Sosa et al v. Detroit, City of et al

Filing 40

OPINION AND ORDER Denying 32 MOTION to Set Aside (Motion for Reconsideration) re 31 Order filed by Detroit, City of, Dwight Pearson. ( Evidentiary Hearing on Damages set for 4/9/2012 09:30 AM before District Judge Sean F. Cox) Signed by District Judge Sean F. Cox. (JHer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Caleb Sosa, a minor, by his next friend
Amparo Hernandez-Sosa, and Amparao
Hernandez-Sosa,
Plaintiffs,
v.

Case No. 10-12878

City of Detroit, et al.,

Honorable Sean F. Cox

Defendants.
__________________________________/
OPINION & ORDER
DENYING MOTION FOR RECONSIDERATION (D.E. NO. 32)
This matter is currently before the Court on a motion filed by Defendant City of Detroit
(“the City”) and Defendant Dwight Pearson (“Pearson”), asking this Court to reconsider its
January 6, 2012 “Opinion & Order Denying Motion To Set Aside Defaults And Setting
Evidentiary Hearing On Damages.” The Court finds that the issues have been adequately
presented in the parties’ briefs and that oral argument would not significantly aid the decisional
process. See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. The Court
therefore orders that the motion will be decided upon the briefs. For the reasons set forth below,
the Court shall deny the motion and shall schedule an evidentiary hearing to determine the
amount of damages to be awarded to Plaintiffs.
BACKGROUND
On July 21, 2010, Plaintiffs Caleb Sosa, a minor, and Amparo Hernandez-Sosa, next
friend of Caleb Sosa, filed this § 1983 action against several Defendants, including the City and
Pearson. Plaintiffs’ original complaint included several “John Doe” Defendants.
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On October 27, 2010, Counsel for Plaintiffs and Jane Kent Mills (“Mills”), counsel for
the City and Pearson, entered into a Stipulation and Order giving the City and Pearson an
extension of time for filing an Answer to the Complaint. The Stipulation and Order provided
that the City would file an Answer on or before November 8, 2010, and that Pearson would file
an Answer on or before November 15, 2010. (Docket Entry No. 4). As of November 16, 2010,
however, neither the City nor Pearson had filed an Answer.
Plaintiffs filed a motion seeking a default judgment as to the City and Pearson on
November 16, 2010. (Docket Entry No. 5). Neither the City nor Pearson filed a response to this
motion.
On November 23, 2010, without addressing Plaintiffs’ pending motion seeking a default
judgment, Mills filed an Answer to the Complaint on behalf of the City and Pearson. (Docket
Entry No. 6). That Answer identified Mills as an attorney with the City of Detroit Law
Department.
Despite the City and Pearson’s failure to respond to the motion, on December 7, 2010,
this Court issued an Order denying without prejudice Plaintiffs’ motion seeking a default
judgment. This Court denied the motion as premature because Plaintiffs had not obtained a
Clerk’s Entry of Default. (Docket Entry No. 7).
On December 27, 2010, Plaintiffs filed a motion asking this Court to reconsider its Order
denying Plaintiffs’ motion for default judgment. (Docket Entry No. 10). Neither the City nor
Pearson filed a response to this motion. This Court denied the motion in an Order issued on
January 5, 2011. (Docket Entry No. 14).
This Court’s January 27, 2011 Scheduling Order provided that Plaintiffs were to file an

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Amended Complaint, that names all John Doe Defendants, no later than February 25, 2011.
(Docket Entry No. 17). It also provides that witness lists were to be filed by June 24, 2011, that
discovery was to close on July 25, 2011, and motions were to be filed by August 27, 2011.
On February 25, 2011, Plaintiffs filed a motion seeking an extension of time to file an
Amended Complaint, asserting that Defense Counsel’s failure to provide Rule 26 disclosures
was impairing Plaintiffs’ ability to identify the John Doe Defendants. (Docket Entry No. 18).
Neither Pearson nor the City filed any response to this motion. On March 16, 2011, this Court
granted Plaintiffs’ request and ruled that Plaintiffs had until March 18, 2011 to Amend their
Complaint.
As of the extended March 18, 2011 deadline for naming the “John Doe” Defendants,
Plaintiffs’ Counsel had still not received Rule 26 disclosures from Defendants, despite numerous
requests for same. On March 18, 2011, Plaintiffs filed an Amended Complaint that deleted all
“John Doe” Defendants but continued to assert claims against all of the originally-named
individual Defendants and the City. (Docket Entry No. 20). Because she had already appeared
in the action, Counsel for the City and Pearson received the Amended Complaint on that same
date, via the Court’s electronic case filing system. In addition, the Affidavit provided by
Plaintiffs’ Counsel in support of Plaintiffs’ request for entry of a default judgment states that a
copy of the Amended Complaint was personally delivered to the City of Detroit’s Law
Department on March 18, 2011.
As of April 26, 2011, however, neither the City nor Pearson had filed an Answer to the
Amended Complaint. Plaintiffs then requested and obtained a Clerk’s Entry of Default as to
both the City and Pearson on April 26, 2011. (Docket Entry Nos. 21 & 26).

