Brewer v. Detroit Public Schools Community District et al

Filing 61

OPINION AND ORDER Granting Motion for Reconsideration of Order Striking Brewer's Second Amended Complaint and Vacating the Order to Strike, and Denying Motion for Reconsideration of Order Denying Amended Motion to Compel [ECF NOS. 59 , 60 ]. Signed by Magistrate Judge Elizabeth A. Stafford. (Sandusky, K)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VERLINA BREWER,
Plaintiff,

Civil Action No.: 17-11364
Honorable Robert H. Cleland
Magistrate Judge Elizabeth A. Stafford

v.
DETROIT PUBLIC
SCHOOLS,
Defendant.
_______________________________/
OPINION AND ORDER GRANTING MOTION FOR RECONSIDERATION
OF ORDER STRIKING BREWER’S SECOND AMENDED COMPLAINT
AND VACATING THE ORDER TO STRIKE,
AND DENYING MOTION FOR RECONSIDERATION
OF ORDER DENYING AMENDED MOTION TO COMPEL
[ECF NOS. 59, 60]
I.

Introduction
On January 18, 2019, this Court denied Plaintiff Verlina Brewer’s

amended motion to compel. [ECF No. 57]. On January 24, 2019, the
Court struck Brewer’s second amended complaint. [ECF No. 58, 59].
Brewer now moves for reconsideration of those orders. [ECF No. 60].
II.

Analysis
A party moving for reconsideration generally must demonstrate

“not only demonstrate a palpable defect by which the Court and the

parties and other persons entitled to be heard on the motion have
been misled but also show that correcting the defect will result in a
different disposition of the case,” although the Court’s discretion is not
restricted. E.D. Mich. LR 7.1(h)(3). For the reasons explained below,
the Court will exercise its discretion to grant reconsideration of its
order striking Brewer’s amended complaint, but not of its order
denying Brewer’s amended motion to compel.
A.
As explained in Brewer’s motion for reconsideration, the filing of the
second amended complaint was her effort to cure the deficiency of her
signature on her amended complaint. [ECF No. 37; ECF No. 60,
PageID.528]. Under Federal Rule of Civil Procedure 11(a), “Every
pleading, written motion, and other paper must be signed by at least one
attorney of record in the attorney’s name—or by a party personally if the
party is unrepresented.” The rule requires the Court to “strike an unsigned
paper unless the omission is promptly corrected after being called to the
attorney’s or party’s attention.” Id. In Bakshi v. Bank of Maharashtra, No.
2:07-CV-11214-DT, 2007 WL 1712699, at *1 (E.D. Mich. June 13, 2007),
the court denied a motion that bore the signature of the pro se plaintiff’s

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signature “by consent.” This is the way Brewer signed her amended
complaint. [ECF No. 37, PageID.240].
When the Court struck the second amended complaint, it was
unaware that that Brewer was trying to cure a Rule 11(a) deficiency. This
unawareness was due in part to the way Defendant Detroit Public Schools
(DPS) raised the issue about the deficiency of Brewer’s signature on the
amended complaint. Brewer filed her amended complaint in April 2018.
[ECF No. 37]. In November 2018, DPS moved for judgment on the
pleadings, and referenced the initial complaint. [ECF No. 45]. Brewer’s
responded that she had filed an amended complaint. [ECF No. 49]. In its
reply on December 3, 2018, DPS for the first time asserted that Brewer’s
amended complaint should be stricken because the signature is not valid.
[ECF No. 51, PageID.397]. It was improper for DPS to raise the issue for
the first time in a reply brief. See Scottsdale Ins. Co. v. Flowers, 513 F.3d
546, 553 (6th Cir.2008) (“Raising the issue for the first time in a reply brief
does not suffice.”) (citation and internal quotation marks omitted). And
since DPS did not actually move to strike, the Court was unaware of the
issue until February 2019, when it began preparing a report and
recommendation on the motion for judgment on the pleadings.

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On January 18, 2019, Brewer filed her “Corrected Amended
Complaint and Jury Demand,” but she did not identify what she was
correcting. [ECF No. 58]. Since no leave of court had been granted to
allow Brewer to file another amended complaint, the Court struck it. [ECF
No. 59]. When filing her corrected amended complaint and her motion for
reconsideration, Brewer appears to have assumed that the Court was
already aware of the signature issue raised in DPS’s reply brief. She was
wrong.
In fact, there was a palpable defect in this Court’s understanding of
basis for the filing of the corrected amended complaint, and correcting that
defect will result in a different disposition. Rule 7.1(h)(3). Rule 11(a)
allows a party to correct promptly a signature deficiency, and courts have
permitted pro se plaintiffs to sign complaints to avoid dismissal. Becker v.
Montgomery, 532 U.S. 757, 764 (2001); Huff v. FirstEnergy Corp., 2013
WL 3760021 (N.D. Ohio, July 15, 2013); Dean v. Westchester Cty. P.R.C.,
309 F.Supp.2d 587, 596 (S.D.N.Y. 2004). The Court thus grants Brewer’s
motion for reconsideration and vacates its order striking the second
amended complaint.
By sitting on the issue of the deficiency of Brewer’s signature on her
amended complaint, and then raising it only in its reply brief to the motion
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for judgment on the pleadings, DPS tried to lay a trap that would lead to the
dismissal of this action based on gamesmanship rather than the merits.
This effort is not well-taken. “The dismissal of a pro se pleading for failure
to sign is inappropriate due to the great flexibility accorded a pro se litigant,
as opposed to a pleading drafted by an attorney.” Dean, 309 F.Supp.2d at
596.
B.
On December 5, 2018, DPS filed a response to Brewer’s motion to
compel stating that it should be denied because she did not sign the
motion. [ECF No. 52, PageID.405]. DPS cited Bakshi v. Bank of
Maharashtra, No. 2:07-CV-11214-DT, 2007 WL 1712699, at *1 (E.D. Mich.
June 13, 2007), in which the court denied a motion that bore the signature
of the pro se plaintiff’s signature “by consent.” Brewer neither replied to
DPS’s response nor corrected the Rule 11(a) deficiency despite the law
cited in the response stating that a court must strike a paper that is not
promptly cured. And the Court did not deny Brewer’s motion to compel
until 44 days after the DPS filed its response and brought the defect to her
attention. The Court rejects Brewer’s argument in her motion for
reconsideration that she was not given enough time to properly sign her

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amended motion to amend; there is no palpable defect that would warrant
reconsideration.
III.

Conclusion
The Court GRANTS Brewer’s motion for reconsideration of the Order

striking her amended complaint and VACATES that order, but DENIES her
request for reconsideration of the order denying her amended motion to
compel.
s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge
Dated: February 4, 2019
NOTICE TO PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which
provides a period of 14 days from the date of receipt of a copy of this order
within which to file objections for consideration by the district judge under
28 U.S.C. § 636(b)(1).

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 4, 2019.
s/Karri Sandusky on behalf of
MARLENA WILLIAMS
Case Manager

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