Cozzens et al v. Lincoln Park, City of
Filing
244
ORDER Denying 238 Joint MOTION for Order; Set R&R Deadline re 229 REPORT AND RECOMMENDATION re 72 Joint MOTION for Sanctions. Objections to R&R due by 11/8/2013, Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES COZZENS and I-75 OUTER
DRIVE ADULT BOOK STORE,
Plaintiffs,
Case No. 08-11778
v.
Hon. John Corbett O’Meara
CITY OF LINCOLN PARK,
a municipal corporation,
Defendant,
and
PAPALAS DRIVE DEVELOPMENT, LLC,
and HDV – LINCOLN PARK LLC,
Intervenors.
__________________________________/
ORDER DENYING MOTION FOR ENTRY
OF ORDER AND SETTING DEADLINE FOR OBJECTIONS
Before the court is Defendant, Intervening Defendants, and Non-Party Lynn
Geist’s motion for entry of order, dated June 7, 2013. Non-parties Cindy Rhodes
Victor and the Victor Firm, PLLC, filed a brief in opposition on June 21, 2013. A
reply brief was filed on July 1, 2013. The court did not hear oral argument.
Plaintiffs brought this suit in 2008, alleging that the City of Lincoln Park
improperly denied them permission to open an adult bookstore. This court
dismissed Plaintiffs’ complaint on March 13, 2009, ruling as follows: “it is clear to
the court that Plaintiffs come before it with unclean hands – they have not been
forthright with the City in seeking a certificate of occupancy for their business.
Plaintiffs have offered no justification for providing an invalid lease to the City, for
failing to disclose the involvement of Seagraves, for misrepresenting the amount of
parking available, or for failing to disclose their true purpose – to open an adult
nightclub. Plaintiffs’ unclean hands foreclose the possibility of equitable relief
from this court.” Docket No. 115 at 6.
Shortly after the complaint was filed, non-party Marion Bednarski filed a
motion to intervene as a defendant, which was later withdrawn. See Docket No. 8.
Bednarski was represented by Cindy Victor and Lynn Geist of the Victor Firm,
PLLC. On December 29, 2008, Defendant and Defendant Intervenors (collectively
“Defendants”) filed a motion for sanctions against Plaintiffs, Anthony Seagraves,
Marion Bednarski, and their respective attorneys. Docket No. 72. This court
referred the motion for sanctions to Magistrate Judge Hluchaniuk on January 5,
2009. Although the court dismissed the case on March 13, 2009, the court noted
that the issue of sanctions remained to be resolved.
Magistrate Judge Hluchaniuk determined that an evidentiary hearing was
-2-
required in order to resolve the motion for sanctions. Extensive testimony was
taken over ten separate days. Magistrate Judge Hluchaniuk issued a thorough,
sixty-three-page report and recommendation on February 6, 2012. The magistrate
judge recommended that the court grant the motion for sanctions against Bednarski
and attorney Lynn Geist, but not against attorney Cindy Victor. The parties agreed
to delay filing objections to the report and recommendation until the court ruled
upon the Victor Firm’s motion to withdraw as counsel for Bednarski, and until the
court ruled upon Defendants and Lynn Geist’s motion for entry of order. The court
permitted the Victor Firm to withdraw, although it retained jurisdiction to consider
sanctions. Now the court considers the pending motion for entry of order.
Defendants and Geist have reached a settlement of the sanctions motion
against her, provided that Defendants’ claims against Bednarski, Victor, and the
Victor Firm are preserved and that Geist assists Defendants in prosecuting their
sanctions claims. Defendants seek to interview Geist and submit her affidavit to
the court in support of their objections to the report and recommendation. In
return, Defendants will withdraw their motion for sanctions against Geist, only.
Further, Defendants seek a ruling from the court that “based upon findings of the
Report and Recommendation, correspondence and communication between,
among, or involving Bednarski, Seagraves, Victor, Geist, and the Victor Firm,
-3-
relating to the representation of Bednarski and/or to any involvement or contacts
that Geist, Victor, or The Victor Firm may have had with Seagraves with regard to
this action are not governed by the attorney/client privilege or work product
doctrine.” Docket No. 238 at 3.
The court is not inclined to sign the order as proposed by Defendants. The
magistrate judge has determined that Geist engaged in sanctionable conduct by
filing “substantially meritless” objections to the depositions of Bednarski, Cozzens,
and Seagraves: “Geist knew them to be substantially meritless when they were
filed and they were primarily intended to prevent the disclosure of information that
was detrimental to the interests of Bednarski.” R & R at 61.1 The magistrate judge
further concluded that the “evidence in this case does not demonstrate that Victor
was directly involved in the meeting where the plan to delay the depositions of
Cozzens, Seagraves and Bednarski was made nor was she involved in the
execution of that plan by filing the motion for a protective order and the objections
to the subpoena dues tecum.” Id. The magistrate judge found that sanctions were
warranted against Geist, but not Victor.
Now Geist and Defendants seek to submit an affidavit that will presumably
1
The court will determine whether and to what extent it will accept the report and
recommendation after reviewing any objections submitted by the parties.
-4-
implicate Victor and support Defendants’ request for sanctions against her.
Although it is within the court’s discretion to accept additional evidence at this
stage, it is not inclined to do so under the circumstances presented. Extensive
testimony has already been taken in this matter, significantly more than was
considered on the merits, which were resolved on a motion for summary judgment
in 2009. Should the court accept Geist’s affidavit, fairness would require Victor to
respond and perhaps cross-examine Geist. Additional evidentiary hearings would
further delay this matter, which is overdue for resolution.
Further, although Geist’s affidavit may serve to implicate Victor, it does not
appear that such an affidavit would contradict the magistrate judge’s factual
findings regarding Geist’s involvement in this matter. Geist and Defendants
request that this court ignore Geist’s allegedly sanctionable conduct before it has
the opportunity to review the report and recommendation and objections. Geist
and Defendants are free to settle this matter among themselves to an extent;
however, an officer of the court also has the court to answer to, if appropriate.
This issue of what sanctions, if any, are due the court may not be settled among the
parties.
THEREFORE, IT IS HEREBY ORDERED that Defendants’ June 7, 2013
motion for entry of order is DENIED.
-5-
IT IS FURTHER ORDERED that objections to Magistrate Judge
Hluchaniuk’s February 6, 2012 report and recommendation shall be filed by
November 8, 2013, or any such objections will be deemed waived.
s/John Corbett O’Meara
United States District Judge
Date: October 10, 2013
I hereby certify that a copy of the foregoing document was served upon the
parties of record on this date, October 10, 2013, using the ECF system and/or
ordinary mail.
s/William Barkholz
Case Manager
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?