Opinion
Civil 1:22-CV-1664
01-16-2024
HOMESITE INS. CO. OF THE MIDWEST, Plaintiff v. OMAR EWIDEH, et al., Defendants
Munley Judge
REPORT AND RECOMMENDATION
MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE
I. Introduction
This civil action is one of two related cases involving Omar Ewideh and Nivertiti Geaith as pro se litigants and Homesite Insurance Company. There is a remarkable quality to the litigation undertaken by these pro se parties. In a short span of time, Ewideh and Geaith have indulged in a breathtaking array of litigation mayhem and misconduct in these two 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).
Presented with these sweeping and wholesale defaults by the defendants, Homesite has filed a motion for entry of default judgment against Ewideh and Geaith in this declaratory judgment action, (Doc. 102), as well as a motion for sanctions. (Doc. 164). We have repeatedly directed the defendants to respond to these motions, but they have declined to do so. Therefore, the motions, which are unopposed, are ripe for resolution.
Given the staggering array of defaults committed by defendants, for the reasons set forth below, it is recommended that these motions be granted, and that judgment be entered in favor of the plaintiff.
II. Factual Background and Procedural History
A. The Defendants' Initial Litigation Misconduct
This case, which was first filed more than a year ago on October 21, 2022, is a declaratory judgment action brought by Homesite Insurance Company of the Midwest (“Homesite”) against two of its insureds, Omar Ewideh and Nivertiti Geaith. (Doc. 1). In this lawsuit, Homesite seeks a determination of whether it has fully discharged its legal responsibilities under its homeowner insurance policy with the defendants. According to Homesite, the insureds' home suffered water leak damage on two separate occasions, and experienced mold damage which was covered on Homesite's policy. Homesite alleges that it paid the defendants more than $294,000 as reimbursement on these claims pursuant to the terms of this homeowner policy. (Id., ¶¶ 1-56).
Notwithstanding these payments, Homesite alleges that the defendants have filed additional claims against its policy but have violated that policy by refusing to cooperate in the investigation of these additional claims; refusing to permit inspection of the property; failing to protect the property; and failing to properly document their claimed losses. (Id., ¶¶ 57-111). Homesite also asserts that the defendants have made false statements and concealed material facts from the plaintiff in the course of its investigation of these claims in violation of the homeowner policy. (Id., ¶¶ 112-24). Cast against the backdrop of these factual averments of serious misconduct by the defendants, Homesite seeks a declaratory judgment that it has properly and adequately adjusted the defendants' claims under this homeowner insurance policy. (Id., ¶¶ 125-29).
Following a delay resulting from the defendants' failure to accept service of process, the defendants were served by publication. (Docs. 5-7). Ewideh and Geaith initially filed a motion for extension of time in which to answer this complaint, which we granted over the plaintiff's opposition. (Docs. 9-11). On the extended deadline set for the filing of an answer, January 26, 2023, Ewideh and Geaith filed a motion to dismiss the complaint, (Docs. 18, 19), which was denied by this court on April 24, 2023. (Doc. 53).
While this motion to dismiss was pending, we endeavored to set a case management schedule in this case, a task which was complicated due to the litigation's “somewhat tortured procedural history marked by frequent delays inspired by the defendants.” (Doc. 37, at 1). Despite the defendants' efforts to delay the setting of a case management schedule, we entered a case management order on February 21, 2023, which called for the completion of discovery by June 1, 2023. (Id.)
The defendants failed to comply with these discovery deadlines and failed to produce discovery as directed by the court. Instead, the defendants engaged in inappropriate personal invective aimed at opposing counsel. As a result of these defaults, on April 5, 2023, we were compelled to enter an order which directed that:
On or before April 17, 2023 the defendants shall either provide plaintiff's counsel with the following: 1) Responses or written objections to Requests for Production of Documents; 2) Defendants' Initial Disclosures; and, 3) Proposed dates for the deposition of Defendant, Nivertiti Geaith, to occur after April 21, 2023. Or show cause why they should not produce this discovery. Any response by the defendants must refrain from engaging in personal invective.
(Doc. 48).
This deadline passed without any compliance by the defendants with our order. Accordingly, on April 18, 2023, we issued a second order which stated that:
IT IS ORDERED that on or before April 28, 2023 the defendants:
1) Comply with terms of the Court's Order of April 5, 2023 (Doc. 48);
2) Supply dates for deposition of Defendant, Omar Ewideh.
Or show cause why they should not produce this discovery. Any response by the defendants must refrain from engaging in personal
invective. Defendants are cautioned that further noncompliance with the Court's Order of April 5, 2023 may result in sanctions including, but not limited to, monetary sanctions and the preclusion of evidence.
(Doc. 50). The defendants also failed to comply with this clear instruction.
On April 24, 2023, the district court denied the defendants' motion to dismiss, thus triggering their responsibility to file an answer to the complaint. The defendants did not file an answer and persisted in refusing to cooperate in discovery. Consequently, on May 2, 2023, we entered yet another order directing Ewideh and Geaith to refrain from any further discovery defaults and admonishing the defendants as follows:
First, the plaintiff's requests for production of documents having been reviewed by the court and deemed appropriate, the defendants shall respond in full to these requests on or before May 10, 2023 or show cause why they should not be precluded from submitting any documentary evidence as a sanction for their failure to produce discovery materials. Second, the plaintiff's request for scheduling of depositions having been deemed appropriate, the defendants shall agree on or before May 10, 2023 to mutually convenient deposition dates in this case or show cause why they should not be precluded from presenting testimonial evidence due to their failure to comply with discovery demands.
