Whittie v. River Rouge, City of et al

Filing 28

ORDER denying 17 Emergency Motion to Strike - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DENNIS GARRY WHITTIE,
Plaintiff,

CIVIL ACTION NO. 14-cv-10070

v.

DISTRICT JUDGE JOHN CORBETT O’MEARA

CITY OF RIVER ROUGE
and JEFFREY HARRIS,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendants.
___________________________/

OPINION AND ORDER DENYING DEFENDANTS’
EMERGENCY MOTION TO STRIKE [17]
This matter comes before the Court on Defendants City of River Rouge and Jeffrey
Harris’s Emergency Motion to Strike the FOIA Request of Ronald Dupuis. (Docket no. 17.)
Plaintiff Dennis Garry Whittie responded to Defendants’ Motion (docket no. 19), and
Defendants replied to Plaintiff’s Response (docket no. 22). Mr. Dupuis has not responded to
Defendants’ Motion.

The Motion has been referred to the undersigned for consideration.

(Docket no. 18.) The undersigned has reviewed the pleadings and dispenses with oral argument
pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule
pursuant to 28 U.S.C. § 636(b)(1)(A).
Plaintiff, a part-time police officer employed by Defendant City of River Rouge, initiated
this action on January 7, 2014 pursuant to 42 U.S.C. § 1983, alleging that Defendants violated
his First Amendment Rights and the Whistleblowers’ Protection Act by removing Plaintiff from
the midnight shift and recommending that someone other than Plaintiff be hired as a full-time
police officer. (See docket no. 1.) On March 4, 2015, Plaintiff submitted a Michigan Freedom
of Information Act (FOIA) request to City of River Rouge Police Chief, Deborah Price, on

behalf of his friend and roommate, Ronald Dupuis. (Docket no. 17 at 2; docket no. 17-1; docket
no. 19 at 6.) Chief Price then delivered a copy of the FOIA request to Defendants’ counsel for
review, at which time Defendants’ counsel allegedly discovered that everything requested by
Mr. Dupuis was either requested by Plaintiff during discovery in the instant matter or referenced
by Plaintiff in his deposition or at some point during the discovery period. (Docket no. 17 at 23.) Defendants subsequently filed the instant motion to strike Mr. Dupuis’ Michigan FOIA
request on March 10, 2015, in which they seek a court order (1) denying Mr. Dupuis’ FOIA
request; (2) “[p]rohibiting Plaintiff from using any other sources and/or agents from submitting
similar FOIA requests attempting to circumvent the discovery and FOIA statute;” and (3)
awarding Defendants costs and attorney fees. (Id. at 8.) It is unclear whether Defendants have
responded to Mr. Dupuis’ request as required by the Michigan FOIA statute. See Mich. Comp.
Laws. § 15.235(2).
Michigan’s Freedom of Information Act provides that “[e]xcept as expressly provided in
[Michigan Compiled Laws § 15.243], upon providing a public body's FOIA coordinator with a
written request that describes a public record sufficiently to enable the public body to find the
public record, a person has a right to inspect, copy, or receive copies of the requested public
record of the public body. Mich. Comp. Laws § 15.233(1). A public body, however, may
exempt from disclosure “[r]ecords or information relating to a civil action in which the
requesting party and the public body are parties.”

Mich. Comp. Laws § 15.243(1)(v).

Generally, a public body is required to respond to a request for a public record within five
business days of receiving the request by (1) granting the request; (2) denying the request
through a written notice; (3) granting the request in part and issuing a written notice denying the
request in part; or (4) issuing a notice extending the response period for not more than ten

