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Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3347 Page 1 of 27 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION CURTIS E. BLACKWELL, II, Plaintiff, Case No. 1:18-cv-1261 v. Hon. Janet T. Neff Mag. Judge Sally J. Berens LOU ANNA K. SIMON, MARK DANTONIO, et al., Defendants. PLAINTIFF’S OBJECTIONS TO REPORT AND RECOMMENDATION AND APPEALS TO ORDER/REFERRAL Plaintiff, Curtis Blackwell, II, by and through his attorneys, the Law Offices of Thomas R. Warnicke, PLLC and Andrew Paterson, states in support of: (1) his Objections to the Report and Recommendation; and (2) his Appeals to Magistrate Berens’ Memorandum Opinion and Order as follows: 1 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3348 Page 2 of 27 I. INTRODUCTION This is high-profile case because it involves the former President, Athletic Director and Football Coach of Michigan State University. It also stems from two highly publicized criminal matters involving MSU football players. Before Plaintiff’s contract with MSU was not renewed at the end of May 2017, and well before this case was filed in November of 2018, the media was heavily reporting on the underlying matters. Further fueling the media’s attention to these matters was the Larry Nassar tragedy and cover-up at MSU. Despite the enormous amount of attention that MSU was receiving well before the lawsuit was filed, Plaintiff and his counsel have been accused by Magistrate Berens of harassing Defendants, filing this case for media attention, and using this case to “bolster” its state court case. Magistrate Berens has thrown the book at Plaintiff and his counsel, seemingly blaming them for the massive amount of negative press and publicity that MSU has received. MSU has created their own problems, yet, Magistrate Berens, for reasons unknown, directs her wrath at Plaintiff and his counsel. This Court should not allow Plaintiff to be the “scapegoat” to MSU’s misgivings. As is more fully set forth below, much of the reasoning in Magistrate Berens’ Report and Recommendation (“R&R”) and Orders are fatally flawed and illogical. Plaintiff’s counsels’ conduct has not been perfect throughout the course of the litigation, but mere inadvertence, inattention and minor mistakes certainly do not give rise to the overreaching, massive and oppressive sanctions that have been launched against Plaintiff and his counsel. After initially cooperating in the MSU PD investigation into the alleged January 2017 sexual assault, Plaintiff was wrongfully arrested without probable cause for allegedly interfering with the investigation. Plaintiff then asserted his 5th Amendment right. Plaintiff’s claims in this case are that he was suspended and terminated, and least in significant part, because he asserted 2 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3349 Page 3 of 27 his 5th Amendment right. Plaintiff has ample support for his claim. He was the only person in MSU’s football program that was arrested, despite the fact that the Ingham County Prosecutor’s Office determined formal charges were not warranted against Plaintiff. Plaintiff was an exemplary 4-year employee prior to his asserting his 5th Amendment claim. Additionally, Plaintiff received no warnings prior to his contract not being renewed. Defendant Dantonio, MSU’s General Counsel, and other MSU management employees have provided multiple inconsistent reasons for the non-renewal of Plaintiff’s contract (See ECF No. 223). All areas that Plaintiff sought discovery on were directly related to Plaintiff’s claims in this case, including attacking Defendant Dantonio’s credibility as the sole person who could explain why Plaintiff was terminated. As set forth herein, Plaintiff has the right to have his case decided on the merits. Dismissal of Plaintiff’s claims, removal of his attorneys, monetary sanctions, and a referral of Attorney Paterson are not warranted. For the reasons as more fully stated below, Plaintiff objects to Magistrate Berens’ Report and Recommendation in its entirety. Specifically, (1) the case should not be dismissed as to Plaintiff’s claims against the MSU Defendants; and (2) Plaintiff’s counsel shall not be removed from the case as counsel. Plaintiff appeals Magistrate Berens’ Orders on fees and costs. As to the individual orders: (1) Plaintiff does not appeal the denial of Plaintiff’s Motion to Compel Defendant Dantonio’s deposition, except as it relates to costs and fees; (2) Plaintiff does not appeal the denial of Plaintiff’s Motion for Protective Order regarding 30(b)(6) depositions and document subpoenas, but does appeal the award of attorneys’ fees and costs pertaining to same; (3) Plaintiff does appeal the Detective Defendants’ Motion for Sanctions as it relates to the removal of counsel and monetary sanctions; (4) With respect to the SMSB entities, SMSB will produce the documents requested in the subpoenas; (5) Plaintiff does not appeal Magistrate Berens’ Order on Michelle 3 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3350 Page 4 of 27 Franklin’s Motion for a Protective Order as it relates to the deposition, but does appeal the portion pertaining to the award of costs and fees; and (6) Plaintiff objects to the Order referring Attorney Paterson to the Chief Judge for consideration of discipline. II. ANALYSIS A. Magistrate Berens’ Assumptions are Fatally Flawed Magistrate Berens boldly declares that she somehow knows the “intent” of Plaintiff and his counsel. Two of her many unsupported assumptions, replete throughout the Report and Recommendation are that, “Plaintiff maintained this lawsuit for the purpose of adducing discovery to file a potentially stronger claim in another forum” and; (2) Plaintiff filed and maintained this lawsuit “to harangue the MSU Defendants into exhausted compliance in the form of settlement.” (ECF No. 234; PageID.3001). Putting aside the obvious fact that Magistrate Berens is not a mind reader, she cannot credibly know Plaintiff’s psyche or “intent,” and has certainly not been privy to Plaintiff’s legal strategy. She therefore cannot possibly know the exact reason why Plaintiff filed/maintained this lawsuit and/or his intentions for same, such assumptions are just that – assumptions – and they are wrong. B. Plaintiff Did Not Abuse the Process of This Court Magistrate Berens’ first hypothesis is that this case was maintained for the purpose of obtaining discovery to pursue the state court case. This hypothesis is not true and it is illogical. As a starting point, Plaintiff (which he eventually did) could have simply filed his claims in state court and obtained the exact same information that he obtained in the present federal court case – he did not need to use the federal court case to gain information to prosecute his case in state court. Additionally, in his state court case, Plaintiff is entitled to all of the discovery, and more, that took 4 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3351 Page 5 of 27 place in the instant federal court. 