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Hawthorne-Burdine v. Oakland University

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

October 31, 2016

Dorothy Hawthorne-Burdine, Plaintiff,
v.
Oakland University, et al., Defendants.

          Anthony P. Patti United States Magistrate Judge

         OPINION AND ORDER DENYING PLAINTIFF'S MOTION APEALING [SIC] ORDER [17], DENYING DEFENDANTS' MOTION TO DISMISS [18] AS MOOT, DENYING PLAINTIFF'S MOTION FOR PERSONAL SERVICE ON DANIEL BERNARD BY THE U.S. MARSHALS [21] AS MOOT, AND DISMISSING COUNTS I-VI OF PLAINTIFF'S AMENDED COMPLAINT

          Hon. Gershwin A. Drain United States District Court Judge

         Dorothy 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.

         Rather 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.[1] See Dkt. No. 4. The case was subsequently reassigned pursuant to Local Rule 83.11. E.D. Mich. LR 83.11(7)(D).

         Immediately 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[2] in response to the original complaint on October 6, 2016. Dkt. No. 18.

         A. Plaintiff's Motion Apealing [sic] the Court's Order Is Denied

         The 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. Mich. 2001)).

         Because 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.[3]

         It is 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).

         Nevertheless, 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.

         B. Plaintiff's Claims That Were Previously Dismissed With Prejudice Are Dismissed From The Current Case

         Although 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 litigant's misconduct.

         As 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 ...


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