Bailey v. Oakwood Healthcare, Inc. d/b/a Oakwood Hospital & Medical Center
OPINION AND ORDER DENYING 59 MOTION for Leave to File Corrected Declaration and to Correct Summary Judgment Record filed by Michelle H Bailey. Set Motion and R&R Deadlines/Hearings as to 38 MOTION for Summary Judgment :( Motion Hearing set for 6/19/2017 03:00 PM before District Judge Paul D. Borman) Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHELLE H. BAILEY,
Case No. 15-11799
Paul D. Borman
United States District Judge
OAKWOOD HEALTHCARE, INC.,
d/b/a OAKWOOD HOSPITAL
& MEDICAL CENTER,
Elizabeth A. Stafford
United States Magistrate Judge
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE
TO FILE CORRECTED DECLARATION AND CORRECT SUMMARY
JUDGMENT RECORD (ECF NO. 59)
In this federal civil rights action, Plaintiff alleges that Defendant, her former
employer, discriminated against her based on her race, her age, and her pregnancy,
and that Defendant retaliated against her for opposing its discriminatory practices.
Defendant moved for summary judgment on September 2, 2016. (ECF No.
38.) After the parties stipulated to a time extension, Plaintiff filed a Response on
October 14, 2016. (ECF No. 41.) Attached to that Response was a post-deposition,
30-page, 200-paragraph “Declaration of Michelle H. Bailey,” containing
statements by Plaintiff regarding the factual aspects of her case, which closed with
an assertion by Plaintiff that the statements were “true to the best of [her]
knowledge, information and belief.” The Declaration was not signed, sworn, or
dated, as required by 28 U.S.C. § 1746. (ECF No. 41 Ex. B.)
On November 1, 2016, Plaintiff filed a second version of the Declaration,
backdated to October 14, 2016, the date of the first filed Declaration, which
contained Plaintiff’s signature. (ECF No. 44, Bailey Declaration.) This second
version was also not sworn. (Id.)
The Court set a hearing on Defendant’s Motion for Summary Judgment and
Defendant’s Motion to Strike Plaintiff’s Declaration for February 1, 2017.1
At the hearing, the Court ordered Plaintiff’s Declaration stricken because it
violated 28 U.S.C. § 1746, which permits an unsworn statement to suffice for a
sworn statement only if it contains an assertion by the signatory that the contents of
the document are true under penalty of perjury, the declarant’s signature, and the
date. (ECF No. 57, Transcript of February 1, 2017 Hearing at 6-7.) Plaintiff’s
Plaintiff’s Response Brief to Defendant’s Motion to Strike Plaintiff’s Declaration
(ECF No. 50) violates the Court’s Civility Principles, set forth at footnote 3, infra,
in that it contains uncivil disparaging remarks regarding Defendant’s counsel:
P. 3: “Consistent with Defendant’s whining, it now states it has been prejudiced
by ‘untimeliness’ when what it should do is sharpen its deposition crossexamination.”
P. 3: “Defendant laughably refers to some obligation . . .”
P. 4: “The relief [Defendant] requests . . . are equally laughable. . . . The fact
that [Defendant’s] counsel did not prepare appropriately for her deposition is
not the fault of Plaintiff.”
Additional examples of Plaintiff’s counsel’s multiple and continuous violations of
the Court’s Civility Principles at Plaintiff’s deposition are contained at pages 6-10,
Declaration was neither sworn nor certified as true under penalty of perjury, in
clear violation of 28 U.S.C. § 1746. Thereafter, while noting that this issue had
been raised by Defendant’s Motion to Strike the Declaration that was set for the
hearing, the Court nevertheless provided Plaintiff with an opportunity to provide
legal authority challenging the Court’s ruling. (ECF No. 57, Transcript of February
1, 2017 Hearing at 8.) The Court then postponed the scheduled argument on
Defendant’s summary judgment motion and the motion to strike the Declaration.
(Id. at 7-10.)
Plaintiff subsequently filed a brief on the § 1746 issue (ECF No. 60), and
also filed a Motion for Leave to File Corrected Declaration and to Correct
Summary Judgment Record (ECF No. 59). Defendant responded in opposition to
each (ECF Nos. 61, 62), and Plaintiff filed a timely Reply (ECF No. 63).
Thereafter, Plaintiff filed a “Notice of Supplemental Authority” with regard to the
§ 1746 issue. (ECF No. 64.)
The Court finds that none of the authorities cited by Plaintiff establishes that
this Court’s reliance on the clear language of 28 U.S.C. § 1746 in striking
Plaintiff’s proposed Declaration on the scheduled date of the hearing on
Defendant’s motions for summary judgment and to strike Plaintiff’s Declaration
was contrary to the statute or binding legal precedent.
Plaintiff directs the Court to its decision in Visteon Glob. Techs., Inc. v.
Garmin Int'l, Inc., No. 10-CV-10578, 2014 WL 1028927 (E.D. Mich. Mar. 17,
2014), for the proposition that a motion to correct a summary judgment record “is
the proper mechanism in order to seek relief from any defects in the Declaration.”
