1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT DAVIS, 

Plaintiff, 

v. 

PROFESSIONAL REPRESENTATIVES 

ORGANIZATION, ET. AT., 

Defendant. 

Case No. 15-10767 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

R. STEVEN WHALEN

 / 

ORDER: 

(1)OVERRULING PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S ORDER 

[27]; 

(2)DENYING PLAINTIFF’S MOTION TO PRODUCE ANSWERS TO 

INTERROGATORIES AND BRIEF AS MOOT [34]; 

(3)DENYING PLAINTIFF’S AMENDED MOTION TO PRODUCE CORRECTED 

MOTION WITH EXHIBITS ATTACHED [35]; 

(4)DENYING PLAINTIFF’S MOTION TO STRIKE AFFIDAVIT OF SHERRILL [41]; 

(5) GRANTING DEFENDENT’S MOTION TO STRIKE PLAINTIFF’S 

INTERROGATORIES AND REQUEST FOR ADMISSIONS AND TO QUASH 

PLAINTIFF’S SUBPOENA TO PRESIDENT AL GARRETT [48]; 

(6)DENYING PLAINTIFF’S MOTION TO COMPEL ANSWERS TO 

INTERROGATORIES, REQUESTS FOR ADMISSIONS, PRODUCE DOCUMENTS,

AND FOR SANCTIONS AGAINST DEFENDANT AFSCME [58]

(7)DENYING PLAINTIFF’S MOTION TO STRIKE AFSCME MOTION AND 

ANSWER [59] 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 1 of 12 Pg ID 956
2 

 Plaintiff filed objections [27] to the Magistrate Judge’s Order [24] granting 

in part and denying in part Plaintiff’s Emergency Motion to Compel on May 11, 

2015. On August 17, 2015 Plaintiff filed a Motion to Produce Answers to 

Interrogatories and Brief [34] and a Corrected Motion to Produce Answers to 

Interrogatories and Brief [35]. Defendants responded on August 20, 2015 [36]. On 

November 5, 2015, Plaintiff filed a Motion to Strike Affidavit of Sherrill [41], 

which Defendants responded to on November 10, 2015 [42; 43]. Plaintiff replied 

on January 8, 2016 [51]. On January 6, 2016 Defendant AFSCME filed a Motion 

to Strike Plaintiff’s Interrogatories and Requests for Admissions and to Quash 

Plaintiff’s Subpoena [48]. Plaintiff filed a response on January 12, 2016 [52] and 

Defendant AFSCME replied on January 18, 2016 [55]. Plaintiff filed a Motion to 

Compel Answers to Interrogatories, Requests and Subpoenaed Documents on 

January 21, 2016 [58] and also filed a Motion to Strike AFSCME Motion and 

Answer on January 22, 2016 [59]. 

For the reasons stated below, Plaintiff’s objections [27] are OVERRULED. 

Additionally, the following Motions are DENIED: Plaintiff’s Motion to Produce 

[34]; Plaintiff’s Amended Motion to Produce [35]; Plaintiff’s Motion to Strike 

Affidavit of Sherrill [41]; Plaintiff’s Motion to Compel Answers to Interrogatories, 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 2 of 12 Pg ID 957
3 

Requests and Subpoenaed Documents [58]; and Plaintiff’s Motion to Strike 

AFSCME Motion and Answer [59]. 

Defendant’s Motion to Strike Plaintiff’s Interrogatories and Requests for 

Admissions and to Quash Plaintiff’s Subpoena [48] is GRANTED. 

1. PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S ORDER [27] 

a. STATEMENT OF FACTS

Following a hearing concerning Plaintiff’s Emergency Motion to Compel, 

the Magistrate Judge granted the request only to the extent that Plaintiff would be 

able to take the deposition of Kathie Sherrill, and denied Plaintiff’s request to 

depose other members of Defendant Pro Union. On the record, the Magistrate 

Judge indicated that the issues contained in Defendant Michigan AFSCME 

Council 25 (AFL-CIO)’s Motion for Summary Judgment pursuant to F.R.C.P. 

