The Estate of JOANN MATOUK ROMAIN, deceased v. The CITY OF GROSSE POINTE FARMS et al

Filing 350

ORDER Denying Defendant Timothy Matouk's 333 Motion for an Order to Show Cause and Awarding Sanctions. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE ESTATE OF JOANN MATOUK ROMAIN
and MICHELLE MARIE ROMAIN, in her personal
representative capacity of the Estate,
Plaintiff,
Civil Case No. 14-cv-12289
Honorable Linda V. Parker

v.
THE CITY OF GROSSE POINTE FARMS,
DANIEL JENSEN, JACK PATTERSON,
ANDREW ROGERS, RICHARD A. ROSATI,
MICHAEL MCCARTHY, KEITH COLOMBO,
ANTONIO TRUPIANO, JOHN WALKO,
FRANK ZIELINSKI, RICKY GOOD,
THE CITY OF GROSSE POINTE WOODS,
ANDREW PAZUCHOWSKI, JOHN KOSANKE,
JOHN ROSS, KEITH WASZAK,
ANTHONY CHALUT, OFFICER JOHN DOE,
TIMOTHY J. MATOUK, JOHN DOE, and
KILLER JOHN DOE,
Defendants.
_______________________________________/

ORDER DENYING DEFENDANT TIMOTHY MATOUK’S
MOTION FOR AN ORDER TO SHOW CAUSE AND AWARDING SANCTIONS
On November 22, 2016, Magistrate Judge Stephanie Dawkins Davis issued a
Report and Recommendation (R&R) recommending that this Court award Defendant
Timothy Matouk (“Matouk”) the reasonable costs and attorney’s fees he expended
bringing a successful motion for spoliation sanctions against Plaintiff. (ECF No. 252.)
Magistrate Judge Davis recommended that Matouk’s counsel be directed to submit an
affidavit within fourteen days of the Court’s order verifying the amount of expenses

sought. (Id. at Pg ID 4120.) She further recommended that Plaintiff be allowed seven
days from service of the affidavit to file objections to the amount of costs and fees
requested by Matouk. (Id.) This Court adopted Magistrate Judge Davis’
recommendations in an opinion and order entered January 6, 2017. (ECF No. 265.) In a
footnote, the Court indicated: “Magistrate Judge Davis will determine the reasonable
costs and attorney’s fees to be awarded to Matouk as sanctions, as she is most familiar
with the proceedings.” (Id. at Pg ID 4361.)
On January 18, 2017, Matouk’s counsel filed an affidavit stating that a total of
$6,735.00 was expended in preparing, submitting, and arguing the motion for sanctions.
(ECF No. 268.) Counsel’s billing statements were attached to the affidavit. (Id. at Pg ID
4369-4372.) Plaintiff filed no objections to the amount sought. No order awarding
Matouk a specified amount or directing Plaintiff to pay the award within a period of time
was issued.
On April 2, 2018, Matouk filed a motion asking the Court to enter an order
requiring Plaintiff to show cause why the sanctions have not been paid. (ECF No. 333.)
Plaintiff filed a response, indicating that she does not contest the liability alleged in
Matouk’s motion. (ECF No. 338.) Plaintiff asserts, however, that the Estate of Joann
Matouk Romain has no assets from which to pay the sanctions. (Id. at Pg ID 8143.)

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Michelle Romain, the personal representative of the estate, provides an affidavit stating
that since the estate’s creation, it has had no assets of any kind.1 (ECF No. 338-1 ¶ 4.)
As the Court has never entered an order imposing a specific award of fees and
costs to be paid by Plaintiff as spoliation sanctions, it is premature to enter the show
cause order Matouk requests. For that reason, the Court is denying Matouk’s pending
motion. At this time, however, based upon the uncontested billing statements submitted
with the affidavit from Matouk’s counsel, the Court is ordering Plaintiff to pay sanctions
in the amount of $6,735.00 to Matouk within sixty (60) days of this Opinion and Order.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 16, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of record
and/or pro se parties on this date, July 16, 2018, by electronic and/or U.S. First Class
mail.
s/ R. Loury
Case Manager

The burden to prove inability to pay lies with the individual sanctioned. Garner
v. Cuyahoga Cty. Juvenile Court, 554 F.3d 624, 642 (6th Cir. 2009). The Sixth
Circuit has held that “[a]n unsupported claim regarding financial status is clearly
insufficient [to satisfy this burden].” Legair v. Circuit City Stores, Inc., 213 F.
App’x 436, 440 (2007) (finding counsel’s affidavit regarding his financial status
insufficient without supporting documentation or any evidence of income or net
worth). As such, Michelle Romain’s affidavit asserting an inability of Plaintiff to
pay the imposed sanction would not satisfy a show cause order for why Plaintiff
has not paid the spoliation sanctions.
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