(ECF No. 59 at 2.) However, Visteon concerned a party’s motion to amend
admissions that had been directed at the wrong set of requests, and did not involve
an affidavit or declaration at all. Thus, Visteon has no factual applicability to this
case, and it does not support Plaintiff’s contention that the Court must award relief
to Plaintiff here.
Plaintiff’s other cited cases are both materially distinguishable and
nonprecedential. Demara v. Comm'r of Soc. Sec., No. CV 15-12634, 2016 WL
1604700, at *1 (E.D. Mich. Mar. 31, 2016), involved an affidavit filed in support
of an in forma pauperis application, while Henry v. State Farm Fire & Cas. Co.,
No. 14-12004, 2015 WL 4429686 (E.D. Mich. July 20, 2015), did not involve an
affidavit or declaration at all. In Oldham v. Heilig-Meyers, 1994 WL 75844 (6th
Cir. 1994), the Sixth Circuit mentioned in passing that a district court allowed a
party to correct a deficient affidavit, but neither addressed the issue itself nor
offered any indication as to when such a decision would be proper, much less
required by law. See id. at *1. And Leininger v. Reliastar Life Ins. Co., No. 0612249, 2007 WL 2875283 (E.D. Mich. Sept. 28, 2007), as Defendant points out, is
distinguishable because the question presented in that case was whether a § 1746
deficiency in a summary judgment affidavit was mooted by the same party’s
subsequent correction of the error in its reply brief.
Thus, Plaintiff has not provided (nor is the Court aware of) any authority
indicating that the Court’s striking of her Declaration as deficient under 28 U.S.C.
§ 1746 was unlawful.2 In addition to not providing binding legal authority
establishing the illegality of the Court’s ruling, Plaintiff’s “Brief Allowed By The
Court At Its Hearing On February 1, 2017 Regarding Plaintiff’s Declaration” (ECF
No. 60) contained, as Exhibit A, this Court’s previous opinion in Lauderdale v.
Wells Fargo, et al., 2012 WL 1714905 (E.D. Mich. May 15, 2012) (Borman, J.)
(refusing to consider, on summary judgment, a Declaration not made under penalty
of perjury as required under 28 U.S.C. § 1746), aff’d 552 F. App'x 566 (6th Cir.
to this Court’s ruling on February 1, 2017 striking Plaintiff’s
unsworn Declaration, Plaintiff’s counsel apparently recognized that he had
committed a similar violation of 28 U.S.C. § 1746 in another case. (Welch v. Level
3 Communications, LLC, E.D. MI, Civil Case No. 15-13381, ECF No. 44.)
(Tarnow, J.) Plaintiff’s subsequent motion to file a corrected Declaration was
granted by Judge Tarnow, in the exercise of his discretion. Plaintiff now submits
that post hoc order by Judge Tarnow as “Supplemental Authority” in the instant
case. (ECF No. 64.)
The Court does not find that order as “authority” in this case. That order was
filed on March 9, 2017, more than one month after this Court struck Plaintiff’s
unsworn Declaration. It was also filed one month prior to the scheduled summary
judgment hearing in Welch. In the instant case, Plaintiff had not corrected the
legally deficient Declaration prior to the convening of the instant scheduled
summary judgment/motion to strike hearing on February 1, 2017. Another District
Judge’s exercise of discretion, on different facts, is not binding on this Court.
2014). The United States Court of Appeals for the Sixth Circuit affirmed. 552 F.
App'x 566 (6th Cir. 2014).
The Court notes that in the instant case, during the course of Plaintiff’s fivehour deposition, Plaintiff’s counsel seized the opportunity to examine his client
extensively with regard to her claims in this case. Plaintiff’s counsel examined her
on three separate occasions in that deposition, comprising 36 pages of testimony.
(ECF No. 38 Ex. 4, Deposition of Michelle Bailey 171-201, 216:1-218:16, 221:2222:11.)
The Court also notes that Plaintiff’s counsel acted improperly on multiple
occasions during Plaintiff’s deposition to interfere with and indeed derail defense
counsel’s proper attempt to examine his client. This resultant misconduct by
Plaintiff’s counsel provided him with additional opportunities to bolster his client’s
case at the expense of Defendant’s opportunity to challenge her claims. The
deposition transcript reveals that time and again, Plaintiff’s counsel violated this
Court’s Civility Principles toward opposing counsel3:
Civility Principles of the United States District Court, Eastern District of
Michigan, approved February 5, 1996:
Attorney’s Responsibilities to Other Counsel
1. . . . We will treat all other counsel . . . in a civil and courteous manner . . .
2. . . . We will abstain from disparaging personal remarks or acrimony toward
other counsel . . .
20. We will not engage in any conduct during a deposition that would not be
appropriate in the presence of a judge.
A. Yes, she was my manager.
MR. WAHL: You already asked that, Counsel. You're stuck in the
mud? Do you need help to get out of the same line of questioning?
Maybe it's because, by repetition, you think it's more effective.
BY MR. HANCOCK:
Q. Now, did you ask for any time to consider what they had given
you at this meeting?
