The Creelgroup, Inc. v. NGS American, Inc. Employee Benefit Plan Trust et al
MEMORANDUM and ORDER denying 25 Plaintiff's Motion for Reconsideration. Signed by District Judge Avern Cohn. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
a Nebraska corporation,
Case No. 11-CV-13798
HONORABLE AVERN COHN
NGS AMERICAN, INC.,
a Michigan corporation,
TRUSTCO HOLDINGS, INC.,
a Delaware corporation, and
a Michigan resident,
MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION (DOC. 29)
This is a tortious interference and breach of contract case. Plaintiff, The
Creelgroup, Inc. (Creel), claims that defendants NGS American, Inc. (NGS) and its
corporate parent, Trustco Holdings, Inc. (Trustco), breached a contract to pay
commissions to Creel. Additionally, Creel claims that Scott McLellan (McLellan), a
former NGS employee, tortiously interfered with its contractual rights and business
expectancy by stealing a customer, Oakwood Hospital (Oakwood). The complaint
contains three counts: Count (I) Tortious Interference with a Contract (McLellan); Count
(II) Tortious Interference with a Business Expectancy (McLellan); and Count (III) Breach
of Contract (NGS and Trustco).
On April 4, 2012, the Court held a hearing on the NGS, Trustco, and McLellan’s
(collectively, “Defendants”) motion to dismiss (Doc. 9). The Court granted the motion
and dismissed the case (Doc. 13). Now before the Court is Creel’s motion for
reconsideration (Doc. 25). Defendants filed a response to Creel’s motion (Doc. 29).
For the reasons that follow, the motion will be DENIED.
II. Standard of Review
A motion for reconsideration is governed by E.D. Mich. LR 7.1(h), which states in
Generally, and without restricting the court’s discretion, the court will not
grant motions for rehearing or reconsideration that merely present the
same issues ruled upon by the court, either expressly or by reasonable
implication. The movant must not only demonstrate a palpable defect by
which the court and the parties and other persons entitled to be heard on
the motion have been misled but also show that correcting the defect will
result in a different disposition of the case.
E.D. Mich. L.R. 7.1(h)(3). “A ‘palpable defect’ is a defect which is obvious, clear,
unmistakable, manifest, or plain.” Ososki v. St. Paul Surplus Lines Ins. Co., 162 F.
Supp.2d 714, 718 (E.D. Mich. 2001).
A. Breach of Contract
Creel argues that the Court should reconsider dismissal of Creel’s claim for
breach of contract. Creel contends that (1) Creel did not previously brief the issue of
consideration; (2) the Court failed to consider provisions in the contracts that establish
consideration; and (3) the Court should look to the parties’ conduct to ascertain
Creel’s focus on consideration is misplaced. The only mention of consideration
in the order occurred in listing the elements of a contract. The Court never found that
the instant contracts lacked consideration. Instead, the Court found that Creel was not
a party to the 2005 and 2008 contracts between Oakwood and NGS, and that the
contracts did not create an obligation for Creel to discharge. Thus, the existence of
consideration would not result in a different disposition of the case.
Even assuming, however, that Creel is arguing the existence of mutuality of
obligation, the argument fails. The provisions in the contracts to which Creel points only
establish that Creel was entitled to payments pursuant to the contracts. The provisions
do not establish that Creel was required to do anything.1 Thus, as the Court previously
determined, the contracts did not create an obligation for Creel to discharge.
B. Tortious Interference with a Contract and Tortious Interference with a
Creel’s only argument in its motion regarding its claim of tortious interference
with a contract and tortious interference with a business expectancy is that the Court
failed to consider numerous allegations in the complaint and the reasonable inferences
to be drawn from them.
After careful review of the documents and a hearing, the Court found that the
factual allegations supporting the tortious interference with a contract and tortious
interference with a business expectancy claims are sparse, and most of the allegations
Creel also points to allegations in the Complaint in an attempt to establish
consideration and/or mutuality of obligation. The Court, however, is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
consist of conclusory statements that merely recite the elements. Creel’s motion
presents the same issues ruled upon by the Court. “A motion for reconsideration is not
properly used as a vehicle to re-hash old arguments . . . .” DiPonio Const. Co, Inc. v.
Int’l Union of Bricklayers and Allied Craftworkers, Local 9, 739 F. Supp.2d 986, 1004
(E.D. Mich. 2010).
For the reasons stated above, the motion for reconsideration is DENIED.
UNITED STATES DISTRICT JUDGE
Dated: June 12, 2012
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, June 12, 2012, by electronic and/or ordinary mail.
Case Manager, (313) 234-5160
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