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On October 6, 2011, this Court issued a Notice advising the parties that it was holding a
status conference in this matter on October 12, 2011. (Docket Entry No. 24).
On October 11, 2011, Plaintiffs filed a motion seeking a default judgment against the
City and Pearson. (Docket Entry No. 25). The Affidavit attached to Plaintiffs’ motion states
that Plaintiffs’ Counsel has attempted to contact Defense Counsel (Ms. Mills) regarding the
entries of default but that Defense Counsel has not returned any of his telephone calls or e-mails.

On October 12, 2011, Plaintiff appeared for the status conference as scheduled. Counsel
for the City and Pearson did not appear for the October 12, 2011 Status Conference.1
On October 26, 2011, this Court issued a Notice advising the parties that Plaintiffs’
Motion for Default Judgment as to the City and Pearson had been filed and that the Court would
hold a hearing on January 5, 2011. (Docket Entry No. 29). Counsel for the City and Pearson
took no action upon receiving that notice.
Indeed, Counsel for the City and Pearson did nothing for the next two months. On
January 4, 2011 – one day prior to the hearing on Plaintiffs’ Motion for Entry of Default
Judgment – Mills filed a one-page “motion” that presumably was intended as a motion asking
the Court to set aside the defaults against the City and Defendant Pearson. That “motion” states,
in its entirety:

\\\\ [sic]
\\\\ [sic]
defaults against Defendants City of Detroit and Pearson and allow the case to be
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Nor did she contact the Court to request an alternate date or time or to advise that she
could not attend.
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decided on the merits. [sic]
Respectfully submitted,
S/ Jane Kent-Mills
JANE KENT-MILLS (P-38251)
Attorney for Defendant City
CITY OF DETROIT LAW
DEPARTMENT
660 Woodward, Suite 1650
Detroit, MI 48226
[phone]
[e-mail]
Dated: January 4, 2012
(Docket Entry No. 30). Attached to Docket Entry No. 30 are several exhibits, including an
Affidavit from Jane Mills. (Docket Entry No. 30-6). The Affidavit submitted by Mills claims
that “she has no records” indicating that she received the Amended Complaint or some other
filings in this case – although the docket reflects no notices of e-mail delivery failure.2 Mills
acknowledges that she did receive this Court’s October 26, 2011 Notice of Hearing on Plaintiffs’
Motion for Entry of Default Judgment, but offers no explanation as to why she waited more than
two full months – until January 4, 2011, the day prior to the hearing on Plaintiffs’ motion for
entry of default judgment, before taking any action.
On January 5, 2012, the Clerk’s Office, without this Court’s knowledge or approval,
entered a docket entry purporting to strike Defendants’ one-page motion and sent a Notice of
Error to Mills, advising that her filing was wrong or incomplete and directing her to re-file her
motion. (See 1/5/12 Docket Entry). Mills never re-filed the motion and this Court “unstruck”

2

When the electronic case filing “ECF” system is unable to successfully send a filing to
an attorney via e-mail, the ECF system generates a “Notice of E-mail Delivery Failure” that
appears on the docket and is also mailed to the attorney at issue.
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the Clerk’s Office’s purported striking of the motion.
On January 6, 2012, this Court issued an Opinion & Order denying the City and
Pearson’s Motion to Set Aside Default. (Docket Entry No. 31).
On January 17, 2012, attorney John Schapaka, also with the City of Detroit Law
Department, filed an appearance in this action. On that same date, he filed a “Motion to Set
Aside Default and Default Judgment as Ordered by the Court on January 6, 2012” on behalf of
the City and Pearson. (Docket Entry No. 32).
This motion is actually a motion seeking reconsideration of this Court’s January 6, 2012
Opinion & Order. Motions for reconsideration are governed by Local Rule 7.1(h). Local Rule
7.1(h) provides the following standard regarding motions for rehearing or reconsideration:
Generally, and without restricting the court’s discretion, the court will not grant
motions for rehearing or reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable implication. The movant
must not only demonstrate a palpable defect by which the court and the parties
have been misled but also show that correcting the defect will result in a different
disposition of the case.
L.R. 7.1(h)(3).
Defendants’ motion does not demonstrate a palpable defect by which the Court and the
parties have been misled.
Rather, the City and Pearson argue that while Mills’s neglect in this case is inexcusable,
the Court should set aside the defaults entered against them because they should not be held
responsible for their attorney’s misconduct. (See, e.g., Defs.’ Br. at 10, asserting that the City
and Pearson should not “bear the impact of Mills’ failures.”).
“Such an argument was characterized by the United States Supreme Court in Link v.

