The Estate of Claude Stevens et al v. Stewart et al

Filing 154

OPINION and ORDER Denying Plaintiff's 151 Motion to Strike Defendants Boles' and Marshall's Answers and Motions for Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHERRY L. VANNORTWICK, as
the Personal Representative of the
Estate of CLAUDE STEVENS,
Plaintiff,

Case No. 17-12507
Honorable Linda V. Parker

v.
ANTHONY H. STEWART, et al.,
Defendants.
___________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO STRIKE
DEFENDANTS BOLES’ AND MARSHALL’S ANSWERS AND MOTIONS
FOR SUMMARY JUDGMENT
On August 2, 2017, Plaintiff initiated this civil rights lawsuit against sixteen
defendants, raising claims arising from Claude Stevens’ death while an inmate
with the Michigan Department of Corrections. Attorneys Michelle Harrell and R.J.
Cronkite from Maddin Hauser Roth & Heller, P.C. (collectively “Maddin Hauser”)
subsequently entered their appearances on behalf of several defendants, including
Larry Marshall (“Mr. Marshall”) and Barbara Boles (“Ms. Boles”). Maddin
Hauser subsequently moved to withdraw as counsel for Mr. Marshall and Ms.
Boles due to their inability to pay the fees charged for Maddin Hauser’s legal
services. This Court granted Maddin Hauser’s motion to withdraw on November
13, 2018. (ECF No. 99.)

Plaintiff thereafter moved and was granted leave to file an amended
complaint. Plaintiff filed her Amended Complaint on March 4, 2019. (ECF No.
118.) Mr. Marshall and Ms. Boles filed separate Answers on March 14, 2019.
(ECF Nos. 122, 123.) The following day, they each filed an “Addendum” to their
Answers, which read in relevant part: “Defendant [Barbara Boles/LarryMarshall]’s
Answer to Second Amended Complaint, as well as this Addendum, was [sic]
drafted with the assistance of a lawyer licensed to practice in the State of
Michigan, pursuant to Michigan Rule of Professional Conduct 1.2(b).” (ECF Nos.
124, 125.) Mr. Marshall and Ms. Boles thereafter filed separate motions for
summary judgment. (ECF Nos. 148, 149.) In the case caption of their motions,
Mr. Marshall and Ms. Boles include this statement: “Drafted with the assistance of
a lawyer licensed to practice in the State of Michigan, pursuant to Michigan Rule
of Professional Conduct 1.2(b). It is no secret that R.J. Cronkite from Maddin
Hauser is the lawyer assisting Mr. Marshall and Ms. Boles. (See Mot. Ex. A, ECF
No. 151-2.)
Plaintiff is now seeking to strike Mr. Marshall’s and Ms. Boles’ answers and
motions, arguing that they are “ghostwritten” and therefore violate Rule 11 of the
Federal Rules of Civil Procedure and Eastern District of Michigan Local Rule

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83.25(a).1 (ECF No. 151.) Plaintiff moves to strike Mr. Marshall’s and Ms. Boles’
filings pursuant to Federal Rule of Civil Procedure 12(f).
Rule 12(f) reads:
The court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter. The court
may act:
(1) on its own; or
(2) on motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days after
being served with the pleading.
Fed. R. Civ. P. 12(f). As an initial matter, Mr. Marshall’s and Ms. Boles’ motions
for summary judgment are not “pleadings.” See Fed. R. Civ. P. 7(a) (defining
“pleadings” as “a complaint and an answer; a reply to a counterclaim denominated
as such; an answer to a cross-claim…; a third-party complaint … and a third-party
answer …”). As such, Rule 12(f) does not provide a basis for striking their
motions.2 See Fox v. Mich. State Police Dep’t, 173 F. App’x 372, 375 (6th Cir.

