Barringer v. Whitworth et al
OPINION and ORDER granting in part and denying in part Plaintiff's 65 MOTION for Default Judgment and/or Summary Judgment as to Brenda Carlson, Janette Parket and Notice of Hearing: (Miscellaneous Hearing regarding damages set for 9/4/2018 09:00 AM before District Judge Bernard A. Friedman) - Signed by District Judge Bernard A. Friedman. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil Action No. 18-CV-11174
HON. BERNARD A. FRIEDMAN
BRENDA CARLSON, and
OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART PLAINTIFF=S
MOTION FOR DEFAULT JUDGMENT AND/OR SUMMARY JUDGMENT
NOTICE OF HEARING
This matter is presently before the Court on plaintiff=s motion for default
judgment and/or summary judgment [docket entry 65]. Defendants have not responded to this
motion and the time for them to do so has expired. Pursuant to E.D. Mich. LR 7.1(f)(2), the
Court shall decide this motion without a hearing.
This is, for the most part, a conversion and defamation action. Plaintiff alleges
that in early 2018 he entrusted defendant Whitworth with the care of his pregnant dog, a Chinese
Crested named Vogue. Whitworth agreed to care for Vogue and her anticipated litter of puppies
for a short period of time. While in Whitworth=s care, Vogue had three puppies. When plaintiff
did not retrieve Vogue and the puppies by the agreed upon date, Whitworth notified plaintiff that
she had placed them with Kalamazoo County Animal Services (AKCAS@). The next day, at
plaintiff=s request, defendant Carlson retrieved the dogs from KCAS and agreed to care for them
until plaintiff could pick them up in approximately one week=s time. Before plaintiff did so,
Carlson delivered the dogs to defendant Parker, who allegedly refused to return them to plaintiff
and instead delivered them to an animal shelter in Canada. Additionally, Parker and Carlson
allegedly defamed plaintiff on social media. In approximately mid-May, one month after filing
the complaint, plaintiff succeeded in retrieving Vogue and two of the puppies from the Canadian
Count 1 of the complaint asserts a conversion claim against all three defendants.
Counts 2 and 3 assert claims against Whitworth and Carlson for Aclaim and delivery@ and breach
of contract. Counts 4, 5, and 6 assert claims against Parker for defamation, tortious interference
with a business relationship, and intentional infliction of emotional distress. Jurisdiction is
based on diversity of citizenship. The Court has dismissed the complaint as to Whitworth due
to the amount in controversy being insufficient as to her. The Court has denied the motions to
dismiss filed by defendants Carlson and Parker.
In the instant motion, plaintiff seeks a default judgment or, alternatively,
summary judgment as to defendants Carlson and Parker on all of the claims he has asserted
against them. These defendants are clearly in default. Defendant Carlson was served with
process on May 18, 2018, and the Clerk entered her default on June 11. Defendant Parker was
served with process on April 14, 2018, and the Clerk entered her default on May 8. These
defendants have not answered the complaint or taken any action to have their defaults set aside.
Nor, as noted, have defendants responded to the instant motion. On June 13, 2018, each of
these defendants did file an untimely motion to dismiss, but the Court denied those motions on
Under these circumstances, plaintiff is plainly entitled to a default judgment as to
defendants Carlson and Parker. Because the Court shall grant a default judgment as to both
defendants, the Court need not decide whether summary judgment would be appropriate.
Having defaulted, and having failed to have their defaults set aside (or even request that their
defaults be set aside), defendants have Ano further standing to contest the factual allegations of
plaintiff=s claim for relief.@ 10A C. Wright & A. Miller, Federal Practice and Procedure '
2688.1, p. 91 (2016). Defendants= liability is established, and the only issue remaining to be
determined is Athe amount of damages.@ Fed. R. Civ. P. 55(b)(2)(B). Accordingly,
IT IS ORDERED that plaintiff=s motion for default judgment and/or summary
judgment is granted in part and denied in part as follows: the motion for default judgment is
granted as to both defendant Carlson and defendant Parker, but plaintiff=s alternative motion for
summary judgment is denied.
IT IS FURTHER ORDERED that the Court shall conduct a hearing in Courtroom
100 of the Theodore Levin United States Courthouse, 231 W. Lafayette Boulevard, Detroit,
Michigan on September 4, 2018, at 9:00 a.m. to determine the amount of damages to which
plaintiff is entitled.
Dated: July 25, 2018
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
CERTIFICATE 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 July 25, 2018.
s/Johnetta M. Curry-Williams
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