(Doc. 59).
Frustrated by the defendants' ongoing non-compliance and consistent dereliction of their duties as litigants, on May 11, 2023, Homesite filed a motion seeking the entry of a default judgment in this case. (Doc. 65). Notwithstanding the repeated failures by Ewideh and Geaith to abide by court orders and litigate this case, acting out of an abundance of caution, we denied this motion on May 12, 2023. (Doc. 74). Instead, we advised the defendants in clear and precise terms as follows:
The plaintiff has filed a motion for entry of default, noting that the defendants have not yet answered the complaint. (Doc. 65). The defendants, in turn, have filed a motion for extension of time in which to answer the complaint. (Doc. 66). The motion for default (Doc. 65), is DENIED without prejudice, and the defendants motion for extension of time (Doc. 66) is GRANTED in part. The defendants shall file an answer on or before May 19, 2023 or face renewal of the motion for default.
(Doc. 74, at 2).
For any responsible litigant, this order would have been both an unmistakable warning and a much-needed wake up call. However, Ewideh and Geaith chose to ignore the order entirely and allowed the deadline for filing an answer to this complaint to lapse without following our explicit instructions. Instead, on May 19, 2023, the defendants filed yet another motion for extension of time in which to answer the complaint. (Doc. 86). On May 22, 2023, we denied this motion explaining as follows:
[T]he defendants have sought a motion for extension of time in which to answer the complaint. (Doc. 86). This motion is DENIED since this litigation has been pending for more than six months and it is now time for the pleadings to close. The defendants shall answer the complaint on or before May 26, 2023.
(Doc. 91, at 2-3). This deadline was also ignored by Ewideh and Geaith.
Given this cascading, and frankly stunning, series of serious defaults on the part of the defendants, Homesite filed a second motion for entry of default judgment on May 29, 2023. (Doc. 101). We then took this motion up, along with a host of other derelictions by the defendants, at an in-person conference which we conducted on May 30, 2023. (Doc. 108). Following this conference, we entered an order which plainly prescribed a timetable for this litigation, and set a series of explicit deadlines for the defendants to come into compliance with their responsibilities as litigants, instructing the parties that:
The defendants shall produce to plaintiff's counsel all documents, including recordings, responsive to the plaintiff's discovery requests, and all documents they believe are relevant to any claims or defenses in this case, on or before Thursday, June 1, 2023. The failure to produce documents will result in the defendants being precluded from using any document not produced to support their claims or defenses.
During the conference, we notified the defendants that their dispositive motion, which was filed as a motion to dismiss under Rule 12 but which we converted to a motion for summary judgment under Rule 56, referenced exhibits but did not have the exhibits attached to the motion or supporting brief. Accordingly, the defendants shall refile their brief with supporting exhibits attached no later than Tuesday, June 7, 2023. The defendants are reminded that they will not be permitted to rely on any documents in support of their motion that are not produced to the plaintiff by the June 1 deadline.
The plaintiff has filed a second motion for an entry of default against the defendants due to their failure to answer the complaint. (Doc. 101). Accordingly, the defendants shall file an answer to the complaint no later than June 13, 2023. The defendants shall do this by way of a
motion requesting to file an answer outside of the time prescribed by the Court, since the deadline for filing an answer has now passed and should attach their answer to the complaint to the motion.
We note that depositions of the defendants have been scheduled to take place on June 28 and June 29, 2023 . All parties are on notice that they must appear for these deposition as scheduled.
(Doc. 107, ¶¶ 2-4, 7).
It is now completely undisputed that the defendants have violated every aspect of this court order. Thus, the defendants did not produce the documentary discovery directed by the court. Further, they never submitted the supplemental brief that they were ordered to file on June 7, 2023, along with the evidence they were relying upon to support their summary judgment motion. In addition, it is undisputed that Ewideh and Geaith violated this court's order directing the scheduling of depositions on June 28 and June 29, 2023, by failing to appear and testify as ordered.Finally, and most fundamentally, they completely ignored the court's order instructing them to answer the complaint by June 13, 2023. Thus, despite our repeated and explicit warnings, Ewideh and Geaith continued to ignore the court's orders, defaulted on their legal responsibilities, and neglected to address outstanding motions, including the motion seeking default judgment.
On January 4, 2024, plaintiff's counsel confirmed that Ewideh and Geaith have never appeared for depositions as they had been directed to do some six months earlier.
This fundamental and sweeping dereliction of the defendants' duties as litigants was then compounded by their filing of frivolous interlocutory appeals. (Docs. 116, 117, 129). These notices of interlocutory appeal were facially frivolous, in that the defendants sought appellate review of our scheduling orders, as well as demanding an interlocutory appeal of a district court decision refusing to certify an interlocutory appeal. None of these orders fall within the narrow scope of issues which are properly the subject of an interlocutory appeal, and the notion that a party can take an interlocutory appeal from a refusal by the district court to certify an interlocutory appeal is simply risible since under 28 U.S.C. § 1292(b), “[t]he first jurisdictional requirement is that the district court must certify its order for appeal.” ICTSI Oregon, Inc. v. Int'l Longshore & Warehouse Union, 22 F.4th 1125, 1130 (9th Cir. 2022). Nor could the defendants rely upon these frivolous appeals to stave off the continued exercise of jurisdiction by this court since § 1292(b) expressly provides: “That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.” Id.