In her motion to strike, filed April 22, 2019, Plaintiff also asks the Court to stay
the briefing schedule on Mr. Marshall’s and Ms. Boles’ summary judgment
motions pending the disposition of the motion. On April 24, 2019, the Court
entered a text-only order staying briefing until the Court issues its decision on the
motion to strike.
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Courts do have the inherent power to “manage their own affairs so as to achieve
an orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S.
626, 630-31 (1962). However, the Court does not believe that striking Mr.
Marshall’s and/or Ms. Boles’ answers and motions help it to control its docket.
Instead, doing so would only make it more difficult for the Court to manage and
expeditiously resolve Plaintiff’s claims.
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2006) (“Exhibits attached to a dispositive motion are not ‘pleadings’ within the
meaning of Fed. R. Civ. P. 7(a) and are therefore not subject to a motion to strike
under Rule 12(f).”). Moreover, “[m]otions to strike are viewed with disfavor and
are not frequently granted.” Operating Eng’rs Local 324 Health Care Plan v. G &
W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015) (citing Brown & Williamson
Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953) (“action of
striking a pleading should be used sparingly by the courts” and should be “resorted
to only when required for the purposes of justice” and when “the pleading to be
stricken has no possible relation to the controversy”). In any event, none of the
reasons for striking pleadings apply to the subject filings.
Plaintiff does not suggest that Mr. Marshall or Ms. Boles have asserted an
“insufficient defense” in their answers or motions. See Fed. R. Civ. P. 12(f). Nor
does Plaintiff explain how these filings are “redundant, immaterial, impertinent, or
scandalous.” See id. “Courts have generally decided to strike portions of a
pleading for being impertinent or scandalous only where the language is extreme
or offensive.” Penman v. Correct Care Sols., No. 5:18-cv-58, 2018 WL 6241621,
at *1 (W.D. Ky. Nov. 28, 2018) (citing cases). “‘Scandalous allegations’ generally
means ‘any allegation that unnecessarily reflects on the moral character of an
individual or states anything in repulsive language that detracts from the dignity of
the court.’” Id. (quoting Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003)).
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“‘An allegation is ‘impertinent’ or ‘immaterial’ when it is not relevant to the issues
involved in the action.’” Id. (quoting L & L Gold Assoc., Inc. v. Am. Cash for
Gold, LLC, No. 09-10801, 2009 WL 1658108, at *1 (E.D. Mich. June 10, 2009)).
To the extent Plaintiff instead is seeking to strike the pleadings as a sanction
for a Rule 11 violation, the Court does not find such an action warranted. Courts
express “concern” or “discontent” for ghostwriting for two specific reasons. First
is the “undue advantage gained when unidentified attorneys author ‘pro se’
pleadings” because “we afford a pro se litigant’s pleadings a more liberal
construction than those drafted by an attorney.” Barnett v. LeMaster, 12 F. App’x
774, 778 (10th Cir. 2001) (italics removed); Kircher v. Charter Twp. of Ypsilanti,
No. 07-13091, 2007 WL 4557714, at *4 (E.D. Mich. Dec. 21, 2007). The second
is that ghostwriting “allows counsel to escape the obligation imposed on members
of the bar under Rule 11 of representing to the court that there is good ground to
support the assertions made.” Kircher, 2007 WL 4557714, at *4 (internal
quotation marks and citation omitted); Barnett, 12 F. App’x at 778 (“the failure to
sign a pleading shields an attorney from responsibility and accountability for his
actions”).
Here, however, Mr. Marshall and Ms. Boles have been forthright about the
help they received from a lawyer in preparing their answers and motions. There
has been no misrepresentation to the Court or the parties regarding the source of
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these filings. As such, the Court would not be inclined to afford the submissions a
more liberal construction and thus provide any undue advantage to these
defendants.
Because the Court and the parties are well aware of who drafted the filings,
that individual is not shielded from responsibility or accountability for his actions.
Moreover, Plaintiff fails to identify anything sanctionable with respect to Mr.
Marshall’s or Ms. Boles’ filings other than that the documents are not signed by
the attorney who assisted in drafting them. Even if ghostwriting should be
condemned, striking the answers and motions will not punish the individual whose
conduct Plaintiff asserts is problematic. Instead, it only punishes these pro se
defendants.
For these reasons, the Court is denying Plaintiff’s motion to strike and lifts
the stay of the briefing period on Mr. Marshall’s and Ms. Boles’ pending motions
for summary judgment.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 2, 2019
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, May 2, 2019, by electronic and/or U.S.
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First Class mail.
s/ R. Loury
Case Manager

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