UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

YOLANDA GORDON,

 CIVIL ACTION NO. 14-13839

Plaintiff,

 DISTRICT JUDGE NANCY G. EDMUNDS

v.

 MAGISTRATE JUDGE R. STEVEN WHALEN

ENHANCED ACQUISITIONS

LLC, et al.,

Defendants.

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REPORT AND RECOMMENDATION

On October 28, 2016, I ordered Defendant Rodney A. Giovi to show cause why I

should not recommend sanctions against him, including entry of a default judgment,

based on his repeated disregard of this Court’s orders. Although I ordered Mr. Giovi to

respond to the show cause order by November 10, 2016, he has not done so. I therefore

recommend that the Court sua sponte (1) enter a default judgment against Mr. Giovi; (2)

award Plaintiff statutory damages of $1,000.00 and emotional distress damages of $3,000;

and (3) direct Plaintiff’s counsel to provide documentation to establish the appropriate

and reasonable amount of attorney’s fees and costs to be paid by Mr. Giovi.

I. FACTS

In my show cause order [Doc. #29], I set forth the basic facts of Mr. Giovi’s

history of disregarding this Court’s orders:

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“On September 21, 2016, the Honorable Nancy G. Edmunds referred this

case for a settlement conference [Doc. #27]. On September 22, 2013, I filed

a notice to appear for settlement conference, setting a date and time of

October 19, 2016 at 1:30 p.m. [Doc. #28]. A copy of the notice was mailed

to Defendant Rodney A. Giove, who is appearing pro se.

1 Mr. Giove did

not appear on the appointed date and time.

“Although Mr. Giove filed an answer to the complaint on January 9, 2015

[Doc. #5], he has apparently chosen not to participate in this litigation. On

January 19, 2016, the Plaintiff filed a motion to compel answers to

interrogatories [Doc. #21]. Mr. Giove did not respond to that motion, and

did not appear at the motion hearing on March 1, 2016. On that date, my

case manager called Mr. Giove’s office three times, each time leaving a

message regarding the scheduled hearing. Mr. Giove neither called back nor

provided any information or excuse as to why he did not appear at the

hearing. I granted the Plaintiff’s motion on March 2, 2016. In my order

[Doc. #24], I imposed Rule 37 sanctions of $250.00, ordered that the

interrogatory answers be provided within 21 days, and stated, “Mr. Giove’s

failure to comply with this Order will result in further sanctions, which may

include granting Plaintiff a default judgment.”

“On April 18, 2016, Plaintiff filed a motion for summary judgment [Doc.

#25], accompanied by her attorney’s affidavit stating that Mr. Giove had not

complied with the Court’s discovery order. The motion also states that

“[c]ounsel for Plaintiff has...left numerous phone messages for Mr. Giove.

Mr. Giove has never responded.” Mr. Giove did not respond to the

Plaintiff’s summary judgment motion. On September 21, 2016, the Court

denied the motion without prejudice [Doc. #26], and on the same date

referred the case for a settlement conference [Doc. #27].”

I ordered Mr. Giove to respond by November 10, 2016, and to show cause “why I

should not impose or recommend sanctions against him, including entry of a default

judgment and/or an order finding him in contempt of court.” And once again, he has

failed to comply with an order of this Court.

1

 Mr. Giove is himself an attorney.

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II. LEGAL PRINCIPLES

While there is no specific Federal Rule or statute that provides for entry of a

default judgment against a party who disobeys judicial orders, the Court may do so

pursuant to its broad inherent authority to protect the integrity of the judicial process and

guard against abuses. In Dell, Inc. v. Advicon Computer Servs., Inc., 2007 WL 2021842,

at *5-6 (E.D. Mich. July 12, 2007), Judge Lawson explained the reach of the Court’s

power to enter a default judgment in cases of a party’s egregious and repeated disregard

of court orders:

“Although Federal Rule of Civil Procedure 37(b)(2)(C) authorizes the Court

to enter default judgment as a discovery sanction, there is no Rule or statute

that authorizes entry of default judgment based on a party's failure to obey

court orders in general. Nevertheless, it is well-established that a federal

court has the inherent authority to grant such relief when the circumstances

warrant as much. See In re Sunshine Jr. Stores, Inc., 456 F.3d 1291,

1304-06 (11th Cir.2006) (upholding entry of default judgment as proper use

of court's inherent authority where party failed to respond to court orders,

failed to appear before the court, and failed to engage in court-ordered

discovery); Thomas, Head, & Griesen Employees Trust v. Buster, 95 F.3d

1449, 1457-59 (9th Cir.1996) (upholding entry of default judgment based

on inherent authority where party completely ignored the terms of an

injunctive order and other court orders); Shepherd v. American

Broadcasting Cos., Inc., 62 F.3d 1469, 1472 (D.C.Cir.1995) (‘As old as the

judiciary itself, the inherent power enables courts to protect their

institutional integrity and to guard against abuses of the judicial process

with contempt citations, fines, awards of attorneys' fees, and such other

orders and sanctions as they find necessary, including even dismissals and

default judgments.’); see also Chambers v. NASCO, Inc., 501 U.S. 32,

47-50, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (discussing the broad scope

of a court's inherent authority).”

