Gilliam v. Ordiway et al
Order Overruling 86 , 87 , 91 , 92 Objections, Adopting 85 Report and Recommendation in Part, Denying 72 Motion for Summary Judgment, Denying 80 Motion for Attachment, Denying 81 Motion for Sanctions, Granting 74 Motion for Protective Order, Withdrawing the 35 Order of Reference and Setting Pretrial Conference and Trial Dates. ( Pretrial Submissions due by 6/6/2017; Final Pretrial Conference set for 6/20/2017 at 3:00 PM before District Judge Thomas L. Ludington; Jury Trial set for 7/18/2017 at 8:30 AM before District Judge Thomas L. Ludington.) Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-11833
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris
WILLIAM H. ORDIWAY, JR., and
MARVEILYN TALISIC ORDIWAY,
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION IN PART, DENYING MOTION FOR SUMMARYJUDGMENT,
DENYING MOTION FOR ATTACHMENT, DENYING MOTION FOR SANCTIONS,
GRANTING MOTION FOR PROTECTIVE ORDER, WITHDRAWING THE ORDER
OF REFERENCE AND SETTING PRETRIAL CONFERENCE AND TRIAL DATES
On May 20, 2015, this suit was transferred from the District Court for the Western
District of Missouri to the Southern Division of the Eastern District of Michigan. ECF No. 1. On
March 24, 2016, the case was transferred from the Southern Division to this Court. ECF No. 33.
All pretrial matters were thereafter referred to Magistrate Judge Patricia Morris. ECF No. 35. In
his second amended complaint, ECF No. 7, Plaintiff Jerry Gilliam alleges that the Defendants,
William and Marveilyn Ordiway, invaded his privacy and intentionally inflicted emotional
distress when they told Gilliam’s family that he was guilty of rape, bigamy, and tax evasion.
Both Plaintiff and Defendants are representing themselves, which has resulted in a dysfunctional
discovery exchange and an unnecessarily complex procedural history. On February 27, 2017,
Judge Morris issued a report and recommendation, ECF No. 85, which addressed Gilliam’s
motion for summary judgment, ECF No. 72, Gilliam’s motion for sanctions, ECF No. 81,
Gilliam’s motion for attachment, and Gilliam’s motion for a protective order, ECF No. 74. Both
Plaintiff and Defendants have filed objections. For the reasons stated below, the objections will
be overruled and the report and recommendation will be adopted in part.
Gilliam’s first complaint was originally filed in November 2014 in the Western District
of Missouri. See ECF No. 1. On May 20, 2015, Judge Laughrey of the Western District of
Missouri granted Gilliam’s motion to change venue and transferred the case to the Eastern
District of Michigan. ECF No. 2. Initially, the suit was assigned to District Court Judge Judith E.
Levy and Magistrate Judge Mona K. Majzoub. Soon after the transfer occurred, Gilliam filed an
amended complaint and then, after Defendants filed a response, a second amended complaint.
ECF Nos. 4, 6, 7. Gilliam’s second amended complaint is currently the operative complaint.
Defendants then filed a responsive pleading to the second amended complaint which
Judge Levy construed as a motion to dismiss. Around the same time, Defendants filed a motion
to change venue to the Northern Division of the Eastern District of Michigan. ECF No. 12. On
November 24, 2015, Judge Levy denied Defendants’ motion to dismiss, construing the second
amended complaint as stating claims for intentional infliction of emotional distress and
defamation. ECF No. 18. Defendants then filed an answer to the second amended complaint.
ECF No. 21.
On December 29, 2015, Gilliam filed a motion for default judgment, asserting that
entering a judgment was justified because Defendants had not pleaded defenses in their answer
to the second amended complaint. ECF No. 25. On February 12, 2016, Magistrate Judge
Majzoub issued a report recommending that Defendants’ motion to change venue be granted and
Plaintiff’s motion for default judgment be denied. ECF No. 31. That report and recommendation
was adopted on March 22, 2016, ECF No. 32, and the case was transferred to this Court. Pretrial
matters were referred to Magistrate Judge Patricia T. Morris. ECF No. 35.
