Zedan v. Bailey

• Decision Date: 18 February 2021
• Docket Number: CASE NO.: 7:19-CV-45 (WLS)
• Parties: Daniel J. ZEDAN, Plaintiff, v. Matthew James BAILEY, Defendant.
• Court: U.S. District Court — Middle District of Georgia

522 F.Supp.3d 1363

Daniel J. ZEDAN, Plaintiff,

v.Matthew James BAILEY, Defendant.

CASE NO.: 7:19-CV-45 (WLS)

United States District Court, M.D. Georgia, Valdosta Division.

Signed February 18, 2021

William J. Sheppard, Atlanta, GA, for Plaintiff.

Alex J. Kaplan, Albany, GA, for Defendant.

ORDER

W. LOUIS SANDS, SENIOR JUDGE

This matter is before this Court for a determination of an appropriate award to be entered following a grant of default judgment.

I. Background

Plaintiff Daniel Zedan brought this action against Defendant Matthew James Bailey on March 20, 2019 alleging libel, slander, and intentional infliction of emotional distress¹ and seeking an injunction that Bailey cease his wrongful conduct, compensatory damages of no less than $75,000, attorney's fees, and costs. (Doc. 1.) In his Complaint, Plaintiff asserts that he is a resident of the State of Illinois and that Bailey is a resident of Lowndes County, Georgia and that a substantial part of the events giving rise to Zedan's claim occurred in this judicial district. Id. ¶¶ 1, 2, 5. Bailey answered the Complaint on April 15, 2019 asserting that he had not committed the wrongful acts alleged, that he was "afforded the freedom to write about public figures such as Mr. Zedan," that he was "not served in the correct manner," and that this is not "the correct court venue." (Doc. 13.) Bailey provided an address of record in Pelham, Georgia.² Bailey also moved the Court to appoint him counsel, which the Court denied. (Docs. 14 & 16.)

On April 16, 2019, the Parties were noticed to appear and attend a scheduling and discovery conference at the Court on June 11, 2019. (Doc. 15.) Bailey did not attend the conference and did not seek an excuse or continuance from the Court in advance; as such, the conference proceeded and Bailey was noticed via a written order that "further failure to appear or comply with Court orders may subject Bailey to sanctions." (Doc. 18 at 1 n.1.) The Court entered a discovery order on June 12, 2019. (Doc. 18.) On June 24, 2019, the Court received a letter from Bailey stating that he was unable to attend the conference because he was attending college in New England and he requested that the Court postpone the case until he was "available to defend [him]self, or find adequate representation." (Doc. 19.) The Court denied Bailey's request but allowed him until August 12, 2019 to notify the Court whether he had retained counsel or would proceed pro se , notifying him that "he remains at all times responsible for his defense in this matter unless and until he has retained counsel." (Doc. 20.) Bailey did not respond to the Court's order. (See docket.)

On August 16, 2019, Zedan moved to compel Bailey to provide mandatory initial disclosures and responses to Plaintiff's Interrogatories and Request for Production of Documents. (Doc. 23.) Because Defendant appeared to be proceeding pro se , the Court noticed him of the procedures for responding to the motion to compel and the consequences of failing to do so, which included that Bailey could be sanctioned by an entry of default judgment and be required to pay the movant's reasonable expenses incurred in making the motion. (Doc. 24.) Bailey filed no response to the motion to compel, and the Court granted the motion, ordering that Bailey "provide to Plaintiff full and adequate initial disclosures as required by Rule 26(a), responses to Plaintiff's interrogatories, and document productions immediately and no later than Tuesday, October 8, 2019. " (Doc. 25 at 2.) The Court also warned Bailey "that failure to comply with this Order may subject him to the drastic sanction of default judgment being entered against him without further notice." Id. at 2-3. Finding that it would be difficult for Bailey to attend a hearing, the Court set a telephone conference so that Bailey could be heard on the issue of whether further sanctions should be ordered against him and on a reasonable amount of attorney's fees. Id. at 3.

