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