Jones v. Barnhart et al

Filing 138

ORDER DENYING Plaintiff's 137 Motion for Reconsideration re: 137 MOTION for Reconsideration re 105 Order Vacating an Order to Show Cause filed by John Jones--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN JONES,
Plaintiff,
v.

Case No. 2:10-cv-12114
Judge Arthur Tarnow
Magistrate Judge Anthony P. Patti

PATRICIA BARNHART and
PAULA MASS
Defendants.
_________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
(DE 137)
Pending is Plaintiff’s motion for reconsideration of the Court’s October
2015 order vacating a prior show cause order (DE 105). (DE 137.) For the
following reasons, the motion to reconsider is DENIED.
On August 28, 2015, the Court issued an order requiring Defendant Patricia
Barnhart to show cause why she should not be sanctioned for failing to comply
with a February 2105 order granting in part then-pro se Plaintiff’s motion to
compel. (DE 102.) Following the usual course for a show cause order, the order
did not permit Plaintiff to file a reply; instead it only permitted him to renew his
request for imposition of sanctions after Barnhart filed a show cause response. (Id.
at 2-3.) Defendant Barnhart filed a response to the show cause order in September
2015, asserting that any failure to comply with the Court’s February 2015 order

had been inadvertent. (DE 104.) Thus, on October 9, 2015, I issued an order
vacating the show cause order. (DE 105.) In May 2016, I appointed Daniel
Manville to represent Plaintiff. (DE 118.)
Slightly over nine months after being appointed as Plaintiff’s counsel, and
with no explanation whatsoever for the lengthy delay, Attorney Manville filed the
pending motion on behalf of Plaintiff asking me to reconsider my October 9, 2015
order vacating the prior show cause order. (DE 137.) The crux of the motion is an
assertion that a logbook the Court ordered produced in discovery in February 2015
was destroyed in April 2015. (Id. at 1.) Plaintiff asserts he intends to file a Rule
37 motion based upon the destruction of the logbook. (Id. at 2.) Plaintiff also
laments the fact that I entered an order vacating the show cause order without first
allowing Plaintiff to respond thereto. (Id. at 3, 5.)
LR 7.1(h)(1) directs that “[a] motion for rehearing or reconsideration must
be filed within 14 days after entry of the judgment or order.” The motion to
reconsider at hand was filed approximately sixteen months after the order in
question, not fourteen days. Counsel was not representing Plaintiff in October
2015 when the order in question was issued, but counsel has been in the case since
May 2016 and has not sought reconsideration during that approximate nine-month
period. The silence is curious because attached to the motion to reconsider is a
September 25, 2015 discovery response to Plaintiff from Barnhart’s then-counsel
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stating that the logbook “was disposed of in April 2015 . . . .” (DE 137-2 at 2.)
Moreover, counsel offers no explanation for the delay, which is rendered even
more egregious by the fact that this case has been pending since May 2010.
In an attempt to navigate around the plain language of LR 7.1, Plaintiff relies
upon the Court’s inherent discretion under Fed. R. Civ. P. 54(b) to reconsider at
any time prior to final judgment an order that does not resolve all of the issues
against all of the parties in an action. See, e.g., Rodriguez v. Tenn. Laborers
Health & Welfare Fund, 89 Fed. App’x 949, 959 (6th Cir. 2004) (“District courts
have authority both under common law and Rule 54(b) to reconsider interlocutory
orders and to reopen any part of a case before entry of final judgment. This
authority allows district courts to afford such relief from [interlocutory orders] as
justice requires.”) (quotation marks and citations omitted). However, even
assuming for purposes of argument that Rule 54(b) applies to mere show cause/
evidentiary rulings, Plaintiff has not met his burden to show that there has been an
intervening change in the law or the existence of new evidence. Id. The Court is
unaware of any relevant changes in the law and, to the contrary, Plaintiff was
aware of, or at least should have been aware of, the alleged destruction of the
logbook since September 2015. Nonetheless, Plaintiff stood mute for about
twenty-two months after the logbook was allegedly destroyed, over sixteen months
after Defendant informed him via a discovery response that the logbook had been
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destroyed, nearly sixteen months after the order vacating the prior show cause
order was issued and about nine months after Mr. Manville was appointed.
Finally, Plaintiff also has not shown the need to correct a clear error or
prevent a manifest injustice. Id. Over and above the fact that he simply waited
way too long to seek relief (which undermines greatly the allegedly imperative
nature of the motion to reconsider), Plaintiff has indicated he intends to seek relief
under Rule 37 for the alleged destruction of evidence. Consequently, Plaintiff is
not without a potential avenue of recourse regarding the alleged destruction of the
logbook. Therefore, for all of the foregoing reasons, the motion to reconsider is
DENIED.
IT IS SO ORDERED.
Dated: February 9, 2017

s/ Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on February 9, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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