1 Accordingly, there was no tactical advantage to Plaintiff to use the discovery process in federal court for use in his state court case. Notably, Magistrate Berens failed to point to any specific information that Plaintiff “wrongfully” obtained in this case. In fact, much of the information that Plaintiff obtained and referenced in his various motions was obtained through Plaintiff’s own efforts, and not through discovery process. For example, the affidavit which detailed Dantonio’s NCAA violations was obtained by Plaintiff and his counsel – it was not produced in discovery or otherwise obtained in any way from Defendants. As clear evidence of the fatal flaws in Magistrate Berens’ hypothesis, one need not look further than doing a comparison of Plaintiff’s recently filed state court and his Proposed First Amended Complaint (which Plaintiff attempted to file over a year ago and before any discovery was taken). The two complaints are substantially similar, showing that there was very little information obtained from the federal court case that was utilized in the state court case. If Plaintiff had of improperly used discovery in the federal court case to pursue his state court case, it follows that there would have been substantive information obtained from the federal court case in the state court complaint. That was not the case. In a passing reference, Magistrate Berens states that Plaintiff’s counsel’s 11-month delay in filing the state court case “speaks volumes.” Putting aside the fact that this is yet another apparent mind-reading tactic, it is plainly unsupported, baseless and a below the belt insult that has no merit. It is apparent that Magistrate Berens has not been a sole practitioner. Plaintiffs’ lawyers are sole practitioners with busy practices and have many, many other clients. The delay was due only to limitations on time – and nothing more. Indeed, litigating just this matter alone 1 Indeed, Plaintiff would have been entitled to take the deposition of all the named Defendants, including Dantonio, in the state court case. 5 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3352 Page 6 of 27 has been a full-time endeavor. Thus, the only “haranguing” being done is on the part of Defendants, who endeavor to use their sheer power, money and resources to attempt to bludgeon Plaintiff into submission. C. Defendants, not Plaintiff, Interjected the Alleged “Irrelevant” Information into This Case The truth of the matter, which Magistrate Berens conveniently ignores, is that it was Defendants, not Plaintiff, who initially injected these purportedly “irrelevant,” “abusive” and “harassing” issues into this case. Plaintiff’s deposition, taken on August 12, 2019, was the very first deposition taken in this case, and was taken well before Plaintiff engaged in any of his own discovery. Plaintiff’s deposition transcript (filed under seal) is replete with references to race, Auston Robertson and purported NCAA violations – the same topics that Plaintiff is now being sanctioned for and all of which formed the basis of the Magistrate’s decision to recommend dismissal of Plaintiff’s claims. Using Magistrate Berens’ logic, it is Defendants’ counsel who have deliberately and egregiously failed in their duty of candor to this Court by not informing this Court that they in fact asked Plaintiff in-depth and repeated questions at his deposition about race discrimination, NCAA violations and the recruiting/admission of Auston Robertson. By way of example and not limitation, attorney Kienbaum asked Plaintiff page after page after page (from Blackwell Dep. Pages 216-289) of questions relating to Plaintiff’s claims of race discrimination including but not limited to the following: 1. Plaintiff’s discussions with MSU Trustee Joel Ferguson about race discrimination playing a role in Plaintiff’s arrest and suspension; (Blackwell Dep. at 216-218); 2. “What is it about Dr. Simon that leads you to conclude she took your race into account in suspending you?” (Page 217); 3. “And after you would talk to him, after the February 8th, did he repeat his view that race had something to do with Dr. Simon's decision to suspend you?” (Page 233) 6 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3353 Page 7 of 27 4. “At the risk of hearing from Mr. Warnicke on this, I'm going to try explain to you the difference between an opinion and factual evidence, okay? Factual evidence by way of example of a claim of race discrimination is somebody -- I'm black, somebody paid me less than a ·white person. Race discrimination might be use of then N word, of course, serious evidence, right? (Page 235); 5. “But somebody saying, look, I think it's because you're a black man, that's an opinion unless that person also ·gives you some evidence, such as you've been paid less than a comparable Caucasian person, there's a racial comment that was made, that kind of thing. With that in mind, did you ever hear of evidence as opposed to · · ·opinions from someone that your race had anything to do with the way you were treated in connection with this event of January 16, 17 and the investigation and so forth?” (Page 235) 6. “Okay, anything other than you feel you · · ·were arrested as the "only one" under these circumstances, is there any other evidence that you can point to that your race had anything to do with the way you were treated either in connection with the suspension, the investigation, your nonrenewal of contract? (Page 236); 7. “This may be a stupid question in light of that, but did you ever conclude that Coach Dantonio thought less of you because you were black or treated you negatively because you are black?” (Page 250); 8. “And you don't think your race had anything to do with whatever decision making part he (Dantonio) had, right? (Page 261-262); 9. “And how do you explain that he (Dantonio) would all of a sudden see you as a black man differently than a black man before that time who received some favored treatment?” (Page 262); 10. “And that conclusion, again, you've told us everything that leads you to that statement of opinion?” (Page 262); 11. “Is there a white guy you can think of who was favored as you say you were in connection with your contract and your treatment while you were there?” Page (285); 12. “And is there anything along the lines of racial discrimination that you think you heard about Tim Allen?” (Page 287); Further, Defendants’ asked Plaintiff at his deposition voluminous questions about Auston Robertson. Most significantly, Defendant’s counsel asked Plaintiff during his deposition questions about the recruiting and admissions of Auston Robertson as follows: 7 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3354 Page 8 of 27 1. “Go to the next page, please. These are texts from and to Auston Robertson. And first of all, I think you identified earlier your involvement in Auston Robertson's recruitment, correct?” (Page 113); 2. “And I understood or my takeaway from what you said was, you and other people told the main decision makers to not bring Auston Robertson on because he was too much of a risk?” (Page 113); 3. “And specifically a sexual assault risk?” (Page 113); 4. Attorney Kienbaum asked Plaintiff repeated questions about Auston Robertson’s sexual misconduct background, the recruiting process; (Pages 328-332). Lastly, an additional area that Defendants asserted to this Court was not relevant to the claims in this case is NCAA Rules and Regulations (and/or violations thereof). Again, Defendants propounded such questions to Plaintiff during his deposition. (Plaintiff’s Dep at pp. 168-170. 2 Therefore, even the most cursory review of Plaintiff’s deposition reveals countless questions propounded to Plaintiff relating to claims of race discrimination, questions about the recruitment of Auston Roberson, as well as NCAA Rules and Regulations – all topic areas of which were put into issue by Defendants, not Plaintiff. Yet it is Plaintiff who is being sanctioned for injecting “non-relevant” matter into the case. Why are Defendants not being accused by Magistrate Berens of using the federal court case to preliminarily defend the state court case (which they knew would be forthcoming and which they continually touted as the stronger of Plaintiff’s two cases)? Additionally, once these issues were put into the record (by Defendants), Plaintiff was entitled to challenge it, test the veracity of the information, and gather more information. When Plaintiff did just, and when the truth became harmful to Defendants’ case, Magistrate Berens came 2 It is not a coincidence that Plaintiff was questioned in his deposition on many questions related to the state court case. Defendants were gathering ammo to defend against the state court case. 8 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3355 Page 9 of 27 to the rescue and started sanctioning Plaintiff and counsel. That is the definition of bias and fundamental unfairness. To the contrary, fundamental fairness and a level playing field mandate that Defendants’ counsel not be given carte blanche to take discovery of certain issues on one hand, while Plaintiff gets sanctioned for the same conduct on the other hand. D. Plaintiff Did not Abuse this Court’s Process to Obtain Compliance in the Form of a Settlement. The Magistrate Judge’s assertion that Plaintiff maintained this case “as a vehicle to harangue the MSU Defendants into exhausted compliance in the form of settlement” is absurd. It is a factually inappropriate statement, backed with zero evidence and represents Magistrate Judge Berens’ personal opinions about her perceived intentions and litigation strategy of Plaintiff. It is just that – her personal opinion. Magistrate Berens purported abilities to discern a litigant’s “intent” is wholly inappropriate as a basis for any type of sanction. Magistrate Berens’ assumption is illogical. Defendants are not paying for their own defense and have a full indemnification agreement with MSU, leaving them with little incentive to reach a settlement. If Plaintiff were attempting to extort a quick settlement it would not be against his former, deep pocket employer with a limitless amount of financial resources. Moreover, MSU and/or its employees have and/or are currently being sued in many cases throughout Michigan and the United States. Plaintiff’s lawsuit here will hardly serve to “harangue” and “exhaust” Defendants into a settlement, especially when compared to MSU’s other monstrous, pending lawsuits. Logic further dictates that if Plaintiff and his attorneys truly wanted to exhaust and harangue Defendants into a settlement, he would have immediately filed his state court lawsuit. It would certainly be more “haranguing” and “exhausting” to simultaneously defend against two lawsuits rather than one. Plaintiff is pursuing his lawsuit for one reason and one reason only: for the inhumane and unlawful treatment that he was subjected to by the Defendants. Plaintiff is entitled to pursue his claims, to the full extent of 9 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3356 Page 10 of 27 his abilities, without being accused of attempting to extort a settlement. Magistrate Berens suggestion as to same is inappropriate, unprofessional and flat out baseless. E. Attorney Warnicke did Not Violate a Duty of Candor Relating to Plaintiff’s Motion to Compel the Continuation of Dantonio’s Deposition. Even a cursory review of the record and Plaintiff’s Motion to Compel the Continuation of Dantonio’s Deposition (“Motion to Compel”) shows that Magistrate Berens went out of her way to find that “Plaintiff’s counsel [Attorney Warnicke] made misleading statements in order to argue that Plaintiff was deprived of a full-seven hour deposition of Defendant Dantonio.” Magistrate Berens’ refers to “misleading statements” (plural), yet she takes issue with only one statement, and that is Attorney Warnicke’s statement that the Court set the deposition for 10 am. 3 That sentence made by Attorney Warnicke was simply meant to convey that the Court issued an administrative order setting the deposition for 10 a.m. – it was not meant to “blame” the court for the time the deposition was set, or to suggest that the time was not agreed upon by the parties. It was contained in the factual and introduction section of the motion and was not the crux of the argument. The crux of the argument was the overall concept that the deposition started at 10am, ended shortly after 5pm, and included several breaks which effectively meant that Dantonio did not sit for his entire 7-hour deposition. The filing of the Motion to Compel the deposition of Dantonio does not even remotely rise to the level of sanctionable conduct, nor does it justify fees. To the contrary, it was a well- grounded, good faith, reasonable request for relief that was based on a prior court order which allowed for a 7 hour deposition. Disputes such as these are part and parcel of the normal discovery 3 See Plaintiff’s Motion to Compel the Completion of Defendant Mark Dantonio’s Deposition and for Sanctions.” (“This Court has entered an Administrative Order accordingly, which set the deposition to begin at 10:00 a.m. on January 10, 2020) (p. 3) [ECF No. 165]. 