The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
GERALD KINER, )
)
Plaintiff, )
)
v. ) No. 23-cv-02805-SHL-tmp
)
CITY OF MEMPHIS, et al., )
)
Defendants. )
ORDER DENYING PLAINTIFF’S MOTIONS AT ECF NOS. 77, 78, 79, 89,
99, 100, 102, 107, 108, 109, 115, and 116 AND GRANTING
ECF NOS. 101 and 110
Before the court are numerous motions filed by pro se
plaintiff Gerald Kiner between July 30, 2024, and September 18,
2024.1 For the below reasons, Kiner’s motions are GRANTED in part
and DENIED in part.
I. Plaintiff’s First Set of Motions for Reconsideration (ECF
Nos. 77, 78, and 79)
The court first addresses a set of motions for reconsideration
filed by Kiner on July 30, 2024. (ECF Nos. 77, 78, 79.) By motions
dated July 29, 2024, Kiner sought an entry of default judgment
against defendant Officers L. Cook, L. Leon, and A. Wiley
(collectively the “Individual Officer Defendants”) for their
1Pursuant to Administrative Order No. 2013-05, this case has been
referred to the United States magistrate judge for management of
all pretrial matters for determination or report and
recommendation, as appropriate.
alleged untimely responses to plaintiff’s complaint. (ECF Nos. 70,
72, 73.) The Clerk of Court denied Kiner’s motions that same day.
(ECF Nos. 74, 75, 76.) Kiner then moved for reconsideration of the
Clerk’s entries denying default judgment. (ECF Nos. 77, 78, 79.)
Pursuant to the parties’ Notice of Settlement and Stipulation
of Dismissal, both filed on October 21, 2024, all claims asserted
by Kiner against the Individual Officer Defendants have now been
resolved. (ECF Nos. 118, 119.) Accordingly, Kiner’s motions to
reconsider the denial of default judgment against the Individual
Officer Defendants are hereby DENIED as moot.
II. Plaintiff’s Second Motion for Reconsideration (ECF No. 89)
Next, Kiner moves the court to reconsider its August 13, 2024,
order granting defendant City of Memphis’s (the “City”) Motion for
Extension of Time to Complete Discovery. (ECF Nos. 84, 88, 89.)
The City filed its motion on August 12, 2024, arguing that an
extension was justified because the form of plaintiff’s propounded
discovery requests were unclear and because counsel for the City
had only recently returned to work after a surgical procedure.
(ECF No. 84 at PageID 406.) Kiner responded in opposition, arguing
that he would be prejudiced by the requested extension and that
the City had other attorneys at its disposal who could have timely
responded. (ECF No. 86 at PageID 409-410.) After consideration of
the parties’ arguments, the nature of the discovery requests, and
the minimal prejudice to Kiner, the undersigned granted a 30-day
extension for the City to respond. (ECF No. 88.) The next day,
Kiner filed the instant motion, alleging, inter alia, that the
extension was “granted without substantial justification.” (ECF
No. 89 at PageID 421.) In support of his motion, Kiner alleges a
lack of evidence for defense counsel’s medical absence, prejudice
to his ability to timely prosecute his case, and “potential
judicial bias” stemming from an alleged “disparity” in the
undersigned’s reasoning. (Id. at PageID 420-21.)
Although Kiner does not invoke the Federal Rules of Civil
Procedure, Rule 54 counsels that “any order or other decision . .
. that adjudicates fewer than all the claims . . . may be revised
at any time before the entry of a judgment[.]” Fed. R. Civ. P.
54(b). The local rules in this district also permit “[a]ny party
[to] move, pursuant to Fed. R. Civ. P. 54(b), for the revision of
any interlocutory order made by [the] Court” before the entry of
a judgment. LR 7.3(a). A motion for revision must specifically
show:
(1) a material difference in fact or law from that which
was presented to the Court before entry of the
interlocutory order for which revision is sought, and
that in the exercise of reasonable diligence the party
applying for revision did not know such fact or law at
the time of the interlocutory order; or (2) the
occurrence of new material facts or a change of law
occurring after the time of such order; or (3) a manifest
failure by the Court to consider material facts or
dispositive legal arguments that were presented to the
Court before such interlocutory order.
