Smith v. The Food Bank of Eastern Michigan

Filing 19

ORDER DENYING Plaintiff's 15 Request filed by Tracey Smith, 16 Request filed by Tracey Smith, AND DENYING 8 MOTION to Reverse the Granted Decision re: 7 Order on Petition/Request/Application filed by Tracey Smith.--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRACEY SMITH,

Plaintiff,

CASE NO. 2:14-CV-13795
JUDGE DAVID M. LAWSON
MAGISTRATE JUDGE ANTHONY P. PATTI

v.
THE FOOD BANK OF
EASTERN MICHIGAN,
Defendant,
/
ORDER DENYING PLAINTIFF’S OCTOBER 22, 2014 and NOVEMBER
25, 2014 REQUESTS (DE 8, DE 15 & DE 16)
A.

Background
Tracey Smith filed the instant lawsuit on October 2, 2014 alleging that she

was wrongfully terminated from her employment on January 3, 2014 on the basis
of racial discrimination and demanding, among other things, lost wages and
compensatory damages for “embarrassment, mental anguish and loss of
enjoyment.” DE 1. He complaint also specifically alleges that she “was not an at
will employee,” and was denied a disciplinary warning before termination,
inferring that she may have also suffered a breach of contract. Along with her
complaint, Plaintiff filed an application to proceed in district court without
prepaying fees or costs. DE 2.

Two weeks later, on October 16, 2014, Plaintiff filed a request for service by
the U.S. Marshal. DE 6. This request notes that, “[i]f the Judge grants service, you
may have to pay the U.S. Marshal for the cost.” Magistrate Judge Majzoub granted
this request on October 21, 2014. DE 7.
B.

Cost of Service
Currently before the Court is Plaintiff’s October 22, 2014 request (DE 8) to

reverse the Court’s October 21, 2014 ruling (DE 7). Therein, plaintiff contends
she is unable “to afford to pay $500.00 for service[,]” and states she “was not
aware prior to [her] being granted this service that [she] would have such [a] large
fee.” Plaintiff explains she does not “have a job where [she] could pay such
amount[,]” and she apologizes for any inconvenience to the Court.
However, it appears that Plaintiff, herself, executed the service upon
Defendant on October 29, 2014. DE 10 at 1-3. Subsequently, on November 19,
2014, counsel filed an appearance on behalf of Defendant. DE 11. At the same
time, defendant filed a combined answer to the complaint, affirmative defenses and
jury demand. DE 12; see also DE 13 (Statement of Disclosure of Corporate
Affiliations and Financial Interest).
The U.S. Marshals Service has informed the Court that it never received the
summons and complaint to serve in this case. Therefore, Plaintiff’s October 22,
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2014 request (DE 8) to reverse the Court’s October 21, 2014 ruling (DE 7) will be
denied as moot.
C.

Transfer
Plaintiff’s address of record is in Mount Morris, Michigan. DE 1 at 6.

Defendant’s address is in Flint, Michigan. DE 10 at 2. Mt. Morris and Flint are
both located in Genesee County, Michigan.1
By way of background, the United States Court for the Eastern District of
Michigan has locations in Detroit, Ann Arbor, Bay City, Flint and Port Huron. The
local rules of this Court set forth a random method for case assignment:
In Ann Arbor, Detroit, Flint and Port Huron, the Clerk shall employ a
random method for the assignment of civil cases (excluding social
security cases and special civil cases) to Judges. Special civil cases are
defined as those cases arising under 28 U.S.C. §§ 2241 and 2254 and
42 U.S.C. §§ 1983 and 1985 in which the plaintiff is an inmate or
resident of any facility of the Michigan Department of Corrections,
the United States Bureau of Prisons, or of any county or local jail.
E.D. Mich. LR 83.11(a)(1).2
When this case was filed on October 2, 2014, it was assigned to Judge David
M. Lawson, who sits in Detroit, and Magistrate Judge Mona K. Majzoub, who also

