Fuller v. Kerr, et al

Filing 59

ORDER Granting Plaintiff's 47 Motion to Compel Compliance with subpoena; and finding MOOT 52 Motion to Extend ; granting 52 Motion to Stay--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS LEROY FULLER (#237590),
Plaintiff,
CASE NO. 2:13-CV-13171
JUDGE MATTHEW F. LEITMAN
MAGISTRATE JUDGE ANTHONY P. PATTI
v.
DAVID KERR,
GARY DAVIS,
JANET COCHRAN and
JOHN HAWLEY,
Defendants.
/
ORDER (A) GRANTING PLAINTIFF=S MOTION TO COMPEL
COMPLIANCE WITH SUBPOENA (DE 47) AND REQUIRING A
RESPONSE; (B) STAYING DEFENDANTS= DISPOSITIVE MOTION (DE
48) and (C) DEEMING MOOT IN PART AND GRANTING IN PART
PLAINTIFF=S MOTION FOR EXTENSION AND/OR TO STAY (DE 52)
A.

Introduction
Currently, there are five (5) motions pending before the Court.

38, DE 47, DE 48 and DE 52.

DE 20, DE

Among these are (A) Plaintiff=s December 29, 2014

motion to compel compliance with subpoena (DE 47); (B) Defendants= December
31, 2014 motion to dismiss and for summary judgment (DE 48) and (C) Plaintiff=s
February 12, 2015 motion for extension and/or to stay (DE 52).
This order resolves two (2) of the pending motions.

B.

Discussion
1.

Motion to Compel Compliance with Subpoena (DE 47)

Col. Kriste Kibbey Etue is the Director of the Michigan State Police (MSP).
See www.michigan.gov/msp, "About Us,@ "Meet the Director."

On or about

August 28, 2014, Plaintiff served Etue with a subpoena to produce a certified copy
of CR-94708-14.

DE 47 at 5-7.

According to Plaintiff, this file Apertains to the

Assault and Battery investigation of Defendant David Kerr against Plaintiff.@ DE
47 at 1 & 2.
Plaintiff received a response from Renee Hultberg, MSP Assistant Freedom
of Information Act (FOIA) Coordinator, on September 11, 2014; however,
according to Plaintiff, the response did not include the information it purportedly
enclosed.

DE 47 at 1 & 3.

On September 17, 2014, Plaintiff wrote back to

inform Hultberg that the requested information had not been enclosed; however,
Hultberg has not acknowledged Plaintiff=s letter, nor has Plaintiff been provided
with the information as requested in the subpoena. DE 47 at 2 & 4.
On December 29, 2014, Plaintiff filed a verified motion (DE 47) to compel
compliance with the subpoena served on Col. Etue.

DE 47 at 3. Plaintiff claims

that the information sought in CR-94708-14 Ais necessary for the trial preparation in
this matter.@

According to Plaintiff, he Acannot obtain the information contained in

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the investigation report by [any] other means.@

DE 47 at 2 & 5. In support of his

motion, Plaintiff cites Fed. R. Civ. P. 45 (DE 47 at 1, 4) and relies upon Exxon
Shipping Co. v. U.S. Dept. of Interior, 34 F.3d 774 (9th Cir. 1994)1 and United
States v. Nixon, 418 U.S. 683 (1974) (DE 47 at 2 && 6, 7). In sum, Plaintiff
requests:
. . . that the Court enter an Order Compelling Colonel Kriste Kibbey
Etue to Comply with the command of the subpoena served on her on
August 28, 2014 and provide Plaintiff with a certified copy of State
Police files: CR-94708-14 and S-96315-14 concerning the
investigation of the ass[au]lt and battery of Plaintiff by Defendant
David Kerr within ten (10) days of the Order comp[ell]ing her
compliance or be held in contempt of court.
DE 47 at 2. There has been no response to this motion.

While Etue is not a

party to this case, Plaintiff=s certificate of service indicates that a copy of his
December 29, 2014 motion (DE 47) was mailed to Etue at 333 South Grand Street,
P.O. Box 30634, Lansing, Michigan 48909.
1

See DE 47 at 3.