B. The Defendants' Are Placed on Notice that Their Conduct May Result in the Entry of Judgment Against Them .
Given these wholesale derelictions of their legal responsibilities by the defendants, on July 13, 2023, we recommended that default judgments be entered against Ewideh and Geaith. (Doc. 137). That recommendation remains pending.
Long after the deadlines for compliance with our orders had passed, and several weeks after we lodged this Report and Recommendation recommending the entry of judgment against the defendants, Ewideh and Geaith belatedly filed a motion seeking an extension of time in which to answer this complaint, (Doc. 140), along with a purported answer. (Doc. 147). These tardy filings, however, provided no explanation for the defendants' persistent refusal to obey court orders. Instead- incredibly-Ewideh and Geaith insisted in the face of a record that was replete with the disregard of clear judicial mandates that: “The defendants have not violated any of the court's orders ....” (Doc. 140, ¶ 7). Moreover, the defendants violated the rules of this court when they failed to submit any brief in support of their unusual request to ignore their many procedural defaults. Given the patent lack of merit to the defendants' assertion that they were in full compliance with our orders, and their failure to abide by the local rules of this court by filing a brief in support of his motion, we were compelled to deny this motion to extend the time for filing an answer. (Doc. 171).
C. The Defendants' Ongoing Litigation Misconduct.
One might have expected that this Report and Recommendation would have caused the defendants to curb their misconduct, but regrettably it has not. Quite the contrary, Ewideh and Geaith have continued to engage in sanctionable behavior in a host of different ways. Indeed, that misconduct has only increased over time.
There are several troubling aspects to this litigation misconduct. First, the defendants have engaged in what we have found to be a pattern of improper forum shopping, attempting to abandon litigation in this court while vexatiously filing virtually identical claims in other jurisdictions. Ewideh v. Homesite Ins. Co. of the Midwest, No. 1:23-CV-812, 2023 WL 5170379, at *4 (M.D. Pa. July 17, 2023).
Second, the defendants continue to consistently ignore and disregard court orders directing them to take action in this case.
Third, the defendants have failed to provide court-ordered discovery and continue to violate an outstanding court order directing them to attend depositions.
Fourth, the defendants insist upon filing repeated, frivolous motions and appeals.
Fifth, the plaintiffs have alleged in detailed and well-supported submissions that Ewideh and Geaith are now engaged in an extensive campaign of abusive conduct directed at opposing counsel. (Docs. 164, 177, 207). These latest allegations of litigation misconduct were first set forth in an emergency motion for protective order and sanctions filed by Homesite on October 24, 2023, (Doc. 164), which alleged that these pro se defendants engaged in a pattern of repeated and abusive communications with Plaintiff's counsel, including profane, threatening, harassing, and insulting communications. (Id.)
On November 1, 2023, we returned to recall service with this court and were reassigned to this case. Upon a review of the docket, and noting the outstanding sanctions motion, we entered an order on November 2, 2023, which instructed Ewideh and Geaith in clear and precise terms as follows:
As for Homesite's emergency motion for protective order and sanctions, (Doc. 164), IT IS ORDERED as follows: First, we place Ewideh and Geaith “on notice that recently [their] pleadings have begun to consist largely of ‘incomprehensible forays into personal invective, acerbic asides, caustic commentaries, disgruntled digressions, and ad hominem observations, [p]ersonal attacks [that] are never appropriate in any court filing, and are subject to a motion to strike.'” Boldrini v. Fed. Nat'l Mortg. Ass'n, No. 3:19-CV-1576, 2019 WL 13201207, at *2 (M.D. Pa. Oct. 23, 2019) (quoting Dougherty v. Advanced Wings, LLC, No. 1:13-CV-447, 2013 WL 4041589, at *7 (M.D. Pa. Aug. 7, 2013) (alteration in original) (citation omitted). Ewideh and Geaith are also advised that they should refrain from similar conduct in their direct communications with opposing counsel.
Second, Ewideh and Geaith are ORDERED to substantively respond to this sanctions motion, (Doc. 164), on or before November 7, 2023 . Pursuant to the rules of this court, Ewideh and Geaith are reminded that the failure to timely respond may result in the court deeming the motion unopposed and granted.
(Doc. 167).
The defendants ignored this order, and a series of additional orders which we entered directing them to respond to this motion which raised grave concerns regarding on-going misconduct on their part, a fact which the district court acknowledged when it denied a frivolous appeal lodged by Ewideh and Geaith. (Doc. 190).
Rather than comply with our order which warned them that incomprehensible forays into personal invective, acerbic asides, caustic commentaries, disgruntled digressions, and ad hominem observations are never appropriate, it appears that the defendants renewed these inappropriate, abusive communications with plaintiff's counsel, a course of action that compelled the plaintiff to seek further relief from this court on December 15, 2023. (Doc. 177). At the direction of the district court and in order to address these on-going and escalating mutual concerns regarding the tone and tenor of communications between the parties, we ordered the parties to appear on January 4, 2024, in Courtroom 5B U.S. Courthouse at 10:30 a.m. to allow the plaintiffs to present evidence in support of their request and the defendants to show cause why sanctions should not be imposed. Additionally, we ordered all parties to file prehearing memoranda outlining the allegations and evidence they wished to present by January 2, 2024. (Doc. 183).
