Powell v. Internal Revenue Service

Filing 65

OPINION AND ORDER denying 61 Motion to resubmit Plaintiff's Opposition to Defendant's Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM E. POWELL,
Plaintiff,
v.

Case No. 15-11033
Paul D. Borman
United States District Judge

INTERNAL REVENUE SERVICE,
Defendant.
____________________________/

Anthony P. Patti
United States Magistrate Judge

OPINION AND ORDER
DENYING PLAINTIFF’S “MOTION TO RESUBMIT PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT” (ECF NO. 61)
The present action arises from pro se Plaintiff William E. Powell’s claims that Defendant
Internal Revenue Service (“IRS”) violated the Freedom of Information Act (“FOIA”), 5 U.S.C. §
552. Now before the Court is Plaintiff’s May 31, 2016 “Motion to Resubmit Plaintiff’s
Opposition to Defendant’s Motion for Summary Judgment” which the Court construes as an
untimely objection to Magistrate Judge Anthony P. Patti’s April 20, 2016 “Opinion and Order
Construing Plaintiff’s April 13, 2016 Filing as a Motion to Extend and Denying Such Request”
(ECF No. 54). Defendant filed a response to this filing on June 14, 2016. (ECF No. 63.) For the
following reasons, the Court will DENY Plaintiff’s objection to Magistrate Judge Patti’s April
20, 2016 Order denying Plaintiff’s request to resubmit his Response to Defendant’s Motion for
Summary Judgment.
To understand the instant motion, the Court must set forth the extensive procedural
history underlying the present the motion. On January 20, 2016, Defendant IRS moved for
summary judgment. (ECF No. 45.) Then on January 26, 2016, Magistrate Judge Patti, to whom
all pretrial matters were referred by this Court, issued an Order directing Plaintiff to file a

response to the motion for summary judgment on or before February 10, 2016 and directing him
to comply with Magistrate Judge Patti’s motion practice guidelines. (ECF No. 47.)
On February 10, 2016, Plaintiff filed a timely response that was 34 pages long with more
than 145 pages of exhibits (ECF No. 48). Then five days later, Plaintiff filed a motion to
substitute the response based on the need to redact social security numbers and other personal
information (ECF No. 49), and on February 16, 2016, Plaintiff filed a substituted response
ostensibly with those redactions (ECF No. 50). (See ECF No. 51, Order Grating Motion to
Substitute.) On February 17, 2016, Magistrate Judge Patti issued an Order that granted
Plaintiff’s request to substitute the response, but noted that the proposed amended response was
missing nine (9) pages of exhibits and was therefore not identical to the originally filed response.
(Id.) Magistrate Judge Patti directed the Clerk to strike both Plaintiff’s original February 10,
2016 Response and also his motion to substitute with the proposed amended response and order
that Plaintiff filed “a substituted response – identical to the pleading filed on February 10, 2016,
but differing only by the redactions proposed in the instant motion – no later than Thursday,
February 18, 2016.” (Id.)
Plaintiff did not re-file a response to the motion for summary judgment on February 18,
2016 and in fact did not file anything for almost two months. Then, on April 13, 2016, Plaintiff
filed a “Response to Resubmit Redacted Summary Judgment” wherein he requested that the
Magistrate Judge “acknowledge Plaintiff is sure he filed the right amount of pages in both of
Plaintiff’s Opposition filings under Docket Number {48} and {50}.” (ECF No. 53.) Plaintiff
also complained that he could not compare the earlier filings because they had been struck from
the docket. (Id.)

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On April 20, 2016, Magistrate Judge Patti construed Plaintiff’s April 13, 2016 filing as a
motion to extend time to re-file the response to the motion for summary judgment and denied
that request. (ECF No. 54.) Magistrate Judge Patti noted in his April 20, 2016 Order that
Plaintiff’s original response to the motion for summary judgment was timely but exceeded the
page limitation by nine pages and failed to contain the separate documents responding to
Defendant’s statement of material facts that was required by Magistrate Judge Patti’s guidelines.1
(Id., at 3.) Magistrate Judge Patti denied the request because Plaintiff’s claim that he was
prejudiced by not being able to “visually see” the two documents that had been struck from the
docket lacked credibility, he did not seek an extension within a reasonable amount of time
(indeed had done nothing for almost two months), and he failed to demonstrate “excusable
neglect” under Rule 6. (ECF No. 54, at *7.) Finally, the Magistrate Judge noted that upon
review Plaintiff had never filed a conforming brief because both of Plaintiff’s previous briefs
were too long and failed to provide a “statement of undisputed facts.” (Id., at *7-8.)
Significantly, the Magistrate Judge recognized that while Plaintiff was pro se litigant, he was “no
stranger to the courtroom” as he had filed three FOIA cases in this District and Plaintiff was
advised that he needed to follow the applicable practice guidelines.2