LR 7.3(b); see also Thomas v. Schroer, No. 2:12-cv-02987-JPM-cgc,
2016 WL 3648974, at *1 (W.D. Tenn. Mar. 30, 2016) (citing Rodriguez
v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 &
n.7 (6th Cir. 2004)) (discussing elements courts “have
traditionally used to reconsider interlocutory orders”).
“Motions to reconsider . . . are used sparingly and in rare
circumstances.” In re Regions Morgan Keenan Sec., Derivative &
ERISA Litig., Nos. 2:09-MD-2009-SHM, 12-2341, 2013 WL 2319271, at
*2 (W.D. Tenn. May 28, 2013) (quoting In re Se. Milk Antitrust
Litig., No. 2:08-MD-1000, 2011 WL 3793777, at *1 (E.D. Tenn. Aug.
25, 2011)). “A court should not grant a motion to revise its prior
ruling ‘in the vast majority of instances, especially where such
motions merely restyle or re[]hash the initial issues.’” Thomas,
2016 WL 3648974, at *1 (quoting In re Regions, 2013 WL 2319271, at
*2).
Here, Kiner has not presented evidence of a new material fact
or change of law, or of a material difference in fact or law, that
would justify revision of the court’s August 13 order. Nor does
Kiner allege “a manifest failure by the Court to consider material
facts or dispositive legal arguments that were presented to the
Court before such interlocutory order.” LR 7.3(b). Instead,
Kiner’s objections stem from his disagreement with the court’s
findings after considering the parties’ arguments. These
objections are not grounds for revision under Local Rule 7.3 or
Federal Rule of Civil Procedure 54. Kiner’s motion for
reconsideration is therefore DENIED.
III. Plaintiff’s Emergency Motion to Disqualify Counsel and
Request for Default Judgment, Motions to Strike, and
Motions for Leave to File Reply Briefs (ECF Nos. 99, 100,
102, 107, 108, 109, 110)
The court next addresses Kiner’s Emergency Motion to
Disqualify Counsel and Request for Default Judgment, filed on
August 30, 2024, and related motions filed on September 11, 2024.
(ECF Nos. 102, 107, 108, 109, 110.) Kiner originally filed his
motion to disqualify counsel and for default judgment on August
27, 2024. (ECF No. 99.) He filed an amended version on August 29
and a seconded amended motion on August 30. (ECF Nos. 100, 102.)
On September 10, 2024, the Individual Officer Defendants and
defendant City of Memphis filed two separate responses in
opposition. (ECF Nos. 105, 106.) The next day, Kiner filed four
new motions: a Motion in Opposition to Defense Counsel’s Response
and Motion to Strike Defense Counsel’s Response; a Response in
Opposition to Defendant City of Memphis’s Response in Opposition
and Motion to Strike Defense Counsel’s Response; a Motion for Leave
to File a Reply to Defense Counsel’s Response and Motion to Strike
Defense Counsel’s Response; and a Motion for Leave to File a Reply
to Defendant City of Memphis’s Response in Opposition. (ECF Nos.
107, 108, 109, 110.)
Before weighing the merits of Kiner’s motion to disqualify
and for default judgment, the court addresses three preliminary
matters. First, the instant motions are not models of clarity.
Although Kiner directs Docket Entries 108 and 110 at defendant
City of Memphis, he refers generally to “defense counsel” in Docket
Entries 107 and 109 without distinguishing between the City and
the Individual Officer Defendants. Kiner’s motions to strike and
motions for leave to reply are also devoid of citations to the
record to clarify to which groups of defendants he seeks to
respond. Nonetheless, because Kiner makes specific reference to
the City in Docket Entries 108 and 110, the court construes Docket
Entries 107 and 109 as motions to strike and for leave to reply to
the Individual Officer Defendants’ September 10 response brief.
(See ECF No. 105). These motions, (ECF Nos. 107, 109), are hereby
DENIED as moot, as the Individual Officer Defendants have since
been dismissed from this action. (ECF No. 120); see also Section
I.
Second, Kiner’s “response in opposition” to defendant City of
Memphis’s September 10 response brief is procedurally improper.
