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Gilliam v. Ordiway

United States District Court, E.D. Michigan, Northern Division

May 18, 2017

JERRY GILLIAM, Plaintiff,
v.
WILLIAM H. ORDIWAY, JR., and MARVEILYN TALISIC ORDIWAY, Defendants.

          Patricia T. Morris Magistrate Judge

         ORDER 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

          THOMAS L. LUDINGTON United States District Judge.

         On May 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.

         I.

         Gilliam's 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 complaint.

         Defendants 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.

         On 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.

         During 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.

         In that 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.

         Meanwhile, 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.

         II.

         For 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.

         Gilliam 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.

         Gilliam 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.” Id.

         Gilliam 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 malfeasance.

         On 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.

         III.

         Pursuant 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. 2002).

         Only 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.” Id.

         IV.

         In her 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 ...

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