Guzall, et al v. Romulus, City of, et al

Filing 116

OPINION and ORDER Adopting Magistrate Judge Grand's 100 Report and Recommendation; Denying Plaintiff's 104 Objection to and/or Motion for Reconsideration of Magistrate Judge Grand's 99 Order; and Imposing Sanctions Against Plaintiff. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIANNE D. GUZALL a/k/a
MARIANNA GUZALL,
Plaintiff,

Civil Case No. 13-11327
Honorable Linda V. Parker

v.
CITY OF ROMULUS, ALAN R. LAMBERT,
and BETSEY KRAMPITZ,
Defendants.
____________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE GRAND’S
NOVEMBER 24, 2015 REPORT AND RECOMMENDATION [ECF NO.
100]; DENYING PLAINTIFF’S OBJECTION TO AND/OR MOTION FOR
RECONSIDERATION [ECF NO. 104] OF MAGISTRATE JUDGE
GRAND’S NOVEMBER 24, 2015 ORDER [ECF NO. 99]; AND IMPOSING
SANCTIONS AGAINST PLAINTIFF
On November 24, 2015, Magistrate Judge Grand issued two decisions in this
case. First, in an order addressing Defendants’ motion to adjourn the scheduling
order dates (ECF No. 81) and Plaintiff’s emergency motion to compel, extend
discovery cutoff, and for sanctions (ECF No. 82), Magistrate Judge Grand
extended the remaining dates in the scheduling order by sixty (60) days for all
parties. (ECF No. 99.) Second, in a Report and Recommendation (R&R) (ECF
No. 100), Magistrate Judge Grand recommended that the Court grant in part and
deny in part Defendant City of Romulus’ “Motion to Dismiss for Violation of

Court Order and/or in the Alternate Strike Audio Recording with Other Sanctions”
(ECF No. 74). Specifically, Magistrate Judge Grand ordered Plaintiff to
compensate the City of Romulus (hereafter “City”) for its reasonable costs and fees
incurred in filing and litigating its motion, but recommended that the Court deny
the motion in all other respects. (ECF No. 100.) Magistrate Judge Grand “directed
counsel for Plaintiff and the City to meet and confer in an attempt to agree upon
the appropriate monetary amount that would adequately compensate the City” and,
in the event the parties could not agree, instructed the City to file a bill of costs on
or before December 7, 2015. (Id. at Pg ID 1351.)
On December 7, 2015, Plaintiff filed two separate pleadings, each entitled
“Plaintiff’s Objection to and/or Motion for Reconsideration of the Magistrate’s
Report and Recommendation Dated November 24, 2015.” (ECF Nos. 103, 104.)
In the first filed pleading, addressing Magistrate Judge Grand’s R&R, Plaintiff
acknowledges that she technically violated a court order by failing to provide her
cell phone to a court reporter for verbatim transcription of a recording on the
phone. (ECF No. 103.) Plaintiff argues, however, that sanctions are inappropriate
because the City was offered and received a transcript of the recording. (Id.) In
her second filed pleading, Plaintiff’s primary focus is on this Court’s July 27, 2015
order denying Defendant Lambert’s motion to stay. (ECF No. 104.) She addresses
Magistrate Judge Grand’s November 24, 2015 order only by complaining that he
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did not include in the extension of discovery “that Defendant Lambert must answer
fact questions in this lawsuit in accord with the law cited.” (Id.) In both pleadings,
Plaintiff asks the Court to allow her husband, attorney Raymond Guzall III, to
represent her in this case.
On December 7, 2015, the City also submitted a bill of costs reflecting the
amount ($3,531.00) it believes should be awarded as sanctions pursuant to
Magistrate Judge Grand’s November 24, 2015 R&R. (ECF No. 102.) Attached to
the City’s submission is an itemized bill from its counsel, reflecting the work
performed in connection with its motion for sanctions, the hours billed, and the
fees charged. (Id., Ex. 1.) Plaintiff filed objections to the City’s bill of costs on
December 10, 2015. (ECF No. 106.) In her objections, Plaintiff also asks the
Court to do the following:
(1) remove Defendant Lambert’s attorney, John J. Gillooly, from
the case based on his conduct during her deposition;
(2) order Defendants’ attorneys to provide Plaintiff and the Court
with a videotape of her deposition and a copy of the Michigan State
Police investigation report as to Defendant Lambert “so that the court
can properly rule that [she] can take the deposition of Defendant
Lambert;
(3)

