Palmer v. Allen et al

Filing 168

OPINION and ORDER Denying Plaintiff's 121 MOTION to Amend, Alter, or Reconsider the Court's Order and Denying Defendant's 148 MOTION for Order to Show Cause why Plaintiff and Plaintiff's Counsel Should not be Held in Contempt and for Sanctions. Signed by District Judge Gershwin A. Drain. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EMMANUEL PALMER,
Case No. 14-cv-12247

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
RYAN ALLEN, et al.,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Defendants.
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OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO AMEND, ALTER, OR
RECONSIDER THE COURT’S ORDER [121] AND DENYING DEFENDANT’S MOTION
FOR ORDER TO SHOW CAUSE WHY PLAINTIFF AND PLAINTIFF’S COUNSEL
SHOULD NOT BE HELD IN CONTEMPT AND FOR SANCTIONS [148]
On June 6, 2014, Plaintiff filed this lawsuit against Defendants. Dkt. No. 1.
On February 14, 2017, a jury rendered a verdict for Defendants on all remaining
counts. Dkt. No. 162. Plaintiff appealed. Dkt. No. 165. On May 25, 2017, the
Court of Appeals for the Sixth Circuit dismissed Plaintiff’s appeal. Dkt. No. 167.
The parties have asked the Court to hold an additional, post-trial hearing on
their motions for sanctions against each other, which the Court was unable to
resolve prior to trial. See Dkt. Nos. 121, 148. Upon review of the pleadings, the
Court finds that oral argument will not aid in the disposition of this matter.
Accordingly, the Court will decide these matters on the pleadings. See E.D. Mich.
LR 7.1(f)(2). For the reasons stated herein, both motions are denied.
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A. Plaintiff’s Motion to Amend, Alter, or Reconsider the Court’s
September 28, 2016 Order
Plaintiff brought this motion for sanction under Federal Rules of Civil
Procedure 59(e) and 60(b), arguing that the Court should reconsider its prior order
denying Plaintiff sanctions. See Dkt. Nos. 112, 116, 121. Plaintiff’s attorney filed a
supplemental brief on this motion on December 7, 2016, without seeking leave of
court. Dkt. No. 140. The Court will not consider Plaintiff’s supplemental brief
because Plaintiff did not seek or receive permission to file a supplemental brief,
and because this filing was untimely. See Jones v. Northcoast Behavioral
Healthcare Sys., 84 F. App’x 597, 599 (6th Cir. 2003) (finding a district court did
not abuse its discretion in striking a supplemental pleading where it was untimely
and filed without leave of court).
Plaintiff’s motion raises new arguments and cases that he did not present to
the Court in his prior motion for sanctions. See id. Although Plaintiff argues his
motion for reconsideration arises under Federal Rule of Civil Procedure 59(e), “[a]
plaintiff cannot use a Rule 59 motion . . . ‘to raise arguments which could, and
should, have been made before judgment issued.’ ” Leisure Caviar, LLC v. U.S.
Fish & Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010) (quoting Sault Ste. Marie
Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
Plaintiff’s argument under Rule 59(e) relies entirely on cases that could have been

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presented in his earlier motion for sanctions. Accordingly, the Court will not grant
Plaintiff relief under Rule 59(e).
Similarly, Plaintiff has failed to demonstrate the fraud, misrepresentation, or
misconduct by Defendant that he argued qualifies the motion under Federal Rule
of Civil Procedure 60(b). Dkt. No. 121, p. 24 (Pg. ID 3411). Plaintiff argues that
the Court relied on Defendants’ counsel’s representations at the hearing that video
footage from the jail exists and disproves Plaintiff’s allegations. Dkt. No. 121, p.
25 (Pg. ID 3412). There is no question that the Court did not rely on Defendants’
counsel’s statement that the video disproved Plaintiff’s allegations, as the order
explicitly states, “the video may serve to prove or disprove” Plaintiff’s allegations.
Dkt. No. 116, p. 6 (Pg. ID 3378). Although Plaintiff’s expert failed to find the
portions of the video depicting Plaintiff at the time Plaintiff’s motion was filed, he
later was able to find that portion of the video, which both parties utilized at trial.
Plaintiff has not demonstrated fraud by the City of Ecorse or any other reason for
reconsidering the Court’s prior order on this issue.
Further, after considering the exhibits attached to Plaintiff’s motion and the
testimony of witnesses at trial, the Court concludes that there is no evidence to
substantiate Plaintiff’s claim that video footage was missing from the hard drive or
that the City of Ecorse otherwise intentionally destroyed evidence. Plaintiff’s
motion [121] is DENIED.
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B. Defendants’ Motion For Order To Show Cause Why Plaintiff And
Plaintiff’s Counsel Should Not Be Held In Contempt And For
Sanctions
Defendants seek sanctions against Plaintiff and his counsel for violating a
protective order by posting portions of the jail video, which depicted Plaintiff
being tased by Defendant Trevino, on the internet and for Plaintiff’s counsel’s
repeated failure to comply with the Court’s Local Rules and Court-ordered
deadlines. Dkt. No. 148. Several of the remedies requested by Defendants—
namely, dismissal under Federal Rules of Civil Procedure 37(b)(2)(B) and 41(b)—
are no longer applicable. Thus, the Court will examine whether monetary sanctions
are appropriate.
The day after Defendants notified the Court that Plaintiff and his counsel
violated the protective order, the Court held a conference. Plaintiff’s counsel
verified that the videos had been removed from public view. Defendants have not
provided the Court with evidence demonstrating that Plaintiff’s and counsel’s
violations of the protective order were intentional or in bad faith, rather than an
inadvertent failure to remember the precise terms of the protective order.
Additionally, Plaintiff and counsel quickly removed the videos upon being
reminded of the protect order, evincing that this violation was not based on an
intent to thwart judicial proceedings or in reckless disregard for the effect of their
conduct. Finally, Defendants have not provided any evidence that Plaintiff and
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counsel’s dissemination of the jail video prejudiced their case—no one in the jury
pool was previously aware of the video and the jury ultimately rendered a verdict
in their favor. In sum, considering the totality of the circumstances, the Court does
not believe Rule 37 sanctions are appropriate.
Defendants also request costs, expenses, and attorney fees under 28 U.S.C.
§ 1927. Section “1927 sanctions require a showing of something less than
subjective bad faith, but something more than negligence or incompetence.” Red
Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir.
2006). Defendants correctly note that that Plaintiff’s counsel has failed to comply
with Local Rules, Court orders, and case deadlines on multiple occasions.
However, Defendants have not shown that Plaintiff’s counsel’s actions exceeded
mere negligence or incompetence. Additionally, the Court notes that four years
elapsed between when Plaintiff first requested the jail videos and when Defendants
finally produced them. Given that Defendants’ failure to expeditiously produce the
videos caused some of the multiplication of proceedings, the Court will not
exercise its discretion to impose sanctions against Plaintiff’s counsel. Thus, the
Court DENIES Defendants’ motion [148].
The Court also reminds both side’s counsel that the Eastern District of
Michigan’s Civility Principles dictate that counsel shall not attribute bad motives
or improper conduct to other counsel, absent good cause. In the present case,
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numerous allegations of misconduct have been casually advanced. The Court
encourages both counsel to review the Civility Principles, so that future disputes
may be resolved more rationally, peacefully, and efficiently.
IT IS SO ORDERED.

Dated:

June 9, 2017

s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 9, 2017, by electronic and/or ordinary mail.
/s/ Shawna C. Burns
Case Manager Generalist

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