United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti United States Magistrate Judge
AND ORDER DENYING PLAINTIFF'S MOTION APEALING [SIC] ORDER
, DENYING DEFENDANTS' MOTION TO DISMISS  AS MOOT,
DENYING PLAINTIFF'S MOTION FOR PERSONAL SERVICE ON DANIEL
BERNARD BY THE U.S. MARSHALS  AS MOOT, AND DISMISSING
COUNTS I-VI OF PLAINTIFF'S AMENDED COMPLAINT
Gershwin A. Drain United States District Court Judge
Hawthorne-Burdine (“Plaintiff”) filed a complaint
alleging discrimination by her past employer, Oakland
University, Medicolegal Services, 28 individually-named
defendants, and 100 John Does (collectively,
“Defendants”) on September 16, 2015. See
Hawthorne-Burdine v. Oakland Univ., 158 F.Supp.3d 586
(E.D. Mich. 2016). The Court granted Defendants' Motion
to Dismiss and/or Motion for Summary Judgment on January 27,
2016, finding that the majority of Plaintiff's claims
against Oakland University were barred by the Eleventh
Amendment. See id. All of Plaintiff's federal
claims were dismissed with prejudice, while her state law
claims were dismissed without prejudice. See id.
Plaintiff filed a timely appeal.
than wait on resolution of the first case's appeal before
the Sixth Circuit, Plaintiff filed the present case on August
29, 2016. See Dkt. No. 1. The case was initially
assigned to Judge Stephen J. Murphy III, who granted
Plaintiff's in forma pauperis
request. See Dkt. No. 4. The case was
subsequently reassigned pursuant to Local Rule 83.11. E.D.
Mich. LR 83.11(7)(D).
after summons were issued for Defendants based on the
original complaint, Plaintiff filed an amended complaint,
adding four new claims for a total of 21 counts, and naming
Defendants' previous attorney as a new defendant.
See Dkt. No. 12, 14. The amended complaint is 83
pages long and the exhibits are 190 pages long. See
id. Plaintiff refused to comply with the Court's
order to produce copies of the amended complaint so that the
U.S. Marshals could serve the 32 named Defendants.
See Dkt. No. 15-17. Having not been properly served
with the amended complaint, Defendants, represented by newly
named Defendant Daniel Bernard, filed their Motion to
Dismiss in response to the original complaint on
October 6, 2016. Dkt. No. 18.
Plaintiff's Motion Apealing [sic] the Court's Order
Court interprets Plaintiff's Motion Apealing [sic] Order
Denying Plaintiff's Request is interpreted by the Court
to be a Motion for Reconsideration under Local Rule 7.1(h).
Under this Court's Local Rules, the Court may not grant a
motion for reconsideration that merely presents the same
issues upon which the Court already ruled. LR 7.1(h)(3) (E.D.
Mich. July 1, 2013). Additionally, the movant must
demonstrate that there is a palpable defect in the opinion or
order under attack and that correcting the defect will result
in a different disposition of the case. Id.;
Indah v. U.S. S.E.C., 661 F.3d 914, 924 (6th Cir.
2011). “A ‘palpable defect' is a defect which
is obvious, clear, unmistakable, manifest, or plain.”
Hawkins v. Genesys Health Systems, 704 F.Supp.2d
688, 709 (E.D. Mich. 2010) (quoting Ososki v. St. Paul
Surplus Lines Ins. Co., 162 F.Supp.2d 714, 718 (E.D.
Plaintiff's motion merely presents the same issues
already ruled upon by the Court and offers no evidence of a
palpable defect by which the Court was misled, the Court
denies Plaintiff's Motion Apealing [sic] the Court's
earlier order. Plaintiff does not have a right to have the
Court finance the cost of her litigation.
worth noting that Defendants have a right to be timely served
with a current and correct copy of the complaint, upon which
they must rely in hiring an attorney and drafting an answer.
When defendants are not properly and timely served with an
amended complaint, issues like the current problem are likely
to occur, wherein time and effort are wasted addressing a
pleading that is no longer current. See Dkt. No. 18
(requesting dismissal of Plaintiff's now moot complaint,
as the parties were never served her amended complaint prior
to the filing of the motion to dismiss).
because all named Defendants are now represented by
counsel-except for Defendant Daniel Bernard-the Court will
not require that Plaintiff serve physical copies of the
amended complaint upon represented parties. The Court will
allow the represented parties to be served the amended
complaint through their legal counsel appearing on the
Court's record and registered to receive and access
records within the CM/ECF system. Additionally, since
Defendant Daniel Bernard has been served after the filing of
Plaintiff's motion to personally serve him, the Court
will deny Plaintiff's Motion for Personal Service, Dkt.
No. 21, as moot.
Plaintiff's Claims That Were Previously Dismissed With
Prejudice Are Dismissed From The Current Case
a pro se complaint is to be held “hold to less
stringent standards than formal pleadings drafted by lawyers,
” Haines v. Kerner, 404 U.S. 519, 520 (1972),
every plaintiff “must conduct enough investigation to
draft pleadings that meet the requirements of federal
rules.” Burnett v. Grattan, 468 U.S. 42, 50
(1984); see also Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989) (“[T]he Sixth Circuit has held that pro
se complaints must satisfy basic pleading
requirements.”). Attorneys and pro se litigants alike
must certify under Federal Rule of Civil Procedure 11 that
“to the best of [her] knowledge, information, and
belief formed after reasonable inquiry [a complaint] is well
grounded in fact and is warranted by existing law or a good
faith argument for the extension, modification, or reversal
of existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation.”
Burnett v. Grattan, 468 U.S. 42, 51 n.13 (1984).
Under Rule 11, the Court can issue monetary sanctions for a
Plaintiff correctly notes in her amended complaint, her
federal civil rights claims against Oakland University were
dismissed with prejudice in January 2016. Dkt. No. 12, p. 2
(Pg. ID No. 264); see also Hawthorne-Burdine, 158
F.Supp.3d at 606-07. Minimal investigation into the term
“dismissed with prejudice” would lead a
reasonable person to conclude that the Court has made a
determination on the merits, such that the plaintiff is
forbidden from filing another lawsuit based on the same
grounds. Nevertheless, Plaintiff alleges six counts (Counts
I-VI) in her amended complaint that mirror those previously
dismissed with prejudice by the Court on the basis of
Defendant Oakland University's Eleventh Amendment
immunity. Since there has been a final decision on the ...