(ECF Nos. 106, 108.) Local Rule 7.2 governs the procedure for
motions practice in this district. Although Rule 7.2(a)(2)
provides an automatic right to respond without leave of court,
subsection (c) requires that a moving party seek leave to file a
subsequent reply for all non-dispositive motions. See LR 7.2(c)
(“Except as provided by LR 12.1(c) and LR 56.1(c), reply memoranda
may be filed only upon court order granting a motion for leave to
reply.”). Here, Kiner has complied with Rule 7.2(c) to the extent
that he sought leave to file replies to the City’s and the
Individual Officer Defendants’ September 10 responses. (ECF Nos.
109, 110.) However, Kiner simultaneously and without obtaining
leave filed a “response in opposition” to the City’s response, in
which he further argues in support of his pending motion to
disqualify counsel. (See ECF No. 108 at PageID 788-794.) The court
construes Kiner’s response as a reply brief filed in violation of
Local Rule 7.2(c). (ECF No. 108.) Nevertheless, the court will
consider the merits of Kiner’s arguments and GRANTS his motion for
leave to reply, (ECF No. 110), accordingly.
Third, the court declines to strike the City of Memphis’s
September 10 response as urged by Kiner in his September 11 reply
brief. (ECF Nos. 106, 108.) Kiner alleges that counsel for the
City did not comply with Local Rule 7.2(a)(1)(B) when filing their
response, thus “justifying a motion to strike . . . on procedural
grounds.” (ECF No. 108 at PageID 787-88.) That rule requires that
all motions, except dispositive motions filed pursuant to Federal
Rules of Civil Procedure 12, 56, 59, and 60, “be accompanied by a
certificate of counsel . . . affirming that, after consultation
between the parties to the controversy, they are unable to reach
an accord as to all issues or that all other parties are in
agreement with the action requested by the motion.” LR
7.2(a)(1)(B). Kiner claims that, because opposing counsel
“neglect[ed] to consult” him before filing the City’s response
brief, the response was “improperly filed” in violation of the
local rule. (ECF No. 108 at PageID 794.) However, Kiner
misinterprets the requirement. Local Rule 7.2(a)(1) applies only
to the initial filing of a motion in a civil action, not a party’s
response to motions. Responses are instead governed by Local Rule
7.2(a)(2), which does not impose a similar consultation
requirement. The court therefore finds that counsel for the City
have complied with this district’s local rules and DENIES Kiner’s
motion to strike, (ECF No. 108), on that basis.
The court now turns to the merits of Kiner’s motion to
disqualify counsel and for default judgment. “Motions to
disqualify are viewed with disfavor and disqualification is
considered a drastic measure which courts should hesitate to impose
except when absolutely necessary.” Houser v. Powerdot, Inc., No.
1:21CV915, 2023 WL 4781685, at *3 (N.D. Ohio July 27, 2023)
(quoting Valley-Vulcan Mold Co. v. Ampco-Pittsburgh Corp., 237
B.R. 322, 337 (6th Cir. BAP 1999), aff’d 5 F. App’x 396 (6th Cir.
2001)). “Disqualification is appropriate, ‘only when there is a
“reasonable possibility that some specifically identifiable
impropriety” actually occurred and, in light of the interest
underlying the standards of ethics, the social need for ethical
practice outweighs the party's right to counsel of his own
choice.’” Id. (quoting Kitchen v. Aristech Chemical, 769 F. Supp.
254, 257 (S.D. Ohio 1991)); Moses v. Sterling Com. (Am.), Inc.,
122 F. App’x 177, 183 (6th Cir. 2005) (citation omitted). The
movant bears the burden of proving that opposing counsel’s
unethical behavior merits disqualification. Calaway ex rel.
Calaway v. Schucker, No. 02-cv-02715-STA-cgc, 2013 WL 960641, at
*2 (W.D. Tenn. Mar. 12, 2013).