What then followed were a series of increasingly strident efforts by the defendants to avoid scrutiny of their alleged misconduct, efforts which culminated with an unexcused failure to appear at this hearing coupled with an apparently mendacious explanation for that failure to appear. These efforts began on December 22, 2023, when the defendants then moved to continue this hearing, (Docs. 185, 186), but the appendix they attached to their motion, which documented an unprofessional and acrimonious exchange, (Doc. 187), simply underscored why a prompt hearing to address these basic issues of civility is necessary. Accordingly, on December 22, 2023, we denied these motions to continue. (Doc. 188).
The defendants appealed this order, (Doc. 189), but to no avail since their appeal was denied. (Doc. 190). Hours after their appeal was denied, the defendants filed another motion to continue this hearing, which for the first time alleged that the defendants were medically unavailable on the date set for this hearing. (Doc. 191). Notably, the defendants provided no evidentiary support for this belated assertion. Instead, the defendants requested that the court schedule a telephonic conference “to potentially attempt to work out a resolution of the pending sanction requests without the need of protracted litigation.” (Id.)
On January 2, 2024, we entered an order which denied this motion. (Doc. 192). Later that same day, the defendants refiled the same motion which we denied four separate times, mislabeling these repetitive, redundant filings as motions to remand. (Docs. 194-197).The defendants also filed a motion to stay proceedings which alleges enigmatically that “there is a suit in Philadelphia County Court of Common Pleas which will require this court to refrain from exercising jurisdiction when it lacks any.” (Doc. 198).We denied these motions in an order dated January 3, 2024. (Doc. 200).
These redundant filings are but one example of a peculiar penchant by the defendants, who frequently file multiple copies of the same pleading. Beyond freighting the record with repetitive, redundant, and often frivolous filings, it is difficult to understand what Ewideh and Geaith are attempting to accomplish through this curious practice. It may be that the defendants believe that their filings gain greater persuasive power through mere repetition. However, we can assure them that this is not the case.
On January 4, 2024, plaintiff's counsel represented to the court that they had conducted a diligent search of court records in the Court of Common Pleas for Philadelphia County and could find no record that Ewideh an Geaith had in fact filed a lawsuit in that jurisdiction as they claimed in this pleading.
The defendants then filed what is their ninth motion seeking to avoid or delay this hearing arguing that “there is no diversity in this case to be shown in the motion to remand also at this juncture there is a suit in Philadelphia County Court of Common Pleas which will require this court to refrain from exercising jurisdiction when it lacks any.” (Doc. 201). On January 3, we denied this motion and instructed the defendants to appear in court as previously directed on January 4, 2024, at 10:30 a.m. (Doc. 202).
At 8:42 a.m. on January 4, 2024, less than two hours before this scheduled hearing, the defendants filed what was their tenth motion seeking to avoid or delay this hearing, averring a sudden accident required them to go to the emergency room. (Doc. 204). Given the defendants' past adamant refusal to obey court orders directing them to respond to this sanctions motion, and their increasingly strident efforts to avoid, postpone or cancel this hearing, we regarded the timing of this motion and claimed medical emergency with caution. In this regard, our caution was heightened by the fact that Ewideh had essentially predicted one week earlier, on December 29, 2023, that he would suffer a sudden medical emergency if he was required to appear on January 4, 2024, to justify and defend his conduct. In this December 29 motion seeking to avoid this hearing Ewideh foreshadowed, without further explanation or proof, that he would be “unavailable on the date of the conference due to medical reasons” if we insisted on his presence in court. (Doc. 191).
While this type of literary foreshadowing of future events may be appropriate in fiction, in a fact bound profession like the law Ewideh's astonishing prescience which enabled him, on December 29, 2023, to predict that a sudden medical emergency would take place on January 4, 2024, raised reasonable concerns. Accordingly, we denied this motion to continue, in part, and proceeded with the hearing to receive a proffer of evidence from the plaintiffs. We also ordered the defendants to provide medical confirmation of this emergency no later than 12:00 p.m. on January 5th, 2024. (Doc. 205).
Ewideh failed to comply with this deadline to provide medical confirmation of this emergency, and his tardy submission was woefully inadequate. That submission appears to be a form letter which simply stated: “Omar J Ewideh was seen in my office on 1/4/2024. Please excuse Omar from appointment on 1/4/2024.” (Doc. 206). This submission was totally insufficient in at least four ways. First, it was entirely lacking in context. Thus, there is no indication that the caregiver who completed this form letter was aware of Ewideh's history of violating court orders and understood that the caregiver was being called upon to justify what was otherwise a contempt of court. Second, the form letter was completely lacking in substance. The form letter lacks any medical details regarding the nature, extent, and severity of any of Ewideh's physical conditions, information which is essential to making an informed decision regarding whether to grant the defendant a medical excuse from this hearing. Third, given Ewideh's history of litigative malingering, any medical excuse letter needed to address the question of whether Ewideh also has a history of medical malingering. Finally, in this setting, in order to pass muster, a medical excuse letter needed to include an opinion by the caregiver, stated with a reasonable degree of medical certainty, that Ewideh was physically unable to attend court on January 4, 2024.