When entry of a default judgment is being considered as a discovery sanction

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under Fed.R.Civ.P. 37(b)(2)(C), the Court examines four factors: (1) whether the conduct

at issue was the result of willfulness, bad faith, or fault; (2) whether the adversary was

prejudiced by the disobedient party's conduct; (3) whether the disobedient party was

warned that failure to cooperate could lead to default judgment; and (4) whether less

drastic sanctions were imposed or considered before entry of default judgment. Bank One

of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.1990) (citing Regional Refuse

Sys. v. Inland Reclamation Co., 842 F.2d 150, 154-55 (6th Cir.1988)). 

The same analytical framework is appropriate in assessing whether entry of a

default judgment is the appropriate sanction for disobedience of judicial orders. Dell, Inc.

v. Advicon Computer Servs., Inc., at *6 (“The Court finds that [the Rule 37] factors apply

equally to a default judgment entered under its inherent authority.”).

III. DISCUSSION

A. Willfulness or Bad Faith

It is impossible to characterize Mr. Giovi’s conduct in this case (or lack thereof) as

anything other than willful and contumacious. He has failed to cooperate in discovery,

even when I granted Plaintiff’s motion to compel. He has failed to communicate with

Plaintiff’s counsel, failed to respond to telephone calls from my case manager when he

did not appear for a scheduled hearing, and failed to pay the discovery sanctions that I

ordered. He did not respond to the Plaintiff’s motion for summary judgment, and did not

appear for a scheduled settlement conference. As I wrote in my order to show cause,

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“Simply ignoring the Court’s orders–be they orders to produce discovery, pay sanctions,

or appear for conferences–is not an option.” Mr. Giove’s conduct is all the more

troubling because he is an attorney who should know better. This factor weighs strongly

in favor of entering a default judgment.

B. Prejudice to the Opposing Party

The Plaintiff’s ability to proceed with this litigation has been completely frustrated

by Mr. Giovi’s intransigence. Plaintiff has not received discovery, and has been stymied

even in the ability to discuss a settlement. The prejudice to the Plaintiff is manifest.

C. Whether Defendant was Warned

When I granted Rule 37 discovery sanctions [Doc. #24], I warned Mr. Giove that

his failure to comply with my order could result in entry of a default judgment against

him. He failed to comply with my order. When I entered my show cause order [Doc. #29],

I directed Mr. Giove to show cause in writing by November 10, 2016 why I should not

recommend sanctions, including entry of a default judgment. He has not done so.

Mr. Giove has been warned twice of the possibility of a default judgment. This

factor weighs in favor of that sanction.

D. Whether Less Drastic Sanctions were Imposed

In addition to being warned that a default judgment was in the cards, Mr. Giove

was previously given the lesser sanction of a monetary fine in my order [Doc. #24]

granting Plaintiff’s motion to compel discovery.

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All four factors strongly support the imposition of a default judgment against Mr.

Giove. Enough is enough. No lesser sanction will suffice; Mr. Giove has shown no

inclination to participate in this litigation or to comply with this Court’s orders.

E. Damages

In its order granting a default judgment against Defendant Enhanced Acquisitions

LLC [Doc. #19], the Court assessed statutory damages in the amount of $1,000.00 under

the Federal Debt Collections Practices Act, 15 U.S.C. § 1692 et seq, and actual damages

for emotional distress in the amount of $3,000.00. The Court’s reasoning in that order

supports a finding of the same amount for those two categories of damages as to Mr.

Giove.

The amount of costs and attorney fees, however, may not be the same, particularly

given the additional time that Plaintiff’s counsel was likely required to expend owing to

Mr. Giove’s failure to cooperate in the litigation. Plaintiff’s counsel should therefore be

directed to submit a bill of costs and a request for attorney fees and costs.

IV. CONCLUSION

For these reasons, I recommend that under its inherent authority, the Court (1)

enter a default judgment against Mr. Giovi, (2) award Plaintiff statutory damages of

$1,000.00 and emotional distress damages of $3,000; and (3) direct Plaintiff’s counsel to

provide documentation to establish the appropriate and reasonable amount of attorney’s

fees and costs to be paid by Mr. Giovi.

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Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D.

Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638

F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise

others with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed

objections, the opposing party may file a response. The response shall be not more than

twenty (20) pages in length unless by motion and order such page limit is extended by the

court. The response shall address specifically, and in the same order raised, each issue

contained within the objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: May 11, 2017

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CERTIFICATE OF SERVICE

I hereby certify on May 11, 2017, that I electronically filed the foregoing paper

with the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to non-registered ECF

participants.

s/Carolyn Ciesla 

Case Manager to 

Magistrate Judge R. Steven Whalen

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