No sparkle to plaintiff’s diamond-swap claim, says dissent

A split 6th Circuit panel has ruled that a Michigan woman can get to a jury on her pro se claim that when a jewelery store resized her wedding ring, the store pulled a switcheroo by replacing the ring’s big, expensive pink diamond with a considerably smaller, shinier, colorless stone.

Judge Richard Griffin, joined by visiting Judge Judith M. Barzilay, said that Victoria Harris’ deposition testimony, and affidavits of three witnesses were admissible evidence to support the claim. The majority overruled the federal district court’s conclusion that Harris needed an expert’s opinion to bolster her case.

Dissenting Judge Ralph B. Guy thinks Harris’ case lacks luster.

Guy said that even assuming Harris’ evidence is admissible, a rational jury could not find in her favor.

In Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the Supreme Court stated that on appellate review a summary judgment should be upheld “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” This is the quintessential example of such a case.

Although in my view plaintiff’s pro se claims are nothing short of preposterous, that is not the test. A “judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [plaintiff] on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Guy noted that in Harris’ initial complaint to the store, and to the police, nothing was said about the original diamond’s color. More than two years later, Harris amended the police report to say that the original stone was pink.

And then there’s the allegations in the suit’s complaint. Guy was skeptical:

Although some leeway is given to pro se pleadings, the rambling lengthy narrative filed by plaintiff is long on emotion but short on plausibility. The allegation that a large national jeweler would have sold her a rare, pink 2.35 carat diamond for $395, which the complaint says is now worth something between $440,000 and $800,000 per carat, sets a tone for the complaint which makes what follows largely irrelevant.

Guy continued:

To begin with, and certainly very damaging to plaintiff’s claims, is that her husband, who purchased the ring and saw it regularly for 29 years states that it looks like the same ring he originally purchased.

Second, the ring itself belies plaintiff’s claim. In her complaint she states; “I read the inscription [in the ring] many times 235 (carat # – her insertion) 14k (gold – her insertion) ‘Starfire’ the name of my pink diamond.”

Unfortunately for plaintiff the ring inscription is 235 — not 2.35 — and “Starfire” is descriptive of a diamond that “sparkled” and “glittered,” exactly the characteristics that plaintiff says her original diamond did not have.

More importantly, however, defendant’s expert, Martin Fuller, who examined plaintiff’s ring, provides the full and unrefuted provenance of the ring in question.”

Among Fuller’s findings:

  • the diamond currently in Harris’ ring was cut manually, the standard process used in the 1970s when the ring was purchased
  • diamonds are now cut by computer-driven machines and the diamond alleged substituted in the ring was not produced by the modern procedure
  • the prongs on Harris’ ring could not have accommodated a 2.35 carat diamond
  • the original diamond could not have been replaced without damaging other parts of the ring
  • the “235” inscription is a style number

There’s more, said Guy. The affidavits of two of plaintiff’s witnesses, who swore that the original diamond was pink, are based on an alleged photograph of the ring, not the ring itself.

The third affiant was Harris’ bridesmaid, Easley. “What is significant about the Easley affidavit,” said Guy, “is what it does not say — particularly that she has seen the ring plaintiff now has and knows it is not the ring she had at her wedding.”

To top it all off, Harris apparently consulted with an expert of her own, decided not to use him, and later attempted to disqualify him.

Guy said that after considering what plaintiff and her witnesses claim, and the jewelery store’s expert testimony, the case should not go to a jury:

If a plaintiff’s complaint and a supporting witness’s affidavit state that the moon is made of green cheese and an affidavit by Neil Armstrong says that it is not, there has not been a fact question created that would make it error to grant a summary judgment.

The case is Harris v. J.B. Robinson Jewelers.

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Bandstra to leave COA

Michigan Court of Appeals Judge Richard A. Bandstra will step down from the bench Jan. 8, 2011.

Bandstra says he wants more family time and, perhaps, a different line of work with either government or a non-profit agency.

“Working with respected colleagues on important matters of law has to be one of the best opportunities available in all of Michigan government,” he said.

“But I recently turned 60 and feel that, if I want to pursue any other career objectives, now is the time to do it.”

Bandstra has been on the court for 16 years. He was first elected in 1994. He served as Chief Judge Pro Tem from 1997-99 and was appointed Chief Judge from 1999-2001.

His current term on the court would have expired Jan. 1, 2015.

Bandstra hopes his time on the COA will be remembered for his “defense of the proposition that the proper role of the judiciary is to interpret the law, not impose one’s personal choices about policy.

“That is a judge’s role in fidelity to the Constitution.”

In addition to his time on the COA, Bandstra had a nine-year legislative career.

He was elected to the House of Representatives in 1984 and represented the 75th District, comprising the eastern half of Grand Rapids, from 1985-1994. Bandstra was floor leader from 1993-1994.