10 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3357 Page 11 of 27 process that takes place in 1,000s of cases a day across the United States. Sanctioning Plaintiff for filing a well-grounded motion is improper. In filing the Motion to Compel, Plaintiff’s counsel was simply attempting to ensure that his client received the full benefit of the court order allowing 7 hours for Dantonio’s deposition. There is nothing about this motion that is unreasonable, in bad faith and/or sanctionable. Judge Berens’ knows this, which is why she found an indirect “back door’ way to reprimand Mr. Warnicke for filing the Motion to Compel. She is premising sanctions on alleged “misleading” statements that were contained in the Motion to Compel. That sentence was taken far out of context and paints a clear picture of Judge Berens’ obvious bias against Plaintiff and his counsel. In fact, her true motivation for creating a backdoor to assess sanctions is contained in a statement right in her order. Indeed, Magistrate Berens states that “counsel used [the deposition] as a fishing expedition to adduce testimony he subsequently used for the purpose of filing his state court case.” (ECF No. 234, PageID.3019). Notably, this reasoning has nothing at all to do with the merits of the Motion to Compel, which is whether Dantonio should be compelled to sit for the entirety of his 7 hour deposition. Instead, she uses this Motion as another way to launch her baseless, unsupported- and simply wrong – theories about Plaintiff and his claims. Any non-biased individual would be hard pressed to draw the same conclusions as Judge Berens did here. Attorney Warnicke was more than justified in filing this Motion. He was simply advocating on behalf of his client, as attorneys are tasked to do, and any attempts to penalize him for same run counter to our system of justice. Magistrate Berens’ strained reading of one sentence, taken out of context, should be given short shrift by the Court. 4 4 To be sure, sanctions against Attorney Warnicke are based on: (1) a purported misleading statement in a well-grounded Motion to Compel; (2) attorney Warnicke’s “failure” to withdraw two motions which he did not review or sign before filing; and (3) objecting to subpoenas and failing to file a motion re: same because he ran out of time, and when it is indisputable that Defendants were not prejudiced because they received all documents referenced in the subpoena. 11 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3358 Page 12 of 27 F. Magistrate Berens’ Harshest and Most Egregious Sanction Yet – Dismissal of Plaintiff’s Claim – is Wholly Unwarranted and Directly Contrary to Law Magistrate Berens acknowledges that “dismissal with prejudice is disfavored where it will work injustice as to an innocent client.” (ECF No. 234, PageID 3019)(quoting Bradley J. Delp Revocable Trust, 665 F. App’x at 521.) Despite this acknowledgment, Judge Berens nonetheless recommends the dismissal of Plaintiff’s lawsuit against the MSU Defendants. Plaintiff is an innocent client who did not draft, review, approve or even read the filings which are at issue. Nearly all of Magistrate Berens’ attacks and complaints are launched at Plaintiff’s attorneys. At no point in her 41-page R&R/Order did Magistrate Berens point to any conduct or activity which was the fault of Plaintiff Blackwell himself. 5 In fact, she admits, in the same paragraph that she acknowledges that dismissal is disfavored as to an innocent client, that her reason for launching such an oppressive sanction is because “no other sanction appears likely to dissuade Plaintiff’s counsel from the contumacious manner in which they have conducted this litigation,” again acknowledging that her sanctions are because of the attorneys’ purported behavior and not because of any conduct on the part of Plaintiff himself. (ECF No. 234) (emphasis added). In what is arguably her most egregious error in her whole opinion – and what is yet another obvious and blatant example of Judge Berens’ bias towards Plaintiff – she comes to the conclusion that Plaintiff’s claim should be dismissed because he has filed a state court action that is These bases are exceedingly thin considering the length of this litigation, the number of documents that have been filed and the hard fought nature of this litigation. 5 The R&R mentions Plaintiff Blackwell himself only one time in her 41-page opinion. Even that reference – to which she accuses Plaintiff of having had some ulterior motive to hide behind Paterson’s filings – is baseless and she offers no evidence whatsoever to support the ridiculous idea that she somehow knows Plaintiff’s internal psyche/ motivations. 12 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3359 Page 13 of 27 “duplicative” of the federal court case. 6 This argument is dubious: Magistrate Berens spends a substantive portion of her R&R arguing that Plaintiff’s discovery was improper because the state court case and federal court case are different and irrelevant to one another and should be treated as such. She states, among other things: “…Plaintiff’s counsel have used discovery, not to adduce support for the narrow claim Plaintiff alleges against the MSU Defendants in this case, but to harass…and build a case they have now filed in state court.” (ECF No. 234; Page ID.2991]. (emphasis added), and “Plaintiff’s attorneys have engaged in a pattern of seeking discovery on issues unrelated to the claim against the MSU Defendants but that might be relevant to a different claim [the claim(s) asserted in the state court action]..” (ECF No. 234; Page ID.3011] (emphasis added). However, when it comes to sanctioning Plaintiff, Magistrate Berens suddenly reverses course and declares that the state and federal cases are “duplicative.” (“Because Plaintiff has filed a separate cause of action that is more consistent with his counsel’s theory of the case, the claim in this case is duplicative of his claim.”) (ECF No. 234; Page ID.3019]. As an initial matter, the state and federal court case are not duplicative – they allege separate and distinct causes of action, and Magistrate Berens acknowledges as much. 7 Secondly, 6 Notably, she cites no legal theory that would support the dismissal of his claim as “duplicative” –e.g. res judicata, collateral estoppel, etc. – and the reason for that is clear: because there is not a legal theory that would support dismissal of the state court claims. Indeed, the claims alleged in the state court case, though there is an overlap, are different from Plaintiff’s Fifth Amendment claim in federal court. Moreover, Plaintiff has not had the opportunity to pursue his state law claims, nor have there been any final judgments or orders with respect to the merits of any of his claims asserted in either case. 7 The federal court case involves a 5th Amendment Claim, while the state court case asserts claims of Breach of Contract, Violation of Michigan’s Elliott-Larsen Civil Rights Act, Wrongful Termination in Violation of Public Policy, Defamation and Intentional Infliction of Emotional Distress. 