During the spring of 2016, both parties filed motions, styled as requests for summary
judgment, arguing that because the other party has refused to cooperate during discovery,
judgment on the merits was appropriate against the opposing party. See ECF Nos. 37, 39, 40.
The parties also filed a number of other discovery-related motions, including a motion to compel
and a motion to proceed with discovery. See ECF Nos. 45, 49, 54, 66. On October 20, 2016,
Magistrate Judge Morris issued an order resolving several of the discovery-related motions. See
ECF No. 68. On the same day, Judge Morris also issued a report and recommendation. ECF No.
In that report, Judge Morris explained that the disputes between the parties centered on
discovery. Judge Morris explained that “the appropriate measure in response to a failure to
comply with discovery rules is a motion to compel under Rule 37, not a motion for summary
judgment.” Id. at 9. The Magistrate Judge concluded that neither Plaintiff nor Defendants had
demonstrated the absence of genuine issues of material fact. Accordingly, Judge Morris
recommended that the cross motions for summary judgment be denied. Because neither party
objected to the report and recommendation, it was adopted on November 15, 2016. ECF No. 73.
Meanwhile, Gilliam filed a second motion for summary judgment. ECF No. 72. He also
filed a motion for a protective order, ECF No. 74, a motion for prejudgment attachment of
Defendants’ property, ECF No. 80, and a motion for sanctions, ECF No. 81. On February 27,
2017, Judge Morris issued a report and recommendation recommending that Gilliam’s motion
for summary judgment be denied, the motion for prejudgment attachment and the motion for
sanctions be denied, and Gilliam’s motion for a protective order be granted. Gilliam and the
Ordiways have both filed objections. Concurrently with his objections, Gilliam filed a motion for
leave to file a third amended complaint. ECF No. 88.
For clarity, the allegations in Gilliam’s second motion for summary judgment will be
briefly summarized here. He asserts that the Defendants “invaded Plaintiff’s privacy by sending
numerous emails to Plaintiff’s family members accusing Plaintiff of bigamy, rape, tax evasion
and threatening arrest and imprisonment by disparaging Plaintiff’s morality and character; emails
that defendants refused to disclose in discovery requests and tacitly admitted by refusing to
properly participate in discovery.” Sec. Mot. Summ. J. at 5, ECF No. 72.
Gilliam has attached an affidavit to his motion for summary judgment which provides
additional factual background. See Aff. Gilliam, ECF No. 72, Ex. 1. According to Gilliam, he
first met the Defendants in the Phillipines. At Defendant William Ordiway’s request, Gilliam
sponsored William Ordiway’s wife and child for entry into the United States. Id. at 1. However,
the relationship soured when Plaintiff reported Defendants “for Food Stamp Fraud.” Id. at 2.
According to Gilliam, the Defendants responded to his fraud report by embarking “on a
campaign to harass and damage plaintiff.” Id. Specifically, Gilliam asserts that “Defendants
continuously emailed Plaintiff’s family members including plaintiff and accused plaintiff of tax
evasion, bigamy, rape and threated arrest and imprisonment.” Id. Defendants also allegedly
“informed plaintiff he would have to pay a Hundred Thousand Dollar ($100,00.00) Medical bill
of defendant’s step-son which plaintiff sponsored and another hundred thousand later.” Id.
Gilliam also alleges that Defendant Marveilyn Ordiway is in contact with Gilliam’s ex-wife, who
Gilliam alleges has kidnapped his daughter. Id. at 3.
Gilliam asserts that Defendants’ actions have “resulted in extreme emotional distress.” Id.
He further contends that the emotional distress has “produced physical symptoms including rapid
heartbeat, dizziness, unsteadiness, fainting, palpitating heartbeat, irregular heartbeat, night
sweats, insomnia and nightmares.” Id.
