UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PNC BANK, National Association,

Plaintiff,

v.

MACAW, INC., a Michigan corporation;

ELRINGTON MEDICAL CENTER, P.L.L.C.,

a Michigan professional limited liability company;

and ANN R. ELRINGTON, an individual;

Case No. 14-11709

Hon. Judith E. Levy

Defendants.

/

DANIEL P. MARSH, PLLC

DANIEL P. MARSH (P45304)

Attorney for Defendant Ann Elrington

101 W. Big Beaver Road, Suite 1400

Troy, MI 48084

(248) 687-1600

dan at danielpmarsh.com 

PLUNKETT COONEY

EMILY M. COYLE (P74123)

Attorneys for Plaintiff

38505 Woodward Avenue, Suite 2000

Bloomfield Hills, MI 48304

(248) 594-8613

(248) 901-4040 (Fax)

ecoyle@plunkettcooney.com

/

PLAINTIFF'S MOTION TO DISMISS ACTION, WITHOUT PREJUDICE, AS TO ERROL G. 

ELRINGTON ONLY

Plaintiff, PNC Bank, National Association, by and through its attorneys, Plunkett

Cooney, for its Motion to Dismiss Action, Without Prejudice, as to Errol G. Elrington, Only,

pursuant to Fed. R. Civ. P. 41(a)(2) states as follows:

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.224 Page 1 of 12
1. Plaintiff PNC Bank, National Association ("PNC") initiated this action on May

1, 2014, seeking to obtain a money judgment against the Defendants for a failed

commercial loan. (Docket Nos. 1-2, Complaint).

2. MACAW, Inc. and Elrington Medical Center, P.L.L.C. were served on July 1,

2014 and defaults obtained against each on September 10, 2014. (Docket Nos. 10 and 11).

3. Despite the best efforts of its process server, PNC was unable to serve Errol

G. Elrington ("Errol") prior to the expiration of the summons.

4. Errol was dismissed from the litigation without prejudice on September 10,

2014. (Docket No. 13, Notice of Dismissal Pursuant to Fed. R. Civ. P. 41(1)(A)(k) as to Errol

G. Elrington, Only, 9/10/14).

5. Ann R. Elrington ("Ann") recently filed for Chapter 13 bankruptcy protection.

Ann is the only defendant to have appeared before the Court on this matter, and the case

against her is now administratively stayed pursuant to federal bankruptcy law.

6. PNC sought leave to amend its Complaint to include Errol as a defendant so

that the remaining claims could be litigated efficiently. (Docket No. 18, Motion for Leave to

File First Amended Complaint, 10/31/14). Upon information and belief, PNC believed it

could serve Errol with a copy of the summons and complaint as Errol was likely back in the

United States. This Court granted that motion and an amended complaint was filed.

(Docket Nos. 19-20).

2

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7. Despite PNC's best efforts, it has been unable to locate Errol. Upon

information and belief, Errol is now a fugitive who has fled to Belize, presumably to escape

the federal arrest warrant issued for him for Racketeering, Medicaid fraud, and health care

fraud. See Exhibit A.

8. Given Errol's apparent act of absconding to a foreign country, proper service

at this time under the Federal Rules of Civil Procedure is impossible.

9. PNC therefore moves this Court for an order voluntarily dismissing the action

as to Defendant Errol Elrington. PNC requests that the dismissal be without prejudice, to

allow it to take appropriate legal action against Errol if he returns to the United States before

the applicable statute of limitation has expired.

10. Federal Rule of Civil Procedure 41(a)(2) authorizes this Court to voluntarily

dismiss an action "upon such terms and conditions as the court deems proper." Importantly,

"[u]nless the order states otherwise, a dismissal under this paragraph (2) is without

prejudice." Fed. R. Civ. P. 41(a)(2).

11. "Whether dismissal should be granted under the authority of Rule 41(a)(2) is

within the sound discretion of the district court." Grover by Grover v. Eli Lilly & Co, 33 F.3d

716, 718 (6th Cir. 1994). "The primary purpose of the rule in interposing the requirement of

court approval is to protect the defendant from unfair treatment." (Id.). Unless the defendant

would suffer "plain legal prejudice" as a result of the dismissal without prejudice, a district

court acts within its discretion in dismissing the action without prejudice. (Id.). Factors to

3

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.226 Page 3 of 12
consider in making this determination as to whether a defendant will suffer plain legal

prejudice include "the defendant's effort and expense of preparation for trial, excessive

delay and lack of diligence on the part of the plaintiff in prosecuting the action, insufficient

explanation for the need to take a dismissal, and whether a motion for summary judgment

has been filed by the defendant." Id.

12. Here, the above factors for determining "plain legal prejudice" weigh heavily

against Defendant Errol. He has expended no effort or money on the case. He has not

filed an answer. In fact, as PNC has explained, he has not even been served with the

Amended Complaint because he has fled the United States. In these circumstances, the

interests of justice favor PNC's request for a dismissal of the action as to Defendant Errol

Elrington without prejudice, so that if Errol returns to the country before the statute of

limitation on the asserted claim(s) expires, PNC can obtain a judgment against him.

13. Pursuant to Local Rule 7.1(2), PNC was unable to seek concurrence in this

motion as Errol is unavailable.

WHEREFORE, Plaintiff, PNC Bank, National Association respectfully requests this

Court grant the instant Motion and enter an order dismissing the action, without prejudice,

as to Defendant Errol Elrington, only. A copy of the proposed Order is attached as Exhibit

B.