Given the obvious inadequacies in this proffered submission, on January 8, 2024, we rejected this medical excuse letter, and ordered the defendants, by 12:00 p.m. January 9, 2024, to submit a revised medical excuse letter which: (1) stated that the medical source read the order and understood the legal context of this excuse request; (2) provided a full and complete description of Ewideh's presenting medical concerns on January 4, 2024, including a comprehensive assessment of the nature, extent, and severity of any of Ewideh's physical conditions; (3) provided an opinion, stated with a reasonable degree of medical certainty, regarding whether Ewideh is a malingerer, and whether Ewideh was physically unable to attend court on January 4, 2024; and (4) stated whether the caregiver would be available to provide testimony in federal court regarding these matters should it become necessary. (Doc. 210).
The defendants did not comply with this deadline. Instead, on January 10, the defendants simply filed a tardy, redacted one-page after-care summary which purported to address our concerns. (Doc. 215). However, upon review of this belated filing, we found that the defendants violated our January 8, 2024, order in at least three fundamental ways.
First, they failed to comply with the January 9, 2024, deadline set by the court. This failure to abide by our order was inexcusable since this one-page document the defendants belatedly filed stated on its face that it was printed on January 6, 2024, and was therefore available to the defendants at the time of our January 8 order.
Second, this submission completely ignored and failed to address the requirements which we set for a medical excuse in our January 8 order. Beyond noting some treatment for a sore neck, the redacted document failed to state that the medical source had read our January 8 order and understood the legal context of this excuse request; neglected to provide a full and complete description of Ewideh's presenting medical concerns on January 4, 2024, including a comprehensive assessment of the nature, extent, and severity of any of Ewideh's physical conditions; contained no opinion, stated with a reasonable degree of medical certainty, regarding whether Ewideh is a malingerer, and whether Ewideh was physically unable to attend court on January 4, 2024; and did not indicate whether the caregiver would be available to provide testimony in federal court regarding these matters should it become necessary.
But the most troubling aspect of this belated submission was the fact that, on its face, this document appeared to flatly contradict the representations made by Ewideh to this court on January 4, 2024. at 8:42 a.m. As we have noted, on January 4, the defendants filed what was their tenth motion seeking to avoid or delay this hearing, averring a sudden accident required them to go to the emergency room. (Doc. 203). On this score, Ewideh specifically represented to the court that: “We request an emergency continuance as the defendant is on its way to the hospital from an accident . . . .” (Id.) The clear implication of this statement was that Ewideh was actively undergoing medical care during the morning of January 4, 2024, at the very time he was scheduled to appear in court.
The after-care summary which Ewideh filed seemed to plainly contradict this factual averment. That after-care note summarized care that Ewideh received at approximately 6:45 p.m. on January 4, 2024, some eight hours after the hearing scheduled in federal court. (Doc. 215). Thus, the evidence proffered to the court by Ewideh showed that the defendant only sought medical treatment in the evening of January 4, 2024. Moreover, it appeared that Ewideh only received this treatment following the entry of our order directing him to provide the court with a verified medical excuse explaining his failure to appear.
In light of these troubling questions regarding whether the defendants made misrepresentations to the court, we deemed the defendants' failure to appear on January 4, 2024, unexcused. In addition, we ordered the defendants to provide an attestation under oath by January 12, 2024, explaining the apparent discrepancies between the statements made to the court on January 4, 2024, and the information set forth in the defendants' latest submission. (Doc. 216).
Given the gravity of the apparent misconduct indulged in by Ewideh and Geaith, which involved an apparent calculated fraud upon the court, as a matter of fairness we gave the defendants the opportunity to explain their apparently deceitful behavior, but they have forfeited this opportunity by disobeying our order and failing to respond to our directions. In the absence of any response, we are left to conclude that the uncontested evidence shows that Ewideh's representation on the morning of January 4 that “We request an emergency continuance as the defendant is on its way to the hospital from an accident,” was false and Ewideh's subsequent efforts to conceal this false statement were nothing more than transparent, inept efforts to mislead the court.
Yet, even as the defendants engaged in this pattern of evasive conduct in order to avoid accountability for their alleged misconduct, it seems that they have continued to actively engage in abusive communications directed at plaintiff's counsel. In an astonishing exercise of hubris, Ewideh and Geaith-who have failed to comply with court orders and appear in court as directed-have indulged in apparent efforts at witness intimidation by threatening to sue the affiants who have filed declarations in support of the plaintiff's sanctions motion. (Doc. 209).
It is against the backdrop of this persistent, on-going, and unrelenting misconduct by Ewideh and Geaith that we turn to a renewed consideration of the plaintiff's motions for default and sanctions.
III. Discussion
A. Given the Defendants' Prolonged, Pervasive Misconduct and Their Multifaceted, Deceitful Failures to Plead or Otherwise Respond, This Court Should Enter Default Judgments Against Ewideh and Geaith.
1. Such Sanctions Are Authorized by Law.
It is undeniably the right and responsibility of the court to sanction egregious misconduct like that displayed by the defendants. Indeed, the legal authority to sanction this misconduct stems from several independent legal sources.
