Opinion
CIVIL 1:24-CV-241
03-27-2024
OMAR EWIDEH, et al., Plaintiffs v. HOMESITE INS. CO. OF THE MIDWEST, et al., Defendants
Munley, Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Factual Background
This case is part of a troubled trilogy of related cases involving Omar Ewideh and Nivertiti Geaith as pro se litigants and Homesite Insurance Company. See Homesite Insurance v. Ewideh, Civil No. 1:22-CV-1664; Ewideh v. Homesite Insurance, Civil No. 1:23-CV-812; Ewideh v. Homesite Insurance, Civil No. 1:24-CV-241.
As we have previously noted, Ewideh and Geaith have engaged in a breathtaking array of litigation mayhem and misconduct in these cases. Moreover, the defendants have, to an astonishing and unprecedented degree, been derelict in their duties as litigants. Thus, Ewideh and Geaith have repeatedly disobeyed or ignored court orders; have failed to respond to pleadings; have refused to file an answer to this complaint, despite being ordered to do so; and have persistently declined to provide discovery. The staggering array of defaults by Ewideh and Geaith have been thoroughly documented in our prior decisions and Reports and Recommendations, which are incorporated by reference in this order. See e.g., Ewideh v. Homesite Ins. Co. of the Midwest, No. 1:23-CV-812, 2023 WL 5170379, at *1 (M.D. Pa. July 17, 2023); Ewideh v. Homesite Ins. Co. of the Midwest, No. 1:23-CV-812, 2023 WL 4552888, at *1 (M.D. Pa. July 14, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 4471489, at *1 (M.D. Pa. July 11, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 3794509, at *1 (M.D. Pa. June 2, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 4138328, at *1 (M.D. Pa. May 30, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 3035313, at *1 (M.D. Pa. Mar. 7, 2023), report and recommendation adopted sub nom. Homesite Ins. Co. of Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 3866607 (M.D. Pa. Apr. 24, 2023); Homesite Ins. Co. of the Midwest v. Ewideh, No. 1:22-CV-1664, 2023 WL 426923, at *1 (M.D. Pa. Jan. 26, 2023).
Notably, we are not alone in finding that Ewideh and Geaith have engaged in serious misconduct in the course of this litigation. Quite the contrary, prior to transferring Ewideh v. Homesite Insurance, Civil No. 1:24-CV-241 to this court, the presiding judge in the Eastern District of Pennsylvania condemned this misconduct and explicitly found that Ewideh had been dishonest, stating that:
Here, Mr. Ewideh's actions squarely fit within the type of conduct the Court warns in its Policies & Procedures is not tolerated. Mr. Walsh and Ms. Fisher stated on the record during the hearing on the motion to enforce civility that the statements they claim Mr. Ewideh made regarding Ms. Fisher are accurate as to what Mr. Ewideh stated. Such language is neither excusable nor tolerated. Although Mr. Ewideh may be frustrated by the way his insurance dispute has proceeded, that does not give Mr. Ewideh the right to use profane, anti-semitic, and egregious language to Mr. Walsh or Ms. Fisher. His language targeted at Ms. Fisher is especially noteworthy for its lack of civility and professionalism. Such language to any person, including Ms. Fisher, is not warranted under any circumstances.
Not only is Mr. Ewideh warned to no longer use such language with Mr. Walsh or Ms. Fisher, nor any other party or third party in any way connected to this litigation, but he is also warned that he must be truthful in his representations to the Court. Mr. Ewideh sent an e-mail communication to the Court on January 10, 2024, stating that he and Ms. Geaith were “requesting] a continuance of today's hearing[,] as we [the plaintiffs] did not receive notice of the hearing[.]”
The Court is not persuaded that this is an accurate, truthful statement. The Court sent notice of the hearing on December 5, 2023. Doc. No. 26. Approximately two weeks later on December 18, 2023, Mr. Ewideh and Ms. Geaith filed a motion to strike in one of the cases pending in the Middle District of Pennsylvania. Mot. to Strike, Doc. No. 182, Homesite Ins. Co. of the Midwest v. Geaith, et al., No. 1:22-cv-1664-JKM-MCC (M.D. Pa. Dec. 18, 2023). In that motion, the plaintiffs averred that “[p]resently there is a hearing scheduled before the HONORABLE Judge Pratter in the Eastern District of Pennsylvania in early January to address these allegations.” Id. at 2. The only hearing scheduled in this litigation was the one regarding the hearing on the motion for enforcement of civility. Thus, there can be no doubt that the plaintiffs did have notice of the hearing on January 10, 2024, and that the communication Mr. Ewideh sent that day to this Court was neither truthful nor accurate.Ewideh v. Homesite Ins. Co. of the Midwest, No. CV 23-2590, 2024 WL 247056, at *2 (E.D. Pa. Jan. 23, 2024).
Upon the transfer of Ewideh v. Homesite Insurance, Civil No. 1:24-CV-241, to this court, Ewideh and Geaith filed motions seeking a pretrial schedule in this case and requesting that this lawsuit be expedited. There was an element of perhaps unintended irony in the request to expedite since Ewideh and Geaith had consistently delayed proceedings in the past through their failures to comply with court orders. Nonetheless, we agreed that a schedule and expedited resolution of some threshold issues was warranted here. Therefore, we granted the motions to expedite, and set a pretrial schedule in this case.
