1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROSALIND BLAIR, Personal Representative

for the Estate of Marquis Blair, Deceased,

Plaintiff, No. 08-CV-15090-DT

vs. Hon. Gerald E. Rosen

WAYNE COUNTY DEPUTY

SHERIFF GREGORY HARRIS and

COUNTY OF WAYNE,

Defendants.

__________________________________/

ORDER REVERSING MAGISTRATE JUDGE’S ORDER DENYING

WAYNE COUNTY’S EMERGENCY MOTION TO QUASH DEPOSITION

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on February 10, 2010 

PRESENT: Honorable Gerald E. Rosen

 Chief Judge, United States District Court

INTRODUCTION

This Section 1983 action is presently before the Court on Defendant Wayne

County’s Objections to the Magistrate Judge’s January 27, 2010 Order denying the

County’s Motion to Quash the Deposition of Gregory Harris. Having reviewed the

Magistrate Judge’s Order, Defendant’s Objections thereto, the underlying motions and the

Court’s entire file of this matter, the Court finds that the record sufficiently presents the

parties’ respective positions and oral argument would not substantially enhance this
1

 Wayne County is not representing or indemnifying Harris in this litigation. The

County takes the position that it is not responsible for Harris’s private, off-duty conduct

that has no connection to his employment as a deputy working at the Wayne County Jail.

2

record.

FACTUAL AND PROCEDURAL BACKGROUND

 Marquise Blair was fatally shot on August 5, 2007 by an off-duty Wayne County

Deputy Sheriff, Defendant Gregory Harris, after Harris caught him attempting to steal his

van which had been parked in front of the Harris residence in Detroit. Plaintiff Rosalind

Blair, Marquise Blair’s mother and the personal representative of his estate, commenced

this Section 1983 action on December 9, 2008 against Defendant Harris, individually, and

the County of Wayne under a Monell theory of liability.

Defendant Harris never answered Plaintiff’s Complaint1

 and Plaintiff obtained a

Clerk’s Entry of Default against him on May 19, 2009. The case thereafter proceeded

against Wayne County. On June 8, 2009, the Court conducted a scheduling conference

during which it dismissed Defendant’s May 1, 2009 pre-discovery Motion for Summary

Judgment, without prejudice, and entered a Scheduling Order setting October 31, 2009 as

the discovery cut-off and November 30, 2009 as the dispositive motion cut-off. Plaintiff

never sought any extension of discovery or any other deadlines during these six months.

In accordance with the Court’s Scheduling Order, after discovery had closed, on

November 30, 2009, Wayne County filed its second Motion for Summary Judgment. 

Plaintiff’s response was due on December 21, 2009. However that date passed with no
3

response having been filed. On December 28, 2009, Defendant stipulated to granting

Plaintiff an extension of time to file her response and on January 5, 2010, Plaintiff’s

Response to Defendant’s Motion for Summary Judgment was filed.

In her Response, Plaintiff stated that she needed the deposition testimony of

Defendant Harris to establish that there are issues of fact as to whether Harris’s use of

deadly force on August 5, 2007 was justified. She stated that at the time of her Response

she was “trying to serve Defendant Harris with a subpoena for his deposition” and

appended to her Response a Fed. R. Civ. P. 56(f) affidavit of her attorney. Also attached

to her Response was a notice of the subpoena for the deposition of Gregory Harris to take

place on January 11, 2010. Plaintiff asked that the Court deny summary judgment based

on the Rule 56(f) affidavit until such time as Defendant Harris complied with the

subpoena and she was able to take his deposition.

WAYNE COUNTY’S MOTION TO QUASH

On January 11, 2010, Wayne County filed an emergency motion to quash Harris’s

deposition. The County pointed out the gross untimeliness of the subpoena inasmuch as

discovery had closed two and a half months earlier, Plaintiff had made no attempt to

depose Harris during the discovery period, two dispositive motions had already been

filed, and Plaintiff failed to provide any basis or exception that would permit a deposition

after the close of discovery when a summary judgment motion was pending.

On January 14, 2010, Plaintiff filed a response to the motion to quash stating that

the issue was now moot because Mr. Harris had voluntarily appeared for his deposition as
4

scheduled on January 11 but stated he only appeared in order to comply with the

subpoena; he declined to offer any factual or substantive testimony because he was

without counsel. According to Plaintiff, Harris also indicated that he would seek counsel

immediately and would notify the Court and Plaintiff’s counsel when he secured legal

representation.

Because Plaintiff reiterated her position that Harris’s testimony was necessary and

critical to her case, Defendant Wayne County took Plaintiff’s assertion to mean that

Plaintiff would attempt to proceed at some later date with Harris’s deposition. Therefore,

the County was not willing to abandon its Motion to Quash based on Plaintiff’s January

14, 2010 description of the issue being moot. Accordingly, the hearing on the motion to

quash before the magistrate judge to whom this matter had been referred went forward as

scheduled.

