Davis v. Professional Representatives Organization et al

Filing 60

ORDER Overruling 27 Objection to Magistrate Judge's Order, Denying as Moot 34 MOTION to Produce ANSWERS TO INTERROGATORIES, Denying 35 Amended MOTION to Produce Corrected Motion with Exhibits Attached, Denying 41 MOTION to Stri ke Affidavit of Sherrill, Granting 48 MOTION to Strike Plaintiff's Interrogatories and Request for Admissions and to Quash Plaintiff's Subpoena to President Al Garrett, denying 58 MOTION to Compel Answers to Interrogatories, Requests for Admissions, Produce Documents, and for Sanctions Against Defendant AFSCME and Denying 59 MOTION to Strike AFSCME Motion and Answer. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT DAVIS,
Case No. 15-10767
Plaintiff,
v.

SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

PROFESSIONAL REPRESENTATIVES
ORGANIZATION, ET. AT.,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendant.
/
ORDER:
(1) OVERRULING PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S ORDER
[27];
(2) DENYING PLAINTIFF’S MOTION TO PRODUCE ANSWERS TO
INTERROGATORIES AND BRIEF AS MOOT [34];
(3) DENYING PLAINTIFF’S AMENDED MOTION TO PRODUCE CORRECTED
MOTION WITH EXHIBITS ATTACHED [35];
(4) DENYING PLAINTIFF’S MOTION TO STRIKE AFFIDAVIT OF SHERRILL [41];
(5) GRANTING DEFENDENT’S MOTION TO STRIKE PLAINTIFF’S
INTERROGATORIES AND REQUEST FOR ADMISSIONS AND TO QUASH
PLAINTIFF’S SUBPOENA TO PRESIDENT AL GARRETT [48];
(6) DENYING PLAINTIFF’S MOTION TO COMPEL ANSWERS TO
INTERROGATORIES, REQUESTS FOR ADMISSIONS, PRODUCE DOCUMENTS,
AND FOR SANCTIONS AGAINST DEFENDANT AFSCME [58]
(7) DENYING PLAINTIFF’S MOTION TO STRIKE AFSCME MOTION AND
ANSWER [59]

1

Plaintiff filed objections [27] to the Magistrate Judge’s Order [24] granting
in part and denying in part Plaintiff’s Emergency Motion to Compel on May 11,
2015. On August 17, 2015 Plaintiff filed a Motion to Produce Answers to
Interrogatories and Brief [34] and a Corrected Motion to Produce Answers to
Interrogatories and Brief [35]. Defendants responded on August 20, 2015 [36]. On
November 5, 2015, Plaintiff filed a Motion to Strike Affidavit of Sherrill [41],
which Defendants responded to on November 10, 2015 [42; 43]. Plaintiff replied
on January 8, 2016 [51]. On January 6, 2016 Defendant AFSCME filed a Motion
to Strike Plaintiff’s Interrogatories and Requests for Admissions and to Quash
Plaintiff’s Subpoena [48]. Plaintiff filed a response on January 12, 2016 [52] and
Defendant AFSCME replied on January 18, 2016 [55]. Plaintiff filed a Motion to
Compel Answers to Interrogatories, Requests and Subpoenaed Documents on
January 21, 2016 [58] and also filed a Motion to Strike AFSCME Motion and
Answer on January 22, 2016 [59].
For the reasons stated below, Plaintiff’s objections [27] are OVERRULED.
Additionally, the following Motions are DENIED: Plaintiff’s Motion to Produce
[34]; Plaintiff’s Amended Motion to Produce [35]; Plaintiff’s Motion to Strike
Affidavit of Sherrill [41]; Plaintiff’s Motion to Compel Answers to Interrogatories,

