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Fuller v. Kerr

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

April 1, 2015

THOMAS LEROY FULLER (#237590), Plaintiff,
v.
DAVID KERR, GARY DAVIS, JANET COCHRAN and JOHN HAWLEY, Defendants.

ORDER (A) GRANTING PLAINTIFF'S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA (DE 47) AND REQUIRING A RESPONSE; (B) STAYING DEFENDANTS' DISPOSITIVE MOTION (DE 48) and (C) DEEMING MOOT IN PART AND GRANTING IN PART PLAINTIFF'S MOTION FOR EXTENSION AND/OR TO STAY (DE 52)

ANTHONY P. PATTI, Magistrate Judge.

A. Introduction

Currently, there are five (5) motions pending before the Court. DE 20, DE 38, DE 47, DE 48 and DE 52. Among these are (A) Plaintiff's December 29, 2014 motion to compel compliance with subpoena (DE 47); (B) Defendants' December 31, 2014 motion to dismiss and for summary judgment (DE 48) and (C) Plaintiff's February 12, 2015 motion for extension and/or to stay (DE 52).

This order resolves two (2) of the pending motions.

B. Discussion

1. Motion to Compel Compliance with Subpoena (DE 47)

Col. Kriste Kibbey Etue is the Director of the Michigan State Police (MSP). See www.michigan.gov/msp, "About Us, " "Meet the Director." On or about August 28, 2014, Plaintiff served Etue with a subpoena to produce a certified copy of CR-94708-14. DE 47 at 5-7. According to Plaintiff, this file "pertains to the Assault and Battery investigation of Defendant David Kerr against Plaintiff." DE 47 at 1 & 2.

Plaintiff received a response from Renee Hultberg, MSP Assistant Freedom of Information Act (FOIA) Coordinator, on September 11, 2014; however, according to Plaintiff, the response did not include the information it purportedly enclosed. DE 47 at 1 & 3. On September 17, 2014, Plaintiff wrote back to inform Hultberg that the requested information had not been enclosed; however, Hultberg has not acknowledged Plaintiff's letter, nor has Plaintiff been provided with the information as requested in the subpoena. DE 47 at 2 & 4.

On December 29, 2014, Plaintiff filed a verified motion (DE 47) to compel compliance with the subpoena served on Col. Etue. DE 47 at 3. Plaintiff claims that the information sought in CR-94708-14 "is necessary for the trial preparation in this matter." According to Plaintiff, he Acannot obtain the information contained in the investigation report by [any] other means." DE 47 at 2 & 5. In support of his motion, Plaintiff cites Fed.R.Civ.P. 45 (DE 47 at 1, 4) and relies upon Exxon Shipping Co. v. U.S. Dept. of Interior, 34 F.3d 774 (9th Cir. 1994)[1] and United States v. Nixon, 418 U.S. 683 (1974) (DE 47 at 2 && 6, 7). In sum, Plaintiff requests:

... that the Court enter an Order Compelling Colonel Kriste Kibbey Etue to Comply with the command of the subpoena served on her on August 28, 2014 and provide Plaintiff with a certified copy of State Police files: CR-94708-14 and S-96315-14 concerning the investigation of the ass[au]lt and battery of Plaintiff by Defendant David Kerr within ten (10) days of the Order comp[ell]ing her compliance or be held in contempt of court.

DE 47 at 2. There has been no response to this motion. While Etue is not a party to this case, Plaintiff's certificate of service indicates that a copy of his December 29, 2014 motion (DE 47) was mailed to Etue at 333 South Grand Street, P.O. Box 30634, Lansing, Michigan 48909. See DE 47 at 3. According to the MSP website, the MSP Headquarters are located at 333 S. Grand Ave., P.O. Box 30634, Lansing, MI XXXXX-XXXX. Therefore, the Court assumes that Etue received the motion and has no substantive objections to the subpoena underlying it.

2. Motion for Extension and/or to Stay (DE 52)

The Court's January 22, 2015 order (DE 51) originally set Plaintiff's deadline to respond to Defendants' December 31, 2014 dispositive motion (DE 48) for March 9, 2015. Plaintiff ...


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