At the outset, these misdeeds are plainly sanctionable under the Local Rules of this Court. For example, throughout the course of this litigation Ewideh and Geaith have repeatedly failed to respond to court orders and motions, and have consistently failed to file briefs in support of their own motions. The defendants' failure to support their own motions with briefs violates Local Rule 7.5 which clearly states that: “If a supporting brief is not filed within the time provided in this rule [14 days] the motion shall be deemed to be withdrawn.” L.R. 7.5. Likewise, Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on parties to respond to motions and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion.
Local Rule 7.6 (emphasis added).
It is now well settled that “Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with the [R]ule after a specific direction to comply from the court.'” Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, at *1 (M.D. Pa. Aug. 26, 2010) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)). Similarly, the failure to file briefs in support of their own motions has consequences for Ewideh and Geaith since we are entitled to deem them to have withdrawn those motions which were not properly supported by a timely filed brief. 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. 07B 1683, 2008 WL 4533685 (M.D. Pa. Oct. 6, 2008) (dismissal under Local Rule 7.6).
In addition, Ewideh and Geaith were previously instructed to comply with Local Rule 83.2 which provides that individuals:
[Representing a party in a civil matter triable to a jury shall not make any extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer or other person knows or reasonably should know that it will have a substantial likelihood of causing material prejudice to an adjudicative proceeding.
(b) A statement referred to in LR 83.2(a) ordinarily is likely to have such an effect when it relates to:
(3) information the lawyer [or pro se litigant] knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudice to an impartial trial.
LR 83.2.
On this score, we previously advised the defendants in clear and precise terms that, in the court's view, exchanges between counsel and self-representing parties that involve homophobic, antisemitic, or racist statements, false accusations relating to such matters, false disparaging remarks, and threats to combine false disparagement with the public disclosure of personal identifying information of counsel or litigants violate Local Rule 83.2, since such statements are likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudice to an impartial trial.
Further, Local Rule 83.3.1 (a) expressly authorizes the entry of default judgment in cases involving repeated failures to abide by court orders, stating in part as follows:
Failure of counsel for any party to appear before the court at any case management conference . . . or to complete the necessary preparations therefor in accordance with these rules . . ., or otherwise to comply with any of the rules contained herein, or any order of court, may be considered an abandonment or failure to prosecute or defend diligently, and an order precluding counsel from offering specific evidence or raising certain issues, or judgment, may be entered against the defaulting party either with respect to a specific issue or on the entire case.
LR 83.3.1 (a).
In addition, the Federal Rules of Civil Procedure also expressly authorize the imposition of sanctions in cases involving repeated litigation abuse. For example:
By its terms, Rule 11 imposes an obligation upon litigants to refrain from frivolous and vexatious litigation, and specifically provides that:
By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b). Having imposed this duty of forthrightness, candor, and good faith upon litigants, Rule 11(c) then provides for sanctions against parties who indulge in baseless and frivolous litigation, stating that:
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
McCarthy v. Minnesota Laws. Mut. Ins. Co., No. 3:23-CV-450, 2023 WL 4636889, at *1-2 (M.D. Pa. July 19, 2023). Thus,
“Rule 11 authorizes imposition of sanctions upon the signer of any pleading, motion or other paper that was presented for an improper purpose, e.g., ‘to harass or to cause unnecessary delay or needless increase in the cost of litigation.' See Landon, 938 F.2d at 452. Rule 11 sanctions are based on “ ‘an objective standard of reasonableness under the circumstances.' ” Id. at 453 n. 3 (quoting Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir.1988)). Bad faith is not required. Id.; Jones, 899 F.2d at 1358.” Martin v. Brown, 63 F.3d 1252, 1264 (3d Cir.1995). Furthermore, it is well-settled under Rule 11 that: “Sanctions
are to be applied only ‘in the “exceptional circumstance” where a claim or motion is patently unmeritorious or frivolous.' Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.1988) (citation omitted).”
United States v. Bogart, No. 4:12-CV-347, 2014 WL 7466598, at *2 (M.D. Pa. Dec. 8, 2014).
In the same vein, the failure to make discovery, or comply with discovery orders, is sanctionable under Rule 37 of the Federal Rules of Civil Procedure. By its terms:
Rule 37 of the Federal Rules of Civil Procedure provides that: “If a party.... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders,” and specifies an array of available sanctions, which include preclusion of evidence and striking of pleadings. Fed.R.Civ.P. 37(b)(2)(A).
Hamill v. Twin Cedars Senior Living, LLC, No. 3:20-CV-231, 2023 WL 6129501, at *3 (M.D. Pa. Sept. 19, 2023). Moreover:
The decision to impose sanctions for discovery violations and any determination as to what sanctions are appropriate are matters generally entrusted to the discretion of the district court.
Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 538 (3d Cir. 2007), amended on reh'g (Mar. 8, 2007) (citing National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam)).
When determining whether to impose sanctions, and what sanctions to impose:
The Third Circuit Court of Appeals has set forth several factors for courts to consider when deciding whether the exclusion of evidence is an appropriate sanction: “(1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or wilfulness in failing to comply with a court order or discovery obligation.” Nicholas v. Pennsylvania State University, 227 F.3d 133, 148 (3d Cir. 2000) (citing Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997)). The Court has supplemented this list of factors to include: “(5) ‘the importance of the excluded testimony' and (6) the party's explanation for failing to disclose.” Dzielak v. Whirlpool Corp., 2017 WL 1034197, at *29 (D.N.J. Mar. 17, 2017) (citing Konstantopoulos, 112 F.3d at 719).
