Dumas v. Hurley Medical Center et al

Filing 68

ORDER granting 65 Defendants' Motion to Strike Affidavits. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LOWANA SHANELL DUMAS,
Plaintiff,
v.

Case No. 10-12661

HURLEY MEDICAL CENTER, et al.,
Defendants.
/
ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE AFFIDAVITS
On July 11, 2011, Plaintiff Lowana Shanell Dumas filed an affidavit containing
certain allegations against Defendant Marlena Miller. On July 19, 2011, Plaintiff filed
two additional affidavits containing further allegations against Defendants Janice
Anderson and Emily Mahank. On the same day, Defendants Hurley Medical Center,
David Szczepanski, Vanessa Nelson, Jay Kitson, Dwayne Parker, Sheila Moore, Kristen
Deloney, Marlena Miller, Janice Anderson, Javonka Thorns, Emily Mahank, and Brandy
Marsh (collectively “Hurley Defendants”), moved to strike the affidavits as either
improper attempts at discovery or improper attempts to amend Plaintiff’s second
amended complaint. On July 21, 2011, Plaintiff responded to the motion to strike and
filed an additional exhibit. Although the court views the affidavits as an attempt to
bolster the factual basis of Plaintiff’s response to all Defendants’ motions to dismiss, the
court will nonetheless strike the motions as improvidently filed. In their opening
sentences, the affidavits purport to save the individual Defendants whose actions they
address from the unnecessary burden of personally attending a hearing before this

court. This indicates that Plaintiff labors under the misconception that an evidentiary
hearing is currently scheduled in this case. Plaintiff’s response further confirms this by
citation to Federal Rule of Civil Procedure 56, which governs motions for summary
judgment—for which evidence must be presented. In contrast, the hearing scheduled
for August 3, 2011, will address only the legal adequacy of Plaintiff’s second amended
complaint. All factual assertions must be accepted as true for purposes of deciding
motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Tackett v. M&G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009). Therefore, the affidavits are
improvidently filed, whatever Plaintiff’s reason. Accordingly,
IT IS ORDERED that Hurley Defendants’ motion to strike [Dkt. # 65] is
GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court is DIRECTED to strike
Plaintiff’s affidavits [Dkt. 62, 63, 64, 67] as improvidently filed.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 26, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 26, 2011, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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