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Bailey v. Oakwood Healthcare, Inc.

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

June 2, 2017


          Elizabeth A. Stafford United States Magistrate Judge


          Paul D. Borman United States District Judge.

         I. BACKGROUND

         In this federal civil rights action, Plaintiff alleges that Defendant, her former employer, discriminated against her based on her race, her age, and her pregnancy, and that Defendant retaliated against her for opposing its discriminatory practices.

         Defendant moved for summary judgment on September 2, 2016. (ECF No. 38.) After the parties stipulated to a time extension, Plaintiff filed a Response on October 14, 2016. (ECF No. 41.) Attached to that Response was a post-deposition, 30-page, 200-paragraph “Declaration of Michelle H. Bailey, ” containing statements by Plaintiff regarding the factual aspects of her case, which closed with an assertion by Plaintiff that the statements were “true to the best of [her] knowledge, information and belief.” The Declaration was not signed, sworn, or dated, as required by 28 U.S.C. § 1746. (ECF No. 41 Ex. B.)

         On November 1, 2016, Plaintiff filed a second version of the Declaration, backdated to October 14, 2016, the date of the first filed Declaration, which contained Plaintiff's signature. (ECF No. 44, Bailey Declaration.) This second version was also not sworn. (Id.)

         The Court set a hearing on Defendant's Motion for Summary Judgment and Defendant's Motion to Strike Plaintiff's Declaration for February 1, 2017.[1]

         At the hearing, the Court ordered Plaintiff's Declaration stricken because it violated 28 U.S.C. § 1746, which permits an unsworn statement to suffice for a sworn statement only if it contains an assertion by the signatory that the contents of the document are true under penalty of perjury, the declarant's signature, and the date. (ECF No. 57, Transcript of February 1, 2017 Hearing at 6-7.) Plaintiff's Declaration was neither sworn nor certified as true under penalty of perjury, in clear violation of 28 U.S.C. § 1746. Thereafter, while noting that this issue had been raised by Defendant's Motion to Strike the Declaration that was set for the hearing, the Court nevertheless provided Plaintiff with an opportunity to provide legal authority challenging the Court's ruling. (ECF No. 57, Transcript of February 1, 2017 Hearing at 8.) The Court then postponed the scheduled argument on Defendant's summary judgment motion and the motion to strike the Declaration. (Id. at 7-10.)

         Plaintiff subsequently filed a brief on the § 1746 issue (ECF No. 60), and also filed a Motion for Leave to File Corrected Declaration and to Correct Summary Judgment Record (ECF No. 59). Defendant responded in opposition to each (ECF Nos. 61, 62), and Plaintiff filed a timely Reply (ECF No. 63). Thereafter, Plaintiff filed a “Notice of Supplemental Authority” with regard to the § 1746 issue. (ECF No. 64.)


         The Court finds that none of the authorities cited by Plaintiff establishes that this Court's reliance on the clear language of 28 U.S.C. § 1746 in striking Plaintiffs proposed Declaration on the scheduled date of the hearing on Defendant's motions for summary judgment and to strike Plaintiff's Declaration was contrary to the statute or binding legal precedent.

         Plaintiff directs the Court to its decision in Visteon Glob. Techs., Inc. v. Garmin Int'l, Inc., No. 10-CV-10578, 2014 WL 1028927 (E.D. Mich. Mar. 17, 2014), for the proposition that a motion to correct a summary judgment record “is the proper mechanism in order to seek relief from any defects in the Declaration.” (ECF No. 59 at 2.) However, Visteon concerned a party's motion to amend admissions that had been directed at the wrong set of requests, and did not involve an affidavit or declaration at all. Thus, Visteon has no factual applicability to this case, and it does not support Plaintiff's contention that the Court must award relief to Plaintiff here.

         Plaintiff's other cited cases are both materially distinguishable and nonprecedential. Demara v. Comm'r of Soc. Sec., No. CV 15-12634, 2016 WL 1604700, at *1 (E.D. Mich. Mar. 31, 2016), involved an affidavit filed in support of an in forma pauperis application, while Henry v. State Farm Fire & Cas. Co., No. 14-12004, 2015 WL 4429686 (E.D. Mich. July 20, 2015), did not involve an affidavit or declaration at all. In Oldham v. Heilig-Meyers, 1994 WL 75844 (6th Cir. 1994), the Sixth Circuit mentioned in passing that a district court allowed a party to correct a deficient affidavit, but neither addressed the issue itself nor offered any indication as to when such a decision would be proper, much less required by law. See Id. at *1. And Leininger v. Reliastar Life Ins. Co., No. 06-12249, 2007 WL 2875283 (E.D. Mich. Sept. 28, 2007), as Defendant points out, is distinguishable because the question presented in that case was whether a § 1746 deficiency in a summary judgment affidavit was mooted by the same party's subsequent correction of the error in its reply brief.

         Thus, Plaintiff has not provided (nor is the Court aware of) any authority indicating that the Court's striking of her Declaration as deficient under 28 U.S.C. § 1746 was unlawful.[2] In addition to not providing binding legal authority establishing the illegality of the Court's ruling, Plaintiff's “Brief Allowed By The Court At Its Hearing On February 1, 2017 Regarding Plaintiff's Declaration” (ECF No. 60) contained, as Exhibit A, this Court's previous opinion in Lauderdale v. Wells Fargo, et al., 2012 WL 1714905 (E.D. Mich. May 15, 2012) (Borman, J.) (refusing to consider, on summary judgment, a Declaration not made under penalty of perjury as required under 28 U.S.C. § 1746), aff'd 552 F.App'x 566 (6th Cir. 2014). The United States Court of Appeals for the Sixth Circuit affirmed. 552 F.App'x 566 (6th Cir. 2014).

         The Court notes that in the instant case, during the course of Plaintiff's five-hour deposition, Plaintiff's counsel seized the opportunity to examine his client extensively with regard to her claims in this case. Plaintiff's counsel examined her on three separate occasions in that deposition, comprising 36 pages of testimony. (ECF No. 38 Ex. 4, Deposition of Michelle Bailey 171-201, 216:1-218:16, 221:2-222:11.)

         The Court also notes that Plaintiff's counsel acted improperly on multiple occasions during Plaintiff's deposition to interfere with and indeed derail defense counsel's proper attempt to examine his client. This resultant misconduct by Plaintiff's counsel provided him with additional opportunities to bolster his client's case at the expense of Defendant's opportunity to challenge her claims. The deposition transcript reveals that time and again, Plaintiff's counsel violated this Court's Civility Principles toward opposing counsel[3]:

[MR. HANCOCK:] You had a manager. Was she your superintendent?
A. Yes, she was my manager.
MR. WAHL: You already asked that, Counsel. You're stuck in the mud? Do you need help to get out of the same line of questioning? Maybe it's because, by repetition, you think it's more effective.
Q. Now, did you ask for any time to consider what they had given you at this meeting?
A. To consider it in what regard?
Q. To come back with a response or come back with records or come back with anything.
MR. WAHL: She asked for records. But go ahead and answer.

(Bailey Dep. 137:22-138:10.)

[MR. HANCOCK:] Okay, is there any error in what's on this document -- now, what's on this document, Deposition Exhibit Number 9, is a title and a period of time that you, on one of the two applications, said you worked in that Job?
MR. WAHL: Forty minutes ago, she said the document was accurate. Why are you -- are you stuck somewhere? Is there some assistance I can give you? She's already agreed to that. Do you want her to agree again?

(Bailey Dep. 139:4-13.)

MR. WAHL: . . . Now, where are you reading from [on page] ...

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