UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MONICA J. ROGERS, 

 Plaintiff, 

vs. 

HENRY FORD HEALTH SYSTEM, 

a Michigan corporation, 

 Defendant. 

Case No. 2:15-cv-12312 

Hon. Marianne O. Battani 

STERLING ATTORNEYS AT LAW, P.C. 

Gerald D. Wahl (P26511) 

Attorney for Plaintiff 

33 Bloomfield Hills Pkwy., Ste. 250 

Bloomfield Hills, MI 48304 

(248) 644-1500 

gwahl@sterlingattorneys.com 

VARNUM LLP 

Terrence J. Miglio (P30541) 

Barbara E. Buchanan (P55084) 

Attorneys for Defendant 

160 W. Fort Street, Fifth Floor 

Detroit, MI 48226 

(313) 481-7300 

tjmiglio@varnumlaw.com 

bebuchanan@varnumlaw.com 

DEFENDANT'S CORRECTED RESPONSE TO PLAINTIFF'S 

MOTION FOR LEAVE TO FILE CORRECTED DECLARATION 

AND TO CORRECT SUMMARY JUDGMENT RECORD 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1867 Filed 03/01/17 Page 1 of 12
i 

TABLE OF CONTENTS 

INDEX OF AUTHORITIES........................................................................................................... ii 

COUNTER-STATEMENT OF ISSUE PRESENTED .................................................................. iv 

INTRODUCTION ...........................................................................................................................1 

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND ..............................................1 

ARGUMENT ...................................................................................................................................2 

1. Plaintiff's Third Attempt To Submit Proper Declaration Is Untimely And 

Should Be Excluded By This Court .........................................................................2 

2. Even if This Court Accepts Plaintiff's Corrected Declaration, the 

Corrected Declaration Suffers From the Same Fatal Defects As Her First 

Two Declarations and Is Insufficient To Create A Question Of Fact ......................5 

CONCLUSION ................................................................................................................................6 

 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1868 Filed 03/01/17 Page 2 of 12
ii 

INDEX OF AUTHORITIES 

Cases

Alpert v. U.S., 

481 F.3d 404 (6th Cir. 2007) .............................................................................................. 6 

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986) ............................................................................................................ 5 

Clarksville–Montgomery County School System v. United States Gypsum Co., 

925 F.2d 993 (6th Cir. 1991) .............................................................................................. 3 

Cody v. Hillard, 

139 F. 3d 1197 (8th Cir. 1998) ........................................................................................... 5 

Doren v. Battle Creek Health Sys., 

187 F.3d 595 (6th Cir. 1999) .............................................................................................. 6 

EEOC v World’s Finest Chocolate, Inc., 

701 F. Supp. 637 (M.D. Ill. 1988) ...................................................................................... 4 

Elder-Keep v. Aksamit, 

460 F.3d 979 (8th Cir. 2006) .............................................................................................. 6 

Henry v. State Farm Fire & Cas. Co., 

No. 14-12004, 2015 WL 4429686 (E.D. Mich. June 5, 2015) ........................................... 5 

Leininger v. Reliastar Life Ins. Co., 

No. 2:06-cv-12249, 2007 WL 2875283 (E.D. Mich. Sept, 27, 2007) ................................ 4 

Link Treasure Ltd v. Baby Trend, Inc., 

809 F. Supp. 2d 1191 (C.D. Cal. 2011) .............................................................................. 5 

Luke v. Family Care and Urgent Medical Clinics, 

323 Fed. Appx. 496 (9th Cir. 2009) .................................................................................... 3 

Lumoa v. Potter, 

351 F. Supp. 2d 426 (M.D.N.C. 2004) ............................................................................... 6 

Oldham v. Heilig-Meyers, 

19 F.3d 19 (6th Cir. 1994) .................................................................................................. 4

Sapp v. CSX Transp., Inc., 

478 Fed. Appx. 961 (6th Cir. 2012) .................................................................................... 3 

United States v. Rayco, Inc., 

616 F.2d 462 (10th Cir. 1980) ............................................................................................ 3 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1869 Filed 03/01/17 Page 3 of 12
iii 

Visteon Global Technologies, Inc. v. Garmin Intern’l, Inc., 

No. 10-cv-10578, 2014 WL 1028927 (E.D. Mich. March 17, 2014) ................................. 4 

Williams v. Mucci Pac, U.S.A., Ltd., 

961 F. Supp.2d 835 (E.D. Mich. 2013) ............................................................................... 6 

Statutes

28 U.S.C. § 1746 ......................................................................................................................2, 3, 7 

Rules

Fed. R. Civ. P. 16(f) .........................................................................................................................4 