2

Requests and Subpoenaed Documents [58]; and Plaintiff’s Motion to Strike
AFSCME Motion and Answer [59].
Defendant’s Motion to Strike Plaintiff’s Interrogatories and Requests for
Admissions and to Quash Plaintiff’s Subpoena [48] is GRANTED.
1. PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S ORDER [27]
a. STATEMENT OF FACTS
Following a hearing concerning Plaintiff’s Emergency Motion to Compel,
the Magistrate Judge granted the request only to the extent that Plaintiff would be
able to take the deposition of Kathie Sherrill, and denied Plaintiff’s request to
depose other members of Defendant Pro Union. On the record, the Magistrate
Judge indicated that the issues contained in Defendant Michigan AFSCME
Council 25 (AFL-CIO)’s Motion for Summary Judgment pursuant to F.R.C.P.
12(b)(6) and 56 [16] were largely questions of law, and there was no need for
further discovery until this Motion to Dismiss had been ruled on.
b. STANDARD OF REVIEW
If a litigant expresses an objection to a magistrate judge’s ruling on a
nondispositive pretrial matter, the district court may “modify or set aside any part
of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a).
The “clearly erroneous” standard does not permit a district court to reverse the
3

magistrate judge's finding simply because the district court would have decided the
issue differently. Anderson v. City of Bessemer, N.C., 470 U.S. 564, 573 (1985).
Rather, a “finding is ‘clearly erroneous’ when, although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948).
c. ANALYSIS
Plaintiff contends that the Magistrate Judge’s order is “clearly erroneous”
and “contrary to law” because Defendant AFSCME’s pending Motion to dismiss is
correctly characterized as a Motion for Summary Judgment under Rule 56 because
exhibits are attached that were not referred to in or a part of Plaintiff’s verified
complaint. Plaintiff thus contends that he has a right to discovery before a Motion
for Summary Judgment is decided, and therefore the order was clearly erroneous
and contrary to law.
The Court agrees with the Magistrate Judge’s Order. The exhibits that
Plaintiff complains about being attached to the Motion to Dismiss or alternatively
Motion for Summary Judgment are a copy of Defendant AFSCME’s work rules
and copies of various media articles pertaining to Plaintiff’s guilty plea. The Court
agrees with Plaintiff that, when considering a Rule 12(b)(6) Motion the Court:
4

may consider the Complaint and any exhibits attached thereto, public
records, items appearing in the record of the case and exhibits
attached to defendant's motion to dismiss so long as they are referred
to in the Complaint and are central to the claims contained therein.
Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
However, this does not exhaust the sources that the Court may consider. When
deciding a Rule 12(b)(6) Motion, the Court may also take judicial notice of public
records or other materials amenable to judicial notice when deciding a Rule
12(b)(6) motion. New England Health Care Employees Pension Fund v. Ernst &
Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003).
In this case, the media articles are publically available and therefore do not
convert the Motion to Dismiss into a Motion for Summary Judgment. Moreover, in
the second count of his complaint, Plaintiff’s alleges that Defendant AFSCME
unlawfully terminated him in violation of the collective bargaining agreement. To
support this allegation, Plaintiff contends that Defendant AFSCME did not have
“just cause” to terminate him. As Defendant AFSCME states in its Motion to
Dismiss, as the Employer, pursuant to the Agreement between Defendant
AFSCME and Defendant PRO, AFSCME, it had the ability to discharge
employees for good cause, and had the authority to manage its offices and
workforce, except where those rights were abridged by the agreement. Thus, when
Plaintiff claims that he was not fired for “good cause,” and refers to the agreement
5

between AFSCME and PRO to support that assertion, the rules that the employer
was empowered to create and did create concerning discharge of employees are
central to the claim, and are indirectly referenced in the complaint. Therefore, the
Court can also take notice of the work rules when deciding the Motion to Dismiss.
In conclusion, the Court overrules the objection [27] and affirms the Magistrate
Judge’s Order [24].
2. MOTION

TO

PRODUCE ANSWERS

TO INTERROGATORIES AND

BRIEF [34];