Gilliam has also attached a number of purported email communications between the
parties. The emails clearly demonstrate the open hostility and rancor between Gilliam and the
Ordiways. The emails also appear to provide some support for Gilliam’s contention that the
Ordiways believe that Gilliam should pay certain medical expenses incurred in treating the
Ordiways’ son. The emails also appear to provide some substantiation that Defendants have
publically alleged that Gilliam raped an underage girl, was married to two women at the same
time, and was involved in various other kinds of malfeasance.
On December 1, 2016, Defendants filed a response to Gilliam’s motion for summary
judgment. Resp. Mot. Summ. J., ECF No. 77. In the response, Defendants appear to concede that
the emails Gilliam attached were, in fact, authentic. But Defendants argue that the emails do not
“show any evidence that the Defendants did any harm to the Plaintiff.” Id. at 2. Defendants go on
to argue that Gilliam admitted to them that he was married to two women simultaneously in the
Phillipines. Id. at 5–6. They further contend that “Plaintiffs [sic] own sister . . . accused him of
being a pedophile and that he has many victims in his history.” Id. at 6.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge 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). De novo review
requires at least a review of the evidence before the magistrate judge; the Court may not act
solely on the basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
Only those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those
portions of the magistrate’s report that the district court must specially consider.” Id. (internal
quotation marks and citation omitted). A general objection, or one that merely restates the
arguments previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. See VanDiver v. Martin, 304 F. Supp. 2d 934, 937 (E.D. Mich. 2004). An
“objection” that does nothing more than disagree with a magistrate judge’s determination,
“without explaining the source of the error,” is not considered a valid objection. Howard v. Sec’y
of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively duplicated as both the magistrate and the
district court perform identical tasks. This duplication of time and effort wastes judicial resources
rather than saving them, and runs contrary to the purposes of the Magistrate’s Act.” Id.
In her report and recommendation, Judge Morris recommended denial of Gilliam’s
second motion for summary judgment. She noted that Gilliam based his motion on two grounds:
the Defendants’ failure to participate in discovery and the lack of a genuine issue of fact on any
element of his substantive claims. Judge Morris rejected Gilliam’s argument that the Defendants’
participation in discovery justified entry of summary judgment. She reasoned:
[W]hile Gilliam generally alleges that Defendants have not participated in
discovery, he has not filed a renewed motion to compel, despite having done so
once prior in this case. (Doc. 44). Gilliam also has not specifically pointed to any
interrogatories or requests for production regarding which Defendants have
produced insufficient responses. Furthermore, while the Court granted Gilliam’s
earlier motion to compel, he has not filed a renewed motion to compel, and does
not move for sanctions based on Defendants’ alleged failure to comply.
Defendants for their part vehemently deny this allegation, and assert that they
have sent Gilliam “thousands of documents.” (Doc. 77 at 2). This being the case,
Gilliam has not sought any relief regarding Defendants’ alleged failure to
participate in discovery, and the Court has no reason to believe that Defendants
have continued to shirk their discovery responsibilities.
Id. Rep. & Rec. at 8.
Judge Morris also concluded that Gilliam had not demonstrated the absence of a genuine
issue of material fact on his substantive claims. Relying upon the order where Judge Levy found
that Gilliam had properly stated claims for defamation and intentional infliction of emotional
distress, Judge Morris concluded that “[t]he precise content of Defendants’ discussions with third
parties regarding Gilliam and his alleged commission of rape, bigamy, and other crimes, remains
to be determined, and thus a question of material fact persists rendering summary judgment
inappropriate.” Id. at 10. Judge Morris further noted that “truth is a complete bar to defamation”
and explained that Defendants have provided “various exhibits purporting to demonstrate that
Gilliam did in fact commit the crimes of bigamy, rape, and tax evasion.” Id. at 11. The
outstanding issue of “whether [the] statements made were true or not is a genuine issue of
material fact that precludes summary judgment.” Id.
