United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris Magistrate Judge
OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION IN
PART, DENYING MOTION FOR SUMMARY JUDGMENT, DENYING MOTION FOR
ATTACHMENT, DENYING MOTION FOR SANCTIONS, GRANTING MOTION FOR
PROTECTIVE ORDER, WITHDRAWING THE ORDER OF REFERENCE AND
SETTING PRETRIAL CONFERENCE AND TRIAL DATES
L. LUDINGTON United States District Judge.
20, 2015, this suit was transferred from the District Court
for the Western District of Missouri to the Southern Division
of the Eastern District of Michigan. ECF No. 1. On March 24,
2016, the case was transferred from the Southern Division to
this Court. ECF No. 33. All pretrial matters were thereafter
referred to Magistrate Judge Patricia Morris. ECF No. 35. In
his second amended complaint, ECF No. 7, Plaintiff Jerry
Gilliam alleges that the Defendants, William and Marveilyn
Ordiway, invaded his privacy and intentionally inflicted
emotional distress when they told Gilliam's family that
he was guilty of rape, bigamy, and tax evasion. Both
Plaintiff and Defendants are representing themselves, which
has resulted in a dysfunctional discovery exchange and an
unnecessarily complex procedural history. On February 27,
2017, Judge Morris issued a report and recommendation, ECF
No. 85, which addressed Gilliam's motion for summary
judgment, ECF No. 72, Gilliam's motion for sanctions, ECF
No. 81, Gilliam's motion for attachment, and
Gilliam's motion for a protective order, ECF No. 74. Both
Plaintiff and Defendants have filed objections. For the
reasons stated below, the objections will be overruled and
the report and recommendation will be adopted in part.
first complaint was originally filed in November 2014 in the
Western District of Missouri. See ECF No. 1. On May
20, 2015, Judge Laughrey of the Western District of Missouri
granted Gilliam's motion to change venue and transferred
the case to the Eastern District of Michigan. ECF No. 2.
Initially, the suit was assigned to District Court Judge
Judith E. Levy and Magistrate Judge Mona K. Majzoub. Soon
after the transfer occurred, Gilliam filed an amended
complaint and then, after Defendants filed a response, a
second amended complaint. ECF Nos. 4, 6, 7. Gilliam's
second amended complaint is currently the operative
then filed a responsive pleading to the second amended
complaint which Judge Levy construed as a motion to dismiss.
Around the same time, Defendants filed a motion to change
venue to the Northern Division of the Eastern District of
Michigan. ECF No. 12. On November 24, 2015, Judge Levy denied
Defendants' motion to dismiss, construing the second
amended complaint as stating claims for intentional
infliction of emotional distress and defamation. ECF No. 18.
Defendants then filed an answer to the second amended
complaint. ECF No. 21.
December 29, 2015, Gilliam filed a motion for default
judgment, asserting that entering a judgment was justified
because Defendants had not pleaded defenses in their answer
to the second amended complaint. ECF No. 25. On February 12,
2016, Magistrate Judge Majzoub issued a report recommending
that Defendants' motion to change venue be granted and
Plaintiff's motion for default judgment be denied. ECF
No. 31. That report and recommendation was adopted on March
22, 2016, ECF No. 32, and the case was transferred to this
Court. Pretrial matters were referred to Magistrate Judge
Patricia T. Morris. ECF No. 35.
the spring of 2016, both parties filed motions, styled as
requests for summary judgment, arguing that because the other
party has refused to cooperate during discovery, judgment on
the merits was appropriate against the opposing party.
See ECF Nos. 37, 39, 40. The parties also filed a
number of other discovery-related motions, including a motion
to compel and a motion to proceed with discovery.
See ECF Nos. 45, 49, 54, 66. On October 20, 2016,
Magistrate Judge Morris issued an order resolving several of
the discovery-related motions. See ECF No. 68. On
the same day, Judge Morris also issued a report and
recommendation. ECF No. 69.
report, Judge Morris explained that the disputes between the
parties centered on discovery. Judge Morris explained that
“the appropriate measure in response to a failure to
comply with discovery rules is a motion to compel under Rule
37, not a motion for summary judgment.” Id. at
9. The Magistrate Judge concluded that neither Plaintiff nor
Defendants had demonstrated the absence of genuine issues of
material fact. Accordingly, Judge Morris recommended that the
cross motions for summary judgment be denied. Because neither
party objected to the report and recommendation, it was
adopted on November 15, 2016. ECF No. 73.
Gilliam filed a second motion for summary judgment. ECF No.
72. He also filed a motion for a protective order, ECF No.
74, a motion for prejudgment attachment of Defendants'
property, ECF No. 80, and a motion for sanctions, ECF No. 81.
On February 27, 2017, Judge Morris issued a report and
recommendation recommending that Gilliam's motion for
summary judgment be denied, the motion for prejudgment
attachment and the motion for sanctions be denied, and
Gilliam's motion for a protective order be granted.
Gilliam and the Ordiways have both filed objections.
