Howlett v. City of Warren

          ORDER DENYING MOTION FOR SANCTIONS (ECF NO. 68), MOTION TO REFER MATTER TO MAGISTRATE OR APPOINT SPECIAL MASTER (ECF NO. 87), AND MOTION FOR LEAVE TO FILE A SUPPLEMENT TO MOTION FOR SANCTIONS (ECF NO. 90)

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.

         I. Introduction

         On September 28, 2018, counsel for Defendants filed a “Motion for Sanctions, Costs, and Attorneys' Fees on Behalf of Defendants[.]” ECF No. 68. The motion seeks “an appropriate sanction, ” against Plaintiff and her counsel, as well as costs and attorneys' fees for “violation of this Court's Order and Bench Order, ” Michigan Rule of Professional Conduct 3.6, and 28 U.S.C. § 1927.

         On December 21, 2018, counsel for Defendants filed a “Motion to Refer the Matter to the Magistrate or Appoint a Special Master to Review the Parties' Factual Presentations.” ECF No. 87. The motion seeks to either refer the case to a Magistrate Judge or to appoint a Special Master “to ascertain whether there are any genuine issues of material fact[.]”

         On January 29, 2019, counsel for Defendants filed a “Motion for Leave to File a Supplement to Their Motion for Sanctions, Costs, and Attorneys' Fees[.]” ECF No. 90. This motion seeks to introduce more alleged evidence of misconduct by Plaintiff's counsel, in support of Defendants' earlier motion for sanctions.

         For the reasons outlined below, Defendant's Motion for Sanctions, Costs, and Fees is DENIED. Defendant's Motion to Refer the Matter to the Magistrate or Appoint a Special Master to Review the Parties' Factual Presentations is DENIED. and Defendant's Motion for Leave to File a Supplement to Their Motion for Sanctions, Costs, and Attorneys' Fees is DENIED.

         II. Motion for Sanctions, Costs, and Fees

         Defendants claim that,

Plaintiff counsel's actions of filing Mayor Fouts' deposition excerpts in the public violates this Court's August 6, 2018 Bench Order directives (Doc. 60), where this Court specified that only relevant and appropriate transcript excerpts can be filed in support of motions. (Ex. 3, August 6, 2016 Transcript, p. 21). Defendants implore this Honorable Court to utilize its inherent power to impose appropriate sanctions for Plaintiff counsel's publicity seeking activities.

ECF No. 68, PageID.5923. Defendants claim that Plaintiff's Attorney Mungo has made several statements to the news media in defiance of an order from this Court, and for the purpose of prejudicing a future possible jury pool. Defendant describes one instance in which Plaintiff's Attorney Mungo told a news reporter “that he would be filing a Motion for Summary Judgment with the Mayor's deposition testimony attached to the pleading.” ECF No. 68, PageID.5917. In support of this, Defendants cite to an affidavit from fellow Defendant Attorney Vinson, who asserts that he overheard this interaction. ECF No. 68-3. Defendant Attorney Vinson says that he “overheard Plaintiff's counsel [Mungo] tell the news reporter that he was going to be filing a Motion for Summary Judgment where this reporter could then see the Mayor's deposition testimony as it would be attached to the pleading.” Id. at PageID.6012. Defendant Attorney Vinson, based on that interaction, “came to the direct conclusion that Plaintiff's counsel would notify the news media as soon as he filed his Motion.” Id. Defendant Attorney Vinson does not explain why he came to that conclusion, nor why it would matter if Plaintiff's counsel informed the news media that a publicly-available document had been filed.

         Defendants further claim that Plaintiff's counsel's questioning regarding audiotapes that allegedly contain Mayor Fouts' voice “was fully designed to negatively publicize and tear down the credibility and reputation of the Mayor.” ECF No. 68, PageID.5918-19. Defendant says that the Court in its September 20, 2018 Order “recognized” the “fact” that Defendants' position is that “statements Mayor Fouts allegedly made captured on audiotape and aired on WDIV Channel 4[ ] are neither authenticated, relevant nor admissible and will be subject to a Motion in Limine.” Id.

         Defendants cite this Court's various orders not to make any statements to the media that are intended to have a substantial likelihood of materially prejudicing this case, or that regard the character, credibility, or reputation of any party or witness to the case. ECF No. 73, PageID.7479. Defendants also reiterate this Court's direction that Plaintiff's counsel should constrain his deposition of Mayor Fouts to information that relates to a possible Monell^[1] claim. Id. Lastly, Defendants cite to this Court's reminder that the purpose of a deposition is not to create a public news story about the incident. Id. Despite citing to these orders by the Court, Defendant fails to identify with specificity how exactly Plaintiff's counsel violated any of these orders or directions. Plaintiff's counsel's statement to the press, even as characterized by Defendants, was merely that he would be filing a document. As this document would be publicly-available anyway, Plaintiff's counsel's statement-contained no value judgment of any kind about any aspect of this case-presents no danger of prejudicing a possible future jury pool. Furthermore, deposition questions directed toward testing whether city officials are motivated by racist and sexist attitudes-such as those that appear to be expressed by the speaker on the audiotapes in question- are probative of a possible Monell claim, if those officials have any influence over the policy and procedures or culture of the Police department. Monell claims do not relate only to official lines of supervision and hierarchy.^[2] Monell liability may also be established where it is shown that policymakers allow a culture of discrimination or indifference to continue, in disregard for the consequences of such action.^[3] If Courts were constrained to apply liability only where a written policy clearly establishes discrimination, then relief to an aggrieved party would rarely be available. An institution's culture or unofficial hierarchy can be as impactful as any written policy or procedure if it encourages or tolerates discrimination and its harmful effects.

         Defendants fail to identify any sanctionable behavior by opposing counsel. In place of examples of such behavior, Defendants instead decry Plaintiff's counsel's “actions of placing irrelevant and inadmissible testimony into the public record premised upon unauthenticated evidence…to harass and publically disparage a witness.” ECF No. 68, PageID.5922. In its September 20, 2018 Order Denying Motion for Protective Order to Quash Subpoena, this Court said:

The Court is constrained to note that it has not yet made any ruling on whether these tape recordings are relevant or admissible. For reasons unknown the Court, without citation, Defense counsel incorrectly stated in its Motion to Quash the subpoena that "In an Order from the bench, the Court directed, in part, that no video or audio recordings were to be played during the Mayor's deposition." Dkt. 57, Page ID 3439. This is inaccurate. No. such Order, whether from the bench or otherwise, has ever been issued. The question whether any recordings alleged to be of the Mayor are admissible will need to be addressed in a motion ...