United States District Court, E.D. Michigan, Southern Division
MICHELLE H. BAILEY, Plaintiff,
OAKWOOD HEALTHCARE, INC., d/b/a OAKWOOD HOSPITAL & MEDICAL CENTER, Defendant.
Elizabeth A. Stafford United States Magistrate Judge
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
LEAVE TO FILE CORRECTED DECLARATION AND CORRECT SUMMARY
JUDGMENT RECORD (ECF NO. 59)
D. Borman United States District Judge.
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
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.)
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.)
Court set a hearing on Defendant's Motion for Summary
Judgment and Defendant's Motion to Strike Plaintiff's
Declaration for February 1, 2017.
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.)
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
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.
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
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
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. 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).
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,
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
[MR. HANCOCK:] You had a manager. Was she your
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.
BY MR. HANCOCK:
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] ...