order that Defendants may not depose Plaintiff further; and

(4) order Mr. Gillooly to pay to replace Plaintiff’s cell phone which
belongs to the law firm where she works (i.e., her husband Raymond
Guzall’s firm) because she believes the phone is now compromised,
her safety is in jeopardy in that Defendants may be able to track her
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movements, and the phone contains privileged attorney/client
communications.
(ECF No. 106 at Pg ID 1438-39.)
Standard of Review
Plaintiff’s objections address Magistrate Judge Grand’s non-dispositive
(ECF No. 99) and dispositive (ECF No. 100) rulings. When a party objects to a
magistrate judge’s non-dispositive decision, the reviewing court must affirm the
magistrate judge’s ruling unless the objecting party demonstrates that it is “clearly
erroneous” or “contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A).
The “clearly erroneous” standard does not empower a reviewing court to reverse a
magistrate judge’s finding because it would have decided the matter differently.
See, e.g., Anderson v. Bessemer City, N.C., 470 U.S. 564, 573-74 (1985). Instead,
the “clearly erroneous” standard is met when despite the existence of evidence to
support the finding, the court, upon reviewing the record in its entirety, “is left with
the definite and firm conviction that a mistake has been committed.” Id. (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
When objections are filed to a magistrate judge’s report and
recommendation on a dispositive matter, the Court “make[s] a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court,
however, “is not required to articulate all of the reasons it rejects a party’s
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objections.” Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001)
(citations omitted). A party’s failure to file objections to certain conclusions of the
report and recommendation waives any further right to appeal on those issues. See
Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987). Likewise, the failure to object to certain conclusions in the magistrate
judge’s report releases the Court from its duty to independently review those
issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
Analysis
Plaintiff fails to demonstrate that Magistrate Judge Grand’s non-dispositive
decision is clearly erroneous or contrary to law. In fact, as indicated, the only
complaint she articulates with respect to the magistrate judge’s decision extending
the scheduling order dates is the lack of an instruction directing Defendant
Lambert to answer questions in this lawsuit. This does not demonstrate error in the
decision.
This Court denied Defendant Lambert’s motion to stay the proceedings
based on alleged criminal proceedings. (ECF No. 62.) The Court did not address
whether Defendant Lambert could invoke his Fifth Amendment rights when
deposed in this matter, as the issue was not presented in his motion. While
Plaintiff did seek an order requiring Defendant Lambert to be deposed, an order
requiring him to answer all questions posed at his deposition would be
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inappropriate˗ or at least premature as the need for such an order had not been
established.
The Fifth Amendment to the United States Constitution provides that “[n]o
person shall be . . . compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. The Fifth Amendment privilege against self-incrimination
“not only protects the individual against being involuntarily called as a witness
against himself in a criminal prosecution but also privileges him not to answer
questions put to him in any other proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal proceedings.” In re
Morganroth, 718 F.2d 161, 164-65 (6th Cir. 1983) (citing Lefkowitz v. Turley, 414
U.S. 70, 94 (1973)); see also Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067,
1074 (6th Cir. 1990). To properly invoke the privilege, one must “ ‘demonstrate a
real danger of incrimination[,]’ ” see United States v. Conces, 507 F.3d 1028, 1040
(6th Cir. 2007) (quoting Brennan v. C.I.R., 752 F.2d 187, 189 (6th Cir.1984)), “and
not a mere imaginary, remote or speculative possibility of prosecution.”
Morganroth, 718 F.2d at 167. A “blanket assertion” of the privilege is not
permissible and the privilege cannot be claimed in advance of the questions. Id.
“The privilege must be asserted by a witness with respect to particular questions,

