United States District Court, E.D. Michigan, Southern Division
R. Grand, United States Magistrate Judge
AND ORDER DENYING PLAINTIFF'S MOTION TO AMEND, ALTER, OR
RECONSIDER THE COURT'S ORDER  AND DENYING
DEFENDANT'S MOTION FOR ORDER TO SHOW CAUSE WHY PLAINTIFF
AND PLAINTIFF'S COUNSEL SHOULD NOT BE HELD IN CONTEMPT
AND FOR SANCTIONS 
Gershwin A. Drain, United States District Court Judge
6, 2014, Plaintiff filed this lawsuit against Defendants.
Dkt. No. 1. On February 14, 2017, a jury rendered a verdict
for Defendants on all remaining counts. Dkt. No. 162.
Plaintiff appealed. Dkt. No. 165. On May 25, 2017, the Court
of Appeals for the Sixth Circuit dismissed Plaintiff's
appeal. Dkt. No. 167.
parties have asked the Court to hold an additional,
post-trial hearing on their motions for sanctions against
each other, which the Court was unable to resolve prior to
trial. See Dkt. Nos. 121, 148. Upon review of the
pleadings, the Court finds that oral argument will not aid in
the disposition of this matter. Accordingly, the Court will
decide these matters on the pleadings. See E.D.
Mich. LR 7.1(f)(2). For the reasons stated herein, both
motions are denied.
Plaintiff's Motion to Amend, Alter, or Reconsider the
Court's September 28, 2016 Order
brought this motion for sanction under Federal Rules of Civil
Procedure 59(e) and 60(b), arguing that the Court should
reconsider its prior order denying Plaintiff sanctions.
See Dkt. Nos. 112, 116, 121. Plaintiff's
attorney filed a supplemental brief on this motion on
December 7, 2016, without seeking leave of court. Dkt. No.
140. The Court will not consider Plaintiff's supplemental
brief because Plaintiff did not seek or receive permission to
file a supplemental brief, and because this filing was
untimely. See Jones v. Northcoast Behavioral Healthcare
Sys., 84 F. App'x 597, 599 (6th Cir. 2003) (finding
a district court did not abuse its discretion in striking a
supplemental pleading where it was untimely and filed without
leave of court).
motion raises new arguments and cases that he did not present
to the Court in his prior motion for sanctions. See
id. Although Plaintiff argues his motion for
reconsideration arises under Federal Rule of Civil Procedure
59(e), “[a] plaintiff cannot use a Rule 59 motion . . .
‘to raise arguments which could, and should, have been
made before judgment issued.' ” Leisure Caviar,
LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 616
(6th Cir. 2010) (quoting Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.
1998)). Plaintiff's argument under Rule 59(e) relies
entirely on cases that could have been presented in his
earlier motion for sanctions. Accordingly, the Court will not
grant Plaintiff relief under Rule 59(e).
Plaintiff has failed to demonstrate the fraud,
misrepresentation, or misconduct by Defendant that he argued
qualifies the motion under Federal Rule of Civil Procedure
60(b). Dkt. No. 121, p. 24 (Pg. ID 3411). Plaintiff argues
that the Court relied on Defendants' counsel's
representations at the hearing that video footage from the
jail exists and disproves Plaintiff's allegations. Dkt.
No. 121, p. 25 (Pg. ID 3412). There is no question that the
Court did not rely on Defendants' counsel's statement
that the video disproved Plaintiff's allegations, as the
order explicitly states, “the video may serve to prove
or disprove” Plaintiff's allegations. Dkt. No. 116,
p. 6 (Pg. ID 3378). Although Plaintiff's expert failed to
find the portions of the video depicting Plaintiff at the
time Plaintiff's motion was filed, he later was able to
find that portion of the video, which both parties utilized
at trial. Plaintiff has not demonstrated fraud by the City of
Ecorse or any other reason for reconsidering the Court's
prior order on this issue.
after considering the exhibits attached to Plaintiff's
motion and the testimony of witnesses at trial, the Court
concludes that there is no evidence to substantiate
Plaintiff's claim that video footage was missing from the
hard drive or that the City of Ecorse otherwise intentionally
destroyed evidence. Plaintiff's motion  is DENIED.
Defendants' Motion For Order To Show Cause Why Plaintiff
And Plaintiff's Counsel Should Not Be Held In Contempt
And For Sanctions
seek sanctions against Plaintiff and his counsel for
violating a protective order by posting portions of the jail
video, which depicted Plaintiff being tased by Defendant
Trevino, on the internet and for Plaintiff's
counsel's repeated failure to comply with the Court's
Local Rules and Court-ordered deadlines. Dkt. No. 148.
Several of the remedies requested by Defendants- namely,
dismissal under Federal Rules of Civil Procedure 37(b)(2)(B)
and 41(b)- are no longer applicable. Thus, the Court will
examine whether monetary sanctions are appropriate.
after Defendants notified the Court that Plaintiff and his
counsel violated the protective order, the Court held a
conference. Plaintiff's counsel verified that the videos
had been removed from public view. Defendants have not
provided the Court with evidence demonstrating that
Plaintiff's and counsel's violations of the
protective order were intentional or in bad faith, rather
than an inadvertent failure to remember the precise terms of
the protective order. Additionally, Plaintiff and counsel
quickly removed the videos upon being reminded of the protect
order, evincing that this violation was not based on an
intent to thwart judicial proceedings or in reckless
disregard for the effect of their conduct. Finally,
Defendants have not provided any evidence that Plaintiff and
counsel's dissemination of the jail video prejudiced
their case-no one in the jury pool was previously aware of
the video and the jury ultimately rendered a verdict in their
favor. In sum, considering the totality of the circumstances,
the Court does not believe Rule 37 sanctions are appropriate.
also request costs, expenses, and attorney fees under 28
U.S.C. § 1927. Section “1927 sanctions require a
showing of something less than subjective bad faith, but
something more than negligence or incompetence.”
Red Carpet Studios Div. of Source Advantage, Ltd. v.
Sater, 465 F.3d 642, 646 (6th Cir. 2006). Defendants
correctly note that that Plaintiff's counsel has failed
to comply with Local Rules, Court orders, and case deadlines
on multiple occasions. However, Defendants have not shown
that Plaintiff's counsel's actions exceeded mere
negligence or incompetence. Additionally, the Court notes
that four years elapsed between when Plaintiff first
requested the jail videos and when Defendants finally
produced them. Given that Defendants' failure to