He also served as vice-chair of the House Judiciary Committee from 1987-1994.

His legislative achievements include the 1988 Community Dispute Resolution Act, which established a statewide program for mediation centers throughout Michigan.

In 1992, he chaired the Task Force on Civil Justice Reform for the American Legislative Council. He also served on the 21st Century Commission on the Courts, which proposed reforms of Michigan’s trial and appellate court system, in 1990.

MSC rejects Aceval appeal

The Michigan Supreme Court has rejected the appeal of Alexander Aceval, whose trial is at the center of a felony case against retired Wayne County Circuit Judge Mary Waterstone, former Wayne County prosecutor Karen Plants and an Inkster police sergeant officer.

The Detroit News reports in a 4-2 vote, the Court rejected the appeal of the 2005 drug conviction, which “came after a trial in which the judge, prosecutor and two police officers are alleged to have allowed or told lies under oath.”

Justices Stephen J. Markman and Diane M. Hathaway dissented. From the News:

Markman said he would have voted to reverse Aceval’s conviction, calling the case “extraordinary” and “without precedent” in Michigan judicial history. He said both of the man’s trials were flawed and unconstitutional. He recalled an earlier Court of Appeals review of the case that determined the actions of Waterstone, Plants and the police officers was, “disgraceful,” and “plainly reprehensible.”

Markman said he hopes “never again to see such a case within our criminal justice system.”

Read the whole story here.

Indigent defense case can proceed

The fight for better indigent defense will continue, following an order from the Michigan Supreme Court which affirmed a Court of Appeals decision to grant class certification in Duncan, et al. v. State of Michigan, et al.

The Michigan Supreme Court had affirmed the Court of Appeals decision in April, bu then in July did an about-face, and in a split decision dismissed its previous order, saying that the plaintiffs’ claims are not justiciable.

In August, plaintiffs filed a motion for reconsideration, stating that the Court had relied on a flawed Court of Appeals dissent that “creates conflicts with other precedent of this Court and ignores the precedent of the United States Supreme Court …” Sixth Amendment claims in pre-conviction cases are justiciable, according to plaintiffs and “Many other courts have recognized that indigent defendants in criminal cases who are being denied adequate counsel at critical stages of the case, have a justiciable claim they may bring to court to prevent a conviction caused by ineffective assistance of counsel.”

Yesterday, the Court reinstated its April order.

In Duncan, eight plaintiffs in Berrien, Genesee and Muskegon counties asserted that the state failed to adequately fund the public defense system, and as a result denied them their constitutional right to representation.

Justice Maura D. Corrigan dissented to Nov. 30 order, partly because her colleagues on the court released the order without her dissenting statement, in what she characterized as a rush to beat the calendar.

“The Court’s decision to suddenly expedite this case seems designed to prevent the new Court after January 1, 2011 from considering a motion for reconsideration.” After the first of the year, the Court will lose its Democratic majority, as Justice Alton T. Davis lost his bid for re-election to Republican-nominated Judge Mary Beth Kelly.

Wrote Corrigan in her dissent:

The majority has decided to grant the motion for reconsideration, and to reverse our previous order, without affording disagreeing Justices sufficient time to adequately respond to this decision. Instead, the majority has now decided to expedite the release of its order regardless of the fact that I have worked in a timely fashion to prepare a dissenting statement, but have not yet completed such a statement. This is contrary to our practice during the 11 years I have served on this Court.

Justice Stephen J. Markman dissented, stating that the state is entitled to summary disposition because Gideon v Wainwright, the landmark Supreme Court case ensuring defendants a right to counsel, “was concerned with results, not process. It did not presume to tell the states how to assure that indigent criminal defendants receive effective assistance of counsel.” And that’s what the plaintiffs in Duncan are asking the Court to do.

Further, he wrote, “Plaintiffs’ claims would have ‘the judiciary override the Michigan system of local control and funding of legal services for indigent criminal defendants,’ despite the absence here of any constitutional violation.” He also said the plaintiffs lack standing and their claims are not ripe for adjudication.

But the plaintiffs took issue with that, and according to the motion, “The overwhelming case law indicates that the courts have the power to correct unconstitutional behavior of the other branches of government.”

Davis, however, concurred with the Nov. 30 order:

[T]he prior motion for reconsideration should have been denied because it added nothing new. To the extent the unanimous April 30, 2010, order was reconsidered because of concerns that it could not be complied with, I have reviewed the record thoroughly and I do not agree with those concerns. Furthermore, if those concerns eventually prove warranted, the trial court should, and is in the best position to, make that evaluation. The trial court has not yet had the opportunity to do so. As the April 30, 2010, order stated, this case is at its earliest stages and a decision on its substantive merits is premature, but class certification should be reconsidered in light of Henry v. Dow Chemical Co, 484 Mich 483 (2009).