In support of his motion, Kiner identifies nine grounds for
disqualification. (ECF No. 102 at PageID 633-644.) The court
declines to consider three of these grounds, as Kiner offers only
the conduct of counsel for the now-dismissed Individual Officer
Defendants in support. (See id. at PageID 637-39, 641-42)
(detailing the alleged misconduct of counsel for the Individual
Officer Defendants, in support of Subsections D, G, and H). Kiner’s
remaining allegations include: (i) that the police report
documenting the event from which plaintiff’s claims arise was
“intentionally fabricated” (Id. at PageID 633); (ii) that
defendants have deliberately withheld requested body camera
footage from plaintiff (Id. at PageID 636); (iii) that defendants,
in Kiner’s view, “proffered a settlement offer that was grossly
disproportionate to the damages suffered” (Id.); (iv) that counsel
Barbaralette Davis “engaged in obstructive behavior” by requesting
an extension of time in light of her surgical procedure (Id. at
PageID 639); (v) that “statistical evidence” suggests the City’s
August 12 motion for an extension of time is “of questionable
credibility” (Id.); and (vi) that an ongoing Department of Justice
investigation into the Memphis Police Department suggests “long-
standing practices of bad faith dealing” by the City (Id. at PageID
643). In its response, the City denies each of Kiner’s allegations,
contending they are without merit and do not amount to violations
of the Tennessee Rules of Professional Conduct. (See generally ECF
No. 106 at PageID 759-65.)
The court finds that Kiner has not presented evidence to
support a “reasonable possibility” of impropriety by counsel for
the City. Houser, 2023 WL 4781685, at *3 (citation omitted). His
reliance on an unrelated federal investigation and broad
allegations of obstruction by unnamed police officers are not
sufficient to show that opposing counsel has engaged in unethical
behavior warranting the “drastic measure” of disqualification. Id.
(citation omitted). Although Kiner is within his right to decline
defendants’ settlement offers and oppose defendants’ motions, he
also offers no evidence that opposing counsel has engaged in any
behavior that remotely qualifies as being dishonest or frivolous.
Kiner’s restatements of his opposition to an already-granted
motion for extension of time are equally unpersuasive. For these
reasons, his motion to disqualify is DENIED.
Kiner’s claims of bad faith conduct by defense counsel
likewise do not warrant an entry of default judgment against
defendant City of Memphis. Federal Rule of Civil Procedure 55
counsels that an entry of default judgment is only appropriate
“[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise[.]” Fed. R. Civ. P. 55(a). Here,
Kiner offers no evidence, and indeed makes no allegation, that
defendant City of Memphis has failed to plead or otherwise defend
itself in this action. Rather, he asks this court to enter default
judgment “to address the systemic violations and their impact on
this case.” (ECF No. 102 at PageID 646.) Kiner’s request misapplies
the standard this court must follow to enter default judgment, and
his motion is therefore DENIED.
IV. Plaintiff’s Motions to Strike (ECF Nos. 115, 116)
Kiner moves the court to strike two additional responses filed
by defendant City of Memphis. On September 13, 2024, Kiner filed
a Motion to Compel, For Sanctions, and Request for Default
Judgment. (ECF No. 112.) The City filed its response on September
17, 2024. (ECF No. 113.) That same day, the City also responded to
Kiner’s Motion for Preliminary Injunctive Relief, filed on
September 3, 2024. (ECF Nos. 104, 114.) In the instant motions,
Kiner asks the court to strike both of defendant’s September 17
response briefs, citing violations of Local Rules 7.2(a)(1)(B) and
7.2(c).
Kiner’s argument pursuant to Local Rule 7.2(a)(1)(B) is again
unpersuasive. That rule governs only the filing of motions with
the court, not responses by an opposing party. Compare LR
7.2(a)(1)(B) (setting requirements for filing new motions) with LR
7.2(a)(2) (setting requirements for filing responses to motions).
For this reason, Kiner’s argument that defense counsel did not
consult with him prior to filing the City’s responses is not
grounds for striking those responses. (ECF Nos. 115 at PageID 885-
886; 116 at PageID 904-05); see also Section III.