12(b)(6) and 56 [16] were largely questions of law, and there was no need for 

further discovery until this Motion to Dismiss had been ruled on. 

b. STANDARD OF REVIEW

If a litigant expresses an objection to a magistrate judge’s ruling on a 

nondispositive pretrial matter, the district court may “modify or set aside any part 

of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). 

The “clearly erroneous” standard does not permit a district court to reverse the 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 3 of 12 Pg ID 958
4 

magistrate judge's finding simply because the district court would have decided the 

issue differently. Anderson v. City of Bessemer, N.C., 470 U.S. 564, 573 (1985). 

Rather, a “finding is ‘clearly erroneous’ when, although there is evidence to 

support it, the reviewing court on the entire evidence is left with the definite and 

firm conviction that a mistake has been committed.” United States v. U.S. Gypsum 

Co., 333 U.S. 364, 395 (1948). 

c. ANALYSIS

 Plaintiff contends that the Magistrate Judge’s order is “clearly erroneous” 

and “contrary to law” because Defendant AFSCME’s pending Motion to dismiss is 

correctly characterized as a Motion for Summary Judgment under Rule 56 because 

exhibits are attached that were not referred to in or a part of Plaintiff’s verified 

complaint. Plaintiff thus contends that he has a right to discovery before a Motion 

for Summary Judgment is decided, and therefore the order was clearly erroneous 

and contrary to law. 

 The Court agrees with the Magistrate Judge’s Order. The exhibits that 

Plaintiff complains about being attached to the Motion to Dismiss or alternatively 

Motion for Summary Judgment are a copy of Defendant AFSCME’s work rules 

and copies of various media articles pertaining to Plaintiff’s guilty plea. The Court 

agrees with Plaintiff that, when considering a Rule 12(b)(6) Motion the Court: 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 4 of 12 Pg ID 959
5 

may consider the Complaint and any exhibits attached thereto, public 

records, items appearing in the record of the case and exhibits 

attached to defendant's motion to dismiss so long as they are referred 

to in the Complaint and are central to the claims contained therein. 

Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). 

However, this does not exhaust the sources that the Court may consider. When 

deciding a Rule 12(b)(6) Motion, the Court may also take judicial notice of public 

records or other materials amenable to judicial notice when deciding a Rule 

12(b)(6) motion. New England Health Care Employees Pension Fund v. Ernst & 

Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003). 

In this case, the media articles are publically available and therefore do not 

convert the Motion to Dismiss into a Motion for Summary Judgment. Moreover, in 

the second count of his complaint, Plaintiff’s alleges that Defendant AFSCME 

unlawfully terminated him in violation of the collective bargaining agreement. To 

support this allegation, Plaintiff contends that Defendant AFSCME did not have 

“just cause” to terminate him. As Defendant AFSCME states in its Motion to 

Dismiss, as the Employer, pursuant to the Agreement between Defendant 

AFSCME and Defendant PRO, AFSCME, it had the ability to discharge 

employees for good cause, and had the authority to manage its offices and 

workforce, except where those rights were abridged by the agreement. Thus, when 

Plaintiff claims that he was not fired for “good cause,” and refers to the agreement 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 5 of 12 Pg ID 960
6 

between AFSCME and PRO to support that assertion, the rules that the employer 

was empowered to create and did create concerning discharge of employees are 

central to the claim, and are indirectly referenced in the complaint. Therefore, the 

Court can also take notice of the work rules when deciding the Motion to Dismiss. 

In conclusion, the Court overrules the objection [27] and affirms the Magistrate 

Judge’s Order [24]. 

2. MOTION TO PRODUCE ANSWERS TO INTERROGATORIES AND BRIEF [34];

[35]

On August 17, 2015, Plaintiff filed a Motion to Produce Answers to 

Interrogatories [34] and a Motion to Produce Corrected Motion with Exhibits 

attached [35]. Defendants responded on August 20, 2015 [36]. As Plaintiff filed a 

corrected Motion to Produce with the exhibits attached [35], the Motion to Produce 

Answers [34] is DENIED as moot. For the reasons stated below, the Motion to 

Produce Answers to Interrogatories [35] is also DENIED. 

