United States District Court, E.D. Michigan, Southern Division
CORRECTED OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
AND/OR SUMMARY JUDGMENT AND NOTICE OF HEARING
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is presently before the Court on plaintiff's
motion for default judgment and/or summary judgment [docket
entry 65]. Defendants have not responded to this motion and
the time for them to do so has expired. Pursuant to E.D.
Mich. LR 7.1(f)(2), the Court shall decide this motion
without a hearing.
is, for the most part, a conversion and defamation action.
Plaintiff alleges that in early 2018 he entrusted defendant
Whitworth with the care of his pregnant dog, a Chinese
Crested named Vogue. Whitworth agreed to care for Vogue and
her anticipated litter of puppies for a short period of time.
While in Whitworth's care, Vogue had three puppies. When
plaintiff did not retrieve Vogue and the puppies by the
agreed upon date, Whitworth notified plaintiff that she had
placed them with Kalamazoo County Animal Services
(“KCAS”). The next day, at plaintiff's
request, defendant Carlson retrieved the dogs from KCAS and
agreed to care for them until plaintiff could pick them up in
approximately one week's time. Before plaintiff did so,
Carlson delivered the dogs to defendant Parker, who allegedly
refused to return them to plaintiff and instead delivered
them to an animal shelter in Canada. Additionally, Parker and
Carlson allegedly defamed plaintiff on social media. In
approximately mid-May, one month after filing the complaint,
plaintiff succeeded in retrieving Vogue and two of the
puppies from the Canadian shelter.
of the complaint asserts a conversion claim against all three
defendants. Counts 2 and 3 assert claims against Whitworth
and Carlson for “claim and delivery” and breach
of contract. Counts 4, 5, and 6 assert claims against Parker
for defamation, tortious interference with a business
relationship, and intentional infliction of emotional
distress. Jurisdiction is based on diversity of citizenship.
The Court has dismissed the complaint as to Whitworth due to
the amount in controversy being insufficient as to her. The
Court has denied the motions to dismiss filed by defendants
Carlson and Parker.
instant motion, plaintiff seeks a default judgment or,
alternatively, summary judgment as to defendants Carlson and
Parker on all of the claims he has asserted against them.
These defendants are clearly in default. Defendant Carlson
was served with process on May 18, 2018, and the Clerk
entered her default on June 11. Defendant Parker was served
with process on April 14, 2018, and the Clerk entered her
default on May 8. These defendants have not answered the
complaint or taken any action to have their defaults
set aside. Nor, as noted, have defendants responded to the
instant motion. On June 13, 2018, each of these defendants
did file an untimely motion to dismiss, but the Court denied
those motions on July 3.
these circumstances, plaintiff is plainly entitled to a
default judgment as to defendants Carlson and Parker. Because
the Court shall grant a default judgment as to both
defendants, the Court need not decide whether summary
judgment would be appropriate. Having defaulted, and having
failed to have their defaults set aside (or even request that
their defaults be set aside), defendants have “no
further standing to contest the factual allegations of
plaintiff's claim for relief.” 10A C. Wright &
A. Miller, Federal Practice and Procedure §
2688.1, p. 91 (2016). Defendants' liability is
established, and the only issue remaining to be determined is
“the amount of damages.” Fed.R.Civ.P.
ORDERED that plaintiff's motion for default judgment
and/or summary judgment is granted in part and denied in part
as follows: the motion for default judgment is granted as to
both defendant Carlson and defendant Parker, but
plaintiff's alternative motion for summary judgment is
FURTHER ORDERED that the Court shall conduct a hearing in
Courtroom 100 of the Theodore Levin United States Courthouse,
231 W. Lafayette Boulevard, Detroit, Michigan on September 4,
2018, at 9:00 a.m. to determine the amount of damages to
which plaintiff is entitled.
 Parker did file an answer to the
complaint on May 11, 2018. By then, however, the time for her
to answer had expired and the Clerk had entered her default.
Parties are not free to ignore deadlines set by court rules.
Under Fed.R.Civ.P. 12(a)(1)(A)(i), Parker was required to
answer the complaint within 21 days after being served with
process. Since she was served on April 14, her answer was due
by May 7 (the first business day after the 21st day after
service). Her default was entered on May 8 and she filed her
answer on May 11. If a party cannot, or neglects to, meet a
court-required filing deadline, he/she must seek the
Court's permission under Fed.R.Civ.P. 6(b) to extend the
deadline and allow the late filing. Parker did not seek such
permission but ...