In addition, Kiner’s argument that Local Rule 7.2(c) required
the City to seek leave to file its responses is misguided. Rule
7.2(c) states that reply memoranda, not responses, may only be
filed upon court order granting a motion for leave to reply. See
also LR 7.2(b) (“Upon the filing of a motion and the timely filing
of the response, and a reply, if allowed by the Court or these
Rules, the motion shall be submitted to the Court for a ruling
unless a hearing has been requested and granted.” (emphasis
added)). Here, Kiner asks the court to strike two responses by
defendant City of Memphis——the first in response to Kiner’s
September 13 Motion to Compel, (ECF No. 113), and the second in
response to Kiner’s September 3 Motion for Preliminary Injunctive
Relief, (ECF No. 114). The City was not required to obtain leave
of court before filing those responses, see LR 7.2(a)(2), and thus
has not violated Local Rule 7.2(c).
Although Kiner does not cite Federal Rule of Civil Procedure
12, that rule does permit the court to strike certain content even
without motion by a party. Under Rule 12(f), “[t]he court may
strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
12(f). The court may do so “on its own; or on motion by a party
either before responding to the pleading or, if response is not
allowed, within 21 days after being served with the pleading.”
Fed. R. Civ. P. 12(f)(1)–(2). However, “[m]otions to strike are
viewed with disfavor and not frequently granted.” Operating Eng’rs
Loc. 324 Health Care Plan v. G & W Constr. Co., 783 F.3d 1045,
1050 (6th Cir. 2015) (citing Brown & Williamson Tobacco Corp. v.
United States, 201 F.2d 819, 822 (6th Cir. 1953)).
The court declines to grant Kiner’s motions to strike under
Rule 12(f). The text of Rule 12(f) “provides a basis for striking
pleadings, not motions.” Kremer v. Reddit, Inc., No. 2:21-cv-
00038, 2021 WL 4909953, at *1 (M.D. Tenn. Oct. 18, 2021). “For
purposes of the Federal Rules of Civil Procedure, a motion and its
contents are not ‘a pleading.’” Reynolds & Reynolds Co., Inc. v.
Alan Vines Auto. of Jackson, LLC, No. 1:20-mc-0003-STA, 2020 WL
5797922, at *2 (W.D. Tenn. Sept. 28, 2020); see also Fed. R. Civ.
P. 7(a) (defining pleading). Rule 12(f) therefore does not provide
grounds on which to strike the City’s responses, and plaintiff’s
motions to strike are DENIED.
As a pro se litigant, Kiner is responsible for familiarizing
himself with the Federal Rules of Civil Procedure and this court’s
Local Rules. The court cautions Kiner that future violations of
procedural rules could result in sanctions.
V. Plaintiff’s Motion for Extension of Time to File Motions to
Join Parties and Amend Pleadings (ECF No. 101)
Lastly, the court considers Kiner’s Motion for Extension of
Time to File Motions to Join Parties and Amend Pleadings, filed on
August 29, 2024. (ECF No. 101.) Pursuant to the court’s June 27,
2024 scheduling order, the parties’ existing deadline to file such
motions was August 30, 2024. (ECF Nos. 67, 101.) Kiner asks the
court for a 60-day extension, arguing that additional time would
be needed “to reassess [his] litigation strategy and make necessary
amendments” should the court deny his Emergency Motion to
Disqualify Defense Counsel and Request Default Judgment. (ECF Nos.
101 at PageID 625-26; 102.) Kiner also contends that granting an
extension would promote judicial efficiency and fairness in this
litigation. (ECF No. 101 at PageID 626.) Defendant City of Memphis
opposes Kiner’s request, arguing instead that “the meritless
filings . . . which undergird Plaintiff’s motion for extension of
time do[] not represent good cause sufficient for the granting of
the motion.” (ECF No. 106 at PageID 767.)
For good cause shown, the court grants the requested
extension. “Rule 6(b) of the Federal Rules of Civil Procedure
provides that, if a motion requesting an extension is made before
the original time to act expires, the Court may extend the time to
act for good cause shown.” Austin v. Camping World RV Sales, LLC,
No. 2:21-cv-02541-TLP-cgc, 2023 WL 3922659, at *1 (W.D. Tenn. Mar.
30, 2023) (citing Fed. R. Civ. P. 6(b)). In light of the court’s
rulings herein, the court finds good cause to extend the relevant
deadline by 60 days from the date of this order. Kiner’s motion is
thus GRANTED. The parties have until January 4, 2025, to file any
motions to amend pleadings and motions to join parties.
IT IS SO ORDERED.
s/Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
December 4, 2024
Date