R.D. v. Shohola, Inc., No. 3:16-CV-01056, 2019 WL 5424199, at *2 (M.D. Pa. Oct. 23, 2019). Further, “in the context of discovery sanctions, willfulness, and bad faith ‘involve[ ] intentional or self-serving behavior. '” Bowers v. Nat'l Collegiate Athletic Ass'n, 564 F.Supp.2d 322, 340 (D.N.J. 2008). Thus, “under Federal Rule of Civil Procedure 37(b)(1), a deponent may be sanctioned for failure to comply with a court order.” Yarus v. Walgreen Co., No. CIV.A. 14-1656, 2015 WL 4041955, at *3 (E.D. Pa. July 1, 2015).
Moreover, sanctions in the form of default judgments are governed by Rule 55 of the Federal Rules of Civil Procedure. Under Rule 55, a default judgment may be entered when the party against whom the default judgment is sought was served and “has failed to plead or otherwise respond.” Fed.R.Civ.P. 55(a). Furthermore, 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 addition, “[a] defendant's culpable conduct weighs heavily in the evaluation of whether to grant or set aside a default judgment.” E. Elec. Corp. of New Jersey v. Shoemaker Const. Co., 652 F.Supp.2d 599, 604-05 (E.D. Pa. 2009) (citing Farnese v. Bagnasco, 687 F.2d 761 (3d Cir. 1982)). In this regard, “[c]ulpable conduct relates only to ‘actions taken willfully or in bad faith.'” Id. at 606.
Finally, aside from rules-based sanctions:
[I]t is well-settled that a district court has the inherent power to sanction parties appearing before it for refusing to comply with its orders and to control litigation before it. See, e.g., Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 242 (3d Cir. 2007). Indeed, the inherent power of the Court to act in this area has long been recognized by the United States Supreme Court, which has held that:
It has long been understood that “[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution,” powers “which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.” United States v. Hudson, 7 Cranch 32, 34, 11 U.S. 32, 3 L.Ed. 259 (1812); see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980) (citing Hudson). For this reason, “Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.” Anderson v. Dunn, 6 Wheat. 204, 227, 19 U.S. 204, 5 L.Ed. 242 (1821); see also Ex parte Robinson, 19 Wall. 505, 510, 86 U.S. 505, 22 L.Ed. 205 (1874). These powers are “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734 (1962).
Chambers v. NASCO, Inc. 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).
Sanctions decisions rest in the sound discretion of the court and, if a district court awards sanctions pursuant to its inherent authority, such an award may only be reviewed for abuse of discretion, which will be found only where “the court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” In re Prudential Ins. Co. Am. Sales Practice Litig. Actions, 278 F.3d 175, 181 (3d Cir. 2002) (quoting In re Orthopedic Bone Screw Products Liability Litig., 193 F.3d 781, 795 (3d Cir. 1999)).
Am. Power, LLC v. Speedco, Inc., No. 1:15-CV-2091, 2017 WL 4084060, at *11 (M.D. Pa. Jan. 17, 2017), report and recommendation adopted, No. 1:15-CV-2091, 2017 WL 4150463 (M.D. Pa. Aug. 24, 2017). Typically, however, “the inherent power that a district court retains to sanction attorneys also requires bad faith.” Martin v. Brown, 63 F.3d 1252, 1265 (3d Cir. 1995).
2. The Sanction of Entry of Default is Fully Warranted on the Egregious Facts of this Case.
Recognizing that the court undoubtedly possesses the legal authority to sanction severe litigation misconduct, we further find that the profound and pervasive misconduct indulged in by Ewideh and Geaith now warrants the most significant of sanctions, entry of default judgments against these defendants.
At the outset, turning to the first touchstone that guides the exercise of the court's discretion-the question of whether the defendants have engaged in willful misconduct-we find that the evidence amply supports a finding of willfulness in this case. Indeed, the evidence clearly shows that the conduct of Ewideh and Geaith is not accidental and inadvertent but reflects a course of deliberate, calculated disregard for their legal responsibilities. This willfulness is demonstrated in several ways.
First, the defendants' abusive, scurrilous, and defamatory attacks upon plaintiff's counsel, coupled with their harassing hang-up calls, false social media posts, and attempts at witness intimidation are all plainly deliberate acts, designed to corrupt the litigation process. Further the defendants continued to indulge in this misconduct even after they had been warned by the court in November of 2023 that incomprehensible forays into personal invective, acerbic asides, caustic commentaries, disgruntled digressions, ad hominem observations, and personal attacks are never appropriate. Thus, the defendants engaged in deliberate misconduct through their communications with opposing counsel.
The defendants' communications to the court have also been marked by what can only be considered deliberate mendacity. The nature and extent of this deceit has been staggering. Thus, in the face of a history of disregard for court orders, the defendants have glibly asserted that: “The defendants have not violated any of the court's orders . . . .” (Doc. 140, ¶ 7). This representation is obviously false. Further, within the past two weeks, when called upon to appear before the court, uncontested evidence shows that Ewideh and Geaith falsely stated on the morning of January 4 that “We request an emergency continuance as the defendant is on its way to the hospital from an accident.” The defendants then compound this deceit by attempting to conceal this false statement through a series of transparent, inept efforts to mislead the court.