As to Gilliam’s intentional infliction of emotional distress claim, Judge Morris found
entry of summary judgment was likewise unjustified. She reasoned that Gilliam’s allegations that
the Defendants threatened him with criminal prosecution and threatened to tell his family that he
was engaged in criminal conduct could, under certain circumstances, form the basis of a claim
for intentional infliction of emotional distress. However, Judge Morris concluded that
whether these incidents occurred remains a contested issue for the trier of fact to
determine. Defendants have responded to the motion and challenge the veracity of
many of Plaintiff’s allegations and they attach various documents and even an
email from Plaintiff’s sister in addition to other evidence. . . . Accordingly,
Gilliam has not shown that no question of material fact remains.
Id. at 15.
Judge Morris further reasoned that “summary judgment is [also] inappropriate at this time on
Gilliam’s IIED claim because he has not provided sufficient proof that [he] actually suffered
severe emotional distress.” Id.
Turning to Gilliam’s motion for a protective order, Judge Morris found that the existing
protective order, ECF No. 66, should be amended “to add the requirement that any information
provided be either returned or destroyed when the instant litigation concludes.” Id. at 16–17. The
original protective order was entered to protect Gilliam’s mental health records during discovery,
in accordance with the Health Insurance Portability and Accountability Act.
Judge Morris then considered Gilliam’s motion for attachment. She concluded that
“[p]rejudgment attachment is neither appropriate nor possible in this case.” Id. at 17. Relying
upon Mich. Compl. L. § 600.4001, Judge Morris explained that Gilliam had not provided
evidence that the predicate requirements for prejudgment attachment were present.
Finally, Judge Morris found that Gilliam’s motion for sanctions should be denied. She
explained: “[T]his matter is quite complex enough on the merits, and attempting to identify and
redress each violation of the local rules, practice guidelines, or rules of civil procedure
(committed on both sides of the “v.”) would be an unreasonably arduous task that would distract
from the resolution of this matter on the merits.” Id. at 19. Nevertheless, Judge Morris indicated
that she was “well prepared to recommend or order the imposition of sanctions for conduct
which negatively impacts the fair and expeditious resolution” of the cause, but was “disinclined
to preside over a battle . . . between the parties to determine which side can identify a greater
number of minor rule violations.” Id. at 19–20.
Gilliam has filed seven objections. See Pl. Objs., ECF No. 87. He has also filed a separate
objection wherein he challenges the admissibility of certain exhibits attached to the Defendants’
response to his summary judgment motion. See ECF No. 86. Defendants have filed two
objections to the report and recommendation. See ECF Nos. 91, 92. The objections will be
addressed and overruled in turn.
In his first, fourth, and sixth objections, Gilliam takes issue with Judge Morris’s analysis
of his “defamation” claim. Specifically, he argues that his second amended complaint does not
include a defamation claim. Rather, he contends, he is asserting intentional infliction of
emotional distress and invasion of privacy claims. And Gilliam is correct. The title of his second
amended complaint indicates that he is alleging “invasion of privacy, intentional infliction of
emotional distress and outrageous conduct inflicting extreme emotional distress.”1 Sec. Am.
Compl. at 1. Gilliam does not include the word “defamation” anywhere within his second
amended complaint. Although Gilliam’s allegations might form the basis for a defamation claim,
if liberally construed, the plain language of his second amended complaint does not frame such a
Although Gilliam’s complaint appears to frame two separate claims for intentional infliction of emotional distress
(one for regular emotional distress and another for “extreme” emotional distress), the complaint is properly
construed as alleging only one claim for intentional infliction of emotional distress. A claim for intentional infliction
of emotional distress requires both that the tortfeasor engage in “extreme or outrageous” conduct and that the
conduct result in “severe emotional distress.” See Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602 (1985).