1

See http://www.gc4me.com/departments/gis/maps_and_services.php

2

See also E.D. Mich. LR 83.10(a) (“Counties and Places of Holding Court.”),
Subsection (1) (Detroit, Ann Arbor, Flint and Port Huron are the places of holding
court for civil cases “arising in or related to” Genesee County.).
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sits in Detroit. On November 20, 2014, Magistrate Judge Majzoub noticed a
scheduling conference for December 3, 2014 at 10 a.m. DE 14.
On November 25, 2015, Plaintiff filed a request that her case be transferred
to Flint and that the conference noticed for December 3, 2014 be changed to Flint
and set for a later time. DE 15. Six (6) days later, on December 1, 2014, this
Court cancelled the scheduling conference set for December 3, 2014. Instead, on
December 4, 2014, Magistrate Judge Majzoub entered a scheduling order (DE 17),
which set the Discovery Cut Off (date by which discovery, responses must be
served) for November 2, 2015, the Discovery Motion Cutoff for November 20,
2015 and the Dispositive Motion Deadline for December 11, 2015 3
Upon consideration, Plaintiff’s November 25, 2014 request regarding
transfer (DE 15) is denied. It is moot to the extent it seeks a transfer of the
scheduling conference to Flint. Furthermore, to the extent it seeks transfer of this
case to Flint, this case has been assigned in accordance with the local rules of this
Court.
D.

Jury trial

3

Although this lawsuit was originally referred to Magistrate Judge Majzoub for
pretrial matters (DE 3, DE 9), it was reassigned to me on January 13, 2015 (DE 18).
4

Plaintiff’s October 2, 2014 complaint does not demand a jury trial. See DE
1 at 6. However, as mentioned above, Defendant’s November 19, 2014 answer
contains a jury demand. See DE 12 at 9.
On November 25, 2014, Plaintiff filed a request that “there not be a jury
trial[.]” DE 16. Upon consideration, Plaintiff’s request is denied. Fed. R. Civ. P.
38 provides:
On any issue triable of right by a jury, a party may demand a jury trial
by:
(1)

(2)

serving the other parties with a written demand–which may be
included in a pleading–no later than 14 days after the last
pleading directed to the issue is served; and
filing the demand in accordance with Rule 5(d).

Fed. R. Civ. P. 38(b) (“Demand.”). Also, Fed. R. Civ. P. 39 provides:
When a jury trial has been demanded under Rule 38, the action must
be designated on the docket as a jury action. The trial on all issues so
demanded must be by jury unless:
(1)
(2)

the parties or their attorneys file a stipulation to a nonjury trial
or so stipulate on the record; or
the court, on motion or on its own, finds that on some or all of
those issues there is no federal right to a jury trial.

Fed. R. Civ. P. 39(a) (“When a Demand Is Made.”).
Most importantly, the Seventh Amendment of the United States Constitution
states that:

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In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.
U.S. Const. amend. VII.
Plaintiff in this case makes claims for employment discrimination and
possibly breach of contract, requests back wages and alleges the right to
compensatory damages for emotional distress. The Seventh Amendment
guarantees litigants the right to a jury trial in such circumstances. See, e.g.,
Thomas v. Denny’s, Inc., 111 F.3d 1506, 1513 (10th Cir. 1997) (“Because ‘the
jury's findings on factual issues common to claims under § 1981 and Title VII are
binding on the district court,’ and because we have held that the section 1981
claims here must be retried to the jury, we must vacate the district court's ruling on
the parallel Title VII claims as well to preserve the parties' Seventh Amendment
rights.”) (internal citation omitted) (quoting Skinner v. Total Petroleum, Inc., 859
F.2d 1439, 1445 n.6 (10th Cir. 1988)); Rogers v. Exxon Research & Engineering
Co., 550 F.2d 834, 838 (3d Cir. 1977) (“suit for damages consisting of back wages
arising out of the breach of an employment agreement is a routine contract action
where the parties would be entitled to a jury under the Seventh Amendment.”)
(overruled on other grounds, Smith v. Joseph Schlitz Brewing Co., 584 F.2d 1231
(3d Cir. 1978)).
6

Plaintiff’s assertions that a jury trial is unnecessary and would be an extra
cost to this Court, as well as Plaintiff’s presumption that asking for a jury trial here
“is simply showing that there is something to hide[,]” DE 16, do not somehow
nullify Defendant’s November 19, 2014 demand for a jury trial (DE 12 at 9).
E.

Order
Upon consideration, Plaintiff’s October 22, 2014 request (DE 8) is DENIED

AS MOOT; Plaintiff’s November 25, 2014 request regarding transfer (DE 15) is
DENIED; and Plaintiff’s November 25, 2014 request regarding jury trial (DE 16)
is DENIED.
IT IS SO ORDERED.

Dated: February 11. 2015

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

I hereby certified that a copy of the foregoing document was sent to parties of
record on February 11, 2015, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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