Beyond its obvious willfulness, the defendants' misdeeds have been persistent and profound. This is not a case where we are called upon to consider some isolated shortcoming by pro se litigants. Quite the contrary, from the outset of this litigation Ewideh and Geaith have continually engaged in a breathtaking array of litigation abuse. During the past year the defendants have ignored filing deadlines; disobeyed multiple court orders; indulged in repeated frivolous and vexatious filings; failed to appear in court as directed; engaged in a campaign of invective and abuse targeting opposing counsel; and made intentional false statements. Thus, the scope of this litigation misconduct is sweeping and unprecedented.
We further find that the plaintiff has been undeniably prejudiced by this widespread, willful misconduct engaged in by Ewideh and Geaith. As a consequence of the defendants' misconduct, the plaintiff has had to expend extensive time and resources in fruitless litigation; has been denied basic information that they are entitled to receive through discovery; and has had to endure a torrent of abuse and invective from these defendants who have refused to follow the rules. As we have noted in the past when considering Rule 41 sanctions, the prejudice to the adversary caused by the failure to abide by court orders also calls for dismissal of this action. Indeed, this factor-the prejudice suffered by the party harmed by sanctionable misconduct-is entitled to great weight and careful consideration. As the Third Circuit has observed:
“Evidence of prejudice to an adversary would bear substantial weight in support of a dismissal or default judgment.” Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir. 1994) (internal quotation marks and citation omitted). Generally, prejudice includes “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party.” Id. at 874 (internal quotation marks and citations omitted).... However, prejudice is not limited to “irremediable” or “irreparable” harm. Id.; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003); Curtis T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d Cir. 1988). It also includes “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware, 322 F.3d at 222.
Briscoe v. Klaus, 538 F.3d 252, 259-60 (3d Cir. 2008).
In this case, the defendants' failure to litigate this claim, to appear as ordered, and to comply with court orders, now wholly frustrates and delays the resolution of this action. In such instances, Homesite is plainly prejudiced by the defendants' continuing inaction and entry of default clearly rests in the discretion of the trial judge. Tillio v. Mendelsohn, 256 Fed.Appx. 509 (3d Cir. 2007) (Rule 41, failure to timely serve pleadings compels dismissal); Reshard v. Lankenau Hospital, 256 Fed.Appx. 506 (3d Cir. 2007) (Rule 41, failure to comply with discovery compels dismissal); Azubuko v. Bell National Organization, 243 Fed.Appx. 728 (3d Cir. 2007) (Rule 41, failure to file amended complaint prejudices defense and compels dismissal). Quite simply, the defendants have defaulted in every way that a party can. Given the breathtaking scope, range, and dimension of these defaults, the plaintiff is clearly prejudiced by the stubbornly defiant and contumacious behavior of Ewideh and Geaith. Given the plainly willful nature of these defaults, and the manifest prejudice stemming from this litigation misconduct, the court should grant Homesite's motion for entry of default.
Finally, we note that there are no countervailing considerations which weigh in favor of Ewideh and Geaith and would call for lesser sanctions. For example, when one considers the defendants' history of dilatoriness it becomes clear that dismissal of this action is now appropriate. In this regard, it is clear that “‘[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response . . ., or consistent tardiness in complying with court orders.'” Briscoe, 538 F.3d at 260-61 (quoting Adams, 29 F.3d at 874) (some citations omitted). That history of dilatory behavior is starkly displayed here. Likewise, this case presents a situation where the defendants' status as pro se litigants severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. In any event, by entering our prior orders and repeatedly counseling the defendants on his obligations in this case, we have endeavored to use lesser sanctions, but to no avail. Ewideh and Geaith still ignore their responsibilities as litigants. Instead, they have actually compounded their misconduct in recent weeks by disobeying court orders and lying to the court while engaging in attempted witness intimidation. Since lesser sanctions have been tried, and have failed, only the sanction of default remains available to the court.
Finally, by failing to provide discovery for months in the face of court orders expressly directing them to do so, the defendants are now subject to Rule 37's sanction of preclusion of evidence. Simply put, through their misdeeds and failure to obey court orders, Ewideh and Geaith have largely forfeited their right to present a factual defense to this declaratory judgment action. Therefore, a merits consideration in this case also calls for the entry of judgment in favor of Homesite.
In this case, we find that all of these discretionary factors favor entry of default judgment against these defendants at this time. The defendants are undeniably in default on the most basic obligation they owe as litigants. These defaults are not fleeting, inadvertent, or accidental. Quite the contrary, these defaults have persisted for months, and the defendants have ignored numerous court orders directing them to answer this complaint. Thus, the defendants have indulged in culpable misconduct; that is, actions taken willfully or in bad faith. Moreover, the failure to answer the complaint, while a fundamental default, is only a small part of the wholesale dereliction of the defendants' duties to this court. The defendants have also failed to file pleadings, ignored multiple court orders, and refused to participate in discovery while violating court orders by engaging in a campaign of abuse and harassment targeting plaintiff's counsel. Quite simply, the defendants have defaulted in every way that a party can. Given the breathtaking scope, range, and dimension of these defaults, the plaintiff is clearly prejudiced. Further, the willfully nature of these defaults, and the manifest prejudice stemming from this litigation misconduct, now justifies the entry of default.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that Homesite's motion for entry of default judgment, (Doc. 101), and motions for sanctions, (Docs. 164 and 214), should be GRANTED and default judgment should be entered against the defendants.
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 39 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.