“Extreme emotional distress” is thus a prerequisite for proving an intentional infliction of emotional distress claim
and not, as Gilliam appears to be asserting, the basis for a separate tort.
Judge Levy, however, construed Gilliam’s second amended complaint as properly stating
claims for defamation and intentional infliction of emotional distress. See Order Deny Mot.
Dismiss, ECF No. 18. In the order, Judge Levy explained that pro se pleadings are held to less
stringent standards than formal pleadings, but that she would “thus look at the alleged facts to
determine whether plaintiff has pled plausible claims, regardless of whether they are correctly
styled.” Id. at 8–9. She then found that he had sufficiently pleaded a claim of defamation, but did
not analyze whether Gilliam had properly pleaded a claim for invasion of privacy.
In his objections, Gilliam asserts that “[t]he ‘facts’ set forth in Plaintiff’s Civil Complaint
not only formally claim Invasion of Privacy but conform to the category of intrusion upon
Plaintiff’s seclusion or solitude in his private affairs.” Objs. at 2. In fact, Gilliam contends that he
“has never intended to sue to defamation and will voluntarily dismiss that claim.”
Gilliam now requests that he be permitted to proceed on his invasion of privacy claim. To
that end, he has filed a motion for leave to file a third amended complaint. ECF Nos. 88, 89. The
proposed third amended complaint, ECF No. 89, does not appear to allege new claims or add
new parties. See Mot. File Third. Am. Compl. at 1 (“Plaintiff has not changed any facts or parties
to the suit in his amendment.”). Rather, Gilliam seeks to amend the complaint for the sole
purpose of clarifying that he is asserting an invasion of privacy claim, not a defamation claim.
Because the substance of Gilliam’s claims will not change (simply the vehicle by which he seeks
redress) he further contends that “there will be no need to modify the Court’s pretrial scheduling
order.” Id. at 4.
Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its pleading
with the court’s leave and that “the court should freely give leave when justice so requires.”
Given Judge Levy’s departure from the plain language of Gilliam’s complaint, his request to
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clarify his complaint is reasonable. Defendants argue that allowing the amendment will prejudice
them, but if the scheduling order will not be modified, then any prejudice will be minimal (apart
from the inherent prejudice of defending against a suit). However, amendment should not be
permitted if the new (or clarified) claim is futile. The question thus becomes whether Gilliam’s
proposed third amended complaint properly states a claim for invasion of privacy under
In Michigan, a tort for invasion of privacy can be based on one of four different legal
theories. Lansing Ass’n of Sch. Adm'rs v. Lansing Sch. Dist. Bd. of Educ., 216 Mich. App. 79, 87
(1996). Two of the theories are potentially implicated here. First, a plaintiff may bring suit for
“[i]ntrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.” Id. Second, a
plaintiff may bring suit for “[p]ublic disclosure of embarrassing private facts about the plaintiff.”
“The intrusion-into-seclusion theory of privacy requires the plaintiff to establish the
following three elements: (1) the existence of a secret and private subject matter, (2) a right
possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information
about that subject matter by the defendant through some method objectionable to the reasonable
man.” Id. (emphasis in original). The public-disclosure-of-embarrassing-facts theory “requires
that the disclosed information be highly offensive to a reasonable person and of no legitimate
concern to the public.” Fry v. Ionia Sentinel-Standard, 101 Mich. App. 725, 728, (1980).
Here, the gravamen of Gilliam’s allegations is that the Defendants shared “bogus
allegations of crimes and pending felony warrant [sic] with plaintiff’s family.” Prop. Sec. Am.
Compl. at 5. Specifically, Gilliam alleges that Defendants are baselessly accusing him of “crimes
of rape, bigamy and tax evasion.” Id. at 3.
