UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHELLE H. BAILEY, 

 

 Plaintiff, 

v. 

OAKWOOD HEALTHCARE, INC., 

d/b/a OAKWOOD HOSPITAL 

& MEDICAL CENTER, 

 

 Defendant. 

______________________________/ 

Case No. 15-11799 

Paul D. Borman 

United States District Judge 

Elizabeth A. Stafford 

United States Magistrate Judge 

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE 

TO FILE CORRECTED DECLARATION AND CORRECT SUMMARY 

JUDGMENT RECORD (ECF NO. 59) 

BACKGROUND 

In this federal civil rights action, Plaintiff alleges that Defendant, her former 

employer, discriminated against her based on her race, her age, and her pregnancy, 

and that Defendant retaliated against her for opposing its discriminatory practices. 

Defendant moved for summary judgment on September 2, 2016. (ECF No. 

38.) After the parties stipulated to a time extension, Plaintiff filed a Response on 

October 14, 2016. (ECF No. 41.) Attached to that Response was a post-deposition, 

30-page, 200-paragraph “Declaration of Michelle H. Bailey,” containing 

statements by Plaintiff regarding the factual aspects of her case, which closed with 

an assertion by Plaintiff that the statements were “true to the best of [her] 
2 

knowledge, information and belief.” The Declaration was not signed, sworn, or 

dated, as required by 28 U.S.C. § 1746. (ECF No. 41 Ex. B.) 

On November 1, 2016, Plaintiff filed a second version of the Declaration, 

backdated to October 14, 2016, the date of the first filed Declaration, which 

contained Plaintiff’s signature. (ECF No. 44, Bailey Declaration.) This second 

version was also not sworn. (Id.) 

The Court set a hearing on Defendant’s Motion for Summary Judgment and 

Defendant’s Motion to Strike Plaintiff’s Declaration for February 1, 2017.1

At the hearing, the Court ordered Plaintiff’s Declaration stricken because it 

violated 28 U.S.C. § 1746, which permits an unsworn statement to suffice for a 

sworn statement only if it contains an assertion by the signatory that the contents of 

the document are true under penalty of perjury, the declarant’s signature, and the 

date. (ECF No. 57, Transcript of February 1, 2017 Hearing at 6-7.) Plaintiff’s 

 1

 Plaintiff’s Response Brief to Defendant’s Motion to Strike Plaintiff’s Declaration 

(ECF No. 50) violates the Court’s Civility Principles, set forth at footnote 3, infra, 

in that it contains uncivil disparaging remarks regarding Defendant’s counsel: 

P. 3: “Consistent with Defendant’s whining, it now states it has been prejudiced 

by ‘untimeliness’ when what it should do is sharpen its deposition crossexamination.” 

P. 3: “Defendant laughably refers to some obligation . . .” 

P. 4: “The relief [Defendant] requests . . . are equally laughable. . . . The fact 

that [Defendant’s] counsel did not prepare appropriately for her deposition is 

not the fault of Plaintiff.” 

Additional examples of Plaintiff’s counsel’s multiple and continuous violations of 

the Court’s Civility Principles at Plaintiff’s deposition are contained at pages 6-10, 

infra. 
3 

Declaration was neither sworn nor certified as true under penalty of perjury, in 

clear violation of 28 U.S.C. § 1746. Thereafter, while noting that this issue had 

been raised by Defendant’s Motion to Strike the Declaration that was set for the 

hearing, the Court nevertheless provided Plaintiff with an opportunity to provide 

legal authority challenging the Court’s ruling. (ECF No. 57, Transcript of February 

1, 2017 Hearing at 8.) The Court then postponed the scheduled argument on 

Defendant’s summary judgment motion and the motion to strike the Declaration. 

(Id. at 7-10.) 

Plaintiff subsequently filed a brief on the § 1746 issue (ECF No. 60), and 

also filed a Motion for Leave to File Corrected Declaration and to Correct 

Summary Judgment Record (ECF No. 59). Defendant responded in opposition to 

each (ECF Nos. 61, 62), and Plaintiff filed a timely Reply (ECF No. 63). 

