UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JERRY GILLIAM,

Plaintiff, CASE NO. 15-cv-11833

v. DISTRICT JUDGE THOMAS LUDINGTON

MAGISTRATE JUDGE PATRICIA MORRIS

WILLIAM H. ORDIWAY, JR., and

MARVEILYN TALISIC ORDIWAY, 

Defendants.

______________________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON 

MOTIONS FOR SUMMARY JUDGMENT (Docs. 37, 39, 40)

I. Recommendation

For the reasons set forth below, I recommend that Plaintiff’s motion for summary 

judgment (Doc. 37) be DENIED; and that Defendants’ motions for summary judgment 

(Docs. 39, 40) be DENIED.

II. Report

a. Introduction 

On November 1, 2014, Plaintiff Jerry Gilliam filed a complaint in the United 

States District Court for the Western District of Missouri, alleging that Defendants 

William H. Ordiway, Jr. (“William Ordiway”), and Marveilyn Talisic Ordiway

(“Marveilyn Ordiway”) committed the tort of intentional infliction of emotional distress 

by way of threatening Gilliam and demanding payments of $100,000. (Doc. 1). Gilliam 

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alleges that he is a Missouri resident, that defendant Marveilyn Ordiway is a citizen of the 

Philippines, and that defendant William Ordiway is a Michigan resident. (Id. at 1-2). He 

alleges that this matter is properly filed in federal court on the basis of diversity 

jurisdiction, and that over one million dollars is in controversy. (Id. at Civil Cover Sheet). 

On May 20, 2015, this case was transferred to the United States District Court for the 

Eastern District of Michigan, and was assigned to District Judge Judith Levy. (Docs. 1, 2, 

3). 

On May 26, 2015, Gilliam filed an amended complaint. (Doc. 4). On June 24, 

2015, Defendants filed an answer to that complaint and a motion to dismiss. (Doc. 6). On 

June 26, 2015, Gilliam filed a second amended complaint. (Doc. 7). On June 30, 2015, 

District Judge Levy ruled that Gilliam’s second amended complaint superseded both his 

original complaint and his first amended complaint, thus Defendants’ motion to dismiss 

was moot. (Doc. 8). Federal Rule of Civil Procedure 15(a) provides that “[a] party may 

amend its pleading once as a matter of course within” either “(A) 21 days after serving it, 

or” (B) if the pleading is one to which a responsive pleading is required, 21 days after 

service of a responsive pleading, or 21 days after service of a motion under Rule 12(b), 

(e), or (f), whichever is earlier.” All other amendments require either “the opposing 

party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Gilliam exhausted 

his one amendment “as a matter of course” by filing his first amended complaint, and 

thus could not file a second amended complaint without the consent of Defendants or 

leave of court. However, because District Judge Levy concluded that Gilliam’s second 

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amended complaint (Doc. 7) superseded his prior complaints, I find that he received the 

necessary leave of court to file his second amended complaint. 

On November 24, 2015, District Judge Levy issued an order in which she found 

that Gilliam’s second amended complaint properly raised two distinct claims under 

Michigan law: a claim for defamation, and a claim for intentional infliction of emotional 

distress. (Doc. 18 at 9-13). 

On February 12, 2016, Magistrate Judge Mona Majzoub recommended that this 

matter be transferred to the Bay City Court in the Northern Division of the United States 

District Court for the Eastern District of Michigan. (Doc. 31). That recommendation was 

adopted by District Judge Levy on March 22, 2016, (Doc. 32), and this matter was 

transferred to District Judge Thomas Ludington (Doc. 33), who then referred this matter 

to the undersigned magistrate judge (Doc. 35). 

b. Motions for Summary Judgment

On April 18, 2016, Gilliam filed a motion for summary judgment (Doc. 37). 

Gilliam therein argues that Defendants have not properly responded to his January 24, 

2016, discovery requests, including requests for admission; consequently, Gilliam argues 

that Defendants have admitted to all those unanswered requests for admission. (Id. at 1-

2). Gilliam his requests for admission to his motion for summary judgment; these 

requests are comprised of twenty-five paragraphs relating to the Defendants’ alleged 

conduct, including allegations that Defendants sent certain emails demanding payment of 

$100,000, communicated with Gilliam’s family, and that Defendants knew that their 

conduct would cause emotional distress. (Id. at Ex. A). Gilliam also attaches one of 

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Defendants’ responses to his request for admission, wherein defendant Marveilyn

asserted that she “cannot admit nor deny Plaintiff’s Request for Admissions.” (Id. at Ex. 

A). 

