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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DWUAN FREEMAN,

Plaintiff, No. 09-CV-13184

vs. Hon. Gerald E. Rosen

CITY OF DETROIT AND DETROIT

POLICE OFFICER JAMES NAPIER,

Defendants.

_______________________________/

OPINION AND ORDER DENYING PLAINTIFF’S

MOTION FOR RECONSIDERATION

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on June 24, 2011 

PRESENT: Honorable Gerald E. Rosen

United States District Chief Judge

This matter is presently before the Court on Plaintiff’s June 1, 2011 Motion for

Reconsideration of the Court’s May 16, 2011 Opinion and Order granting Defendant City

of Detroit’s Motion for Partial Summary Judgment. Plaintiff makes no new substantive

arguments in seeking reconsideration of the Court’s ruling that Defendant was entitled to

summary judgment on Plaintiff’s Monell-based policy and practice/ failure to train claim. 

Rather, his Motion for Reconsideration is based entirely upon his argument that the Court

acted prematurely in entering its Opinion and Order on May 16.

As indicated in the Court’s May 16, 2011 Opinion, Defendant’s Motion for Partial

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 With respect to the depositions of Officers Napier and McGinnis, noting that

counsel for the parties were in agreement that Napier’s deposition was timely noticed,

and that, even though he had not received a timely notice for McGinnis, defense counsel

had agreed in September 2010 to produce both Defendant Napier and McGinnis for their

depositions, the Magistrate Judge stated, “It therefore strains the imagination to

contemplate why these two depositions have not gone forward. [Therefore,] the Court

will grant Plaintiff’s motion as to Defendant Napier and Officer McGinnis and order that

the depositions be completed immediately.” [4/5/11 Order, Dkt. # 44 (emphasis added).]

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Summary Judgment was filed on August 30, 2010. Plaintiff did not timely file a

response to Defendant’s Motion. It was only after being ordered to respond to the

Motion [see Dkt. # 36] that Plaintiff finally filed his Response on December 17, 2010. 

In that Response, Plaintiff requested that the Court hold in abeyance its ruling on

Defendant’s Motion to allow for the Magistrate Judge to render her decision on

Plaintiff’s then pending Motion to Compel Depositions. The Court complied with

Plaintiff’s request.

The Magistrate Judge issued her ruling on the Motion to Compel on April 5, 2011. 

In her Order, the Magistrate Judge granted Plaintiff’s Motion to Compel the depositions

of Defendant Napier and Officer McGinnis, but denied the Motion as to the 7 other

depositions Plaintiff sought -- the depositions of six other non-party Detroit Police

Officers and one Rule 30(b)(6) deponent -- because Plaintiff did not properly notice these

deponents for discovery before the close of the discovery period.1

 The Magistrate

Judge’s Order was explicit:

IT IS THEREFORE ORDERED that Plaintiffs [sic] Motion to Compel

Depositions (docket no. 26) is GRANTED in part as follows:

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a. The depositions of Defendant Officer James Ivan Napier and Officer

Michael McGinnis will go forward and be completed on two dates

within 14 days of entry of this order, with each deposition not to

exceed one day of seven hours and to be completed in accordance

with Fed. R. Civ. P. 30(d)(1) and the parameters set forth in the

Court’s Scheduling Order (docket no. 13);

b. Plaintiff may file an Amended Response To Defendant’s Motion for

Summary Judgment within fourteen (14) days of the completion of

the latter of Defendant Officer Napier’s and Officer McGinnis’s

depositions.

IT IS FURTHER ORDERED that the remainder of Plaintiff’s Motion to

Compel depositions, including the request for sanctions is DENIED.

[4/5/11 Order, Dkt. # 44 (emphasis added).]

Notwithstanding that the parties were explicitly and unequivocally ordered to

complete the depositions of Napier and McGinnis within 14 days of April 5, 2011 -- i.e.,

by April 19, 2011 -- without requesting relief from the Magistrate Judge or this Court or

otherwise seeking an amendment of the April 5th Order, the parties simply decided

themselves to deviate from the deadline set by the Magistrate Judge and did not even

commence the depositions until April 27, 2011. Defendant Napier was deposed on that

date (April 27). McGinnis was deposed a week later, on May 5, 2011.

Plaintiff now argues that because they did not complete McGinnis’s deposition

until May 5, 2011, he had until May 19, 2011 to file an Amended Response, and the

Court, therefore, erred when it entered its Opinion and Order three days earlier, on May

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 Though Plaintiff’s counsel states he was in the process of drafting an Amended

Response when the Court’s Opinion was issued on May 16, no such Amended Response

was ever filed. Indeed, even as of this date, he has made no effort to submit any such

Amended Response for the Court’s consideration.

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16, 2011.2

Plaintiff ignores the fact that he was given only until April 19 to complete

Napier’s and McGinnis’s deposition and that, pursuant to Magistrate Judge Majzoub’s

Order, he, therefore, had only until May 3, 2011 to file an Amended Response. When no

Amended Response was filed by that date, the Court properly proceeded with deciding

Defendant’s Motion for Partial Summary Judgment based on the record before the Court

at that time.

The grounds for granting a Motion for Reconsideration are set forth in Eastern

District of Michigan Local Rule Rule 7.1(h), which provides in relevant part:

Generally, and without restricting the court's discretion, the court will not

grant motions for rehearing or reconsideration that merely present the same

issues ruled upon by the court, either expressly or by reasonable

implication. The movant must not only demonstrate a palpable defect by

which the court and the parties and other persons entitled to be heard on the

motion have been misled but also show that correcting the defect will result

in a different disposition of the case. 

Local Rule 7.1(h)(3), U.S. District Court, Eastern District of Michigan. A “palpable

defect” is “a defect that is obvious, clear, unmistakable, manifest or plain.” United States

v. Lockette, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004). As indicated above, there was

no “obvious, clear, unmistakable, manifest or plain” defect with regard to the Court

deciding Defendant’s Motion for Partial Summary Judgment on May 16, 2011.

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The unilateral decision of counsel to postpone the depositions until April 27 and

May 5 does not entitle Plaintiff to the relief he requests. A court order “is not a frivolous

piece of paper, idly entered, which can be cavalierly disregarded by counsel without

peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992) (citing

Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D.Me.1985)). Disregard of the

order would not only undermine the court’s ability to control its docket and disrupt the

course of the litigation, but also it would effectively “reward the indolent and the

cavalier.” Id. Furthermore, from a practical standpoint, to permit Plaintiff here to take

advantage of an independent agreement of counsel to expand the parameters of a courtordered deadline would permit the parties to depose witnesses and potentially generate

discovery disputes right up to the date of trial. The Court will not condone such

undermining of the public’s interest in the prompt and efficient administration of justice.

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration [Dkt. #

49] is DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: June 24, 2011

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

on June 24, 2011, by electronic and/or ordinary mail.

s/Ruth A. Gunther 

Case Manager

. 

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