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Gilliam’s complaint does not state a claim under the intrusion-into-seclusion theory. That
claim is focused not on the publication of secret and private subject matters, but on the method of
obtaining such secret and private information. See Tobin v. Michigan Civil Serv. Comm’n, 416
Mich. 661, 674 (1982). In other words, Gilliam must allege that the Defendants obtained
information about his private matters (presumably the alleged crimes) through “some method
objectionable to a reasonable man.” Doe v. Mills, 212 Mich. App. 73, 88 (1995). None of the
allegations in any of Gilliam’s superseded, active, or proposed complaints allege that the
Defendants discovered private information about him through an unreasonable intrusion. Rather,
Gilliam’s allegations focus on the publication of private information, which is insufficient to
state a claim for invasion of privacy. See Prop. Am. Compl. at 4 (“Defendants acted in violation
of plaintiff’s right to privacy by emailing plaintiff’s family members . . . intimate details of the
criminal accusations.”). Defendants, for their part, argue that the allegations of criminal conduct
they have leveled against Gilliam come from conversations and admissions he made to them
personally. See, e.g., Def. Resp. Mot. Summ. J. at 4 (“The Defendant has many documents that
the Plaintiff emailed the Defendants to prove that the Plaintiff told the Defendant that he was
married to another prior to marring [sic] the second.”). Because Gilliam’s allegations do not
suggest that the Defendants obtained private information about him through an unreasonable and
objectionable method, he has not stated a claim for invasion of privacy by intrusion into
Construing Gilliam’s claims broadly, he might also be attempting to state a claim for
public disclosure of embarrassing facts. Importantly, “[t]his branch of invasion of privacy does
not look to whether the information conveyed is true or false, but whether it is something an
ordinary person has a right to keep private.” Beaumont v. Brown, 401 Mich. 80, 96 (1977). In
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other words, it is irrelevant, for purposes of this tort, whether the facts disclosed were true or
false. If the defendant had a right or duty to disclose the information, then the plaintiff cannot
bring a claim for public disclosure of embarrassing facts. Similarly, another prerequisite is that
“the matter be of no legitimate concern to the public.” Fry v. Ionia Sentinel-Standard, 101 Mich.
App. 725, 729 (1980).
Here, Gilliam alleges that Defendants publically accused him of committing several
crimes. Defendants assert that they were justified in doing so because Gilliam actually
committed those crimes. As explained above, Gilliam can prevail upon a claim for public
disclosure of private information only if the information is such that, even if true, he would have
had a right to keep private. If Gilliam actually did commit the crimes Defendants accuse him of
(bigamy, rape, tax evasion, etc.) then they would have had a right to report that information to
the authorities. Crime is a matter of legitimate concern to the public, and so Gilliam cannot bring
an invasion of privacy claim based on Defendants’ public accusations. Because Gilliam has not
properly stated a claim for invasion of privacy, his motion to file a third amended complaint will
be denied. Although Judge Morris analyzed Gilliam’s motion for summary judgment as if it
involved a claim for defamation, it would have been denied even if construed as advancing a
claim for invasion of privacy. Gilliam’s first, fourth, and sixth objections will therefore be
If someone makes false and damaging public statements about another person, the proper
method of redress is through a claim for defamation. However, Gilliam has not pleaded a claim
for defamation and, in fact, has strenuously asserted that he does not wish to advance a
defamation claim. Gilliam is the master of his complaint. “[W]hile a court should liberally
interpret a pro se complaint, a court should neither re-invent a plaintiff’s complaint nor plead
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allegations that a plaintiff wishes not to pursue.” Price v. Caruso, 451 F. Supp. 2d 889, 893 (E.D.
Mich. 2006). Thus, Gilliam’s wish to “voluntarily dismiss” his defamation claim (to the extent
his complaint has previously been construed as advancing a defamation claim) will be honored.
Objs. at 7. To the extent Gilliam’s complaint seeks recovery based on defamation, it will be
dismissed without prejudice.
