Lundy v. Pontiac, City of et al

Filing 94

ORDER GRANTING IN PART DEFENDANTS MOTION IN LIMINE [#49]. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES LUNDY,
Plaintiff,
Case No. 12-cv-10965
HON. GERSHWIN A. DRAIN
v.

CITY OF PONTIAC, et al.,
Defendant.
____________________________/
ORDER GRANTING IN PART DEFENDANTS’
MOTION IN LIMINE [#49]
I. INTRODUCTION
Presently before the court is Defendants’ Emergency Motion in Limine to Preclude
Witness Sincere Wennings’ Testimony, by Affidavit, or Otherwise, or in the Alternative, an
Extension of Discovery to Allow the Taking of Her Deposition. For the reasons that follow
Defendants’ Motion is GRANTED in part.
II. BACKGROUND
Plaintiff, Charles Lundy, filed this action on March 3, 2012. Plaintiff’s claims stem
from an altercation with Pontiac police officers after Plaintiff ran up his driveway after he
saw police. Plaintiff maintains he was unarmed and that the defendant officers shot at him
multiple times without provocation or legal justification. Plaintiff further alleges that
Defendants falsely charged him with multiple felonies and fabricated evidence against him
to support their case in violation of his constitutional rights. Plaintiff brings multiple counts
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against Defendants pursuant to 42 U.S.C. § 1983.
On January 9, 2013, Plaintiff’s deposition was taken and Defendants thereafter
sought to obtain witness information that was not provided during the deposition. On
January 21, 2013, Defendants served Plaintiff with an interrogatory requesting the names,
addresses and other contact information regarding any material witnesses Plaintiff intended
to call in support of his claims, including the whereabouts of Ms. Wenning, a purported
eyewitness to the events giving rise to this action.
Discovery concluded on May 29, 2013. On May 31, 2013 Plaintiff served his
“Response to Defendants’ Interrogatory Regarding Witnesses,” which Defendants argue
contains none of the information requested. On June 20, 2013 Plaintiff provided Defendants
with Ms. Wenning’s current address and phone number, along with a sworn affidavit from
Ms. Wenning that was allegedly executed on June 19, 2013. The affidavit states that Ms.
Wenning was an eyewitness to Plaintiff running up the driveway, placing his hands in the
air, saying “don’t shoot,” and observing an officer shoot at Plaintiff, who was unarmed.
III. LAW & ANALYSIS
To the extent Defendants seek to preclude Plaintiff’s use of the Wennings’ affidavit
in support of his opposition to Defendants’ motion for Summary Judgment, this aspect of
their motion is MOOT. The Court has recently issued its opinion and order resolving
Defendants’ motion for Summary Judgment. In reaching its conclusion, the Court did not
consider the Wennings’ affidavit. However, if Plaintiff intend to call Ms. Wenning as a
witness at trial, the Court will allow her deposition as it appears Plaintiff may have had
information regarding her whereabouts that could have been provided during the discovery
period.
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IV. CONCLUSION
Defendants’ Emergency Motion in Limine to Preclude Witness Sincere Wennings’
Testimony [#49] is GRANTED IN PART. Defendants may take Ms. Wenning’s deposition
if Plaintiff intends to call her as a witness at trial. Plaintiff shall advise Defendants if he
intenteds to call Ms. Wenning as a witness no later than October 4, 2013. Defendants may
not depose Ms. Wenning Later than November 4, 2013.

SO ORDERED
Dated: October 2, 2013
/s/ Gershwin A. Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 2, 2013, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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