[35]
On August 17, 2015, Plaintiff filed a Motion to Produce Answers to
Interrogatories [34] and a Motion to Produce Corrected Motion with Exhibits
attached [35]. Defendants responded on August 20, 2015 [36]. As Plaintiff filed a
corrected Motion to Produce with the exhibits attached [35], the Motion to Produce
Answers [34] is DENIED as moot. For the reasons stated below, the Motion to
Produce Answers to Interrogatories [35] is also DENIED.
Per the Order [24] of the Magistrate Judge, the only discovery that Plaintiff
is allowed prior to the determination of the Motion to Dismiss or alternatively
Motion for Summary Judgment [16] was the deposition of Kathie Sherrill, and the
deposition of other members of PRO union was denied. The Court agrees with the
Defendant that the interrogatories submitted request detailed responses similar to
6

the type of information received from an oral deposition. Because the Magistrate
Judge’s Order in effect placed a hold on all discovery other than the deposition of
Kathie Sherrill, therefore, this Motion [35] is DENIED.
3. MOTION TO STRIKE AFFIDAVIT OF SHERRILL [41]
On November 5, 2015 Plaintiff filed a Motion to Strike the Affidavit of Ms.
Sherrill [41]. Defendant responded on November 10, 2015 [43] and Plaintiff
replied on January 8, 2016 [51]. For the reasons stated below, this Motion is
DENIED.
Plaintiff requests the affidavit of Sherrill be struck because he alleges that
Ms. Sherrill does not have personal knowledge of the statements made in any
meetings that were held in reference to Plaintiff’s termination, and any declarations
made by her in the affidavit concerning these meetings are hearsay. The Court
agrees with the Defendant that Ms. Sherrill did not discuss the meetings that
Plaintiff asserts she did not attend. The deposition of Ms. Sherrill that Plaintiff has
provided [49] does not establish that any of the information provided by Ms.
Sherrill in her affidavit was heresay. Plaintiff has not provided any evidence to
establish that Ms. Sherrill’s affidavit is not based upon her personal knowledge,
and therefore the Motion to Strike [41] is denied.

7

4. MOTION

TO

ADMISSIONS

STRIKE PLAINTIFF’S INTERROGATORIES
AND TO

AND

QUASH PLAINTIFF’S SUBPOENA

TO

REQUESTS

FOR

PRESIDENT AL

GARRETT [48]
On January 6, 2016, Defendant AFSCME filed a Motion to Strike Plaintiff’s
Interrogatories and Requests for Admissions and to Quash Plaintiff’s Subpoena to
President Al Garrett [48]. Plaintiff filed a response [52] on January 12, 2016 and
Defendants filed a reply [55] on January 18, 2016. For the foregoing reasons, the
Motion is GRANTED.
Federal Rule of Civil Procedure 26(d)(1) states that:
A party may not seek discovery from any source before the parties
have conferred as required by Rule 26(f), except in a proceeding
exempted from initial disclosure under Rule 26(a)(1)(B), or when
authorized by these rules, by stipulation, or by court order.

Plaintiff issued his interrogatories and requests for admissions, and the subpoena
was received by Defendant, on December 15, 2015. Plaintiff made these discovery
requests prior to a Rule 26(f) conference, prior to the creation of a discovery plan,
and prior to the Court issuing a scheduling order. Additionally, Defendant’s
Motion to Dismiss is still pending, and discovery is not warranted when there are
dispositive legal issues pending that will not be altered by any further discovery.
Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300, 304 (6th
8

Cir. 2003). Therefore, Plaintiff’s interrogatories, requests for admissions, and
subpoena are premature and Defendant’s Motion is granted.
5. MOTION