On April 25, 2016, Defendants filed a response to Gilliam’s April 18, 2016, 

motion for summary judgment. (Doc. 38). Therein, Defendant Marveilyn alone responds, 

stating that she “advises the Plaintiff to do his own legal briefs as this shows that the 

Plaintiff was using drafts made by others.” (Doc. 38). Marveilyn further asserts that 

“William H. Ordiway, Jr. has already replied and the plaintiff requested that defendant 

Marveilyn Ordiway to answer the same for William Ordiway again.” (Id.). Defendants 

also chastise Gilliam for “using the court system to harass the Defendants,” and for 

including insulting comments on the envelope in which his request for admissions were 

enclosed, including the phrase “WOW. Nail it, Mail it. See you Soon. Enjooy...” (Id. at 

2-3).

At the outset, the Court expresses dismay at the state of communication between 

the parties. This matter is pending before the United States District Court for the Eastern 

District of Michigan, and the parties are cautioned to accord appropriate respect both to 

one another and to the Court. The parties certify, under Federal Rule of Civil Procedure 

11, that their pleadings, motions, and other papers comply with the following: 

(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;

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(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)(1)-(4). If the parties fail to comply with these requirements, the 

Court will not hesitate to impose (or recommend the imposition of) appropriate sanctions 

under Fed. R. Civ. P. 11(c). 

Secondly, Defendants are cautioned that under Federal Rule of Civil Procedure 

36(a)(3), “[a] matter is admitted unless, within 30 days after being served, the party to 

whom the request is directed serves on the requesting party a written answer or objection 

addressed to the matter and signed by the party or its attorney.” Defendants are required 

to respond, and may not simply declare that they have advised one another not to 

respond. 

Defendants’ response that they “cannot admit nor deny Plaintiff’s Requests for 

Admission to Marveilyn Talisic Ordiway” (Doc. 36 at Ex. A) is not a proper response 

under Federal Rule of Civil Procedure 36. That rule provides that answers must be 

“specifically deny it or state in detail why the answering party cannot truthfully admit or 

deny it. A denial must fairly respond to the substance of the matter; and when good faith 

requires that a party qualify an answer or deny only a part of a matter, the answer must 

specify the part admitted and qualify or deny the rest. The answering party may assert 

lack of knowledge or information as a reason for failing to admit or deny only if the party 

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states that it has made reasonable inquiry and that the information it knows or can readily 

obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4). 

This matter is rather unusual in that both Plaintiff and Defendants are acting pro 

se, and thus presumably are unfamiliar with the finer points of federal civil procedure. 

Parties acting pro se are held to a “less stringent standard[],” and their pleadings are 

entitled to liberal construction. Estelle v. Gamble, 429 U.S. 97, 106. Some courts have 

held that “[r]equests for admission which are deemed admitted by the default of a pro se 

litigant generally should not provide the sole basis for granting summary judgment, 

unless the pro se litigant was advised of the consequence of failing to reply to the 

requests for admission.” Gordon v. Jones, No. 3:08CV-P460-S, 2011 WL 847926, at *4 

(W.D. Ky. Mar. 8, 2011). Even if the Court were to find that Defendants admitted all 

those matters raised in Gilliam’s requests for production, Rule 36(b) provides that a party 

may file a motion to amend or withdraw their response. While the Court has 

“considerable discretion” regarding whether to permit withdrawal or amendment under 

Rule 36(b), Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 154 (6th Cir. 1997), 

the undersigned would be disinclined to strictly apply that rule against parties unfamiliar 

with federal practice. 

A motion for summary judgment under Rule 56 will be granted only where “the 

movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has 

“‘the initial burden of showing the absence of a genuine issue of material fact’ as to an 

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essential element of the nonmovant’s case.” Street v. J.C. Bradford & Co., 886 F.2d 

1472, 1479 (6th Cir. 1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

Because the Court is disinclined to strictly apply the rule of Fed. R. Civ. P. 

36(a)(3) against a party proceeding pro se, Gilliam’s motion for summary judgment 

(Doc. 37) is inappropriate at this time, and should be denied. Nevertheless, Defendants 

are obliged to answer Gilliam’s discovery requests fully, honestly, and in good faith, 

pursuant to Federal Rule of Civil Procedure 26.

On April 25, 2016, Defendants filed two motions for summary judgment of their 

own. (Docs. 39, 40). In both motions, Defendants argue that Gilliam is himself in 

violation of Rule 36 by way of answering Defendants’ “request for discovery” with the 

word “objection,” and a direction to see an attached sheet of answers. (Docs. 39, 40). 

Gilliam has responded to both motions (Doc. 48), and Defendants have filed a reply 

(Doc. 51). Gilliam’s response and Defendants’ reply offer little clarity, and instead 

essentially repeat the arguments made in Defendants’ motions for summary judgment. 

Also on April 25, 2016, Defendants submitted to the docket Gilliam’s answers to 

Defendants’ requests for discovery and admissions. (Docs. 41, 42). Submission of 

discovery materials to the Court is improper outside of the context of a motion to compel 

under Federal Rule of Civil Procedure 37. Discovery is a process which takes place 

between the litigants, and the involvement of the Court is not warranted unless and until 

the parties reach an impasse which requires the Court’s intervention; if such an impasse is 

reached, the parties may file a motion to compel under Federal Rule of Civil Procedure 

37. See Ouellette v. Hills, No. 15-CV-11604, 2016 WL 1721050, at *1, n.1 (E.D. Mich. 

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Apr. 29, 2016) (“[D]iscovery should be served upon and responded to between the parties 

without court involvement unless a problem develops that requires court intervention.”). 

