2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 1 of 11 Pg ID 1514 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 1 of 11 Pg ID 1514 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MICHAEL BRYANTON, GLENN REHAHN, CHERYL MERRILL, RICHARD L. ROBINSON, SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 517M, SEIU MICHIGAN STATE COUNCIL, LATIN AMERICANS FOR SOCIAL AND ECONOMIC DEVELOPMENT (LA-SED), AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, No. 2:12-cv HON. PAUL D. BORMAN MAG. PAUL J. KOMIVES Plaintiffs, v RUTH JOHNSON, in her official capacity as Michigan Secretary of State, Defendant. Andrew A. Nickelhoff (P37990) Mary Ellen Gurewitz (P25724) Attorneys for Plaintiffs 1000 Farmer Street Detroit, Michigan anickelhoff@sachswaldman.com megurewitz@sachswaldman.com Ann M. Sherman (P67762) Christina M. Grossi (P67482) Denise C. Barton (P41535) Assistant Attorneys General Attorneys for Defendant P.O. Box Lansing, Michigan shermana@michigan.gov grossic@michigan.gov bartond@michigan.gov / Maryann Parker Attorney for SEIU Local 517M & SEIU Michigan State Council 1800 Massachusetts Ave NW Washington, DC Maryann.parker@seiu.org Daniel S. Korobkin (P72842) Attorney for Plaintiffs 2966 Woodward Avenue Detroit, Michigan dkorobkin@aclumich.org 1

2 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 2 of 11 Pg ID 1515 DEFENDANT S MOTION TO STRIKE In support of her Motion to Strike Plaintiffs Exhibit List and attached exhibits (R. 38) filed with the Court on October 12, 2012, Defendant Secretary of State Ruth Johnson states as follows: 1. On September 27, 2012, this Court issued an order regarding procedures for the preliminary injunction hearing on October 5, 2012 (See R. 15). 2. The Order required the parties to identify and exchange with opposing counsel each exhibit and each deposition proposed as an exhibit for the preliminary injunction hearing. Exhibits were to include both items that would be introduced and items that may be introduced at the hearing. Additionally, exhibits were to be marked by counsel in advance of the hearing. 3. The Court further ordered that agreed-upon exhibits and depositions shall be considered admitted at the outset of the hearing and may be used by either party at any time. (Court s Order Regarding Procedures for Preliminary Injunction Hearing, p 2)(emphasis added). 4. The parties identified and exchanged Exhibit Lists prior to the October 5, 2012 hearing; a Joint Exhibit List was filed with the Court on October 4, 2012 (See R. 33). 5. The Joint Exhibit List contained the exhibits that would or could be used at the hearing by each party as well as any objections to admission of the proposed exhibit (See Joint Exhibit List, R. 33). 2

3 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 3 of 11 Pg ID The Plaintiffs did not object to any of Defendant s proposed exhibits (Defendants Exhibits ); Defendant objected to forty-five (45) of Plaintiffs sixty-six (66) exhibits (See Joint Exhibit List, R. 33). 7. Pursuant to the Court s Order, exhibits not objected to were admitted at the outset of the preliminary injunction hearing on October 5, Thus, Defendant s Exhibits were deemed admitted as no objection to the same was made by Plaintiffs. In addition, Defendant introduced Exhibit 523 (Pre-Clearance Letter from the Department of Justice) during the preliminary injunction hearing and moved for its admission. Plaintiff did not object and the Court admitted Defendant s Exhibit Plaintiffs did not move for admission, nor did the Court admit, any of Plaintiffs exhibits during the hearing. 9. At the end of the hearing, this Court issued a ruling from the bench and advised the parties that a written opinion would follow on Tuesday, October 9, At this time, the parties rested and the record was closed. 10. Plaintiffs have now filed their Exhibit List (with attached exhibits) from the preliminary injunction hearing with the Court in violation of the Court s Order; accordingly, the filing must be struck. 11. In accordance with Local Court Rule, Defendant sought concurrence in this motion from Plaintiffs counsel; concurrence was denied on October 15, WHEREFORE, Defendant Secretary of State respectfully requests that this Court enter an order striking Plaintiffs Exhibit List (and attached exhibits) and 3