 Per the Order [24] of the Magistrate Judge, the only discovery that Plaintiff 

is allowed prior to the determination of the Motion to Dismiss or alternatively 

Motion for Summary Judgment [16] was the deposition of Kathie Sherrill, and the 

deposition of other members of PRO union was denied. The Court agrees with the 

Defendant that the interrogatories submitted request detailed responses similar to 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 6 of 12 Pg ID 961
7 

the type of information received from an oral deposition. Because the Magistrate 

Judge’s Order in effect placed a hold on all discovery other than the deposition of 

Kathie Sherrill, therefore, this Motion [35] is DENIED. 

3. MOTION TO STRIKE AFFIDAVIT OF SHERRILL [41]

On November 5, 2015 Plaintiff filed a Motion to Strike the Affidavit of Ms. 

Sherrill [41]. Defendant responded on November 10, 2015 [43] and Plaintiff 

replied on January 8, 2016 [51]. For the reasons stated below, this Motion is 

DENIED.

 Plaintiff requests the affidavit of Sherrill be struck because he alleges that 

Ms. Sherrill does not have personal knowledge of the statements made in any 

meetings that were held in reference to Plaintiff’s termination, and any declarations 

made by her in the affidavit concerning these meetings are hearsay. The Court 

agrees with the Defendant that Ms. Sherrill did not discuss the meetings that 

Plaintiff asserts she did not attend. The deposition of Ms. Sherrill that Plaintiff has 

provided [49] does not establish that any of the information provided by Ms. 

Sherrill in her affidavit was heresay. Plaintiff has not provided any evidence to 

establish that Ms. Sherrill’s affidavit is not based upon her personal knowledge, 

and therefore the Motion to Strike [41] is denied. 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 7 of 12 Pg ID 962
8 

4. MOTION TO STRIKE PLAINTIFF’S INTERROGATORIES AND REQUESTS FOR 

ADMISSIONS AND TO QUASH PLAINTIFF’S SUBPOENA TO PRESIDENT AL 

GARRETT [48]

On January 6, 2016, Defendant AFSCME filed a Motion to Strike Plaintiff’s 

Interrogatories and Requests for Admissions and to Quash Plaintiff’s Subpoena to 

President Al Garrett [48]. Plaintiff filed a response [52] on January 12, 2016 and 

Defendants filed a reply [55] on January 18, 2016. For the foregoing reasons, the 

Motion is GRANTED. 

Federal Rule of Civil Procedure 26(d)(1) states that: 

A party may not seek discovery from any source before the parties 

have conferred as required by Rule 26(f), except in a proceeding 

exempted from initial disclosure under Rule 26(a)(1)(B), or when 

authorized by these rules, by stipulation, or by court order. 

Plaintiff issued his interrogatories and requests for admissions, and the subpoena 

was received by Defendant, on December 15, 2015. Plaintiff made these discovery 

requests prior to a Rule 26(f) conference, prior to the creation of a discovery plan, 

and prior to the Court issuing a scheduling order. Additionally, Defendant’s 

Motion to Dismiss is still pending, and discovery is not warranted when there are 

dispositive legal issues pending that will not be altered by any further discovery. 

Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300, 304 (6th 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 8 of 12 Pg ID 963
9 

Cir. 2003). Therefore, Plaintiff’s interrogatories, requests for admissions, and 

subpoena are premature and Defendant’s Motion is granted. 

5. MOTION TO COMPEL ANSWERS TO INTERROGATORIES, REQUESTS FOR 

ADMISSIONS, PRODUCE DOCUMENTS, AND FOR SANCTIONS AGAINST 

DEFENDANT MICHIGAN AFSCME COUNCIL 25 [58]

On January 21, 2016, Plaintiff filed a Motion to Compel Answers to 

Interrogatories, Requests and Subpoenaed Documents [58]. For the reasons 

stated above in Section 4 of this Order, the Court has granted Defendant’s 

request to strike Plaintiff’s Interrogatories and Requests for Admissions and 

quash Plaintiff’s Subpoena [55]. Therefore, Plaintiff’s Motion is DENIED as 

moot. 

