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Annabel v. Erichsen

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

April 22, 2019

JORG ERICHSEN, et al., Defendants.



         On January 25, 2019, Plaintiff Robert Annabel filed a second motion for contempt and sanctions against Defendant Jorg Erichsen. ECF 201. On February 14, 2019, Plaintiff filed a motion for summary judgment against Erichsen. ECF 207. Erichsen did not respond to either motion. On March 15, 2019, the magistrate judge issued a Report and Recommendation ("Report") suggesting that the Court grant Plaintiff's motion for contempt and enter default judgment against Jorg Erichsen. ECF 210. The deadline to object to the Report was March 29, 2019. Erichsen lodged three objections.[1] See Exh. A. The Court will adopt the magistrate judge's Report, grant Plaintiff's motion for contempt, enter default judgment against Erichsen, and find Plaintiff's motion for summary judgment against Erichsen moot.


         Rule 72(b) governs a district court's review of a magistrate judge's recommendation on a dispositive matter. Fed.R.Civ.P. 72(b). The district court must consider any objections filed within 14 days of a magistrate judge's entry of a recommended disposition and "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). The Court "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.


         I. Default Judgment

         A. The Report.

         The magistrate judge recommended entry of default judgment against Erichsen as a sanction for his avoidance of discovery. ECF 210, PgID 1743. If a party "fails to obey an order to provide or permit discovery," the Court may enter "default judgment against the disobedient party." Fed.R.Civ.P. 37(b)(2). Entry of default judgment "is a sanction of last resort." Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990). The Court considers several factors when deciding whether to enter default judgment as a sanction: (1) whether the defaulting party's "failure to cooperate in discovery" prejudiced the adversary; (2) whether the defaulting party received a warning "that failure to cooperate could lead" to default; and (3) whether "less drastic sanctions were imposed or considered" before entry of default judgment. Id. (citation omitted). The magistrate judge considered these factors and found that the factors weighed in favor of entry of default judgment.

         B. Objections.

         Erichsen filed three objections. First, he noted that he is "not able to keep up with all of Mr. Annabel's legal maneuvers" and that he was resending answers to Plaintiff's interrogatories. Exh. A. Second, he explained that he would benefit from legal assistance[2] and that the discovery admissions appeared as "some type of entrapment legal maneuver unbeknownst" to him. Id. He insists that his "confusion as to legal things should not be mis interprated [sic] as defiance in any way." Id. Finally, Erichsen commented on the short time to respond to the Report. Id.

         Liberally construed, Erichsen's objections challenge only the magistrate judge's determination that his "first anemic, then non-existent responses to motions and Court orders were rooted in bad faith and constitute contumacious conduct." ECF 210, PgID 1746. Erichsen's brief objection fails to overcome his extensive failure to engage in the litigation in good faith. See Id. at 1747-49 (detailing five instances in which Erichsen failed to comply with Court orders; noting he failed to respond to discovery as ordered; explaining he failed to comply with the magistrate judge's order of sanctions; and describing his letters that demonstrated a disinterest in litigating the case). Having considered Erichsen's objections and the magistrate judge's Report de novo, the Court agrees with the magistrate judge that the factors weigh in favor of entry of default judgment. The Court will therefore adopt the Report and enter default judgment.

         C. Entry of Default Judgment.

         Plaintiff's amended complaint includes four claims against Erichsen: (1) violation of the Eighth Amendment for use of excessive force; (2) violation of the First Amendment for a conspiracy to retaliate against Plaintiff; (3) state-law intentional infliction of emotional distress; and (4) state-law assault and battery. ECF 49, PgID 366-67; see also ECF 149, PgID 1160-61 (describing Plaintiff's claims in the Court's previous opinion on a motion for summary judgment). The Court will enter default judgment against Erichsen on all four claims as a Rule 37 sanction for his continued unresponsiveness to Court proceedings.

         D. ...

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