On March 11, 2024, Ewideh and Geaith filed a motion for entry of default judgment. (Doc. 60). This request for entry of default was a curious and facially meritless document since the defendants had clearly responded to this complaint, filing a motion to dismiss when the case was first lodged in the Eastern District of Pennsylvania, (Doc. 25), and renewing that motion once the case was transferred to this court. (Doc. 62). Given the questionable merit of this motion, which was unaccompanied by any brief, we entered an order which instructed the plaintiffs as follows:
[W]ith respect to the motion for default judgment filed in case number 1:24-cv-241 on or before March 25, 2024 , the plaintiffs shall file a brief in support of this motion. The plaintiffs are reminded that the
failure to timely file a brief may result in the motion being deemed withdrawn.(Doc. 64).
Ewideh and Geaith have ignored this March 25 briefing deadline set by the court to expedite this litigation. In the absence of a timely response from the plaintiffs we will deem this motion for entry of default to be ripe for resolution.
For the reasons set forth below we recommend that the motion be denied.
II. Discussion
The plaintiffs' motion for entry of default fails for at least two reasons. First, the plaintiffs have failed to file a brief in support of this motion, despite being ordered to do so. On these facts, we are entitled to deem the motion, which is not supported by a brief, to be withdrawn. See, e.g., Salkeld v. Tennis, 248 Fed.Appx. 341 (3d Cir. 2007) (affirming dismissal of motion under Local Rule 7.5); Booze v. Wetzel, 1:12-CV-1307, 2012 WL 6137561 (M.D. Pa. Nov. 16, 2012) report and recommendation adopted, 1:CV-12-1307, 2012 WL 6138315 (M.D. Pa. Dec. 11, 2012); Breslin v. Dickinson Twp., 1:09-CV-1396, 2011 WL 1577840 (M.D. Pa. Apr. 26, 2011) Prinkey v. Tennis, No. 09B52, 2010 WL 4683757 (M.D. Pa. Nov. 10, 2010) (dismissal under Local Rule 7.5); Griffin v. Lackawanna County Prison Board, No. 07B1683, 2008 WL 4533685 (M.D. Pa. Oct. 6, 2008) (dismissal under Local Rule 7.6).
Beyond this procedural default by the plaintiffs, this motion also plainly fails on its merits.
Default judgments are governed by Rule 55 of the Federal Rules of Civil Procedure. Under Rule 55, a default judgment may only be entered when the party against whom the default judgment is sought was served and “has failed to plead or otherwise respond.” Rule 55(a), F.R.Civ.P. In ruling upon requests relating to default judgments it is well settled that these decisions are:
[L]eft primarily to the discretion of the district court. Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951). We recognize, however, that this court does not favor entry of defaults or default judgments. We require doubtful cases to be resolved in favor of the party moving to [deny or] set aside the default judgment “so that cases may be decided on their merits.” Id. at 245. See also Gross v. Stereo Component Systems, Inc., 700 F.2d 120, 122 (3d Cir. 1983); Feliciano v. Reliant Tooling Company, Ltd., 691 F.2d 653, 656 (3d Cir. 1982); Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982). Nevertheless, we do not [deny or] set aside the entry of default and default judgment unless we determine that the district court abused its discretion. We require the district court to consider the following factors in exercising its discretion . . .: (1) whether the plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; (3) whether the default was the result of the defendant's culpable conduct. Gross v. Stereo Component Systems, Inc., 700 F.2d at 122; Feliciano v. Reliant Tooling Company, Ltd., 691 F.2d at 656; Farnese v. Bagnasco, 687 F.2d at 764.United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194-95 (3d Cir. 1984).
In this case, we find that many of these discretionary factors favor denial of entry of default judgment against the defendants. At the outset, the plaintiffs err when they suggest that the defendants have failed to respond to their complaint. Quite the contrary, it is clear that the defendants have repeatedly responded to this complaint, filing a motion to dismiss when the case was first lodged in the Eastern District of Pennsylvania, (Doc. 25), and renewing that motion once the case was transferred to this court. (Doc. 62).
Moreover, allowing these defenses, which have been timely asserted by the defendants, to be resolved on their merits is a cardinal guiding principle in our legal system, and one which causes courts to view default judgments with disfavor. This principle applies with particular force here since the plaintiffs' entitlement to judgment on the merits is unclear. Furthermore, the plaintiffs are not unfairly prejudiced by denying a default judgment at this early stage of the litigation.
However, entry of default would be highly prejudicial to the defendants, who would be totally denied the opportunity to defend these claims. Further, there has been no showing of culpable misconduct or delay by the defense which would warrant the entry of judgment against the defendants. Instead, there have been repeated findings of litigation misconduct by the plaintiffs, misconduct findings that have been documented by every court which has addressed this case.
Accordingly, weighing these discretionary factors that govern entry of default judgments, it is submitted that the plaintiffs' motion for entry of default, (Doc. 60), should be DENIED.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the plaintiffs' motion for entry of default, (Doc. 60), be DENIED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.