Thereafter, Plaintiff filed a “Notice of Supplemental Authority” with regard to the 

§ 1746 issue. (ECF No. 64.) 

DISCUSSION 

The Court finds that none of the authorities cited by Plaintiff establishes that 

this Court’s reliance on the clear language of 28 U.S.C. § 1746 in striking 

Plaintiff’s proposed Declaration on the scheduled date of the hearing on 

Defendant’s motions for summary judgment and to strike Plaintiff’s Declaration 

was contrary to the statute or binding legal precedent. 
4 

Plaintiff directs the Court to its decision in Visteon Glob. Techs., Inc. v. 

Garmin Int'l, Inc., No. 10-CV-10578, 2014 WL 1028927 (E.D. Mich. Mar. 17, 

2014), for the proposition that a motion to correct a summary judgment record “is 

the proper mechanism in order to seek relief from any defects in the Declaration.” 

(ECF No. 59 at 2.) However, Visteon concerned a party’s motion to amend 

admissions that had been directed at the wrong set of requests, and did not involve 

an affidavit or declaration at all. Thus, Visteon has no factual applicability to this 

case, and it does not support Plaintiff’s contention that the Court must award relief 

to Plaintiff here. 

Plaintiff’s other cited cases are both materially distinguishable and 

nonprecedential. Demara v. Comm'r of Soc. Sec., No. CV 15-12634, 2016 WL 

1604700, at *1 (E.D. Mich. Mar. 31, 2016), involved an affidavit filed in support 

of an in forma pauperis application, while Henry v. State Farm Fire & Cas. Co., 

No. 14-12004, 2015 WL 4429686 (E.D. Mich. July 20, 2015), did not involve an 

affidavit or declaration at all. In Oldham v. Heilig-Meyers, 1994 WL 75844 (6th 

Cir. 1994), the Sixth Circuit mentioned in passing that a district court allowed a 

party to correct a deficient affidavit, but neither addressed the issue itself nor 

offered any indication as to when such a decision would be proper, much less 

required by law. See id. at *1. And Leininger v. Reliastar Life Ins. Co., No. 06- 

12249, 2007 WL 2875283 (E.D. Mich. Sept. 28, 2007), as Defendant points out, is 
5 

distinguishable because the question presented in that case was whether a § 1746 

deficiency in a summary judgment affidavit was mooted by the same party’s 

subsequent correction of the error in its reply brief. 

Thus, Plaintiff has not provided (nor is the Court aware of) any authority 

indicating that the Court’s striking of her Declaration as deficient under 28 U.S.C. 

§ 1746 was unlawful.2

 In addition to not providing binding legal authority 

establishing the illegality of the Court’s ruling, Plaintiff’s “Brief Allowed By The 

Court At Its Hearing On February 1, 2017 Regarding Plaintiff’s Declaration” (ECF 

No. 60) contained, as Exhibit A, this Court’s previous opinion in Lauderdale v. 

Wells Fargo, et al., 2012 WL 1714905 (E.D. Mich. May 15, 2012) (Borman, J.) 

(refusing to consider, on summary judgment, a Declaration not made under penalty 

of perjury as required under 28 U.S.C. § 1746), aff’d 552 F. App'x 566 (6th Cir. 

 2 Subsequent to this Court’s ruling on February 1, 2017 striking Plaintiff’s 

unsworn Declaration, Plaintiff’s counsel apparently recognized that he had 

committed a similar violation of 28 U.S.C. § 1746 in another case. (Welch v. Level 

3 Communications, LLC, E.D. MI, Civil Case No. 15-13381, ECF No. 44.) 

(Tarnow, J.) Plaintiff’s subsequent motion to file a corrected Declaration was 

granted by Judge Tarnow, in the exercise of his discretion. Plaintiff now submits 

that post hoc order by Judge Tarnow as “Supplemental Authority” in the instant 

case. (ECF No. 64.) 