4 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 4 of 11 Pg ID 1517 order any further and additional relief as it deems appropriate. Furthermore, Defendant requests that she be awarded her costs and fees incurred in filing this motion as this is the third filing Plaintiffs have made in this case which is clearly contrary to the rules and/or Order of the Court (see R. 4, Plaintiffs Motion and Brief for Preliminary Injunction, R. 9, Plaintiffs Supplemental Memorandum and R. 14, Order striking Supplemental Memorandum). 4

5 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 5 of 11 Pg ID 1518 BRIEF IN SUPPORT OF DEFENDANT S MOTION TO STRIKE CONCISE STATEMENT OF ISSUE PRESENTED 1. Should Plaintiff s Exhibit List (and exhibits) filed with the Court on October 12, 2012 (R. 38) be struck in that it violates the Court s Order of September 27, 2012 regarding procedures to be followed by the parties during the course of the preliminary injunction hearing? Plaintiffs say no Defendant says yes i

6 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 6 of 11 Pg ID 1519 CONTROLLING OR MOST APPROPRIATE AUTHORITY Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43 (1st Cir. 2002) O'Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152 (1st Cir. 2004) ii

7 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 7 of 11 Pg ID 1520 Introduction On September 27, 2012, this Court issued an order regarding procedures to be followed by the parties during the course of the preliminary injunction hearing which took place before the Court on October 5, (See R. 15). The Order required the parties to identify and exchange with opposing counsel each document proposed as an exhibit for the preliminary injunction hearing and was to include both exhibits that would be used and exhibits that may be used. Id. Additionally, exhibits were to be marked by counsel in advance of the hearing. Id. Furthermore, the Court specifically ordered that agreed-upon exhibits and depositions shall be considered admitted at the outset of the hearing and may be used by either party at any time. Court s Order Regarding Procedures for Preliminary Injunction Hearing, p. 2) (emphasis added). Plaintiffs and Defendant identified exhibits and exchanged lists prior to the October 5, 2012 hearing; a Joint Exhibit List was filed with the Court on October 4, (See R. 33). The Joint Exhibit List contained each party s proposed exhibits as well as any objections to the admission of the proposed exhibits by opposing counsel. (See Joint Exhibit List, R. 33). The Plaintiffs did not object to any of Defendant s proposed exhibits (Defendant s Exhibits ). Therefore, pursuant to the Court s Order, Defendant s Exhibits were deemed admitted at the outset of the hearing. During the course of the preliminary injunction hearing, Defendant also introduced an additional exhibit Preclearance Letter from the Department of Justice. (Defendant s Exhibit 523.) The letter was not on the Defendant s Exhibit List because it was not received from the Department of Justice 1

8 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 8 of 11 Pg ID 1521 until the evening of October 4, 2012 after the Joint Exhibit List had been filed with the Court. Defendant marked the Preclearance Letter as Defendant s Exhibit 523 and moved for its admission. Plaintiffs did not object, and the Court admitted Defendant s Exhibit 523. Thus, by the end of the preliminary injunctive hearing, all of Defendant s exhibits had been admitted. In the Joint Exhibit List filed by the parties, Defendant objected to forty-five (45) of Plaintiffs sixty-six (66) exhibits (See Joint Exhibit List, R. 33). 1 During the course of the hearing, Plaintiffs did not seek to offer any of the objected-to exhibits; nor did the Court admit any of the same. During the course of the preliminary injunction hearing, Plaintiffs also identified two exhibits that had not been identified on the Joint Exhibit List Plaintiff s Exhibit 167 (Official Ballot for City of Detroit) and Plaintiff s Exhibit 168 (2012 Voter Registration Totals). Despite having discussed Exhibits 167 and 168 during her opening statement to the Court, Plaintiff s counsel never moved to admit (nor did the Court admit) either Exhibit 167 or 168. Therefore, but for Plaintiffs Exhibits 101, 105, 107, 121, 133, 135, 141, , and 165 (which were stipulated to by Defendant), none of Plaintiffs Exhibits were admitted at the hearing. Legal Argument In the Court s Order Regarding Procedures for Preliminary Injunction Hearing, the Court directed the parties to file a joint list of exhibits and depositions on or before 4:00 p.m. on October 4, Id. at 2 (emphasis added). 1 Exhibits 101, 105, 107, 121, 133, 135, 141, , and 165 were stipulated to by Defendant. 2