4

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.227 Page 4 of 12
Dated: February 25, 2015

Respectfully submitted,

PLUNKETT COONEY

By: /s/Emily M. Coyle

Emily M. Coyle (P74123)

Attorneys for Plaintiff

38505 Woodward Avenue, Suite 2000

Bloomfield Hills, MI 48304

(248) 901-4000

(248) 904-4040 (Fax)

5

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.228 Page 5 of 12
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PNC BANK, National Association,

Plaintiff,

v.

MACAW, INC., a Michigan corporation;

ELRINGTON MEDICAL CENTER, P.L.L.C.,

a Michigan professional limited liability company;

and ANN R. ELRINGTON, an individual;

Case No. 14-11709

Hon. Judith E. Levy

Defendants.

/

PLUNKETT COONEY

EMILY M. COYLE (P74123)

Attorneys for Plaintiff

38505 Woodward Avenue, Suite 2000

Bloomfield Hills, MI 48304

(248) 594-8613

(248) 901-4040 (Fax)

ecoyle@plunkettcooney.com

DANIEL P. MARSH, PLLC

DANIEL P. MARSH (P45304)

Attorney for Defendant Ann Elrington

101 W. Big Beaver Road, Suite 1400

Troy, MI 48084

(248) 687-1600

dandanielpmarsh.com 

/

BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO DISMISS ACTION, WITHOUT

PREJUDICE, AS TO ERROL G. ELRINGTON ONLY

6

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.229 Page 6 of 12
For this Brief in Support, PNC relies upon the information and authorities contained

in the Accompanying Motion to Dismiss.

Dated: February 25, 2015

Respectfully submitted,

PLUNKETT COONEY

By: /s/Emily M. Coyle

Emily M. Coyle (P74123)

Attorneys for Plaintiff

38505 Woodward Avenue, Suite 2000

Bloomfield Hills, MI 48304

(248) 901-4000

(248) 904-4040 (Fax)

CERTIFICATE OF SERVICE

I hereby certify that on February 25, 2015, I electronically filed the foregoing

papers with the Clerk of the Court using the ECF system which will send

notification of such filing to all attorneys of record.

Open.21511.40511.15113771-1

/s/ Emily M. Coyle

Emily M. Coyle

248-594-8613

ecoyleplunkettcooney.com

7

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.230 Page 7 of 12
Exhibit A

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.231 Page 8 of 12
Profiles I OIG Most Wanted Fugitives I Fraud I Office of Inspector General I U.S. Department of ... Page 4 of 48

ERROL

ELRINGTON

• On October 7, 2013, an arrest warrant was issued for Errol Elrington, M.D., for racketeering, Medicaid

fraud, and health care fraud. Investigators believe that Elrington falsely billed Medicare and Medicaid

more than $400,000 for services that he never performed, and he employed an unlicensed physician

who engaged in criminal sexual misconduct.

• According to the Felony Complaint, Elrington was a licensed physician practicing in the Redford,

Michigan, area, and was the owner of a private medical center, Elrington Medical Center PLLC

(EMC). Elrington allegedly employed an unlicensed physician to treat patients at EMC when he was

not there, then billed Medicare and Medicaid as if he performed the services. Though he was the owner

of EMC, Elrington spent most of his time employed as the chief medical officer at another medical

facility that was unaffiliated with EMC.

• The unlicensed physician treated several patients and conducted multiple pelvic exams on a female

patient, which resulted in charges of first degree criminal sexual conduct, racketeering, Medicaid fraud,

health care fraud, and health profession unauthorized practice. The unlicensed physician is being held

prior to trial.

• Elrington fled the United States for Belize less than 24 hours after being interviewed by Federal and

State agents. He remains a fugitive at-large.

Return to OIG Most Wanted Fugitives

OIG Fugitives:

Daniel Guerra and Aiza Rodriguez

https://oig.hhs.gov/fraud/fugitives/profiles.asp 2/25/2015

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.232 Page 9 of 12
Exhibit B

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.233 Page 10 of 12
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PNC BANK, National Association,

Plaintiff,

v.

MACAW, INC., a Michigan corporation;

ELRINGTON MEDICAL CENTER, P.L.L.C.,

a Michigan Professional Limited Liability Company;

ANN R. ELRINGTON, an individual; and ERROL G.

ELRINGTON, an individual,

Defendants.

Case No. 14-11709

Hon. Judith E. Levy

PLUNKETT COONEY

EMILY M. COYLE (P74123)

Attorneys for Plaintiff

38505 Woodward Avenue, Suite 2000

Bloomfield Hills, MI 48304

(248) 594-8613

(248) 901-4040 (Fax)

ecoyle@plunkettcooney.com

PROPOSED ORDER TO DISMISS ACTION, WITHOUT PREJUDICE, 

AS TO ERROL G. ELRINGTON ONLY 

This matter having come before the Court on Plaintiffs Motion to Dismiss Action,

Without Prejudice, as to Errol G. Elrington only, the Court having read the Motion and being

otherwise advised of the premises;

DANIEL P. MARSH, PLLC

DANIEL P. MARSH (P45304)

Attorney for Defendant Ann Elrington

101 W. Big Beaver Road, Suite 1400

Troy, MI 48084

(248) 687-1600

dandanielpmarsh.com 

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.234 Page 11 of 12
IT IS HEREBY ORDERED that, for the reasons stated in the Motion, Errol G.

Elrington is dismissed from this action without prejudice or costs to either side.

This is a final order and closes the case.

Open.21511.40511.15142399-1

Case 5:14-cv-11709-JEL-MJH ECF No. 24 filed 02/25/15 PageID.235 Page 12 of 12