The Court does not find that order as “authority” in this case. That order was 

filed on March 9, 2017, more than one month after this Court struck Plaintiff’s 

unsworn Declaration. It was also filed one month prior to the scheduled summary 

judgment hearing in Welch. In the instant case, Plaintiff had not corrected the 

legally deficient Declaration prior to the convening of the instant scheduled 

summary judgment/motion to strike hearing on February 1, 2017. Another District 

Judge’s exercise of discretion, on different facts, is not binding on this Court. 
6 

2014). The United States Court of Appeals for the Sixth Circuit affirmed. 552 F. 

App'x 566 (6th Cir. 2014). 

The Court notes that in the instant case, during the course of Plaintiff’s fivehour deposition, Plaintiff’s counsel seized the opportunity to examine his client 

extensively with regard to her claims in this case. Plaintiff’s counsel examined her 

on three separate occasions in that deposition, comprising 36 pages of testimony. 

(ECF No. 38 Ex. 4, Deposition of Michelle Bailey 171-201, 216:1-218:16, 221:2-

222:11.) 

The Court also notes that Plaintiff’s counsel acted improperly on multiple 

occasions during Plaintiff’s deposition to interfere with and indeed derail defense 

counsel’s proper attempt to examine his client. This resultant misconduct by 

Plaintiff’s counsel provided him with additional opportunities to bolster his client’s 

case at the expense of Defendant’s opportunity to challenge her claims. The 

deposition transcript reveals that time and again, Plaintiff’s counsel violated this 

Court’s Civility Principles toward opposing counsel3

: 

 3 Civility Principles of the United States District Court, Eastern District of 

Michigan, approved February 5, 1996: 

Attorney’s Responsibilities to Other Counsel 

1. . . . We will treat all other counsel . . . in a civil and courteous manner . . . 

2. . . . We will abstain from disparaging personal remarks or acrimony toward 

other counsel . . . 

20. We will not engage in any conduct during a deposition that would not be 

appropriate in the presence of a judge. 
7 

[MR. HANCOCK:] You had a manager. Was she your 

superintendent? 

A. Yes, she was my manager. 

MR. WAHL: You already asked that, Counsel. You're stuck in the 

mud? Do you need help to get out of the same line of questioning? 

Maybe it's because, by repetition, you think it's more effective. 

BY MR. HANCOCK: 

Q. Now, did you ask for any time to consider what they had given 

you at this meeting? 

A. To consider it in what regard? 

Q. To come back with a response or come back with records or come 

back with anything. 

MR. WAHL: She asked for records. But go ahead and answer. 

(Bailey Dep. 137:22-138:10.) 

[MR. HANCOCK:] Okay, is there any error in what's on this 

document -- now, what's on this document, Deposition Exhibit 

Number 9, is a title and a period of time that you, on one of the two 

applications, said you worked in that Job? 

MR. WAHL: Forty minutes ago, she said the document was accurate. 

Why are you -- are you stuck somewhere? Is there some assistance I 

can give you? She's already agreed to that. Do you want her to agree 

again? 

(Bailey Dep. 139:4-13.) 

MR. WAHL: . . . Now, where are you reading from [on page] 99 -- 

MR. HANCOCK: Where it says, “The flexible workforce” -- 

MR. WAHL: Where is that? 

MR. HANCOCK: It's about one-third of the way down. 

MR. WAHL: Thank you. Played a key role? Is that what you're 

reading? 

MR. HANCOCK: Now, could you please let her read the document 

and not point out things with your pen? 

MR. WAHL: Where are you reading from? 
8 

MR. HANCOCK: Where it says, “The flexible workforce nursing 

program.” 

MR. WAHL: Okay. 

MR. HANCOCK: Okay. Could you let her look at the document, 

please, and not point out things with your pencil? 

MR. WAHL: Oh, just be quiet. You're being annoying. 

MR. HANCOCK: You're being annoying. So, would you mind her 

looking at the document – 

MR. WAHL: She's looking at it. Are you looking at it? 

THE WITNESS: Yes. 

MR. HANCOCK: And get off of it, please. 

MR. WAHL: No. 

MR. HANCOCK: You can't do that, Jerry. 

