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I have to admit that Ms. Greenberg's request for a default judgment
put me in a mini-panic. (I hate to admit it, because I know she'll read this, but it's the
truth. I realize that a compulsion to tell the truth puts me at a severe disadvantage in dealing with
lawyers, but that's the way it is.) Had I already lost the case because of a procedural error? (That
is exactly what every lawyer I know had been warning me might happen, which is one of the reasons that
they unanimously urged me to get a lawyer.) Was the default request so straightforward that the Court
may have already issued a default judgment against me? Should I be afraid to open my mailbox?
Since there was no way for me to answer those questions, I took a couple
of deep breaths and tried to figure out what to do next. I had no idea if it were possible (in the
sense of "procedurally correct") to file an opposition to a default request, but I thought that I had
to do something, so I might as well write something quickly, mail it to the Court, and hope
that it might delay my impending doom long enough for me to figure out what to do next.
So here's what I wrote. I don't think it's especially well written, and
I don't know if it makes any sense, but I was under the gun, and this was the best I could do on short
notice...
(Note: I have not included the "Certificate of Service.")
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN
DIVISION
| THE TAUBMAN COMPANY LIMITED |
| PARTNERSHIP, |
| |
| Plaintiff, | |
| |
| | Civil Action No. 01-72987 |
| v. |
| | Honorable Lawrence P. Zatkoff |
| WEBFEATS and HENRY MISHKOFF, |
 |
Magistrate Judge Komives |
| |
| Defendants. | |
BRIEF IN SUPPORT OF
DEFENDANT'S OPPOSITION TO
PLAINTIFF'S REQUEST TO ENTER
DEFAULT
TO: CLERK OF THE COURT
Defendant Henry Mishkoff (who is creating this document, and who will be referred to in the
remainder of this document in the first person) hereby requests that the clerk of the above-entitled
Court refuse Plaintiff's "Request To Enter Default" on the following grounds:
I am not an attorney, and I cannot afford to engage an attorney. I recognize that "ignorance
of the law is no excuse"; however, under the circumstances, and in light of the fact that I am and
have been making good-faith efforts to fulfill my responsibilities in regard to my defense of this
action, I respectfully urge the Court to use its discretion and allow me a reasonable amount of
leeway in the timing of my responses. I am well aware that the Court would probably encourage me to
seek legal representation so that the Court will not have to entertain requests for leeway. However,
I respectfully submit that, to be worthy of its name, the system of American Justice must be
flexible enough to allow a reasonable person, acting in good faith, to defend himself in a civil
action. To believe otherwise is to believe that only those who can afford legal representation are
entitled to justice in the United States, which is an abhorrent concept to which only the most
cynical among us would adhere.
I was not aware that a response to Plaintiff's Complaint was required, nor do I believe that
a reasonable person (with no legal representation) would have been aware that a response was
required. The primary reason for this belief is the final sentence of Plaintiff's Complaint, which
reads: "Plaintiff demands a jury trial on all issues triable by a jury." Because I have no reason to
oppose this concluding statement (in fact, I concur with Plaintiff's insistence on a jury trial),
there was no reason to me to believe that there was any need whatsoever for me to respond. In other
words: I interpreted Plaintiff's Complaint to essentially be a request for a jury trial to obtain
the specified relief, and I maintain that any reasonable person (with no legal representation) would
have drawn the same conclusion. (In fact, I still maintain that that is the most reasonable
interpretation of the action sought in Plaintiff's Complaint, and I heartily concur in Plaintiff's
demand for a jury trial. If any default is to be entered in this action, it should be in the form of
acceding to Plaintiff's demand for a jury trial - a demand which, as I said, I do not oppose.)
As related in Plaintiff's "Request To Enter Default," I did indeed accept "the copy of
complaint as service in a telephone conversation on September 5, 2001." However, I accepted service
in this way only because Plaintiff's representative (Ms. Greenberg) told me that if I did not agree
to accept service verbally, she would have me served by a professional process server, and that I
would have to pay for such service. Since that conversation, I have had reason to suspect that I may
have been misled by Ms. Greenberg (although I do not know that for a fact). If, in fact, it is not
necessarily true that I would have been responsible for the expense of serving the Complaint, then
my verbal agreement was made only in response to a misrepresentation by Plaintiff, in which case I
respectfully ask the Court to declare my verbal acceptance of service of Plaintiff's Complaint to be
null and void.
In a letter from Plaintiff's representative (Ms. Greenberg) dated August 16, 2001, Plaintiff
set forth three specific conditions that I would have to meet to resolve their Complaint. They
indicated that they would not pursue litigation if I accepted their terms; their exact words were:
"Obviously, such a resolution is preferable to litigation, which we will pursue only if this
resolution is not acceptable to you" (emphasis mine). In my return letter (also dated August 16,
2001), I unequivocally accepted their offer; however, in spite of this clear, unambiguous, written
offer and acceptance, Plaintiff failed to execute their responsibilities under the contract.
Finally, on October 8, 2001, I notified Plaintiff that I would withdraw my acceptance of their offer
as of October 12, 2001, if they had not executed their responsibilities under our agreement by that
date. That date passed, and my acceptance was withdrawn. However, until that date, I had valid
reason to believe that there was still a chance that they would honor their commitment, and that
they would not proceed with litigation. Therefore, I think it is reasonable to conclude that the
date of Plaintiff's Complaint should be effectively regarded to be October 12, 2001, which was the
first date on which I could be reasonably certain that Plaintiff and I did not have an agreement to
avoid litigation. Today is October 18, 2001 - I have no idea how long the Federal Rules of Civil
Procedure allow me to respond to a Complaint, but surely it is longer than six days.
In conclusion, I ask the Court to reject Plaintiff's "Request to Enter Default" and to allow this
action to proceed toward its eventual resolution in a jury trial, as per Plaintiff's original
request in their Complaint.
Respectfully submitted,
Henry Mishkoff
WebFeats
2661 Midway Road, #224-225
Carrollton, TX 75006
972.931.5421
Defendant
Dated: October 18, 2001
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