Opinion
CIVIL 1:22-CV-1664
07-13-2023
HOMESITE INS. CO. OF THE MIDWEST, Plaintiff v. OMAR EWIDEH, et al., Defendants
Conner 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.
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). We directed the defendants to respond to this motion, but in yet another default, they have declined to do so. Therefore, the motion, which is unopposed, is ripe for resolution.
Given the staggering array of defaults committed by defendants, for the reasons set forth below, it is recommended that this motion be granted.
II. Factual Background and Procedural History
This case, which was first filed some nine months 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' on-going 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 have not produced the documentary discovery directed by the court. Further, they have 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.
Moreover, despite our repeated and explicit warnings, Ewideh and Geaith continue to ignore the court's orders, default on their legal responsibilities, and neglect to address outstanding motions, including the motion seeking default judgment. Furthermore, Ewideh and Geaith to this day have never answered the complaint, a longstanding and basic default which they have indulged in despite repeated, explicit instructions from the court.
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). The notices of interlocutory appeal are facially frivolous, in that the defendants seeks 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 can the defendants rely upon these frivolous appeals to stave off the continued exercise of jurisdiction by this court. Quite the contrary, § 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.
Given this wholesale dereliction by the defendants, the motion for entry of default, (Doc. 101), is now deemed ripe for resolution. For the reasons set forth below, it is recommended that this motion be granted.
III. Discussion
A. Under The Rules of This Court the Plaintiff's Motion to Dismiss the Defendants' Summary Judgment Motion Should Be Deemed Unopposed and Granted .
At the outset, under the Local Rules of this Court the defendants should be deemed to concur in the plaintiff's motion for entry of default since they have failed to timely oppose the motion or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of this court warrants entry of default since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff 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. Nothing in this rule shall be construed to
limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits, or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.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)). In this case, the plaintiff has not complied with the local rules, or this Court's order, by filing a timely response to this motion. Therefore, these procedural defaults by the plaintiff compel the court to consider:
[A] basic truth: we must remain mindful of the fact that Athe Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion ....” McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir.1998).Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by the rules when such rules are repeatedly breached, “would actually violate the dual mandate which guides this Court and motivates our system of justice: ‘that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion.' ”Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the defendants have failed to comply with Local Rule 7.6 by filing a timely response to this motion for entry of default. This failure now compels us to apply the sanction called for under Rule 7.6 and deem the motion unopposed.
In any event, we find that the plaintiffs are entitled to entry of a default judgment on the unique and uniquely compelling facts of this case where the defendants have indulged in a wholesale dereliction of their duties as litigants.
B. The Plaintiffs Are Entitled to Entry of a Default Judgment.
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.
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-the duty to answer a complaint. This default is not fleeting, inadvertent, or accidental. Quite the contrary, this basic default has 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. 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 willfully nature of these defaults, and the manifest prejudice stemming from this litigation misconduct, the court should grant Homesite's motion for entry of default-a motion which the defendants have never deigned to oppose.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that Homesite's motion for entry of default judgment (Doc. 101), should be GRANTED.
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 (114) 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.