In his second and fifth objections, Gilliam argues that Judge Morris improperly
recommended denial of his motion for summary judgment because the exhibits Defendants
attached to their response brief were not authenticated.2 Gilliam appears to rely on Federal Rule
of Civil Procedure 56(c)(2), which allows a party to “object that the material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence.” Id.
Defendants attached a number of exhibits to their response brief which they argue demonstrate
that Gilliam actually committed the crimes they have accused him of. Specifically, they provide
purported pictures of Gilliam’s weddings and transcripts of online chats where a person they
identify as Gilliam appears to ask an underage girl for nude pictures and sex. Given the lack of
context provided, Defendants’ exhibits fall far short of demonstrating that Gilliam actually
committed the crimes which Defendants accuse him of. But Gilliam’s objection misapprehends
the basis on which Judge Morris recommended denial of his motion for summary judgment.
A motion for summary judgment should be granted if the “movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of identifying where to look
in the record for evidence “which it believes demonstrate the absence of a genuine issue of
Gilliam also separately filed another objection wherein he makes substantially the same argument. See ECF No.
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material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The Court must view the
evidence and draw all reasonable inferences in favor of the non-movant and determine “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Id. at 251–52.
As the moving party, Gilliam thus bears the burden of providing evidence supporting his
claims which is so conclusive that no reasonable jury could find for Defendants. In support of his
motion for summary judgment, Gilliam provides only his own sworn affidavit and a series of
emails between him and Defendants. He has provided no affirmative proof that Defendants have
actually told Gilliam’s family that he committed crimes in the past. And Gilliam has certainly
provided no evidence that the alleged statements were actually false. Absent proof of at least
those two things, Gilliam has not conclusively established that the Defendants engaged in
extreme and outrageous conduct.3 Likewise, Gilliam has provided no medical evidence
suggesting that Defendants’ conduct actually caused emotional distress or physical harm to him.
Thus, Gilliam’s motion for summary judgment, standing alone, does not show that there is no
genuine issue of material fact. Regardless of whether Defendants attached admissible evidence to
their response brief, Judge Morris properly recommended that Gilliam’s motion for summary
judgment be denied.
In his fifth objection, Gilliam asserts that Defendants have admitted to demanding that he pay $200,000 to cover
medical payments for their son. But even if true, a mere demand for payment is not necessarily extreme and
outrageous conduct. Thus, summary judgment on the IIED claim cannot be entered for Gilliam on the sole basis that
Defendants demanded he pay money.
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Gilliam next objects to Judge Morris’s recommendation to deny his motion for sanctions.
He argues, essentially, that Judge Morris erred in relaxing the procedural rules. He provides the
following examples of procedural infractions by Defendants:
Defendants have failed to meet the legal requirements of counter-affidavits in
their Summary Judgment Response; have never met the requirements of legal
briefs citing cases, rules and statutes in support of the facts relied upon in their
motions; have continually failed to notarize key discovery documents requiring
notarization (Defendants have no notarization on any of their documents.)
Mot. Sanctions at 4, ECF No. 81.
But Gilliam has not demonstrated that the Defendants have purposefully and flagrantly violated
procedural rules. The Court concurs with Judge Morris’s conclusion that, in a case where both
parties are representing themselves, it would be counterproductive to attempt to enforce every
technical violation of a procedural requirement. Both parties have violated certain provisions of
the Federal Rules of Civil Procedure and the Local Rules. The Court is not required under either
Federal Rule of Civil Procedure 11(c) or Rule 37 to impose sanctions every time parties without
legal representation engage in some form of technical misconduct, and will not do so here. But if
either party engages in bad faith conduct in the future, sanctions may be imposed.
