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Gerics v. Trevino

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

July 2, 2018

Adam Gerics, Plaintiff,
v.
Felix Trevino, Jr. et al., Defendants.

          Stephanie Dawkins Davis, United States Magistrate Judge.

          OPINION AND ORDER GRANTING DEFENDANT GENESEE COUNTY'S MOTION TO SET ASIDE CLERK'S ENTRY OF DEFAULT [54]

          GERSHWIN A. DRAIN United States District Judge.

         I. Introduction

         Invoking 42 U.S.C. § 1983, Plaintiff Adam Gerics initiated this action on August 17, 2015. Dkt. No. 1. He has sued the City of Flint, two Flint, Michigan police officers, and Genesee County (“the County”). See Dkt. No. 36.

         Gerics requested on March 19, 2018 that the Clerk of the Court enter a default against Genesee County. Dkt. No. 48. And on March 20, 2018, the Clerk of the Court entered a default as to the County. Dkt. No. 49.

         Then, on May 4, 2018, the County moved to set aside the entry of default. Dkt. No. 54. Plaintiff responded on May 11, 2018. Dkt. No. 56. As of this writing, the County has not replied in support of the motion and the time to do so has expired.

         Presently before the Court is Defendant Genesee County's Motion to Set Aside the Clerk's Entry of Default [54]. The motion is sufficiently briefed. The Court will decide the motion without a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons that follow, the Court will GRANT Defendant Genesee County's Motion to Set Aside the Clerk's Entry of Default [54].

         II. Factual Background

         A. Procedural History

         On September 27, 2013, Plaintiff was arrested following a physical altercation with Defendant Officer Alex Trevino of the Flint Police Department. See Dkt. No. 1. Gerics was imprisoned for three days following the incident and, upon release, filed a civil action in state court. In this state court action, Gerics initially named as defendants the following individuals or entities: Officer Trevino, the City of Flint, and the Flint Police Department. The state court dismissed the complaint on June 29, 2015 by granting Plaintiff's stipulated order of dismissal.

         Gerics initiated this case two months later, on August 17, 2015, and he originally included only the two police officers as Defendants. See Dkt. No. 1. Yet less than a month later, Genesee County prosecutors brought a three count criminal complaint against Gerics for activities he had allegedly engaged in while incarcerated. See Dkt. No. 41-5. The Court stayed this suit pending the resolution of the criminal matter. Dkt. No. 14. The criminal case concluded on June 22, 2017, when the state court granted Plaintiff's motion to quash and dismissed the case. On November 3, 2017, the Court lifted the stay on this litigation. See Dkt. No. 34.

         Plaintiff amended his Complaint on November 9, 2017. Dkt. No. 36. There, as to Genesee County, Gerics asserts claims of malicious prosecution (Count VI), retaliatory prosecution (Count VII), and abuse of process (Count VIII). See Id. Additionally, Gerics alleges violations of: the First Amendment by a retaliatory arrest (Count I); the Fourth Amendment by an unlawful arrest (Count II); the Fourth and Fourteenth Amendments by excessive force and unlawful seizure (Counts III and IV); the First and Fourth Amendments by failure to intervene (Count V); and the civil rights statute, 42 U.S.C. § 1983, under Monell (Count IX).[1]

         B. Service on the County

         On November 22, 2017, a copy of the Complaint and summons was delivered to Celeste Bell, the then-acting Chief Assistant Prosecuting Attorney for the Civil Division of Genesee County. See Dkt. No. 56-1. After receiving the package, she returned it to Plaintiff's counsel explaining that she was not authorized to accept service for the County and that service was therefore ...


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