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and in each instance, the court must determine the propriety of the refusal to
testify.”1 Id.
The Fifth Amendment’s protection against self-incrimination “ ‘does not
extend to consequences of a noncriminal nature, such as threats of liability in civil
suits.’ ” Conces, 507 F.3d at 1040 (quoting United States v. Apfelbaum, 445 U.S.
115, 125 (1980)). Instead, the witness must “risk[] a real danger of prosecution” in
that “an answer to a question, on its face, calls for the admission of a crime or
requires that the witness supply evidence of a necessary element of a crime or
furnishes a link in the chain of evidence needed to prosecute.” In re Morganroth,
718 F.2d at 167. “[A] real danger of prosecution also exists where questions,
which appear on their face to call only for innocent answers, are dangerous in light
of other facts already developed.” Id. (citing Hoffman v. United States, 341 U.S.
479, 486-88 (1951)).
In her motion to compel, Plaintiff did not specifically request an order
requiring Defendant Lambert to answer the fact questions presented to him at his
deposition. Instead, she only requested an order requiring Defendant Lambert to
appear for his deposition “so that he will answer those fact questions . . ..” (See
As such, Defendant Lambert is advised that he may not make a blanket assertion
of his Fifth Amendment rights to avoid responding to Plaintiff’s questions at his
deposition. His counsel should be prepared to articulate to this Court why
answering a specific question poses a “real danger of incrimination.” The Court
warns that it will impose sanctions for the inappropriate use of the privilege to
avoid cooperating in discovery.
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ECF No. 82.) For that reason, and because a blanket order prohibiting Defendant
Lambert from invoking his Fifth Amendment rights would be inappropriate (at
least absent the opportunity for the court to review the specific questions asked),
the Court rejects Plaintiff’s objections to Magistrate Judge Grand’s order titled
“Order on Motions- Docket Nos. 81 and 82” (ECF No. 99).
The Court also rejects Plaintiff’s objections to Magistrate Judge Grand’s
determination that sanctions should be imposed due to Plaintiff’s failure to comply
with a court order requiring her to turn over her cell phone to a court reporter. A
review of the pleadings leading to Magistrate Judge Grand’s R&R (see ECF Nos.
74, 79) reveals that Plaintiff in fact violated Magistrate Judge Grand’s September
9, 2015 order requiring her to provide her cell phone to the court reporter before
the close of business on September 11, 2015. Plaintiff misses the point when she
argues that, while she technically violated the order, there was no harm to the City
because a transcript of the recording on her phone already had been prepared by
the court reporter and offered to the City’s counsel. The court reporter’s
transcription was from a recording that Plaintiff’s previous counsel had made from
the recording on Plaintiff’s phone, which the City’s attorney had complained was
of poor quality. The City wanted the original recording to verify its accuracy. The
Court therefore adopts Magistrate Judge Grand’s recommendation to impose
sanctions against Plaintiff for violating his September 9, 2015 order.
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The Court finds merit, however, to Plaintiff’s objections to the City’s bill of
costs and request for sanctions in the amount of $3,531.00. First, there is no
indication in the City’s submission that it complied with Magistrate Judge Grand’s
order to meet and confer with Plaintiff’s counsel “in an attempt to agree upon the
appropriate monetary amount that would adequately compensate the City” before
filing its bill of costs. (ECF No. 100 at Pg ID 1351.) Moreover, the City’s bill of
costs includes fees for services unrelated to its motion to dismiss and services,
which although connected to the motion, relate to issues on which the City did not
prevail. For these reasons, the Court finds the amount sought as a sanction to be
inappropriate. The Court concludes that a sanction of $500.00 is just under the
circumstances presented.
As previously mentioned, in her objections, Plaintiff repeatedly asks the
Court to allow her husband, attorney Raymond Guzall, to represent her in this
litigation. Mr. Guzall initially represented Plaintiff, but the Court disqualified him
in October 2014 because he acted as an Assistant City Attorney for Defendant City
of Romulus during the period relevant to Plaintiff’s lawsuit. (ECF No. 38.)
Plaintiff filed a motion for reconsideration with respect to the Court’s decision,
which the Court denied. (ECF No. 42.) For the reasons set forth in those
decisions, the Court rejects Plaintiff’s current request to allow Mr. Guzall to
represent her. With respect to the other relief Plaintiff requests in her objections,
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see supra at 3-4, her objection to the City’s bill of costs is not the proper filing in
which to seek such relief. See Fed. R. Civ. P. 7(b), 30(d), (e), 37.
To summarize, the Court rejects Plaintiff’s objections to Magistrate Judge
Grand’s November 24, 2015 decisions. The Court concludes, however, that the
amount the City seeks as sanctions against Plaintiff is excessive. A sanction of
$500 is more appropriate.
Accordingly,
IT IS ORDERED, that Magistrate Judge Grand’s “Order on MotionsDocket Nos. 81 and 82” (ECF No. 99) is AFFIRMED;
IT IS FURTHER ORDERED that the Court ADOPTS Magistrate Judge
Grand’s November 24, 2015 R&R (ECF No. 100) and GRANTS IN PART AND
DENIES IN PART Defendant City of Romulus’ “Motion to Dismiss for Violation
of Court Order and/or in the Alternate Strike Audio Recording with Other
Sanctions” (74);
IT IS FURTHER ORDERED that sanctions of $500.00 are imposed
against Plaintiff in favor of Defendant City of Romulus, to be paid to counsel for
Defendant City of Romulus within thirty (30) days of this Opinion and Order.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: March 7, 2016
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I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, March 7, 2016, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

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