McIntyre et al v. Ogemaw County Board of Commissioners et al

Filing 76

ORDER Directing Plaintiffs to File Supplemental Brief re 75 MOTION for Default Judgment. Set Motion and R&R Deadlines/Hearings as to 75 MOTION for Default Judgment as to James Raymond Gustafson: (Response due by 3/14/2017) Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
STACY MCINTYRE, et al.
Plaintiffs,

Case No. 15-cv-12214

v

Honorable Thomas L. Ludington

OGEMAW COUNTY BOARD OF
COMMISSIONERS, et al.,
Defendants.
__________________________________________/
ORDER DIRECTING PLAINTIFFS TO FILE SUPPLEMENTAL BRIEF
On June 18, 2015 Plaintiffs filed this putative class action on behalf of all female inmates
of the Ogemaw County Jail who participated in a certain Job Work program (the “Work
Program”), or elected not to participate in the Work Program due to fears of constitutional
violations related to the program. See ECF No. 1. The Defendants identified by Plaintiff were
Ogemaw County Board of Commissioners (“OCBC”), Howie S. Hanft, and James Raymond
Gustafson. Id.

Plaintiffs filed an amended complaint on August 18, 2015, alleging that

Gustafson, a former employee of the Ogemaw County Sheriff Department, assaulted, battered
and sexually harassed female inmates who were incarcerated at the Ogemaw County Jail and
involved in the Work Program. See Am. Compl, ECF No. 13. Plaintiffs alleged five counts
arising from Defendants’ conduct: (1) Deprivation of civil rights in violation of 42 U.S.C. §
1983; (2) Gross negligence; (3) Assault and battery; (4) Invasion of privacy; and (5) Negligent
and Intentional infliction of emotional distress. Id. Plaintiffs have since disclaimed their class
action request, and have proceeded only on their individual claims.
I.

Defendant Gustafson was served on July 14, 2015, but did not file an answer. See ECF
No. 14. Accordingly, on August 19, 2015 Plaintiffs filed a request for default as to Defendant
Gustafson. See ECF No. 15. In compliance with Eastern District of Michigan Local Rule 55.1,
Plaintiff’s request properly included the manner of service and location where the Defendant was
served.

Id. Accordingly, on August 20, 2016 the clerk entered default as to Defendant

Gustafson. See ECF No. 16. The clerk certified that Defendant was served with the notice of
default. Id.
On September 15, 2016 summary judgment was granted in favor of Defendant with
regard to a number of Plaintiffs facing procedural bars. See ECF No. 60. On November 4, 216
the parties notified that Court that they had reached a settlement with the non-defaulted
Defendants. A stipulated order of dismissal as to the non-defaulted Defendants was entered on
January 30, 2017. See ECF No. 74.
On February 9, 2017 Plaintiffs filed a motion for default judgment as to Defendant
Gustafson pursuant to Federal Rule of Civil Procedure 55(b)(2). See ECF No. 75. In their
motion, Plaintiffs ask that damages be awarded in the following amounts:
Stacy McIntyre:

$50,000 compensatory/ $10,000 exemplary

Candy Olstrom:

$50,000 compensatory/ $10,000 exemplary

Heather Miles:

$50,000 compensatory/ $10,000 exemplary

Laurie Bickel

$50,000 compensatory/ $10,000 exemplary

Misty Lynn Edwards:

$50,000 compensatory/ $10,000 exemplary

Krystal Waterman-Rush:

$50,000 compensatory/ $10,000 exemplary

Tina Bahr:

$25,000 compensatory/ $10,000 exemplary

Tammy McElroy:

$25,000 compensatory/ $10,000 exemplary

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April Morgan:

$25,000 compensatory/ $10,000 exemplary

Tina Terkawi:

$25,000 compensatory/ $10,000 exemplary

Candice McCarthy:

