Smith v. Social Security, Commissioner of

Filing 13

OPINION AND ORDER denying 9 Motion for Summary Judgment; granting 11 Motion for Summary Judgment; adopting in part 12 Report and Recommendation on 11 Motion for Summary Judgment, 9 Motion for Summary Judgment, 12 Report and Recommendation. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JEFFREY C. SMITH,
Plaintiff,
v.

Civil Action No. 14-CV-10833
Honorable Patrick J. Duggan

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_________________________/
ORDER ADOPTING IN PART AND REJECTING IN PART THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, and
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
On February 21, 2014, Plaintiff filed this lawsuit challenging the final
decision of the Commissioner denying Plaintiff’s application for disability
insurance benefits. The parties filed cross-motions for summary judgment, which
were referred to Magistrate Judge Michael Hluchaniuk.
On February 23, 2015, Magistrate Judge Hluchaniuk issued a Report and
Recommendation (R&R) recommending that the Court (1) deny Plaintiff’s motion
for summary judgment, (2) grant Defendant’s motion for summary judgment, (3)
impose monetary sanctions against Plaintiff’s attorney pursuant to the Court’s
inherent sanctioning authority, and (4) refer Plaintiff’s counsel for disciplinary

proceedings. At the conclusion of the R&R, Magistrate Judge Hluchaniuk advised
the parties that they may object and seek review of the R&R within fourteen days.
R&R at 22 (ECF No. 12). He further advises the parties that “[f]ailure to file
specific objections constitutes a waiver of any further right of appeal.” Id. Neither
party has filed objections to the R&R, and the time to do so has expired.
The Court has carefully reviewed the R&R and agrees with the Magistrate
Judge that Plaintiff’s motion for summary judgment should be denied and
Defendant’s motion for summary judgment should be granted.

The Court

therefore adopts that aspect of the R&R.
However, the Court does not agree with the Magistrate Judge’s
recommendation to impose sanctions against Plaintiff’s counsel or to refer him for
disciplinary proceedings at this time. As the Magistrate Judge points out, another
judge in this district has noted that Plaintiff’s counsel, Richard J. Doud, routinely
files “one-size-fits-all briefs” in social security cases, and that briefs containing
“conclusory assertions” and “[un]developed argument [have] become the calling
card of Plaintiff’s counsel.” Fielder v. Comm’r of Soc. Sec., No. 13-CV-10325,
2014 WL 1207865, at *1 n.1 (E.D. Mich. Mar. 24, 2014). The Fielder court
warned Mr. Doud that further deficient filings may result in sanctions:
In light of this lamentable record of filing one-size-fits-all briefs and
inviting the Judges of this District to formulate arguments and search
the record on his clients’ behalf, Plaintiff’s counsel is strongly
cautioned that this Court will carefully examine his submissions in
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future suits to ensure that they advance properly supported arguments
that rest upon (and cite to) the facts of a particular case. Failure to
adhere to these standards will result in the imposition of sanctions and
possible referral of counsel for disciplinary proceedings.
Id.
In his R&R, Magistrate Judge Hluchaniuk notes that Plaintiff’s summary
judgment brief in the present case was filed after Fielder’s admonishment, “giving
[Mr. Doud] more than adequate notice that he would be subject to sanctions if he
continued to file such egregiously poor work product.” R&R at 20. In the view of
the Magistrate Judge, Plaintiff’s summary judgment brief in the present case
contains “woefully underdeveloped arguments,” and Mr. Doud’s continued failure
to file adequate briefs even after Fielder’s warning amounts to “‘conduct [that] is
egregious and a wanton abuse of the judicial process tantamount to bad faith,
resulting in the gross misrepresentation of his client.’”
Swadling

v.

Comm’r

of

Soc.

Sec.,

No.

R&R at 21 (quoting

14-CV-10251

(Report

and

Recommendation) (E.D. Mich. Dec. 30, 2014), and Armstrong v. Comm’r of Soc.
Sec., No. 13-CV-14218 (Report and Recommendation) (E.D. Mich. Nov. 20,
2014)).1
The Court has thoroughly reviewed the brief filed by Mr. Doud in the
present case. While the quality of the brief is certainly poor, and below that which
1

In both Swadling and Armstrong, Magistrate Judge Mona K. Majzoub
recommends monetary sanctions against Mr. Doud for his filing of inadequate
briefs. To date, both R&Rs remain pending, with no objections filed.
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is acceptable or appropriate in this Court, the Court does not believe that sanctions
pursuant to the Court’s inherent authority are appropriate in this case. First, the
brief here is not as deficient as the brief filed by Mr. Doud in Fielder.

In

particular, the brief in the present case contains slightly more discussion of casespecific facts and circumstances than does the brief in Fielder. Second, although
the Court’s inherent sanctioning authority “extends to a full range of litigation
abuses,” Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S. Ct. 2123, 2134 (1991),
this Court typically reserves its inherent sanctioning power for situations in which
an attorney “intentionally abuses the judicial process or knowingly disregards the
risk that his actions will needlessly multiply proceedings.” Red Carpet Studios
Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006). The
potentially sanctionable conduct here – poor advocacy – does not fall neatly in the
category of conduct for which sanctions are appropriate under the Court’s inherent
authority.
For these reasons, the Court rejects the Magistrate Judge’s recommendation
to impose sanctions on Plaintiff’s counsel, but otherwise adopts the R&R. While
the Court disagrees with the Magistrate Judge’s recommendation to impose
sanctions, the Court nonetheless strongly admonishes Plaintiff’s counsel to ensure
that the briefs he files with this Court in the future do not contain boilerplate
recitations of statutes, regulations, and cases, but rather an appropriate discussion
4

of pertinent legal authority and the application of that authority to the facts of the
case at hand.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for summary judgment is
DENIED;
IT IS FURTHER ORDERED that Defendant’s motion for summary
judgment is GRANTED.

Dated:

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Richard J. Doud, Esq.
John C. Benson, Esq.
Karla J. Gwinn, Esq.
Theresa M. Urbanic, Esq.

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