MR. WAHL: Go ahead. Ask your question. 

MR. HANCOCK: We're going to stop right here, If you're not going 

to stop pointing things out to her while I'm asking questions, then we 

stop here. 

MR. WAHL: I'm pointing at, "played a key role." 

MR. HANCOCK: We stop here until you stop doing that. 

MR. WAHL: All right. The deposition is over. 

MR.HANCOCK: No, it's not. 

MR. WAHL: Go file a motion. Yes, it is. That's it. I'm pointing out 

where you're reading from so she can follow along. 

 (Bailey Dep. 154:9-156:20.) 

[MR. HANCOCK:] You submitted Answers to Interrogatories. Did 

you have a chance to review them before they were sent to us? 

A. Yes. 

MR. WAHL: The answer to that is no, as well, but she did sign off on 

them, and you've got her verification. 

MR. HANCOCK: Okay. . . . So, what she said was wrong and you're 

telling us what's right? 
9 

MR. WAHL: She doesn't know. 

MR. HANCOCK: Okay. I -- 

MR. WAHL: As many clients and lawyers operate, we sent them out 

with an explanation to Ms. Davies that we're having our client review 

them. 

MR. HANCOCK: Okay. 

MR. WAHL: Then we had her sign them and she sent them along to 

Ms. Davies. 

MR. HANCOCK: Okay. 

MR. WAHL: So, I don't know what your problem is with something. 

(Bailey Dep. 170:3-24.) 

Plaintiff’s counsel also acted to improperly control his client’s testimony 

when he “cross-examined” her. Two examples: 

[MR. WAHL:] So, job titles can change and are fluid, depending on 

whether somebody is entering in something for a job description 

performance review -- 

MR. HANCOCK: Is that a question -- 

MR. WAHL: It is. 

MR. HANCOCK: -- or are you leading her to an answer? 

MR. WAHL: I'm sorry, can I finish my question before you pipe up? 

MR. HANCOCK: No. You’re leading her, at this point, and telling 

her what you want her to say, so... 

MR. WAHL: Fine. 

(Bailey Dep. 177:19-178:6.) 

[MR. WAHL:] All right. Based on that cross-examination, do you 

want to change your testimony that the duties that you described 

orally to Ms. Walker, Mr. Squire, Ms. Huffman and others during the 

more than three hours of interviews and three different trips, described 

these duties as any different -- 

MR. HANCOCK: You're leading her. 
10 

MR. WAHL: I don't care. 

MR. HANCOCK: I'm just objecting that you're leading. 

MR. WAHL: I know. And I'm saying I don't care. 

(Bailey Dep. 216:23-217:9.) 

Plaintiff’s counsel’s misconduct, violating this Court’s principles of civility 

and decency, enabled him to continuously develop/fashion his client’s deposition 

testimony to his liking at the expense of the right of Defendant’s counsel to depose 

Plaintiff. 

CONCLUSION 

Plaintiff has provided no legal basis for this Court to conclude that it 

committed error in striking Plaintiff’s Declaration at the time and place set for the 

scheduled summary judgment hearing. The Court’s ruling was based upon the 

clear requirements of 28 U.S.C. § 1746. Accordingly, the Court hereby DENIES 

Plaintiff’s motion to reconsider its order striking Plaintiff’s 30-page, 200-

paragraph Declaration as in violation of 28 U.S.C. § 1746. 

The Court also warns Plaintiff’s counsel that he must adhere to the Court’s 

Civility Principles, or he will face sanctions or contempt proceedings. 

 
11 

The Court schedules the hearing on Defendant’s Motion for Summary 

Judgment for Tuesday, June 19, 2017 at 3:00 PM. 

IT IS SO ORDERED. 

 s/Paul D. Borman 

 Paul D. Borman 

 United States District Judge 

Dated: June 2, 2017 

CERTIFICATE OF SERVICE 

 The undersigned certifies that a copy of the foregoing order was served upon 

each attorney or party of record herein by electronic means or first class U.S. mail 

on June 2, 2017. 

 s/D. Tofil 

 Deborah Tofil, Case Manager