Fed. R. Civ. P. 26(a)(2)(C) ..............................................................................................................4 

Fed. R. Civ. P. 56 .............................................................................................................................6 

Fed. R. Civ. P. 56(c)(1) ....................................................................................................................6 

 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1870 Filed 03/01/17 Page 4 of 12
iv 

COUNTER-STATEMENT OF ISSUE PRESENTED 

Should this Court deny Plaintiff's Motion for Leave to File Corrected Declaration and To 

Correct Summary Judgment Record, where Plaintiff's motion is untimely, this is the third 

Declaration that she has filed, and even if this third Declaration did comply with 28 U.S.C. § 

1746, it still suffers from the same fatal defects as the previous two Declarations, i.e., it is replete 

with conclusory opinion, beliefs and speculation, but not facts based upon personal knowledge? 

Defendant answers "yes." 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1871 Filed 03/01/17 Page 5 of 12
INTRODUCTION 

 This is Plaintiff Monica Rogers' ("Plaintiff") third attempt to file a correct, sworn 

Declaration in support of her Response to Defendant Henry Ford Health System's ("Defendant") 

Motion for Summary Judgment. Plaintiff's first Declaration was unsigned and undated, and was 

not made under penalty of perjury, as required by statute. Her second Declaration was signed 

and dated, but again, not made under penalty of perjury. Her third "Corrected Declaration" (the 

subject of this Motion) is signed, dated and made under penalty of perjury. Plaintiff has offered 

no explanation as to why she has filed three Declarations, or why her first two were not correct 

when filed. Plaintiff's latest submission, her proposed "Corrected Declaration," however, comes 

nearly five months after Plaintiff filed her Response and nearly four months after the hearing on 

the Motion for Summary Judgment. Plaintiff's first two Declarations should be excluded 

because they did not comply with statutory authority. Her latest Declaration is untimely and 

should be excluded. The cases upon which Plaintiff relies are inapposite and do not support her 

request. Plaintiff's Motion should be denied. 

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 

 Defendant filed its Motion for Summary Judgment on August 1, 2016. (ECF Dkt. #48) 

Plaintiff filed her Response to Defendant's Motion for Summary Judgment on September 23, 

2016. (ECF Dkt. #55) One of Plaintiff's exhibits was a 154-paragraph rambling, unsigned, 

undated "Declaration." (ECF Dkt. #55, Ex. F) This unsworn Declaration did not include the 

necessary language regarding the penalty of perjury as set forth in 28 U.S.C. § 1746. (Id.) 

Defendant filed its Reply in Support of its Motion for Summary Judgment on October 17, 

2016. (ECF Dkt. #58) In its Reply, Defendant specifically objected to the substance of the 

"Declaration" and argued that it should be rejected by the Court. (Id.) On October 27, 2016, the 

date of the hearing on Defendant's Motion for Summary Judgment, Plaintiff filed a second 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1872 Filed 03/01/17 Page 6 of 12
2 

"Declaration" that was not accompanied by a Motion. (ECF Dkt. #59) This one was signed and 

backdated (to September 23, 2016), but still did not include the penalty of perjury language 

required by 28 U.S.C. § 1746. (Id.) 

On February 15, 2017, Plaintiff filed the instant Motion, and attached a "Corrected 

Declaration" that was signed, dated February 17, 2017 and included the following statement "I 

declare, under penalty of perjury, that the foregoing is true and correct." (ECF Dkt. #60, Ex. B) 

For the reasons set forth below, Plaintiff's Motion should be denied, and her "Corrected 

Declaration" should be excluded by this Court.

ARGUMENT 

1. Plaintiff's Third Attempt To Submit Proper Declaration Is Untimely 

And Should Be Excluded By This Court 

This is Plaintiff's third attempt over a period of nearly five months – to submit a correct, 

signed, sworn Declaration in support of her Response to Defendant's Motion for Summary 

Judgment ("Response") that complies with 28 U.S.C. § 1746. Plaintiff's Corrected Declaration 

is untimely. Defendant filed its Motion for Summary Judgment on August 1, 2016 (Docket # 

48). The Court issued a scheduling Notice requiring Plaintiff to file her Response by 

September 8, 2016 and setting a hearing on the Motion for October 13, 2016. (Docket # 50). 

