United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR DEFAULT JUDGMENT
L. LUDINGTON UNITED STATES DISTRICT JUDGE
April 18, 2016, Plaintiff Federal Insurance Company initiated
the above-captioned action against Defendant Penny Fairbotham
by filing its complaint. ECF No. 1. Alleging that Defendant
Fairbotham pled no contest to embezzling $174, 690.00 in
insurance proceeds from its subrogee, Jim Wernig, Inc.,
Plaintiff asserts that Fairbotham is liable to it for the
wrongful conversion of the funds. Plaintiff also asserts that
it is entitled to treble damages and attorneys' fees
pursuant to M.C.L. § 600.2919(a). After Defendant
Fairbotham filed an answer on May 13, 2016 the matter was
referred to Magistrate Judge Patricia T. Morris for pretrial
management. See ECF No. 4. On November 1, 2016, Plaintiff
Federal Insurance Company filed a motion for summary
judgment. ECF No. 10. Defendant filed a response on November
18, 2016. ECF No. 12. After the motion was fully briefed, on
March 17, 2017 the Magistrate Judge issued a report
recommending that Plaintiff's motion for summary judgment
be denied. ECF No. 14. The Court entered an order adopting
the report and recommendation on April 10, 2017. ECF No. 15.
A status conference was held on May 24, 2017. Defendant did
not attend the conference.
requested entry of default pursuant to Federal Rule of Civil
Procedure 55(a) on the grounds that Defendant failed to
attend the status conference or inform Plaintiff or the Court
as to the reasons for her absence. ECF No. 18. The Clerk
denied the request for entry of default on the ground that
Defendant responded to the motion for summary judgment. ECF
No. 19. Plaintiff then filed the instant Motion for Default
Judgment for the same reasons asserted in the request for
entry of default.
55(a) sets forth the standard for entry of default by the
court clerk: “[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, the clerk must enter the party's
default.” Fed.R.Civ.P. 55(a). After entry of default, a
party may move for default judgment under rule 55(b).
Ford Motor Co. v. Cross, 441 F.Supp.2d 837, 846
(E.D. Mich. 2006). A condition precedent to default judgment
is entry of default. Hudson v. North Carolina, 158
F.R.D. 78, 80 (E.D. N.C. 1994) (citing Fed.R.Civ.P. 55).
there is no entry of default by the clerk, a party may move
for (1) an order to the clerk to enter the default; and (2)
entry of default judgment. Wolf Lake Terminals, Inc. v.
Mutual Marine Ins. Co., 433 F.Supp.2d 933, 941 (N.D.
Ind. 2005). “Although Rule 55(a) refers to the entry of
default by the clerk, it is well-established that a default
also may be entered by the court.” Breuer Electric
Mfg. Co. v. Toronado Sys. of Am., Inc., 687 F.2d 182,
185 (7th Cir. 1982)).
Rule 16(f), if a party “fails to obey a scheduling or
pretrial order, or if no appearance is made on behalf of a
party at a scheduling or pretrial conference, ” the
court may, in its discretion, impose various sanctions
against the disobedient party, including a default judgment.
Fed.R.Civ.P. 16(f); Flynn v. Thibodeaux Masonry,
Inc., 311 F.Supp. 2d, 36 (D.D.C 2004). Courts have
granted default judgment as a sanction against a party for
failing to comply with a court order or appear at a hearing.
E.g., Eagle Assocs. v. Bank of Montreal,
926 F.2d 1305, 1310 (2d Cir. 1991). However, default judgment
as a sanction is most appropriate where there is a pattern of
non-compliance with court orders. Secs. & Exchange
Comm'n v. Hollywood Trenz, Inc., 202 F.R.D. 3, 7
general matter, default judgment is disfavored because of the
“strong preference for trials on the merits.”
Shepard Claims Serv., Inc. v. William Darah &
Assoc., 796 F.2d 190, 193 (6th Cir. 1986). The Sixth
Circuit cautions: “Judgment by default is a drastic
step which should be resorted to only in the most extreme
cases.” United Coin Meter Co., Inc. v. Seaboard
Coastline RR., 705 F.2d 839, 845 (6th Cir. 1983);
see Russell v. City of Farmington Hills, 34 F.
App'x 196, 198 (6th Cir. 2002) (enumerating factors a
court should consider in evaluating motion for default
the clerk denied entry of default. ECF No. 19. The Court
nonetheless has discretion to direct entry of default and
grant a default judgment. Breuer Electric, 687 F.2d
at 185 (7th Cir. 1982). Plaintiff's Motion does not
acknowledge the clerk's denial of entry of default.
Plaintiff's motion does not challenge the clerk's
reason for denying entry of default. Rather, Plaintiff
reasserts the fact that Defendant failed to appear at the
status conference. Mot. Default. J. at 2, ECF No. 20. On this
basis Plaintiff deduces that Defendant “has decided not
to participate in any further proceedings in this
has not “failed to plead or otherwise defend”
under rule 55(a). Defendant filed an answer and responded to
Plaintiff's summary judgment motion. See ECF
Nos. 3, 12. Thus, the Clerk properly denied entry of default.
Plaintiff does not support its assertion that failure to
attend a status conference is a sufficient basis upon which
to enter default or default judgment.
appears to suggest that it is entitled to default judgment as
a matter of course, such as where a party has failed to
appear under rule 55(b)(1). However, default judgment is only
available here as a discretionary sanction under rule 16(f).
See Fed. R. Civ. P. 16(f), 55(a); Flynn,
311 F.Supp.2d at 36. Entry of an adverse judgment is a
greater sanction than necessary to address a party's
failure to appear at a status conference.
worth noting that Defendant's failure to attend the
conference is not excusable. Defendant asserts that she
failed to appear at the status conference because she
believed the case was dismissed by this Court's order
denying Plaintiff's motion for summary judgment. Resp. at
1, ECF No. 23. Denial of Plaintiff's motion for summary
judgment means only that there is a factual dispute as to
“whether Defendant embezzled the amount alleged and
that Plaintiff is entitled to recoup any money embezzled from
JWI . . .” Rep. & Rec. at 12, ECF No. 14. This does
not constitute a dismissal, nor does it constitute a judgment
for Defendant. Although Defendant was clearly mistaken as to
the meaning of the Court's April 10 Order, it is not
entirely unreasonable for a pro per defendant to believe that
denial of Plaintiff's motion for summary judgment
constituted a dismissal.
assertion that she was not aware of the status conference is
without merit. Resp. at 1. The Court's April 10 order
denying summary judgment clearly indicated that a status
conference was schedule for May 24. Defendant was served with
the Order at her address of record. If this address is no
longer correct, it is the Defendant's responsibility to
provide the correct address. Furthermore, Defendant was
apparently aware of the Order, which she believed dismissed
the case. Resp. at 1. Both the text of the Order itself and
the text of CM-ECF docket entry number 15 state that a status