13 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3360 Page 14 of 27 and perhaps most egregious, Magistrate Berens purports to not punish for Blackwell for filing his state court complaint, but does just that. In Footnote 11, Magistrate Berens states, “The Court does not consider Plaintiff Blackwell’s filing of the state-court action to be sanctionable conduct. In fact, the Court denied Blackwell’s motion to amend, in part, because it would decline to exercise supplemental jurisdiction over his proposed state-law claims, signaling to Plaintiff that he was free to file his proposed claims asserting alternate theories for this dismissal in state court.” Incredibly, on the next page, Magistrate Berens recommends dismissal of Plaintiff’s claim with prejudice. However, Magistrate Berens provides no legal analysis whatsoever on the elements and substantive merits of Plaintiff’s claim, rather, she simply just recommends dismissal because it is now allegedly “duplicative” of the state court case. 8 Magistrate Berens has blatantly trampled on Plaintiff’s ability to rightfully pursue his claims in this Court. Dismissal of Plaintiff’s case would result in a colossal miscarriage of justice as Plaintiff has not been given the opportunity to redress his 5th Amendment claim on the merits. Magistrate Berens should be halted in her tracks for her attempts to chill Plaintiff’s ability to pursue his claims. G. The Regional Refuse Factors Have not Been Met The Regional Refuse factors have not been met. It is well settled in that: “A court speaks through its written orders and judgments[.]” U.S. v Coccia, 598 F.3d 293, 296 (6th Cir. 2010); “[T]he Court speaks through its written orders and judgments, not its opinions and oral pronouncements.” Abner v. County of Saginaw County, 2007 U.S. Dist. LEXIS 92594, *11 (E.D. 8 Magistrate Berens even admits that she does not recommend dismissal of the claim against the detective defendants since they are not named defendants in the state court, showing that Judge Berens’ primary motivation for dismissing Plaintiff’s claim is because he filed a state court action, not because of any wrongful conduct on the part of Plaintiff. This is extremely problematic as it punishes Plaintiff for pursuing his legal claims. 14 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3361 Page 15 of 27 Mich. Nov. 28, 2007); “a court speaks only through its orders” Goldman v CIR, 388 F.2d 476, 478 (6th Cir. 1967) (citing United States v. Eisner, 329 F.2d 410 (6th Cir. 1964)). In this case, there has been one written Order entered by this Court ordering Plaintiff’s Attorney Paterson to pay Defendant Detective Davis $10,000 in sanctions relating to his mistake of filing a deposition transcript. (10/8/19 Hrg. Tr. at 16-17, ECF No. 88 at PageID.1124-1125; Order, ECF No. 87). Attorney Paterson apologized to Magistrate Carmody in open Court and she accepted his apology. Judge Carmody also understood that it was a “mistake.” This Court’s written Order did not make a finding of willfulness or bad faith, nor did the Order find that Defendant Davis was prejudiced in any way, nor did the Order warn Plaintiff or his counsel of more drastic sanctions of removing Plaintiff’s counsel from the case or dismissing Plaintiff’s case against Defendant Davis with prejudice. Attorney Paterson respected the Judge’s Order for his mistake, did not appeal the Order, and promptly paid the sanction to Defendant Davis. Only one Order awarding sanctions to Defendants Simon, Hollis and Dantonio’s attorneys has been entered in this case, which awarded their attorneys the aggregate amount of $1,000. (ECF No. 187). The sanctions were awarded stemming from Plaintiff’s counsel not agreeing to a single sentence contained within a larger order, which Plaintiff believed he had a good-faith basis for disagreeing with. This Court did not agree with Plaintiff’s position and said it was in bad faith, but notably the Order did not state that these Defendants were prejudiced in any way, nor did the Order warn Plaintiff or his counsel of more drastic sanctions such as removing Plaintiff’s counsel from the case or dismissing Plaintiff’s case against these Defendants with prejudice. The $1,000 sanction was not appealed by Plaintiff and the sanction was promptly paid. Thereafter, there has not been a single Order entered by the Court that ordered Plaintiff to pay any monetary or other sanction upon Plaintiff to any of the Defendants. Making the colossal and drastic 15 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3362 Page 16 of 27 jump to oppressive amounts of monetary sanctions, dismissal of Plaintiff’s claim, removal of Plaintiff’s attorneys as counsel and referral to disciplinary proceedings is not justified. Magistrate Berens attempt to “make an example” out of Plaintiff’s and his attorneys should not be entertained by this Court. III. PLAINTIFF’S APPEALS OF MAGISTRATE JUDGE BERENS’ ORDERS A. Standard of Review for Appeals From Non-dispositive Orders of Magistrate Judge “[A] judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court,” with certain exceptions. 