2

business days. Mich. Comp. Laws § 15.235(2). If a public body denies all or a portion of a
request, the requestor may submit a written appeal to the head of the public body or commence
an action in the circuit court. Mich. Comp. Laws § 15.240(1).
Defendants assert that all of the documents requested by Mr. Dupuis were either
requested by Plaintiff during discovery but objected to by Defendants, referenced by Plaintiff
during his February 12, 2015 deposition, or referenced, but not sought, by Plaintiff during the
discovery process. (Docket no. 17 at 2-3, 4.) The deadline for the completion of discovery was
February 27, 2015. (Docket no. 15.) Defendants claim that Plaintiff is attempting to circumvent
the discovery deadline and the aforementioned exemption in Michigan’s FOIA statute by using
Mr. Dupuis as an agent to gain information concerning this lawsuit. (Docket no. 17 at 3, 8.) In
response, Plaintiff argues that while some of the items requested by Mr. Dupuis are arguably
related to this case, many are not. (Docket no. 19 at 6.) Plaintiff further asserts that the Court
has neither subject matter nor personal jurisdiction over Mr. Dupuis’ Michigan Freedom of
Information Act request and that even if the Court had jurisdiction, Mr. Dupuis’ FOIA request is
not barred by Michigan’s Freedom of Information Act. (Docket no. 19 at 7-11.)
Specifically, Plaintiff argues that the Court lacks subject matter jurisdiction over Mr.
Dupuis’ request under the Court’s Scheduling Order or the Stipulated Protective Order entered in
this matter because Mr. Dupuis’ FOIA request did not arise under the discovery procedures
administered by the Court and Mr. Dupuis is not seeking to receive things via discovery in this
case. (Id. at 7.) Plaintiff also argues that only a Michigan circuit court has authority to rule in
the first instance on whether a Michigan FOIA request should be honored. (Id. at 8 (citing Mich.
Comp. Laws § 15.240).) Additionally, Plaintiff argues that the Court lacks personal jurisdiction
over Mr. Dupuis because Mr. Dupuis has not submitted to this Court’s jurisdiction. (Id. at 8.)

3

Defendants counter that Plaintiff’s jurisdictional argument is without authority and assert that the
Court has jurisdiction because (1) Plaintiff served the FOIA request on behalf of Mr. Dupuis; (2)
the information sought pertains to Plaintiff’s allegations in this matter; and (3) Plaintiff has not
denied Defendants’ allegation that Plaintiff is using Mr. Dupuis’ FOIA request to circumvent the
Court’s Scheduling Order and Protective Order to obtain discovery related to this case. (Docket
no. 22 at 5-6.)
As noted above, Defendants allege that the information sought by Mr. Dupuis is all
information that Plaintiff sought during discovery in this matter, referenced in his deposition, or
otherwise referenced during the discovery process. Defendants, however, did not attach a copy
of Plaintiff’s discovery requests or deposition testimony to the instant motion. Also, Defendants
admit that, other than the information requested by Mr. Dupuis regarding certain April 6, 2013
telephone calls and police recordings, none of the information sought is relevant to the
allegations Plaintiff made in his Complaint. (Docket no. 17 at 4.) Similarly, Plaintiff repeatedly
asserts in his response that while some of the items sought by Mr. Dupuis are arguably related to
this matter, many of the items are “clearly” not related. (Docket no. 19 at 6, 7, 11.) With both
parties asserting that the majority of the requested information is irrelevant or unrelated to this
matter, it is unclear how Plaintiff could be using Mr. Dupuis as an agent to circumvent the
discovery deadline set forth in the Court’s Scheduling Order to gain information concerning this
lawsuit.
Moreover, Defendants’ argument that the parties’ Stipulated Protective Order entered in
this matters protects much, if not all, of the information sought by Mr. Dupuis fails. (See docket
no. 17 at 3.)

The documents sought by Mr. Dupuis under Michigan’s FOIA statute are

presumably public records; the parties’ Stipulated Protective Order protects confidential, non-

4

public information and documents exchanged by the parties in this matter. (See docket no. 17-1;
see docket no. 11.) Furthermore, and most significantly, Defendants have failed to cite any legal
authority regarding the Court’s power to adjudicate a nonparty’s state law Freedom of
Information Act request. While the service, timing, and content of Mr. Dupuis’ FOIA request
may raise some eyebrows, Defendants have not sufficiently demonstrated how the Court has
jurisdiction to strike Mr. Dupuis’ Michigan FOIA request, deny Mr. Dupuis’ Michigan FOIA
request, or prohibit others from filing similar requests under Michigan’s Freedom of Information
Act. Accordingly, the Court will deny Defendants’ Motion to Strike.1
IT IS THEREFORE ORDERED that Defendants’ Emergency Motion to Strike the
FOIA Request of Ronald Dupuis [17] is DENIED. Costs and attorney’s fees are denied to both
parties.

NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen
days from the date of this Order within which to file any written appeal to the District Judge as
may be permissible under 28 U.S.C. § 636(b)(1).

Dated: April 8, 2015

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

1

Because Defendants’ Motion is denied on a jurisdictional basis, the Court will not address the
parties’ arguments regarding whether Mr. Dupuis’ request falls under the “civil action” exemption
to Michigan’s Freedom of Information Act. See Mich. Comp. Laws § 15.243(1)(v).
5

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon Counsel of
Record on this date.
Dated: April 8, 2015

s/ Lisa C. Bartlett
Case Manager

6