According to the

ARule 26(c) and Rule 45(c)(3) give ample discretion to district courts to
quash or modify subpoenas causing Aundue burden.@ The Federal Rules also afford
nonparties special protection against the time and expense of complying with
subpoenas. See Fed.R.Civ.P. 45(c)(3)(A)(ii). In addition, the Rules can prevent
private parties from exploiting government employees as tax-supported pools of
experts. See Fed.R.Civ.P. 45(c)(3)(B)(ii), (iii) (a court may in its discretion
disallow the taking of a non-retained expert's testimony unless the proponent
makes a showing of A substantial need@ that Acannot be otherwise met without
undue hardship@ and payment of reasonable compensation) (emphasis added). The
Rules also recognize and protect privileged information. See Fed.R.Civ.P.
45(c)(3)(A)(iii).@ Exxon, 34 F.3d at 779.
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MSP website, the MSP Headquarters are located at 333 S. Grand Ave., P.O. Box
30634, Lansing, MI 48909-0634.

Therefore, the Court assumes that Etue received

the motion and has no substantive objections to the subpoena underlying it.
2.

Motion for Extension and/or to Stay (DE 52)

The Court=s January 22, 2015 order (DE 51) originally set Plaintiff=s deadline
to respond to Defendants= December 31, 2014 dispositive motion (DE 48) for
March 9, 2015. Plaintiff has twice sought to extend his response deadline.
First, on February 12, 2015, Plaintiff filed a motion (DE 52) for extension of
time to file a motion in opposition to Defendants= motion for summary judgment
(DE 48) and/or to stay to allow time to obtain discovery.2 Among other things,
Plaintiff points to his December 29, 2014 motion (DE 47) to compel compliance
with subpoena served upon MSP Director Col. Kriste Kibbey Etue and cites Fed. R.
Civ. P. 56(d) (AWhen Facts Are Unavailable to the Nonmovant.@).
& 5b, DE 52 at 3 & 7, DE 52 at 5 & 12, DE 52 at 6.

See DE 52 at 2

By this motion, Plaintiff

requests an extension of the response deadline to March 2, 2015 Aor until a time
after the [Defendants] provide the [P]laintiff with the subpoenaed police reports so
DE 52 at 6; see also DE 52 at 2 & 5.

that he can provide a proper response[.]@

The Court has yet to rule on this motion, but notes that it requests a motion response
2

That motion purportedly was signed by Plaintiff on February 1, 2015 (DE 52
at 6) and mailed out either that day or the next (DE 52 at 7); it is not clear which.
4

deadline which is earlier than that previously set by the Court. Perhaps the
Court’s January 22, 2015 order (DE 51) setting the deadline for March 9th crossed
paths with Plaintiff’s extension request (DE 52), seeking an extension to March 2nd.
Second, on March 11, 2015, Plaintiff filed another motion (DE 53) to enlarge
time to respond to the motion for summary judgment (DE 48).

Here, too, Plaintiff

mentions Fed. R. Civ. P. 56 and his effort to obtain police reports. DE 53 at 5-6 &
9. In the end, Plaintiff requested an extension of the response deadline to March
19, 2015. DE 53 at 3, 5, 6.

On March 13, 2015, the Court entered an order (DE

54) granting Plaintiff=s motion to enlarge time to respond (DE 53) to Defendants=
motion for summary judgment (DE 48) and setting the response deadline for March
19, 2015.
Plaintiff=s March 16, 2015 dispositive motion response was filed with the
Court on March 20, 2015 (DE 55). Therein, Plaintiff again mentions his efforts to
obtain police reports. See DE 55 at 15 & 2.

According to Plaintiff, Athe state

police have yet to comply with [his] request.@ DE 55 at 15 & 2.3
C.

Order
Upon consideration, Plaintiff=s December 29, 2014 motion to compel

compliance with subpoena served on Kriste Kibbey Etue (DE 47) is GRANTED.
3

On March 27, 2015, Defendants filed a reply. DE 57.
5

Etue SHALL comply with the subpoena no later than April 15, 2015.

In addition,

the Clerk of the Court is DIRECTED to serve a copy of this order upon Etue at
MSP Headquarters (333 S. Grand Ave., P.O. Box 30634, Lansing, MI 48909-0634).
In the meantime, the Court will STAY consideration of Defendants= pending
dispositive motion (DE 48) until further order of this Court. Also, Plaintiff=s
February 12, 2015 motion (DE 52) is DEEMED MOOT to the extent it sought an
extension of the response deadline; however, the motion (DE 52) is GRANTED to
the extent it sought a stay to allow time to obtain discovery.

No later than April

22, 2015, Plaintiff SHALL inform the Court, in writing, whether he has received the
documents sought from the MSP and, if so, whether he seeks a period of time
within which to supplement his March 20, 2015 response (DE 55).
Finally, Defendants= September 16, 2014 motion to compel (DE 20) and
Plaintiff=s October 31, 2014 motion for protective order (DE 38) will be addressed
under separate cover.
IT IS SO ORDERED.

Dated: April 1, 2015

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

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