28 U.S.C. § 636(b)(1)(A). “When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision.” Fed.R.Civ.P. 72(a) (Nondispositive Matters). “A party may serve and file [an appeal] to the order within 14 days after being served with a copy.” Id. See also W.D. Mich. LCivR 72.3(a) (Appeal of nondispositive matters). This Court will reverse an order of a magistrate judge only where it is shown that the decision is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed.R.Civ.P.72(a); W.D. Mich. LCivR 72.3(a). “‘[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). However, legal conclusions are set aside if they are contrary to law. United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001) (citing United States v. Raddatz, 447 U.S. 667, 673 (1980). “The determination of whether or not an order is contrary to law is necessarily a purely 16 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3363 Page 17 of 27 legal inquiry. The appropriate standard for review is de novo.” U.S. v Curtis, 237 F.3d 598, 607 (6th Cir. 2001). This court will find a magistrate's legal conclusion to be “contrary to law `when it fails to apply or misapplies relevant statutes, case law or rules of procedure.’” Kovats v. State of Michigan, 2008 WL 2095423, *1 (W.D. Mich. May 16, 2008) (Maloney, J.) B. Plaintiff Appeals Magistrate Judge Berens’ Order on Fees and Costs. For the reasons set forth above in Plaintiff’s objections to Magistrate Judge Berens’ report and recommendation, the Magistrate Judge’s order of fees and costs are “clearly erroneous” and “contrary to law.” C. Plaintiff Appeals Magistrate Judge Berens’ Orders on Individual Discovery Motions. 1. Plaintiff Appeals Magistrate Judge Berens Order Pertaining to Plaintiff’s Motion to Compel Defendant Dantonio’s Deposition (only as it relates to costs and fees) Magistrate Judge Berens issued an order denying Plaintiff’s motion to compel (ECF No. 165) and granting MSU Defendants’ motion for protective order (ECF No. 167). Magistrate Judge Berens further ordered that the MSU Defendants’ request for sanctions pursuant to Fed.R.Civ.P. 37(a)(5) be granted as well. (ECF No. 234, PageID. 3023). Magistrate Judge Berens’ order denying Plaintiff’s motion to compel [ECF No. 165] and granting the MSU Defendants’ motion for protective order and request for sanctions pursuant to Fed.R.Civ.P. 37(a)(5) [ECF No. 167] (ECF No. 234, PageID. 3021-3023), is “clearly erroneous” and “contrary to law” because (1) Plaintiff was substantially justified in seeking and filing the motion to compel [ECF No. 165]; and (2) other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(B). 17 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3364 Page 18 of 27 “Under Rule 37(a)(5)(B), if a motion to compel or motion for a protective order is denied, the Court must order the movant to pay the attorney fees incurred in defending against the motion, unless ‘the motion was substantially justified or other circumstances make an award of expenses unjust.’” Gazoda v Secretary of Homeland Security, 258 F.Supp.3d 799, 827 (E.D.Mich. 2017). Although Rule 37(a)(5), on its face, addresses expense-shifting only in the context of motions to compel discovery, Rule 26(c), the rule governing protective orders, incorporates Rule 37(a)(5)’s expense-shifting provisions. See Fed. R. Civ. P. 26(c)(3). However, the Court may not shift expenses and fees if (1) the party filing the motion to compel was substantially justified in seeking the motion; or (2) other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(B). “Substantially justified” means “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 US 552, 565 (1988). Thus, a party’s decision to seek a motion to compel is substantially justified if it “raises an issue about whether there is a genuine dispute or if reasonable people can differ as to the appropriateness of the contested action.” Doe v. Lexington-Fayette Urban County Government, 407 F3d 755, 765 (6th Cir. 2005). For the reasons set forth above in Plaintiff’s objections to Magistrate Judge Berens’ report and recommendation and in Plaintiff’s response to Magistrate Judge Berens’ order to show cause (ECF No.191) and Plaintiff’s response to MSU Defendants’ motion for protective order (ECF No. 183), which shall be incorporated by reference as if they were fully stated herein, Plaintiff was “substantially justified” to file his motion to compel the continued deposition of Defendant Mark Dantonio (ECF No. 165). Rule 30(d)(1) provides that “[t]he court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” Here, there were 18 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3365 Page 19 of 27 clearly other circumstances that impeded Plaintiff’s counsel from completing Defendant Dantonio’s deposition. Additionally, Magistrate Judge Berens’ order is “clearly erroneous” and “contrary to law” because Plaintiff’s counsel did not use Defendant Dantonio’s deposition as a fishing expedition nor were the questions asked “irrelevant”. Federal Rule of Civil Procedure 30 permits a deponent to object during a deposition, but “the testimony is taken subject to any objection.” Fed. R. Civ. P. 30(c)(2). An objection must be “nonargumentative and nonsuggestive.” Id. And, a deponent may choose not to respond “only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under rule 30(d)(3).” Id. Under Rule 30(d)(3), a deponent may move to terminate or limit the deposition “on the grounds that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent. . . “ Fed. R. Civ. P. 30(d)(3)(A). A review of Defendant Dantonio’s deposition transcript, which has been filed in its entirety under seal, will reveal that Defendant Dantonio’s counsel did not raise any “meritorious” objections to the questions asked of Defendant Dantonio. It is well-settled that “[l]ack of relevance is not a valid objection under [the federal rules] and, as a result, is not an appropriate reason to withhold answers to a question posed during a deposition.” Goode v. Mercy Mem. Hosp., No. 11- 10037, 2014 WL 7369926, at *3 (E.D. Mich. Dec. 29, 2014) (quoting Ferrell v. Sparkman, No. 4:06-cv-7, 2007 WL 172516, at *2 (E.D. Tenn. Jan. 18, 2007)). Additionally, and perhaps more importantly, Defendants’ counsel did not seek the assistance of retired Magistrate Judge Carmody to resolve any issues during the course of Defendant Dantonio’s deposition. (See Sealed Transcript of Defendant Dantonio’s deposition). This is ample evidence to prove that Plaintiff’s counsel asked relevant questions pertaining to Plaintiff’s claims. 19 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3366 Page 20 of 27 2. Plaintiff Appeals Magistrate Judge Berens Order Pertaining to Plaintiff’s Motion for Protective Order regarding 30(b)(6) Depositions and Document Subpoenas (only as it relates to fees and costs) (ECF No. 173) In ECF No. 234, Magistrate Judge Berens issued an order denying Plaintiff’s motion for protective order (ECF No. 173) and granting Detective Defendants’ request for attorney’s fees and costs pursuant to Fed. R. Civ. P. 37(a)(5), 26(c)(3). (ECF No. 234, PageID. 3024). Magistrate Judge Berens’ order denying Plaintiff’s motion for protective order (ECF No. 173) and granting Detective Defendants’ request for attorney’s fees and costs pursuant to Fed. R. Civ. P. 37(a)(5), 26(c)(3) (ECF No. 234, PageID. 