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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARCIA L. GANUN,

Plaintiff(s), CASE NUMBER: 09-12966

HONORABLE VICTORIA A. ROBERTS

v.

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Defendant(s).

_________________________________/ 

 

ORDER

I. INTRODUCTION AND PROCEDURAL HISTORY

On October 16, 2009, Plaintiff Marcia L. Ganun filed a “Motion to Allow Plaintiff to

Negotiate Attendant Care Checks.” (Doc. #10). This motion was referred to Magistrate

Judge Michael Hluchaniuk, who submitted an Order on January 29, 2010. (Doc. #41). 

Before the Court is Ganun’s “Objection to Order Regarding Plaintiff’s Motion to

Negotiate Attendant Care Checks.” (Doc. #45). 

II. STANDARD OF REVIEW

Under Fed. R. Civ. P. 72(a):

When a pretrial matter not dispositive of a party’s claim or defense is

referred to a magistrate judge to hear and decide, the magistrate judge

must promptly conduct the required proceedings and, when appropriate,

issue a written order stating the decision. A party may serve and file

objections to the order within 14 days after being served with a copy. . . . 

The district judge in the case must consider timely objections and modify

or set aside any part of the order that is clearly erroneous or is contrary to

law.
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“The ‘clearly erroneous’ standard mandates that the district court affirm the magistrate

judge’s decision unless, on the entire evidence, it ‘is left with the definite and firm

conviction that a mistake has been committed.’” Sandles v. U.S. Marshal’s Service,

2007 WL 4374077 at *1 (E.D. Mich. Dec. 10, 2007) (citing United States v. United

States Gypsum Co., 333 U.S. 364, 394 (1948)).

III. APPLICABLE LAW AND ANALYSIS

Ganun asks the Court to strike the following language from the Magistrate

Judge’s Order: “negotiation of attendant care checks does not waive . . . Defendant’s

right to assert a claim for reimbursement of attendant care benefits that have been

overpaid, these rights being fully preserved by the parties.” According to Ganun, State

Farm’s right to assert a claim for reimbursement was not an issue in her motion, nor did

State Farm file a counterclaim under Fed. R. Civ. P. 13(a)(1). Ganun says her motion

merely asked the Court for permission to negotiate attendant care drafts issued by State

Farm for monthly attendant care. 

In Response, State Farm said: 

WHEREFORE, Defendant, STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY, respectfully requests that this Honorable Court

enter an Order which allows Plaintiff to negotiate her attendant care drafts

without prejudicing her right to claim that the payments are not payments

in full, while at the same time protecting Defendant’s rights to seek a

return of any money paid which may not have been reasonable,

necessary, incurred, or related to the subject motor vehicle accident.

(Emphasis added).

The Court finds that State Farm’s Response to Ganun’s motion made its right to

seek reimbursement an issue that the Magistrate Judge had to decide; the Magistrate
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Judge was within his bounds to address it. The only issue is whether his preservation

of this right to State Farm was clearly erroneous.

Fed. R. Civ. P. 13(a)(1) says:

A pleading must state as a counterclaim any claim that – at the time of its

service – the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter

of the opposing party’s claim; and 

(B) does not require adding another party over whom the court cannot

acquire jurisdiction.

Because State Farm did not assert its right to reimbursement as a compulsory

counterclaim under Fed. R. Civ. P. 13(a)(1), if discovery reveals that State Farm is

entitled to reimbursement, it would need the Court’s permission to assert its

counterclaim. See Fed. R. Civ. P. 15(a)(2): “a party may amend its pleading only with

the opposing party’s written consent or the court’s leave.” It does not have an automatic

right to seek a return of money from Ganun at this juncture. 

IV. CONCLUSION

The Court ADOPTS IN PART AND DENIES IN PART the Magistrate Judge’s

Order. The Court DECLINES TO ADOPT the following language in the Magistrate

Judge’s Order: “negotiation of attendant care checks does not waive . . . Defendant’s

right to assert a claim for reimbursement of attendant care benefits that have been

overpaid, these rights being fully preserved by the parties.” 

State Farm’s right to assert a counterclaim for reimbursement is not absolute.

State Farm must first seek permission from the Court. The Court will then determine

whether State Farm can amend its pleadings to assert a counterclaim. 
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IT IS ORDERED.

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: June 14, 2010

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

June 14, 2010.

s/Linda Vertriest 

Deputy Clerk