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Wabash Railroad Co., 370 U.S. 626, 634, 82 S.Ct. 1386, reh’g denied, 371 U.S. 873 (1962), as
‘wholly inconsistent with our system of representative litigation’ in which each party is bound by
the acts of his lawyer-agent.” CSX Trans., Inc. v. May, 919 F.2d 738, 1990 WL 197834 (6th Cir.
1990).
In CSX Transp., Inc., the district court denied the defendants’ motion seeking to set aside
a default judgment entered against them. On appeal, the defendants asserted that the district
court erred in refusing to set aside defaults entered against them because upon learning of the
defaults, they “took immediate action” to set aside the defaults and that they should not be held
responsible for their attorney’s conduct. In rejecting that argument, the Sixth Circuit noted the
rejection of that argument by the Supreme Court in Link. The court further stated that “[i]n order
to avert a finding of culpability so as to obtain relief from a default judgment, a party must
establish that he or she has been a ‘diligent conscientious client.’” CSX Transp., Inc., supra, at *
4. (quoting Coleman v. Smith, 814 F.2d 1142, 1146 (7th Cir. 1987)). The court concluded that
the defendants had “not presented evidence that they were reasonably conscientious in
monitoring the progress of [the] lawsuit.” CSX Transp., Inc., supra, at *4. In so holding, the
court explained that the “[d]efendants were not free to drape a cloak of agency around their
attorney and then close their eyes to further developments in the case.” Id.
This Court concludes that neither the City nor Pearson have established that they have
been “diligent conscientious clients” with respect to this lawsuit.
In its motion, the City asserts that “[i]n civil actions involving the City as a defending
party, Mills’ supervisors function as the voice of her client” and that “[i]n the instant matter, the
City, through Mills’ supervisory chain, was unaware of Mills’ failures and the growing problem
created thereby.” (Defs.’ Br. at 11). The City claims that Mills’s supervisors first “learned of
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the state of affairs in this matter,” on January 5, 2012. (Id.).
The City provides no explanation, however, as to what, if any, actions that Mills’s
supervisors took to supervise Mills or monitor the status of this action. The City is not free to
“drape a cloak of agency around their attorney and then close their eyes to further developments”
in this action.
The same holds true for Defendant Pearson. As to Defendant Pearson, Defendants’
motion states:
When served, Pearson immediately reported to the City Law Department where
he requested both representation and indemnification. His requests were timely
processed and his defense was assigned to Mills. Pearson did all that was
expected of him and took all reasonable steps to assure his defense was
undertaken. He thereafter reasonably believed that his defense was ongoing and
that his interests were being protected.
(Defs.’ Br. at 11). Defendants submitted an affidavit from Pearson wherein he states that “in
October 2010,” he was personally served with the summons and complaint in this action.
(Pearson Affidavit at ¶ 1). He also states that “[o]n October 11, 2011 [sic] I appeared at the City
of Detroit Law Department to request that the City of Detroit Law Department represent me” in
this action. (Id. at ¶ 2). The remainder of Pearson’s affidavit states:
3.

I am informed and believe and on that basis allege that the City of Detroit
Law Department has already filed an answer to the original complaint on
my behalf.

4.

I am informed and believe, and on that basis allege that the Detroit City
Council has now approved my representation and defense in this matter.

5.

I have no personal knowledge of any default filed against me after the
answer to the original complaint was filed.

6.

I respectfully request that the Law Department be allowed to represent my
interests in this case, on the merits.

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(Id. at ¶¶ 3-6). Thus, Pearson does not claim to have taken any action regarding this lawsuit, or
made any inquiries as to the status of this action, after requesting representation from the Detroit
City Law Department in October of 2010.
In order to obtain relief from the default, Defendant Pearson must present evidence that
he was “reasonably conscientious in monitoring the progress of [the] lawsuit.” CSX Transp.,
Inc., supra, at *__. He has not done so here.3 Like the City, Defendant Pearson is not free to
“drape a cloak of agency around [his] attorney and then close [his] eyes to further developments”
in this lawsuit.
“When a defendant fails to demonstrate reasonable diligence in keeping track of the
progress of a lawsuit, a district court does not abuse its discretion in refusing to relieve that
defendant from a default judgment.” Coleman, 814 F.2d at 1146 (cited with approval in CSX
Transp., Inc., supra).
CONCLUSION
For the reasons set forth above, IT IS ORDERED that Defendants’ Motion (Docket Entry
No. 32) is DENIED.
IT IS FURTHER ORDERED that the evidentiary hearing on damages shall take place on

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Moreover, it does not appear that this is the first time that Pearson has been a party in a
lawsuit. It appears that Pearson has previously been a defendant in several cases in this Court.
(See, e.g. Case Nos. 03-71470, 03-72480, 03-73595, 04-71815, 08-14937). As such, he has
some familiarity with the litigation process. A reasonably diligent client would at least make an
inquiry as to the status of a case that has been pending for more than a year and a half.
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April 9, 2011, beginning at 9:30 a.m.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 6, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 6, 2012, by electronic and/or ordinary mail.
S/Jennifer Hernandez
Case Manager

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