6. MOTION TO STRIKE AFSCME MOTION AND ANSWER [59]

On January 22, 2016, Plaintiff filed a Motion to Strike AFSCME’s Motion and 

Answer to the Amended Complaint [59]. For the reasons stated below, this Motion 

is DENIED. 

Plaintiff states that Defendant’s Motion and answer was filed as an effort to 

“resurrect its now moot Motion to Dismiss and Summary Judgment,” and then 

subsequently argues that Defendant needed to obtain leave from the Court in order 

to file their second Motion for Summary Judgment under Local Rule 7.1(b)(2). 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 9 of 12 Pg ID 964
10 

These statements are contradictory in and of themselves, and the Court rejects 

Plaintiff’s contention that Defendant had to seek leave to file their dispositive 

motion. When Plaintiff filed the amended complaint, Defendant correctly 

responded by filing a new dispositive motion. There is no reason for the Court to 

strike this Motion.

Defendant further argues that the Motion should be stricken pursuant to Fed. R. 

Civ. P. 12(f) for pleading an insufficient defense. This argument also has no merit. 

On January 13, 2016, Defendant filed a dispositive motion [54] in response to 

Plaintiff’s amended complaint. This motion plainly states that it relies upon, adopts 

and resubmits its Motion for Summary Judgment filed with the Court on March 23, 

2015 [9]. There is no need to refile all of the documents with the Court in order to 

meet the standard for responses to pleadings as set by Fed. R. Civ. P. 8(b). 

Finally, Plaintiff argues that the Motion should be struck for violating Fed. R. 

Civ. P. 12(b) given that it includes a Motion for Summary Judgment and a Motion 

to Dismiss. Motions for Summary Judgment or in the alternative Motion to 

Dismiss are not uncommon to be found before the Court. In this case, the Motion 

for Summary Judgment or in the alternative Motion to Dismiss was filed in March 

2015 and was addressed in a hearing before the Magistrate Judge. The Magistrate 

considered that the main issues to be decided were issues of law, not fact, and 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 10 of 12 Pg ID 965
11 

therefore did not allow discovery to go forth before the Motion to Dismiss was 

decided. This Court, in this Order, reaffirmed this Order and overruled any 

objections that Plaintiff had concerning the labeling of this Motion as a valid 

Motion to Dismiss in the alternative (See Section 1 above). 

Accordingly, Plaintiff’s Motion to Strike AFSCME Motion and Answer is 

DENIED. 

In conclusion, 

IT IS ORDERED that Plaintiff’s objection to magistrate judge’s order [27] is 

OVERRULED; 

IT IS FURTHER ORDERED THAT Plaintiff’s Motion to Produce Answers 

to interrogatories and brief [34] is DENIED as moot; 

IT IS FURTHER ORDERED THAT Plaintiff’s Amended Motion to Produce 

[35] is DENIED; 

IT IS FURTHER ORDERED THAT Plaintiff’s motion to Strike affidavit of 

Sherrill [41] is DENIED; 

IT IS FURTHER ORDERED THAT Defendant’s Motion to strike plaintiff’s 

interrogatories and request for admissions and to quash plaintiff’s subpoena to [48] 

is GRANTED; 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 11 of 12 Pg ID 966
12 

IT IS FURTHER ORDERED THAT Plaintiff’s Motion to Compel answers to 

interrogatories, requests for admissions, produce documents, and for sanctions 

against defendant AFSCME [58] is DENIED. 

IT IS FURTHER ORDERED THAT Plaintiff’s Motion to Strike AFSCME’s 

Motion and Answer [59] is DENIED.

 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: January 26, 2016 Senior United States District Judge 

2:15-cv-10767-AJT-RSW Doc # 60 Filed 01/26/16 Pg 12 of 12 Pg ID 967