Plaintiff's third Declaration is being submitted nearly five months after her Response was 

due and nearly four months after the hearing on Defendant's Motion for Summary 

Judgment. Further, Plaintiff provides no explanation in her Motion as to why she failed to 

submit her own, properly sworn Declaration in a timely manner.1

 1

 Plaintiff notes in her Conclusion that ". . . under all of the circumstances that exist in 

this case, the Declaration, as corrected, should be considered by the Court . . ." but never 

explains what those "circumstances" are. (ECF Dkt. #60, Pg ID 1787). 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1873 Filed 03/01/17 Page 7 of 12
3 

The Court should exercise its discretion to exclude the untimely Declaration pursuant to 

Fed. R. Civ. P. 16, which grants district courts wide latitude to impose sanctions for failure to 

comply with their scheduling orders. See Clarksville–Montgomery County School System v. 

United States Gypsum Co., 925 F.2d 993, 998 (6th Cir. 1991). A district court has discretion to 

impose appropriate sanctions, and the exclusion of the Declaration is appropriate under the 

circumstances. See Advisory Committee notes to Fed. R. Civ. P. 16(f) (1983); see also United 

States v. Rayco, Inc., 616 F.2d 462, 464 (10th Cir. 1980) (broad powers of enforcement inure to a 

pretrial order limiting issues to be tried and evidence to be introduced). 

Further, courts have excluded untimely declarations in other situations, including where 

witness declarations are filed past a scheduling order deadline. For example, in Luke v. Family 

Care and Urgent Medical Clinics, 323 Fed. Appx. 496 (9th Cir. 2009), the Ninth Circuit held 

that the district court did not abuse its discretion when it excluded as untimely expert 

declarations submitted by the plaintiffs in response to the defendants' summary judgment 

motion.2

 Id. at 1. Plaintiff disclosed the declarations after the court's deadlines, and therefore 

the district court found them to be untimely pursuant to Fed. R. Civ. P. 26(a)(2)(C). The court 

noted that the plaintiffs did not provide any justification – let alone substantial justification – for 

the untimely submissions. Id.; see also Sapp v. CSX Transp., Inc., 478 Fed. Appx. 961, 963-964 

(6th Cir. 2012)(court struck as untimely expert's declaration). It should be no different in the 

instant matter. Plaintiff has filed two untimely declarations – included the one most recently 

filed – in violation of the Federal Rules and this Court's Scheduling Order, and they should be 

stricken. 

 2

 Unpublished cases are attached hereto as Exhibit A. 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1874 Filed 03/01/17 Page 8 of 12
4 

Finally, the cases that Plaintiff cites to support her request to allow the Corrected 

Declaration are inapplicable here. Visteon Global Technologies, Inc. v. Garmin Intern’l, Inc., 

No. 10-cv-10578, 2014 WL 1028927 (E.D. Mich. March 17, 2014), upon which Plaintiff heavily 

relies, involved a "clerical error" made by the defendant, Garmin, when responding to Visteon's

requests to admit. It was obvious that Visteon knew about the errors, but did nothing to raise the 

error in a timely manner.3 That is not situation here. Plaintiff's failure to provide a sworn 

Declaration was not merely a "typographical error." Rather, Plaintiff failed to provide the 

mandatory "perjury" language. Moreover, Plaintiff did not promptly correct the error as was the 

case in Visteon, where the defendant attempted to correct its typographical error within two 

weeks. 

None of the other cases relied upon by Plaintiff are applicable. EEOC v. World’s Finest 

Chocolate, Inc., 701 F. Supp. 637 (M.D. Ill. 1988) is irrelevant since it involved an unsigned 

EEOC Charge of Discrimination. In Oldham v. Heilig-Meyers, 19 F.3d 19 (6th Cir. 1994), the 

pro se plaintiff was given an extra 30 days to file a properly executed affidavit. That is not the 

case here. In Leininger v. Reliastar Life Ins. Co., No. 2:06-cv-12249, 2007 WL 2875283 (E.D. 

Mich. Sept, 27, 2007), the plaintiffs argued that the defendant's declarations that were included 

with its Motion for Summary Judgment should be stricken or should not be considered by the 

Court because they were not notarized nor stated that they were made under penalty of perjury. 

However, the defendants filed the corrected declarations with their reply brief three weeks later, 

long before the hearing on the motion. Here, Plaintiff has waited months to seek to file a 

"Corrected Declaration." Finally, Plaintiff seems to suggest, based on a footnote in Cody v. 