Concurrently with his objections, Gilliam filed a motion for
leave to file a third amended complaint. ECF No. 88.
clarity, the allegations in Gilliam's second motion for
summary judgment will be briefly summarized here. He asserts
that the Defendants “invaded Plaintiff's privacy by
sending numerous emails to Plaintiff's family members
accusing Plaintiff of bigamy, rape, tax evasion and
threatening arrest and imprisonment by disparaging
Plaintiff's morality and character; emails that
defendants refused to disclose in discovery requests and
tacitly admitted by refusing to properly participate in
discovery.” Sec. Mot. Summ. J. at 5, ECF No. 72.
has attached an affidavit to his motion for summary judgment
which provides additional factual background. See
Aff. Gilliam, ECF No. 72, Ex. 1. According to Gilliam, he
first met the Defendants in the Phillipines. At Defendant
William Ordiway's request, Gilliam sponsored William
Ordiway's wife and child for entry into the United
States. Id. at 1. However, the relationship soured
when Plaintiff reported Defendants “for Food Stamp
Fraud.” Id. at 2. According to Gilliam, the
Defendants responded to his fraud report by embarking
“on a campaign to harass and damage plaintiff.”
Id. Specifically, Gilliam asserts that
“Defendants continuously emailed Plaintiff's family
members including plaintiff and accused plaintiff of tax
evasion, bigamy, rape and threated arrest and
imprisonment.” Id. Defendants also allegedly
“informed plaintiff he would have to pay a Hundred
Thousand Dollar ($100, 00.00) Medical bill of defendant's
step-son which plaintiff sponsored and another hundred
thousand later.” Id. Gilliam also alleges that
Defendant Marveilyn Ordiway is in contact with Gilliam's
ex-wife, who Gilliam alleges has kidnapped his daughter.
Id. at 3.
asserts that Defendants' actions have “resulted in
extreme emotional distress.” Id. He further
contends that the emotional distress has “produced
physical symptoms including rapid heartbeat, dizziness,
unsteadiness, fainting, palpitating heartbeat, irregular
heartbeat, night sweats, insomnia and nightmares.”
has also attached a number of purported email communications
between the parties. The emails clearly demonstrate the open
hostility and rancor between Gilliam and the Ordiways. The
emails also appear to provide some support for Gilliam's
contention that the Ordiways believe that Gilliam should pay
certain medical expenses incurred in treating the
Ordiways' son. The emails also appear to provide some
substantiation that Defendants have publically alleged that
Gilliam raped an underage girl, was married to two women at
the same time, and was involved in various other kinds of
December 1, 2016, Defendants filed a response to
Gilliam's motion for summary judgment. Resp. Mot. Summ.
J., ECF No. 77. In the response, Defendants appear to concede
that the emails Gilliam attached were, in fact, authentic.
But Defendants argue that the emails do not “show any
evidence that the Defendants did any harm to the
Plaintiff.” Id. at 2. Defendants go on to
argue that Gilliam admitted to them that he was married to
two women simultaneously in the Phillipines. Id. at
5-6. They further contend that “Plaintiffs [sic] own
sister . . . accused him of being a pedophile and that he has
many victims in his history.” Id. at 6.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed. R. Civ. P. 72(b)(2).
Objections must be stated with specificity. Thomas v.
Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). De novo review requires at least a
review of the evidence before the magistrate judge; the Court
may not act solely on the basis of a magistrate judge's
report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the
evidence, the Court is free to accept, reject, or modify the
findings or recommendations of the magistrate judge. See
Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich.
those objections that are specific are entitled to a de novo
review under the statute. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir. 1986). “The parties have the duty to
pinpoint those portions of the magistrate's report that
the district court must specially consider.”
Id. (internal quotation marks and citation omitted).
A general objection, or one that merely restates the
arguments previously presented, does not sufficiently
identify alleged errors on the part of the magistrate judge.
See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.
Mich. 2004). An “objection” that does nothing
more than disagree with a magistrate judge's
determination, “without explaining the source of the
error, ” is not considered a valid objection.
Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively
duplicated as both the magistrate and the district court
perform identical tasks. This duplication of time and effort
wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrate's Act.”
report and recommendation, Judge Morris recommended denial of
Gilliam's second motion for summary judgment. She noted
that Gilliam based his motion on two grounds: the
Defendants' failure to participate in discovery and the
lack of a genuine issue of fact on any element of his
substantive claims. Judge Morris rejected Gilliam's
argument that the Defendants' participation in discovery
justified entry of summary judgment. She reasoned:
[W]hile Gilliam generally alleges that Defendants have not
participated in discovery, he has not filed a renewed motion
to compel, despite having done so once prior in this case.
(Doc. 44). Gilliam also has not specifically pointed to any
interrogatories or requests for production regarding which
Defendants have produced insufficient responses. Furthermore,
while the Court granted Gilliam's earlier motion to
compel, he has not filed a renewed motion to compel, and does
not move for sanctions based on Defendants' alleged
failure to comply. Defendants for their part vehemently deny
this allegation, and assert that they have sent Gilliam
“thousands of documents.” (Doc. 77 at 2). This
being the case, Gilliam has not sought any ...