3024), is “clearly erroneous” and “contrary to law” because (1) Plaintiff was substantially justified in seeking and filing the motion for protective order [ECF No. 173]; and (2) other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(B). The court may not shift expenses and fees if (1) the party filing the motion for protective order was substantially justified in seeking the motion; or (2) other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(B). “Substantially justified” means “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 US 552, 565 (1988). A party's decision to seek a motion for protective order is substantially justified if it “raises an issue about whether there is a genuine dispute or if reasonable people can differ as to the appropriateness of the contested action.” Doe v. Lexington-Fayette Urban County Government, 407 F3d 755, 765 (6th Cir. 2005). Here, in addition to the reasons set forth above in Plaintiff’s objections to Magistrate Judge Berens’ report and recommendation and in Plaintiff’s response to Magistrate Judge Berens’ order to show case (ECF No.191) and Plaintiff’s motion for protective order (ECF No. 173), which shall 20 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3367 Page 21 of 27 be incorporated by reference as if they were fully stated herein, Plaintiff was “substantially justified” in filing the motion for protective order [ECF No. 173]. Federal Rule Civil Procedure 30(b)(6) provides: In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. (emphasis supplied). “It is well-established that an organization served with a Rule 30(b)(6) deposition notice is obligated to produce a witness knowledgeable about the subjects in the notice and to prepare that witness to testify not just to his own knowledge, but the corporation's knowledge.” Consolidated Rail v Grand Trunk Western R. Co., 853 F.Supp.2d 666, 670 (W.D.Mich. 2012) (citation omitted). Here, it is obvious that the only person that the Sound Mind Sound Body organizations could designate is the Plaintiff. Plaintiff’s deposition transcript, which has also been filed in its entirety under seal, and Nonparty Michelle Franklin’s affidavits (ECF Nos. 192, 227-1), clearly illustrate that Plaintiff is the only person who could testify on behalf o the Sound Mind Sound Body organizations. Consequently, Plaintiff motion for protective order was “justified” because Plaintiff had already testified for nearly 61/2 hours about the Sound Mind Sound Body organizations. (See Plaintiff’s deposition transcript filed under seal). As Plaintiff argued, the 30(b)(6) subpoenas was a way for the Detective Defendants to circumvent the federal court rules governing depositions and to further harass the Plaintiff. 21 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3368 Page 22 of 27 Additionally, Magistrate Judge Berens clearly erred by ordering the disclosure of the documents because Defendants received financial documents in 2019 pertaining to the Sound Mind Sound Body organizations in response to the third-party subpoenas they served upon Sound Mind Sound Body’s financial institutions. 3. Non-Party Michelle Franklin’s Motion for a Protective Order (ECF No. 188) (only as it relates to fees and costs) The Magistrate’s order denying Non-party Michelle Franklin’s motion for protective order [ECF No. 188] concluded that “the filing of Non-Party Michelle Franklin’s Motion for a Protective Order violated Rule 11 because it was filed without counsel conducting a reasonable inquiry into its basis in fact.” (ECF No. 234, PageID. 3025-3026). This portion of Magistrate Judge Berens’ order is “clearly erroneous” and “contrary to law” because the Court cannot sanction discovery motions under Rule 11. Fed.R.Civ.P. 11(d) provides: “This rule [Rule 11] does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.” (Emphasis supplied). Non-Party Michelle Franklin’s motion for protective order [ECF No. 188], was filed pursuant to Rule 26(c)(1). Thus, pursuant to the clear and unambiguous language of Rule 11(d), Magistrate Judge Berens’ order denying Nonparty Franklin’s motion for protective order [ECF No. 234, PageID. 3025-3026] could not conclude that “the filing of Non-Party Michelle Franklin’s Motion for a Protective Order violated Rule 11 because it was filed without counsel conducting a reasonable inquiry into its basis in fact.” (ECF No. 234, PageID. 3025-3026). “Statutes, regulations, and rules of the court must be read in a ‘straightforward’ and ‘commonsense’ manner’” In re Laurain, 113 F.3d 595, 597 (6th Cir. 1997) (quoting Bartlik v United States Dept of Labor, 62 F.3d 163, 165-166 (6th Cir. 1995) (enbanc)). Thus, when the Court “can discern an 22 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3369 Page 23 of 27 unambiguous and plain meaning from the language of a rule, [the Court’s] task is at an end.” Id. (internal citation omitted). The Court is bound by the Federal Rules of Civil Procedure for the Federal Rules of Civil Procedure, “[p]promulgated pursuant to the Rules Enabling Act, 28 U.S.C. § 2072, … are binding upon court and parties alike, with fully the force of law.” In Re: National Prescription Opiate Litigation, ___ F.3d ____ (6th Cir. 2020) (Docket No. 20-3075 decided April 15, 2020) (internal citations omitted). In addition, Magistrate Judge Berens’ order denying Non-party Franklin’s motion for protective order and awarding Detective Defendants attorney’s fees and costs pursuant to Fed. R. Civ. P. 37(a)(5), 26(c)(3), is also “clearly erroneous” and “contrary to law” because (1) Non-party Franklin was substantially justified in seeking and filing the motion for protective order [ECF No. 188]; and (2) other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(B). The court may not shift expenses and fees if (1) the party filing the motion for protective order was substantially justified in seeking the motion; or (2) other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(B). “Substantially justified” means “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 US 552, 565 (1988). A party's decision to seek a motion for protective order is substantially justified if it “raises an issue about whether there is a genuine dispute or if reasonable people can differ as to the appropriateness of the contested action.” Doe v. Lexington-Fayette Urban County Government, 407 F3d 755, 765 (6th Cir. 2005). Here, in addition to the reasons set forth above in Plaintiff’s objections to Magistrate Judge Berens’ report and recommendation and in Nonparty Franklin’s reply to Detective Defendants’ response to Non-party Franklin’s motion for protective order (ECF No.227), which shall be 23 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3370 Page 24 of 27 incorporated