Waad et al v. Farmers Insurance Exchange, Inc. et al

Filing 70

ORDER GRANTING PLAINTIFFS MOTION TO COMPEL (Doc. 66) WITH CONDITIONS AND DENYING WITHOUT PREJUDICE DEFENDANT KRISS MOTION FOR SANCTIONS (Doc. 68). Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MAHER WAAD, an individual,
MARKS ONE CAR RENTAL, a
Michigan corporation, MARKS ONE
COLLISION, a Michigan corporation,
Plaintiffs,
vs.

Case No. 16-13362

SERGEANT DAN WILLIS, in his individual and
official capacity, DETECTIVE DAVE KRISS, in his
individual and official capacity, LIEUTENANT MARK
OERMAN, in his individual and official capacity,
THE COUNTY OF MACOMB, jointly and severally,

HON. AVERN COHN

Defendants.
________________________________________/
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL (Doc. 66) WITH
CONDITIONS
AND
DENYING WITHOUT PREJUDICE DEFENDANT KRISS’ MOTION FOR SANCTIONS
(Doc. 68)1
I.
This is a civil rights case. Plaintiffs Maher Waad, an individual, Marks One Car
Rental and Marks One Collision, two companies owned by Waad, are suing defendants
Macomb County Sergeant Dan Willis, Warren police officer Detective Dave Kriss,
Macomb County Lieutenant Mark Oerman, and Macomb County, making claims under
42 U.S.C. § 1983.

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Upon review of the parties’ papers, the Court deems these matters appropriate
for decision without oral argument and, as to the motion for sanctions, appropriate for
consideration without a response. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).

Before the Court is plaintiffs’ motion to compel the deposition of Kriss or for
sanctions (Doc. 66) and Kriss’ motion for sanctions (Doc. 68). For the reasons that
follow, plaintiffs’ motion will be granted, subject to conditions outlined below. Kriss’
motion will be denied without prejudice.
II. Motion to Compel
Plaintiffs seek to depose Kriss, stating that they have learned after the close of
discovery that Kriss has “personal knowledge that agents with the [FBI] were curiously
present” during a 2014 raid on Waad’s businesses. See Doc. 66 at p. 3. In response,
Kriss’ counsel says that (1) Kriss has already been deposed twice, (2) plaintiffs’ counsel
twice scheduled and twice cancelled a third deposition, and (3) plaintiffs’ counsel has
known about the FBI’s involvement for years so there is no basis for a third deposition.
Although recognizing Kriss has been twice deposed, in order to assure a
thorough vetting given the resources devoted to the case, plaintiffs’ motion is
GRANTED. However, plaintiffs’ counsel is expressly on notice that if the deposition fails
to reveal any new or different information, sanctions may be imposed against plaintiffs’
counsel. Given that plaintiffs’ counsel is as risk, plaintiffs shall have ten (10) days in
which to decide whether they want to depose Kriss a third time.
III. Motion for Sanctions
Kriss says that sanctions are warranted because plaintiffs have refused to
dismiss their official capacity claim against him even though they have not identified a
official policy or custom of the City of Warren, Kriss’ employer, which has caused them
constitutional injury. While this argument is more appropriate for a dispositive motion
than a motion for sanctions, plaintiffs’ counsel shall have ten (10) days to either
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withdraw the official capacity claim or identify the basis for pursuing such a claim. Kriss’
motion is therefore DENIED WITHOUT PREJUDICE.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 5/2/2018
Detroit, Michigan

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