TO

COMPEL ANSWERS

TO

INTERROGATORIES, REQUESTS

ADMISSIONS, PRODUCE DOCUMENTS,

AND FOR

FOR

SANCTIONS AGAINST

DEFENDANT MICHIGAN AFSCME COUNCIL 25 [58]
On January 21, 2016, Plaintiff filed a Motion to Compel Answers to
Interrogatories, Requests and Subpoenaed Documents [58]. For the reasons
stated above in Section 4 of this Order, the Court has granted Defendant’s
request to strike Plaintiff’s Interrogatories and Requests for Admissions and
quash Plaintiff’s Subpoena [55]. Therefore, Plaintiff’s Motion is DENIED as
moot.
6. MOTION TO STRIKE AFSCME MOTION AND ANSWER [59]
On January 22, 2016, Plaintiff filed a Motion to Strike AFSCME’s Motion and
Answer to the Amended Complaint [59]. For the reasons stated below, this Motion
is DENIED.
Plaintiff states that Defendant’s Motion and answer was filed as an effort to
“resurrect its now moot Motion to Dismiss and Summary Judgment,” and then
subsequently argues that Defendant needed to obtain leave from the Court in order
to file their second Motion for Summary Judgment under Local Rule 7.1(b)(2).
9

These statements are contradictory in and of themselves, and the Court rejects
Plaintiff’s contention that Defendant had to seek leave to file their dispositive
motion. When Plaintiff filed the amended complaint, Defendant correctly
responded by filing a new dispositive motion. There is no reason for the Court to
strike this Motion.
Defendant further argues that the Motion should be stricken pursuant to Fed. R.
Civ. P. 12(f) for pleading an insufficient defense. This argument also has no merit.
On January 13, 2016, Defendant filed a dispositive motion [54] in response to
Plaintiff’s amended complaint. This motion plainly states that it relies upon, adopts
and resubmits its Motion for Summary Judgment filed with the Court on March 23,
2015 [9]. There is no need to refile all of the documents with the Court in order to
meet the standard for responses to pleadings as set by Fed. R. Civ. P. 8(b).
Finally, Plaintiff argues that the Motion should be struck for violating Fed. R.
Civ. P. 12(b) given that it includes a Motion for Summary Judgment and a Motion
to Dismiss. Motions for Summary Judgment or in the alternative Motion to
Dismiss are not uncommon to be found before the Court. In this case, the Motion
for Summary Judgment or in the alternative Motion to Dismiss was filed in March
2015 and was addressed in a hearing before the Magistrate Judge. The Magistrate
considered that the main issues to be decided were issues of law, not fact, and
10

therefore did not allow discovery to go forth before the Motion to Dismiss was
decided. This Court, in this Order, reaffirmed this Order and overruled any
objections that Plaintiff had concerning the labeling of this Motion as a valid
Motion to Dismiss in the alternative (See Section 1 above).
Accordingly, Plaintiff’s Motion to Strike AFSCME Motion and Answer is
DENIED.
In conclusion,
IT IS ORDERED that Plaintiff’s objection to magistrate judge’s order [27] is
OVERRULED;
IT IS FURTHER ORDERED THAT Plaintiff’s Motion to Produce Answers
to interrogatories and brief [34] is DENIED as moot;
IT IS FURTHER ORDERED THAT Plaintiff’s Amended Motion to Produce
[35] is DENIED;
IT IS FURTHER ORDERED THAT Plaintiff’s motion to Strike affidavit of
Sherrill [41] is DENIED;
IT IS FURTHER ORDERED THAT Defendant’s Motion to strike plaintiff’s
interrogatories and request for admissions and to quash plaintiff’s subpoena to [48]
is GRANTED;

11

IT IS FURTHER ORDERED THAT Plaintiff’s Motion to Compel answers to
interrogatories, requests for admissions, produce documents, and for sanctions
against defendant AFSCME [58] is DENIED.
IT IS FURTHER ORDERED THAT Plaintiff’s Motion to Strike AFSCME’s
Motion and Answer [59] is DENIED.

Dated: January 26, 2016

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

12