Macomb Interceptor Drain Drainage District v. Kilpatrick et al

Filing 295

ORDER Construing as a Motion to Reconsider re: 293 Notice/Letter filed by L. D'Agostini & Sons, Inc. and DENYING the letter seeking relief. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MACOMB INTERCEPTOR DRAIN
DRAINAGE DISTRICT,
Plaintiff,
and
CITY OF DETROIT,
Plaintiff-Intervenor,
Case No. 11-13101

v.
KWAME KILPATRICK, et al.,
Defendants.
/

ORDER CONSTRUING AS A MOTION TO RECONSIDER,
AND DENYING, LETTER SEEKING RELIEF
A February 11, 2013, order dismissed without prejudice the City of Detroit’s
complaint against L. D’Agostini & Sons, Inc. (LDS), and set a February 18 deadline for
Detroit to submit an amended complaint. Later, a telephone conference was set for
February 28. This action embraces an inordinate and unwieldy number of defendants,
many of whom have been dismissed; accordingly, for the sake of ordered
administration, attendance at the conference was limited strictly to parties with an
obvious and immediate continuing interest in the litigation. Because the deadline for
Detroit to maintain a complaint against LDS expired before the conference, LDS was
not allowed to attend. At the conference, however, Detroit sought and received
permission to submit an amended complaint after the deadline, which was, therefore,

vacated in an order on March 5. LDS submits a letter seeking to reinstate the deadline.
Because it seeks to reverse the March 5 order, the letter will be construed as a motion
to reconsider.
What matters more is the aim of Detroit’s request, and not the deadline that it
missed. Although a deadline to amend after a first dismissal of course directs a plaintiff
to act promptly, its ultimate purpose is to help the court track and manage the action.
The plaintiff is usually entitled to amend at least once, Winget v. JP Morgan Chase
Bank, N.A., 537 F.3d 565, 573 (6th Cir. 2008), and Federal Rule of Civil Procedure
15(a) directs the district court to grant leave to amend freely. “In most cases,” therefore,
“delay alone is not a sufficient reason for denying leave.” 6 C. Wright & A. Miller,
Federal Practice & Procedure Civ. § 1488 (3d ed.). Treating as a hard limitation an
initial deadline to amend for the first time would defy the common attitude toward
amendment.
Rule 15 “was designed to facilitate amendment of pleadings except where
prejudice to the opposing party would result.” United States v. Hougham, 36 U.S. 310,
316 (1960). So the pertinent question is, did Detroit’s being excused from the deadline
prejudice LDS? “Because [we] . . . relied upon the . . . deadline,” LDS says, the order
vacating the deadline “came as a complete surprise.” If anything, this statement
confirms that LDS suffered no material prejudice. Presumably, LDS was pleased when
the deadline was missed, and, naturally, it was upset when, two weeks later, the
deadline was vacated; but, needing to cite a concrete hardship or disadvantage, it
raises nothing besides discomfort. LDS is not trying to prevent prejudice against itself; it
is trying to press a perceived advantage against its adversary.
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It is true that an oral motion—let alone an ex parte oral motion—is disfavored.
Fed. R. Civ. P. 7(b). But again, Detroit asked for what was very nearly its right. “The
Federal Rules reject the approach that pleading is a game of skill in which one misstep
by counsel may be decisive to the outcome and accept the principle that the purpose of
pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41,
48 (1957), abrogated on other grounds, Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007). The governing standard is so lenient that several district courts have tolerated a
party’s amending a pleading late without asking permission. 6 C. Wright & A. Miller,
supra, § 1484 n.18 (collecting authority). One need not be as tolerant as that to agree
that an objection at the conference to Detroit’s request would have been futile.
The informed reader will recall that earlier Macomb Interceptor, another party to
this action, was denied leave to amend its pleading. The distinction between Macomb
Interceptor’s request to amend and Detroit’s request to amend is instructive. After
comprehensive briefing and a hearing and a lengthy order granting summary judgment
against it, Macomb Interceptor asked to begin the litigation afresh with a new legal
theory. After far more basic briefing, no hearing, and a terse order dismissing its
complaint without prejudice, Detroit sought to preserve its right at the pleading stage to
cure defects in its complaint. The difference is stark. Macomb Interceptor wanted, in
effect, to repeat a large amount of litigation it had no right to repeat. Detroit wants the
option to repeat a small amount of litigation it has every right to repeat.
A party seeking reconsideration must show that a ruling is plainly defective. E.D.
Mich. LR 7.1(h)(3). LDS raises no defect, plain or obscure. Accordingly,

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IT IS ORDERED that the letter [Dkt. # 293], construed as a motion to reconsider,
is DENIED. LDS, of course, remains free to move to dismiss any amended complaint
Detroit chooses to submit.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 18, 2013

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 18, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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