985)). Disregard of the
order would not only undermine the court’s ability to control its docket and disrupt the
course of the litigation, but also it would effectively “reward the indolent and the
cavalier.” Id. Furthermore, from a practical standpoint, to permit Plaintiff here to take
advantage of an independent agreement of counsel to expand the parameters of a courtordered deadline would permit the parties to depose witnesses and potentially generate
discovery disputes right up to the date of trial. The Court will not condone such
undermining of the public’s interest in the prompt and efficient administration of justice.
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration [Dkt. #
49] is DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: June 24, 2011

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I hereby certify that a copy of the foregoing document was served upon counsel of record
on June 24, 2011, by electronic and/or ordinary mail.
s/Ruth A. Gunther
Case Manager
.

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