Salim et al v. Dynamic Glazing System Inc.

Filing 34

OPINION and ORDER Granting in part and Denying in part Defendant's 28 Motion to Dismiss. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARVIN SALIM, et al.,
Case No. 2:17-cv-11297
Plaintiffs,
HON. STEPHEN J. MURPHY, III
v.
DYNAMIC GLAZING SYSTEM INC.,
Defendant.
/
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION TO DISMISS [28]
The case is a seemingly straight-forward Fair Labor Standards Act dispute that
has proven to be anything but. Plaintiffs allege that their former employer, Defendant
Dynamic Glazing System Inc., unlawfully failed to pay overtime wages. ECF 1, PgID 6–
7. To date, the litigation has not been exemplary: the parties struggled to engage in
cooperative discovery, missed deadlines, and failed to honor commitments made to the
Court. See, e.g., ECF 11, 12, 13, 15, 17, 22. Recognizing that the parties needed help
moving the case forward in a productive and efficient matter, the Court appointed Dan
Sharkey to serve as a discovery master and facilitative mediator. ECF 17. Instead of the
appointment having its intended effect, however, the case took a turn for the worse:
Plaintiff Marvin Salim violated Local Rule 16.4(e)(5) by not attending a court-ordered
facilitation. And worse yet, Salim was cagey—if not deceitful—when explaining why.
Although representations were made that Salim was taking a commercial-driver-license
course, Salim was actually either in jail or being released from jail at the time of the
facilitation. In light of those events, Defendant requests that the Court either dismiss

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Salim's claims or provide an alternative form of relief. For the reasons set forth below,
the Court will grant in part and deny in part Defendant's motion.
Courts are vested with certain implied powers to "impose silence, respect, and
decorum, in their presence, and submission to their lawful mandates." Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991). The Court's inherent power includes the power to
punish contempts; and the power extends to conduct both inside and outside of the
courtroom. Id. at 44. When the Court exercises its inherent power, however, it must do
so with restraint and discretion. Id.
Therefore, dismissing the complaint is unwarranted. Although Salim broke the
rules, he was available by phone during at least portions of the facilitation. ECF 29-3.
His behavior indicates that despite Salim's unusual circumstances, he tried his best to
cooperatively move the case forward. Moreover, Defendant does not come to the Court
with clean hands—as evidenced by the long sequence of events leading to the
facilitation order. It would therefore be a miscarriage of justice for the Court to dismiss
the complaint.
That said, Salim's behavior was flagrant. The Court is well aware of how the
criminal justice system can unexpectedly affect an individual's life, and the Court does
not hold it against Salim that he could not participate in the court-ordered facilitation
because he was being released from jail. But Salim blatantly broke Local Rule
16.4(e)(5) by not attending the facilitation. And the violation was easily avoidable: the
Court can excuse attendance upon a showing of extraordinary circumstances or the
parties could have rescheduled the facilitation. But because attendance at facilitation is

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an integral part of good-faith and productive negotiations, Salim's disregard for the rules
and unwillingness to seek available remedies unduly frustrated the Court's mandate.
As is typically true, the most egregious behavior here was not the misconduct
itself but its cover up. Instead of taking responsibility for the situation, Salim's counsel
announced at the facilitation—inaccurately—that Salim could not attend because he
was taking a commercial-driver-license course. And even after Defendant filed its
motion, Salim did not correct the record. Instead, he allowed the Court to proceed under
the false assumption that he was at a course. Salim did not come clean until
Defendant—in its reply brief—attached an exhibit showing that Salim was in jail. Then,
and only then, did Salim tell the truth in an "addendum"1 to his previously filed response
brief. Because that behavior is intolerable, the Court will order Salim to pay one-third of
Defendant's facilitation fee owed to Mr. Sharkey. It represents Salim's share of the
expense incurred by Defendant: the remaining two-thirds of the fee was not wasted
because there was a settlement with the other two plaintiffs. The Court will also order a
second round of facilitation. The Court will not award Defendant its attorney's fees for
the first facilitation because that preparation will be beneficial for the second facilitation.
Lastly, the Court notes that Salim's counsel was at the very least complicit in the
unseemly events that have transpired. By his own admission, Salim was in jail from
November 7, 2017 to December 14, 2017; the latter was the date of the court-ordered
facilitation. That means Plaintiff's counsel either did not talk to her client at all during the
five weeks preceding the mediation or that she was aware of her client's situation, made
a false statement to Defendant and the facilitator (who, due to his appointment, was an
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And Salim did not request the Court's leave prior to making an unusual filing of this
sort, which could be viewed as another shortcut and sign of disrespect to the Court.
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extension of the Court at the time), and then failed to correct the record once motion
practice began. If the latter is true, then counsel's conduct was of questionable ethics
and unbecoming of an officer the Court. After considering sanctions, however, the Court
will give counsel the benefit of the doubt. All parties and lawyers are on notice that any
future misconduct in the case will swiftly be addressed.
WHEREFORE, it is hereby ORDERED that Defendant's Motion to Dismiss [28] is
GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff Marvin Salim shall pay Defendant
Dynamic Glazing System Inc. one-third of the facilitation fee Defendant paid or owes to
Dan Sharkey. No portion of Salim's payment shall be charged to Plaintiff Emile Woods
or Plaintiff Mahmoud Hamadeh or subtracted from their settlement.
IT IS FURTHER ORDERED that Salim and Dynamic Glazing System Inc. are
REFERRED to a second round of facilitation. This time, the parties shall facilitate with
Magistrate Judge David R. Grand. The facilitation shall occur no later than March 23,
2018. If Magistrate Judge Grand does not have availability for the facilitation or if either
party objects to facilitating with Magistrate Judge Grand, then the parties may agree on
and contact a different Magistrate Judge in the Eastern District of Michigan. No later
than February 14, 2018, the parties shall FILE notice stating the name of the facilitator
as well as the scheduled date and location of the facilitation.
IT IS FURTHER ORDERED that, immediately upon completion of facilitation, the
parties shall FILE notice stating the date facilitation was completed and whether a
settlement was reached.

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If a settlement was reached, then the parties shall FILE a stipulated order of
dismissal within 21 days of the date the facilitation was completed.
SO ORDERED.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: February 7, 2018
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 7, 2018, by electronic and/or ordinary mail.
s/ David Parker
Case Manager

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