United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
, GRANTING PLAINTIFF'S MOTION FOR CONTEMPT ,
AND DENYING AS MOOT PLAINTIFF'S MOTION FOR SUMMARY
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
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. 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
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."
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
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 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.
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.
Entry of Default Judgment.
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.