THE MAGISTRATE JUDGE’S RULING

Notwithstanding the discovery cut-off date, Plaintiff’s failure to move for an

extension of discovery and failure to depose or notice Defendant Harris’s deposition

during the discovery period, on January 27, 2010, Magistrate Judge Komives denied

Wayne County’s Motion to Quash. The Magistrate Judge held

Although Defendant Wayne County’s position is well-taken, on balance

plaintiff’s desire to depose Harris, as supported by plaintiff’s counsel’s

January 5, 2010 affidavit (Doc. Ent. 24-9 [sic; 24-8]), qualifies for a

continuance for the purpose of taking Harris’s deposition as set forth in Fed.

R. Civ. P. 56(f)(2) [which provides “[i]f a party opposing the motion shows

by affidavit that, for specified reasons, it cannot present facts essential to

justify its opposition, the court may. . . order a continuance to enable
5

affidavits to be obtained, depositions to be taken, or other discovery to be

undertaken[.]”] However, plaintiff must take Harris’s deposition or obtain

his affidavit by the end of February 2010. Furthermore, plaintiff’s counsel

must seek leave from Judge Rosen if he wishes to supplement plaintiff’s

papers [in opposition] to defendant Wayne Count’s November 30, 2009

second dispositive motion.

1/27/2010 Order Denying Motion to Quash [Dkt. # 29].

Defendant Wayne County has filed Objections to Magistrate Judge Paul J.

Komives’ January 27, 2010 Order and asks this Court to reverse the magistrate judge’s

ruling. Defendant’s Objections are well-taken.

DISCUSSION

The Magistrate Judge based his ruling upon the Rule 56(f) affidavit Plaintiff filed

with her response to Defendant’s motion for summary judgment. It is well-settled that a

party seeking to derive the benefit of Rule 56(f) must demonstrate due diligence both in

conducting discovery before the emergence of the summary judgment motion and in

pursuing an extension of time once the motion has surfaced. Resolution Trust Corp. v. N.

Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994). “Rule 56(f) is not a substitute

for diligently pursuing discovery.” Schaffer ex rel. Schaffer v. A.O. Smith Harvestore

Prods., 74 F.3d 722, 732 (6th Cir. 1996). In order to rely upon a Rule 56(f) affidavit, the

party must show why the information has not been previously discovered. Egerer v.

Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009). In other words, he must

demonstrate why this discovery had not been or could not have been obtained earlier.

Mir-Yepez v. Banco Popular de Puerto Rico, 560 F.3d 14, 16 (1st Cir. 2009); Everson v.
2

 Had Plaintiff timely subpoenaed Harris during the discovery period, she could

have moved the Court for an order compelling his testimony if he refused then as he did

on January 11 to provide any substantive factual testimony.

6

Leis, 556 F.3d. 484, 493 (6th Cir. 2009); see also Dowling v. The Cleveland Clinic, ___

F.3d ___, No. 09-3159 (6th Cir., Feb. 3, 2010), (“The overarching inquiry . . . is whether

the moving party was diligent in pursuing discovery.”) Plaintiff here has failed to meet

this burden.

Plaintiff failed to diligently conduct discovery according to this Court’s

Scheduling Order -- she never sought to depose Harris during discovery and never sought

an extension of discovery in order to do so. Instead, she waited until after a second

summary judgment motion was filed and only then asserted a need for Harris’s deposition

hoping at that late date to find some evidence which would create an issue of fact to

withstand the Defendant’s motion.

Although Plaintiff attempts to argue that Harris’s failure to answer the complaint

provided a reasonable basis to conclude that he would not appear for a deposition,

Plaintiff never attempted during the discovery period to find out whether he would appear

even though he had been defaulted. The Court finds it significant to note that the first

time that Plaintiff attempted to secure Harris’s deposition -- on January 11, 2010 -- two

and a half months after the close of discovery and more than a month after Defendant

Wayne County filed its second motion for summary judgment -- Harris, in fact, did

appear.2

 Under these circumstances, Plaintiff has forfeited any possible complaints about
7

her inability to take Deputy Harris’s deposition prior to the close of discovery.

Having failed to diligently pursue discovery of Harris’s testimony during the

period allowed for discovery, the Court concludes that Plaintiff may not now derive the

benefit of her counsel’s Rule 15(f) affidavit. Therefore, the Court finds that the

Magistrate Judge erred in denying Defendant Wayne County’s motion to quash.

CONCLUSION

For these reasons,

IT IS HEREBY ORDERED that the Magistrate Judge’s Order of January 27, 2010

is REVERSED. Accordingly,

IT IS FURTHER ORDERED that Defendant Wayne County’s Motion to Quash

the Deposition of Gregory Harris is GRANTED.

s/Gerald E. Rosen 

Gerald E. Rosen

Chief Judge, U.S. District Court
8

I hereby certify that a copy of the foregoing document was served upon counsel of record on

February 10, 2010, by electronic and/or ordinary mail.

s/Ruth A. Brissaud 

Case Manager

(313) 234-5137