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Jones v. Portfolio Recovery Associates, LLC

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

November 7, 2017


          David R. Grand U.S. Magistrate Judge


          Hon. Victoria A. Roberts United States District Court Judge

         This case is before the Court on the motion of Sharon Jones ("Jones"), for default judgment against Paul Misiewicz, ("Misiewicz"). [Doc. 32) For the following reasons, Jones' motion is GRANTED.


         This action was brought November 16, 2016. Jones filed an amended complaint ("Complaint") on December 27, 2016. [Doc. 12) Misiewicz was served with the summons and Complaint on January 17, 2017 and January 24, 2017 by the U.S. Marshall Service, through personal service and U.S. mail, respectively. Misiewicz did not answer or otherwise defend against the lawsuit.

         On September 8, 2017, the Clerk of this Court entered Entry of Default against Misiewicz.

         Misiewicz is not a minor, incompetent or engaged in military service. The motion for default is based on the state court record, allegations in the Complaint and attached exhibits alleging liability of Misiewicz under state and federal statutes.

         As a 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). Nonetheless, it is well established that a "district court has the authority to enter default judgments for failure...[to] comply with rules of procedure". WahlvMcIver, 773 F.2d 1169. 1174 (11th Cir. 1985). The court rules provide that where, as here, a defendant fails to appear or otherwise acknowledge an action for more than four months and clerk's default entered, entry of default judgment is appropriate.

         "While modern courts do not favor default judgments, they certainly are appropriate when the adversary process has been halted because of an essentially unresponsive party." Flynn v Angelucci Bros. & Sons, Inc., 448 F.Supp.2nd 193, 195 (D.D.C. 2006)(quotation omitted). Misiewicz has been unresponsive; he has declined to appear since January.

         With the Entry of Default, all Jones' well-pleaded allegations are deemed admitted by Misiewicz through his failure to plead or otherwise respond to the complaint. See, Ford Motor Co. v. Cross, 441 F.Supp.2d 837, 846 (E.D.Mich.2006).

         Jones is not automatically entitled to judgment in a particular amount. Indeed, a default is not "an absolute confession by the defendant of his liability and the plaintiffs right to recover, " but instead merely is "admission of the facts cited in the complaint, which by themselves may or may not be sufficient to establish a defendant's liability." Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F.Supp.2d 1353, 1357 (S.D.GA 2004). Defendant's "default notwithstanding, a plaintiff is entitled to default judgment only if the complaint states a claim for relief." Descent v. Kolitsidas, 396 F.Supp.2d 1315, 1316 (M.D.Fla. 2005). In other words, "a default judgment cannot stand on a complaint that fails to state a claim." Chudasama v. Mazda Motors Corp., 123 F.3d 1353, 1370, n. 41 (11th Cir. 1997).

         However, "[a] defaulting party is taken to have conceded the truth of the factual allegations in the complaint as establishing the grounds for liability as to which damages will be calculated." Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 62-63 (1st Cir. 2002).

         In light of these principles, the Court reviewed the state court record and is satisfied the Complaint here sets forth viable causes of action against Misiewicz as well as a basis for recovery. The complaint includes the following specific allegations:

         (1) Misdemeanor violation of MCL 257.698(5), (6), and (9), alleges Misiewicz drove to a Detroit residence in a vehicle bearing flashing, oscillating, or rotating lights, which Misiewicz activated to attract the attention of someone visible to him through a window of the residence. Contrary to federal and State of Michigan collection practices act laws, Misiewicz presented himself as a law enforcement officer to the person in that home.

         (2) Misiewicz then delivered a civil complaint lawsuit to a person - not Jones - and whom he knew had no connection to the alleged debt account at issue. The cover page to the 36th District Court of Detroit complaint he handed the occupant merely states it recommends the person to whom the attached paperwork was directed to contact Misiewicz for his assistance with an important matter.

         (3) The top portion of that cover page bore the Great Seal of the State of Michigan. Misiewicz is not an agent of and has no professional, business or employment affiliation with the State of Michigan. Misiewicz did not act on behalf of any government agency at any relevant point in time.

         (4) On December 8, 2015, Misiewicz filed an affidavit of personal service with the 36th District Court ...

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