by reference as if they were fully stated herein, Non-party Franklin was “substantially justified” in filing the motion for protective order [ECF No. 188]. While Magistrate Judge Berens appears to infer that the differing fact views of differing clients would have resolved the unreasonable inquiry, one must ask how? Magistrate Judge Berens certainly does not suggest Attorney Paterson suborn perjury. Rather, Magistrate Judge Berens implies that there may be a client conflict for counsel to resolve. Magistrate Judge Berens’ order erred in this belief for it was not and is not Attorney Paterson’s responsibility to resolve differing clients’ views on the facts. The standard alluded to by Magistrate Judge Berens is counsel’s obligation under the Michigan Rules of Professional Conduct (MRPC) Rule 7.1. Rule 1.7 of the Michigan Rules of Professional Conduct (MRPC) provides that: (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation. (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interest, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. [MRPC 1.7(a), (b).] Attorney Paterson’s obligation under MRPC 7.1 is to first determine whether or not “the representation of that client will be directly adverse to another client”. Notably, Magistrate Judge Berens made no inquiry during the March 5th hearing with respect to that standard. Even if she had, it would have found that counsel satisfied the standard. Counsel “reasonably believe[d] the representation w[ould] not adversely affect the relationship” and the clients were consented to the 24 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3371 Page 25 of 27 representation. Had Magistrate Judge Berens asked, counsel would have advised the Court that Plaintiff asked counsel to represent Non-party Franklin with respect to the subpoenas that were served upon her to testify and produce certain documents the defendants believed were in her possession. Acting upon Plaintiff’s request, Attorney Paterson contacted Non-Party Franklin and questioned her about her role with Plaintiff’s Sound Mind Sound Body organizations. At that time, Attorney Paterson asked Non-Party Franklin whether she believed it was a conflict with him representing her and the Plaintiff, and Non-Party Franklin indicated she did not believe a conflicted existed and approved Attorney Paterson to file a motion for protective order on her behalf. Plaintiff’s and Attorney Paterson’s Appeal of Referral Order for Discipline Lastly, Plaintiff and Attorney Paterson appeal Magistrate Judge Berens’ order referring Attorney Paterson to Chief Judge Jonker for determination of whether he should be disciplined pursuant to Local General Rule 2.3(d). (ECF No. 234, PageID. 3026-3029). “Whether an attorney has violated ethical standards in federal court is a matter of federal law.” Smith v Kalamazoo, Ophthamology, 332 F.Supp.2d 883, 888 (W.D. Mich.2004) (citation omitted). However, “[i]n making such a determination, this Court looks to the [MRPC].” Id. “The Michigan Rules of Professional Conduct provide the applicable standard of professional conduct for members of the bar of this Court[.]” McKane v City of Lansing, 861 F.Supp. 47, 48 (W.D. Mich.1994). Magistrate Judge Berens’ referral order is “based on [Paterson’s] conduct in this case and his history of inappropriate conduct in both state and federal court[.]” (ECF No. 234, PageID. 3029). The federal and state-court cases cited by Magistrate Judge Berens were adjudicated in the U.S. District Court for Eastern District of Michigan and Wayne County Circuit Court. (ECF No. 234, PageID. 3026-3029). 25 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3372 Page 26 of 27 Since the Magistrate has cited numerous cases outside this Court’s jurisdiction, it is important to inform the Court that Paterson has never been referred for discipline in the Eastern District of Michigan nor has Paterson has been referred for discipline before the Sixth Circuit Court of Appeals. Moreover, for the reasons stated above, Paterson has not violated any provisions of the MRPC in this case that would warrant a referral for discipline. Paterson asserts that he has not violated the any provision of the MRPC with respect to this case. Compliance with the MRPC would have been apparent had the Magistrate given an opportunity for Paterson to demonstrate that the filing for a protective order for Non-Party Franklin was in full compliance with MRPC. Paterson’s representation of Non-Party Franklin was at the request of the Plaintiff. Non-Party Franklin’s affidavits in support of the motion were about her (limited) role served to the Sound Mind Sound Body organizations. Her affidavits about her role was different – substantially so – from Plaintiff’s understanding of her role in SMSB. That difference, however, does not rise to the standard of “directly adverse” as would trigger MRPC Rule 1.7. Accordingly, for the reasons set forth herein and set forth above in Plaintiff’s objections to Magistrate Judge Berens’ report and recommendation, Magistrate Judge Berens’ order referring Paterson to the Chief Judge for possible discipline is “clearly erroneous” and “contrary to law” IV. CONCLUSION For the above stated reasons, Plaintiff respectfully request that this Court: (1) deny Magistrate Berens’ Report and Recommendation in its entirety; and (2) grant Plaintiff’s appeals on the disputed orders, including the denial of any and all requests for fees and costs. Respectfully submitted, /s/ Thomas R. Warnicke /s/Andrew Paterson THOMAS R. WARNICKE (P47148) ANDREW PATERSON (P18690) 26 Case 1:18-cv-01261-JTN-SJB ECF No. 262 filed 04/24/20 PageID.3373 Page 27 of 27 LOCAL RULE CERTIFICATION I, Thomas R. Warnicke, certify that the concurrence requirement set forth in this document complies with Local Rule 10, including: 8 ½ x 11 inch paper, double-spaced (except for quoted materials and footnotes); at least one-inch margins on the top, sides, and bottom; consecutive page numbering; and type size of all text and footnotes that is no smaller than 10-1/2 characters per inch (for non-proportional fonts) or 12 point (for proportional fonts). I also certify that it is the appropriate length. Respectfully submitted, /s/ Thomas R. Warnicke THOMAS R. WARNICKE (P47148) Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on April 24, 2020, a copy of the foregoing document and this proof of service was served via the CM/ECF electronic filing system to all attorneys of record. I declare under the penalty of perjury that the statement above is true to the best of my information, knowledge, and belief. /s/ Thomas R. Warnicke Thomas R. Warnicke (P47148) 27