Finally, Gilliam argues in his seventh objection that Judge Morris erred in recommending
denial of his motion for attachment. He contends that this case qualifies for prejudgment
attachment under Mich. Comp. L. § 600.4001, but does not provide a rationale. As Judge Morris
explained, Michigan law allows prejudgment attachment only in situations where the defendant
cannot be served with process or is not subject to the court’s jurisdiction. Here, Defendants have
been served and are within the Court’s jurisdiction. Gilliam argues that attachment is necessary
because Defendants may fraudulently transfer real estate they own into the name of relatives. But
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Gilliam has not substantiated that allegation in any way. Gilliam’s motion for attachment will be
Finally, Defendants have filed two objections. ECF Nos. 91, 92. In both objections,
Defendants take issue with Judge Morris finding that Defendants’ representations in their
response to the summary judgment motion partially substantiated Gilliam’s defamation claim.
See Rep. & Rec. at 10 (“However, while Gilliam has not supplied sufficient proof to satisfy a
defamation claim, Defendants have done some of the work for him.”). As explained above,
Gilliam is not asserting a defamation claim and cannot bring an invasion of privacy claim.
Accordingly, Judge Morris’s analysis of Gilliam’s potential defamation claim is not being relied
upon. Because Gilliam’s potential defamation claim will be dismissed without prejudice, Judge
Morris’s finding that Defendants had provided some support for such a claim will be
disregarded. Because the potential defamation claim will be dismissed, Defendants were not
prejudiced by any misunderstanding Judge Morris may have been operating under. Accordingly,
Defendants’ objections will be overruled as moot.
To summarize, Gilliam’s motion for summary judgment will be denied. His invasion of
privacy claim will be dismissed. Accordingly, the only outstanding claim is for intentional
infliction of emotional distress. More importantly, the deadline for dispositive motions set out in
the scheduling order, ECF No. 28, has passed. Accordingly, this case is trial ready. Because all
pretrial matters have been resolved, the order of reference to Judge Morris has been satisfied and
the order of reference will be withdrawn.
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A final pretrial conference and trial will be scheduled. The parties will be directed to
submit proposed voir dire questions two weeks in advance of the final pretrial conference. At the
same time, the parties should submit a statement of claims or defenses, no longer than two pages,
suitable to be read during opening instructions to the jury. Finally, the parties should provide
proposed jury instructions. The Plaintiff and Defendants must personally attend the final pretrial
conference and trial.
Accordingly, it is ORDERED that Plaintiff Gilliam’s objections, ECF Nos. 86, 87, are
It is further ORDERED that Defendants William and Marveilyn Ordiway’s objections,
ECF Nos. 91, 92, are OVERRULED.
It is further ORDERED that the report and recommendation, ECF No. 85, is ADOPTED
It is further ORDERED that the Order of Reference to Judge Morris, ECF No. 35, is
It is further ORDERED that Plaintiff Gilliam’s defamation claim, to the extent he alleges
one, is DISMISSED without prejudice.
It is further ORDERED that Plaintiff Gilliam’s invasion of privacy claim is
DISMISSED with prejudice.
It is further ORDERED that Plaintiff Gilliam’s motion for summary judgment, ECF No.
72, is DENIED.
It is further ORDERED that Plaintiff Gilliam’s motion for a qualified protective order,
ECF No. 74, is GRANTED.
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It is further ORDERED that any information provided pursuant to the protective order,
ECF No. 68, must be either returned or destroyed when this suit concludes.
It is further ORDERED that Plaintiff Gilliam’s motion for attachment and motion for
sanctions, ECF Nos. 80, 81, are DENIED.
It is further ORDERED that Plaintiff Gilliam’s motion to file a third amended complaint,
ECF No. 88, is DENIED.
It is further ORDERED that the document entitled “Third Amended Complaint,” ECF
No. 89, is STRICKEN.
It is further ORDERED that the pretrial submissions, described above, must be
submitted to the Court on or before June 6, 2017.
It is further ORDERED that the Final Pretrial Conference is SCHEDULED for June
20, 2017, at 3:00 p.m.
It is further ORDERED that the Jury Trial is SCHEDULED for July 18, 2017, at 8:30
Dated: May 18, 2017
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on May 18, 2017.
KELLY WINSLOW, Case Manager
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