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Indeed, Magistrate Judge Patti advised Plaintiff that he needed to comply with the
motion practice guidelines and this Court’s local rules both in the order requiring Plaintiff’s
response to the Motion (ECF No. 47), during a hearing before Magistrate Judge Patti on
September 3, 2015, as well as in other orders in this action (ECF Nos. 30, 38, and 40.) (ECF No.
54, at *2-3.)
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Magistrate Judge Patti noted that Plaintiff had repeatedly ignored his orders. (ECF No.
54, at *9.)
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Here, Plaintiff objects to a magistrate judge’s order on a non-dispositive matter. 28
U.S.C. § 636(b)(1)(A). The Federal Rules of Civil Procedure provide that a party may object to
a magistrate judge’s order on a pretrial matter that is not dispositive of a party’s claim or defense
by filing an objection to the order within 14 days after being served with a copy. FED. R. CIV. P.
72(a). This Court, however, cannot reverse a magistrate judge’s order on a non-dispositive
matter unless that decision was “clearly erroneous” or “contrary to law.” FED. R. CIV. P. 72(a).
The United States Supreme Court and the Sixth Circuit have stated that “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) (explaining the clearly erroneous standard
under Rule 52(a)); Hagaman v. Comm’r of Internal Revenue, 958 F.2d 684, 690 (6th Cir 2992)
(quoting U.S. Gypsum Co.).
This standard does not allow a reviewing court to reverse a magistrate judge’s finding
merely because it would have decided the matter differently. See Anderson v. City of Bessemer
City., N.C., 470 U.S. 564, 573 (1985) (interpreting the clearly erroneous standard in Rule 52(a)).
“The ‘clearly erroneous’ standard applies only to the magistrate judge’s factual findings; his
legal conclusions are reviewed under the plenary ‘contrary to law’ standard.” Haworth, Inc. v.
Herman Miller, Inc., 162 F.R.D. 289, 291 (W.D. Mich. 1995) (citing Gandee v. Glaser, 785 F.
Supp. 684, 686 (S.D. Ohio 1992), aff’d 19 F.3d 1432 (6th Cir. 1994)). As a result the reviewing
court must employ “independent judgment with respect to the magistrate judge’s conclusions of
law.” Id.

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This Court construes Plaintiff’s current filing as an objection to Magistrate Judge Patti’s
April 20, 2016 Order. In the instant filing, Plaintiff requests that this Court “acknowledge the
Opposition to Defendant’s Motion for Summary Judgement by Plaintiff is a crucial defense
against Defendant’s Motion for Summary Judgement, which Plaintiff should have the
opportunity to resubmit Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment.”
(ECF No. 61, at 2.) Plaintiff also insinuates that his failure to timely file a conforming response
to the motion for summary judgment was tied to the fact he “could not verify the Magistrate
Judge’s Order because” his earlier responses were struck from the docket. (Id.)
Plaintiff’s argument is untimely. Plaintiff’s objection was filed more than fourteen days
after Magistrate Judge Patti’s Order and “[a] party may not assign as error a defect in the order
not timely objected to.” FED. R. CIV. P. 72(a). Further, Plaintiff has neither pointed out any
error in the Magistrate Judge Patti’s legal analysis, nor assigned any error to his factual findings.
Rather, Plaintiff merely regurgitates the same argument he previously and belatedly submitted
to Magistrate Judge Patti and states his disagreement with Magistrate Judge Patti’s conclusion.
Moreover, even if the Court were to consider the untimely objection, Plaintiff’s argument
is unavailing. Plaintiff has not disputed that his previously submitted and stricken responses
violated the practice guidelines. The record is also clear that Plaintiff failed to request an
extension to resubmit within a reasonable time. Further, Plaintiff’s argument that he was
prejudiced by being unable to view the his February 10 and February 16, 2016 Responses on the
docket does not constitute excusable neglect for failing to timely file a conforming Response.
Plaintiff, himself, created and filed the documents he submitted to the Court and that were struck
by Magistrate Judge Patti. Thus, it is not credible or persuasive to believe that Plaintiff suffered

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prejudice from being unable to view a copy of his own documents on the docket.
Finally, while Plaintiff argues that his response is “crucial” to this Court’s determination
of the merits of the summary judgment motion, the Court disagrees. The Magistrate Judge was
careful to address this issue in the Order and advised that
notwithstanding the unopposed status of that motion, the Court will carefully
consider the allegations contained in Plaintiff’s operative pleadings and adhere to
the standard which requires that, “a district court cannot grant summary judgment
in favor of a movant because the adverse party has not responded. The Court is
required, at a minimum, to examine the movant’s motion for summary judgment
to ensure that he has discharged that burden.”
(ECF No. 54, at 8-9, quoting Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991)). Accordingly,
the Court concludes that the Magistrate Judge’s April 20, 2016 Order denying Plaintiff’s request
to re-file his response to the motion for summary judgment was not clearly erroneous or contrary
to law.
For all these reasons, the Court DENIES Plaintiff’s objection to the Magistrate Judge’s
April 20, 2016 Order denying his request to re-file his response to Defendant’s Motion for
Summary Judgment. (ECF No. 61.)
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: December 29, 2016

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on December 29, 2016.

s/Deborah Tofil
Case Manager

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