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Murphy-Goodrich v. City of Dearborn

United States District Court, E.D. Michigan, Southern Division

January 12, 2015

VALERIE MURPHY-GOODRICH, Plaintiff,
v.
CITY OF DEARBORN, Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF HER MOTION TO COMPEL DEPOSITION OF WILLIAM IRVING, COUNSEL FOR DEFENDANT, AND DISQUALIFY DEARBORN CORPORATION COUNSEL [78]

LAURIE J. MICHELSON, District Judge.

Plaintiff Valerie Murphy-Goodrich served as the Human Resources Director for the City of Dearborn from 1994 until Dearborn's Civil Service Commission terminated her employment in 2012. Murphy-Goodrich believes that her termination breached an employment contract and violated Title VII.

On November 13, 2014, Plaintiff filed a motion seeking to depose defense counsel, William Irving, and to disqualify him as trial counsel. The motion also claimed that Dearborn Corporation Counsel Debra Walling was a necessary trial witness and thus, she should be disqualified from representing the City of Dearborn as well. In supplemental briefing, however, Defendant advised that Debra Walling will not serve as trial counsel in this matter. The sole basis of the motion was Michigan Rule of Professional Conduct 3.7(a) which involves trial counsel as a necessary witness. The motion made no reference to Rule 3.7(b) which involves imputed disqualification.

In denying Plaintiff's motion, the Court found that Mr. Irving was not a necessary witness and did not need to be deposed. The Court also ruled that it doubted Debra Walling was a necessary trial witness but even if she was, that was not a basis for disqualifying Mr. Irving under Rule 3.7(a). Lastly, the Court declined to address whether Mr. Irving (or the entire Dearborn Corporation Counsel) should be disqualified under Rule 3.7(b) because Plaintiff failed to brief the issue.

Plaintiff seeks reconsideration of this last ruling. To the extent Plaintiff contends she did raise Rule 3.7(b) in her motion, the Court finds this contention specious. Moreover, even considering Rule 3.7(b), there is no basis for disqualifying Dearborn Corporation Counsel at this stage of the case. Thus, the Motion for Reconsideration will be DENIED.

I. BACKGROUND

While Defendant City of Dearborn contends that no reasons were needed to terminate Plaintiff's employment because, under the City Charter, she served "at the pleasure of the [City of Dearborn Civil Service] Commission" (Charter ยง 11.2), they provided several grounds in Plaintiff's Notice of Termination (Mot. to Disqualify, Ex. E). One of the reasons involved Plaintiff's handling of two situations involving Civil Service Commissioner Marge Powell.

The first involved Plaintiff's preparation of a civil-service-commission meeting agenda. Powell was the Civil Service Commissioner appointed by the four other Commissioners. When her term ended, the Commissioners had the option to either reappoint her or appoint someone else. This issue was addressed at a meeting of the Commissioners. Plaintiff drafted the agenda item for the meeting. It stated, "reappointment of Marge Powell." Evidently, several of the Commissioners found this to be misleading (in their view, it implied that no one else could be reappointed). This was one of the reasons given by the City for terminating Plaintiff. Plaintiff responds that this is an invalid basis for her termination because the agenda item was reviewed and approved by Dearborn Corporation Counsel. The specific lawyer who handled this issue was Kimberly Craig. She has been deposed and can testify at trial. Neither William Irving nor Debra Walling are necessary or likely witnesses on this issue.

Following Powell's reappointment in 2009, she failed to timely take the oath of office. Dearborn Corporation Counsel Debra Walling prepared a memorandum for the Commissioners that set forth two alternatives to remedy this situation: (1) Powell could ask the Commissioners to extend the time to take the oath or (2) the Commissioners could reappoint Powell to fill the vacancy that was created when she failed to take the oath in a timely manner. (Mot. to Disqualify, Ex. G.) Corporation Counsel recommended the first option. The Commissioners did not follow this recommendation. They opted not to reappoint Powell. Plaintiff apparently spoke out against this decision at a subsequent City Council meeting and expressed her support for Powell's reappointment. This was another reason the City of Dearborn gave to support her termination. All of the Commissioners who received the memo from Walling have (or could have) been deposed. They are all capable of testifying about the memo they received from Walling, why they decided not to appoint Powell, and how they reacted to Plaintiff speaking out against their decision.[1]

In her motion to compel and disqualify, Plaintiff contended that, given Irving and Walling's involvement in these issues, and that Irving verified Defendant's interrogatory answers, they are necessary trial witnesses and thus, Irving should be deposed and Dearborn Corporation Counsel should be disqualified from representing the City. The Court disagreed. The Court found that Plaintiff failed to satisfy the test adopted by the Sixth Circuit in Nationwide Mut. Ins. Co. v. Home Ins. Co., 276 F.3d 621, 628 (6th Cir. 2002), for deposing opposing counsel. The Court also found that Michigan Rule of Professional Conduct 3.7 did not warrant the disqualification of Mr. Irving as trial counsel.

Plaintiff asks the Court to revisit its decision.

II. ANALYSIS

To prevail on a motion for reconsideration, the movant must show the existence of a palpable defect that misled the parties and court and the correction of such defect would result in a different disposition of the case. E.D. Mich. L.R. 7.1(h)(3). A defect is palpable if it is "obvious, clear, unmistakable, manifest, or plain." Olson v. Home Depot, 321 F.Supp.2d 872, 874 (E.D. Mich. 2004). The Court will not grant a motion for reconsideration ...


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