UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CUREN ESSEX ET AL., 

Plaintiffs,

v.

LIVINGSTON COUNTY ET AL.,

Defendants.

_____________________________/

Case No. 09-11095

SENIOR UNITED STATES DISTRICT

JUDGE ARTHUR J. TARNOW

MAGISTRATE JUDGE PAUL J. KOMIVES

ORDER DENYING DEFENDANT LIVINGSTON COUNTY’S MOTION

FOR LEAVE TO FILE SECOND MOTION FOR SUMMARY JUDGMENT

[190] AND FINDING MOOT DEFENDANT LIVINGTON COUNTY’S

MOTION FOR SUMMARY JUDGMENT [191]

I. Introduction

Before the Court is Defendant Livingston County’s Motion for Leave to File

Second Motion for Summary Judgment [190] and Motion for Summary Judgment

[191], both filed on December 6, 2013. Plaintiff Susan Terrell filed a Response [192]

on January 8, 2014. Defendant Livingston County filed a Reply [193] on January 15,

2014.

For the reasons stated below, Defendant Livingston County’s Motion for Leave

to File Second Motion for Summary Judgment [190] is DENIED and Defendant

Livingston County’s Motion for Summary Judgment [191] is found MOOT.

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II. Procedural Background

On March 24, 2009, Plaintiffs Curen Essex, Alicia Bulko, Elizabeth Zubor, and

Susan Cook filed their Complaint [1] in this matter. On August 12, 2010, Plaintiff

Susan Terrell’s case was consolidated [36] with the original four Plaintiffs. Following

this consolidation and a scheduling conference on August 27, 2010, the discovery

deadline was set for May 4, 2011 and disposition motion deadline was set for June 4,

2011.

On November 12, 2010, Defendants Livingston County, Robert Bezotte, and

Tom Cremonte filed their initial Motion for Summary Judgment [43]. Due to several

delays in discovery, caused in part by Defendants’ failure to facilitate the scheduling

of depositions, this Court entered an Order [117] granting Plaintiff Terrell’s Motion

to Adjourn [110] the hearing on Defendants’ Motion for Summary Judgment [43].

Following the filing of supplemental responses to the Motion [43], the passing of the

discovery deadline, and Defendant Bezotte’s first deposition completed on August 24,

2011, the hearing on the Motion for Summary Judgment [43] was held on September

27, 2011. Pursuant to this hearing, this Court entered an Order [128] granting in part

and denying in part Defendants’ Motion for Summary Judgment [43], granting the

Motion [43] only as to Defendant Cremonte and denying the Motion [43] as to all

other Defendants.

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Defendants filed a Notice of Appeal [130] of this Order [128] on October 4,

2011. Defendants Livingston County and Bezotte filed a Motion to Stay Proceedings

[145] on July 25, 2012 based upon the pending appeal. This Court entered an Order

[159] denying the Motion to Stay Proceedings [145] on November 2, 2012. On

November 15, 2012, the Sixth Circuit Court reversed [165] this Court’s Order [159],

granting the Motion to Stay [145] and staying all discovery in this case.

On March 25, 2013, the Sixth Circuit Court then filed an Opinion [174] in this

matter, reversing in part this Court’s Order [128], and granting in part and denying in

part Defendants’ Motion for Summary Judgment [43]. The Sixth Circuit Court remand

the matter to this Court, requiring that this Court grant Defendant Bezotte qualified

immunity and dismiss Plaintiffs’ case against him in his individual capacity. The Sixth

Circuit Court declined to rule as to the merits of Defendant Livingston County’s

claims because the court’s jurisdiction was limited to the interlocutory appeal of

Defendant Bezotte’s qualified immunity defense. On May 14, 2013, the Sixth Circuit

Court issued a mandate [175] pursuant to this Opinion [174]. Pursuant to this Mandate

[175], this Court entered an Order [176] on May 17, 2013, dismissing this case as to

Defendant Bezotte.

Following this Order [176], further discovery was completed on November 6,

2013, with the depositions of Defendant Robert Bezotte and Deputy Terry Davis.