Future submissions of discovery to the docket outside of the appropriate context (i.e. a 

motion to compel under Rule 37) may result in such a submission being stricken from the 

record. 

To his credit, Gilliam’s responses to Defendants’ discovery requests provides 

some degree of substance, including properly raised objections and denials of certain 

requests. (See generally Docs. 41, 42). However, Gilliam also falls back on a repeated 

objection that the questions are “immaterial and not reasonably calculated to lead to any 

material or relevant evidence admissible in the above styled case.” (Id.). Gilliam appears 

to erroneously believe that a request for admission must lead to admissible evidence, yet 

no such requirement exists. On the contrary, discovery is limited to 

any nonprivileged matter that is relevant to any party's claim or defense and 

proportional to the needs of the case, considering the importance of the 

issues at stake in the action, the amount in controversy, the parties’ relative 

access to relevant information, the parties’ resources, the importance of the 

discovery in resolving the issues, and whether the burden or expense of the 

proposed discovery outweighs its likely benefit. Information within this 

scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). 

Insofar as Defendants are unsatisfied with Gilliam’s discovery responses, and 

believe that they are entitled to more detailed responses under Rule 26, they ought to file 

a motion to compel under Rule 37. Insofar as Defendants believe that Gilliam’s responses 

are insufficient, they should submit a motion to compel responses to their requests, along 

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with a specific, individualized, legally supportable explanation as to why each of 

Gilliam’s responses is unsatisfactory. See Fed. R. Civ. P. 37.

In this case, Defendants have not even attempted to demonstrate that there remains 

no question of material fact in dispute in this case. Instead, Defendants appear to desire 

that Gilliam’s complaint be dismissed for failure to properly comply with discovery rules 

provided under Federal Rule of Civil Procedure 26. Yet, as noted above, the appropriate 

measure in response to a failure to comply with discovery rules is a motion to compel 

under Rule 37, not a motion for summary judgment. Defendants’ submitted a reply on 

May 27, 2016. (Doc. 51). 

Defendants’ language in the reply comes closest to a motion to compel, noting “a 

few examples” of the requested documents which Gilliam allegedly failed to provide, and 

explicitly requesting that the Court “order the Plaintiff to comply with all the Defendants 

[sic] Discovery Requests.” (Doc. 51 at 4). Yet a reply is not the proper place to set forth a 

motion to compel, as doing so denies Gilliam the ability to respond. Insofar as 

Defendants desire that Gilliam be compelled to answer their discovery requests, they 

must do more than provide “a few examples” of why his responses are deficient. Instead, 

they must provide a request-by-request analysis of their discovery requests, along with a 

copy of Gilliam’s responses, and a discussion of why each of those responses was 

deficient under the law. Because Defendants have not properly demonstrated that there 

remain no genuine disputes of material fact in this matter, I recommend that their motions 

for summary judgment (Docs. 39, 40) also be denied. 

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c. Conclusion

For the reasons above, I recommend that Plaintiff’s motion for summary judgment 

(Doc. 37) be DENIED; and that Defendants’ motions for summary judgment (Docs. 39, 

40) be DENIED.

III. Review

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[w]ithin 14 days 

after being served with a copy of the recommended disposition, a party may serve and 

file specific written objections to the proposed findings and recommendations. A party 

may respond to another party’s objections within 14 days after being served with a copy.” 

Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure to file specific objections 

constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155; 

Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United 

States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The parties are advised that making 

some objections, but failing to raise others, will not preserve all the objections a party 

may have to this Report and Recommendation. Willis v. Sec’y of Health & Human Servs., 

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). According to E.D. Mich. LR 72.1(d)(2), a copy of any 

objections is to be served upon this magistrate judge. 

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any 

objection must recite precisely the provision of this Report and Recommendation to 

which it pertains. Not later than 14 days after service of an objection, the opposing party 

may file a concise response proportionate to the objections in length and complexity. Fed. 

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R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each 

issue raised in the objections, in the same order, and labeled as “Response to Objection 

No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections 

are without merit, it may rule without awaiting the response.

Date: October 20, 2016 s/ Patricia T. Morri

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date 

through the Court’s CM/ECF system which delivers a copy to all counsel of record. A 

copy was also sent via First Class mail to Jerry Gilliam at 5016 NE 44th Street, Kansas 

City, MO 64117 and Marveilyn Talisic Ordiway and William H. Ordiway at 3401 W. 

Greenwood Rd., Alger, MI 48610.

Date: October 20, 2016 By s/Kristen Castaneda 

 Case Manager 

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