 3 Visteon cannot stand for the proposition that a Plaintiff's motion is the proper 

mechanism to remedy defects in the declaration as Plaintiff suggests, since Visteon did not 

involve the filing of an unsworn declaration. 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1875 Filed 03/01/17 Page 9 of 12
5 

Hillard, 139 F. 3d 1197 (8th Cir. 1998), that it was the responsibility of Defendant to raise the 

issue of the defective declaration at the district court level.4 However, shifting the burden to 

Defendant to point out the defects in Plaintiff's filings ignores Plaintiff's burden – that she must 

produce specific evidence demonstrating a genuine issue of material fact for trial. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The non-moving party must present specific, 

admissible evidence showing that a genuine factual issue exists by "citing to particular parts of 

materials in the record" or by "showing that the materials cited do not establish the absence . . . 

of a genuine dispute[.]" Fed. R. Civ. P. 56(c)(1); Henry v. State Farm Fire & Cas. Co., No. 14-

12004, 2015 WL 4429686, at *6 (E.D. Mich. June 5, 2015). Finally, Link Treasure Ltd v. Baby 

Trend, Inc., 809 F. Supp. 2d 1191, 1195 (C.D. Cal. 2011) cited by Plaintiff, makes abundantly 

clear that compliance with the requirement of 28 U.S.C. § 1746 is mandatory, i.e., the 

declaration is made under penalty of perjury. Id. at 1195.5 

2. Even If This Court Accepts Plaintiff's Corrected Declaration, The 

Corrected Declaration Suffers From The Same Fatal Defects As Her 

First Two Declarations And Is Insufficient To Create A Question Of 

Fact 

Plaintiff's Corrected Declaration, like the previous two, is replete with conclusory 

opinion, beliefs and speculation, but not facts based upon personal knowledge. Rule 56 requires 

that an affidavit or declaration "shall be made on personal knowledge, shall set forth such facts 

 4

 Despite Plaintiff's claims to the contrary, Fed. R. Civ. P. 56 does not require that a party 

file a motion to strike objectionable evidence submitted in response to a motion for summary 

judgment. In fact, the Committee Notes to the 2010 Amendments state specifically that "[t]here 

is no need to make a separate motion to strike" when objecting to material cited to support or 

dispute a fact that is not admissible in evidence. 

5

 Neither the Declaration attached to Plaintiff's Response as an exhibit, nor the one filed 

on October 27, 2016, qualify as affidavits because they were not subscribed as true before a 

notary. Nor did they contain the oath required for declarations by 28 U.S.C. § 1746. For this 

reason, these Declarations should be excluded in their entirety. 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1876 Filed 03/01/17 Page 10 of 12
6 

as would be admissible in evidence, and shall show affirmatively that the affiant is competent to 

testify to the matters stated therein." See Williams v. Mucci Pac, U.S.A., Ltd., 961 F. Supp.2d 

835 (E.D. Mich. 2013); see also Alpert v. U.S., 481 F.3d 404, 409 (6th Cir. 2007). Plaintiff's 

Corrected Declaration, which is the same as the Declaration attached to her Response, contains 

numerous statements which are conclusory and not based on Plaintiff's personal knowledge.6 

"[A] party must offer 'specific facts showing that there is a genuine issue for trial' and not 'merely 

conclusory' allegations." Doren v. Battle Creek Health Sys., 187 F.3d 595, 598 (6th Cir. 1999). 

Plaintiff's Corrected Declaration must be rejected by this Court. 

CONCLUSION 

 WHEREFORE, for the reasons set forth above, Plaintiff's Motion should be denied. 

Further, this Court should exclude Plaintiff's previous two unsworn Declarations. 

Respectfully submitted, 

VARNUM LLP 

By: /s/ Terrence J. Miglio 

Terrence J. Miglio (P30541) 

Barbara E. Buchanan (P55084) 

Attorneys for Defendant 

160 W. Fort Street, 5th Floor 

Detroit, MI 48226 

(313) 481-7300 

tjmiglio@varnumlaw.com 

Dated: March 1, 2017 bebuchanan@varnumlaw.com 

 6

 The Court has discretion to sua sponte exclude affidavits that lack attestations under 

penalty of perjury. Elder-Keep v. Aksamit, 460 F.3d 979 (8th Cir. 2006) See also Lumoa v. 

Potter, 351 F. Supp. 2d 426, 431 (M.D.N.C. 2004) ("Because none of these statements are an 

affidavit or meet the standards of §1746, they cannot be considered in a summary judgment 

disposition and will be stricken.") Exhibit B, attached to Defendant's Reply in Support of its 

Motion for Summary Judgment (ECF Dkt. #58), is a chart showing the statements in Plaintiff's 

Declaration that do not comply with the dictates of Rule 56. 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1877 Filed 03/01/17 Page 11 of 12
CERTIFICATE OF SERVICE 

I hereby certify that on March 1, 2017, I electronically filed the foregoing paper 

with the Clerk of the Court using the ECF system which will send notification of 

such filing to all parties of record. 

/s/ Terrence J. Miglio 

Terrence J. Miglio (P30541) 

Case 2:15-cv-12312-MOB-EAS ECF No. 62, PageID.1878 Filed 03/01/17 Page 12 of 12