9 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 9 of 11 Pg ID 1522 The Court did not direct either party to file an individual list or instruct that actual exhibits be filed with the Court. Contrary to the Court s Order, the Plaintiffs filed a complete list of their proposed exhibits (including the two additional exhibits identified during the course of the hearing Exhibit 167 and 168) with the Court on October 12, The Plaintiffs list and exhibits were filed with the Court a week after the hearing on the preliminary injunction and two days after the Court entered its Opinion and Order granting Plaintiff s motion for a preliminary injunction in this case. (Court s Order dated October 10, 2012, R. 34.) The Court s Order Regarding Procedures for Preliminary Injunction Hearing is analogous to a Joint Final Pretrial Order required to be filed prior to trial in accordance with LR The purpose of the Joint Final Pretrial Order is to supersed[e] the pleadings and govern[] the course of trial unless modified by further order. LR 16.2(a). In this case, the Court ordered that agreed-upon exhibits shall be considered admitted at the outset of the hearing and may be used by either party at any time. Id. at 2. Therefore, only Plaintiffs Exhibits 101, 105, 107, 121, 133, 135, 141, and 165 were admitted at the preliminary injunction hearing. The remainder of exhibits cannot be considered part of the record in this action. And, the trier of fact cannot consider evidence that was not admitted during the course of the hearing. Furthermore, the Court did not provide leave for the filing of any additional exhibits after the hearing and proofs were closed in this matter. Plaintiffs disregard of the Court s Order governing the course 3

10 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 10 of 11 Pg ID 1523 and conduct of the preliminary injunction hearing should be sanctioned by striking the offending pleading and awarding Defendant her costs and fees. 2 Conclusion and Requested Relief Pursuant to the aforementioned, Plaintiff s Exhibit List (and attached Exhibits) should be struck. The Court has not provided the parties with leave to file exhibits with the Court (to the contrary, the Court ordered that only a Joint Exhibit List be filed); and, the vast majority of the exhibits that Plaintiffs have improperly attempted to make part of the Court s record were never introduced or admitted at trial. Accordingly, Defendant Secretary of State respectfully requests that this Court enter an order striking Plaintiff's Exhibit List (and attached exhibits) and order any further and additional relief as it deems appropriate. Furthermore, Defendant requests that she be awarded her costs and fees incurred in filing this motion as this is the third action Plaintiffs have taken in this case clearly contrary to the rules and/or Order of the Court (see R. 4, Plaintiffs Motion and Brief for Preliminary Injunction, R. 9, Plaintiffs Supplemental Memorandum and R. 14, Order striking Supplemental Memorandum). 2 See also Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir. 2002) ( Scheduling orders are essential tools in [case management] and a party's disregard of such orders robs them of their utility. ). For Rule 16(b) to operate effectively, litigants cannot be permitted to treat a scheduling order as a frivolous piece of paper idly entered, which can be cavalierly disregarded without peril. O'Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 155 (1st Cir. 2004) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)). 4

11 2:12-cv PDB-PJK Doc # 40 Filed 10/22/12 Pg 11 of 11 Pg ID 1524 Respectfully submitted, BILL SCHUETTE Attorney General Dated: October 22, 2012 Christina M. Grossi Christina M. Grossi (P67482) Ann M. Sherman (P67762) Denise C. Barton (P41535) Assistant Attorneys General Attorneys for Defendant P.O. Box Lansing, MI grossic@michigan.gov P67482 CERTIFICATE OF SERVICE I hereby certify that on October 22, 2012, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing of the foregoing document as well as via US Mail to all non-ecf participants. s/christina M. Grossi Christina M. Grossi P.O. Box Lansing, Michigan grossic@michigan.gov P