$25,000 compensatory/ $10,000 exemplary1

See ECF No. 75. In sum, Plaintiffs seek $425,000 in compensatory damages and $110,000 in
exemplary damages.
II.
A judgment by default may be entered against a defendant who has not pleaded or
otherwise defended against an action. Fed. R. Civ. P. 55(b). Before a default judgment may
enter, a party first must obtain a default. Fed. R. Civ. P. 55(a). Once a default is entered, the
defendants are considered to have admitted the well pleaded allegations in the complaint,
including jurisdiction. Ford Motor Company v. Cross, 441 F.Supp.2d 837, 845 (E. D. Mich.
2006) (citing Visioneering Construction v. U.S. Fidelity and Guaranty, 661 F.2d 119, 124 (6th
Cir. 1981)). Here, Plaintiffs properly obtained a default against Defendant Gustafson, and the
clerk certified that a notice of default was served on Defendant Gustafson.
After a party secures the entry of default, the party may apply for a default judgment.
Fed. R. Civ. P. 55(b). In reviewing an application for a default judgment, “[t]he court may
conduct hearings or make referrals … when, to enter or effectuate judgment, it needs to: (A)
conduct and accounting; (B) determine the amount of damages; (C) establish the truth of any
allegation by evidence; or (D) investigate any other matter.” Fed. R. Civ. P. 55(b)(2). If a party
against whom default judgment is sought has appeared personally or by representative, “that
party or its representative must be served with written notice of the application at least 7 days
before the hearing.” Id. While the well-pleaded factual allegations in the complaint are taken as
1

As Plaintiffs have repeatedly been warned, Candice McCarthy was never properly included as a Plaintiff in this
action. While Plaintiffs obtained leave to file an amended complaint adding her as a Plaintiff, no amended
complaint was filed.

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true when a defendant is in default, damages are not. Ford Motor Company, 441 F.Supp.2d at
848 (citing Thomson v. Wooster, 114 U.S. 104 (1885)). “Ordinarily, the District Court must hold
an evidentiary proceeding in which the defendant has the opportunity to contest the amount [of
damages].” Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995) (internal quotation
and citation omitted). However, Rule 55 gives the court the discretion to determine whether an
evidentiary hearing is necessary, or whether to rely on detailed affidavits or documentary
evidence to determine damages. Stephenson v. El Batrawi, 524 F.3d 907, 916 (8th Cir. 2008).
As noted above, whether default judgment is appropriate depends upon the well-pleaded
allegations in a plaintiff’s complaint. Here, ten Plaintiffs and a party who has not been included
in a properly filed complaint seek default judgment against Defendant Gustafson. Lacking in
Plaintiffs’ amended complaint and their current motion are any specific factual allegations with
regard to each Plaintiff. Problematically, while the complaint broadly asserts that Defendant
Gustafson engaged in inappropriate and non-consensual touching of all Plaintiffs, at the time of
their depositions it appears that at least one Plaintiff testified that she had consented to the
touchings. See, e.g., ECF No. 75 Ex. 14. Plaintiffs have also not established their legal theories.
For instance, Plaintiffs have pled an invasion of privacy claim against Defendant Gustafson,
asserting that “[t]he inappropriate and non-consensual touching of female inmates constituted an
invasion of privacy.” See Compl. ¶ 58. However, under Michigan law the tort of invasion of
privacy does not apply to non-consensual touchings. Instead, the tort of invasion of privacy is
intended to protect a plaintiff against (1) intrusion upon seclusion, solitude, or private affairs, (2)
public disclosure of embarrassing private facts, (3) publicity placing the plaintiff in a false light,
and/or (4) misappropriation of a plaintiff’s name or likeness. See Battaglieri v. Mackinac Ctr.

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For Pub. Policy, 680 N.W.2d 915, 919 (Mich. Ct. App. 2004) (quoting Tobin v. Civil Service
Comm., 331 N.W.2d 184 (Mich. 1982).
While Plaintiffs need not come forward with extensive evidence in support of their
claims in order to obtain a default judgment, they do maintain the minimal burden of stating
valid claims upon which relief can be granted. Plaintiffs will therefore be directed to submit a
supplemental brief (including supplemental affidavits, if Plaintiffs seek to avoid the need for inperson testimony), setting forth (1) legal authority establishing that the five counts set forth in
Plaintiffs’ amended complaint are valid legal theories in light of Plaintiffs’ factual allegations,
and (2) specific factual allegations as to each Plaintiff demonstrating her entitlement to relief
against Defendant Gustafson.
III.
Accordingly, it is ORDERED that Plaintiffs are DIRECTED to submit a supplemental
brief, not to exceed 25 pages, setting forth (1) legal authority establishing that the five counts set
forth in Plaintiffs’ amended complaint are valid legal theories in light of Plaintiffs’ factual
allegations, and (2) specific factual allegations as to each Plaintiff demonstrating her entitlement
to relief against Defendant Gustafson. The brief must be submitted on or before March 14, 2017.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: February 27, 2017

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 February 27, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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