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III. Analysis

The Eastern District of Michigan Local Rule 7.1(b)(2) states that “[a] party

must obtain leave of court to file more than one motion for summary judgment. For

example, a challenge to several counts of a complaint generally must be in a single

motion.” “Matters of docket control and discovery are within the sound discretion of

the district court. The court of appeals will not interfere with the trial court's control

of its docket except upon the clear showing that the procedures have resulted in actual

and substantial prejudice to the complaining litigant.” In re Air Crash Disaster, 86

F.3d 498, 516 (6th Cir. 1996).

In Defendant Livingston County’s Motion for Leave to File Second Motion for

Summary Judgment [190] now before the Court, Defendant Livingston County make

two arguments in favor of this Court granting leave. First, Defendant argues that

discovery was only completed on November 6, 2013 when Defendant Bezotte and

Deputy Davis’s depositions were taken. As such, Defendant asserts that its Second

Motion for Summary Judgment [191] was filed within the thirty-day period following

the completion of discovery, as allowed by Federal Rule of Civil Procedure 56(b).

However, Defendant Livingston County fails to acknowledge that its Second

Motion for Summary Judgment [191] makes nearly identical arguments as those made

in the first Motion for Summary Judgment [43] filed more than three years ago.

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Defendant also fails to note that the first Motion [43] was decided after the then

relevant discovery deadline, and that the Second Motion for Summary Judgment [191]

makes little if any reference to the two most recent depositions.

Defendant Livingston’s second argument in favor of granting leave points to

the portion of the Sixth Circuit Court’s Opinion [174] that states “[d]espite our

determination on qualified immunity, the question of whether Bezotte was deliberately

indifferent in implementing policies pertaining to deputy training and supervision is

not necessarily resolved; consequently, the issue of the County’s potential liability is

unresolved at this early stage of the litigation.” Here, the Sixth Circuit Court addresses

its lack of jurisdiction over Defendant Livingston County’s claims, as the Court’s

jurisdiction was limited to the interlocutory appeal of this Court’s denial of qualified

immunity as to Defendant Bezotte. Therefore, in arguing that “the time is now

appropriate for [this] Court to address whether or not Livingston County is entitled to

summary judgment, since the issue of the County’s alleged deliberate indifference has

been answered through discovery,” Defendant Livingston County misconstrues the

Sixth Circuit Court’s Opinion [174] and takes this text out of its larger context.

Specifically, Defendant attempts to use this portion of the Sixth Circuit Court’s

Opinion [174] to show that the Sixth Circuit Court affirmatively held that further

discovery would necessarily clarify and resolve the claim against Defendant, or that

Defendant is now entitled to reconsideration of the claim given further discovery.

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Instead, this portion of the Opinion [174] simply made passing reference to the fact

the Sixth Circuit Court did not have jurisdiction over the matter and that the claim

could be resolved later in the process of litigation. Again, the Opinion [174] simply

holds that the Sixth Circuit Court does not have jurisdiction over Defendant

Livingston County’s claims under the interlocutory appeal, and that Plaintiffs’ claims

against Defendant Livingston County remain unresolved.

Because Defendant Livingston County has failed to show any compelling

reason for the filing of a second motion for summary judgment, Defendant’s Motion

for Leave to File Second Motion for Summary Judgment [190] is DENIED.

IV. Conclusion

For the reasons stated above, Defendant Livingston County’s Motion for Leave

to File Second Motion for Summary Judgment [190] is DENIED, Defendant

Livingston County’s Motion for Summary Judgment [191] is now MOOT.

Therefore, IT IS HEREBY ORDERED that Defendant Livingston County’s

Motion for Leave to File Second Motion for Summary Judgment [190] is DENIED.

IT IS FURTHER ORDERED that Defendant Livingston County’s Motion for

Summary Judgment [191] is now MOOT.

SO ORDERED.

s/Arthur J. Tarnow

ARTHUR J. TARNOW

SENIOR UNITED STATES DISTRICT JUDGE 

Dated: March 12, 2014

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