United States District Court, E.D. Michigan, Southern Division
R. Grand U.S. Magistrate Judge
OPINION AND ORDER GRANTING MOTION DEFAULT JUDGMENT
AGAINST DEFENDANT PAUL R. MISIEWICZ
Victoria A. Roberts United States District Court Judge
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
APPROPRIATENESS OF DEFAULT JUDGMENT
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.
September 8, 2017, the Clerk of this Court entered Entry of
Default against 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.
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
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.
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).
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).
"[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).
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
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.
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.
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.
On December 8, 2015, Misiewicz filed an affidavit of
personal service with the 36th District Court ...