Although Bailey had previously stated that he would not attend the telephone conference, Bailey did attend and he informed the Court that he had not responded to the discovery requests because it was difficult for him to read the "legalese" and he had not studied the law. See Doc. 27 at 1. The Court inquired into the nature of the discovery requests Plaintiff had served, and Plaintiff's counsel responded that they mostly requested that Bailey identify his alleged sources of information. Id. Bailed admitted that such requests were not legalese but that he preferred that Plaintiff's counsel explain the requests orally to him. Id. The Court explained that this is a formal legal proceeding and that each party has the right to signed, sworn discovery responses. Id. at 2. The Court explained that Bailey has a responsibility to respond to discovery requests, and that if he does not respond, he can be subject to sanctions, including a money judgment against him. Id. The Court stated that it was because of the seriousness of this proceeding that the Court has suggested in prior orders that Bailey take the appropriate steps to defend himself or secure legal counsel. Id. The Court stated that its orders and the rules must be complied with. Id. After Plaintiff's counsel requested fees totaling $2,272.50 at a rate of $505 per hour to be paid within ten days, Bailey replied that he would not pay fees because he did not have the money. Id. at 2. The Court took the fee request under advisement. The Court also extended the discovery deadline to January 9, 2020 (after the holidays), to allow Bailey time to engage in discovery, but clarified that "Bailey's initial disclosures as required by Rule 26(a), responses to Plaintiff's interrogatories, and document productions remain due no later than Tuesday, October 8, 2019. " Id. at 2-3.

On October 9, 2019, Zedan filed a second and supplementary Motion to Compel, asserting that Bailey had still not provided the ordered discovery. (Doc. 28.) Plaintiff sought attorney's fees and an order striking Bailey's Answer and entering default judgment against Bailey on liability, an injunction requiring Bailey to remove the slanderous statements from his website, and a trial on damages and attorney's fees. (Doc. 28 at 6.) Although the Court again noticed Bailey of the second motion to compel and of the consequences of failing to respond, Bailey filed no response. (Doc. 30.) The Court granted Plaintiff default judgment on his claims of libel and slander–such that Bailey's Answer was stricken and he was deemed to admit the well-pled allegations in the Complaint—and denied without prejudice Plaintiff's request for an injunction. (Doc. 32 at 12.) The Court ordered that Bailey pay to Plaintiff's counsel $1,575.00 in attorney's fees for the time expended on the first motion to compel no later than Friday, January 17, 2020 based on 4.5 hours spent on that motion at a rate of $350 per hour. Id. at 11-12. The Court stated that it would hear from Bailey at the damages hearing on the fees requested for 0.6 hours for the telephone conference on the first motion to compel and 1.5 hours for the second motion to compel. See id. The Court subsequently granted-in-part Zedan's third motion to compel based on Bailey's failure to attend a reasonably noticed deposition without substantial justification and stated that it would determine the appropriate sanctions to be entered on the second and third motions to compel by separate order. Id. ; Doc. 54.

In the order granting default judgment to Plaintiff, the Court set a hearing for February 19, 2020 to "hear from Bailey on all remaining issues," including Plaintiff's request for attorney's fees on the motions to compel, and to hear from the Parties on "compensatory and punitive damages," "attorney's fees and costs, and the appropriate scope of any injunction to be issued." (Doc. 32 at 12.) On February 18, 2020, Defendant filed an "Emergency Motion to Continue" the hearing, in which Defendant's newly-retained attorney stated that Defendant had hired him that day and that he had only just learned about the hearing scheduled for the next day. (Doc. 40.) Based on this motion, the Court continued the hearing to April, but because of the risks posed by the COVID-19 pandemic, the hearing was ultimately continued to August 5, 2020. (Docs. 44, 45, 46.) At the August 5th hearing, the Court restated the purpose of the hearing and also notified Bailey that "this would be the time for him to provide any evidence" on the motions to compel, such as appropriate attorney's fees, and he declined to do so. (Doc. 50 at 89:21-91:1.) The Parties have now timely filed briefs following the hearing, containing their proposed findings of fact, conclusions of law, and supporting legal arguments. (See Docs. 51, 52, 53.) The Court will analyze all remaining issues in turn.

II. Discussion

A. Challenged Pleadings

Defendant argues that the Court should deny default judgment for the relief requested on Plaintiff's claims. (Doc. 52.) Defendant posits that Plaintiff has failed to plead libel because the statements alleged to constitute libel are not defamatory on their face and do not indicate that Plaintiff was charged with a crime, such as to constitute libel under Georgia law. Id. at 6-11. Defendant argues that none of the posts of which Plaintiff complains constitute actual defamation unless the Court impermissibly resorts to "innuendo," especially because the entire posts are not attached to the Complaint and the statements lack context. Id. at 9-11. He further contends that Plaintiff's allegation that "upon information and belief" Bailey repeated his defamatory statements orally are insufficient to support an entry of default judgment for slander. Id. at 13 (citing cases). Defendant argues that because Plaintiff's claims of libel and slander are insufficiently pled, the Court cannot award attorney's fees, punitive damages, or injunctive relief. Id. at 13-14; Doc. 53.

Because the Court has...