A. To consider it in what regard?
Q. To come back with a response or come back with records or come
back with anything.
MR. WAHL: She asked for records. But go ahead and answer.
(Bailey Dep. 137:22-138:10.)
[MR. HANCOCK:] Okay, is there any error in what's on this
document -- now, what's on this document, Deposition Exhibit
Number 9, is a title and a period of time that you, on one of the two
applications, said you worked in that Job?
MR. WAHL: Forty minutes ago, she said the document was accurate.
Why are you -- are you stuck somewhere? Is there some assistance I
can give you? She's already agreed to that. Do you want her to agree
(Bailey Dep. 139:4-13.)
MR. WAHL: . . . Now, where are you reading from [on page] 99 -MR. HANCOCK: Where it says, “The flexible workforce” -MR. WAHL: Where is that?
MR. HANCOCK: It's about one-third of the way down.
MR. WAHL: Thank you. Played a key role? Is that what you're
MR. HANCOCK: Now, could you please let her read the document
and not point out things with your pen?
MR. WAHL: Where are you reading from?
MR. HANCOCK: Where it says, “The flexible workforce nursing
MR. WAHL: Okay.
MR. HANCOCK: Okay. Could you let her look at the document,
please, and not point out things with your pencil?
MR. WAHL: Oh, just be quiet. You're being annoying.
MR. HANCOCK: You're being annoying. So, would you mind her
looking at the document –
MR. WAHL: She's looking at it. Are you looking at it?
THE WITNESS: Yes.
MR. HANCOCK: And get off of it, please.
MR. WAHL: No.
MR. HANCOCK: You can't do that, Jerry.
MR. WAHL: Go ahead. Ask your question.
MR. HANCOCK: We're going to stop right here, If you're not going
to stop pointing things out to her while I'm asking questions, then we
MR. WAHL: I'm pointing at, "played a key role."
MR. HANCOCK: We stop here until you stop doing that.
MR. WAHL: All right. The deposition is over.
MR.HANCOCK: No, it's not.
MR. WAHL: Go file a motion. Yes, it is. That's it. I'm pointing out
where you're reading from so she can follow along.
(Bailey Dep. 154:9-156:20.)
[MR. HANCOCK:] You submitted Answers to Interrogatories. Did
you have a chance to review them before they were sent to us?
MR. WAHL: The answer to that is no, as well, but she did sign off on
them, and you've got her verification.
MR. HANCOCK: Okay. . . . So, what she said was wrong and you're
telling us what's right?
MR. WAHL: She doesn't know.
MR. HANCOCK: Okay. I -MR. WAHL: As many clients and lawyers operate, we sent them out
with an explanation to Ms. Davies that we're having our client review
MR. HANCOCK: Okay.
MR. WAHL: Then we had her sign them and she sent them along to
MR. HANCOCK: Okay.
MR. WAHL: So, I don't know what your problem is with something.
(Bailey Dep. 170:3-24.)
Plaintiff’s counsel also acted to improperly control his client’s testimony
when he “cross-examined” her. Two examples:
[MR. WAHL:] So, job titles can change and are fluid, depending on
whether somebody is entering in something for a job description
performance review -MR. HANCOCK: Is that a question -MR. WAHL: It is.
MR. HANCOCK: -- or are you leading her to an answer?
MR. WAHL: I'm sorry, can I finish my question before you pipe up?
MR. HANCOCK: No. You’re leading her, at this point, and telling
her what you want her to say, so...
MR. WAHL: Fine.
(Bailey Dep. 177:19-178:6.)
[MR. WAHL:] All right. Based on that cross-examination, do you
want to change your testimony that the duties that you described
orally to Ms. Walker, Mr. Squire, Ms. Huffman and others during the
more than three hours of interviews and three different trips, described
these duties as any different -MR. HANCOCK: You're leading her.
MR. WAHL: I don't care.
MR. HANCOCK: I'm just objecting that you're leading.
MR. WAHL: I know. And I'm saying I don't care.
(Bailey Dep. 216:23-217:9.)
Plaintiff’s counsel’s misconduct, violating this Court’s principles of civility
and decency, enabled him to continuously develop/fashion his client’s deposition
testimony to his liking at the expense of the right of Defendant’s counsel to depose
Plaintiff has provided no legal basis for this Court to conclude that it
committed error in striking Plaintiff’s Declaration at the time and place set for the
scheduled summary judgment hearing. The Court’s ruling was based upon the
clear requirements of 28 U.S.C. § 1746. Accordingly, the Court hereby DENIES
Plaintiff’s motion to reconsider its order striking Plaintiff’s 30-page, 200paragraph Declaration as in violation of 28 U.S.C. § 1746.
The Court also warns Plaintiff’s counsel that he must adhere to the Court’s
Civility Principles, or he will face sanctions or contempt proceedings.
The Court schedules the hearing on Defendant’s Motion for Summary
Judgment for Tuesday, June 19, 2017 at 3:00 PM.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: June 2, 2017
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 June 2, 2017.
Deborah Tofil, Case Manager
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